EXHIBIT 10.1
FIRST AMENDMENT TO DEED OF LEASE
THIS FIRST AMENDMENT TO DEED OF LEASE ("Amendment") is entered into as of
this 26th day of September, 2000 by and between EAST XXXXXX, L.L.C., a Virginia
limited liability company ("Lessor") and eTOYS DISTRIBUTION, L.L.C., a Delaware
limited liability company ("Lessee").
R E C I T A L S
A. Lessor and eToys Inc., Lessee's predecessor-in-interest, entered into
that certain Deed of Lease dated as of May 10, 1999 ("Lease") whereby Lessor
leased to Lessee and Lessee leased from Lessor that certain parcel of real
property ("Premises") together with improvements and a building containing a
total of 438,500 square feet of floor area ("Building"), all as more
particularly described in the Lease.
X. Xxxxxx and Lessee desire to amend the Lease so as to more particularly
describe each party's respective obligations as a result of certain
circumstances resulting from the sale of an immediately contiguous parcel to
Lessee, or its designee.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. CAPITALIZED TERMS. All capitalized terms used herein shall have the same
meaning as is given such terms in the Lease unless expressly superseded by the
terms of this Amendment.
2. TOY LANE. Prior to the date hereof, Lessee requested that Lessor agree
to the State of Virginia's abandonment of a portion of that certain roadway
known as State Route 1123 ("Toy Lane") which serves (i) the Premises, (ii) a
contiguous tract containing 163.018 acres as shown on that certain Plat of
Survey prepared for Lessee dated June 14, 2000 and last revised September 18,
2000 and prepared by Xxxxxxxx and Xxxxx, Inc. attached hereto as EXHIBIT "A" and
referenced as a 163.018 acre tract which Lessee, or its designee, intends to
purchase concurrently with the execution hereof ("Purchased Property"), (iii)
Tract 2 as shown on EXHIBIT "A" attached hereto containing 11.287 acres which is
owned by Lessor and (iv) Tract 3 containing 27.601 acres which is also owned by
Lessor (Tracts 2 and 3 are sometimes hereinafter referred to as the "Xxxxxx'
Residual Tracts"). The portion of Toy Lane which has been or will be abandoned
is that portion located west of a point approximately 370 feet west of the
intersection between US Route 29 and Toy Lane, said point being at the
northeastern corner of the single-shaded area shown on the attached EXHIBIT "B."
Lessor agreed to such abandonment and executed a letter to Pittsylvania County
indicating its consent thereto. In consideration for Lessor's consent to the
abandonment of that portion of Toy Lane, Lessee agrees that it
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is willing to rededicate said portion of Toy Lane immediately upon the
expiration or earlier termination of the Lease and to the other terms set forth
herein. Accordingly, Lessor and Lessee agree to take all steps reasonably
necessary to rededicate said abandoned portion of Toy Lane to the Virginia
Department of Transportation immediately upon the expiration or earlier
termination of the Lease, with Lessee bearing any and all expenses associated
therewith. Until the rededication of the abandoned area of Toy Lane to the State
of Virginia, Lessee agrees to bear any and all responsibility and expenses for
the repair, replacement, snow removal and maintenance of the abandoned area of
Toy Lane and to comply with State of Virginia requirements for the abandonment
of that portion of Toy Lane. Concurrently with the conveyance of the Purchased
Property to Lessee, or its designee, Lessor agrees also to convey a
non-exclusive easement over the abandoned area of Toy Lane for the benefit of
the Purchased Property for ingress to and egress from Toy Lane, which easement
shall cease upon the rededication of the abandoned area of Toy Lane at the
expiration or earlier termination of the Lease. Lessee shall cause the area of
Toy Lane which has or will be abandoned to be added to the Premises, at Lessee's
sole cost and expense, and such area shall thereafter be included within the
definition of the Premises under the Lease at no additional rent and Lessor
agrees to execute whatever documents as are necessary to accomplish same.
3. TOY LANE IMPROVEMENTS. Lessee has or will widen a portion of Toy Lane
and install a new guardhouse in the eastern area of the portion of Toy Lane
being abandoned. The widening of Toy Lane and the placement of the new
guardhouse will result in an encroachment onto a portion of Tract 3 as shown as
the single-shaded area on Exhibit A Detail on EXHIBIT "A." Concurrently with the
abandonment of that portion of Toy Lane referenced in Section 2 above, Lessee,
at its sole cost and expense, shall cause the entire single-shaded area
containing 0.066 acres, more or less, to be added to the Premises and such area
shall thereafter be included within the definition of the Premises under the
Lease at no additional rent. In addition, Lessor hereby grants to Lessee a
temporary easement for access and temporary grading during the construction of
the new guardhouse and the widening of Toy Lane at the location on Tract 3 of
the single-shaded area shown on EXHIBIT "B," such temporary easement to cease
immediately upon the completion of widening of the roadway and the construction
of the new guardhouse. At the expiration or earlier termination of the Lease,
Lessee agrees to remove the new guardhouse at Lessee's sole cost and expense.
