conditions are hereby canceled. This Agreement may only be changed, modified or amended by an agreement in writing, signed by the parties hereto. 16. 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 either party hereto to exercise, and no delay in exercising, any right, power or privilege under this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. 17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. 18. Lead-Based Paint. The Purchaser hereby waives any right to have a leadbased paint inspection and test of the Real Property. Every buyer of any interest in residential real property on which a residential dwelling was built prior to 1978 is notified that such property may present exposure to lead from lead-based paint that may place young children at risk of developing lead poisoning. The Purchaser hereby acknowledges receipt from the Seller of the pamphlet entitled "Protect Your Family from Lead in Your Home" 22 EFTA00313015 attached hereto as Exhibit M and the Lead-Based Paint and Lead-Based Hazard Disclosure Form attached hereto as Exhibit N. 19. Neutral Construction. Each party hereto acknowledges and agrees that: (a) the provisions of this Agreement have been drafted by, and fully and completely negotiated between, the parties hereto and their respective attorneys; (b) neither this Agreement, nor any provision hereof, shall be deemed to have been drafted solely by either party hereto or his or its attorneys; and (c) no ambiguity determined to exist herein shall be construed against either party hereto by reason of such party, or his or its attorneys, being deemed to have been the sole author thereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the day and year first above written. THE SELLER: THE PURCHASER: NES, LLC By: Leslie H. Wexn• . Epstein, Member 23 EFTA00313016 LIST OF ATTACHMENTS Schedule A - Legal Description of Real Property Exhibit B - Nominee Agreement Schedule C - Personal Property Exhibit D - Note Exhibit E - Guaranty Schedule F — Allocation of Purchase Price Schedule G —Intentionally Omitted Exhibit H - Assignment of Beneficial Interest Exhibit I - Bill of Sale Exhibit J - Existing Title Insurance Policy Exhibit K - Intentionally Omitted Exhibit L - Existing Survey Exhibit M - Protecting Your Family From Lead in Your Home Exhibit N - Lead-Based Paint Hazard Disclosure Form EFTA00313017 Schedule A ALL that certain lot, piece or parcel of land, situate, lying and being in the Borough of Manhattan, City, County and State of New York, bounded and described as follows: BEGINNING at a point on the northerly side of 71st Street distant 225 feet easterly from the corner formed by the intersection of the easterly side of 5th Avenue with the northerly side of 71° Street; running thence Easterly along the northerly side of 71g Street 50 feet; thence Northerly and parallel with 5th Avenue 102 feet 2 inches to the center line of the block between 7111 and 72" Streets; thence Westerly along said center line and parallel with 71uStreet 50 feet; thence Southerly and parallel with 5th Avenue 102 feet 2 inches to the northerly side of 71n Street at the point or place of the Beginning. EFTA00313018 Exhibit B Nominee Agreement — Attached EFTA00313019 NOMINEE AGREEMENT THIS NOMINEE AGREEMENT (the "Agreement") is entered as of this day of August, 1989 between Nine East 71st Street Corp:Atm, a New York corporation ("Nominee"), and Leslie H. Wexner ("Principal"). wITNESSET H: fully WHEREAS, described Principal wishes to purchase certain real estate more reference on Exhibit A attached hereto and incorporated by York (the herein commonly known as 9 East 71st Street, New York, New "Property"); and Property WHEREAS, Principal has requested Nominee to purchase the on behalf of Principal, as Principal's nominee, in dated accordance with the terms and conditions of the Contract of Sale Leslie June H. Wexner 23, 1988 between Birch Wathen School, Inc. as seller and Exhibit B and incorporated as purchaser, a copy of which is attached hereto as by reference herein (the "Contract"); and real WHEREAS, estate Nominee is engaged in the business of holding title to as nominee for others and not on its own behalf; and nominee WHEREAS, Nominee wishes to purchase the Property as Principal's in accordance with the terms and conditions of the Contract. bound, NOW THEREFORE, Nominee and Principal, intending to be legally hereby agree as follows: Property Section in 1. accordance Purchase. Nominee shall acquire record title to the Contract, with the terms and conditions of the not advance as nominee for Principal. Nominee has not advanced, will funds necessary and is not required to advance any part or all of the to acquire, hold or maintain the Property. Principal consideration shall be exclusively responsible for payment of the maintenance and expenses for the acquisition, retention and of the Property. Property Section solely 2. Ownership. Nominee shall hold record title to the beneficial as nominee for Principal. Nominee shall have no the rents, income right, or title, ownership or interest in the Property or in Nominee benefits therefrom, irrespective of whether shall have executed, at the direction of Principal, to mortgages, the Property. bonds, leases or other agreements or obligations relating