DEED OF LEASE
THIS DEED OF LEASE made and entered into as of the 10th day of May,
1999, by and between EAST XXXXXX, L.L.C., a Virginia limited liability company,
party of the first part and Lessor herein, and ETOYS INC., a Delaware
corporation, party of the second part and Lessee herein;
W I T N E S S E T H:
WHEREAS, Lessor is the owner of a certain lot or parcel of land off
U.S. Route 29 in Pittsylvania County, Virginia, containing approximately 53.088
acres, more or less (the "Land"), as shown on the attached Exhibit A, being a
Plat of Survey for Lessor, prepared by Xxxxxxx X. Xxxxxxxx Assoc., and dated
August 26, 1996 and revised April 27, 1999 ("Survey"), on which is located
certain improvements containing a total of 438,500 square feet of floor area
(the "Building") (the Land and Building together hereinafter referred to as the
"Premises"); and
WHEREAS, the Lessee desires to lease the Premises from Lessor and
Lessor desires to lease the Premises to Lessee on the terms and conditions set
forth hereinafter; and
WHEREAS, Lessor and Lessee desire to set forth the terms and
conditions of such lease herein;
NOW, THEREFORE, for and in consideration of the mutual covenants,
promises and agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I. DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1. DEFINITIONS. In addition to other terms defined
elsewhere in this Lease, the following terms shall have the following meanings
in this Lease unless the context requires otherwise:
"LEASE" shall mean this agreement including any amendments, exhibits
and schedules attached hereto and made a part hereof;
"BUILDING" shall mean the existing warehouse/office facility
containing approximately 438,500 square feet located on the Land, as shown on
attached Exhibit "A";
"LAND" shall mean the real estate containing 41 acres, more or less,
as shown on the Plat of Survey attached hereto as Exhibit A; and
"PREMISES" or "DEMISED PREMISES" or similar phrases shall mean the
Land and Building as set forth herein; and
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Section 1.2. RULES OF CONSTRUCTION. The following rules shall apply
to the construction of this Lease unless the context otherwise requires:
A) Singular words shall connote the plural number as well as
the singular and vice versa.
B) All references herein to particular articles or sections are
references to articles or sections of this Lease.
C) The headings herein are solely for convenience of reference
and shall not constitute a part of this Lease nor shall they affect its meaning,
construction or effect.
ARTICLE II. REPRESENTATIONS
Section 2.1. REPRESENTATIONS OF LESSOR. The Lessor makes the
following representations and warranties to Lessee: Lessor is duly organized as
a Virginia 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 Lease, including without limitation, the purchase options,
and to carry out its obligations hereunder and by proper action has duly
authorized the execution and delivery of, and the performance under, this Lease.
Lessor further represents, warrants and covenants to Lessee that (a) the Land
and the Additional Land (as hereinafter defined) is presently properly
subdivided in conformity with all applicable laws, covenants or restrictions of
record, building codes, regulations and ordinances applicable to the Premises
("Laws") and zoned so as to permit access to the occupancy and operation of the
demised Premises and the Additional Land for Lessee's intended use as a
warehouse/office/distribution facility; (b) there are no title matters and no
rights of any third parties which will or may prevent, hinder or restrict
Lessee's intended uses or occupancy of the demised Premises and/or the
Additional Land and Lessor owns fee simple title to the Premises and Additional
Land free and clear of all liens and encumbrances, except those items disclosed
in that certain Commitment for Title Insurance and endorsement thereto issued by
Xxxxxxx Title Guaranty Company under Commitment Number DST-190199 ("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 Premises and/or Additional Land; (c) Lessor shall not
take any future actions or omissions with respect to the Premises or Additional
Land, including without limitation, any actions which affect title and/or zoning
of the Premises or Additional Land which will interfere with, prohibit, restrict
or adversely affect Lessee's permitted use of or access to the Premises or
Additional Land; (d) there are no judicial, quasi-judicial, administrative or
other orders, injunctions, moratoria, or pending or threatened proceedings
against Lessor or the Land or Additional Land which preclude or interfere with
or would preclude or interfere with, the occupancy and use of the demised
Premises or Additional Land for Lessee's intended uses; (e) Lessor 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 Premises or Additional Land and that the Premises and Additional
Land comply with all applicable Laws; (f) water, electrical and telephone
utilities have been stubbed to the Building and Additional Land; (g) to
Landlord's knowledge, there are no events or circumstances existing, threatened
or planned which would prohibit or materially interfere with Lessee's intended
use, occupancy and development of the Premises and/or Additional Land as a
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warehouse/office distribution center; (h) the Premises and the Additional Land
are separate legal parcels, properly subdivided under applicable laws; and (i)
no Hazardous Materials (as hereinafter defined) have been used, discharged,
dumped, spilled or stored on or about the Land or Additional Land and Lessor has
received no notice and has no knowledge of any such condition on the Land,
Additional Land or in the Building; Lessor hereby agrees that if any claim is
ever made against Lessee relating to Hazardous Materials at or around the
Premises or Additional Land, whether or not such Hazardous Materials are present
as of the date hereof or are hereafter discovered on the Premises or Additional
Land (unless introduced by Lessee or Lessee's employees, servants, agents,
contractors, assignees, licensees, invitees or successors), all costs of
removal, disposal and remediation incurred by, all liability imposed upon and
all damages suffered by Lessee directly or indirectly arising out of the same
shall be borne by Lessor, and Lessor agrees to indemnify, defend, protect and
hold Lessee 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 Lessee by Lessor 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 Premises and/or Additional Land,
except to the extent caused by actions of Lessee 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 Premises or Additional Land not caused by Lessee or its employees,
servants, agents, contractors, assignees, licensees, invitees or successors
results in the contamination of the Premises or Additional Land or any part
thereof or causes the Premises or Additional Land to be in violation of any
Laws, Lessor shall promptly take all actions at its sole expense as are
necessary to return the Premises and Additional Land to the condition they were
in before the introduction of any such Hazardous Material. In taking any such
actions, Lessor shall use best efforts to minimize any interference with
Lessee's use of and access to the Premises and Additional Land and shall
reasonably schedule such actions with Lessee. The representations, warranties
and indemnities contained in this Section 2.1 shall survive the termination or
expiration of this Lease and any purchase of the Premises and/or Additional Land
by Lessee or any person or entity who takes an assignment of such rights
pursuant to Article XX, below.
Section 2.2. REPRESENTATIONS OF LESSEE. The Lessee makes the
following representations and warranties to Lessor: Lessee is a corporation
duly organized and existing under the laws of the State of Delaware and has full
power and authority to enter into this Lease and the transactions contemplated
hereby and to perform its obligations hereunder and by proper action has duly
authorized the execution and delivery of and the performance under this Lease.
ARTICLE III. PREMISES
Section 3.1. PREMISES. Lessor hereby agrees to lease to Lessee and
Lessee hereby agrees to hire from Lessor the Premises, all of which have been
inspected and accepted in their
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present condition, with the sole exception of those specific items described in
Article VII hereinafter, upon the terms and conditions set forth herein.
ARTICLE IV. COMMENCEMENT OF TERM
Section 4.1. INITIAL TERM. To have and hold the same unto Lessee for
the initial term of approximately five (5) years and one-half (1/2) month,
commencing on the later of (i) July 15, 1999 or (ii) the date Lessor (or Lessee,
as the case may be, as more particularly set forth below) completes the Lessor's
Work pursuant to Sections 7.1 and, if applicable, 7.2 (A) below (hereinafter the
"Commencement Date"), on the covenants, conditions and agreements hereinbefore
and hereinafter stated, said initial term ending at 11:59 p.m. on July 31, 2004.
Notwithstanding the foregoing, in the event Lessor does not deliver the Premises
to Lessee as required by this Lease on or prior to August 15, 1999, Lessee may,
at its option, (i) terminate this Lease at any time prior to such delivery of
the Premises to Lessee or (ii) take possession of the Premises and complete the
Lessor's Work pursuant to Sections 7.1 and, if applicable, 7.2(A) below (in
which event Lessor shall reimburse Lessee for any amounts incurred by Lessee in
completing Lessor's Work within thirty (30) days of Lessee's demand therefor in
accordance with Section 7.6 below). Notwithstanding the foregoing, from and
after the mutual execution and delivery of this Lease, provided that Lessee and
its agents do not unreasonably interfere with Lessor's Work, subject to the
terms and provisions of the Lease, including without limitation, the insurance
and indemnity requirements, but with no obligation to pay any annual rent or any
other charges hereunder, Lessee and Lessee's architects, contractors,
subcontractors, laborers, materialmen and suppliers shall have access to the
Premises prior to the Commencement Date for the purpose of installing Lessee's
personal property, inventory, equipment, furniture and fixtures (including
Lessee's data and telephone equipment) in the Premises.
Section 4.2. EXTENSION TERMS. Provided that Lessee is not then in
default under Section 15.1 beyond all applicable notice and cure periods set
forth therein, Lessee shall have the option to extend or renew this Lease on the
same terms and conditions set forth herein (with the exception of annual rent as
set forth in Section 5.2 below) for two (2) additional five-year terms. Such
options may be exercised by Lessee giving written notice to Lessor of its intent
to renew at least twelve (12) months prior to the expiration of the term then in
effect.
ARTICLE V. RENT
Section 5.1. RENT PAYMENTS DURING INITIAL TERM. During the initial
term of this Lease beginning on the Commencement Date, Lessee covenants and
agrees to pay to the Lessor annual rent, subject to adjustments as set forth
elsewhere in this Lease, of Two and 95/100ths Dollars (U.S. $2.95) per square
foot of the floor area contained in the leased portion of the Building, the
parties hereby agreeing that for purposes of this Lease, said Building contains
438,500 square feet of floor area. Accordingly, the annual rent payable by
Lessee during the initial term shall be One Million Two Hundred Ninety-Three
Thousand Five Hundred Seventy-Five Dollars (U.S. $1,293,575.00), payable in
monthly installments of $107,797.91 each. All annual rent under this Lease
shall be payable in equal monthly installments in advance on the first day of
each month during the initial term of this Lease at the offices of Lessor or
such place as Lessor may designate by notice to Lessee, without any offset or
deduction, except as expressly set forth elsewhere in this Lease. Lessee agrees
to pay such rent in lawful money of the United
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States of America which is legal tender for the payment of public and private
debts. Inasmuch as the Commencement Date is scheduled to begin on a date other
than the first day of a calendar month, Lessee shall on the Commencement Date
pay Lessor an amount equal to such proportion of an equal monthly installment as
the number of days from the Commencement Date to the end of the calendar month
in which the Commencement Date occurs bears to the total number of days in such
calendar month, and such payment shall represent the pro rata rent from the
Commencement Date to the end of such calendar month. Likewise, any other
payments for partial months shall be prorated based on the actual days in such
calendar month.
Section 5.2. RENT PAYMENTS DURING RENEWAL TERM. On the first (1st)
day of each of the renewal or extension terms referred to in Section 4.2 above,
the annual rent payable under Section 5.1 during the previous five-year period
(the "Base Rent") shall be adjusted by the change, if any, from the "Base Month"
specified below, in the Consumer Price Index of the Bureau of Labor Statistics
of the U.S. Department of Labor for CPI U (All Urban Consumers) for Washington,
D.C. - MD - VA., All Items (1982-1984 = 100), herein referred to as "C.P.I."
The annual rent payable for the renewal or extension term shall be calculated as
follows: the Base Rent shall be multiplied by a fraction the numerator of which
shall be the C.P.I. of the calendar month two (2) months prior to the first
(1st) day of the applicable renewal or extension term, and the denominator of
which shall be the C.P.I. of the calendar month which is two (2) months prior to
the first month of the term of this Lease or the first month of the first option
term (with respect to the exercise of the second option term) ("Base Month").