4. NEW GUARDHOUSES. At the expiration or earlier termination of the Lease,
Lessee agrees, at its sole cost and expense, to construct two (2) new
guardhouses of equivalent construction materials used in the construction of the
guardhouse which existed at the commencement of the Lease, one to limit access
to the employee parking areas of the Premises and the other to limit access to
the truck areas of the exiting facility on the Premises. The exact location of
said new guardhouses on the Premises shall be selected by Lessor, which
selection shall not be unreasonably withheld or delayed.
5. NEW CONSTRUCTION BY LESSEE. In order to provide access to the existing
door on the southwest corner of the Building, a new roadway has or shall be
constructed by Lessee on the Premises substantially as shown as the
double-shaded area on EXHIBIT
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"C." Lessee agrees at all times until the expiration or earlier termination of
the Lease to repair and maintain the existing guardhouse/pumphouse located on
the Premises. Lessee shall also install appropriate curbing to provide
separation of the employee parking areas on the Premises from the new roadway
area described in this paragraph.
6. RESTORATION OF FENCING AND GATES. All fencing and/or gates now located
on the Premises which are removed or disturbed by Lessee during the term of the
Lease, shall be replaced by Lessee at the expiration or earlier termination of
the Lease, at the option of Lessor, which exercise shall not be unreasonably
delayed, at Lessee's sole cost and expense, in substantially the same locations
as existed as of the commencement of the Lease.
7. LOT LINE ADJUSTMENT. Lessor and Lessee acknowledge that the improvements
being constructed on the Purchased Property encroach upon the Premises. Lessor
and Lessee agree that the single-shaded area shown on Exhibit D Detail on
EXHIBIT "A" containing 0.773 acres, more or less, and the triangular
single-shaded area shown on Exhibit B Detail on EXHIBIT "A" containing 0.342
acres, more or less, are to be conveyed to Lessee, or its designee, at the
closing of the Purchased Property and shall thereafter be removed from the
definition of the Premises.
8. JOINT USE SANITARY SEWER EASEMENT. To the extent Lessor has not
previously established a joint use sanitary sewer easement over the area shown
on Exhibit C Detail on EXHIBIT "A," Lessor and Lessee agree that in the event
Lessee ever purchases the Premises from Lessor pursuant to the terms of the
Lease, the parties shall establish such a joint use sanitary sewer easement area
to be located on Tract 3 and the Premises (due to the addition of portions of
Tract 3 to the Premises pursuant to Paragraph 3 above).
9. SEWER AND SPRINKLER IMPROVEMENTS. Lessee shall have the right, at its
sole cost and expense (i) to construct a new sanitary sewer connection to the
Building to replace the existing sewage holding tank and (ii) to connect the
existing fire protection sprinkler system serving the Building with the
sprinkler system to serve the new facility being constructed by Lessee on the
Purchased Property. At the expiration or earlier termination of the Lease,
Lessee shall take such steps and make such modifications as may be reasonably
required by Lessor to separate the two sprinkler systems into two (2)
independent systems, unless the parties are willing to negotiate appropriate
arrangements for the sharing of said combined system and the costs related
thereto.
10. NEW EMPLOYEE PARKING LOT. Lessee shall construct a new 4,865 square
yard employee parking lot on the Premises and enlarge the existing parking lot
on the Premises as leasehold improvements as shown on the certain Site and
Grading Plan (Drawing No. C6), prepared by Stock and Associates. Lessee shall
provide that all parking areas are appropriated lighted to at least one (1)
foot-candle and that all landscaping be restored after construction of said
parking areas, at Lessee's sole cost and expense.
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11. EXTENSION OF TERM. Notwithstanding anything to the contrary contained
in the Lease, the initial term of the Lease shall end at 11:59 p.m. on July 31,
2009. Lessor and Lessee agree that this extension of the initial term shall not
affect the two (2) additional five-year options to extend the term of the Lease
contained in SECTION 4.2 of the Lease; provided, however, the Base Rent for the
period commencing August 1, 2004 and continuing through and including July 31,
2009 shall be adjusted as of August 1, 2004 pursuant to SECTION 5.2 of the Lease
as if such date was the first day of a renewal or extension term in accordance
with SECTION 4.2 of the Lease.