rents, income Nominee shall promptly remit to Principal any limitation, or other benefits from the Property, including without the proceeds of any condemnation action. Nominee shall EFTA00313020 take no action with respect to the Property except as directed by Principal and shall take all action with respect to the Property as may be so directed by Principal. Section 3. Insurance. Principal shall insure the Property together with all improvements thereto against such losses and in such amounts as the Principal deems necessary. Principal hereby releases Nominee from any obligation to insure the Property. In addition, Principal shall maintain insurance against liability for bodily injury to, death of or damage to the property of any person with respect to the Property under the policy of general comprehensive liability insurance presently in effect with respect to the Property. Each such policy shall contain an endorsement naming Nominee as an additional insured under such policy. Nominee shall take action with respect to all policies of insurance, including without limitation, title insurance with respect to the Property solely for the benefit of Principal. Nominee shall take only such action and shall take all action under any such policy of insurance as Principal may direct and at Principal's sole expense. Nominee shall promptly remit to Principal the proceeds of any such insurance policy. Section 4. Assignment or Transfer. Upon demand by Principal, Nominee shall promptly convey title to the Property to Principal or to any person designated by Principal, by deed in form acceptable to Principal with warranties against any acts by Nominee other than liens or other encumbrances created with the consent or at the direction of Principal or those which may accrue or attach hereafter by reason of the nonpayment of taxes or other assessments made by any governmental authority which may attach upon the Property by operation of law or which Principal may permit to come into effect. Nominee will cause such deed or deeds to be executed and acknowledged by its duly authorized officers, and Nominee will take such other action as may be necessary to vest record title to the Property in Principal or any person so designated, but all without expense to Nominee. Section 5. Liens. Nominee will not encumber or subject the Property or title thereto to any liens or other encumbrances, except as otherwise provided herein. Section 6. Indemnity by Principal. Principal shall indemnify and hold harmless Nominee from and against any and all claims, liabilities, damages, losses, costs and expenses, including, without limitation, reasonable counsel fees, resulting from Nominee holding record title to the Property or any other action or inaction by Nominee at the request or direction of Principal. -2- EFTA00313021 Section 7. Reimbursement. Principal shall reimburse Nominee for all costs and expenses incurred by Nominee on behalf of Principal hereunder. Section 8. Term. This Agreement shall commence on the date first written above and shall continue until terminated by one party by written notice to the other party. In the event this Agreement is terminated, Nominee shall retain all payments made by Principal hereunder. Section 9. Successors and Assigns. All covenants, agreements, representations and warranties made herein shall survive the execution and delivery of this instrument and shall bind and inure to the benefit of the parties hereto and the respective successors and assigns of the parties hereto, whether so expressed or not. Section 10. Headings. Section headings used in this Agreement are for convenience only and shall not affect the construction of this Agreement. Section 11. Governing Law. This Agreement shall be governed and construed exclusively by the provisions hereof and in accordance with the laws of the State of New York applicable to contracts to be performed therein, as the same may from time to time exist. Section 12. Notices. Any consent, waiver, notice, demand, request or other instrument required or permitted to be given under this Agreement shall be deemed to have been properly given when delivered in person or sent by certified or registered United States mail, return receipt requested, postage prepaid, addressed if to either party hereto, to the address set forth beside such party's signature to this Agreement. Either party may change its address for notices by notice in the manner set forth above. Section 13. Entire Agreement. This Agreement sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements and understandings relating to the subject matter hereof. No representation, promise, inducement or statement of intent has been made by either party which is not embodied in this instrument, and neither party shall be bound by or liable for any alleged representation, promise, inducement or statement of intention not embodied herein. -3- EFTA00313022 The parties hereto have caused this instrument to be duly executed as of the day and year first above written. NOMINEE: NINE EAST 71ST STREET CORPORATION By:9714, &Ø ttittil HAROLD L. LEVIN VICE PRESIDENT AND TREASURER PRINCIPAL: ADDRESS FOR NOTICES: LESLIE H. WEXNER ADDRESS FOR NOTICES: RCBY: HAROLD L. LEVIN By: ATTORNEY IN FACT RICHARD