EFTA00313059.pdf

mailed; one (I) business day after depositing with the overnight courier, if sent by overnight delivery service; or as of the time of delivery, of personally delivered. NES, LLC By: Jeffrey E. Epstein Member 4 EFTA00313059 Exhibit E Guaranty — Attached EFTA00313060 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 EFTA00313061 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 terns, 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. My 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 EFTA00313062 Section L6. 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. Anticline 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 H 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 him at: Leslie r or the Holder may specify by notice given to the Holder in Aftordance with this Section 2.1. Each such notice or other 3 EFTA00313063 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. Governing 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 EFTA00313064 Schedule F Allocation of Purchase Price The Shares and the Beneficial Interest The Personal Property (see below) $19,332,500 $ 667,500 Personal Property One (1) Desk — Early Louis XIV $600,000 One (I) Louis XIV Painted Armchair $ 7,500 One (1) Mahogany Dining Table $ 20,000 Twelve (12) Dining Chain $ 20,000 One (1) set Mahogany Dining Furniture $ 20,000 EFTA00313065 Schedule G Intentionally Omitted EFTA00313066 Exhibit H Assignment of Beneficial Interest Attached EFTA00313067 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 principal, and Nine East 71" Street Corporation, a New York corporation (the "Corporation"), 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 71" 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 Agreement, of even date herewith (the "Purchase and Sale Agreement"), by and between the Assignor, as the seller thereunder, and NES, LLC, a New York limited 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"), together 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 EFTA00313068 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 EFTA00313069 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 EFTA00313070 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. Werner 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 EFTA00313071 STATE OF COUNTY OF ) ) ss.: ) 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 EFTA00313072 Exhibit I Bill of Sale — Attached EFTA00313073 MO-nuta se. Exhibit I /10.11.111Or/liOrIO. I.C. LAI/ iaai •••••LI mmmmm riotous ail li1211 bp tbefit Present≤, THAT LESLIE H. WF.XuEs parry of the first pandas and in consideration of the sum of Six Hundred Sixty -Seven ThousaiJ Five Hundred and 00/100 (f667,500.00)Dollars,lavful money of theUnited States to him in hand paid, at or before the ensealing and delivery of these 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 parr, heirs, executors, administrators, successors and assigns all of the rf t, title and interest in and to sonal property listed on tredule attached hereto I "P ;le ) .,' TO HAVE AND TO HOLD the same unto the said party of the second pan, its ria•••••+;••81••••••••• successors and assigns forever. AND he does for his heirs, executors and administrators, 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 onto the said party successors and assigns, against all and every person and persons whomsoever. IN WITNESS WHEREOF, the party of the Arse part has set his hand and seal or caused these presents to be signed by its proper corporate officers and caused its proper corporate seal to be hereto affixed, this day of 19 Signed, Sealed and Delivered in the Presence of 17 of the second part, its havereeesseeretkaiaistresesey EFTA00313074 SCHEDULE OF THE FOREGOING BILL OF SALE Property One (11 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 EFTA00313075 STATE OF COUNTY OF LESLIE H. WEXNER being duly sworn, deposes and says that New Albany, OH 43054 he resides at One Whitebarn Road, That he is the same person who executed the within bill of sale. That he SS the sole and absolute owner of the property described in said bib 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, h N/A have esw—iz—inene; noe--iiresnmer petition in bankruptcy or arrangement proceedings been bled by or against h Sm ; nor has 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 St sir will rely thereon and pay a good and valuable consideration therefor. Sworn to before me this day of STATE OF COUNTY OF That he is of . — LESLIE B. VEXNER , being duly sworn deposes and says: 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 safe. 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 a 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 EFTA00313076 STATE OF COUNTY OF On the before me came day of nineteen hundred and LESLIE H. WEXNER to me 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 before me came being by me duly sworn, did depose and say that that he is the of nineteen hundred and he resides at No. to me known, who, 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 b name thereto by like order. -0 EFTA00313077