The sum so calculated shall constitute the new annual rent hereunder, but in no
event shall any such new annual rent be less than the annual rent payable
immediately preceding the date for rent adjustment. In the event the
compilation and/or publication of the C.P.I. shall be transferred to any other
governmental department or bureau or agency or shall be discontinued, then the
index most nearly the same as the C.P.I. shall be used to make such calculation.
In the event that Lessor and Lessee cannot agree on such alternative index,
then the matter shall be submitted for decision to the American Arbitration
Association in accordance with the then rules of said association and the
decision of the arbitrators shall be binding upon the parties. The cost of said
Arbitrators shall be paid equally by Lessor and Lessee.
Section 5.3. LATE CHARGE. In addition to the rent specified
hereinabove, a late charge equal to five percent (5%) of the then-current amount
of the monthly rent installments shall be immediately due and payable by Lessee
as additional rent if the full amount of any such monthly rental payment is not
received by Lessor on or before the fifth (5th) day following written notice
that such amount was past due, time being of the essence.
Section 5.4. HOLDOVER RENT AND CONTINUED OCCUPANCY. In the event
that the Lessee shall continue to occupy the Premises after the expiration of
the initial term or any applicable renewal terms, the annual rent required to be
paid during any such holdover tenancy shall increase to one hundred twenty-five
percent (125%) of the amount of annual rent to be paid during the previous term.
Any such holdover tenancy may be terminated by either party on thirty (30) days
written notice.
Section 5.5. SECURITY DEPOSIT. Within ten (10) days following the
mutual execution and delivery of this Lease, Lessee shall provide to Lessor a
security deposit in an original amount equal to $431,191.64; provided, however,
in the event that Lessee becomes a
DEED OF LEASE
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publicly traded company with a market capitalization of at least $1,000,000,000,
Lessor shall release an amount equal to $323,393.73 to Lessee within thirty (30)
days following Lessee's written request therefor, and the security deposit shall
thereafter be in an amount equal to $107,797.91; provided, further, however, in
the event that at the time Lessee becomes a publicly traded company with a
market capitalization of at least $1,000,000,000, Lessee has posted a letter of
credit with Lessor in lieu of a security deposit as hereinafter provided, Lessor
agrees to accept a substitute letter of credit in the amount of $107,797.91 in
place of the existing letter of credit upon Lessee's request. For purposes
herein, "market capitalization" shall mean the number of outstanding shares of
Lessee multiplied by the public trading value. Such security deposit shall be
in the form of cash or, at Lessee's option, from time to time, an unconditional
letter of credit issued by a banking institution insured by the FDIC in form and
substance reasonably satisfactory to Lessor. Lessee shall also retain from time
to time the right to cancel the letter of credit at any time provided Lessee
concurrently replaces such letter of credit being cancelled with a substitute
letter of credit issued by a banking institution insured by the FDIC in form and
substance reasonably satisfactory to Lessor or cash in an amount equal to the
then applicable security deposit. Any portion of any letter of credit which is
drawn upon by Lessor in accordance with the provisions hereof, but is not used
or applied in accordance with the terms of this Lease shall be held as the
security deposit hereunder. Such security deposit shall be held by Lessor
during the term of this Lease and any renewals and extensions hereof to secure
the faithful and timely performance of Lessee's obligations hereunder. If
Lessee defaults in the performance of any of its obligations hereunder beyond
all applicable notice and cure periods, including, but not limited to, the
payment of rent, the Lessor may use, apply or retain all or any part of such
security deposit for the payment of any unpaid rent or for any other amount
which the Lessor may be required to spend by reason of the Lessee's default,
including any damages or deficiency in the reletting of the Premises, regardless
of whether the accrual of such damages or deficiency occurs before or after an
eviction or a summary reentry or other reentry by the Lessor. In the event of
any use or application of such security deposit by Lessor, Lessee agrees to
replace such amount so used or applied within thirty (30) days following receipt
of Lessor's written request. Any remaining balance of such security deposit
shall be returned by Lessor to Lessee within sixty (60) days after the
termination of this Lease. Lessor and Lessee agree that any cash security
deposit shall be deemed to be non-interest bearing.
ARTICLE VI. USE
Section 6.1. USE OF THE PREMISES. Lessee shall use and occupy the
Premises for the operation of a warehouse/distribution facility and general
offices related thereto and for any other lawful purpose. Subject to the other
terms and conditions of this Lease, including without limitation, Articles II
and VII, Lessee shall not suffer or permit the Premises or any part thereof to
be used in any manner, or anything to be done therein, or suffer or permit
anything to be brought into or kept in the Premises which would in any way (i)
violate any Laws; (ii) cause structural injury to the Building or other
improvements or any part thereof; (iii) damage the heating, air-conditioning,
ventilating, plumbing or other mechanical or electrical systems of the Building
or other improvements; (iv) constitute a public or private nuisance; (v) alter
the appearance of the exterior of the Building or other improvements or conduct
any structural alterations on the interior of the Building without the prior
written consent of Lessor in accordance with Article XVIII; or (vi) do anything
or permit anything to be done on the Premises that would violate any of those
certain Federal, state and local laws, regulations and guidelines
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now in effect, and any additional laws, regulations and guidelines which may
hereafter be enacted, relating to or affecting Hazardous Materials (as
hereinafter defined) or the handling, storage or disposal thereof. Any
violation of any of the foregoing covenants which shall not be cured within
fifteen (15) days after receipt by Lessee of written notification thereof (or
such longer period as may be necessary if such default cannot reasonably be
cured within fifteen (15) days, so long as Lessee shall have commenced to cure
the same within said fifteen (15)-day period and thereafter shall diligently
pursue such cure) shall be an event of default under this Lease.
ARTICLE VII. REPAIRS/IMPROVEMENTS/MAINTENANCE
Section 7.1. REQUIRED REPAIRS AND IMPROVEMENTS BY LESSOR PRIOR TO
COMMENCEMENT DATE. Lessee has inspected the Premises and accepts same in their
current condition and state of repair, except the Lessor agrees only to
install/perform the following repairs and/or improvements to the Building in a
good and workmanlike manner and free of material defects prior to the
Commencement Date:
A) At the Commencement Date, all loading dock equipment,
including doors, bumpers, seals, lights and levelers, shall be in a good and
operable condition and in compliance with all applicable Laws;
B) At the Commencement Date, the interior floor of the Building
shall be cleaned and in good condition;
C) At the Commencement Date, dedicated electrical service in
the Building shall be 3,000 amps of three-phase;
D) At the Commencement Date, the Building shall be in
compliance with the requirements of the Americans with Disabilities Act and any
and all local and state codifications thereof;
E) At the Commencement Date, all Building systems and
equipment, with the exception of those installed by Lessee, shall meet all
current applicable Laws, without regard to grandfathering or waivers, and shall
be in good working condition and order;
F) At the Commencement Date, the roof of the Building shall be
in good repair and shall have an estimated useful life of greater than fifteen
(15) years;
G) At the Commencement Date, all paved car and truck areas
shall be in good repair and shall have an estimated useful life of at least
fifteen (15) years; and
H) At the Commencement Date, the Building shall have a
structurally sound shell and be leak-free.
If Lessee discovers that the Premises do not comply with Lessor's
obligations under this Section 7.1, Lessee shall provide Lessor with written
notice thereof within thirty (30) days following the Commencement Date and
Lessor shall be responsible for promptly complying with such obligations at
Lessor's sole cost and expense.
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Section 7.2. OPTIONAL IMPROVEMENTS. If requested by Lessee in
writing within six (6) months following the Commencement Date (with the
exception of sub-paragraph A below, which must be requested within thirty (30)
days following the mutual execution and delivery of this Lease and installed
prior to the Commencement Date), Lessor agrees to install any or all of the
following, all of which shall be installed in a good and workmanlike manner on a
time schedule, in a manner and at a cost mutually agreed upon by Lessor and
Lessee:
A) If requested by Lessee within thirty (30) days following the
mutual execution and delivery of this Lease, the interior concrete floor of the
Building shall be sealed (term = 5-year amortization);
B) Install asphalt paving on the Land to provide 250 additional
parking spaces (term = 10-year amortization); and/or
C) Install gravel paving on the Land to provide 250 additional
parking spaces (term = 5-year amortization).
In the event that Lessee exercises the option to require Lessor
to install any one or more of the items set forth in this Section 7.2 (A)-(C),
the cost of such items shall be determined through competitive bidding, with
Lessee having the right to determine the successful bid. At Lessee's option,
Lessee shall either pay for the cost of installation of such optional item(s) or
Lessor shall pay for the cost of the installation of such optional item(s) and
such cost, together with interest thereon at the annual rate of nine percent
(9%), shall be amortized over the indicated term for each such item and Lessee
shall reimburse Lessor for such costs occurring during the initial term or any
renewals of the Lease by adding them to the monthly rent payments payable by
Lessee to Lessor.
Lessor's obligations pursuant to Section 7.1 and the optional
improvement which Lessee elects to have Lessor perform pursuant to Section 7.2
(A) shall be referred to herein as the "Lessor's Work."
Section 7.3. LESSOR MAINTENANCE. Lessor shall, at Lessor's own
expense, repair and maintain in good working order and condition and replace, if
the same is not susceptible of being repaired, in a good and workmanlike manner
only the roof, roof structure, exterior walls, flooring system, floor slab,
foundation, paved car and truck areas, Building systems and equipment (with the
exception of those installed by Lessee) to the extent costing in excess of
$5,000.00 per occurrence and having a useful life in excess of five (5) years
(see Section 7.5 below), load bearing walls and all other structural portions of
the Premises, except damages occasioned by the negligence or willful misconduct
of Lessee or its employees, servants, agents, contractors, assignees, licensees,
invitees or successors, or the failure of Lessee to perform commercially
reasonable maintenance required by this Lease, such repairs, maintenance and
replacements to be performed within a commercially reasonable time after receipt
of actual knowledge of the need therefor. In addition, Lessor shall be
responsible for making, at its own expense, any and all maintenance, repairs and
replacements to the Premises (including all equipment, machinery and systems
thereof) to the extent that the need therefor results from the acts, negligence,
omission or willful misconduct of Lessor or its employees, servants, agents,
contractors, assignees, licensees, invitees or successors.
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Section 7.4. LESSEE MAINTENANCE. Except for costs and obligations
otherwise set forth in this Lease, Lessee shall within a commercially reasonable
time, at its own expense, repair, replace and maintain the entire Premises in
the condition it is in on the Commencement Date and suffer no damage or injury
to it save ordinary wear and tear, damage by fire or other casualty or by the
condemnation of the Building or any part thereof, Alterations approved or
permitted under this Lease, or Lessor's failure to properly and timely maintain,
repair or replace those portions of the Building for which Lessor is responsible
under this Lease. Except as otherwise provided in this Lease, including without
limitation, Lessor's obligations under Article II, Section 7.1, above, and
Section 7.5, below, Lessee shall, at its own expense, be responsible to maintain
and repair the non-structural interior and exterior portions of the Premises,
including, but not limited to, all landscaping and yard areas, electrical
fixtures and systems, HVAC fixtures and systems, lighting fixtures and systems,
plumbing fixtures and systems, trade fixtures, paving and walkways (including
snow and ice removal), fire protection and sprinkler systems and security
devices, if any, and any and all other equipment, systems and fixtures of every
kind, nature or description. Lessee at its own expense shall cause such
regular, periodic inspections as may be reasonably required by Lessor to be
performed on the sprinkler system and any fire control system serving or located
in or on the Premises in accordance with the reasonable requirements of Lessor's
property and casualty insurance carrier and submit copies of same to Lessor
immediately upon request.