W. RUBENSTEIN Schwartz, Keim, Warren Et ATTORNEY IN FACT Rubenstein 0524Q 08/23/89 -4- EFTA00313023 Exhibit A ALL that certain lot, piece or parcel of land, situate, lying and being in the Borough of Manhattan, City, County and State of New York, bounded and described as follows: BEGINNING at a point on the northerly side of 71st Street dis- tant 225 feet easterly from the corner formed by the intersecof tion of the easterly side of 5th Avenue with the northerly side 71st Street; running thence Easterly along the northerly side of 71st Street 50 feet; " thence Northerly and parallel with 5th Avenue 102 feet 2 inches to the centre line of the block between 71st and.72nd Streets; thence 71st westerly along the said center line and parallel with Street 50 feet; thence Southerly and parallel with 5th Avenue 102 feet 2 inches to the northerly side of 71st Street at the point or place of Beginning. EFTA00313024 EXHIBIT B CONTRACT OF SALE This Contract of Sale (the "Contract") made the 23rd day of June, nineteen hundred and eighty-eight, between Birch Wathen School, Inc:, a not-for-profit educational corpo- ration having an address at 9 East 71st Street, New York, New York :0021, hereinafter described as "Seller' and Leslie H. Wexner an individual havin an address at hereina ter escribed as Purc aser . WITNESSETH, that Seller agrees to sell and convey, and Purchaser agrees to purchase, all that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the Borough of Manhattan, more City, County and State of New York, bounded and described as particularly set forth on Exhibit A attached hereto and made a part hereof (the "Premises"), together with all right, way, title appurtenances and interest of Seller in and to any easements, rights of and improvements which attach, benefit, relate or are incident to the Premises. 1. This sale includes all right, title and interest, if any, of Seller in and to any land lying in the bed of any street, road or avenue opened or proposed in front of or adjoining said Premises, to the center line thereof, and all to right, be title and interest of Seller in and to any award made or made in lieu thereof and in and to any unpaid award for damage to said Premises by reason of change of grade of any street and Seller will execute and deliver to Purchaser, on closing of title, or thereafter, on demand, all proper instru- ments collection for the conveyance of such title and the assignment and delivery of any such award. This provision shall survive the of the deed. 2. The price is Thirteen Million Two Hundred Thoufollows: sand Dollars ($13,200,000.00) (the "Purchase Price") payable as $1,320,000.00 (the "Downpayment") by clean, irrevoca- ble and unconditional commercial letter of credit (the "Letter of Credit") to be delivered to Escrow Agent (as hereinafter event defined) as soon as possible after the date hereof (but in no later than June 29, 1988) following receipt by Escrow Agent of four (4) fully executed counterparts of this Contract, or and the balance of the Purchase Price of $11,880,000.00 in cash Closing good certified check payable to the order of Seller on the Date (as hereinafter defined). In the event Escrow EFTA00313025 June Agent 29, does 1988, not receive the Letter of Credit by 5 a on Seller may resort Purchaser shall be in default herealirer and on account thereof. to any available legal and equitable remedies of the Letter Within two (2) business days after receipt Seller and Purchaser of Credit, Escrow Agent is hereby directed by fully executed copy to "break" escrow and forward one (1) copies thereof of the Contract to Seller and two (2) ter of Credit shall to Purchaser's attorneys, at which time the Letforth. The Letter be held by Escrow Agent as hereinafter set Fowler, as of Credit beneficiary shall be Battle (the "Bank"), Escrow Agent, and it shall be issued by Citibank, to eller shall be in form and substance satisfactory be thirty days and shall expire no later than the date which shall in the event the after closing the Closing Date; provided, however, that to, or is scheduled of title hereunder shall be adjourned days prior to to occur on, a date subsequent to thirty (i) Purchaser the expiration of the Letter of Credit, either teen days prior shall to the deliver to Escrow Agent not later than fifeither a substitute expiration date of the Letter of Credit in the same form as letter of credit drawn on the same bank and stitute letter of the Letter of Credit except that the subSeptember credit shall expire no earlier than treated in 30, the 1990 same (which substitute letter of credit shall be the provisions of this manner as the Letter of Credit pursuant to of Credit extending Contract) or an amendment to the Letter or (ii) failing such its delivery expiration date to September 30, 1990, shall be of the essence, to Escrow Agent, as to which time instructed Escrow Agent is hereby irrevocably Credit by presentation by Seller and Purchaser to draw on the Letter of Credit, a sight draft to the Bank of the original Letter of and a certificate signed which states the Letter of Credit number the following: "Battle by a partner of Escrow Agent, stating letter of credit pursuant Fowler is entitled to draw upon this June 23, 1988, to that certain contract, dated and Leslie H. between Birch Wathen School, Inc., as seller, by Escrow Agent Wexner, as purchaser', but without presentation tion and Escrow of Agent any shall other document, statement or authoriza.