Exhibit 10.04
Memphis
LEASE AGREEMENT
Parties THIS AGREEMENT made and entered into on this the 13 day of Aug,
1996 by and between the [ILLEGIBLE], hereinafter called "Landlord",
and DISPLAY ARTS, INC. hereinafter called "Tenant";
Premises WITNESSETH: The Landlord leases to Tenant as its demised premises
office space containing an approximate 3,500 usable square feet as
outlined on the Floor Plan attached hereto (Exhibit "A")
(hereinafter called "Premises") on the Ground Floor of the Xxxxxxx
Xxx Apartments (hereinafter called "Building"), located at 00 Xxxxx
Xxxx, Xxxxxxx, Xxxxxx county, Tennessee for the
1. Term term of Five (5) years, and six (6) months, with an option for two
(2) additional Five (5) year terms at a rental rate not to be
increased by more than 5% of the Base Rental Rate from the previous
Lease Term. The Term shall commence on the earlier of (a) October 1,
1996, or (b) the date on which Tenant takes possession of the
Premises, and ending Five (5) Years and Six (6) Months hence, unless
sooner terminated as provided herein. In the event Landlord is
unable to deliver the Premises to Tenant on or prior to the
Commencement Date, Tenant's sole right and remedy shall be to delay
the commencement of the terms by the number of days that delivery of
possession is delayed. Tenant acknowledges that Landlord shall use
diligent efforts to deliver the Premises as provided herein however
delays in construction may affect Landlord's ability to deliver the
Premises to Tenant.
2. Use The demised premises are to be continuously used and occupied during
the full terms of this Lease and for no other purposes than general
office and/or retail. In the event the demised premises are
delivered on a day other than the first day of the terms the five
(5) year, six (6) month lease term shall commence as of the first
day of the month following delivery and Landlord and Tenant shall
complete and initial the following sentence. The terms commenced
____________________ and shall end _______________.
3. Base Rental
In consideration for this Lease, Tenant promises to pay to Landlord (for
Landlord's benefit) in lawful money of the United States, an annual rental of
Thirty One Thousand Five Hundred Dollars ($31,500.00), payable in equal
Installments of Two Thousand Six Hundred Twenty Five Dollars ($2,625.00), said
monthly installments of rental to be paid in advance without demand, by the
tenth (10th) day of each and every calendar month during the terms hereof,
provided, however, notwithstanding the above provisions, the monthly
installments of Base Rental for the first six (6) months of the Term (the
"Abatement Period") shall be deferred until the expiration of the base terms of
the Lease at which time, if Lessee is not in default, said Base Rental for the
Abatement Period shall be abated. In the event Lessee defaults in performance of
the covenants, conditions and requirements hereunder, then such deferred rental
shall immediately become due and payable and shall be included in the
computation hereunder. Further, Tenant agrees to prepay a sum total of rent to
Landlord in the amount of Fifteen Thousand Seven Hundred Fifty Dollars
($15,750.00) which is to be applied toward the first six (6) months of Base
Rental due subsequent to the Abatement Period referenced above.
4. Services to be Furnished by Landlord
It is agreed and understood that Tenant shall be responsible for the
payment of all utility costs for the Premises.
5. Peaceful Enjoyment
Tenant shall and may peacefully, have hold and enjoy the demised Premises
subject to the other terms hereof and provided Tenant pay the rentals herein
recited and perform all of its covenants and agreements herein contained.
6. Repairs and Re-entry
Tenant at Tenant's own cost and expense, repair or replace any damage or
injury done to the Building or any part thereof, caused by Tenant or Tenant's
agents, employees, invitees or visitors. If Tenant fails to make such repairs or
replacements promptly, or within fifteen (15) days of occurrence, Landlord may
at its option, make such repairs or replacements, and Tenant shall repay the
cost thereof to Landlord on demand. Tenant will not commit or allow any waste or
damage to be committed on any portion of the demised premises, and shall, at the
termination of this Lease, by lapse of time or otherwise, deliver up said
premises to Landlord broom clean and in as good condition as at date of
possession of Tenant, ordinary wear and tear and damage by fire and windstorm
excepted and upon such termination of Lease, Landlord shall have the right to
re-enter and resume possession of the demised premises.
7. Assignment or Subletting, Alterations, Additions, Improvements
Tenant will not assign this Lease or allow the same to be assigned by
operation of law or otherwise, or sublet the demised premises, or any part
thereof, or use or permit the same to used for any other purpose that state in
the use clause hereof, or make or allow to be made any alterations or physical
additions in or to the demised premises without prior written consent of
Landlord. Any and all such alterations, physical additions, or improvements,
when made to the demised premises by Tenant, shall at once become the property
of Landlord and shall be surrendered to Landlord upon the termination in any
manner of this Lease; but this clause shall not apply to movable fixtures or
furniture of Tenant. In the event Tenant elects to remove any fixture,
improvement, or alteration in the Premises, Tenant may do so with any necessary
repairs made to the affected areas paid for by the Tenant, and subject to
Landlord's prior written approval. Such approval shall not be unreasonably
withheld by Landlord.