Section 7.5. SHARED MAJOR MAINTENANCE COSTS. Other provisions of the
Lease to the contrary notwithstanding, in the event any existing HVAC,
sprinkler, plumbing or electrical systems or any other Premises facilities,
systems or equipment, with the exception of those installed in the Premises by
Lessee, require any repair, replacement and/or maintenance costing in excess of
$5,000.00 per occurrence where the useful life of such repair, replacement
and/or maintenance is in excess of five (5) years, the cost thereof (in excess
of the first $5,000.00 which must be paid by Lessee) shall be initially paid by
Lessor; however, such cost together with interest at the annual rate of nine
percent (9%) shall be amortized over the expected useful life thereof and the
Lessee shall repay the monthly amortized payments occurring during the initial
term or any renewals of this Lease as additional rent. The foregoing shall not
apply in the event that such failure was caused by negligence or willful
misconduct of Lessee or its employees, servants, agents, contractors, assignees,
licensees, invitees or successors, or as a result of the failure of the Lessee
to perform commercially reasonable maintenance as required by this Lease.
Section 7.6. FAILURE TO MAKE MAINTENANCE REPAIRS AND REPLACEMENTS.
Should Lessor or Lessee fail to perform its obligations under this Lease, the
other party may, at its option, effect such maintenance, replacements or
repairs, provided that such curing party shall have given the nonperforming
party thirty (30) days prior written notice, except in the case of emergencies
(in which event only such notice as may be reasonable under the circumstances
shall be required). The nonperforming party shall reimburse the other party on
demand for the reasonable and actual amount so expended (as evidenced by
detailed invoice), plus interest at the rate of 9% per annum if reimbursement
shall not be made within thirty (30) days after demand therefor; provided,
however, if Lessee performs such maintenance, replacements or repairs which were
Lessor's obligations under this Lease and Lessor fails to reimburse Lessee
within sixty (60) days after demand therefor, Lessee may offset such amounts
owed Lessee, plus interest, from rent.
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Section 7.7. QUALITY OF MAINTENANCE, REPAIRS AND REPLACEMENTS.
Lessor and Lessee shall perform all maintenance, repairs and replacements
substantially consistent with the quality of labor and materials used originally
in constructing the Building, in accordance with all applicable Laws and in
accordance with standards comparable to other improvements similar to the
Building located in Pittsylvania County, Virginia.
Section 7.8. ABATEMENT EVENT. In the event that Lessee is prevented
from using, and does not use, the Premises or any portion thereof, as a result
of any occurrence outside the reasonable control of Lessee (an "Abatement
Event"), then rent shall be abated or reduced, as the case may be, for such time
that Lessee continues to be so prevented from using, and does not use, the
Premises or a portion thereof, in the proportion that the rentable area of the
portion of the Premises that Lessee is prevented from using, and does not use,
bears to the total rentable area of the Premises; provided, however, in the
event that Lessee is prevented from using, and does not use, a portion of the
Premises and the remaining portion of the Premises is not sufficient to allow
Lessee to effectively conduct its business therein, and if Lessee does not
conduct its business from such remaining portion, then rent shall be abated for
such time as Lessee continues to be so prevented from using, and does not use,
the entire Premises; provided, however, notwithstanding anything to the contrary
set forth in this Section 7.8, Lessee's rent shall only be abated to the extent
the occurrence is covered by rent loss insurance carried or required to be
carried in connection with this Lease.
ARTICLE VIII. TAXES
Section 8.1. PAYMENT OF REAL ESTATE TAXES. During the term of this
Lease and any renewals and extensions hereof, Lessor shall deliver all tax bills
to Lessee immediately upon receipt thereof. Following receipt of any such
bills, Lessee shall pay such general real estate taxes and assessments and other
ad valorem taxes, rates and levies assessed against the Land and/or the Building
by any governmental agency or authority and all charges specifically imposed in
lieu thereof (collectively, "real property taxes") at least ten (10) days prior
to the delinquency date of the applicable installment. Upon written request
from Lessor, Lessee shall promptly furnish Lessor with satisfactory evidence
that such taxes have been paid. Notwithstanding anything to the contrary
contained herein, Lessor shall pay at its sole cost and expense, any current or
pending special assessments. The responsibility for the payment of real property
taxes shall be prorated to the Commencement Date of this Lease. If any such
real property taxes cover any period of time after the expiration or earlier
termination of the term of this Lease, Lessee's share of real property taxes
shall be equitably prorated to cover only the period of time during the term of
the Lease and Lessor shall reimburse Lessee for any overpayment after such
proration within thirty (30) days from making request therefor. Lessee may, at
its sole option, pursue claims for reductions in real property taxes, in the
name of Lessor, if necessary, and Lessor agrees to reasonably cooperate with
Lessee in furtherance thereof. Any tax refunds and/or savings achieved by
Lessee or Lessor due to such tax challenge or otherwise shall be the sole
property of Lessee. There shall be included within the definition of "real
property taxes" with respect to any calendar year only the amount currently
payable on bonds and assessments (which shall be paid in the maximum number of
installments), including interest for such tax calendar year or the current
annual installment for such calendar year. Notwithstanding anything to the
contrary contained in this Lease, real property taxes shall not include (i) any
excess profits taxes, franchise taxes, gift taxes, capital stock taxes,
inheritance and
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succession taxes, estate taxes, federal and state income taxes, and other taxes
to the extent applicable to Lessor's general or net income (as opposed to rents
or receipts), (ii) penalties incurred as a result of Lessor's negligence,
inability or unwillingness to timely deliver tax bills to Lessee, or (iii) any
other taxes or assessments charged or levied against Lessor which are not
directly incurred as a result of the operation of the Premises.
Section 8.2. PAYMENT OF OTHER TAXES. Lessee shall be responsible to
pay and shall pay when they are due all taxes or assessments on all personal
property at any time located in or on the Premises, including, but limited to,
all machinery and tool taxes, and all other taxes assessed against Lessee.
ARTICLE IX. UTILITIES
Section 9.1. PAYMENT OF UTILITY EXPENSES. Lessee shall bear the cost
of any and all utilities used by Lessee on the Premises and shall pay the same
when due.
ARTICLE X. INSURANCE
Section 10.1. INSURANCE BY LESSEE. Lessee, at Lessee's own cost and
expense, shall carry at all times during the term of this Lease and any renewals
and extensions hereof: (a) a special perils insurance policy covering loss and
damage to the Building (specifically including earthquake coverage but excluding
flood coverage), naming Lessor and Lessor's mortgagee(s) as additional insureds,
as their interests may appear, and in the amount of at least the full
replacement cost of the Building, with a deductible not to exceed $5,000.00, and
(b) a policy of commercial general liability insurance in reference to the
Premises naming Lessor and Lessor's mortgagee(s) as additional insureds and
protecting and indemnifying Lessee, Lessor, Lessor's mortgagee(s) and their
assigns against any and all claims for injury and/or damage to persons or
property or for the loss of life or of property in an amount of not less than
$5,000,000 in respect to bodily injury or death to any one person and not less
than $5,000,000 in respect to any one occurrence or accident and not less than
$1,000,000 for property damage, and (c) rent loss insurance naming Lessor and
Lessor's mortgagee(s) as additional insureds, as their interests may appear, in
an amount sufficient to cover one year's rent, including all additional rent,
due under this Lease. Prior to the earlier of (i) Lessee's entry onto the
Premises or (ii) the Commencement Date, Lessee shall furnish Lessor with a
certificate issued by the insurer evidencing the aforesaid coverages.
Section 10.2. FORMS OF INSURANCE. All policies of insurance
described in this Article X shall be provided by good and solvent insurance
carriers licensed to do business in the Commonwealth of Virginia, may not expire
or be cancelled or reduced below the coverage required hereunder without at
least thirty (30) days' prior written notice to Lessor and Lessee and shall
contain a waiver of subrogation pursuant to Section 10.3. Any insurance coverage
described in this Article X may be effected by a blanket or umbrella policy or
policies of insurance or under so-called "all risk" or "multi-peril" insurance
policies, provided that the Premises and Lessee's liability under this Lease
shall be at least the equivalent of separate policies in the amounts herein
required. No less than annually, Lessee shall cause to be issued to Lessor a
certificate of insurance reasonably acceptable to Lessor and evidencing
compliance with the requirements of this Article X.
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Section 10.3. WAIVER OF SUBROGATION. Lessor and Lessee agree that,
in the event the demised Premises, or any part thereof, are damaged or destroyed
by fire or other casualty that is covered by insurance of the Lessee, or the
sublessees, assignees or transferees of Lessee, the rights of recovery of any
party against the other or against the employees, agents or licensees of any
part, with respect to such damage or destruction and with respect to any loss
resulting therefrom, including the interruption of the business of any of the
parties, are hereby waived to the extent of the coverage of said insurance or
any other insurance carried by either party. Lessor and Lessee further agree
that all policies of fire, extended coverage, business interruption and other
insurance covering the demised Premises or the contents therein shall provide
that the insurance shall not be impaired if the insureds have waived their right
of recovery from any person or persons prior to the date and time of loss or
damage. Any additional premiums for such clause or endorsement shall be paid by
the Lessee.
ARTICLE XI. DAMAGE BY FIRE OR OTHER CASUALTY
Section 11.1. DEFINITIONS. "PREMISES PARTIAL DAMAGE" shall mean
damage or destruction to the improvements on the Premises which can reasonably
be repaired in six (6) months or less from the date of the damage or
destruction. "PREMISES TOTAL DESTRUCTION" shall mean damage or destruction to
the Premises which cannot reasonably be repaired in six (6) months or less from
the date of the damage or destruction. Lessor and Lessee shall have a mutually
acceptable contractor notify Lessor and Lessee in writing within thirty (30)
days from the date of the damage or destruction as to whether or not the damage
is Partial or Total. "INSURED LOSS" shall mean damage or destruction to
improvements on the Premises which was caused by an event required to be covered
by the insurance described in Article X of this Lease, irrespective of any
deductible amounts or coverage limits involved. "REPLACEMENT COST" shall mean
the cost to repair or rebuild the Building at the time of the occurrence to its
condition existing immediately prior thereto, including demolition, debris
removal and upgrading required by the operation of applicable Laws, and without
deduction for depreciation.
Section 11.2. PARTIAL DAMAGE - INSURED LOSS. If a Premises Partial
Damage that is an Insured Loss occurs, then Lessor shall, at Lessor's expense,
repair such damage as soon as reasonably possible and this Lease shall continue
in full force and effect. Premises Partial Damage due to flood or earthquake
shall be subject to Section 11.3, notwithstanding that there may be some
insurance coverage, but the net proceeds of any such insurance maintained by
Lessor and/or Lessee shall be made available for the repairs if made by either
party.
Section 11.3. PARTIAL DAMAGE - UNINSURED LOSS. If a Premises Partial
Damage that is not an Insured Loss occurs, and the Replacement Cost exceeds
$250,000.00, Lessor may either: (i) repair such damage as soon as reasonably
possible at Lessor's expense, in which event this Lease shall continue in full
force and effect, or (ii) terminate this Lease by giving written notice to
Lessee within thirty (30) days after receipt by Lessor of knowledge of the
occurrence of such damage. Such termination shall be effective one hundred
twenty (120) days following the date of such notice. In the event Lessor elects
to terminate this Lease, Lessee shall have the right within ten (10) days after
receipt of the termination notice to give written notice to Lessor of Lessee's
commitment to pay for the repair of such damage in excess of $250,000.00 without
reimbursement from Lessor. Lessee shall provide Lessor with said funds or
satisfactory assurance thereof within thirty (30) days after making such
commitment. In such event this
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Lease shall continue in full force and effect, and Lessor shall proceed to make
such repairs as soon as reasonably possible after the required funds or
assurances are available. If Lessee does not make the required commitment, this
Lease shall terminate as of the date specified in the termination notice. If
the Premises Partial Damage that is not an Insured Loss occurs and the
Replacement Cost is less than or equal to $250,000.00 (as reasonably determined
by a mutually agreeable contractor), Lessor shall repair such damage at Lessor's
cost as soon as reasonably possible and this Lease shall continue in full force
and effect.
