EFTA00313037.pdf

(vi) To the best of Seller's knowledge, the exec and delive:y of this Contract and the performance ution by Sell er of its obligations hereunder do not and will not conf lict with or violate any provision of the certificate of incorpor ation or bylaws of Seller, or any law, rule, judgment , regulation, order, writ, injunction or decree of any cour t or governmental or quasi-governmental entity with jurisdiction over the Prem- ises or Seller, including, without limitati on, the United States of America, the State of New York or any political sub- division of either of the foregoing, or any of any arbitrator to which Seller is a deci sion or ruling party or by which Seller or the Premises are bound or affected; (vii) To the best of Seller's knowledg approval, conserE or authorization by or fili e, no action, ng with any gov- ernmental or quasi-governmental agency, comm ission, board, bureau or instrumentality or any other pers on or entity is nec- essary or required as to Seller in order to Contract as a valid and binding obligation constitute this of Seller, enforce- able in accordance with its terms, or to authorize or permit the performance by Seller of its obligations however, that Seller shall obtain prior to hereunder except, Seller's Court Approvals; and the Closing Date (viii) To the best of Seller's know ledge but without mak- ing or having made any independent investig ation except with respect to asbestos, the Premises as pres ently used and occupied by Seller are in compliance with federal, state and local laws, statutes, ordinances and regu lations, all court or administrative orders or decrees and all private agreements with respect to all radioactive or toxic materials and all materials requiring special handling in its collection, stor- age, treatment and disposal, including, with asbestos. The representations and warr out limitation, anties contained in this Paragraph 22(A)(viii) shall not apply to any materials used in the normal and ordinary course of the oper ation of a school on the Premises. Purchaser acknowledges that a might cause the representation and warranty Rehabilitation subparagraph to become incorrect, but contained in this Seller shall have no lia- bility should the representation and warr anty made in this subparagraph prove incorrect on account of a Rehabilitation. (B) Purchaser represents and warrants of the date hereof that: to Seller as (i) To the best of Purchaser's suit, claim, investigation or proceeding, knowledge, no action, whether legal or administrative or in mediation or arbitration, is pending or, to the extent of the present knowledg e of Purchaser, -13- EFTA00313037  threatened, at law or in equ ity or admiralty, against Pur before or by any court or federal, chaser governmental department, com state, municipal or other mis instrumentality, and there are sion, board, bureau, agency or no judgments, decrees or entered on a suit or proceeding orders against Purchaser, an advers decision in which might,.or whi e ch judgment, decree or order does, adversely affect Purchaser 's ability to perform or Seller's rights under this Con tract, or which seeks to restrain, prohibit, invali date, set aside, rescind, make unlawful this Contract or prevent the carrying out of this Con or tract or the transactions contem - plated hereby; and (ii) To the best of Purchaser's and delivery of this Contract knowledge, the execution and the performance by Pur of its obligations hereunder chaser do not and will not confli or violate any law, rule, judgme ct with injunction or decree of any nt, regulation, order, wri court or governmental or qua t, governmental entity with jur si- isdiction over Purchaser, including, without limita tion, the United States of the State of New York or any pol America, iti the foregoing, or any decision or cal subdivision of either of which Purchaser is a party or ruling of any arbitrato by which Purchaser is bou r to affected. nd or 23. Seller agrees that: (i) Seller will do, execute, all and every such further acts, acknowledge and deliver Purchaser shall from time tra nsf ers and assurances as to tim assuring, conveying, assigning e require, for the better , transferring and con unto Purchaser the Premises firming and rights hereby conveyed assigned or intended now or or hereafter so to be, or Seller may be or may hereaf to which ter become bound to convey to Purchaser, or for carrying or assign out the intention or fac the performance of the terms ilitating of this Contract, or for Closing. The provisions of the this subparagraph 23(i) vive the closing of title hereun shall sur- der. (ii) Seller will pay New Yor fer Gains Tax, New York City Rea k State Real Proper l Property Transfer Gai ty Trans- and New York City Transfer Tax ns Tax, , if applicable, and documentary stamps and oth the cost of er recording costs wit the Deed. Purchaser will pay h respect all other taxes, costs and to expenses incidental to the transactions contemplated Contract (excepting Seller by this 's attorneys' fees and