8. Lawful Use
Tenant will not occupy or use, or permit any portion of the demised
premises to be occupied or used for any business or purpose which is unlawful in
part or in whole or deemed to be disreputable in any manner or extra hazardous,
or permit anything to be done that will in any way increase the rate of
insurance of the building and/or its contents, and in the events that by reason
of actions of Tenant, there shall be an increase in rate of the insurance on the
Building or its contents created by Tenant's acts or conduct business, then
Tenant hereby agrees to pay such increase and to remedy such condition upon five
(5) days written demand by Landlord.
9. Indemnity Liability
The Tenant shall save the Landlord free and harmless from any and all
claims, actions, damages, expenses, and liability whatsoever for injury
(including death) to any person, or persons, firm or corporation, including the
Landlord, or for the resultant effects of any injury (including death) to any
person or persons, firm or corporation, including the Landlord and for damage to
the property of any person or persons, firm or corporation, including the
Landlord, Arising directly or indirectly from the use or occupancy of said
demised premises or any part thereof by the Tenant, its agents, sublessees,
assignees, contractors, employees, invitees and any others on said demised
premises by reason of Tenant. Tenant agrees that no representations except such
as are contained hereon have been made to the Tenant respecting the condition of
said premises.
10. Taxes and Maintenance
A. Landlord shall pay all real estate taxes and assessments levied against
the land and Building incurred during the year in which this Lease shall
commence. Thereafter, during all remaining years of its tenancy, Tenant will pay
to Landlord as additional rent a proportionate share of any increase in such
taxes, determined by multiplying any such tax increase by the ratio which the
area of space leased to the Tenant bears to the total net rentable area of the
usable portions of the building which was included its said base tax year's tax
assessment. Tenant shall pay its proportion of such tax increases within thirty
(30) days after the notice of same is furnished to it by Landlord, accompanied
by evidence of payment thereof. Tenant and Landlord shall cooperate with each
other in the minimizing of taxes for the overall project.
B. If Landlord's building operating costs such as for repairs,
maintenance, management, waste removal, fire, extended coverage and other
insurance, janitorial or utility service, etc. in any calendar year shall exceed
Landlord's building operating costs for the calendar year in which the
commencement date hereof occurs, Tenant shall pay as additional rent for said
calendar year, upon demand, an amount equal to such proportions of the excess of
building operating costs for such year over those incurred by Landlord during
the calendar year 1996 as area of the Premises bears to the total net rental
area of the Building.
11. Rules of Building
Tenant and Tenant's agents, employees, invitees, and visitors shall comply
fully with all requirements of the rules of the building which may be made by
Landlord. A copy of such rules shall be furnished to Tenant and such rules may
be changed or amended by Landlord at any time, if said rules are to the mutual
benefit and safety of both Tenant and Landlord. Such rules may be changed or
amended by Landlord from time to time. If said rules shall be printed on a
separate schedule, such schedule shall be attached to this Lease and made a part
hereto in the form of an Amendment to this Lease.
12. Entry for Repairs
Tenant will permit Landlord or its officers, agents or representatives the
right to enter into and upon any and all parts of the demised premises at all
reasonable hours to inspect same or clean or make repairs or alterations or
additions as Landlord may deem necessary.
13. Signs
Tenant shall not paint, display, inscribe, maintain, or affix any sign,
picture, advertisement, notice, lettering or directions on any part of the
outside, except on hallway doors of the premises, and then only such name or
names or matter and in such colors, size, style, character, and materials as may
be first approved by Landlord in writing, with such approval not to be
unreasonably withheld or denied by Landlord.
14. Defacing Premises and Overloading
Draperies, blinds, shades, awnings, or other forms of inside or outside
window coverings, or window ventilators or similar devices, shall not be placed
in or about the outside windows in the premises except to the extent, if any,
that the character, shape, color, material, lining and make thereof is approved
by the Landlord, and Tenant shall not do any painting or decorating in the
premises or make paint cut or drill into or in any way deface any part of the
premises or building without the prior consent of Landlord. Such consent shall
not be unreasonably withheld by Landlord.
