EXHIBIT 10.2
CONTRACT OF PURCHASE
THIS CONTRACT OF PURCHASE (hereinafter "Contract") is made as of
September 26, 2000 between EAST XXXXXX, L.L.C., a Virginia limited liability
company, whose address is Xxxx Xxxxxx Xxx 0000, Xxxxxxxxxxxx, Xxxxxxxx 00000,
owner of record of the Property sold herein (the "Seller"), and ETOYS
DISTRIBUTION, L.L.C., whose address is 0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx Xxxxxx,
Xxxxxxxxxx 00000 and/or its designee (the "Purchaser").
1. REAL PROPERTY. Purchaser agrees to buy and Seller agrees to sell all
of Seller's right, title and interest in and to all of the land and all
improvements thereon and appurtenances thereto (the "Property"), located in
Blairs Magisterial District, Pittsylvania County, Virginia, and described as
follows:
ALL that certain parcel of land situate in Blairs Magisterial District,
Pittsylvania County, Virginia, containing 163.018 acres and located on Toy Lane
(State Road No. 1123), all as more particularly shown on Plat of Survey For:
eToys Distribution, L.L.C., dated June 14, 2000, last revised September 18,
2000, made by Xxxxxxxx & Xxxxx, Inc. (File No. V 2224 B) to be recorded in the
Clerk's Office of the Circuit Court of Pittsylvania County, Virginia (the
"Clerk's Office"); and being, in fact, a part of the same property conveyed to
East Xxxxxx, L.L.C., a Virginia limited liability company, from Xxxxxxx X.
Xxxxxx, Xx., and Xxxxxx X. Xxxxxx, husband and wife, by deed dated October 16,
1996, recorded in the Clerk's Office in Deed Book 1057, at page 548;
together with a non-exclusive joint use sewer easement over the single-shaded
area shown and being known and designated as Exhibit C Detail containing 0.063
acres, plus or minus, on that certain Plat of Survey for eToys Distribution,
L.L.C., dated June 14, 2000 and last revised September 18, 2000 prepared by
Xxxxxxxx and Xxxxx, Inc., Registered Land Surveyor ("Survey"), attached hereto
as Exhibit "D," said Plat to be recorded in the Clerk's Office of the Circuit
Court of Pittsylvania County, Virginia on the Settlement Date; and
together with a non-exclusive easement over the area described on Exhibit "E"
for the benefit of the Property for ingress to and egress from the Property
("Toy Lane Easement"). Seller and Purchaser acknowledge and agree that the Toy
Lane Easement shall cease and be of no further force or effect upon the
re-dedication of the Toy Lane Easement area to the State of Virginia for roadway
purposes at the expiration or earlier termination of that certain Deed of Lease
dated May 10, 1999, by and between Seller and eToys Inc., as such may have
heretofore or hereafter be amended from time to time ("Lease").
2. PURCHASE PRICE. The purchase price of the Property is (i) One Million
and No/100 Dollars ($1,000,000.00) plus interest thereon at the rate of eight
percent (8%) per annum commencing on March 21, 2000 and continuing through and
including the Settlement Date plus (ii) an amount equal to $11,150.00 for
purchase of the Lot Line Adjustment Property (collectively, the "Purchase
Price"), which shall be paid to Seller at settlement by certified or cashier's
check, or wired funds, subject to any prorations described herein.
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3. SETTLEMENT AGENT AND POSSESSION. Settlement shall be made at the
offices of Purchaser's attorney ("Settlement Agent") on or before September 29,
2000 ("Settlement Date"). The Settlement Date may only be changed with the
written consent of the Purchaser and the Seller. "Settlement" shall be deemed to
have occurred when the General Warranty Deed referenced in Section 5 below, is
recorded. Possession of the Property shall be delivered by Seller to Purchaser
upon the Settlement.
