EFTA00312957

(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 easterly sid ersec- e of 5th Avenue with the northe of 71st Street; running rly side thence Easterly along the nor therly side of 71st Street feet; ' 50 thence Northerly and parallel with 5th Avenue 102 feet to the centre line of the 2 inches block between 71st and 72nd Streets; thence westerly along the said center line and parall 71st Street 50 feet; el with thence Southerly and parallel with 5th Avenue 102 feet 2 to the northerly side of 71s inches Beginning. t Str eet at the point or place of EFTA00312968 Exhibit B (Covenants, Restrictions, Agreements) None EFTA00312969 Schedule C Personal Property One (1) Louis XIV Painted Armchair One (1) Mahogany Dining Table Twelve (12) Dining Chairs One (I) set Mahogany Dining Furniture One (1) Desk — Early Louis XIV EFTA00312970 Exhibit D Note — Attached EFTA00312971 PROMISSORY NOTE New York, New York November , 1998 FOR VALUE RECEIVED, the undersigned, NES, LLC, a New York limited liability company (the "Make?), hereby unconditionally promises to pay to the order of Leslie H. Wexner (the "Holder") the principal amount of Ten Million Dollars ($10,000,000), together with interest on the unpaid principal balance at the rate of four and five-tenths percent (4.5%) per annum, on December 31, 1999. All payments of principal and interest hereunder shall be made in lawful mone of the United States, in immediately available funds at (or at such other place as the Holder of s ote maydesignate rn writing to the Maker). In the event that any payment hereunder shall become due on a Saturday, Sunday or legal or bank holiday under the laws of the place at which such payment is to be made hereunder, such payment shall be made on the next succeeding business day. This Note is made and delivered to the Holder pursuant to the provisions of a certain Purchase and Sale Agreement of even date herewith by and between the Maker and the Holder. The payment of this Note is guaranteed by Jeffrey E. Epstein (the "Guarantor") as provided under a certain Guaranty of even date herewith. I. Voluntary Prepayment. The unpaid principal amount of this Note and/or any accrued interest hereunder may be prepaid at any time, in whole or in part, without premium or penalty. Any such prepayment shall first be applied to accrued interest and then to principal hereunder. 2. Events of Default. (a) If any of the following events shall occur during the term hereof, such events shall be deemed a default by the Maker hereunder (each an "Event of Default"): (i) The Maker shall have defaulted in the payment of any principal or interest under this Note as and when such payment shall have become due and payable in accordance with the terms hereof and failed to cure such default within ten (10) business days of the Maker's receipt from the Holder of written notice of such default; (ii) There shall have been entered by a court of competent jurisdication any order, judgment or decree for relief in respect of the Maker or the Guarantor under any applicable Federal or state bankruptcy law or other similar law, or EFTA00312972 appointing a receiver, an assignee, a trustee or a custodian of all or a substantial part of any of the Maker's or the Guarantor's property, assets or revenues, and such order, judgment or decree shall have been continued unstayed, unbonded and in effect for a period of 60 days; (iii) The filing by the Maker or the Guarantor of a petition or a consent to a petition seeking relief under Title 11 of the United States Code, as now or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency or other similar law, or the consent by the Maker or the Guarantor to the institution of proceedings thereunder or to the filing of any such petition or to the appointment or taking of possession by a receiver, a liquidator, an assignee, a trustee or a custodian, of any substantial part of the property, assets or revenues of the Maker or the Guarantor, or the making by the Maker or the Guarantor of an assignment for the benefit of creditors, or the inability of the Maker or the Guarantor to pay its or his debts as they become due and payable; (iv) The Guarantor does not own a majority of the membership interests of the Maker; or (v) The sale or other transfer of all, or substantially all, of the Maker's assets to any person other than the Guarantor or an affiliate of the Guarantor. (b) In the case of an Event of Default, without any demand, presentment, protest or other notice whatsoever to the Maker, or other statutory or other rights of redemption, or any other action by the Holder, all of which are hereby expressly waived by the Maker, the unpaid principal amount hereof and accrued interest hereunder shall become due and payable in full upon the occurrence of any such Event of Default and the Holder may exercise, simultaneously or seriately, any or all of such other rights and remedies as may be lawfully permitted under Federal law or state law and any and all of the remedies of the Holder set forth herein. (c) All payments hereunder shall first be applied to accrued interest and then to principal hereunder. 