ments), including, but not lim disburse- ited to, the cost of ance and surveys with respec title insur- t to the Premises, and shall, in the event of termin Purchaser ation of this Contract, Seller's expense, and upon Sel at ler's request, assign to Seller -14- EFTA00313038  all of its right, title and interest in and to Purchaser's com- mitment for title insurance and any surveys of the Premises. (iii) Seller will pay and discharge, from when the same shall become due and payable time to time through the date of delivery of the deed, all taxes of ever y kind and nature, all general and special assessments, levies, permits, inspection and license fees, all water and sever rents all other public charges whether of a like and charges, and or different nature, imposed upon or assessed against the Prem ises or any part thereof or upon the revenues, rents, issu es, income and profits of the Premises or arising in respect of the occupancy, use or possession thereof. If any tax, asse ssment, levy, or other fees are due in installments, Seller will ments due through and including the pay only the install- date of delivery of the deed to Purchaser. Seller will deliver to evidencing the payment of all such taxe Purchaser receipts s, assessments, levies, fees, rents and other governmental char ges imposed upon or assessed against the Premises or the revenues, rents, issues, income or profits thereof. The prov isions of this subpara- graph 23(iii) shall survive the clos ing of title hereunder. (iv) Seller will pay, from time to shall become due, or shall provide a bond time when the same with respect to, all claims and demands of mechanics, material men, laborers, and others with respect to services or mate rials furnished at or to the Premises through and including the Closing Date which, if unpaid, might result in, or permit the creation of, a lien on the Premises or any part thereof. The provisions of this subparagraph 23(iv) shall survive the closing of title hereunder. (v) Seller shall comply with all of visions with regard to insurance and the following pro- related matters at Seller's sole cost and expense: (a) Seller will maintain until the delivery of the deed a policy of date of fire and extended coverage insurance with respect to the Premises for the benefit of Pur- chaser with coverage in an amount not less than $3,365,000. (b) If the Premises are located which has been identified by the in an area Secretary of Housing and Urban Development as a flood hazard area, Seller will maintain until the Closing Date the existing policy of flood insurance pres- ently in effect with respect to the Premises. (c) Seller will maintain until delivery of the deed insurance against the date of liability for bodily -15- EFTA00313039  injury to, death of, or damage to the property of, any perscn with respect to the Premises, under the policy of general com- prehensive public liability insurance pres ently - in effect with respect to the Premises. (d) All insurance required by this Cont shall be fully paid for by Seller and loss ract es thereunder shall be payable to Seller and Purchaser, as thei r interests may appear. With respect to the insurance requ ired by subparagraph 23(v)(a) above, such policy shall include an endorsement that provides in substance that the acts of Sell er will not invali- date the policy against Purchaser. Seller shal separate insurance concurrent in form or cont l not take out ribu event of loss with that required to be maintain ting in the subparagraph 23(v), unless Purchaser is ed under this included thereon as a named insured with loss payable to Seller and Purchaser as their interests may appear, and such policy endorsement of the character aforedescrib incl udes an ed. Seller shall immediately notify Purchaser whenever any such separate insur- ance is taken out and shall promptly deliver proper certificates evidencing the poli to Purchaser cy or policies of such insurance. (e) Proper certificates evidencing the insu ance required by this Contract shall be r- delivered to Purchaser by no later than July 15, 1988. Seller shal l give Purchaser prompt notice of any loss covered by such insurance. At least thirty days prior to the expiration or terminat policy, except the one(s) expiring on or abou ion of any such t June 30, 1988, Seller shall deliver to Purchaser renewals thereof or replace- ment therefor or proper certificates thereof, together with evidence that the required payment of all or a portion of the premiums for such renewal or replacement policies have been paid. Each such policy and any renewal or replacement policies shall provide that no cancellation, non -renewal or termination shall be effective, as against Purchaser unle ss Purchaser has received at least thirty days' prior writ ten notice thereof from the insurer. (vi) The improvements on the Premises removed, demolished or altered in any shall not be material respect without the prior written consent of Purchaser. (vii) Seller will not execute any leas also include subleases) of all or any port