4. REPRESENTATIONS OF SELLER. The Seller makes the following
representations and warranties to Purchaser: Seller is duly organized as a
limited liability company under the laws of the Commonwealth of Virginia and has
the power and authority to enter into the transactions contemplated by this
Contract and to carry out its obligations hereunder and by proper action has
duly authorized the execution and delivery of, and the performance under, this
Contract. Seller further represents, warrants and covenants to Purchaser that
(a) as of February 23, 2000, the Property was properly subdivided as a 161.925
acre parcel in conformity with all applicable laws, covenants or restrictions of
record, building codes, regulations and ordinances applicable to the Property
("Laws") and zoned so as to permit access to the occupancy and operation of the
Property for Purchaser's intended use as a warehouse/office/distribution
facility (other than Purchaser's occupancy and construction, Seller is not aware
of any other changed circumstances); (b) there are no title matters and no
rights of any third parties which will or may prevent, hinder or restrict
Purchaser's intended uses or occupancy of the Property, except as which may
result from Purchaser's possession of the Property and its construction thereon,
and Seller owns fee simple title to the Property free and clear of all liens and
encumbrances, except those items disclosed in that certain policy of title
insurance and endorsement thereto issued by Xxxxxxx Title Guaranty Company under
Policy No. 0-0000-000000 and any items resulting from Purchaser's occupation of
and construction on the Property ("Permitted Encumbrances"), and has not entered
into any other leases, options, unrecorded contracts to acquire or lease or any
similar or related agreements or instruments related to the Property; (c) except
as permitted by law, Seller shall not take any future actions or omissions with
respect to the Property, including without limitation, any actions which affect
title and/or zoning of the Property which will interfere with, prohibit,
restrict or adversely affect Purchaser's permitted use of or access to the
Property; (d) there are no judicial, quasi-judicial, administrative or other
orders, injunctions, moratoria, or pending or threatened proceedings against
Seller or the Property which preclude or interfere with or would preclude or
interfere with, the occupancy and use of the Property for Purchaser's intended
uses; (e) Seller has received no written notice of violation of any federal,
state, county or municipal or other governmental agency, law, ordinance,
regulation, or a rule or requirement relating to the Property and that the
Property complies with all applicable Laws; (f) to Seller's knowledge, there are
no events or circumstances existing, threatened or planned which would prohibit
or materially interfere with Purchaser's intended use, occupancy and development
of the Property as a warehouse/office/distribution facility; (g) as of
February 23, 2000, the Property was a separate legal parcel containing 161.925
acres, properly subdivided under applicable Laws (other than Purchaser's
occupancy and construction, Seller is not aware of any other changed
circumstances); and (h) as of February 23, 2000, no Hazardous Materials (as
hereinafter defined) had been used, discharged, dumped, spilled or stored on or
about the Property and Seller has received no notice and has no knowledge of any
such condition on the Property (other than Purchaser's occupancy and
construction, Seller is not aware of any other changed circumstances); Seller
hereby agrees that if any claim is ever made against Purchaser relating to
Hazardous Materials at or around the Property, whether or not such Hazardous
Materials are
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present as of the date hereof or are hereafter discovered on the Property
(unless introduced by Purchaser or Purchaser's employees, servants, agents,
contractors, assignees, licensees, invitees or successors or any third party not
related to Seller), all costs of removal, disposal and remediation incurred by,
all liability imposed upon and all damages suffered by Purchaser directly or
indirectly arising out of the same shall be borne by Seller, and Seller agrees
to indemnify, defend, protect and hold Purchaser harmless from and against all
such costs, losses, liabilities and damages, including, without limitation, all
third-party claims (including sums paid in settlement thereof, with or without
legal proceedings) for personal injury or property damage and other claims,
actions, administrative proceedings, judgments, penalties, fines, costs,
liabilities, losses, attorneys' fees and expenses (through all levels of
proceedings), consultants and experts fees and all costs incurred in enforcing
this indemnity. The foregoing indemnification of Purchaser by Seller includes,
without limitation, costs incurred in connection with any necessary
investigation of site conditions or any cleanup, remedial, removal or
restoration work required by any federal, state or local governmental agency or
political subdivision because of Hazardous Material present in the soil or
ground water or, under or about the Property, except to the extent caused by
actions of Purchaser or its employees, servants, agents, contractors, assignees,
licensees, invitees or successors. Without limiting the foregoing, if the
presence of any Hazardous Material on or about the Property not caused by
Purchaser or its employees, servants, agents, contractors, assignees, licensees,
invitees or successors results in the contamination of the Property or any part
thereof or causes the Property to be in violation of any Laws, Seller shall
promptly take all actions at its sole expense as are necessary to return the
Property to the condition it was in before the introduction of any such
Hazardous Material. In taking any such actions, Seller shall use best efforts to
minimize any interference with Purchaser's use of and access to the Property and
shall reasonably schedule such actions with Purchaser. The representations,
warranties and indemnities contained in this paragraph shall survive the
purchase of the Property by Purchaser or any person or entity who takes an
assignment of such rights. Seller's representations and warranties made in this
Section 4 shall be continuously true and correct as of the Settlement with the
same force and effect as if remade by Seller in a separate certificate at that
time. The truth and accuracy of Seller's representations and warranties made
herein shall constitute a condition for the benefit of Purchaser to this
Contract and shall survive, and shall not merge into, the Settlement or the
recordation of the General Warranty Deed. Seller hereby agrees to indemnify,
defend, protect and hold Purchaser harmless against and from all losses,
damages, liabilities, penalties, costs, suits, judgments, liens and expenses,
including without limitation, reasonable legal fees and disbursements, incurred
by Purchaser relating to the acts, occurrences or matters the existence or
occurrence of which constitute a violation of one or more representations,
warranties or covenants of Seller hereunder. As used herein, the term "Hazardous
Materials" shall mean and include any hazardous or toxic materials, substances,
or wastes, including (i) any material, substances or wastes that are toxic,
ignitable, corrosive or reactive and that are regulated by any local
governmental authority, any agency of the Commonwealth of Virginia, or any
agency of the United States government; (ii) asbestos; (iii) petroleum and
petroleum-based products; (iv) urea formaldehyde foam insulation; (v)
polychlorinated biphenyls ("PCBs"); (vi) freon and other chlorofluorocarbons;
(vii) those designated as hazardous substances pursuant to Section 1004 of the
Federal Resource Conservation and Recovery Act, 42 USCS Sections 6901, et seq.,
and (viii) those designated as hazardous substances pursuant to Section 101 of
the Comprehensive Environmental Response, Compensation and Recovery Act, 42 USCS
Sections 9601, et seq.