- ing upon said Letter retain the monies received by drawvisions of this Contract of Credit, in escrow, pursuant to the prosame manner as the Letter (which monies shall be treated in the of this Contract). of Credit pursuant to the provisions fere with or prohibit Any attempt to enjoin or otherwise interof Credit in accordance the draw by Escrow Agent under the Letter Purchaser or the Bank shall with this Contract by or on behalf of hereunder. constitute a default by Purchaser subject to: 3. Said Premises are sold and are to be conveyed -2- EFTA00313026 (a) Zoning regulations and ordinances, and building and land use restrictions of the city, town or village in which the Premises lie which are not violated by existing structures; (b) Consents by Seller or any former owner of the Premises for the erection of any structure or structures on, under or above any street or streets on which said Premises may abut; (c) Encroachments of stoops, areas, cellar steps, trim, cornices, coping, railings, retaining walls, foundations, sidewalks, windows, ornamental projections, sidewalk elevators, fences and ft if any, upon any street or highway; Exhibit (d) Covenants, restrictions and agreements listed on B attached hereto and made a part hereof; (e) Any state of facts an accurate survey would show provided that same does not render title unmarketable, except as otherwise provided in this Contract; (f) variations between fences, area walls, retaining walls, steps, hedges, shrubs, trees and record lines of title; ments (g) Utility and telephone company rights and ease- to maintain, install or remove poles, wires, cables, pipes, boxes and other facilities and equipment in, over and upon the Premises; (h) Possible lack or revocable nature of the right, if any, to maintain or use any space, facilities or appurte- nances under outside the lines of the Premises whether on, over or the ground including, without limitation, all vaults, marquees, signs and sidewalk openings; (i) Party walls and party wall agreements; street, (j) Easements that affect any land in the bed of any road, or avenue, opened or proposed, in front of or adjoining the Premises; tenance (k) Rights and easements for the installation, main- and replacement of water mains and sever lines and facilities and equipment in, over and upon the Premises; (1) Any violations of law or municipal ordinances, or regulations, orders or requirements which have been noted in, or issued by, the departments of building, fire, labor, health other federal, state, county or municipal departments, -3- EFTA00313027 tively, having jurisdiction the "Violations") against or affecting the Premises (collecand any Violations through the date of closing of title hereinafter defined). caused by Purchaser's Renovation Work (as set forth in this Notwithstanding anything to the contrary obligated to cure (i) subparagraph 3(1) hereof, Seller shall be cured by reason of Seller's any Violations which are required to be ises (other than the operation of a school on the Premment violations search Violations shown on the municipal departand made a part set forth on Exhibit C attached hereto cured in connection hereof), with except to the extent same would be a 'gut rehabilitation" the Premises prosecuted renovation of manent certificate of to completion and culminating in a per- (the 'Rehabilitation") occupancy for such renovated improvement cured or curable by and (ii) any Violations which, if not criminal liability (other the Rehabilitation,.would expose Seller to municipal department than the.Violations shown on the attached hereto and made violations search set forth on Exhibit C other Violations noted a part hereof). With respect to any the date of closing or issued against the Premises through lations would not be of cured title not shown on Exhibit C, which Vio— by the Rehabilitation, pay the actual costs Seller shall and remove of record such and expenses incurred by Purchaser to cure receipts and/or cancelled Violations, as evidenced by paid maximum aggregate amount checks provided to Seller, up to a ($100,000.00). of One Hundred Thousand Dollars shall be deposited Said One Hundred Thousand Dollars ($100,000.00) held in escrow pursuant with Escrow Agent at closing of title to be shall be disbursed to the terms of this Contract, and this subparagraph from to Purchaser time in accordance with the terms of closing of title upon delivery to time within two years after the to Seller, simultaneously, by Purchaser to Escrow Agent and has cured certain of a notice stating that Purchaser enclosed with said specified notice, and Violations, a copy of which will be Purchaser to cure said Violations, stating the amount expended by receipts and/or cancelled together with copies of paid expended to cure such checks with respect to the amount contest such payment to Violations. Purchaser In the event Seller fails .to to Escrow Agent and by written notice delivered to Purchaser, simultaneously, is received by Escrow Agent which notice Purchaser's notice as aforesaid, within fifteen days of receipt