15. Subordination Estoppel Certificate
This Lease is and shall be at the option of the holder of indebtedness
secured by a first mortgage and on the land and building of which the demised
premises fonts a part, be subject and subordinate to any such first mortgage
only and to all renewals, modifications, consolidations, replacements and
extensions of said first mortgage and although this subordination provision
shall be deemed for all purposes to be automatic and effective at the option of
the holder of said first mortgage, without any further instrument on the part of
the Tenant, Tenant shall execute any instrument requested by the Landlord to
confirm such subordination or to effect the superiority of such first mortgage
to this Lease should such first mortgage so require. Landlord and Tenant
covenant not to subordinate this Lease to any mortgage subordinate to such first
mortgage. Tenant shall at any time and from time to time upon not less than ten
days prior written notice for Landlord execute, acknowledge and deliver to
Landlord statement in writing as to the status of this Lease in form and
substance satisfactory to the first mortgage. Tenant's failure to deliver such
statement within such time shall be conclusive upon Tenant (i) that this Lease
in its full force and effect, without modification except as may be represented
by Landlord (ii) that there are not uncured defaults in Landlord's performance
and that Tenant has no right to offset, counterclaims or deduction against rent,
and (iii) that no more than one month's rent has been paid in advance, nothing
contained in this Agreement shall be construed as placing any limitation upon
Landlord's right to sell, mortgage, assign or in any manner convey an interest,
in part for for in whole of either the Land or the Building, or both.
16. Condemnation
If the demised premises be taken by virtue of eminent domain or for any
public or quasi-public use or purpose, this Lease and the estate thereby granted
shall terminate as of this date of such taking, if any part of the building
other than the demised premises be so taken, the Landlord shall have the right
to terminate this Lease at the date of such taking or within six months
thereafter by giving the Tenant thirty (30) days prior notice of the date of
such termination. Tenant shall have no claim to or interest in any award
resulting from any such condemnation proceedings.
17. Loss or Damage
In the event the Premises shall be substantially damaged or destroyed
either (i) by an insured casualty within Landlord's standard fire and extended
coverage co-insurance policies to such extent that Landlord cannot make
necessary repairs or rebuild within ninety (90) days from the date of such
damage or destruction; or (ii) by any uninsured casualty, then this Lease
Agreement may be terminated in which event Tenant shall be allowed in abatement
of rent from the date of such damage or destruction. In the event of damage by
fire or other causes resulting from fault or negligence of Tenant or Tenant's
agents, employees, invitees, or visitors, there shall be no rent abatement and
the damages shall be repaired by and at the expense of Tenant under the
direction and supervision of Landlord.
If the Premises shall be substantially damaged or destroyed by fire or
other causes and Landlord elects to repair the Premises and continue this Lease,
then this Lease Agreement shall not terminate, the Premises shall be repaired or
rebuilt by Landlord at its own expense, the Base Rental shall xxxxx
proportionately until the repairs or rebuilding be completed and possession
thereof given to Tenant, and the term of this Lease Agreement shall be extended
for a period equal to such period of rent abatement but not otherwise affected.
Tenant shall in all events restore or repair its additions and improvements to
the Premises and all components of the Premises which are not building standard
(which are not insured by Landlord) and which Landlord shall have no obligations
to repair or restore. Tenant shall, in case of damage or destruction, give
immediate notice in writing to Landlord.
Should fifty percent (50%) or more of the total Rentable Area of the
Building at any time be damaged or destroyed by fire or any other cause,
Landlord may elect not to rebuild and may forthwith terminate this Lease
Agreement by written notice to Tenant of Landlord's election to so terminate,
with such notice being given within thirty (30) days of such damage or
destruction. In the event of a casualty loss or damage which arises out of or in
connection with the use, misuse, or occupancy of the Premises by Tenant, or
results from the acts or omissions of Tenant, its employees or agents, Tenant
shall indemnify Landlord for any claims, loss or damage not covered under
Landlord's standard insurance coverage, including the deductible portion of such
insurance.
18. Holding Over
In case of holding over by Tenant after expiration or termination of this
Lease, Tenant will pay as liquidated damages double rent (twice the amount of
base rent stated herein) for the entire holdover period. No holding over by
Tenant after the term of this Lease, either with or without consent and
acquiescence of Landlord shall operate to extend the Lease for a longer period
than one month; and any holding over with the consent of the Landlord in writing
shall thereafter constitute this Lease a Lease from month to month.
19. Attorney's Fee
In the event either party makes default in the performance of any of the
terms, covenants, agreements or conditions contained in this Lease and either
party places the enforcement of this Lease, or any part thereof, in the hands of
an attorney, or files suit upon same, the non-prevailing party agrees to pay the
prevailing' party's reasonable attorney's fees and related costs.
20. Amendment of Lease
This agreement may not be altered, changed or amended, except by an
instrument in writing, signed by both parties hereto.
21. Transfer of Landlord's Rights
Landlord shall have the right to transfer and assign, in whole or in part,
all and every feature of its rights and obligations hereunder and in building
and property referred to herein. Such transfers or assignments may be made
either to a corporation, partnership, trust company, individual or group of
individuals, and howsoever made, are to be in all things respected and
recognized by Tenant and upon assumption of Landlord's obligations hereunder.