e (which term shall ion of the Premises, or permit the occupancy of all or any part of the same except by Seller. -16- EFTA00313040  (viii) Commencing as of the date hereof and date of closing of title hereunder, Seller through the shall: (a) not grant, sell or convey any interest the Premises, including easements, righ in ts-of-way or liens, to any person, corporation,_ public or priv ate, governmental body or political subdivision, without the prio r 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 Mi,llion 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 proc Closing is subject to the fulfillment of eed to the the tions, except to the extent that any of such following condi- conditions may be waived by Purchaser: (i) Title to the Premises shall be acce chaser as provided in Paragraph 15 as of ptable 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 resp ects as of the Closing Date as though made on such date, except 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 cate executed by Seller to the effect that to Purchaser a certifi- , as of the Closing Date, all representations and warranti es made by Seller under this Contract and all certificates and exhi bits 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 Seller's or Seller shall have determined same Court Approvals is unnecessary in -17- EFTA00313041  connection with the tr ansaction contempl and Purchaser's attorney ated by this Cont and the Title Compan ract, y agree therewit h. 25. Each and every shall constitute a de on 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 nt to this Contract to be ; (ii) A fa insurance as set fo ilure of Seller to deliver certificates rth in subparagra of ph 23(v) hereof; (iii) Any fa the other covenants, ilure of Seller to observe or perform terms or conditions any of tract; set forth in this Con- (iv) A failure by improvements located Seller to adeq on the Premises agai uately secure the following the damage nst further dama or destruction of ge the improvements by all or any portion fire or other casual of ty; and (v) Should Seller in this Contra any representation or warranty made ct prove to be untr by respect and as a re ue in any material sult of said untruth, ises is materially the value of the adversely affected Prem- thereby. 26. If ther under this Contract, e has been an Event of Default by Se and the Event of De ll fifteen (15) days af fault continues fo er ter Seller has rece r thereof from Purcha ived written no ser tice shall require more th (except that if such Event of De an fifteen (15) da fault shall not have remedi ys to remedy, and ed such Event of Seller of time reasonably Defa required to remedy sa ult within a period then, in that event, id Event of De fa notice to Seller an Purchaser shall send an additional ult), d, if Seller fails to written Default within five (5) days after rece remedy said Event of ond written notice, ipt of Purchaser' then Purchaser shal s (i) terminate this Co l have the option sec- ntract, or (ii) take to Seller's default, action to cure provided, however, lowing an Event of that Purchaser ma Default, enter into y, fol- either personally or or upon the Prem by its agents, no ises, cure such default. minees or attorn Such option of Pu eys, to by written notice to rchaser shall be Se exer minates this Contract ller. In the event that Purchase cised as provided in th r ter- party shall have is Paragraph 26 any liability what , neither hereunder except th soever to the ot at Purchaser shal her return of the Letter l be entitled to of Credit or the (i) a case may be, and pr (ii) reimbursement fo oceeds thereof, as the r the net charge s for -18- EFTA00313042  surveys and examination of tit le actually incurred by Pur as evidenced by paid receipts chaser provided to Seller. Fol the occurrence of any Event lowing of Default, Purchaser may ally or by his agents or att person- orneys insofar as may be app ble, take such steps to pro lica- tect and enforce his rights or proceeding in equity for by,suit the Contract, in all events Seller specific performance of this of Credit or the proceeds shall promptly return the thereof, as the case may be, Letter chaser and reimburse Purcha to Pur- ser for the net charges for and for examination of tit sur le actually incurred by Purcha veys evidenced by paid receipts ser as provided to Seller. 