EXHIBIT 10.29
AMENDMENT TO REAL ESTATE OPTION AGREEMENTS
BETWEEN THE DEVELOPMENT CORPORATION OF XXXX COUNTY
AND
XXXXX DEVELOPMENT CORPORATION
AMENDMENT TO REAL ESTATE OPTION AGREEMENT
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(LOTS 10 & 11, CENTERPOINT BUSINESS PARK
THIS AMENDMENT TO THE REAL ESTATE OPTION AGREEMENT (the "Amendment") is
made and entered into effective as of the 8 day of Sept, 1998 by and between
THE DEVELOPMENT CORPORATION OF XXXX COUNTY ("Seller") and XXXXX DEVELOPMENT
CORPORATION ("Purchaser"):
RECITALS:
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WHEREAS, Seller and Purchaser entered into Real Estate Option Agreements
(the "Option Agreements") dated as of April 22, 1998 for the option to purchase
Xxx 00 xx XxxxxxXxxxx Xxxxxxxx Xxxx, and as of June 21, 1998 for the option to
purchase Lot 10 of CenterPoint Business Park (the "Premises") as more
particularly described on Exhibit A to the Option Agreements and
WHEREAS, pursuant to the Option Agreement, the Purchaser had the right to
conduct certain tests and inspections of the Premises, including without
limitation, environmental inspection and soil tests to determine if the Premises
is suitable for Purchaser's intended use; and
WHEREAS, Purchaser's tests have discovered that the Premises contains
certain organic materials which must be removed for the Premises to be suitable
for Purchaser's use; and
WHEREAS, Purchaser's sole remedy under the Option Agreement if the Premises
is not suitable for Purchaser's intended use is to terminate the Option
Agreement and receive a refund of the Option Price (as defined in the Option
Agreement); and
WHEREAS, Purchaser has agreed to assume all responsibility for removal of
the unsuitable material and the replacement thereof with suitable materials on
the terms set forth in this Amendment in consideration of Seller agreeing to
reduce purchase price and agreeing to the other matters as set forth below;
WHEREAS, Seller and Purchaser have agreed to certain amendments to the
Option Agreement as more particularly described herein;
NOW, THEREFORE, in consideration of the foregoing, the mutual terms,
covenants and conditions set forth below, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Paragraph 2 of the Option Agreement is hereby amended to provide that
the Exercise Period during which time the Purchaser has the right to exercise
its options to purchase the Premises shall be and is hereby extended through and
including 11:59 p.m. on the 15/th/ day of September, 1998.
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2. Paragraph 6 of the Option Agreement is hereby amended to provide that
the Purchase Price for the Premises shall be $809,900. The Purchase Price
reflects reductions in the original Purchase Price because of existing site
conditions that will require additional site work to remove organic debris such
as logs and stumps that have been buried on the Premises.
3. The Purchaser acknowledges and agrees that it has had full and
complete opportunity to inspect the Premises and perform all tests and
inspections of the Premises and Purchaser is accepting the Premises in its "AS,
IS" condition. Purchaser further agrees that it hereby releases all claims
against Seller of every kind or nature, including, without limitation, any
claims related to or arising out of the condition of the Premises, whether known
or unknown.
4. The Purchaser agrees to remove all unsuitable material on the Premises
and haul such material off site and properly dispose of such material. The
Seller will allow the Purchaser to remove up to an aggregate of 16,500 cubic
yards of fill material from Xxxx 0 xxx 0 xx XxxxxxXxxxx Xxxxxxxx Xxxx to be used
for Xxx 00 xxx Xxx 00 xx XxxxxxXxxxx Xxxxxxxx Xxxx. If Purchaser does not
exercise its option to purchase Lot 10, then the amount of fill dirt which
Purchaser shall be entitled to use from Lots 7 and 8 shall be reduced in
proportion to the relative acreage of Xxx 00 xxx Xxx 00. Xxx Xxxxxxxxx will be
responsible for clearing and grubbing the Seller's designated sections of Lots 7
and 8 as identified on attached map "Exhibit A" in CenterPoint Business Park and
will ensure the proper removal of the non man-made debris from such lots. The
Purchaser will also be responsible for stripping topsoil, if any, and having it
placed at a location designated by Seller (see Exhibit "A") for the temporary
topsoil stockpile. The Purchaser may remove material to an elevation specified
by the Seller and Purchaser shall maintain proper erosion control and other
appropriate construction practices. On completion of the borrow operation, all
disturbed areas on Lots 7 and 8 must be left with slopes of 2 to 1 less,
positive drainage control (no ponding), topsoil, if any, shall be replaced and
the lots shall be seeded and mulched with a maintainable stand of grass
achieved. The Purchaser further agrees to remove all undercut materials and all
borrowed dirt in accordance with specifications established by Seller's
engineer, Xxxxxx Xxxxx and Associates, as described in Exhibit "B".
5. The Purchaser agrees to obtain the permission of Xxxx County to cross
CenterPoint Boulevard, which is a public street controlled by Xxxx County, for
heavy trucks and other equipment and shall bear sole responsibility for repair
of any damage to the street and curbs resulting from the Purchaser's or
Purchaser's agents, contractors or subcontractors relating to the activities and
described in this Amendment.