22. Default by Tenant
Default on the part of Tenant in paying said rent or any installment
thereof, as hereinabove provided or default on Tenant's part in keeping or
performing any other term, covenant, or condition of this Lease, shall authorize
Landlord, at its option am any time after such default, and after ten (10) days
written notice thereof to Tenant, to declare this Lease terminated, and upon the
occurrence of any one or more of such defaults Landlord, immediately, or at any
time thereafter, may re-enter said premises and remove all persons therefrom
with or without legal process, and without prejudice to any or its other legal
rights, and all claims for damage by reason of such re-entry are expressly
waved, as also are all claims for damages by reason of any distress warrants or
proceeding by way of sequestration which Landlord may employ to recover said
rents or possessions of said premises; provided that landlord shall not have the
right to declare this Lease terminated if, within ten (10) days after notice of
any default, Tenant fully cures all defaults. Upon such termination, Tenant
shall immediately owe and be indebted to Landlord for the entire unpaid rent for
the canceled period of this Lease, Landlord agreeing to attempt the re-renting
of the demised premises with reasonable diligence and to credit Tenant's account
with any net rental collected.
23. Waiver
Failure of Landlord to declare any default immediately upon occurrence
thereof or delay in taking any action in connection therewith shall not waive
such default, but Landlord shall have the right to declare any such default at
any time, and take such action as might be lawful or authorized hereunder,
either in law or in equity.
24. Possession
Tenant agrees that if Landlord is not able to deliver possession of the
premises as herein provided Landlord shall not be liable for any damages to
Tenant for such failure, but Landlord agrees to use due diligence to obtain
possessions for the Tenant at the earliest possible date and an abatement of
rent shall be allowed for such time as Tenant may be deprived of possessions of
said premises.
25. Bankruptcy
If voluntary bankruptcy proceedings be instigated by Tenant, or if
proceedings be instituted by any one else to adjudge Tenant a bankrupt, or if
Tenant makes an assignment for the benefit of its creditors or if execution be
issued against him or if the interest of Tenant in this contract pass by
operation of law to any person other than Tenant this Lease may at the option of
Landlord, be terminated by notice addressed to Tenant and posted in the United
States mails or delivered and Tenant shall be liable to Landlord as if this
Lease were terminated due to a default as provided herein.
26. Assignment by Landlord
This Lease shall also insure to the benefit of the successor and assigns
of Landlord and with the written consent of Landlord first had and obtained, but
not otherwise, to the benefit of the heirs, executors and/or administrators,
successors and assigns of Tenant.
27. Work to be Done by Landlord
In the event Landlord agrees to make improvements or alteration to the
Premises, such improvements shall be performed only as shown on working drawings
to be approved by Landlord and Tenant, said working drawings to be either
prepared or approved by Landlord's architect and attached hereto as Exhibit "C",
and at a cost not to exceed Twenty Eight Thousand Dollars ($28,000.00), Tenant
agreeing to pay all other costs. In addition, Landlord also agrees to install
four (4) exterior window awnings, at Landlord's sole cost and expense, and as
described on the attached proposal from Memphis Delta Tent and Awning, dated
July 31, 1996.
28. Prior Occupancy
If Tenant shall occupy the premises prior to the beginning of the terms of
this Lease, with Landlord's consent all of the provisions of this Lease shall be
in full force and effect commencing on the date of such occupancy. Such
occupancy shall be on the basis of a month to month tenancy until the beginning
of the term of this Lease, and rent for such period shall be paid at the monthly
rate set forth in Article 3 or at a daily rate of 1/30 of said monthly rate.
29. Continuation of Lease After Termination
No receipt of money by Landlord from Tenant after the termination of this
Lease, or after the service of any notice, or after commencement of any suit, or
after final judgment for possession of the premises shall reinstate, continue or
extend the term of this Lease or affect any such notice, demand or suit.
30. Waiver or Subrogation
Each of the parties hereto waives any and all rights of recovery against
the other or against the officers, employees, agents, representatives of such
other party for loss of or damage to such waiving party or its property or the
property of others under its control, arising from any cause insured against
under the standard form of fire insurance policy with all permissible extension
endorsements covering additional parts or under any other policy of insurance
carried by such waiving party in lieu thereof, provided said waiver does not
adversely affect such insurance.
31. Notices
All notices required or provided for under this Lease Agreement shall be
given in writing by registered or certified return receipt requested U.S. Mail,
postage prepaid and addressed as referenced below, or to such other addresses
or designee(s) as Landlord or Tenant may direct in writing from time to time.
Tenant shall also give such notices as are provided for herein to the Landlord
to any mortgage of the demised premises to whom Tenant is so directed by written
notice from Landlord.