27. If, prior to the Closin the Premises is taken by emi g Date, any portion of nent domain, Seller shall Purchaser of such fact and not Purchaser shall have the opt ify terminate this Contract upo ion to n notice to Seller given not than sixty (60) days aft later er rec Contract is terminated as afo eipt of Seller's notice. If this resaid, the Letter of Cre the proceeds thereof, as the dit or Escrow Agent to Purchaser cas e may be, shall be returned and by nor Seller shall have any fur , thereafter, neither Purchaser ther rights or obligatio other hereunder. In case ns to the of any such taking, if Pur elects not to terminate thi chaser s Contract as aforesaid, be no abatement of the Pur there shall chase Price but Seller sha and turn over at the clo ll assign sing entitled to receive and keep,of title, and Purchaser shall be all awards for such tak ing. The provision of this Par place of Section 5-1311 of the agraph 27 shall govern in General Obligations Law. 28. If, prior to the tion of the Premises is destro Closing Date, all or any por- casualty, Seller shall not yed or damaged by fire ify Purchaser of such fact or other chaser shall have no opt but Pur- ion to terminate this the closing of title shall Contract; rather, occur as provided in thi except as otherwise provided s Contract, graph 28, and there shall in the last sentence of be no abatement of the this Para- Price, provided, however, Purchase that, at Seller's option by notice to Purchaser wit , exercised hin ten (10) days after such casualty, Seller may the date of elect either to (i) rep age, and the Closing shall be air the dam- adjourned at Seller's one or more periods, not to request for ext order to permit Seller to mak end beyond September 1, 1990, in e such repair, and Sel reimbursed from insurance ler shall be proceeds received or to for expenses incurred in be received connection with the rep legal expenses and expenses air, including of collection of the Seller may retain the procee proceeds, and ds remaining after pay expenses associated with men the repair, if any, or (ii t of all shall assign and turn over, ) Seller at the closing of title hereunder, -19- EFTA00313043  and Purchaser shall be entitled to receive and keep, all insur- ance proceeds paid or to be paid to compensa te for the damage to the Premises caused by such casualty that rema in after legal and other expenses of collection, without further abatement of the Purchase Price. In the event Seller elec ts not to repair as above provided, then,.at Seller's option, the Closing Date may be accelerated to such other date (but in no event earlier than 60 days after the date Purchaser rece ives notice of Seller's election) as may be reasonably requ giving due consideration to the fact ested by Seller that Seller operates a school. The provisions of this Paragraph 28 place of Section 5-1311 of the General Obli shall govern in gations Law. 29. Seller and Purchaser each shall cute, verify and deliver to the appropriate complete, exe- manner so as not to delay the Closing, part y, in a timely any appropriate returns, questionnaires, affidavits or other documents required with respect to Article 31B of the New York Tax Law (the "Gains Tax Law") by reason of the transaction cont emplated by this Con- tract and which are required to be comp leted, executed, delivered or verified by Seller and Purchaser, respectively. Seller and Purchaser shall each have the right to review the returns, questionnaires, affidavits and other documents which the other party proposes to deliver prio r to such delivery. In the event that either Seller or Purc haser does not deliver such returns, questionnaires, affidavits and other documents in a timely manner so as not to delay the Clos ing, Seller or Pur- chaser, as the case may be, is hereby authorized to deliver such documents on behalf of the other part y. Seller shall pay any tax which may be determined to be due under the Gains Tax Law in connection with this transact ion. Seller shall defend, indemnify and hold Purchaser harmless with claims based on a breach or alleged respect to all breach by Seller of its obligations contained in this Paragraph 29, and Paragraphs 8, 9 and the first sentence of Paragraph 23(i i), together with any and all losses, damages, costs and expe nses (including reason- able attorneys' fees and disbursement s) relating to such claims or arising therefrom or incurred by Purc haser in connection with the enforcement of this inde mnification provision. The provisions of this Paragraph shall surv ive the Closing. 30. Seller shall complete, execute, deliver to the appropriate authorities verify and a certification in the form substantially similar to that set forth on Exhibit D annexed hereto and made a part here of, and such other docu- ments, affidavits or certificates which may be required to be completed, executed, delivered or veri fied by Seller -20- EFTA00313044  (collectively, the 'Other Documents") with resp 1445 of the Internal Revenue Code of 1986 (the ect to Section "FIRPTA Certifi- cation") by reason of the transactions contempl Contract. ated by this 31. Purchaser. agrees that it will not assi interest in this Contract unless Seller shal gn its l have consented thereto by a signed writing, which consent may any or no reason at Seller's sole and absolute be withheld for Notwithstanding the foregoing, Purchaser may discretion. assign his inter- est in this Contract to any family member or any partnership or trust which is controlled dire corporation, rectly, through ownership, agreement or othe ctly or indi- rwise, by Pur- chaser•, or to The Wexner Foundation, The Lesl dation, *The Wexner-Heritage Foundation or anyie H. Wexner Foun- foundation formed by Purchaser or of which he other charitable is a past or present trustee, director or other fiduciary. 