of tled to receive, and Escrow then Purchaser shall be entithe amount requested Agent shall deliver to Purchaser, still held in escrow by by Purchaser in said notice. Any monies two years after the date Escrow of closing Agent on the date which shall be Contract shall be promptly released of title pursuant to this together with interest earned by Escrow Agent to Seller, thereon, if any. -4- EFTA00313028 (m) Any latent or patent defects in the Premises; under the (n) Emergency All obligations affecting the Premises incurred Code Repairs provisions of the Administrative of the City of New York (the "Administrative tions 564-18.0, Code") (Sec- etc.); . site or historic (o) Designation of Premises as a landmark, landmark recorded on July 2, district by instrument dated May 19, 1981 and 1982 in Reel 629 at Page 739; in Chapter (p) 3 The restricted use of the Premises as provided of the Administrative Code (Sections 25-30, et. penalties (q) thereon, Street if vault charges, together with interest and any; violations (r) Those items noted on the municipal department more particularly search and the certificate of occupancy search as made a part hereof. set forth on Exhibit C attached hereto and Subparagraphs ter collectively (a) referred through (r) of this Paragraph 3 are hereinaf- to as the "Exceptions". 4. The following are to be apportioned: the fiscal (a) year Taxes for which and sever rents, if any, on the basis of assessed. (b) Water charges on the basis of the calendar year. of which adjustments (c) Fuel oil, shall if any, at the Premises on the date as date of closing of title shall be made or within twenty days of the lon price last charged to be adjusted at the cost per galbill, plus applicable sales Seller, as reflected in Seller's last estimated in writing tax. The amount of fuel is to be by the fuel company then supplying Seller. shall furnish 5. a If reading there be a water meter on the Premises, Seller prior to the time herein to a date not more than thirty days unfixed meter charge set for closing of title, and the thereon for the intervening and the unfixed sewer rent, if any, based basis of such last reading. time shall be apportioned on the usual Bargain 6. and At closing Sale of title, Seller shall deliver the Deed With Covenant Against Grantor's -5- EFTA00313029 Acts (the "Deed") in proper statutory short form for recording, duly executed and acknowledged so as to convey to Purchaser the fee simple of the said Premises, free of all encumbrances, except as herein stated, and shall contain the covenant required by subdivision 5 of Section 13 of the Lien Law. Pur- chaser's acceptance of the Deed shall be deemed to be an acknowledgement by Purchaser that Seller has fully complied with, performed and discharged all of Seller's obligations, representations, warranties, covenants and agreements hereunder, and thereafter Seller shall have no further liabil- ity with respect thereto, excepting the post-closing adjust- ments and such other obligations as are herein specifically stated to survive the closing of title. 7. If Seller is a corporation, it will deliver to -resolution Purchaser at the time of the delivery of the deed hereunder a of its Board of Trustees authorizing the sale and delivery of the deed and a certificate by the Secretary or Assistant Secretary of the corporation certifying such resolu- tion and, if required by law, setting forth facts showing that the conveyance is in conformity with such law as may be appli- cable to not-for-profit educational corporations. The Deed in such case shall contain a recital sufficient to establish com- pliance with applicable law. 8. At the closing of title Seller shall deliver to Purchaser cer a certified check to the order of the recording offi- of the county in which the deed is to be recorded for the amount of the documentary stamps to be affixed thereto in to accordance with Article 31 of the Tax Law and a certified check the order of the appropriate county officer for any other tax payable by reason of the delivery of'the deed, and a return, if any be required, duly signed and sworn to, by Seller; and vided Purchaser also agrees to sign and swear to the return, prothe return that Purchaser has approved the information set forth on unreasonably as true and correct, which approval shall not be the withheld or delayed, and to cause the check and return to be delivered to the appropriate county officer promptly after the closing of title. deliver 9. In addition, Seller shall at the closing of title missioner to Purchaser a certified check to the order of the Comfer Tax of Finance for the amount of the Real Property Trans- imposed by Title II of Chapter 46 of the Administrative the Code of the City of New York and will also deliver to Purchaser return required by the said statute and the regulations to issued by pursuant to the authority thereof, duly signed and sworn provided Seller; Purchaser agrees to sign and swear to the return, that Purchaser has approved the information set forth -6- EFTA00313030 on the return as true and correct, which approval shall not be unreasonably withheld or delayed, and to cause the check and the return to be delivered to the City Register promptly after the closing of title. 