TO TENANT: TO LANDLORD:
---------- -----------
Display Arts, Inc. The Hertz Group
0000 Xxx Xxxx Xxxx 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000 Xxx Xxxxxxx, Xxxxxxxxxx 00000
32. Brokers
Landlord and Tenant warrant and represent that other than Xxx Xxxxxxx of
IRC-Interstate Realty Corporation, no real estate broker has been involved by
either in this Lease, and each party agrees to indemnify and hold the other
party harmless form and against any and all claims of any real estate broker due
to acts of such party or such party's representatives. Landlord agrees to pay
Interstate Realty Corporation a commission in accordance with the agreement
between Landlord and Interstate Realty Corporation.
33. Security Deposit
Tenant has deposited with Landlord the sum of Two Thousand Six Hundred
Twenty Five Dollars ($2,625.00) as security for the full and faithful
performance by Tenant of Tenant's covenants and obligations hereunder. Such
security deposit shall not bear interest and shall not be considered an advance
payment of Rent or a measure of Landlord's damages in case of default by Tenant.
In the event Tenant defaults in the performance of any of the covenants and
obligations hereunder, including, but not limited to the payment of all Rent to
be paid hereunder, Landlord may, from time to time, without prejudice to any
other remedy, use such security deposit to the extent necessary to make good on
arrearages in Rent or any sum as to which Tenant is in default and any other
damage, injury, expense, or liability caused to Landlord by such default,
including any damages or defiency in the reletting of the Lease Premises,
whether such damages or deficiency may accrue before or after termination of
this Lease. Following any such application of the security deposit, Tenant shall
pay to Landlord on demand the amount so applied in order to restore the security
deposit to its original amount. If Tenant is not then in default hereunder, any
remaining balance of the security deposit shall be returned by Landlord to
Tenant within fifteen (15) days after termination of this Lease and delivery of
the entire possession of the Leased Premises to Landlord's accordance with this
Lease. If Landlord assigns its interest in the Leased Premises during the term
hereof, Landlord my assign the security deposit to the assignee, and thereafter
Landlord shall have no further liability for the return of such security
deposit, and Tenant agrees to look solely to the new Landlord for the return of
such security deposit. The provisions of the preceding sentence shall apply to
every transfer or assignment made of the security deposit to a new Landlord.
Tenant agrees that it will not assign or encumber, the moneys deposited
hereunder as security, and that Landlord
and its successors and assigns shall not be bound by any such actual or any
attempted assignment or encumberance. Regardless of any assignment of this Lease
by Tenant, Landlord may return the security deposit to the original Tenant, in
the absence of evidence satisfactory to Landlord of an assignment of the right
to receive such security deposit or any part of the balance thereof.
34. Miscellaneous
LANDLORD AND TENANT MUTUALLY COVENANT WITH EACH OTHER
(1) That all rights and remedies of the Landlord under this Lease shall be
cumulative, and none shall exclude any other rights and remedies allowed by law.
(2) It is understood and agreed by the parties hereto that notice from
Landlord mailed or delivered to premises leased hereunder, shall constitute
sufficient notice to the Tenant to comply with the terms of this Lease.
(3) It is further understood and agreed that any charges against the
Tenant by the Landlord for supplies, services, or for work done on the premises
by order of the Tenant or otherwise, accruing under this Lease shall be
considered as rent due and shall be included in any lien for rent due and
unpaid.
(4) That all schedules initiated by both parties hereto and attached to
this Lease shall be a part of this Lease whether or not said schedules are
specifically referred to in the Lease.
(5) That the waiver by Landlord of any covenant or covenants of this Lease
shall be limited to the particular convenant and shall not operate nor be
deemed to waive any future breaches of the same covenant or covenants nor of any
other covenant or covenants.
(6) In the event that any provision or part of a provision of this Lease
is held invalid the other provisions and parts of provisions shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereunto executed this Lease Agreement
this the day and year first above written
LANDLORD:
[ILLEGIBLE]
--------------------------------------
/s/ [ILLEGIBLE]
--------------------------------------
TENANT:
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx
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Vice President Sales & Marketing
The above lease agreement is contingent on the landlords execution by
August 13, 1996
RIDER NO. 101
TO LEASE BY AND BETWEEN
THE HERTZ GROUP
AS LANDLORD
AND
DISPLAY ARTS, INC.
AS TENANT
GUARANTY OF LEASE
In order to induce the Landlord to execute that certain Lease Agreement
(the "Lease") to which this Rider No. 101 is attached and made a part of, the
undersigned, whether one or more, jointly and severally, hereby guarantees the
payment and performance of, and agrees to pay and perform as a primary obligor,
all liabilities, obligations, and duties (including, but not limited to, payment
of Rent) imposed upon Tenant thereunder. The liability of the undersigned shall
also be reduced by the amount of any security deposit actually applied by
Landlord to discharge the liability of Tenant following an event of default.
The undersigned hereby waives notice of acceptance of this guarantee and
all other notices in connection herewith or in connection with the liabilities,
obligations, and duties guaranteed hereby, including notices of default by
Tenant under the Lease, and waives diligence, presentment, and suit on the part
of Landlord in the enforcement of any liability, obligation, or duty guaranteed
hereby.
