EXHIBIT 10.3
PURCHASE CONTRACT
A. INTRODUCTION; PARTIES
This agreement ("Agreement") is made as of September 26, 2000 by and
between NG LAND LLC, a California limited liability company ("NG LAND") and
eToys Distribution, L.L.C., a Delaware limited liability company ("eTOYS").
B. REAL PROPERTY
The real property (together with all improvements located thereon and
easements, privileges, rights and appurtenances thereto, the "REAL PROPERTY") is
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, attached hereto as
Exhibit "A," said Plat to be recorded in the Clerk's Office of
the Circuit Court of Pittsylvania County, Virginia; 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"). NG Land and eToys
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 East Xxxxxx (as
defined below) and eToys Inc., as such may have heretofore or
hereafter be amended from time to time ("Xxxxxx Lease").
-1-
C. ACQUISITION OF THE REAL PROPERTY
1. Subject to the terms of this Agreement, NG Land agrees to acquire
the Real Property by a general warranty deed ("Deed") in the form of
EXHIBIT "C" attached hereto and made a part hereof from East Xxxxxx,
L.L.C., a Virginia limited liability company ("EAST XXXXXX"), in accordance
with the provisions of that certain Contract of Purchase between East
Xxxxxx, as seller, and eToys, as purchaser, dated September 26, 2000
("PURCHASE CONTRACT").
2. eToys hereby assigns to NG Land the rights of the purchaser under
the Purchase Contract but all obligations and responsibilities of purchaser
under the Purchase Contract shall remain with eToys. eToys agrees to
execute any commercially reasonable assignment of the Purchase Contract
that is required by the Title Company (as defined below) and/or East
Xxxxxx.
3. On or prior to the "Settlement Date," as that term is defined in
the Purchase Contract, NG Land agrees to pay exactly THIRTEEN MILLION
DOLLARS ($13,000,000.00) to eToys through the escrow established for the
purchase of the Real Property from East Xxxxxx pursuant to the Purchase
Contract as the purchase price for the Real Property to be paid to eToys, a
portion of which eToys shall apply towards the purchase price of the Real
Property from East Xxxxxx as required by the Purchase Contract.
4. In consideration for the funds paid by NG Land, the Purchase
Obligation (as defined below) and the Lease (as defined below) granted
herein, eToys shall pay all costs, expenses or other amounts necessary to
purchase the Real Property from East Xxxxxx in accordance with the Purchase
Contract and this Agreement.
5. eToys shall have no right to reimbursement from NG Land for any
amounts paid pursuant to this Agreement by eToys.
D. STATE OF TITLE
The parties acknowledge that NG Land shall cause a first deed of trust or
mortgage ("DEED OF TRUST") to be executed to secure a promissory note executed
by NG Land for $14,500,000.00 in favor of RE Xxxx.Xxxx LLC, a California limited
liability company ("RE XXXX.XXXX"). The Deed of Trust shall be recorded against
the Real Property (the "RE XXXX.XXXX LOAN"). The Deed of Trust shall record
concurrently and next in order after the Deed.
NG Land's obligation to purchase the Real Property is conditioned upon the
following:
Xxxxxxx Title Guaranty Company ("TITLE COMPANY") shall commit to
issue, concurrently with the closing, its ALTA Owner's Policy of Title
Insurance
-2-
with mechanics' lien coverage that insures the fee title of NG Land in the
amount of $14,500,000.00 subject only to Schedule B Exceptions as shown on
Title Company's Commitment for Title Insurance Number 00005783 dated
September 14, 2000 ("TITLE COMMITMENT"), the Deed of Trust, the Lease, the
Purchase Obligation, the Non-Disturbance Agreement (as defined in the
Lease) and other matters created pursuant to the Purchase Contract;
provided, however, that the Deed of Trust shall be superior to the Lease,
the Purchase Obligation, the Non-Disturbance Agreement and other matters
created pursuant to the Purchase Contract. eToys shall pay for the cost of
such policy.