10. All sums paid by Purchaser on account of this Contract, including, without limitation, the Letter of Credit, or the proceeds thereof, as the case may be, are hereby made and declared to be liens against the Premises. 11. Seller shall have the right to remove from the connection Premises all fixtures and articles of personal property used in with said Premises except for plumbing and heating fixtures. 12. The amount of any unpaid taxes, assessments, and water discharge, charges and sewer rents which Seller is obligated to pay date with the interest and penalties thereon to a five days after the date of closing of title, may, at the option the of Seller, be allowed to Purchaser out of the balance of Purchase Price, provided official bills therefor with interest and penalties thereon figured to said date are fur- nished by Seller at the closing of title. any 13. If at the date of closing of title there may be pay other liens or encumbrances which Seller is obligated to the Purchase and discharge, Seller may use any portion of the balance of simultaneously Price to satisfy the same, provided Seller shall title either deliver to Purchaser at the closing of such instruments in recordable form and sufficient to satisfy recording liens and encumbrances of record together with the cost of made by or filing said instruments. Purchaser, if request is closing Seller within a reasonable time prior to the date of of title, agrees to provide at the closing of title of separate the certified checks as requested, aggregating the amount faction balance of the Purchase Price, to facilitate the satisany of any such liens or encumbrances. The existence of deemed such taxes or other liens and encumbrances shall not be foregoing objections to title if Seller shall comply with the requirements. bankruptcies 14. If a search of the title discloses judgments, or other returns against other persons having request names the deliver same as or similar to that of Seller, Seller will on judgments, to Purchaser an affidavit showing that such bankruptcies or other returns are not against Seller. -7- EFTA00313031 15. (a) Seller shall give and Purchaser shall accept such fee simple title to the Premises as is good and marketable and as Commonwealth Land Title Insurance Company or any nationally recognized and reputable title insurance company licensed to do business in the State of New York as selected by Purchaser (the "Title Company"), will approve and insure, at its regular rates, with an owner's policy, without exception except for the Exceptions, the standard "printed form" excep- tions to title insurance and other exceptions as do not render title unmarketable and are acceptable to Purchaser as provided in this Contract. Seller shall supply any documents (including and/or prior title insurance policies and existing survey, if any) affidavits reasonably requested by said Title Company and required thereby for the issuance of title insurance policies to Purchaser and Purchaser's mortgagee, if any. (b) Purchaser shall have a one-tipe right to deliver the to the closing attorneys for Seller, at least forty-five days prior to the Premises of title, a copy of a title report with respect to written prepared by the Title Company, together with a statement as to any objections to title that Purchaser than may have as a result of matters disclosed in said report, other the closing the Exceptions, which Purchaser is unwilling to accept at of title, provided, however, that such objections period to title were noted or issued against the Premises during the beginning after the date hereof and through and statement including the date of receipt by Seller of Purchaser's written as to objections to title (the "Objections to Title"). judgments Seller is hereby obligated to remove of record any Title against Seller, mechanics' liens and Objections to which Seller has caused or permitted to be filed of a record writing against the Premises, but only if same are evidenced by limited or writings executed by Seller, including, but not to, mortgages ("Seller Title Objections"); provided, wise however, remove Seller shall not be obligated to pay, bond, or otherany action or from record any judgments entered against Seller in proceeding to the extent such judgments require dred payment, Thousand including interest and penalties thereon, of Five Hun- Dollars (S500,000.00) or more in the aggregate, Objections including other judgments against Seller. With respect to sentence, to Title other than those described in the preceding hereby obligated Seller shall remove the same, except that Seller is positive difference to spend, in the aggregate, not more than the ($500,000.00) between (z) Five Hundred Thousand Dollars in the and (y) the amount Seller is obligated to spend judgments preceding sentence to pay, bond or remove from record adjournment against Seller. Seller shall be entitled to an (not to exceed of the Closing Date for a reasonable period of time sixty days) in order to eliminate any Objections -8- EFTA00313032 to Title. In the event Seller cannot eliminate the Objections to Title by the Closing Date, as adjourned hereunder, Purchaser shall have the option to either (A) terminate this Contract by written notice to Seller and Escrow Agent, and, if Seller fails