Section 11.4. TOTAL DESTRUCTION. Notwithstanding any other provision
hereof, if a Premises Total Destruction occurs, this Lease shall terminate one
hundred fifty (150) days following such Destruction.
Section 11.5. DAMAGE NEAR END OF TERM. If at any time during the last
twelve (12) months of this Lease there is damage for which the cost to repair
exceeds three (3) months annual rent, whether or not an Insured Loss, Lessor or
Lessee may terminate this Lease effective ninety (90) days following the date of
occurrence of such damage by giving a written termination notice to the other
within thirty (30) days after the date of occurrence of such damage.
Notwithstanding the foregoing, if Lessee at that time has an exercisable option
to extend this Lease or to purchase the Premises, then Lessee may preserve this
Lease by exercising either such option. If Lessee fails to exercise such
option, then this Lease shall terminate on the date specified in the termination
notice and Lessee's option shall be extinguished.
Section 11.6. ABATEMENT OF RENT; LESSEE'S REMEDIES.
(a) ABATEMENT. In the event of Premises Partial Damage or
Premises Total Destruction, the rent payable by Lessee for the period required
for the repair, remediation or restoration of such damage, plus a reasonable
period of time for Lessee to install its systems, furniture, fixtures and
equipment in the Building, shall be abated in proportion to the degree to which
Lessee's use of the Premises is impaired, to the extent that such rent is
recoverable under the rent loss insurance required pursuant to Section 10.1 or
otherwise carried by Lessor. All other obligations of Lessee hereunder shall be
performed by Lessee (to the extent feasible in view of the situation).
(b) REMEDIES. If Lessor shall be obligated to repair or
restore the Premises and does not commence, in a substantial and meaningful way,
such repair or restoration within sixty (60) days after such obligation shall
accrue, Lessee may, at any time prior to the commencement of such repair or
restoration, (i) terminate this Lease by delivering written notice to Lessor or
(ii) complete such repairs and restoration itself (in which event Lessor shall
reimburse Lessee for any amounts incurred by Lessee in completing such repairs
and restoration within thirty (30) days of Lessee's demand therefor in
accordance with Section 7.6 above, except to the extent such costs are to be
borne by Lessee pursuant to this Article XI, and shall assign any insurance
proceeds to Lessee for such purpose). "Commence" shall mean the beginning of
the actual work on the Premises.
Section 11.7. OUTSIDE DATE FOR COMPLETION. Notwithstanding the terms
of this Article XI, following any event of damage or destruction and in the
event Lessor is obligated or elects to repair the damage or destruction, if the
repairs are not substantially completed (for
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occupancy) within such one hundred eighty (180) days from the date of damage or
destruction, Lessee shall have the right to terminate this Lease until such time
as the repairs are complete, by notice to Lessor (the "Damage Termination
Notice"), effective as of a date set forth in the Damage Termination Notice (the
"Damage Termination Date"). Notwithstanding anything to the contrary contained
in this Lease, in the event of any damage or destruction to Lessee's trade
fixtures (including all racking and related fixtures), equipment or Lessee's
personal property, all insurance proceeds related thereto shall be paid to
Lessee and Lessee may use such proceeds as Lessee sees fit, in Lessee's sole
discretion, and Lessee has no obligation to rebuild or replace any trade
fixtures, equipment or Lessee's personal property in the Premises.
ARTICLE XII. ASSIGNMENT; SUBLETTING
Section 12.1. ASSIGNMENT AND SUBLETTING. Subject to Section 12.2
below, Lessee shall not assign or sublease the Premises or any portion thereof
without the prior written consent of Lessor, which consent shall not be
unreasonably withheld or conditioned and shall be granted or denied within ten
(10) business days. Lessee acknowledges that Lessor has obtained or may obtain
financing which may require assignment of this Lease, from time to time, as
additional security, and Lessee hereby expressly consents to such assignments
and shall execute any commercially reasonable document required by Lessor in
connection therewith.
Section 12.2. AFFILIATES. Notwithstanding anything to the contrary
contained in this Article XII, neither (i) an assignment or subletting of all or
a portion of the Premises (A) to an entity which is controlled by, controls or
is under common control with Lessee (or a valid assignee of this Lease), (B) to
an entity which is funded by Lessee in connection with Lessee's business in the
"e-commerce," or "retailing" industry or (C) to a purchaser of all or
substantially all of the assets of Lessee or of an entity which is controlled
by, controls or is under common control with Lessee (or a valid assignee of this
Lease), (ii) a transfer, by operation of law or otherwise, in connection with
the merger, consolidation or other reorganization of Lessee or of an entity
which is controlled by, controls or is under common control with Lessee (or a
valid assignee of this Lease), nor (iii) the temporary use or occupancy of
portions of the Premises by a party or parties in connection with the
transaction of business with Lessee or with an entity which is controlled by,
controls or is under common control with Lessee (or with a valid assignee of
this Lease), shall be subject to the Lessor's consent or the payment of a
Transfer Premium (as defined below) (such entities, purchasers, and parties
shall be referred to herein collectively or individually as an "Affiliate");
provided, however, no sublease or assignment to an Affiliate shall release the
Lessee named herein from any liability under this Lease. Lessee shall
immediately notify Lessor of any such assignment, purchase, transfer, sublease,
action, or use. For purposes of this Lease, "control" shall mean the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a person or entity, or majority ownership of any
sort, whether through the ownership of voting securities, by contract or
otherwise.
Section 12.3. TRANSFER PREMIUM. If Lessor consents to a sublease or
assignment, as a condition thereto which the parties hereby agree is reasonable,
Lessee shall pay to Lessor fifty percent (50%) of any "Transfer Premium," as
that term is defined below, received by Lessee from such sublessee or assignee.
"Transfer Premium" shall mean all rent, additional rent and other rental monies
payable by such sublessee or assignee in excess of the rent payable by Lessee
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under this Lease, on a per square foot basis if less than all of the Premises is
transferred, after deducting the reasonable expenses incurred by Lessee for (i)
any changes, alterations and improvements to the Premises or improvement or
decorating allowances or other "out-of-pocket" monetary concessions, in
connection with the sublease or assignment, (ii) any brokerage commissions in
connection with the sublease or assignment, (iii) reasonable legal fees incurred
in connection with the sublease or assignment, and (iv) the unamortized costs of
tenant improvements installed by Lessee (which shall be equitably prorated if
the subject space does not consist of the entire Premises) and any Alterations
in the subject space (collectively, the "Subleasing Costs"). Lessee shall
provide Lessor with a calculation of the Transfer Premium, together with all
applicable back-up reasonably required by Lessor. Notwithstanding the
foregoing, Lessee may convey, in connection with the sublease or assignment, but
pursuant to a separate legally binding agreement, the Lessee's assets, business
and trade fixtures, inventory, equipment or furniture or other Lessee's property
to the extent paid for by Lessee and Lessee shall be entitled to retain any and
all consideration received in connection with such conveyance.
Section 12.4. SUBORDINATION. Lessee's rights under this Lease are
subject and subordinate to the terms and conditions of Lessor's deed of trust as
executed with Lessor's lending institution and is further subject to the
security interest of that lending institution; provided, however,
notwithstanding any provisions of this Lease to the contrary, as a condition
precedent to Lessee's obligation to be bound by the provisions of this Section
12.4, Lessor shall deliver to Lessee with regard to any and all present and
future mortgages, ground leases, deeds of trust, liens or other encumbrances
against the Premises or any part thereof, non-disturbance agreements in form and
substance satisfactory to Lessee. If said non-disturbance agreements are not
delivered to Lessee on or before sixty (60) days after the date this Lease has
been executed by the parties with respect to all existing mortgages, ground
leases, deeds of trust, liens or other encumbrances, then one-half (1/2) of
Lessee's payment of annual rent shall be abated until Lessee receives all such
non-disturbance agreements and Lessee shall have the right to terminate this
Lease without any liability or obligation whatsoever. Upon Lessor's request,
subject to the provisions of this Section 12.4, Lessee shall agree to
subordinate this Lease in writing to any mortgage or trust deeds which may
hereafter be placed on the demised Premises and to any and all advances to be
made thereunder, and to the interest thereon, and all renewals, replacements and
extensions thereof, and shall execute any and all further instruments necessary
to that purpose and in form and substance satisfactory to Lessee, provided such
mortgagee named in such mortgage or trust deeds shall agree in writing to
recognize this Lease, all of the terms and provisions hereof (including, but not
limited to, all extensions and purchase options) and all of Lessee's rights and
remedies under this Lease (including, but not limited to, Lessee's rights of
self-help and/or setoff and other remedies for any default, obligation, act or
omission of Lessor or any prior lessor and Lessee's rights to terminate this
Lease, all as provided in this Lease, all of which rights may not be limited or
impaired in any manner) in the event of foreclosure or deed in lieu thereof if
Lessee is not in default hereunder following receipt of written notice of such
default and the expiration of any applicable cure period.
Section 12.5. PROHIBITED TRANSFERS. Lessor shall not sell, assign or
transfer, directly or indirectly, any right, title or interest in or to the
Premises or Additional Land to Toys R Us or Xxxxxx.xxx or any entity which is
controlled by, controls or is under common control with either of them, or any
successor to or assignee of any of the foregoing.
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Section 12.6. NO SECURITY INTEREST. Lessor shall not possess any
interest in and to Lessee's personal property, furniture (whether bolted or
otherwise), furnishings, inventory, business machines and equipment, trade and
business fixtures, including without limitation, any racks or similar trade
fixtures whether or not bolted or affixed to the Premises, signs, communications
equipment, moveable partitions, security equipment, networking equipment and
viewing screens, telecommunications equipment, the uninterrupted power supply
machinery and equipment and other articles of personal property owned by Lessee
or installed or placed by Lessee at its expense in the Premises (collectively,
"Lessee's Property") and Lessor hereby waives any such rights provided by law or
in equity. Notwithstanding any provision contained herein to the contrary,
Lessor hereby waives any right of distraint and any statutory or other lien
which Lessor may have upon Lessee's trade fixtures and equipment or other
personal property in the demised Premises, including, without limitation, the
rights granted to landlords pursuant to Sections 55-227, 55-230 and 55-233 of
the Code of Virginia. All Alterations and all improvements, walls, lighting,
sprinklers and electrical wiring which may be installed or placed in or about
the Premises, but excluding Lessee's Property installed in, on or about the
Premises, from time to time, shall be and become the property of Lessor. Lessee
may remove any of Lessee's Property at any time, provided, in each instance,
Lessee repairs any damage to the Premises and Building caused by such removal.
Lessee shall have no obligation to remove any Alteration upon the expiration or
early termination of the Lease term, but Lessee shall broom clean the Premises
concurrently with Lessee's vacation thereof. Lessee shall have the right, but
not the obligation, to finance the purchase of and grant security interests in
and otherwise encumber Lessee's Property, and Lessor shall, promptly upon
request, execute a waiver and consent form required by any lender of Lessee
granting such lender the right, upon reasonable notice, to enter the Premises to
take possession of and remove Lessee's Property notwithstanding any alleged
breach by Lessee of the terms of this Lease.
ARTICLE XIII. NO LIABILITY ON LESSOR'S PART
Section 13.1. LESSOR LIABILITY. Except as specified in this Lease,
Lessor and its agents shall not be liable for (i) any damage to property of
Lessee or of others entrusted to employees of the Lessee, nor for the loss of or
damage to any property of Lessee by theft or otherwise unless caused by the
willful act or negligence of Lessor, its agents, contractors, servants or
employees; (ii) any injury or damage to persons or property resulting from fire,
explosion, system failure, falling plaster, steam, gas, electricity, water,
rain, snow or leaks from any part of the Building or from the pipes, appliances,
or plumbing works or from the street, or subsurface or from any other place or
by dampness or any other cause of whatsoever nature unless caused by the willful
act or negligence of Lessor, its agents, contractors, servants or employees; or
(iii) any damage caused by any other tenants or adjoined property owners or
caused by operations in construction of any public or quasi-public work.