4. No Off-Set. All sums payable by the Maker under this Note shall be made without reduction for any reason in respect of set-off, counterclaim or otherwise. 5. Loss. etc. of Note. At the Holder's request and upon the Maker's receipt of evidence reasonably satisfactory to the Maker of the loss, theft, destruction or mutilation of this Note, and of indemnity reasonably satisfactory to the Maker, the Maker shall execute and deliver to Holder a new note identical in all respects to this Note. 6. Waivers. The Maker hereby waives diligence, presentment, protest and demand, and also notice of protest, of demand, of non-payment, of dishonor and of maturity. 2 EFTA00312973 7. Governing Law. This Note shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts to be performed entirely within that state, without giving effect to the principles of conflict of laws thereof. 8. Non-Waiver. My waiver of any provision hereof must be in writing. No failure on the part of the Holder to exercise, and no delay in exercising, any right, power or privilege under this Note shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege under this Note preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The remedies herein provided are cumulative and not exclusive of any and all other remedies provided by law. 9. Collection. The Maker hereby agrees to pay, upon demand by the Holder, in lawful money of the United States of America, all of the Holder's reasonable costs and expenses of enforcement and collection of this Note, including, but not limited to, reasonable attorneys' fees and disbursements, in the event and to the extent that it beomes necessary for the Holder to enforce any of the provisions of this Note, including, but not limited to, the Maker's obligations to pay the principal and interest as provided herein. 10. Notices. Each notice or other communication required or permitted hereunder shall be given by certified or registered mail, return receipt requested, by reputable overnight delivery service or by personal delivery addressed to the intended recipient thereof at its or his address set forth below or at such substituted address as either party hereto may from time to time designate for such purpose by notice given in like manner to the other party hereto: If to the Maker, to it at: NES, LLC If to the Holder, to it at: Leslie H. Wexner Each such notice or other communication so given shall be deemed to have been given and received three (3) business days after deposit with the United States Post Office, if so 3 EFTA00312974 mailed; one (1) business day after depositing with the overnight cornier, if sent by overnight delivery service; or as of the time of delivery, of personally delivered. NES, LLC By: Jeffrey E. Epstein Member 4 EFTA00312975 Exhibit E Guaranty — Attached EFTA00312976 GUARANTY THIS GUARANTY dated as of November , 1998, by Jeffrey E. Epstein, who has an address at 358 El Brillo Way, Palm Beach, FL 33480 (the "Guarantor"). WHEREAS, pursuant to a certain Purchase and Sale Agreement of even date herewith (the "Agreement") by and between NES, LLC, a New York limited liability company (the "Maker"), and Leslie H. Wexner (the "Holder"), the Maker is required to execute and deliver to the Holder a promissory note (the "Note") in the principal amount of Ten Million Dollars ($10,000,000) (the Maker's obligations under the Note are sometimes hereinafter referred to as the "Obligations"); WHEREAS, the Guarantor desires that the Holder execute the Agreement and consummate the transactions contemplated thereby and, as the sole member of the Maker, will derive benefits from such transactions; and WHEREAS, the Holder will not execute the Agreement and accept the Note, unless the Guarantor guarantees payment of the Obligations; NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Guarantor, the Guarantor hereby agrees as follows: ARTICLE I Terms of the Guaranty Section 1.1 Guaranty of Payment. In order to induce the Holder to enter into the Agreement and accept the Note, the Guarantor