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5. SETTLEMENT.
(i) On or prior to the Settlement Date, Seller shall deposit with the
Settlement Agent (1) a duly executed and acknowledged General Warranty Deed
conveying the Property to Purchaser in the form attached hereto as Exhibit
"A" and incorporated herein by this reference, (2) a certification duly
executed by Seller under penalty of perjury in the form of, and upon the
terms set forth in, the Transferor's Certificate of Non-Foreign Status
("FIRPTA Certificate") attached hereto as Exhibit "C" and incorporated
herein by the reference setting forth Seller's address and federal tax
identification number and certifying that Seller is a "United States
Person" and that Seller is not a "foreign person" in accordance with and/or
for the purpose of the provisions of Sections 7701 and 1445 (as may be
amended) of the Internal Revenue Code of 1954, as amended, and any
regulations promulgated thereunder, (3) the applicable IRS form 1099, and
(4) such proof of Seller's authority and authorization to enter into this
Contract and consummate the transactions contemplated hereby, and such
proof of the power and authority of the individual(s) executing and/or
delivering any instruments, documents or certificates on behalf of Seller
to act for and bind Seller as may be required by "Title Company," as that
term is defined below, or Purchaser. Purchaser shall be responsible for
obtaining and paying for such additional surveys or examination of title as
Purchaser may deem necessary.
(ii) On or prior to the Settlement Date, Purchaser shall deposit with
the Settlement Agent the Purchase Price pursuant to Section 2 above and
such amounts necessary to cover Purchaser's share of prorations.
(iii) At Settlement, the executed General Warranty Deed shall be
delivered to Purchaser and the Purchase Price shall be delivered to Seller
after deduction of such recording costs of the General Warranty Deed as are
customary for grantors or sellers to pay under Virginia law, brokerage
commissions and Seller's share of prorations. The Settlement shall not
occur unless and until Xxxxxxx Title Guaranty Company ("Title Company") is
in a position to issue the title insurance policy described in Section 7
below, showing title to the Property vested of record in Purchaser (or its
assignee or nominee), subject only to Permitted Exceptions. Seller, at its
sole cost and expense, shall cause any parcels being purchased by Purchaser
hereunder to be separate legal parcels properly subdivided under applicable
laws.
6. EXPENSES AND PRORATIONS. Seller agrees to pay the costs of preparing
the General Warranty Deed, FIRPTA Certificate and the applicable IRS Form 1099,
the recordation tax applicable to grantors, and the Seller's attorney fees.
Except as otherwise agreed herein, all other expenses incurred in connection
with the Contract and the transaction set forth herein, including, without
limitation, title examination costs, insurance premiums, survey costs, recording
costs, loan document preparation costs and fees of Purchaser's attorney, shall
be borne by Purchaser. All taxes and assessments, if any, shall be prorated as
of March 21, 2000. All interest, rent and mortgage insurance, if any, shall be
prorated as of Settlement.
7. TITLE. At Settlement, Seller shall convey to Purchaser good and
marketable fee simple title to the Property by the General Warranty Deed,
subject only to then current real estate taxes and assessments constituting
liens not then due or payable, the exceptions attached hereto as Exhibit "B"
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and/or matters disclosed on the Survey, but specifically excluding any monetary
liens or encumbrances ("Permitted Exceptions"). If a defect is found which can
be remedied by legal action within a reasonable time, Seller shall, at Seller's
expense, promptly take such action as is necessary to cure the defect. If
Seller, acting in good faith, is unable to have such defect corrected within
sixty (60) days after notice of such defect is given to Seller, then this
Contract may be terminated by Purchaser or Purchaser may choose to close this
Contract and exercise any and all of its rights and remedies at law and in
equity resulting from such failure to properly deliver the Property. Purchaser
may, at its sole option, extend the date for Settlement to the extent necessary
for Seller to comply with this Section but not longer than 60 days.