Notwithstanding any provision herein to the contrary, Lessor shall be liable for
such damages and injuries to Lessee or its employees, licensees, agents,
tenants, invitees, successors or permitted assigns and their respective
properties from failure of Lessor to maintain, repair or replace, with
commercially reasonable promptness after receipt of actual knowledge thereof,
those items which Lessor is required to maintain, repair or replace. Upon
receiving actual knowledge that maintenance, repairs or replacements are
required, Lessor shall have a commercially reasonable time to repair or replace
the same and it shall not be liable for any damages sustained by Lessee during
such commercially reasonable repair or replacement period. If Lessor shall fail
to perform such
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maintenance, repair or replacement within a commercially reasonable time after
receipt of actual knowledge thereof, then Lessor shall be responsible for such
damages and injuries sustained by Lessee or its employees, licensees, agents,
tenants, invitees, successors or permitted assigns and their respective
properties upon Lessor's failure to maintain, repair and replace the Premises or
required portions thereof. For purposes of this Section 13.1, "commercially
reasonable" shall mean that Lessor must commence performance of the maintenance,
repair and/or replacement within thirty (30) days (less in the event of an
emergency) and diligently prosecute the same to completion. In no event,
however, shall Lessor be held responsible for any indirect or consequential
damages to Lessee, such as loss of profits, customers, goodwill, etc.
ARTICLE XIV. CONDEMNATION
Section 14.1. CONDEMNATION OF ALL OR A MATERIAL PART OF THE PREMISES.
In the event that all or a material part of the Building or the Land shall be
condemned or taken in any manner or conveyed in lieu thereof (collectively, a
"taking) for any public or quasi-public use after the Commencement Date, this
Lease shall cease and terminate as of the date of the vesting of title, and all
rent and other sums payable by Lessee under this Lease shall be apportioned and
paid through and including the date of the taking. A material part of the
Building or the Land shall be deemed to have been taken if the Building and/or
the Land which remains after the taking shall be unsuitable for the continued
feasible and economic operation of the Premises by Lessee for the same purposes
as used by Lessee immediately prior to such taking as reasonably determined by
Lessee. In the event of any taking prior to the Commencement Date, Lessee shall
have the right to terminate this Lease without any penalty or liability
whatsoever or may agree to continue this Lease in full force and effect, in
which event the provisions of the first sentence of Section 14.2 of this Lease
shall apply.
Section 14.2. CONDEMNATION OF LESS THAN A MATERIAL PART OF THE
PREMISES. In the event of a taking of less than a material part of the Premises
after the Commencement Date, all rent and other charges shall be reduced fairly
and equitably in accordance with the portion taken, effective as of the date of
taking, and Lessor shall restore all parking and driveway areas so taken and
shall make all necessary restorations to the Premises at Lessor's cost and
expense such that the portions of the Premises not taken shall constitute a
complete architectural unit and shall serve the same function as immediately
prior to such taking. If less than a material taking shall occur within the
last year of the term of this Lease, Lessee may terminate this Lease without
penalty or liability.
Section 14.3. LESSEE'S RIGHTS UPON CONDEMNATION. For any taking,
whether or not this Lease is terminated, Lessee shall be entitled to
compensation from the condemning authority for its unamortized leasehold
improvements, relocation, loss of business, goodwill and storage expenses and
any other items to which Lessee is entitled under applicable law, including
without limitation, fifty percent (50%) of the leasehold bonus value.
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ARTICLE XV. DEFAULTS; REMEDIES
Section 15.1. DEFAULT AND REMEDIES.
A) (i) If Lessee defaults (a) in fulfilling any of the
covenants of this Lease, requiring the payment of rent, additional rent or other
payments due under this Lease, or (b) in strictly complying with any of the
other terms, conditions or provisions of this Lease, or (ii) if Lessee makes a
general assignment for the benefit of creditors, is adjudged a bankrupt or files
a petition for reorganization or arrangement, or if there has been an attachment
or other judicial seizure of substantially all of Lessee's assets, then, in the
case of nonpayment of rent or other charges which continues for five (5) days
after Lessee receives from Lessor written notice specifying such default, or if
Lessee defaults in any one or more of the events referred to in (b) or (ii)
above, then upon Lessee's receipt from Lessor of a written notice specifying the
nature of said default and upon Lessee's failure to cure such default within
thirty (30) days after receipt of Lessor's notice thereof, if required (or if
said default or omission complained of shall be of such a nature that the same
cannot be completely cured or remedied within said thirty (30) day period, and
if Lessee shall not have diligently commenced curing such default with such
thirty (30) day period, and shall not thereafter with reasonable diligence and
in good faith proceed to remedy or cure such default within a commercially
reasonable amount of time), then Lessor may serve a written five (5) business
day notice of cancellation of this Lease upon Lessee and upon the expiration of
said five (5) business days, this Lease and the term hereunder shall end and
expire as fully and completely as if the date of expiration of such five (5)
business day period were the day herein definitely fixed for the end and
expiration of this Lease and the term thereof and Lessee shall then quit and
surrender the demised Premises to Lessor but Lessee shall remain liable as
hereinafter provided.
B) Upon any default by Lessee which is not cured within any
applicable cure period following receipt of notice thereof, if required, then
and upon a termination of this Lease as provided in Section 15.1(A) above,
Lessor may without further notice re-enter the demised Premises and dispossess
Lessee with process of law by summary proceedings or otherwise, and the legal
representatives of Lessee or other occupant of the demised Premises and remove
their effects and hold the Premises as if this Lease had not been made, but
Lessee shall remain liable hereunder as hereinafter provided and Lessee hereby
waives the service of notice of intention to re-enter or institute legal
proceedings to that end.
Section 15.2. RENT DEFICIENCY. In case of any termination of this
Lease, (a) the rent and additional rent shall become due thereupon and be paid
up to the time of such termination; and (b) all damages, liabilities, costs and
expenses (including, but not limited to, reasonable attorneys' fees and costs),
together with interest thereon at the prime rate charged by the largest state
chartered bank in Virginia plus two percent (2%) per annum but not to exceed the
maximum rate allowed by law ("Interest Rate") until paid, directly incurred by
Lessor as a result of such default less that which Lessee proves could
reasonably be avoided. In no event under this Lease, however, shall Lessee be
liable for any indirect or consequential damages to Lessor, such as loss of
profits, customers, goodwill, etc. Lessor shall be under a duty to exercise
diligence in an effort to mitigate its damages. In the event of a breach by
Lessee of any of the covenants or provisions hereof and Lessee's failure to
remedy the same within any applicable cure period following receipt of written
notice, Lessor shall have the right of injunction and the
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right to invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in this
Lease of any particular remedy shall not preclude Lessor from any other remedy,
in law or in equity, the foregoing remedies and rights of Lessor being
cumulative. Lessee hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Lessee being
evicted or dispossessed for any cause, or in the event of Lessor obtaining
possession of the demised Premises, by reason of the violation by Lessee of any
of the covenants and conditions of this Lease or otherwise.
Section 15.3. DEFAULT BY LESSOR. Should Lessor default in any of
Lessor's obligations under this Lease after thirty (30) days written notice from
Lessee specifying the nature of such default, including, but not limited to,
Lessor's duty to pay debt service payments or in its obligation to repair,
maintain and/or replace portions of the Premises, upon Lessor's failure to cure
such default within thirty (30) days after receipt of Lessee's notice thereof
(or if said default or omission complained of shall be of such a nature that the
same cannot be completely cured or remedied within said thirty (30) day period,
and if Lessee shall not have diligently commenced curing such default with such
thirty (30) day period, and shall not thereafter with reasonable diligence and
in good faith proceed to remedy or cure such default within a commercially
reasonable amount of time), Lessee shall have and enjoy (but shall have no
obligation), in addition to any other rights and remedies under this Lease or
under common law, in equity or by statute (all of which shall be cumulative and
no action by Lessee shall be deemed an election of remedies or a cure of
Lessor's default): (i) the rights to divert and offset from rent and other
payments hereunder due to Lessor, as provided in this Lease, or (ii) the right
to terminate this Lease and shall be entitled to receive from Lessor all
damages, liabilities, costs and expenses (including, but not limited to,
reasonable attorneys' fees and costs), together with interest thereon at the
Interest Rate until paid, directly incurred by Lessee as a result of such
default less that which Lessor proves could reasonably be avoided. In no event,
however, shall Lessor be liable for any indirect or consequential damages to
Lessee, such as loss of profits, customers, goodwill, etc. Lessee shall be
under a duty to exercise diligence in any effort to mitigate its damages.
Mention in this Lease of any particular remedy shall not preclude Lessee from
any other remedy allowed at law or in equity, the foregoing remedies and rights
of Lessee being cumulative.
ARTICLE XVI. COVENANT OF QUIET ENJOYMENT
Section 16.1. QUIET ENJOYMENT. Lessor warrants and represents that
it has full authority to execute this Lease for the term aforesaid and covenants
that upon Lessee's paying the rent and performing the covenants to be observed
and performed on Lessee's part prior to the expiration of any applicable cure
period, Lessee may peaceably and quietly have, hold and enjoy the demised
premises, subject, nevertheless, to the other terms and conditions of this
Lease.
ARTICLE XVII. NOTICES
Section 17.1. NOTICE TO LESSOR. Any notice required or permitted to
be given to Lessor 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 Lessor, c/o Xxxxxxx X.
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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. Lessor 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 Lessee.
Section 17.2. NOTICE TO LESSEE. Any notice required or permitted to
be given to Lessee 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 Inc. c/o 0000 X.X. Xxxxxxx 00, Xxxxxx, Xxxxxxxx
00000, facsimile no. [TO BE PROVIDED AFTER OCCUPANCY] , Attention: Property
Manager and 0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx, facsimile
no.(000) 000-0000, Attn: General Counsel. Lessee 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 Lessor.
Section 17.3. DATE OF NOTICE. Any notice sent by registered or
certified mail, return receipt requested, shall be deemed given on the date of
delivery shown on the receipt card. Notices delivered by Federal Express or
overnight courier that guarantee next day delivery shall be deemed given
twenty-four (24) hours after delivery of the same to Federal Express or courier.
Notices transmitted by facsimile transmission or similar means shall be deemed
delivered upon telephone confirmation of receipt, provided a copy is also
delivered via delivery or mail. If notice is received on a Saturday, Sunday or
legal holiday, it shall be deemed received on the next business day.
ARTICLE XVIII. ALTERATIONS
Section 18.1. ALTERATIONS; IMPROVEMENTS. Lessee may make any
improvements, alterations, additions or changes to the Premises (collectively,
the "Alterations") without first procuring the prior written consent of Lessor
in the event such Alterations do not alter the Building's exterior appearance,
or materially affect the Building systems and equipment or the Building
structure or add or modify any new systems or equipment to the Building
(collectively, the "Adverse Effects"), provided Lessee shall provide Lessor
prior notice thereof. Lessee shall obtain the prior written consent of Lessor
to any Alterations having Adverse Effects, which consent shall not be
unreasonably withheld or conditioned and shall be approved or denied within ten
(10) days of receipt of Lessee's request for approval. Any request shall be
deemed approved if such notice of consent or denial is not received by Lessee
within such ten (10) day period. Lessee's request for Lessor's approval shall
be in writing describing the proposed alterations in reasonable detail and
Lessor's response to Lessee shall be in writing. All such alterations and
improvements to the Premises made by Lessee shall become the property of Lessor
upon termination of occupancy.
