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200406871 AGREEMENT For and in consideration of $10 and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Grantor and Grantee hereby agree as follows: 1. Grant of Temporary Construction Easement. Grantor hereby grants to Wal -Mart, for the benefit of the Wal -Mart Property and Wal -Mart's successors and assigns, a temporary easement for the construction of the Improvements (including all construction activities incidental thereto) together with the right of ingress and egress to and from the same, on, over, under and through the Grantor Property as necessary to construct the Improvements on the Grantor Property and the Wal -Mart Property. 2. Grant of Grading Easement. Wal -Mart, at its own expense, will perform certain grading work on the Grantor Property and the Wal -Mart Property in accordance with that certain Erosion Plan which has been distributed to both parties to the Agreement. Grantor hereby grants to Wal -Mart, for the benefit of the Wal -Mart Property and Wal -Mart's successors and assigns a temporary easement for (a) the performance of the grading work on the Grantor Property and the Wal -Mart Property, including the permanent addition or removal of fill, dirt, earth and other real property from the Grantor Property, together with (b) the right of ingress and egress on, over, under and through the Grantor Property as necessary to perform the grading work on the Grantor Property and the Wal -Mart Property. Structural fill placed in the Grantor Property shall be compacted to 95 percent of the maximum dry density (ASTM D698 Standard Proctor). The moisture content of the structural fill at the time of placement shall range between -3 to +3 percent of the optimum moisture content. A qualified field representative shall periodically observe fill placement operations and perform field density tests concurrently to confirm that the specified compaction is being achieved. Upon the expiration of this Agreement, the Grantor Property shall be substantially in the condition required by the Grading Plan. Wal -Mart shall direct its field representative performing any inspections or tests regarding the compaction or other condition of the soil on the Grantor Property to furnish copies of all such inspections and/or tests to Grantor. 3. Environmental. Wal -Mart shall perform the construction of the Improvements in compliance with all Environmental Laws. For purposes of this Easement, the term "Environmental Laws" shall mean any present or future, federal, state or local law, rule, regulation, ordinance, administrative order or administrative regulation relating to the production, storage, disposal, manufacture, use or presence of any hazardous substance (as such term is defined in the Comprehensive Environmental Response Compensation and Liability Act of 1980), as amended from time to time. 4. Maintenance of Improvements. Prior to the expiration of this Easement, Wal -Mart shall be responsible for maintaining the Improvements in compliance with all applicable laws. 5. Insurance. Wal -Mart shall cause Wal -Mart's contractors to name Grantor as an additional insured to such contractor's general liability insurance policy prior to entering the Grantor Property. In addition, Grantor must be provided with a certificate of insurance for such general liability insurance by Wal -Mart's contractors which shall be in an amount that is not less than $2,000,000.00. 6. Expiration of Agreement. The easement and all interests granted hereby shall terminate and be of no further effect on April 15, 2005 (the "Expiration Date "). In the event Wal -Mart cannot complete the Improvements due to a Force Majeure Condition, the Expiration Date shall automatically be extended by the number of days that the Force Majeure Condition existed. For purposes of this Agreement, the term, "Force Majeure Condition" shall mean events or causes that are beyond Wal -Mart's reasonable control (such as, but not limited to, strikes, work 01-599183.4 2