The undersigned further agrees that Landlord shall not be first required
to enforce against Tenant or any other person any liability, obligation, or duty
guaranteed hereby before seeking enforcement thereof against the undersigned.
Suit may be brought and maintained against the undersigned by Landlord to
enforce any liability, obligation, or duty guaranteed hereby without joinder of
Tenant or any other person. The liability of the undersigned shall not be
affected by any indulgence, compromise, settlement, or variation of terms which
may be extended to Tenant by Landlord or agreed upon by Landlord and Tenant, and
shall not be affected by any termination of the Lease to the extent that Tenant
thereafter continues to be liable thereunder Landlord and Tenant, without
notice to or consent by the undersigned, may at any time or times enter into
such modifications, extensions, amendments, or other covenants respecting the
Lease as they may deem appropriate, and the undersigned shall not be released
thereby, but shall continue to be fully liable for the payment and performance
of all liabilities, obligations, and duties of Tenant under the Lease, as so
modified, extended, or amended.
The liability of the undersigned hereunder shall in no way be affected by
(a) the release or discharge of Tenant in any creditor, receivership,
bankruptcy, or other similar proceedings; (b) the impairment, limitation, or
modification of the liability of Tenant or the estate of Tenant in bankruptcy or
of any remedy for the enforcement of Tenant's liability under the Lease
resulting from the operation of any present or future provisions of the Federal
Bankruptcy Code or other statute or from the decision of any court (c) the
rejection or disaffirmance of the Lease in any such proceedings; (d) the
assignment or transfer of the Lease by Tenant; or (e) any disability or other
defense of Tenant.
Until all the covenants and conditions in the Lease on Tenant's part to be
performed and observed are fully performed and observed, the undersigned: (a)
shall have no right of subrogation against Tenant by reason of any payments or
acts of performance by the undersigned in compliance with the obligations of the
undersigned hereunder; (b) waives any right to enforce any remedy which the
undersigned now or hereafter shall have against Tenant by reason of any one or
more payments or acts of performance in compliance with the obligations of the
undersigned hereunder; and (c) subordinates any liability or indebtedness of
Tenant now or hereafter held by the undersigned to the obligations of Tenant to
Landlord under the Lease.
This Guaranty shall be binding upon the undersigned and the heirs,
executors, and legal representatives of the undersigned, and shall inure to the
benefit of Landlord and its successors and assigns.
EXECUTED this 8th day of August, 1996.
Guarantor: Xxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
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Signature of Guarantor
Xxxxxxx Xxxxxxx
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Printed Name of Guarantor
Memphis
RIDER NO. 101
TO LEASE BY AND BETWEEN
THE HERTZ GROUP
AS LANDLORD
AND
DISPLAY ARTS, INC.
AS TENANT
GUARANTY OF LEASE
In order to induce the Landlord to execute that certain Lease Agreement
(the "Lease") to which this Rider No. 101 is attached and made a part of, the
undersigned, whether one or more, jointly and severally, hereby guarantees the
payment and performance of, and agrees to pay and perform as a primary obligor,
all liabilities, obligations, and duties (including, but not limited to, payment
of Rent) imposed upon Tenant thereunder. The liability of the undersigned shall
also be reduced by the amount of any security deposit actually applied by
Landlord to discharge the liability of Tenant following an event of default.
The undersigned hereby waives notice of acceptance of this guarantee and
all other notices in connection herewith or in connection with the liabilities,
obligations, and duties guaranteed hereby, including notices of default by
Tenant under the Lease, and waives diligence, presentment, and suit on the part
of Landlord in the enforcement of any liability, obligation, or duty guaranteed
hereby.
The undersigned further agrees that Landlord shall not be first required
to enforce against Tenant or any other person any liability, obligation, or duty
guaranteed hereby before seeking enforcement thereof against the undersigned.
Suit may be brought and maintained against the undersigned by Landlord to
enforce any liability, obligation, or duty guaranteed hereby without joinder of
Tenant or any other person. The liability of the undersigned shall not be
affected by any indulgence, compromise, settlement, or variation of terms which
may be extended to Tenant by Landlord or agreed upon by Landlord and Tenant, and
shall not be affected by any termination of the Lease to the extent that Tenant
thereafter continues to be liable thereunder Landlord and Tenant, without
notice to or consent by the undersigned, may at any time or times enter into
such modifications, extensions, amendments, or other covenants respecting the
Lease as they may deem appropriate, and the undersigned shall not be released
thereby, but shall continue to be fully liable for the payment and performance
of all liabilities, obligations, and duties of Tenant under the Lease, as so
modified, extended, or amended.