ARTICLE XIX. ENVIRONMENTAL MATTERS
Section 19.1. HAZARDOUS MATERIALS. Lessee shall not cause or permit
any Hazardous Material to be brought on or kept or used in or about the Premises
by Lessee, its
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agents, employees, contractors or invitees at any time unless (a) Lessee shall
have first obtained Lessor's consent thereto, which consent Lessor shall not
unreasonably withhold, condition or delay, and (b) the Hazardous Material will
be used, kept, stored and disposed of in a manner that complies with all Laws
regulating any such Hazardous Materials so brought on or used or kept in or
about the Premises. Notwithstanding the foregoing, Lessee may use any ordinary
and customary materials reasonably required to be used in the normal course of
Lessee's permitted use hereunder so long as such use is in compliance with Laws
and does not expose the Premises to any meaningful risk of contamination or
damage.
If Lessee breaches the obligation stated above in this Section
19.1 and the presence of Hazardous Materials brought by Lessee or its agents or
invitees on or about the Premises results in contamination of the Premises or
surrounding areas, Lessee shall indemnify, defend, protect and hold Lessor
completely harmless from any and all claims, judgments, damages, penalties,
fines, costs, liabilities or losses (including, without limitation, diminution
in value of the Premises or the Building thereon, damages for the loss or
restriction on the use of rentable or usable space or of any immunity of the
Premises, damages arising from any adverse impact on marketing of space in the
Premises, and reasonable sums paid in settlement of claims, attorneys' fees,
consultant fees, and expert fees) that arise during or after the term of this
Lease as a result of that contamination. This indemnification of Lessor by
Lessee includes, without limitation, costs incurred in connection with any
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 on, under or about the Premises caused by Lessee's action. Without
limiting the foregoing, if the presence of any Hazardous Material on or about
the Premises caused by Lessee results in the contamination of the Premises or
surrounding area or causes the Premises or surrounding area to be in violation
of any Laws, Lessee shall promptly take all actions at its sole expense as are
reasonably necessary to return the Premises and surrounding area to
substantially the condition existing before the introduction of any such
Hazardous Material, provided, that Lessor's approval of those actions shall
first be obtained, which approval shall not be unreasonably withheld,
conditioned or delayed so long as those actions would not potentially have any
material adverse long-term or short-term effect on the Premises or surrounding
area.
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.
Lessor and Lessee shall promptly notify the other of and shall
promptly provide the other with true, correct, complete and legible copies of
all of the following environmental items relating to the leased premises that
may be filed or prepared by or on behalf of, or delivered to or served on,
Lessee or Lessee or their respective agents: reports filed
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pursuant to any self-reporting requirements, reports filed pursuant to any
applicable Laws or this Lease, all permit applications, permits, monitoring
reports, workplace exposure, and community exposure warnings or notices, and all
other reports, disclosures, plans, manifests or documents (even those that may
be characterized as confidential) relating to water discharges, air pollution,
waste generation or disposal, underground storage tanks or Hazardous Materials.
The provisions of this Section, including, without limitation,
the indemnification provisions set forth herein, shall survive and not be merged
into any termination of this Lease.
ARTICLE XX. OPTION TO PURCHASE
Section 20.1. OPTION TO PURCHASE LAND AND IMPROVEMENTS. Provided
that Lessee is not then in monetary default under Section 15.1 beyond all
applicable notice and cure periods set forth herein, at any time during the
initial term hereof, Lessor hereby grants to Lessee the option to purchase all
of Lessor's right, title and interest in and to the Land and Building from
Lessor for the fixed price of Ten Million Five Hundred Thousand Dollars (U.S.
$10,500,000.00), plus the unpaid balance of amortized expenditures of Lessor for
additional improvements pursuant to Section 7.2 above. If Lessee desires to
exercise the option to purchase, Lessee shall notify Lessor in writing not less
than three (3) months prior to the expiration of the initial term hereof. In
the event the Lessee exercises the option to purchase the Premises, then Lessee
shall tender the entire purchase price in cash or other immediately available
funds to Lessor within sixty (60) days thereafter, subject to the terms of this
Article XX. Lessee shall have the right to assign the foregoing purchase option
to any person or entity, in Lessee's sole discretion, provided that notice of
such assignment shall be promptly given to Lessor.
Section 20.2. RIGHT TO PURCHASE ADDITIONAL LAND. Provided that
Lessee is not then in monetary default under Section 15.1 beyond all applicable
notice and cure periods set forth herein, during the first two (2) years of the
term of the Lease following the Commencement Date ("Option Period"), Lessor
hereby grants to Lessee the option to purchase all or any portion of Lessor's
right, title and interest in and to all of the land adjoining the Premises as
depicted on Exhibit "A" and labeled "Additional Land" ("Additional Land"). In
the event Lessee elects to purchase any portion of the Additional Land, Lessee
must elect to purchase at least 100 acres of the Additional Land; provided,
however, if Lessee elects to purchase any portion of the Additional Land
(subject to the 100 acre minimum), Lessor may elect to cause Lessee to purchase
additional acres, the amount and location of which are at Lessor's discretion,
up to the entire parcel of Additional Land. The purchase price to be paid by
Lessee per acre purchased shall be an amount equal to (A) the product of (i) the
number of acres which Lessee elected to purchase and (ii) $10,000.00 divided by
(B) the total number of acres being purchased by Lessee (including the acres
which Lessor requires Lessee to purchase). If Lessee desires to exercise such
option, Lessee shall so notify Lessor in writing not less than one (1) month
prior to the expiration of the Option Period. In the event the Lessee exercises
the option to purchase all of the Additional Land, Lessee shall tender the
entire purchase price in cash or other immediately available funds within sixty
(60) days thereafter, subject to the terms of this Article XX. Lessee shall have
the right to assign the foregoing purchase option to any person or entity, in
Lessee's sole discretion, provided that notice of such assignment shall be
promptly given to Lessor.
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Section 20.3. CLOSING. Within sixty (60) calendar days after the
exercise of any purchase option, Closing shall occur at the offices of Lessee's
attorney in Pittsylvania County, Virginia, or at such other place to which the
parties may agree (the "Closing Date"). The parties shall enter into a
commercially reasonable purchase agreement within thirty (30) days following the
exercise of any purchase option, which agreement shall contain commercially
reasonable terms based on normal custom in Pittsylvania County, Virginia,
including without limitation, (i) proration of closing costs, fees and taxes,
(ii) representations and warranties (including without limitation, a restatement
of the representations and warranties contained in Article II of this Lease
modified as necessary to effect a purchase rather than a lease), which
representations and warranties shall survive the closing of such purchases,
(iii) Lessor's conveyance of good and marketable title to Lessee subject only to
"Permitted Exceptions," as such term is defined below and (iv) an
indemnification provision whereby Lessor indemnifies Lessee with respect to any
breach of the representations and warranties included herein or in the purchase
agreement.
The transaction shall be consummated in the following manner:
(i) Lessor shall deposit with the closing attorney a duly
executed and acknowledged General Warranty Deed conveying the Premises
and/or Additional Land, as applicable, to Lessee in the form attached
hereto as Exhibit "C." Lessee shall be responsible for obtaining and
paying for such additional surveys or examination of title as Lessee
may deem necessary.
(ii) Lessee shall deposit with the closing attorney the
portion of the purchase price to be paid pursuant to Sections 20.1
and/or 20.2, above, in cash.
(iii) At Closing, the executed deed shall be delivered to
Lessee and the cash deposited by Lessee shall be delivered to Lessor
after deduction of such recording costs of the deed as are customary
for grantors or sellers to pay under Virginia law, brokerage
commissions and Lessor's share of prorations. Closing shall be deemed
to have occurred when the General Warranty Deed is recorded. The
closing shall not occur unless and until the title company is in a
position to issue the title insurance policy described in Section 20.4
below, showing title to the Premises and/or Additional Land, as
applicable, vested of record in Lessee (or its assignee or nominee),
subject only to Permitted Exceptions. Lessor, at its sole cost and
expense, shall cause any parcels being purchased by Lessee hereunder
to be separate legal parcels properly subdivided under applicable
laws.
(iv) Real estate taxes shall be prorated between the parties
as of the Closing Date.
Section 20.4. TITLE. In the event Lessee, or its assignee, exercises
the right to purchase the Premises and/or the Additional Land, fee simple
marketable title thereto shall be conveyed to Lessee or its assignee or nominee
subject only to then current real estate taxes and assessments constituting
liens not then due or payable, the exceptions attached hereto as Exhibit "D"
and/or matters disclosed on the Survey, including any easements, detention areas
and the proposed sewer easement, but specifically excluding any monetary liens
or encumbrances
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("Permitted Exceptions"). Lessee's leasehold title policy issued in connection
with this Lease shall insure that the purchase options contained herein are
valid options vested in Lessee and that as of the closing, fee simple marketable
title to the Premises and/or Additional Land shall be vested of record in Lessee
or its assignee or nominee, subject only to Permitted Exceptions.
Section 20.5. CONDITION OF PREMISES AND ADDITIONAL LAND. Until the
expiration of Lessee's purchase options set forth in Sections 20.1 and 20.2, as
applicable, Lessor shall take no actions which affect the Premises or the
Additional Land, as applicable, without the prior written approval of Lessee,
which shall not be unreasonably withheld, including without limitation, Lessor
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 Premises
and/or Additional Land to any party (except that Lessor may transfer or agree to
transfer the Premises and/or Additional Land subject to this Lease and the
options granted herein) or take any other action which could affect Lessee's
purchase, use or development of the Premises and Additional Land.
Section 20.6. RIGHT TO ENTER. Lessor shall deliver all written
information with respect to the Premises and/or Additional Land, as applicable,
which is in Lessor's possession within ten (10) days following Lessee's exercise
of any purchase option in order to assist Lessee in conducting its due diligence
on the Premises and/or Additional Land. Lessee and its designated agents and
independent contractors shall have forty-five (45) days from the exercise of any
purchase option to enter upon the Premises and/or Additional Land, as
applicable, to conduct any and all due diligence with respect to the Premises
and/or Additional Land, as applicable, as Lessee desires in connection with
Lessee's planned development thereof, in its sole discretion, including without
limitation, Phase II environmental inspections, engineering studies and borings
and soils testing. If Lessee does not cancel its exercise of the applicable
purchase options within forty-five (45) days from the exercise thereof, Lessee
shall have committed, subject to the terms of this Article XX, to purchase the
Premises and/or Additional Land, as applicable, by that date which is sixty (60)
days from the date of Lessee's exercise. Lessee agrees to repair any damage it
or its agents or independent contractors cause to the Premises or Additional
Land and further agrees to indemnify and hold Lessor harmless from any and all
costs, expenses, losses, attorneys' fees, and liabilities, including but not
limited to, claims of mechanics' liens, incurred or sustained by Lessor as a
result of any acts of Lessee, its agents or independent contractors pursuant to
this Section 20.6. Lessee further agrees that in the event Lessee fails to
exercise its purchase options, copies of any and all soils test, engineering
studies, environmental reports, and any other documentation developed, prepared
or submitted for the purpose of obtaining rezoning or development of the
Premises or Additional Land tentative subdivision maps, tentative parcel maps or
other development approvals, shall be delivered to Lessor at no expense to
Lessor. Lessee further agrees to submit all development proposals to Lessor and
obtain Lessor's written approval of such proposals prior to presenting same to
any governmental agency, which approval shall not be unreasonably withheld.
Lessor agrees to assist Lessee in any reasonable manner to obtain any necessary
rezoning, maps or other necessary permits for Lessee's proposed development as
long as such assistance is in no way at any cost or expense to Lessor (or is
reimbursed by Lessee to Lessor) and in no way commits or binds the Premises or
Additional Land, as applicable, to a change in the use or zoning of the Premises
or Additional Land, as applicable, prior to the Closing Date.
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Section 20.7. DAMAGE OR DESTRUCTION. Except for any damage or
destruction attributable to the activities of Lessee or Lessee's agents,
employees or contractors, in the event that prior to the Closing Date, the
Premises or Additional Land, as applicable, or any improvements thereon are
destroyed or materially damaged, Lessor shall bear the risk of loss therefor,
and Lessee may elect to cancel the purchase or may purchase the Premises or
Additional Land, as applicable, at the purchase price set forth herein less the
amount by which such damage or destruction has decreased the fair market value
of the Premises or Additional Land, as applicable.