8. CONDITION OF PROPERTY. Seller shall take no actions which affect the
Property without the prior written approval of Purchaser, which shall not be
unreasonably withheld, including without limitation, Seller shall not enter into
any lease or occupancy agreement, construct any improvements, grant any
easements or similar rights, apply for any entitlements, transfer or agree to
transfer any right, title or interest in or to the Property to any party or take
any other action which could affect Purchaser's purchase, use or development of
the Property.
9. DELIVERIES. Seller shall deliver all written information with respect
to the Property which is in Seller's possession within ten (10) days following
the date hereof.
10. DAMAGE OR DESTRUCTION. Except for any damage or destruction
attributable to the activities of Purchaser or Purchaser's agents, employees or
contractors, in the event that prior to the Settlement Date, the Property or any
improvements thereon are destroyed or materially damaged, Seller shall bear the
risk of loss therefor, and Purchaser may elect to cancel the purchase or may
purchase the Property at the purchase price set forth herein less the amount by
which such damage or destruction has decreased the fair market value of the
Property.
11. CONDEMNATION. If, before the Settlement Date, either Seller or
Purchaser receives notice of any condemnation or eminent domain proceeding, the
party receiving the notice shall promptly notify the other party of that fact.
Purchaser may elect either to proceed with the purchase contemplated by the
purchase option or to terminate the option within fifteen (15) days after the
date the notice is received. If Purchaser proceeds with the purchase in
accordance with all the terms of the option, all condemnation proceeds shall be
paid to Purchaser (or assigned to Purchaser if not then yet collected).
12. NOTICE TO SELLER. Any notice required or permitted to be given to
Seller shall be in writing and be deemed to have been properly given upon
mailing the same by certified or registered mail, return receipt requested, or
Federal Express or other reputable overnight courier, with postage prepaid or by
facsimile transmission to Seller, c/o Xxxxxxx X. Xxxxxx Corporation, Xxxx Xxxxxx
Xxx 0000, Xxxxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: President, facsimile no.
(000) 000-0000, and to Xxxx X. Xxxxxxx, III, Young, Haskins, Xxxx, Xxxxxxx &
Xxxxx, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000-0000, facsimile no.
(000) 000-0000. Seller reserves the right to designate another representative
for the purpose of receiving notices required or permitted to be made hereunder
provided the designation is made in writing and delivered to Purchaser.
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13. NOTICE TO PURCHASER. Any notice required or permitted to be given to
Purchaser shall be in writing and be deemed to have been properly given upon
mailing the same by certified or registered return receipt requested, or Federal
Express or other reputable overnight courier, with postage prepaid or by
facsimile transmission to eToys Distribution, L.L.C., c/o 0000 X.X. Xxxxxxx 00,
Xxxxxx, Xxxxxxxx 00000, facsimile no. (000) 000-0000, Attention: Property
Manager and 0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx, facsimile no.
(000) 000-0000, Attn: General Counsel, with a copy to Xxxxxxx X. Xxxxxx,
Greenwald, Pauly, Xxxxxx & Xxxxxx, 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxx,
Xxxxxxxxxx 00000, facsimile no. (000) 000-0000. Purchaser reserves the right to
designate another representative for the purpose of receiving notices required
or permitted to be made hereunder provided the designation is made in writing
and delivered to Seller.
14. DRAINAGE AND SEWER EASEMENT. Upon the conveyance of the Property to
Purchaser, Seller will retain the following:
(a) a drainage easement as shown on the Survey ("Drainage
Easement"); and
(b) a 20' wide sewer easement extending from the western margin
of Seller's retained parcel known as Tract 3 in a westerly direction
to the new sewer line on the Property as shown on the Survey ("Sewer
Easement"). Thus, in addition to sewer connection points already
located on the Property, there will be a total of at least three (3)
more sewer connection points serving Tract 3 and Seller's retained
parcel known as Tract 2 ("Xxxxxx' Residual Tracts") permanently
available for use by Seller and its successors and assigns:
(i) the connection point shown on the Survey below the
"Existing Pond;"
(ii) the connection point available to the Xxxxxx' Residual
Tracts established in accordance with the sewer easement area
adjacent to Toy Lane; and
(iii) the existing retained sewer easement leading from the
southwesterly margin of Tract 3 across the Property; and
(c) Purchaser shall bear the expense of removing the existing
sanitary holding tank located adjacent to Toy Lane in the area
described in subparagraph (b)(ii) above and the cost of connection of
the sewer lines from the facilities on the property leased by
Purchaser pursuant to the Lease ("Leased Property") and the Property
to the connection points described in subparagraphs (b)(i) and (b)(ii)
above and the cost of constructing and connecting the sewer lines on
the Leased Property and the Property to the public sewer system; and
(d) Seller shall bear the cost of constructing and connecting
any sewer lines on the Xxxxxx Residual tracts to the connection points
described above and any sewer line across the existing retained sewer
easement leading from the southwesterly margin of Tract 3 across the
Property.