The liability of the undersigned hereunder shall in no way be affected by
(a) the release or discharge of Tenant in any creditor, receivership,
bankruptcy, or other similar proceedings; (b) the impairment, limitation, or
modification of the liability of Tenant or the estate of Tenant in bankruptcy or
of any remedy for the enforcement of Tenant's liability under the Lease
resulting from the operation of any present or future provisions of the Federal
Bankruptcy Code or other statute or from the decision of any court; (c) the
rejection or disaffirmance of the Lease in any such proceedings; (d) the
assignment or transfer of the Lease by Tenant; or (e) any disability or other
defense of Tenant.
Until all the covenants and conditions in the Lease on Tenant's part to be
performed and observed are fully performed and observed, the undersigned: (a)
shall have no right of subrogation against Tenant by reason of any payments or
acts of performance by the undersigned in compliance with the obligations of the
undersigned hereunder; (b) waives any right to enforce any remedy which the
undersigned now or hereafter shall have against Tenant by reason of any one or
more payments or acts of performance in compliance with the obligations of the
undersigned hereunder; and (c) subordinates any liability or indebtedness of
Tenant now or hereafter held by the undersigned to the obligations of Tenant to
Landlord under the Lease.
This Guaranty shall be binding upon the undersigned and the heirs,
executors, and legal representatives of the undersigned, and shall inure to the
benefit of Landlord and its successors and assigns.
EXECUTED this 8th day of August, 1996.
Guarantor: Xxxxxxx XxXxxxx
/s/ Xxxxxxx XxXxxxx
--------------------------------------
Signature of Guarantor
Xxxxxxx XxXxxxx, Xx.
--------------------------------------
Printed Name of Guarantor
-------------------------
Loan Number
LESSORS AGREEMENT IN
SMALL BUSINESS ADMINISTRATION LOAN
STATE OF TENNESSEE LOCATION OF PROPERTY:
COUNTY OF Shelby 00 Xxxxx Xxxx Xx.
Xxxxxxx, XX 00000
For and an consideration of First American Bank, Memphis, Tennessee,
making a loan in the amount of Two Hundred Fifty Thousand Dollars
($250,000.00) to Display Arts, Inc., Nashville, Tennessee, (herein called
"Lessee"), the Lessor agrees:
1. That as of this date, Lessee Is not in default under any terms
of the lease of the premises occupied by borrower.
2. That In the event of any default under such lease, Lessor will
not terminate the lease or take any action to enforce any
claim with respect thereto without giving to the holder of the
Note at least sixty days' prior written notice and the right
to cure such default within said period; and so long as the
holder of the Note has not entered in possession of the
premises leased in lease for the purpose of operating the said
business, it shall not be liable for rent or any other
obligation of Lessee pursuant to, or in connection with said
lease, and Lessee shall remain liable for all such rents and
obligations.
3. That Lessor subordinates to all liens securing the Note until
payment in full of the indebtedness evidenced by the Note,
every lien of Lessor on, and every right of Lessor to
institute proceedings to establish any lien or claim against
any or all of the property hypothecated as collateral for the
Note.
4. That Lessor has full power and authority to execute said
Instrument and has title of the leased premises or such
property rights therein as to make effective the vesting in
Lessee of rights with respect thereto in accordance with the
terms of said lease and the said instruments.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No. 5193
================================================================================
State of California
County of Los Angeles
On 8/13/96 before me, Xxxxxx Xxxxxxxxxx, Notary Public
----------------------------------------------------------
NAME, TITLE OF OFFICER - E.G. XXXX XXX/"NOTARY PUBLIC"
personally appeared Kit Xxxxxxxx
------------------------------------------------------------
NAME(S) OF SIGNER(S)
|X| personally known to me - OR - |_| proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
XXXXXX XXXXXXXXXX Witness my hand and official seal.
COMM. # 1013887
[SEAL] Notary Public - California
LOS ANGELES COUNTY /s/ Xxxxxx Xxxxxxxxxx
My Comm. Expires FEB 8, 1998 --------------------------------------
SIGNATURE OF NOTARY
================================================================================
OPTIONAL SECTION
CAPACITY CLAIMED BY SIGNER
Though statute does not require the Notary to fill in the data below doing so
may prove invaluable to persons relying on the document
|_| INDIVIDUAL
|_| CORPORATE OFFICER(S)
---------------------------------
TITLE(S)
|_| PARTNER(S) |_| LIMITED
|_| GENERAL
|_| ATTORNEY-IN-FACT
|_| GUARDIAN/CONSERVATOR
|X| OTHER: AUTHORIZED SIGNATURE
--------------------------
SIGNER IS REPRESENTING
NAME OF PERSONS OR ENTITIES
JH2H
-------------------------------------
================================================================================
OPTIONAL SECTION
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT
--------------------------------------------------------------------------------
Though the data requested here is not required by law, it could prevent
fradulent reattachment of this form.