Section 20.8. CONDEMNATION. If, before the Closing Date, either
Lessor or Lessee receives notice of any condemnation or eminent domain
proceeding, the party receiving the notice shall promptly notify the other party
of that fact. Lessee 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 Lessee proceeds with the purchase in
accordance with all the terms of the option, all condemnation proceeds shall be
paid to Lessee (or assigned to Lessee if not then yet collected).
Section 20.9. POSSESSION. Possession of the Premises and/or
Additional Land, as applicable, shall be delivered to Lessee upon the Closing
Date.
ARTICLE XXI. MISCELLANEOUS
Section 21.1. ENTIRE AGREEMENT. This Lease constitutes the entire
understanding between the parties and shall be conclusively deemed to supersede
all prior written or verbal communications between the parties. This Lease may
not be modified or terminated unless in writing, signed by the parties to this
Lease.
Section 21.2. GOVERNING LAW. This Lease 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.
Section 21.3. AUTHORITY. The individuals signing this Lease on
behalf of the Lessor and the Lessee, respectively, expressly warrant and
represent personally that he has full power and authority so to act on behalf of
his principal.
Section 21.4. 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 Lease, to
commence or defend any action or proceeding in any way connected with this Lease
or to seek a judicial declaration of rights under this Lease, 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.
Section 21.5. 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.
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Section 21.6. PARTIAL INVALIDITY. If any provisions of this Lease or
the application thereof to any person or circumstance shall be deemed invalid or
unenforceable, the remainder of this Lease 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.
Section 21.7. 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 o the effectiveness of this Lease.
Section 21.8. ESTOPPEL CERTIFICATES. At any time and from time to
time and without charge, within fifteen (15) days after request therefor, Lessor
and Lessee shall certify to the other and its designees, in writing, certain
commercially reasonable matters relating to the status of this Lease. Any such
certificate may be relied upon by Lessor or Lessee, as the case may be, and any
person or entity to whom the same may be exhibited or delivered, and the
contents of such certificate shall be binding on the party making the
certifications contained therein.
Section 21.9. ARBITRATION. The parties agree that any dispute
arising out of this Lease 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.
Section 21.10. 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 Lease.
Section 21.11. MEMORANDUM OF LEASE. Upon written request by Lessee,
concurrently with the execution of this Lease, Lessor shall execute and notarize
a short form Memorandum of Lease in the form attached hereto as Exhibit "B",
which may be recorded by Lessee at its sole expense.
Section 21.12. SIGNS. Lessee may place any sign upon the Premises so
long as such signs comply with all applicable Laws.
Section 21.13. PARKING. Lessee shall have the right to use all
parking areas within the Premises during the term of the Lease at no cost to
Lessee, except as herein provided.
Section 21.14. 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 Premises, all information learned by or disclosed to Lessor with respect to
Lessee's business (including without limitation, a copy of this Lease and the
terms hereof and payments due hereunder) or information disclosed or discovered
during an entry by Lessor into the Premises, shall be kept strictly confidential
by Lessor, Lessor's legal representatives, successors, assigns, employees,
servants and agents and shall not be used (except for Lessor's confidential
internal purposes) or disclosed to others by Lessor, or Lessor's servants,
agents, employees, legal representatives, successors or assigns, without the
express prior written consent of Lessee, which Lessee may withhold in its sole
and absolute
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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 Lessee or such subsequent agreements
between Lessee and Lessor concerning this Lease shall be conveyed exclusively by
Lessee (this includes any and all contact with print or broadcast reports, as
well as paid advertising).
Section 21.15. SECURITY. Lessee shall have the right to install its
own security/alarm system and/or have its own security personnel in the
Premises, at Lessee's sole cost and expense, without obtaining the Lessor's
prior written consent.
Section 21.16. STANDARD FOR CONDUCT AND CONSENT. Notwithstanding
anything to the contrary contained in the Lease, regardless of any reference to
the words "sole" or "absolute" (but except for matters which will have an
adverse effect on the (i) structural integrity of the Building, (ii) the
Building's plumbing, heating, life safety, ventilating, air conditioning,
mechanical or electrical systems ("Building Systems"), or (iii) the exterior
appearance of the Building (whereupon in each such case Lessor's duty is to act
in good faith and in compliance with the Lease), any time the consent of Lessor
or Lessee is required, such consent shall not be unreasonably withheld,
conditioned or delayed. Whenever the Lease grants Lessor or Lessee the right to
take action, exercise discretion, or make allocations or other determinations,
Lessor and Lessee shall act reasonably and in good faith. When Lessee is
required to pay to Lessor any "costs" or "expenses" under the Lease, such amount
shall be the actual cost or expense paid or incurred by Lessor without xxxx-up
by or profit to Lessor. In the event that either party disagrees with any
determination made by the other hereunder and reasonably requests the reasons
for such determination, the determining party shall furnish its reasons in
writing and in reasonable detail within ten (10) business days following such
request.
Section 21.17. PERFORMANCE UNDER PROTEST. If at any time a dispute
shall arise as to any amount or sum of money to be paid by one party to the
other under the provisions hereof, the party against whom the obligation to pay
the money is asserted shall have the right to make payment "under protest" and
such payment shall not be regarded as a voluntary payment and there shall
survive the right on the part of said party to institute suit for recovery of
such sum. If it shall be adjudged that there was no legal obligation on the
part of said party to pay such sum or any part thereof, said party shall be
entitled to recover such sum or so much thereof as it was not legally required
to pay plus interest at the Interest Rate. Neither party which fails to pay
"under protest" waives its right to later object to such payment.
Section 21.18. TELECOMMUNICATIONS EQUIPMENT. At any time during the
term of the Lease, Lessee may install, with the prior written consent of Lessor,
which consent shall not be unreasonably withheld, at Lessee's sole cost and
expense, any telecommunication equipment upon the roof of the Building or on the
Premises in compliance with all applicable Laws, without the payment of any
additional rent.
Section 21.19. ENTRY BY LESSOR. Lessor reserves the right for itself
and its agents, employees, servants, architects, engineers and contractors at
all reasonable times and upon one (1) business days' notice (except in the case
of emergencies) to the Lessee to enter the Premises to (i) show the Premises to
prospective purchasers, mortgagees or tenants (to prospective tenants,
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only during the last twelve (12) months of the Lease term); (ii) post notices of
non-responsibility; or (iii) alter, improve or repair the Premises or the
Building in accordance with Lessor's obligations as set forth in this Lease.
All of Lessor's entries shall be scheduled with Lessee and performed, as
applicable, so as to minimize interference with Lessee's use of the Premises,
and, at Lessee's option, in each case, only upon being accompanied by an
employee of Lessee and/or execution of Lessee's standard non-disclosure
agreement as Lessor hereby acknowledges the extremely confidential nature of
Lessee's business.
Section 21.20. ABOVE-GROUND STORAGE TANK(S). Lessee shall have the
right to install on the Premises, at locations reasonably approved by Lessor,
one or more above-ground storage tank(s) to supply fuel to a back-up generator.
Lessee's rights under this Section 21.20 shall be subject to the following terms
and provisions: (a) Lessor shall have the right to reasonably approve the size,
exact location, manner of installation and other specifications of the
above-ground storage tank(s); (b) the exercise of Lessee's rights under this
Section 21.20 shall be subject to Lessee's compliance with all applicable Laws
and acquisition of all approvals and permits required from applicable
governmental authorities; (c) the installation, maintenance, monitoring and
removal of the above-ground storage tank(s) shall be at Lessee's sole cost and
expense; (d) Lessee shall comply with all applicable Laws pertaining to the
operation, maintenance and monitoring of above-ground storage tanks, along with
any additional requirements imposed by Lessor in connection therewith, and shall
provide Lessor with evidence of such compliance in such form and at such times
as Lessor requires; (e) Lessee shall maintain and repair the above-ground
storage tank(s) in a first-class, safe condition, and shall be responsible for
all reporting, monitoring, clean-up and remediation activities and costs
pertaining to the storage tank(s) and materials stored therein or released
therefrom; and (f) Lessee shall furnish Lessor with copies of all approvals,
permits, notices and communications received from governmental authorities
concerning the above-ground storage tank(s). Lessee shall have no right to
install any underground storage tanks on the Premises.
Section 21.21. PLANS AND DRAWINGS. Prior to the execution and
delivery of this Lease, Lessor shall deliver to Lessee copies of (i) scalable
building and site plans of the Premises, preferably AutoCAD compatible (ii)
building profiles, and (iii) any and all existing hazardous materials reports,
wetland reports or audits of either, to the extent in Lessor's possession or
readily available to Lessor.
Section 21.22. LEASING COMMISSIONS. Lessor and Lessee each represent
that it has not dealt with any broker or agent in connection with the
negotiation, execution, or delivery of this Lease, except for Binswanger
Southern (N.C.), Inc. ("Binswanger"), and Cresa Partners, LLC ("Cresa").
Lessor shall pay to Cresa a commission equal to two and one half percent (2.5%)
of the rent to be paid during the first five (5) years of the term of the Lease
which is understood to be $2.95 per square foot per annum. Cresa's commission
shall be payable over a six (6) month term in equal monthly installments of
Twenty Six Thousand Nine Hundred Forty Nine Dollars ($26,949.00) each commencing
on the first day of the month following the Commencement Date. In addition,
Lessor shall pay to Cresa two and a half percent (2.5%) of rents resulting from
any renewal, extension or expansion of the Lease, payable over a six (6) month
term in equal monthly installments at the commencement thereof. Binswanger shall
be paid by Lessor a commission equal to three and a half percent (3.5%) of rent
as collected by Lessor during the term of the Lease and any extension, renewal
or expansion thereof. If Lessee
DEED OF LEASE
Page 28 of 30
exercises its option pursuant to Article XX to purchase the Premises or
Additional Land or any part thereof, or any greater piece of property which is
partially comprised of the Premises, or property adjacent to the Premises owned
by Lessor or its successors and assigns, Cresa shall be paid by Lessor a sales
commission equal to two and one half percent (2.5%) of the purchase price, less
any prepaid but unearned lease commissions, and Binswanger shall be paid by
Lessor a sales commission as provided in its listing agreement with Lessor dated
July 28, 1998, less the aforesaid sales commission to Cresa and less any prepaid
but unearned lease commissions. Lessor shall pay the brokerage commissions
owing to Cresa pursuant to this Lease and Cresa shall be a third party
beneficiary hereof. To the extent that Lessor fails to pay Cresa the
commissions in accordance with this Lease, Cresa may send written notice to
Lessor and Lessee of such failure and if Lessor fails to pay such amounts within
thirty (30) days after said notice, Lessee shall be entitled to offset such
amount(s) owed to Cresa from Lessor against Lessee's next rental obligations
which may become due under this Lease. Any amount(s) offset from Lessee's
rental obligations hereunder shall no longer be owed from Lessor to Cresa. The
terms of this Section 21.22 shall survive the expiration or earlier termination
of the term of this Lease. Any commissions owing to Cresa and Binswanger in
connection with a sale of the Premises, the Additional Land or any property
adjacent thereto or any portion thereof, shall be deducted from the purchase
price and paid at the closing.
WITNESS the following signatures and seals the day and year first
above written:
LESSOR:
EAST XXXXXX, L.L.C., a Virginia limited liability company
Xxxxxxx X. Xxxxxx Corporation, Manager
BY: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Its President
LESSEE:
eTOYS INC., a Delaware corporation
BY: /s/ Xxxxxxx Xxxx
-----------------------------------------
Its: Vice President
----------------------------------
DEED OF LEASE
Page 29 of 30
COMMONWEALTH OF VIRGINIA
CITY OF MARTINSVILLE, TO-WIT:
The foregoing was acknowledged before me, this 12th day of May,
1999, by Xxxxx X. Xxxxxx, President of Xxxxxxx X. Xxxxxx Corporation, the
Manager of East Xxxxxx, L.L.C., a Virginia limited liability company.