received to contest Purchaser's claim by written notice to Escrow Agent by Escrow Agent. within ten (10) days after receipt of Purchaser's notice as aforesaid, then Escrow Agent shall return to Purchaser the Letter of Credit and Seller shall reimburse Purchaser for the reasonable expenses of examination of title, municipal searches and the preparation and updates of surveys, if any, incurred by Purchaser, and thereupon this Contract obligations shall terminate and neither party shall have further rights or Premises hereunder, or (B) Purchaser may accept title to the at closing subject to the remaining Objections to Title, an provided, however, that Purchaser shall.be entitled to abatement of the Purchase Price equal to the positive dif- ference between (x) Five Hundred Thousand Dollars ($500,000.00) and (y) all amounts spent by or on behalf of Seller on account of paying, bonding or otherwise removing from record judgments and Objections to Title other than the Seller Title Objections (excluding judgments). 16. The closing of title pursuant to this Contract (the "Closing") shall take place at the offices of Battle Fowler, 280 Park Avenue, New York, New York 10017, or at such other wise place as may be fixed in writing by the parties or otherfrom as provided herein. The "Closing Date" shall be any date and including September 1, 1989, as same may be extended by Seller pursuant to the terms of this Contract, to and least including September 1, 1990, of which Seller gives Purchaser at be thirty days' prior written notice, which Closing Date may made "time of the essence" to Purchaser or Seller, as the case to whom may "time be, by the other party hereto, only after the party as of the essence" is being sought shall have elected to adjourn the September 1, 1989 Closing Date or any event adjourned Closing Date once, provided, further, that in the any Closing Date is made time of the essence by PurSeller chaser, such Closing Date may nevertheless be adjourned by the aggregate from time to time for not more than sixty (60) days in diligent if Seller has been using and continues to use nevertheless, efforts to effect a closing by the Closing Date, but, Seller is unable to close title on the premises to which chaser plans to relocate on or about the Closing Date. Pur- and Seller hereby agree that Seller's obligation to close title pursuant to this Contract is expressly conditioned upon Seller's receipt, within one year after the date hereof, tion of any court and other approvals and consents to the transacany contemplated by this Contract to the extent required by federal, state or local law, statute, ordinance or -9- EFTA00313033 regulation, or court or administrative order or decree to which Seller is subject ("Seller's Court Approval"). Seller shall use its best efforts to obtain Seller's Court Approval and shall commence to take action to obtain Seller's Court Approval immediately after the date hereof. If Seller is unable to receive Seller's Court Approval within one year after the date hereof, then Purchaser may terminate this Contract at any time thereafter by written notice to Seller and Escrow Agent, and, aforesaid if Seller fails to contest Purchaser's notice of termination as by written notice to Escrow Agent and Purchaser received by Escrow Agent and Purchaser within ten (10) days after receipt of Purchaser's notice as aforesaid, then Escrow Agent shall return to Purchaser the Letter of Credit and Seller shall reimburse Purchaser for the reasonable expenses of exami- nation of title, municipal searches and the preparation and updates of surveys, if any, incurred by Purchaser and, there- upon, this Contract shall terminate and neither party shall have further rights or obligations hereunder. 17. All notices desired or required to be given to Purchaser or Seller shall be sent by (a) certified or regisnational tered mail, return receipt requested, postage prepaid, or (b) other facsimile prepaid overnight delivery service, or (c) telecopy or national transmission (followed with hard copy sent by prepaid overnight delivery service), or (d) personal delivery chaser's with receipt acknowledged in writing, directed to Pur- address as above s Kelm, z, Warren & Rubenstein, , Attention: Richard W. Rubenstein, Esq., telecopy: above 614 set 224-0360, and to Seller directed to Seller's address as New forth, with a copy to Battle Fowler, 280 Park Avenue, telecopy: York, New York 10017, Attention: Martin L. Edelman, Esq., registered (212) 986-5135. Any notice so sent by certified or refusal mail shall be deemed given on the date of receipt or shall as indicated on the return receipt. All other notices party to be deemed whom given when actually received or refused by the either the same is directed. A notice may be given deemed by a party or by such party's attorney, and shall be by such received or refused by a party when received or refused the parties party or party's attorney. The respective attorneys of the are hereby authorized to agree to adjournments of Closing Date. party 18. Each party represents and warrants to the other estate that it has not hired, retained or dealt with any real tion contemplated broker, firm or salesman in connection with the transacbehalf by this Contract other than David