6. The Purchaser agrees that it will be responsible for all field testing
of Purchaser's material only and will provide the proper bonds and insurance for
all aspects of the work described in this Amendment and will include Seller as
an additional insured for that portion of the work that occurs on the Seller's
Premises. The Purchaser agrees to indemnify and hold Seller harmless from and
against any and all claims of every kind or
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nature (including, without limitation, attorney fees incurred by Seller in
defending any claims) arising out of Purchaser's work on or related to the
Premises being purchased by Purchaser pursuant to the Option Agreement, as
amended hereby, and any claims related to Purchaser's work on the other lots
and/or roads in CenterPoint Business Park. The Purchaser will provide assurances
to the Seller after completion of the work described above that all material was
properly removed and disposed of off site.
7. The covenants and agreements set forth in this Amendment shall survive
the closing of the purchase of the Premises by Purchaser.
8. Insofar as the specific terms and provisions of this Amendment purport
to amend or modify or are in conflict with the specific terms or provisions of
the Option Agreement, the terms and provisions of this Amendment shall govern
and control. In all other respects, the terms and provisions of the Option
Agreement shall remain in full force and effect and shall be unmodified.
Executed this 8 day of Sept., 1998.
THE DEVELOPMENT CORPORATION OF XXXX COUNTY
By: /s/ Xxxxxxx X. Xxxxxxx
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Its: Executive
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XXXXX DEVELOPMENT CORPORATION
By: /s/ Xxxxxxx Xxxxxx
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Its: V P
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EXHIBIT A
=====The============
DEVELOPMENT CENTERPOINT BUSINESS PARK
CORPORATION XXXX COUNTY, TENNESSEE
====of Xxxx County==
[CHART OF CENTERPOINT BUSINESS PARK APPEARS HERE]
000 X. Xxxxxx Xxxx Xxxxx, Xxxxx 000-X . Xxxxxxxxx, XX 00000-0000
Phone: (000)000-0000 . Fax: (000)000-0000
xxx.XxxxXxxxxxxxxxx.xxx
"EXHIBIT B"
PROVISIONS AND STANDARDS FOR BORROW PIT WITH ADEVCO
1) Adevco shall maintain an accessway into the "Borrow Pit" area such that no
mud or debris will be tracked onto CenterPoint Blvd.
2) Adevco shall strictly comply with Xxxx County erosion and sediment control
policies, including:
a) Slopes 2:1 or less; 10' wide bench will be required with each 20'
difference in vertical elevation on all permanent slopes.
b) Use silt fencing or other sediment control measures as necessary to
retain sediment on site, Adevco will be responsible for damages or
cleanup.
c) When grading of an area is completed, replace topsoil and seed and
mulch effected areas to achieve a maintainable stand of grass.
3) Adevco shall obtain all required Xxxx County and other necessary permits.
4) Adevco shall repair any damage to curbs or roadways along CenterPoint Blvd.
This will be at the sole expense of Adevco.
5) Adevco shall prevent others from obtaining borrow material.
6) Adevco shall be absolutely responsible for and will indemnify and save
harmless The Development Corporation and its officers, agents, employees,
affiliates, successors, and assigns from and against any and all loss,
damage, claims, expense including attorney's fees, or liability for: (i)
injury to or death of any person occurring on said Borrow Pit Area during
the term of or arising as a result of or in connections with Adevco's use of
the Borrow Pit Area unless such loss, damage, claims, expenses or
liabilities arise from the negligent acts of The Development Corporation;
and (ii) loss of or damage to any property whatsoever, where such injury,
loss or damage is caused by, arises out of, results from, or is incident to
Adevco's use and occupation of said Borrow Pit Area or any portion thereof,
unless such loss, damage, claims, expenses and liability arise solely from
the negligent acts of The Development Corporation.
7) (a) Adevco's Contractor, Integra Construction, shall secure and keep in
effect Comprehensive General Liability Insurance with a dollar limitation of
coverage not less than a combined single limit of $1,000,000.00 per any one
occurrence for all loss, damage, cost, and expense, including attorneys'
fees, arising out of bodily injury liability and property damage liability
during the policy of the period.
(b) The insurance described above shall be maintained during the term of
the Agreement. Adevco shall give The Development Corporation notice of any
significant changes to the insurance coverage.
(c) Adevco shall be required to submit a Certificate of Insurance to The
Development Corporation. The Development Corporation will review the
Certificate and advise Adevco if the limits, form, and substance of the
insurance policies and certificates of insurance are satisfactory to
The Development Corporation.
8) Adevco may only remove material as agreed on-site and may not remove
material below the agreed elevation. It is the sole responsibility of Adevco
to determine in conjunction with The Development Corporation's engineer,
Xxxxxx Xxxxx and Associates, the exact location of these areas at the site.
It is understood that Adevco requires 16,500 cubic yards of suitable fill
material to remedy lots # 10 and 11. If for any reason, lot # 7 does not
yield enough material, then The Development Corporation shall make field
adjustments to designate another borrow area from within CenterPoint
Business Park. _In the event that Adevco exposes bedrock in its excavation,
then Adevco shall remove this bedrock or shall recover the exposed bedrock
with topsoil and relocate the borrow pit operation.
9) In the event The Development Corporation has a prospect or any site on which
Adevco is removing material, The Development Corporation will notify Adevco.
If a site is sold or optioned, The Development Corporation will notify
Adevco of this situation and Adevco will have 30 days to remove all
equipment from the site and restore the site to meet the Standards.
10) If The Development Corporation discovers that the borrow pit is creating
excessive problems for its remaining property or the tenants in the park,
The Development Corporation will contact Adevco and the two parties will
resolve these problems in a mutually agreeable manner. If the problem
persists and no agreement or solution can be reached, The Development
Corporation may provide a 30 day notice to vacate the site.
11) Adevco shall police the area as necessary to eliminate illicit dumping.