My commission expires: December 31, 2002
------------------------------------------
/s/ Xxxxxx X. Xxxxxx
---------------------------------------
NOTARY PUBLIC
STATE OF CALIFORNIA
CITY/COUNTY OF LOS ANGELES, TO-WIT:
On this 10th day of May, 1999, before me Xxxx Xxxxxx personally
appeared Xxxxxxx Xxxx, 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 capacities, and that by his/her/their
signatures on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
My commission expires: November 29, 2001
-----------------------------------------
/s/ Xxxx Xxxxxx
---------------------------------------
NOTARY PUBLIC
DEED OF LEASE
Page 30 of 30
EXHIBIT "A"
THE LAND
-1-
EXHIBIT "B"
MEMORANDUM OF DEED OF LEASE
AND OPTION TO PURCHASE REAL ESTATE
THIS MEMORANDUM OF DEED OF LEASE AND OPTION TO PURCHASE REAL ESTATE
("Memorandum") made this 10th day of May, 1999 by and between EAST XXXXXX,
L.L.C., a Virginia limited liability company ("Lessor") and ETOYS INC., a
Delaware corporation ("Lessee").
WITNESSETH
WHEREAS, Lessor and Lessee have entered into a certain Deed of Lease dated
May 10, 1999 (the "Lease") demising certain land and improvements more
particularly described therein (the "Premises"); and
WHEREAS, pursuant to the Lease, Lessor granted to Lessee an option (the
"Option") to purchase (i) the Premises, and (ii) certain land adjoining the
Premises (the "Additional Land") more particularly described therein; and
WHEREAS, Lessor and Lessee desire by this Memorandum to provide notice of
the Lease and the Option granted to Lessee under the Lease to purchase the
Premises and the Additional Land.
NOW, THEREFORE, in consideration of the premises, and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Lessor and Lessee do hereby publish and declare as follows:
1. LEASE
1. Name and Address of Lessor:
East Xxxxxx, L.L.C.
c/o Xxxxxxx X. Xxxxxx Corporation
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxxxx, Xxxxxxxx 00000
-1-
2. Name and Address of Lessee:
eToys Inc.
0000 Xxxxx Xxxx Xxxxxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
3. Date of Lease: May 10, 1999
4. Description of Leased Premises:
Approximately 53.088 acres of land, more or less, in
Pittsylvania County, Virginia, as shown on Exhibit "A" attached
hereto as the "Leased Premises" and made a part hereof and more
particularly described in Exhibit "B" attached hereto and made a
part hereof, together with improvements thereon containing a
total of 438,500 square feet of floor area.
5. Term of Lease - Extension Terms:
The initial term of the Lease shall be five (5) years,
commencing on the later of (i) July 15, 1999 or (ii) the date the
Lessor (or Lessee, as the case may be, as more particularly set
forth in the Lease) completes the "Lessor's Work" pursuant to
Sections 7.1 and, if applicable, 7.2(A) of the Lease (the
"Commencement Date") and terminating on July 31, 2004. Lessee is
granted the option to extend or renew the Lease for two (2)
additional five-year terms.
2. OPTION TO PURCHASE THE PREMISES
1. Name and Address of Grantor:
East Xxxxxx, L.L.C.
c/o Xxxxxxx X. Xxxxxx Corporation
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxxxx, Xxxxxxxx 00000
2. Name and Address of Optionee:
eToys Inc.
0000 Xxxxx Xxxx Xxxxxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
3. Date of Option: May 10, 1999
-2-
4. Description of Optioned Premises:
Approximately 53.088 acres of land, more or less, in Pittsylvania
County, Virginia, as shown on Exhibit "A" attached hereto as the
"Leased Premises" and made a part hereof and more particularly
described in Exhibit "B" attached hereto and made a part hereof,
together with improvements thereon containing a total of 438,500
square feet of floor area.
5. Option Price:
Ten Million Five Hundred Thousand Dollars ($10,500,000.00), plus
unpaid balance of amortized expenditures of Lessor as described
in Section 7.2 of the Lease.
6. Term of Option:
The term of the Option shall be five (5) years, commencing on
the Commencement Date and terminating on July 31, 2004.
3. OPTION TO PURCHASE ADDITIONAL LAND
1. Name and Address of Grantor:
East Xxxxxx, L.L.C.
c/o Xxxxxxx X. Xxxxxx Corporation
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxxxx, Xxxxxxxx 00000
2. Name and Address of Optionee:
eToys Inc.
0000 Xxxxx Xxxx Xxxxxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
3. Date of Option: May 10, 1999
4. Description of Optioned Premises:
Approximately 161.925 acres of land, more or less, in
Pittsylvania County, Virginia, as shown on Exhibit "A" attached
hereto as the "Additional Land" and made a part hereof and more
particularly described in Exhibit "C" attached hereto and made a
part hereof..
-3-
5. Option Price:
An amount equal to (A) the product of (i) the number of acres
which Lessee elects to purchase pursuant to Section 20.2 of the
Lease and (ii) $10,000.00 divided by (B) the total number of
acres being purchased by Lessee (including the acres which Lessor
requires Lessee to purchase pursuant to Section 20.2 of the
Lease).
6. Term of Option:
The term of the Option shall be two (2) years, commencing on the
Commencement Date and terminating July 31, 2001.
IN WITNESS WHEREOF, Lessor and Lessee have caused these presents to be
signed and acknowledged as their acts and deeds as of the day and year first
above written.
LESSOR:
EAST XXXXXX, L.L.C.,
a Virginia limited liability company
By: XXXXXXX X. XXXXXX CORPORATION, Manager
By:
-----------------------------------------------
Xxxxxxx X. Xxxxxx, President
LESSEE:
eTOYS INC.,
a Delaware corporation
By:
-----------------------------------------------
Name:
Title:
-4-
STATE OF )
) ss.
COUNTY OF )
I, the undersigned, a notary public in and for the jurisdiction aforesaid,
do hereby certify that Xxxxxxx X. Xxxxxx, whose name is signed to the foregoing
instrument as President of Xxxxxxx X. Xxxxxx Corporation, the Manager of East
Xxxxxx, L.L.C., personally appeared and acknowledged the same before me in my
jurisdiction aforesaid in his capacity as such.
Given under my hand and seal this ____ day of ________________, 1999.
---------------------------------
Notary Public
My Commission Expires:
STATE OF )
) ss:
COUNTY OF )
I, the undersigned, a notary public in and for the jurisdiction aforesaid,
do hereby certify that _____________________________, whose name is signed to
the foregoing instrument as _________________ of eToys Inc., personally appeared
and acknowledged the same before me in my jurisdiction aforesaid on behalf of
said corporation.
Given under my hand and seal this ____ day of ________________, 1999.
---------------------------------
Notary Public
My Commission Expires:
EXHIBIT "A"
[INSERT MAP HERE]
EXHIBIT "B"
LEASED PREMISES
(LEGAL DESCRIPTION)
LEASEHOLD PROPERTY (WITH OPTION TO PURCHASE)
PARCEL NO. 1:
Situate in Blairs Magisterial District, Pittsylvania County, Virginia:
TRACT 1, containing 53.088 acres, located on Xxxxx Xxxx Xx. 0000 (Xxxxxx
Xxxxx) as shown on Plat of Survey For Xxxxxx Tight Squeeze Project, dated August
26, 1996, last revised April 27, 1999, made by Xxxxxxx X. Xxxxxxxx (the "Plat");
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, be deed dated October 16, 1996, recorded in the
Clerk's Office of the Circuit Court of Pittsylvania County, Virginia in Deed
Book 1057, at page 548. Together with a non-exclusive permanent easement and
right-of-way for ingress and egress over, upon and across a certain strip of
land 60 feet in width and 526.99 feet in length running from the western margin
of X.X. Xxxxxxx 00 to the eastern margin of Tract 1 and labeled "60' ACCESS
EASEMENT" on the Plat.
EXHIBIT "C"
OPTIONED PREMISES
(LEGAL DESCRIPTION)
OPTION PROPERTY (OPTION TO PURCHASE)
PARCEL NO. 2:
Situate in Blairs Magisterial District, Pittsylvania County, Virginia:
ALL that certain tract of land containing 161.925 acres, located on Xxxxx
Xxxx Xx. 0000 (Xxxxxx Xxxxx) as shown on the Plat; 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, be
deed dated October 16, 1996, recorded in the Clerk's Office of the Circuit Court
of Pittsylvania County, Virginia in Deed Book 1057, at page 548.
EXHIBIT "C"
GENERAL WARRANTY DEED
ETOYS INC.,
-----------
A DELAWARE CORPORATION
FROM: DEED
EAST XXXXXX, L.L.C.,
--------------------
A VIRGINIA LIMITED LIABILITY COMPANY
THIS DEED, made and executed as of the ___ day of ___________, _____, by
and between EAST XXXXXX, L.L.C., a Virginia limited liability company, grantor
and party of the first part, and ETOYS INC., a Delaware corporation, grantee and
party of the second part:
WITNESSETH: That for and in consideration of the sum of Ten Dollars
($10.00) 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 of that certain tract or parcel of real estate, together with the
improvements thereon and appurtenances thereunto belonging, situated in Blairs
Magisterial District of Pittsylvania County, Virginia, containing _______ acres,
plus or minus, and being known and designated as ____________ according to Plat
of Survey for Xxxxxx Tight Squeeze Project, dated August 26, 1996, revised
November 26, 1997 and April 27, 1999 prepared by Xxxxxxx X. Xxxxxxxx Associates,
Registered Land Surveyor, said Plat recorded in the Clerk's Office of the
Circuit Court of Pittsylvania County, Virginia, in Plat Book ____, page ____;
and
BEING a portion of the same property acquired by 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, of record in the
aforesaid Clerk's Office in Deed Book 1057, page 548.
The property herein described is being conveyed subject to __________
_________________________________________________________ [Permitted
Exceptions]. 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
STATE OF VIRGINIA, AT LARGE,
CITY OF MARTINSVILLE, TO-WIT:
The foregoing instrument was acknowledged before me this ____ day of
_______, _____, by ____________________________, and
_____________________________, the President and Secretary, respectively, of
Xxxxxxx X. Xxxxxx Corporation, a Virginia corporation, the Manager of East
Xxxxxx, L.L.C., a Virginia limited liability company, Grantor herein.
My Commission expires: _____________________________
----------------------------------------
Notary Public
EXHIBIT "D"
PERMITTED EXCEPTIONS
1. Lien for taxes not yet due and payable.
2. Easements and/or rights-of-way to Virginia Electric and Power Company
recorded in Deed Book 1064, at Page 788 and in Deed Book 623, at Page 175.
3. Easement granted to The Chesapeake and Potomac Telephone Company of
Virginia recorded in Deed Book 631, at Page 769.
4. Rights of others thereto entitled in and to the continued uninterrupted
flow of any branches, streams or creeks.
5. Items disclosed by plat of survey by Xxxxxxx X. Xxxxxxxx, RLS, dated August
26, 1996 and preliminary plat revised April 27, 1999 ("Plat"), including:
(a) thirty (30) foot utility easement crossing the southern portion of the
Premises;
(b) the proposed twenty (20) foot utility easement crossing the Additional
Land;
(c) old communication line (now abandoned) located on Additional Land;
(d) forty (40) foot easement running along a portion of the eastern
boundary line of the Additional Land; and
(e) existing detention pond (and the use thereof for the benefit of the
Premises) located on the Additional Land shown on the Plat.
6. Title to any portion of the Premises or Additional Land running within the
bounds of any public road or highway.