Exhibit 10.12
THIRD AMENDMENT
TO LEASE Dated May 3, 1994 ("Lease")
By and Between
Xxxx G. B. Xxxxxxx, Jr. ("Landlord")
and
The Xxxxxxx Company, Inc. ("Tenant")
Landlord and Tenant hereby agree that, effective September 28, 2000, the
Lease, as previously amended by Amendment dated as of July 1, 1997 and by Second
Amendment dated June 29, 1999, is hereby further amended as follows:
1. By deleting Article VIII in its entirety and inserting in lieu
thereof a new Article VIII in the form of Exhibit A attached hereto and
incorporated herein by reference; and
2. By deleting Article XIX in its entirety and inserting in lieu
thereof a new Article XIX in the form of Exhibit B attached hereto and
incorporated herein by reference.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Third Amendment
as of September 28, 2000.
ACCEPTED AND AGREED:
THE XXXXXXX COMPANY, INC.,
A North Carolina Corporation, Tenant
BY: /s/ Xxxx G.B. Xxxxxxx, Jr.
-------------------------------------
Xxxx G.B. Xxxxxxx, Jr. President
(CORPORATE SEAL)
ATTEST:
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx, Assistant Secretary
/s/ Xxxx G.B. Xxxxxxx, Jr. (SEAL)
-------------------------------
Xxxx G.B. Xxxxxxx, Jr. Landlord
Exhibit A
ARTICLE VIII
SUBORDINATION AND ATTORNMENT
SECTION 8.01. SUBORDINATION OF LEASE. The Tenant agrees that this Lease
shall be subordinate to any mortgages or deeds of trust presently or hereafter
placed upon the Premises, or any part thereof, and to any and all advances, past
or future, made thereunder; provided, however, that such subordination shall be
conditioned upon Landlord obtaining and delivering to Tenant an agreement, in
recordable form ("Nondisturbance Agreement"), from any holder of any mortgage or
deed of trust placed upon the Premises, or any part thereof, such that if by
foreclosure, deed in lieu of foreclosure or otherwise, such holder or its
designee or nominee or a purchaser at foreclosure shall become the owner of the
Premises, the possession, use or enjoyment of the Premises by Tenant or any of
its subsidiaries shall not be disturbed provided that Tenant is not then in
default hereunder beyond any applicable notice and cure periods. Subject to the
obligation of Landlord to deliver the Nondisturbance Agreement to Tenant, Tenant
agrees, immediately upon the request of the Landlord, to execute a subordination
agreement in recordable form. The Tenant hereby irrevocably appoints the
Landlord as attorney-in-fact for the Tenant with full power and authority to
execute and deliver in the name of the Tenant a subordination agreement
subordinating this Lease to any mortgage or deed of trust if ten (10) days after
the date of a written request by Landlord to execute such agreement, the Tenant
shall not have executed same.
SECTION 8.02. ATTORNMENT. Subject to the obligation of Landlord to deliver
the Nondisturbance Agreement to Tenant, Tenant shall, in the event any
proceedings are brought for the foreclosure of, or in the event of exercise of
the power of sale under any mortgage or deed of trust made by Landlord covering
the Premises, if requested by the purchaser, attorn to the purchaser upon any
such foreclosure or sale and recognize such purchaser as the Landlord under this
Lease even though this Lease is subordinate to such mortgage or deed of trust.
SECTION 8.03. QUIET ENJOYMENT. Landlord covenants that so long as Tenant
continues to pay rent and is otherwise in compliance with the terms of this
Lease, Tenant shall at all times during the Term, peaceably and quietly enjoy
the Premises without any disturbance from the Landlord or from any other person
claiming through Landlord.
Exhibit B
ARTICLE XIX
ENVIRONMENTAL
SECTION 19.01. HAZARDOUS SUBSTANCES. Tenant shall not, without Landlord's
prior written consent, after full disclosure, use, store, manufacture, transport
or dispose of any Hazardous Material (as hereinafter defined) on or about the
Premises, other than in full compliance with applicable Environmental Laws (as
hereinafter defined). Tenant shall not violate any applicable Environmental Laws
relating to or affecting the Premises. Tenant shall comply with and ensure
compliance by Tenant's agents, contractors, employees, servants, lessees or
concessionaires, with all applicable Environmental Laws relating to or affecting
Tenant's use of the Premises and shall keep the Premises free and clear of any
liens imposed relating to Tenant's use of the Premises pursuant to any
applicable Environmental Laws. Tenant has obtained and will at all times
continue to obtain and/or maintain all licenses and permits necessary to comply
with Environmental Laws relating to Tenant's use of the Premises (the
"Permits"). Tenant is in full compliance with the terms and provisions of the
Permits and will continue to comply with the terms and provisions of the
Permits. Tenant shall immediately give Landlord oral and written notice in the
event that Tenant receives actual notice of claim or violation from any
governmental agency or entity (or from any other third party if such third party
notice would cause a reasonable person to believe that a material environmental
claim or liability may exist) with regard to Hazardous Materials on, from or
affecting the Premises and shall conduct and complete all investigations,
sampling, and testing, and all remedial, removal, and other actions necessary to
clean up and remove Hazardous Materials resulting from Tenant's use of or
activities at the Premises, from the Premises in accordance with all applicable
Environmental Laws.
SECTION 19.02. TENANT'S ENVIRONMENTAL INDEMNITY. Tenant hereby agrees to
indemnify Landlord and hold Landlord harmless from and against any and all
losses, liabilities, damages, injuries (including, without limitation,
attorneys' fees and expenses) and claims of any and every kind whatsoever paid,
incurred or suffered by, or asserted against Landlord for, with respect to, or
as a result of (a) the presence on, or under, or the escape, spillage, emission
or release from the Premises of any Hazardous Material, in any such case, caused
by Tenant or any third party whose presence on the Premises is authorized by
Tenant, (b) the violation of any Environmental Laws relating to or affecting the
Premises or Development Site, caused by Tenant, or any third party whose
presence on the Premises is authorized by Tenant, or (c) the failure by Tenant
to comply fully with the terms and provisions of this paragraph. For purposes of
this Lease, Hazardous Material" means and includes petroleum products, any
flammable explosives, radioactive materials, asbestos or any material containing
asbestos, and/or any hazardous, toxic or dangerous waste, substance or material
defined as such in (or for the purposes of) the Environmental Laws. For the
purposes of this Lease, "Environmental Laws" means the Comprehensive
Environmental Response, Compensation and Liability Act, the Hazardous Materials
Transportation Act, the Resource Conservation and Recovery Act, or any other
federal, state or local law, regulation, decree, regulating, relating to or
imposing liability concerning any petroleum products, any flammable explosives,
radioactive materials, asbestos or any material containing asbestos, and/or
hazardous, toxic or dangerous waste, substance or material, as may now or at any
time hereafter be in effect. The obligations and liabilities of Tenant under
this Section shall survive the expiration or termination of this Lease only as
to conditions existing prior to such expiration or termination.