hereby guarantees to the Holder the payment of the Obligations when due, whether at stated maturity, by acceleration or otherwise. This is a guaranty of payment, and not a guaranty of collection. Section 1.2 Enforcement of Guaranty. The Holder, in his sole discretion, may proceed directly against the Guarantor to exercise any right or remedy that the Holder may have under this Guaranty without pursuing or exhausting any other right or remedy that the Holder may have against the Maker, any other guarantor or any collateral and without regard to any action or omission of the Maker or any other third party. The Holder may institute separate proceedings with respect to this Guaranty and the Note, in such order and at such times as the Holder may elect. Section 1.3. Guaranty Absolute. The obligations of the Guarantor hereunder shall be absolute and unconditional, regardless of the validity, legality or EFTA00312977 enforceability of any of the provisions of the Note or the Agreement, the existence, value or condition of any collateral for the Obligations or any other event that might otherwise constitute a legal or equitable discharge of a surety or guarantor, and the obligations of the Guarantor hereunder shall not be subject to any defense, counterclaim, setoff, recoupment, abatement, reduction or other determination that the Guarantor may have against the Holder, the Maker or any other third party, it being agreed that the agreements and liabilities of the Guarantor hereunder shall not be discharged except by payment of all amounts due under the Note and under this Guaranty. Section 1.4. Guaranty Not Affected. Without limiting the generality of Section 1.3 hereof, the Guarantor hereby consents and agrees that, at any time, and from time to time: (a) the time, manner, place and terms of payment of the Obligations may be extended or changed; (b) any action may be taken under, or in respect of, any of the provisions of the Note in the exercise of any remedy, power or privilege, or any one or more rights of the Holder under the Note may be waived, omitted, or not enforced; (c) the time for the performance of, or compliance with, any term, covenant or agreement by the Maker on its part to be performed or observed under the Note may be extended, or the performance thereof, or the compliance therewith, may be waived, or the failure of, or the departure from, such performance or compliance may be consented to; (d) the Note may be modified, amended or restated from time to time in any respect (including, without limitation, with respect to the rate of interest due under the Note); and (e) the liability of the Maker to pay any and all of the amounts due under the Note may be settled or compromised, and payment of any and all of the Obligations may be subordinated to the prior payment of any other debts or claims of the Maker; all in such manner and upon such terms as the Holder may deem proper, and without notice to, or further assent from, the Guarantor, and all without affecting this Guaranty or the obligations of the Guarantor hereunder, which shall continue in full force and effect until the Obligations and all agreements and liabilities of the Guarantor hereunder and under the Note shall have been fully performed and paid. Section 1.5. Waiver. Any waiver of any provision hereof must be in writing and shall be effective only in the specific instance and for the specific purpose for which such waiver is given. No failure on the part of the Holder to exercise, and no delay in exercising, any right, power or privilege under this Guaranty shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege under this Guaranty preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. The remedies herein provided are cumulative and not exclusive of any and all other remedies provided by law. 2 EFTA00312978 Section 1.6. Reinstatement. The provisions of this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if payment, or any part thereof, of any of the Obligations is rescinded or must otherwise be restored or returned by the Holder upon the insolvency, bankruptcy or reorganization of the Maker or the Guarantor, whether by order of any court, by any settlement approved by any court, or otherwise, all as though such payment had not been made. Section 1.7. Subrogation and Contribution. The Guarantor shall not exercise any rights that he may have acquired under this Guaranty by way of contribution, subrogation or otherwise, unless and until all of the Obligations shall have been paid in full, and, if payment shall be made to the Guarantor on account of