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15. ENTIRE AGREEMENT. This Contract constitutes the entire understanding
between the parties and shall be conclusively deemed to supersede all prior
written or verbal communications between the parties. This Contract may not be
modified or terminated unless in writing, signed by the parties to this
Contract.
16. FURTHER ASSURANCES. Purchaser and Seller agree to execute all such
instruments and documents and to take all actions pursuant to the provisions
hereof in order to consummate the purchase and sale herein contemplated and
shall use their good faith efforts to accomplish the Settlement in accordance
with the provisions hereof.
17. WAIVERS. No waiver of any breach of any covenant or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension of
time for performance of any obligation or act shall be deemed an extension of
the time for performance of any other obligation or act except those of the
waiving party, which shall be extended by a period of time equal to the period
of the delay.
18. GOVERNING LAW. This Contract is to be governed, construed and enforced
in accordance with the laws of the Commonwealth of Virginia, United States of
America, which shall be deemed to have personal jurisdiction over the parties.
19. AUTHORITY. The individuals signing this Contract on behalf of the
Seller and the Purchaser, respectively, expressly warrant and represent
personally that he has full power and authority so to act on behalf of his
principal.
20. ATTORNEYS' FEES. In the event either party shall be required to
commence or defend any action or proceeding against the other party by reason of
any breach or claimed breach of any provision of this Contract, to commence or
defend any action or proceeding in any way connected with this Contract or to
seek a judicial declaration of rights under this Contract, the party prevailing
in such action or proceeding shall be entitled to recover from or to be
reimbursed by the other party for the prevailing party's reasonable and actual
attorneys' fees and costs through all levels of proceedings.
21. BINDING EFFECT. This Contract shall be binding upon and inure to the
benefit of the parties and their respective heirs, personal representatives,
successors and permitted assigns, except as expressly set forth hereinabove.
22. PARTIAL INVALIDITY. If any provisions of this Contract or the
application thereof to any person or circumstance shall be deemed invalid or
unenforceable, the remainder of this Contract and its application to other
persons or circumstances shall not be affected by such partial invalidity but
shall be enforced to the fullest extent permitted by law as though such invalid
or unenforceable provisions was never a part hereof.
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23. COUNTERPARTS. This Contract may be executed in one or more identical
counterparts, and as so executed by all parties hereto shall constitute a single
instrument for purposes of the effectiveness of this Contract.
24. ARBITRATION. The parties agree that any dispute arising out of this
Contract shall be submitted to binding arbitration before a single arbitrator in
Charlottesville, Virginia, under the auspices of the American Arbitration
Association. The prevailing party in such proceeding shall be entitled to
recover the costs of such proceedings, including reasonable attorneys' fees, as
determined by the arbitrator.
25. TIME OF ESSENCE. Time is of the essence with respect to the
performance of all obligations to be performed or observed by the parties under
this Contract.
26. CONFIDENTIALITY. Except as may be required by subpoena or other legal
requirement or for the purposes of or except as may be reasonably required in
connection with the sale of the Property, all information learned by or
disclosed to Seller with respect to Purchaser's business (including without
limitation, a copy of this Contract and the terms hereof and payments due
hereunder) shall be kept strictly confidential by Seller, Seller's legal
representatives, successors, assigns, employees, servants and agents and shall
not be used (except for Seller's confidential internal purposes) or disclosed to
others by Seller, or Seller's servants, agents, employees, legal
representatives, successors or assigns, without the express prior written
consent of Purchaser, which Purchaser may withhold in its sole and absolute
discretion. Any and all information conveyed to the media and/or the business
community, whether in the form of informal or formal discussion, press releases,
direct mail or other broadly distributed announcements regarding discussions,
negotiations, purchase by Purchaser, occupancy by Purchaser or such subsequent
agreements between Purchaser and Seller concerning this Contract shall be
conveyed exclusively by Purchaser (this includes any and all contact with print
or broadcast reports, as well as paid advertising).
27. SALES COMMISSIONS. Seller and Purchaser each represent that it has not
dealt with any broker or agent in connection with the negotiation, execution, or
delivery of this Contract, except for Binswanger Southern (N.C.), Inc.