12. ADDITIONAL SECURITY. In order to ensure Lessee's continuing ability to
perform all of its obligations under the Lease and the additional items
described herein to be undertaken by Lessee at the expiration or earlier
termination of the Lease, Lessee shall within thirty (30) days after the
execution and delivery of this Amendment, provide an additional cash security
deposit or, at Lessee's option at any time, an irrevocable surety bond in the
amount of $300,000.00 from a financial institution reasonably approved by
Lessor, guarantying Lessee's faithful and timely performance of all of its
continuing obligations to Lessor under the Lease, as amended hereby. In the
event that said additional security deposit is in the form of cash, Lessor
agrees to hold such cash in sixty-day certificates of deposit (or as otherwise
agreed by the parties) issued by a national banking institution in Martinsville,
Virginia, under the taxpayer identification number for Lessee. Interest accruing
on said certificates shall be reinvested upon renewal thereof, but all interest
shall accrue to the benefit of Lessee. The foregoing notwithstanding, all
accumulated interest on said certificates shall be paid to Lessee semi-annually
(rather than reinvested) as each certificate matures or as otherwise provided
herein (e.g., upon the placement of a surety bond or the purchase of the
Premises by Lessee).
13. IMPROVEMENT CRITERIA. All design, construction, engineering, grading,
landscaping and other work shall be performed by Lessee in accordance with good
engineering practices, in a good and workmanlike manner and in accordance with
all codes and regulations. All parking lot paving and roadways or driveways
constructed and maintained by Lessee and located on the Premises (including
without limitation, Toy Lane) shall be "heavy duty" and of at least 15-year
design (8" stone base, 2" binder and 1" asphalt). Lessee shall use commercially
reasonable efforts to provide that all roadways constructed by Lessee to be
dedicated to the State of Virginia pursuant to this Amendment be designed and
constructed to comply in all aspects with State of Virginia specifications to
permit the later dedication thereof to the State of Virginia without additional
construction expense.
14. COSTS AND EXPENSES. All costs and expenses, including but not limited
to, design, construction, engineering, surveying, re-subdivision, grading,
landscaping, materials, government fees and charges and other work related to
the construction by Lessee on the Purchased Property and the Premises pursuant
to this Amendment shall be borne solely by Lessee, including full reimbursement
of all of Lessor's time and expenses incurred in connection with the items
covered by this Amendment (Lessor agrees that it incurred $7,500.00 as of the
date of May 9, 2000 and shall charge $50.00 per hour thereafter) and its
reasonable attorneys' fees (with the exception that the portion of fees
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attributable solely to the sale of the Leased Property or the sale of the
Premises shall not be reimbursable hereunder).
15. TERMINATION OF LESSEE'S OBLIGATIONS. The obligations of Lessee set
forth hereinabove to rededicate the roadway, build new guardhouses, restore
fencing/gates, separate the fire protection sprinkler systems and continue to
maintain the security deposit/surety bond described in paragraph 12 above shall
not be deemed to be binding on Lessee and shall be immediately released by
Lessor and of no further force or effect if the Lease is terminated by reason of
Lessee's purchase of the Premises pursuant to the Lease.
16. SELLER CONSULTATION. Lessee agrees to consult Lessor regarding the
actual final site/construction plans to be used during the modifications to Toy
Lane, modification of the sewer system and fire protection system serving the
Premises and the modification/improvements on the Premises contemplated hereby.
17. NO FURTHER MODIFICATIONS. Except as set forth in this Amendment, all of
the terms and provisions of the Lease shall apply and shall remain unmodified
and in full force and effect.
IN WITNESS WHEREOF, this Amendment has been executed as of the day and year
first above written.
EAST XXXXXX, L.L.C.,
a Virginia limited liability company
By: /s/ XXXXX X. XXXXXX
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Its: Member
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eTOYS DISTRIBUTION, L.L.C.,
a Delaware limited liability company
By: /s/ XXXXX X. XXXXXXX
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Its: Assistant Sec. and Assistant Treasurer
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EXHIBIT "A"
PLAT OF SURVEY
[ATTACHED HERETO]
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EXHIBIT "B"
TEMPORARY GRADING EASEMENT
[ATTACHED HERETO]
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EXHIBIT "C"
NEW ENTRANCE ROADWAY
[ATTACHED HERETO]
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