such rights at any time when all of the Obligations shall not have been paid in full, each and every amount so paid shall be held in trust for the benefit of the Holder and promptly shall be paid to the Holder, who shall credit and apply the same to the payment of any portion of the Obligations as the Holder may elect, whether such portion of the Obligations is matured or unmature. Section 1.8. Binding Effect. This Guaranty shall be binding upon the estate, the heirs and the personal representatives of the Guarantor, and shall inure to the benefit of the Holder, his assigns, and the estates, the heirs and the personal representatives of the Holder and his assigns. ARTICLE II Miscellaneous Section 2.1. Notice. Any and all notices or other communications or deliveries required or permitted hereunder to be given or made shall be in writing and delivered personally, or sent by certified or registered mail, return receipt requested and postage prepaid, or sent by reputable overnight courier service as follows: If to the Guarantor, to him at: Jeffrey E. Epstein 358 El Brillo Way Palm Beach, FL 33480 If to the Holder, to hint at: Leslie H. Wexner or at such other address as either the Guarantor or the Holder may specify by notice given to the Holder in accordance with this Section 2.1. Each such notice or other 3 EFTA00312979 communication or delivery shall be deemed to be given and received on the date of hand delivery; three (3) business days after the date of the posting of the mail, if sent by certified or registered mail; or one (1) business day after the date it is deposited with the overnight courier, if sent by reputable overnight courier service. Section 2.2. Governine Law. This Guaranty shall be construed (both as to validity and performance) and enforced in accordance with, and governed by, the laws of the State of New York applicable to contracts to be performed entirely within that State, without giving effect to its principles of conflicts of law. Section 2.3 Severability. In the event that any provision of this Guaranty shall be finally determined to be superseded, invalid, illegal or otherwise unenforceable pursuant to applicable law by any authority having jurisdiction, such determination shall not impair or otherwise affect the effectiveness, validity, legality or enforceability of the remaining provisions of this Guaranty, which shall be enforced as if the ineffective, invalid, illegal or otherwise unenforceable provision were deleted. Section 2.4. Collection. The Guarantor hereby agrees to pay, upon demand by the Holder, in lawful money of the United States of America, all of the Holder's reasonable costs and expenses of the enforcement of, and the collection under, this Guaranty, including, without limitation, the Holder's reasonable attorneys' fees and disbursements, in the event and to the extent that it becomes necessary for the Holder to enforce any of the provisions of this Guaranty. IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed and delivered as of the day and year first above written. Jeffrey E. Epstein 4 EFTA00312980 Schedule F Allocation of Purchase Price The Shares and the Beneficial Interest $19,332,500 The Personal Property (see below) $ 667,500 Personal Property One (1) Desk — Early Louis XIV $600,000 One (1) Louis XIV Painted Armchair $ 7,500 One (1) Mahogany Dining Table $ 20,000 Twelve (12) Dining Chairs $ 20,000 One (1) set Mahogany Dining Furniture $ 20,000 EFTA00312981 Schedule G Intentionally Omitted EFTA00312982 Exhibit H Assignment of Beneficial Interest — Attached EFTA00312983 ASSIGNMENT AND ASSUMPTION AGREEMENT KNOW ALL MEN BY THESE PRESENTS THAT: WHEREAS, pursuant to a certain Nominee Agreement dated as of August 24, 1989 by and between Leslie H. Wexner (the "Assignor"), as princ ipal, and Nine East 71g Street Corporation, a New York corporation (the "Corporatio n"), as nominee (the "Nominee Agreement"), the Assignor is the owner of 100% of the beneficial interest in that certain real property which is known as, and located at, 9 East 71g Street, New York, NY, and is more fully described on Schedule A attached hereto, all improvements thereon, all fixtures thereto, and all appurtenances thereto (the "Real Property"), and the Corporation is the record holder of legal title to the Real Property; WHEREAS, pursuant to a certain Purchase and Sale Agree ment, of even date herewith (the "Purchase and Sale Agreement"), by and betwe en the Assignor, as the seller thereunder, and NES, LLC, a New York limite d liability company (the "Assignee"), as the purchaser thereunder, the Assignee