("Binswanger"), and Cresa Partners, LLC ("Cresa"). Seller shall pay to Cresa a
commission equal to Twenty-Five Thousand and No/100 Dollars ($25,000.00), and
Binswanger shall be paid by Seller a sales commission as provided in its listing
agreement with Seller dated July 28, 1998, less the aforesaid sales commission
to Cresa and less any prepaid but unearned sales commissions. Seller shall pay
the brokerage commissions owing to Cresa pursuant to this Contract and Cresa
shall be a third party beneficiary hereof. The commissions owing to Cresa and
Binswanger in connection with a sale of the Property shall be deducted from the
purchase price and paid at the closing.
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IN WITNESS WHEREOF, the parties hereto have caused these presents to
be duly executed as of the day and year first above written.
SELLER:
EAST XXXXXX, L.L.C., a Virginia limited
liability company
Xxxxxxx X. Xxxxxx Corporation, Manager
BY: /s/ XXXXX X. XXXXXX
---------------------------------------
Its: President
PURCHASER:
eTOYS DISTRIBUTION, L.L.C.,
a Delaware limited liability company
BY: /s/ XXXXX X. XXXXXXX
---------------------------------------
Its: Assistant Secretary and Assistant
Treasurer
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COMMONWEALTH OF VIRGINIA
CITY OF MARTINSVILLE, TO-WIT:
The foregoing was acknowledged before me, this ______ day of_____________,
2000, by ____________________________, the _______________ of Xxxxxxx X. Xxxxxx
Corporation, the Manager of East Xxxxxx, L.L.C., a Virginia limited liability
company.
My commission expires: _________________
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NOTARY PUBLIC
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES, TO-WIT:
On ________________________ before me, _____________________________,
personally appeared __________________________________, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------------------
NOTARY PUBLIC
State of California
My Commission Expires:
--------------------
Taxpayer Identification No.
Part 125-A-53B
EXHIBIT "A"
GENERAL WARRANTY DEED
eTOYS DISTRIBUTION, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
FROM: DEED
EAST XXXXXX, L.L.C.,
A VIRGINIA LIMITED LIABILITY COMPANY
THIS DEED, made and executed as of the 26th day of September, 2000, by and
between EAST XXXXXX, L.L.C., a Virginia limited liability company, grantor and
party of the first part, and eTOYS DISTRIBUTION, L.L.C., a Delaware limited
liability company, grantee and party of the second part:
WITNESSETH: That for and in consideration of the sum of One Million Eleven
Thousand One Hundred Fifty Dollars ($1,011,150.00) cash in hand paid by the
party of the second part to the party of the first part and other good and
valuable consideration, the receipt and sufficiency of all of which are hereby
acknowledged, the said party of the first part does hereby bargain, sell, grant
and convey, in fee simple, with general warranty of title, unto the party of the
second part, the following, to-wit:
ALL that certain parcel of land situate in Blairs
Magisterial District, Pittsylvania County, Virginia,
containing 163.018 acres and located on Toy Lane (State Road
No. 1123), all as more particularly shown on Plat of Survey
For: eToys Distribution, L.L.C., dated June 14, 2000, last
revised September 18, 2000, made by Xxxxxxxx & Xxxxx, Inc.
(File No. V 2224 B) to be recorded in the Clerk's Office of
the Circuit Court of Pittsylvania County, Virginia (the
"Clerk's Office"); and being, in fact, a part of the same
property conveyed to East Xxxxxx, L.L.C., a Virginia limited
liability company, from Xxxxxxx X. Xxxxxx, Xx.,
and Xxxxxx X. Xxxxxx, husband and wife, by deed dated
October 16, 1996, recorded in the Clerk's Office in Deed
Book 1057, at page 548;
together with a non-exclusive joint use sewer easement over
the single-shaded area shown and being known and designated
as Exhibit C Detail containing 0.063 acres, plus or minus,
on that certain Plat of Survey for eToys Distribution,
L.L.C., dated June 14, 2000 and revised September 7, 2000
prepared by Xxxxxxxx and Xxxxx, Inc., Registered Land
Surveyor, attached hereto as Exhibit "A," said Plat to be
recorded in the Clerk's Office of the Circuit Court of
Pittsylvania County, Virginia on the Settlement Date; and
together with a non-exclusive easement over the area
described on Exhibit "B" for the benefit of the Property for
ingress to and egress from the Property ("Toy Lane
Easement"). Seller and Purchaser acknowledge and agree that
the Toy Lane Easement shall cease and be of no further force
or effect upon the re-dedication of the Toy Lane Easement
area to the State of Virginia for roadway purposes at the
expiration or earlier termination of that certain Deed of
Lease dated May 10, 1999, by and between Seller and eToys
Inc., as such may have heretofore or hereafter be amended
from time to time ("Lease");
But reserving therefrom for the benefit of Tract 1 as shown
on Exhibit "A," the proposed 20' storm drain easement (10'
each side of centerline) along existing branch as shown on
Exhibit "A" and reserving therefrom for the benefit of
Tract 3 as shown on Exhibit "A,"
2
the ability to hook-up to the 20' wide sewer easement at the
connection point shown on Exhibit "A" below the "Existing
Pond."