TITLE OR TYPE OF DOCUMENT ______________________________________________________
NUMBER OF PAGES _______________ DATE OF DOCUMENT _______________________________
SIGNER(S) OTHER THAN THOSE NAMED ABOVE _________________________________________
================================================================================
[LOGO] MEMPHIS LIGHT, GAS AND WATER DIVISION
GENERAL POWER SERVICE AGREEMENT
FORM 42033 (Rev 4/95)
PLEASE TYPE OR PRINT
================================================================================
1 NAME OF BUSINESS DATE
Display Arts Inc 12-2-96
--------------------------------------------------------------------------------
2 SERVICE ADDRESS ACCOUNT NUMBER 3 BUSINESS TELEPHONE
00 X. Xxxx Xx. 0540323305 000-000-0000
--------------------------------------------------------------------------------
4 NATURE OF BUSINESS 5 TYPE OF OWNERSHIP TRUSTEE |_|
SOLE PROPRIETOR/PRIVATE CORPORATION |X|
Exhibit Display/Graphic Sales DEBTOR IN POSSESSION |_| PARTNERSHIP |_|
--------------------------------------------------------------------------------
6 MAILING ADDRESS IF DIFFERENT FROM SERVICE ADDRESS
--------------------------------------------------------------------------------
ACTIVE ACCOUNT RETAINED (WATER) SEE REVERSE SIDE
FOR ADDITIONAL
32 S. Main 0540632416 SERVICE ADDRESSES
--------------------------------------------------------------------------------
NAMES OF OWNERS OF OFFICERS HOME ADDRESS HOME TELEPHONE NO
(ADDITIONAL MAIL ADDRESS)
--------------------------------------------------------------------------------
7 PRESIDENT OR OWNER
0000 Xxxxxxxxxx Xxxx
Xxxxxxx X. Xxxxxxx XXxxx, XX 00000 901-759-4830
--------------------------------------------------------------------------------
SS NO
000000000
--------------------------------------------------------------------------------
8 VICE PRESIDENT
--------------------------------------------------------------------------------
SS NO
--------------------------------------------------------------------------------
9 SECRETARY/TREASURER
--------------------------------------------------------------------------------
SS NO
--------------------------------------------------------------------------------
10 TAX NUMBER FEDERAL |_| STATE |_| SECURITY DEPOSIT
$155.00
================================================================================
DEPOSIT REFUND POLICY
MLGW Appreciates customers who establish and maintain good pay records. A good
pay record for thirty six consecutive months entitles you to a full return of
your deposit. Your deposit is applied to your account during the 37th month of
consecutive service, when the following conditions exist. You must have: 1) No
delinquent cut-offs during the previous two years or the current year. 2) No
balance on the current xxxx. 3) No returned or stopped payment checks in the
current year and no more than one the previous year. 4) No balance remaining on
Extended Payment Plan. 5) No extensions during the current year and no more than
two extensions during the previous year. If your pay record does not meet these
requirements your deposit will be held until utility services are terminated.
The deposit will be applied to your final xxxx.
I hereby apply to the Memphis Light, Gas and Water Division for gas and/or
electric and/or water service all to be rendered in accordance with the
following terms and conditions
The applicant, whose signature appears below and signing in said capacity,
hereinafter called the customer, hereby makes application to Memphis Light, Gas
and Water Division, hereinafter called the division, for service, and agrees to
accept service, and to pay for same as the bills are rendered therefore, in
accordance with applicable rates, rules and regulations now or hereafter in
effect. When accepted by the division as indicated by the commencement of
service, this agreement, together with applicable rate schedules and rules and
regulations of division now or hereafter in effect (all of which are consented
to be by customer) shall constitute the sole and only contract between customer
and division for the service herein applied for, unless a special written
agreement is executed. Rate schedules and rules and regulations are on file at
the division's office and are subject to inspection. Failure to receive a xxxx
does not release a customer form payment obligations. The customer shall pay all
collection expenses or attorney fees due to default or failure to perform the
obligations incurred as set forth in this agreement. It is agreed by the
customer and the division that this contract shall apply to the original address
of the customer and to all future addresses of the customer until said service
is requested terminated by the customer.
================================================================================
FOR CORPORATIONS ONLY
I, ___________________________, who serve the ______________________ corporation
in the capacity of _____________________, do make oath that the facts and
statements contained in the foregoing commercial contract are true to the best
of any knowledge, information and belief.
================================================================================
/s/ Xxxxxxx X. Xxxxxxx President 12-2-96 Contact Person
------------------------------------------- --------------------
Authorized Signature Title Date
Address
------------------------------------------- ---------------------------
Authorized Signature Title Date
(if applicable) Phone Number
----------------------
Sworn to and subscribed before me this ___________ day of ___________________,
19______.
------------------------------------------------------
Notary Public My Commission Expires
/s/ [ILLEGIBLE] 631 12-2-96
--------------------------------------------------------------------------------
MLGW Witness Signature Area Number Date Collection Department Signature
Indicates Credit Approved Date
================================================================================