32. Purchaser and Purchaser's desi the right to enter into and upon the Premises gnees shall have Closing Date, from time to time, during scho prior to the ol recesses or after school hours, and upon reas breaks or purposes of arranging for certain renovation, onable notice, for remodeling of the Premises which Purchaser decorating and inte after the Closing (the "Renovation Work"), prov nds to perform that Purchaser shall be liable to Seller ided, however, for any damage or destruction to the Premises caused by the inspection thereof pursuant to this Paragraph 32, including, but liability for any Violations, including Viol not limited to, ations with respect to asbestos, created thereby, and, in no even or its designees have any right to puncture t, shall Purchaser the walls or ceil- ings, drill into same or otherwise invade the spaces bounded thereby. In connection with Purchaser's Renovation Work, the Seller shall cooperatpreparations for the e with Purchaser in (i) the obtaining of any and all permits, appr icates required by any governmental or othe ovals and certif- including, without limitation, public r auth orities, utilities and landmark authorities (collectively, "the Permits"), execute any applications, certificates, docu and shall promptly ments or papers requested by Purchaser in connection ther ewith, provided, how- ever, that Purchaser pays all of the cost s and expenses of Seller incurred in connection therewith, including reasonable attorneys'- fees and disbursements and (ii) the any legal or administrative proceedings prosecution of or actions to the extent reasonably requested by Purchaser, at Purchaser's expense, and Seller shall not withhold its consent to the pros- ecution of any such proceedings or actions in the name of Seller, if, in the reasonable opinion of counsel to Purchaser, such action or proceeding should be pros ecuted in the name of -21- EFTA00313045  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 leg al or administrative proceedin or actions as aforesaid. Sel gs ler shall, at the Closing, ass to Purchaser, in the manner ign and to the extent directed chaser, all of the right, tit by Pur- le and interest of Seller und all of the Permits to the ext er ent assignable and not requir connection with the operation ed 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 disbursements incurred by reasonable attorneys' fees and Seller in connection with ment of the Permits to Purcha the ass ser. The-covenants contained ign- this Paragraph shall survive in the Closing. 33. Any errors or omissions ments at the Closing shall in computing apportion- be corrected promptly after discovery. The provisions of this Paragraph shall sur their Closing. vive the 34. This Contract (a) contai between the parties hereto ns the entire agreement , (b) is entered into after investigation, neither par full ty resentation, not embodied in relying upon any statement or rep- this (c) may not be changed, modified Contract, made by the other, by an instrument in writin or terminated orally, but g, signed by the party aga only enforcement of any waiver, mod inst whom ification or discharge and (d) is to be deemed to is have been jointly prepared bysought, parties hereto, and any unc the ertainty or ambiguity existi herein, if any, shall not be ng interpreted against either but shall be interpreted acc party, ording to the application rules of interpretation for of the arm's-length agreements. ulations aforesaid are to The stip- apply to and bind the heirs, tors, administrators, succes execu- sors and assigns of the res parties. If any term or pro pective vision of this Contract any extent, be invalid or une shall, to Contract shall not be aff nforceable, the remainder ected thereby, and each of this vision of this Contract sha term and pro- ll be valid and be enforc fullest extent permitted by ed 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 "Se aser" shall llers' or "Purchase the sense of this Contract rs" whenever so requires. 36. Anything contained in trary notwithstanding, but this Contract to the subject, however, to con- the terms and -22- EFTA00313046  provisions of subparagraph 39.C.(8) 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 procedur e 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, sharehol ders, directors, trustees, employees, principals or agents for any deficiency, loss or claim for monetary damages resulting ther efrom, 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 remedies 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 upon held by Battle the following terms and conditions: A. If the closing of title takes shall either (i) draw upon the Letter of place, Escrow Agent proceeds of the Letter of Credit Cred it and deliver the to, 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 payment 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- EFTA00313047  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