The property herein described is being conveyed subject to items shown on
Exhibit "C" attached hereto. Specific reference is hereby made to the aforesaid
deed and plat for a more particular description of the property herein conveyed.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
duly executed the day and year first above written.
GRANTOR:
EAST XXXXXX, L.L.C., a Virginia limited liability
company
BY: Xxxxxxx X. Xxxxxx Corporation, a Virginia
corporation, Manager of East Xxxxxx, L.L.C.
BY:
-----------------------------------
President
------------------------------------
Secretary
3
EXHIBIT "A"
TO
EXHIBIT "A"
PLAT OF SURVEY
[ATTACHED HERETO]
EXHIBIT "B"
TO
EXHIBIT "A"
TOY LANE EASEMENT
All that certain property sixty feet in width and .19 mile in length being
that portion of Toy Lane (State Road 1123) which was abandoned by Resolution No.
000-00-00 of the Board of Supervisors of Pittsylvania County, Virginia. Said
easement area begins at the terminus of the existing right of way of Toy Lane
(0.7 mile west of the intersection of Toy Lane with U. S. Highway No. 29) and
extends approximately .19 mile to the boundary line of the 163.08 acre tract as
shown on Plat of Survey For: eToys Distribution, L.L.C., dated June 14, 2000,
last revised September 18, 2000, made by Xxxxxxxx and Xxxxx, a copy of which is
to be recorded contemporaneously herewith.
EXHIBIT `C"
TO
EXHIBIT "A"
PERMITTED EXCEPTIONS
1. Taxes subsequent to December 31, 1999. Taxes for the year of 2000 are a
lien, not yet due and payable. Subject to supplemental taxes.
2. Easements to C & P Telephone of Virginia dated February 4, 1977 of record
in the aforesaid Clerk's office in Deed Book 631 at Page 769.
3. Easement to Virginia Electric and Power Company dated April 22, 1976 of
record in the aforesaid Clerk's Office in Deed Book 623 at Page 175.
4. Easement to Virginia Electric and Power Company dated December 11, 1996 of
record in the aforesaid Clerk's Office in Deed Book 1064 at Page 788.
5. Easement to Virginia Electric and Power Company dated July 8, 1999 of
record in the aforesaid Clerk's Office in Deed Book 1167 at Page 260.
6. Abandoned Old Communications Line Crossing Property of record in Map Book
43, at Page 237E.
7. Creek Crossing property and rights of others in and to the continued and
uninterrupted flow thereto of record in Map Book 43 at Page 237E.
8. Property line follows right of way of Southern Railway on the West of
record in Map Book 43 at Page 237E.
9. Proposed 20' utility easement to be dedicated to PCSA of record in Map Book
43 at Page 237E.
10. Approximate location of existing detention pond of record in Map Book 43 at
Page 237E.
11. Easement 40' along easterly property line to be dedicated to PCSA of record
in Map Book 43 at Page 237E.
12. Title to any portion of the property within the bounds of any road or
highway.
13. Encroachment of improvements outside title lines.
14. Any discrepancies, conflicts, or shortages in area or boundary lines, or
any encroachments or any overlapping of improvements or other boundary or
location disputes.
15. Deed of Trust from NC Land, LLC, a California limited liability company
securing XXXXXX.XXXX LLC in the amount of $14,500,000.00.
16. A) portion of property in within Flood Hazard Zone A.
B) 30 foot utility easement along Toy Lane.
C) 40 foot utility easement along Toy Lane.
D) Proposed 20 foot sanitary sewer easement.
E) 100" x 100" sanitary sewer pump station.
F) utility pole with underground utility at pump station.
G) 20 foot sanitary sewer easement.
H) overhead utility.
I) existing 30 foot Vepco utility easement.
J) 40 foot easement along portion of eastern boundary line.
K) encroachment of barn.
as shown on Survey by Xxxxxxxx & Xxxxx dated September 18, 2000.
2
EXHIBIT "B"
PERMITTED EXCEPTIONS
1. Taxes subsequent to December 31, 1999. Taxes for the year of 2000 are a
lien, not yet due and payable. Subject to supplemental taxes.
2. Easements to C & P Telephone of Virginia dated February 4, 1977 of record
in the aforesaid Clerk's office in Deed Book 631 at Page 769.