purchased from the Assignor, and the Assignor sold to the Assignee, all of the Assignor's right, title and interest in and to the Real Property, including, but not limited to, the Assignor's rights in and under the Nominee Agreement (the "Beneficial Interest"), togeth er with all of the issued and outstanding shares of capital stock of the Corporation, with the intent and purpose that, upon the consummation of the transactions contemplated thereby, the Purchaser would acquire one hundred percent (100%) of the legal title to the Real Property (indirectly, by its EFTA00312984 acquisition of all of the issued and outstanding capital stock of the Corporation) and one hundred percent (100%) of the Beneficial Interest; WHEREAS, pursuant to Sections 4.2.1(f) and 4.2.2 of the Purchase and Sale Agreement, each of the Assignor and the Assignee has agreed to deliver at the Closing (as defined in the Purchase and Sale Agreement) a duly executed and notarized copy of this Assignment and Assumption Agreement; NOW, THEREFORE, The Assignor, for the consideration provided in the Purchase and Sale Agreement, does hereby grant, bargain, sell, convey, transfer, assign, set over and deliver unto the Assignee, its successors and assigns, the Beneficial Interest; TO HAVE AND TO HOLD the Beneficial Interest unto the Assignee, its successors and assigns forever, to the Assignee and its own use. The Assignor does hereby delegate, and, in consideration of the Assignor's transfer to the Assignee of the Beneficial Interest hereunder, the Assignee does hereby assume, all of the Assignor's duties and obligations under the Nominee Agreement from and after the date hereof, but not with respect to any duty or obligation thereunder which arises out of, or in connection with, or relates to, any acts or omissions which occurred, or circumstances which existed, prior to the date hereof (the "Assumed Obligations"). The 2 EFTA00312985 Assignee, for and in substitution of the Assignor, agrees to fully abide by, and comply with, all of the terms, conditions and provisions of the Nominee Agreement, and to indemnify, defend and hold harmless the Assignor from and against any and all losses, claims, actions, causes of action, damages, liabilities, charges, costs, fees and expenses (including, but not limited to, reasonable attorney's fees and disbursements) imposed upon, assessed against, incurred by, or resulting to, the Assignor, arising solely out of, or in connection with, or related solely to, the Assumed Obligations. The Assignor does hereby covenant and agree to execute any such further agreements, instruments and other documents, and to take any such further action, as the Assignee may request to effectuate the transfer of the Beneficial Interest to the Assignee. The execution and delivery by the parties hereto of this Assignment and Assumption Agreement are required pursuant to Sections 4.2.1(f) and 4.2.2 of the Purchase and Sale Agreement, and nothing provided herein shall in any way be deemed to supersede, modify, or amend any of the provisions, or relieve any party hereto from liability for his or its breach, of the Purchase and Sale Agreement, including, without limitation, a breach of his or its representations and warranties and indemnities thereunder. This Assignment and Assumption Agreement (a) shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts executed and to be performed fully therein, without reference to its principles of conflicts 3 EFTA00312986 of law, and (b) may not be modified or amended except by a writing signed by the parties hereto. IN WITNESS WHEREOF, the Assignor and the Assignee have executed this Assignment and Assumption Agreement as of the day of November, 1998. Leslie H. Wexner NES, LLC By: Jeffrey E. Epstein Member STATE OF ) ) ss.: COUNTY OF ) On the day of November, 1998, before me personally came Leslie H. Wexner, known to me to be the person who is described in the foregoing document, and he did state that he executed the same. Notary Public 4 EFTA00312987 STATE OF ) ) ss.: COUNTY OF ) On the day of November, 1998, before me personally came Jeffrey E. Epstein, known to me personally, and he did state that he is a member of NES, LLC, a New York liability company (the "Company"), the entity described in the foregoing document, that he is authorized, for and on behalf of the Company, to execute the foregoing document, and that he did execute the same. Notary Public 5 EFTA00312988 Exhibit I Bill of Sale — Attached EFTA00312989 1OO—lima WAIL Juuu• wo.ni••••• inc. LAW 44A"I /LIM, Exhibit I nob) ail an by these 4resent≤, THAT