Bates on defend, of Sotheby's International Realty. Each party shall indemnify and hold the other party harmless from and -10- EFTA00313034 against any and all claims for brokerage fees or other commis- sions which may at any time be asserted against the indemnified party founded upon a claim that the aforesaid representation and warranty of the indemnifying party is untrue, together with sonable any and all losses, damages, costs and expenses (including rea- attorneys' fees and disbursements) relating to such claims or arising therefrom or incurred by the indemnified party in connection with the enforcement of this indemnificadefend, tion provision. Notwithstanding the foregoing, Purchaser shall indemnify and hold Seller harmless from and against any and all claims for brokerage fees or other commissions which may be asserted against Seller by David Bates and/or Sotheby's International Realty, together with any and all losses, dam- ages, costs and expenses (including reasonable attorneys' fees and disbursements) relating to such claims or arising therefrom or incurred by Seller in connection with the enforcement of this indemnification provision. The provisions of this Para- graph shall survive the Closing. 19. Purchaser has inspected the buildings standing on said Premises and is thoroughly acquainted with their condidition tion and agrees to take title "as is" and in their present con- and subject to reasonable wear, tear and natural deteri- oration between the date hereof and the Closing Date. Premises 20. Purchaser shall have the right to inspect the school from time to time and upon reasonable notice during breaks or recesses or after-school hours, subject, in Paragraph all events, to the limitation on such activity contained in the Premises 32. Subject to the rights of Purchaser to enter into possession as provided in this Contract, Seller shall retain of the Premises until the Closing Date. 21. Seller shall deliver to Purchaser at the Closing (a) the original, if available, or copies of all certificates (b) of occupancy all keys for the Premises and any improvements thereon and Seller shall deliver to the Premises and any appurtenances thereto, and of to Purchaser prior to the Closing copies Premises all guarantees and/or warranty agreements affecting the which or any improvements located thereon, the rights under the extent shall be assigned, to the extent assignable to, and to requested by, Purchaser, on the Closing Date. Seller agrees to deliver possession of the Premises on the Closing Date, vacant, free and clear of all leases and property tenancies. Seller shall remove from the Premises all personal the Premises which is not in any way attached to or made a part of of this at Seller's sole cost and expense. The provisions Paragraph shall survive the Closing. -11- EFTA00313035 22. (A) Seller represents and warrants to Purchaser and agrees as of the date hereof that: (i) A schedule of permits, licenses or certificates with respect to the maintenance of the improvements on the Premises which are, and on the date of the Closing will be, to the extent required, in full force and effect, will be delivered to Purchaser by no later than July 15, 1988; (ii) To the best of Seller's knowledge, the items noted on Exhibit C attached hereto are the only violations presently noted against the Premises. (iii) Seller is a not-for-profit educational corporatiOn duly incorporated, validly existing and in good standing under the laws of the State of New York, and has the full corporate .power and corporate authority to own its properties and to carry on its business as it is now being conducted; enter (iv) Seller has the requisite power and authority to tions into this Contract and to assume and perform its obliga- hereunder. The Board of Trustees of Seller has duly taken all action required by law, its certificate of incorpora- tion and bylaws, both as amended, and otherwise, to authorize consummation and approve the execution and delivery of this Contract and the Contract, of the transactions herein contemplated. This when executed and delivered by Seller, will consti- tute the valid and legally binding obligations of Seller sentations enforceable in accordance with its terms. The foregoing reprereferred are expressly subject to any requirements of law as to in Paragraph 16 above; claim, investigation (v) To the best of Seller's knowledge, no action, suit, or proceeding, whether legal or adminisextent trative of or the in mediation or arbitration, is pending or, to the or in equity present knowledge of Seller, threatened, at law Premises or admiralty, against Seller with respect to the other governmental before or by any court or federal, state, municipal or agency department, commission , board, bureau, or orders or entered instrumentality, and there are no judgments, decrees adverse decision on a suit or proceeding against Seller, an order does, adversely in which might, or which judgment, decree or affect the Premises or Seller's ability seeks to perform to restrain, or Purchaser's rights under this Contract, or which prevent prohibit, invalidate, set aside, rescind, this Contract or make unlawful this Contract or the carrying out of or the transactions contemplated hereby; -12- EFTA00313036