3. Easement to Virginia Electric and Power Company dated April 22, 1976 of
record in the aforesaid Clerk's Office in Deed Book 623 at Page 175.
4. Easement to Virginia Electric and Power Company dated December 11, 1996 of
record in the aforesaid Clerk's Office in Deed Book 1064 at Page 788.
5. Easement to Virginia Electric and Power Company dated July 8, 1999 of
record in the aforesaid Clerk's Office in Deed Book 1167 at Page 260.
6. Abandoned Old Communications Line Crossing Property of record in Map Book
43, at Page 237E.
7. Creek Crossing property and rights of others in and to the continued and
uninterrupted flow thereto of record in Map Book 43 at Page 237E.
8. Property line follows right of way of Southern Railway on the West of
record in Map Book 43 at Page 237E.
9. Proposed 20' utility easement to be dedicated to PCSA of record in Map
Book 43 at Page 237E.
10. Approximate location of existing detention pond of record in Map Book 43 at
Page 237E.
11. Easement 40' along easterly property line to be dedicated to PCSA of record
in Map Book 43 at Page 237E.
12. Title to any portion of the property within the bounds of any road or
highway.
13. Encroachment of improvements outside title lines.
14. Any discrepancies, conflicts, or shortages in area or boundary lines, or
any encroachments or any overlapping of improvements or other boundary or
location disputes.
15. Deed of Trust from NC Land, LLC, a California limited liability company
securing XXXXXX.XXXX LLC in the amount of $14,500,000.00.
1
16. A) portion of property in within Flood Hazard Zone A.
B) 30 foot utility easement along Toy Lane.
C) 40 foot utility easement along Toy Lane.
D) Proposed 20 foot sanitary sewer easement.
E) 100" x 100" sanitary sewer pump station.
F) utility pole with underground utility at pump station.
G) 20 foot sanitary sewer easement.
H) overhead utility.
I) existing 30 foot Vepco utility easement.
J) 40 foot easement along portion of eastern boundary line.
K) encroachment of barn.
as shown on Survey by Xxxxxxxx & Xxxxx dated September 18, 2000.
2
EXHIBIT "C"
AFFIDAVIT PURSUANT TO FOREIGN
INVESTMENT AND REAL PROPERTY TAX ACT
The undersigned hereby declares that the name, address and United States
taxpayer identification number of the owner of the real property described in
EXHIBIT "A" attached hereto and incorporated herein by reference is as follows:
NAME AND ADDRESS I.D. NUMBER
EAST XXXXXX, L.L.C., a Virginia limited _________________
liability company
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxxxx, Xxxxxxxx 00000
The owner is a corporation organized and existing under the laws of the
State of Virginia, and as such, is not a foreign citizen or entity.
The undersigned understands that the purchaser of the property intends to
rely on the foregoing representations in connection with the United States
Foreign Investment and Real Property Act.
EAST XXXXXX, L.L.C.,
a Virginia limited liability company
By:
-----------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
1
EXHIBIT "A"
TO
EXHIBIT "C"
LEGAL DESCRIPTION
ALL that certain parcel of land situate in Blairs Magisterial District,
Pittsylvania County, Virginia, containing 163.018 acres and located on Toy Lane
(State Road No. 1123), all as more particularly shown on Plat of Survey For:
eToys Distribution, L.L.C., dated June 14, 2000, last revised September 18,
2000, made by Xxxxxxxx & Xxxxx, Inc. (File No. V 2224 B) to be recorded in the
Clerk's Office of the Circuit Court of Pittsylvania County, Virginia (the
"Clerk's Office"); and being, in fact, a part of the same property conveyed to
East Xxxxxx, L.L.C., a Virginia limited liability company, from Xxxxxxx X.
Xxxxxx, Xx., and Xxxxxx X. Xxxxxx, husband and wife, by deed dated October 16,
1996, recorded in the Clerk's Office in Deed Book 1057, at page 548
1
EXHIBIT "D"
PLAT OF SURVEY
[ATTACHED HERETO}
1
EXHIBIT "E"
TOY LANE EASEMENT
All that certain property sixty feet in width and .19 mile in length being
that portion of Toy Lane (State Road 1123) which was abandoned by Resolution No.
000-00-00 of the Board of Supervisors of Pittsylvania County, Virginia. Said
easement area begins at the terminus of the existing right of way of Toy Lane
(0.7 mile west of the intersection of Toy Lane with U. S. Highway No. 29) and
extends approximately .19 mile to the boundary line of the 163.08 acre tract as
shown on Plat of Survey For: eToys Distribution, L.L.C., dated June 14, 2000,
last revised September 18, 2000, made by Xxxxxxxx and Xxxxx, a copy of which is
to be recorded contemporaneously herewith.
1