LESLIE H. WEXNER part Y of the first part, for and in consideration of the stain of Six Hundred Sixty -Seven Thousat Five Hundred and 00/100 0667,500.001 Dollars, Info) money of the United States to him in hand paid, at or before the ensealing and delivery of that presents by NES, LLC part y of the second pan, the receipt whereof is hereby acknowledged has bargained and sold, and by these p do es grant and convey unto the said party of the second part, heirs, executors, administrators, successors and assigns all of the r t, title and interest in and to sone' property listed on liedule attached hereto ("P • "e n ) TO HAVE AND TO HOLD the note unto the said part y of the second part, its irL;s„ successors and assigns forever. AND he does for his heirs, executors and administretors, covenant and agree, to and with the said party of the second part, to warrant and defend the sale of the aforesaid Property hereby sold unto the said party of the second part, its Inas,••••rm atataxis, successors and assigns, against all and every person and persons whomsoever. IN WITNESS WHEREOF, the party of the first part hm set his hand and seal or caused these presents to be signed by its proper corporate officers and caused its proper corporate seal to he hereto affixed, this day of 19 Signed, Sealed and Delivered 1 in the Presence of EFTA00312990 SCHEDULE OF THE FOREGOING BILL OF SALE Property One (1) Louis XIV Painted Armchair One (1) Mahogany Dining Table Twelve (12) Dining Chairs One (1) set Mahogany Dining Furniture One (1) Desk - Early Louis XIV EFTA00312991 STATE OF 1St. : COUNTY OF LESLIE H. WEXNER being duly sworn, deposes and says that he resides at One Whitebarn Road, New Albany, OH 43054 That he is the same person who executed the within bill of sale. That he is the sole and absolute owner of the property described in said bill of sale, and ha full right to sell and transfer the same. That the said property, and each and every part thereof, is free and clear of any liens, mortgages, debts or other encumbrances of whatsoever kind or nature except, N/A have Tb A ; not-dmo--emr- petition in bankruptcy or arrangement proceedingsebeen bled by or against h its ; nor nib he taken advantage of any law relating to insolvency. That this affidavit is made for the purpose and with the intent of inducing NES, LLC to purchase the property described in said bill of sale, knowing that it -1r will rely thereon and pay a good and valuable consideration therefor. Sworn to before me this day of 19 • LESLIE R. WEXNER STATE OF COUNTY OF , being duly sworn deposes and says: That be is of a corporation organized under the laws of the State of , and having its principal office at That the corporation is now the sole owner of all of the goods and chattels described and more specifically enumerated in the schedule hereto annexed and made part of the foregoing bill of sale. That your deponent states that there are no mortgages, liens, conditional sales agreement or other encumbrances of whatever nature or description affecting the said goods and chattels set forth in the foregoing schedule and that they are absolutely free and clear thereof, except That the corporation is not indebted to any one and has no creditors except That there are no actions pending against the corporation in any court; nor are there any replevin', judgments or executions outstanding against the corporation now in force; nor has any petition in bank- ruptcy or arrangement proceedings been filed by or against the corporation; nor has the corporation taken advantage of any law relating to insolvency. That this affidavit is made for the express purpose and with the intent of inducing to purchase the property set forth and described in the foregoing bill of sale, knowing full well that h will rely upon this affidavit and pay a good and valuable consideration. Sworn to before me this day of 19 .. ... ..... -• • ^ EFTA00312992 STATE OF COUNTY OF On the day of nineteen hundred and before me came LESLIE H. WEXNER to ne known and known to me to be the individual described in, and who executed, the foregoing instrument, and acknowledged to me that he executed the same. STATE OF COUNTY OF On the day of nineteen hundred and before me came to me known, who, being by me duly sworn, did depose and say that he resides at No. that he is the of the corporation described in, and which executed, the foregoing instrument: that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal: that it was so affixed by order of the board of of said corporation; and that be signed h name thereto by like order. EFTA00312993