Xxxxxxx Title Guaranty Company shall commit to issue, concurrently
with the closing, its ALTA Lender's Policy of Title Insurance with
mechanics' lien coverage in the amount of $14,500,000.00 that insures RE
Xxxx.Xxxx that the fee title of the Real Property is vested in NG Land
subject only to Schedule B Exceptions as shown on Title Commitment, the
Deed of Trust, the Lease, the Purchase Obligation, the Non-Disturbance
Agreement and other matters created pursuant to the Purchase Contract;
provided, however, that the Deed of Trust shall be superior to the Lease,
the Purchase Obligation, the Non-Disturbance Agreement and other matters
created pursuant to the Purchase Contract. eToys shall pay for the cost of
such policy.
eToys agrees that the rights of NG Land contained herein do not constitute a
financing of the Real Property but are an arm's length transaction to be
interpreted in accordance with the terms and provisions of this Agreement.
Immediately upon NG Land's acquisition of the Real Property, NG Land shall have
all of benefits of the ownership of the title to the Real Property, including,
without limitation, the right to receive rents and the right to possession,
subject only to the terms of the Lease and the Purchase Obligation. eToys agrees
that the terms and provisions of this Agreement set forth the intentions of the
parties.
E. LEASE; COSTS AND EXPENSES
Concurrently with NG Land's acquisition of the Real Property, NG Land and
eToys shall enter into a lease (the "LEASE") in the form of EXHIBIT "D" attached
hereto and made a part hereof. eToys shall be responsible for all costs and
expenses of NG Land's acquisition of the Real Property pursuant to this
Agreement and the Purchase Contract as follows: $13,000.00 payable to Xxxxx
Xxxxxxx, Esq., Trust Account.
F. OBLIGATION TO PURCHASE.
NG Land and eToys acknowledge and agree that the Lease contains an
obligation on behalf of eToys to purchase the Real Property upon the expiration
of the Lease ("Purchase Obligation") in accordance with the terms set forth in
the Lease; provided, however, eToys, at its sole option, also has the right to
accelerate such acquisition of the Real Property in accordance with the terms
set forth in the Lease.
-3-
G. NOTICES
1. NOTICE TO NG LAND. Any notice required or permitted to be given
to NG Land 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 NG Land:
NG Land LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
(Prior to October 15, 2000)
NG Land LLC
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: [To Be Provided Following Relocation]
(On or after October 15, 2000)
NG Land 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 eToys.
2. NOTICE TO eTOYS. Any notice required or permitted to be given to
eToys 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:
eToys Distribution L.L.C.,
0000 X.X. Xxxxxxx 00
Xxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Facilities Manager
And
0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Facsimile No.(000) 000-0000
Attn: General Counsel
-4-
eToys 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 NG Land.
H. 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 Agreement, to commence or defend any action or
proceeding in any way connected with this Agreement or to seek a judicial
declaration of rights under this Agreement, 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.
I. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the parties and
shall be conclusively deemed to supersede all prior written or verbal
communications between the parties. This Agreement may not be modified or
terminated unless in writing, signed by the parties to this Agreement.
J. GOVERNING LAW.
This Agreement 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.
K. AUTHORITY.
The individuals signing this Agreement on behalf of the NG Land and the
eToys, respectively, expressly warrant and represent personally that he has full
power and authority so to act on behalf of his principal.
L. BINDING EFFECT.
This Lease 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.
M. PARTIAL INVALIDITY.
If any provisions of this Agreement or the application thereof to any
person or circumstance shall be deemed invalid or unenforceable, the remainder
of this Agreement and its application to other persons or circumstances shall
not be affected by such partial
-5-
invalidity but shall be enforced to the fullest extent permitted by law as
though such invalid or unenforceable provisions was never a part hereof.
N. COUNTERPARTS.
This Lease 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 Agreement.
O. 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 Agreement.
P. 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,
re-leasing, financing or refinancing of the Real Property, all information
learned by or disclosed to NG Land with respect to eToys' business (including
without limitation, a copy of this Agreement and the terms hereof and payments
due hereunder) or information disclosed or discovered during an entry by NG Land
into the Real Property, shall be kept strictly confidential by NG Land, NG
Land's legal representatives, successors, assigns, employees, servants and
agents and shall not be used (except for NG Land's confidential internal
purposes) or disclosed to others by NG Land, or NG Land's servants, agents,
employees, legal representatives, successors or assigns, without the express
prior written consent of eToys, which eToys 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, lease signing, occupancy by eToys or such subsequent
agreements between eToys and NG Land concerning this Agreement shall be conveyed
exclusively by eToys (this includes any and all contact with print or broadcast
reports, as well as paid advertising).
Q. REAL ESTATE COMMISSIONS.
NG Land and eToys each represent that it has not dealt with any broker or
agent in connection with the negotiation, execution, or delivery of this
Agreement, except for Bark, Inc. and Xxxxxx Xxxxx Partners ("BROKERS"), Xxxxxx
Xxxxx Partners shall be paid by NG Land pursuant to a separate written agreement
and Bar K, Inc. shall be paid by NG Land pursuant to a separate written
agreement. NG Land and eToys agree to indemnify and defend the other party
against and hold the other party harmless from any and all claims, demands,
losses, liabilities, lawsuits, judgments, and costs and expenses (including
without limitation reasonable attorneys' fees) with respect to any real estate
-6-
commission or equivalent compensation alleged to be owing on account of the
indemnifying party's dealings with any real estate broker or agent other than
Broker.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly
executed as of the day and year first above written.
NG LAND:
NG Land LLC,
a California limited liability company
By: /s/ XXXXXX XX
------------------------------------------
Name: XXXXXX XX
------------------------------------------
Its: MANAGING PARTNER
------------------------------------------
By:
------------------------------------------
Name:
------------------------------------------
Its:
------------------------------------------
eTOYS:
eTOYS DISTRIBUTION, L.L.C.,
a Delaware limited liability company
By: /s/ XXXXX X. XXXXXXX
------------------------------------------
Name: XXXXX X. XXXXXXX
------------------------------------------
Its: ASSISTANT SECRETARY AND ASSISTANT TREASURER
------------------------------------------
By:
------------------------------------------
Name:
------------------------------------------
Its:
------------------------------------------
-7-
EXHIBIT "A"
PLAT OF SURVEY
[ATTACHED HERETO]
-1-
EXHIBIT "B"
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-
Taxpayer Identification No.
Part 125-A-53B
EXHIBIT "C"
GENERAL WARRANTY DEED
NG LAND L.L.C.,
A CALIFORNIA 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 NG LAND L.L.C., a California 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 last revised September 18, 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," 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
-2-
ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
) SS.
COUNTY OF _______________ )
On _________________ before me, _____________________________, personally
appeared _________________________ and ________________________, 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
================================================================================
ATTENTION NOTARY: Although the information requested below is OPTIONAL, it could
prevent fraudulent attachment of this certificate to another document.
THIS CERTIFICATE MUST BE Title of Document Type:____________________________
ATTACHED TO THE DOCUMENT Number of Pages:_____ Date of Document:____________
DESCRIBED AT RIGHT. Signer(s) Other Than Named Above:
___________________________________________________
EXHIBIT "A"
TO
EXHIBIT "C"
PLAT OF SURVEY
[ATTACHED HERETO]
-1-
EXHIBIT "B"
TO
EXHIBIT "C"
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-
EXHIBIT "C"
TO
EXHIBIT "C"
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.
-1-
15. Deed of Trust from NC Land, LLC, a California limited liability company
securing RE XXXX.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 "D"
LEASE
[ATTACHED HERETO]
-1-
