EXHIBIT
10.36


 


LEASE AND OPTION TO PURCHASE


 


This Lease and
Option to Purchase (this “Agreement”) is made this 22nd
day of October 2004 between Burger Time Acquisition Corporation, a Minnesota
corporation (“Tenant”), and Mark Fiechtner, an individual resident of the State
of South Dakota (“Landlord”).


 


RECITALS


 


A.            Landlord
owns certain real property located at 24 5th Street SE, Watertown,
SD 57201 and legally described as                        ,
City of Watertown, County of                        ,
State of South Dakota (the “Property”).


 


B.            Landlord
desires to lease the Property to Tenant and to grant Tenant an exclusive option
to purchase the Property; Tenant desires to lease the Property from Landlord
and wishes to obtain an exclusive option to purchase the Property.


 


NOW THEREFORE, in consideration of the
promises and mutual covenants set forth below, Landlord and Tenant, intending
to be legally bound, hereby agree for themselves and their successors and
assigns as follows:


 


LEASE


 


1.             Lease.  In consideration of the payment of the rent
provided for in this Agreement, and the keeping and performance of the
covenants and agreements of Tenant herein set forth, Landlord hereby leases the
Property to Tenant.


 


2.             Term.  Tenant may have and hold the Property with
all its appurtenances for a term of one (1) year, commencing January 1, 2005,
with a right to renew for a further one (1) year term (exercisable upon written
notice to Landlord not later than December 1, 2005), unless the term hereby
demised shall be sooner terminated as provided in this lease.


 


3.             Rent.  Tenant shall pay to Landlord, as monthly rent
for the Property for the term of this lease, the sum of $2,000.00 per
month.  The rent shall be payable in
advance, on or before the fifth day of each month, and without notice at the
office of Landlord set forth below, or at such other place as Landlord from
time to time designates in writing.  The
first installment of rent payable hereunder shall be payable by Tenant on
before January 5, 2005.


 


4.             Costs
and Expenses.  Landlord shall remain
obligated for and shall discharge all ad valorem and similar real estate
taxes against the Property.  Tenant shall
be responsible for all other costs arising from or related to its occupancy of
the Property, including any and all assessments for water and sewer rents that
may be levied against the Property during the term of this lease, and all
charges for heating, light, gas, and telephone or other utility services to the



 


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Property, which Tenant shall pay as the same become due and
payable.  Tenant shall further maintain
and pay for appropriate levels of insurance related to its occupancy of the
Property in such amounts and pursuant to such policies, naming Landlord as co-insured,
as Landlord shall approve, which approval shall not be unreasonably withheld,
conditioned, or delayed.  In addition
Tenant shall reimburse Landlord for $201.41 covering the cost of insurance on
the premises.  Tenant shall also pay
$112.97 per month with the monthly rental payment covering the full amount of
the Wells Fargo Lease on point-of-sale equipment.  Landlord will continuing paying the lease
payments directly.


 


5.             Use.  Tenant agrees to use the Property as a
restaurant and for no unlawful or questionable purpose.


 


6.             Alteration.  Except with respect to signage in or about
the property, Tenant shall not make any alterations to the Property without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld, conditioned, or delayed.


 


7.             Inspection.  Landlord shall have the right at any time to
enter the Property to examine the same, or upon reasonable notice to Tenant to
make such repairs as it may in its discretion deem necessary or proper for the
safety, improvement, or preservation thereof.


 


8.             Maintenance
and Repair.  Landlord shall make all
necessary repairs to the outer walls, roof, downspouts, gutters and basic
structural areas of the Property. 
Subject to the foregoing, Tenant shall keep the Property in good condition
and repair and at the expiration of this lease (and in the absence of
exercising its option to purchase the Property) shall surrender and deliver up
the same in as good order and condition as when entered upon, ordinary wear and
tear excepted.


 


9.             Other
Covenants of Tenant.  Tenant
covenants and agrees that nothing shall be done or kept on the Property which
might impair its value, or which would constitute waste, and further agrees
that no noxious or offensive activities shall be carried on upon the Property,
nor shall anything be done or kept on the Property which may be or become a
public or private nuisance, or which may cause embarrassment, disturbance, or
annoyance to others on adjacent or nearby premises.  Tenant further covenants and agrees to
conduct its business and operations on and from the Property in accordance with
all federal, state, and local environmental laws, regulations, executive
orders, ordinances, and directives, and not to cause, suffer, or permit any
damage or impairment to the health, safety, or comfort of any person or to the
environment at or on the Property, including but not limited to damage or
threatened damage to the soil, surface or ground water resources at or near the
Property.


 


10.           Condition
of the Property.  The taking of
possession of the Property by Tenant shall be conclusive evidence as against
Tenant that the Property was in satisfactory condition when possession of the
same was taken.


 


11.           Condemnation.  If the whole or a substantial part of the
Property shall be taken for any public or quasi-public use, under any statute
or right of eminent domain or purchase by any governmental authority in lieu of
or under threat of any such taking, then, when possession shall 


 


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be taken of the Property, or any part
thereof, the term herein demised and all rights of Tenant hereunder shall
immediately cease and terminate, and the rent shall be adjusted as of the time
of such termination.


 


12.           Casualty.  If during the continuance of this lease the
Property shall be so injured by casualty not arising from the fault or
negligence of Tenant, or those in its employ, so that the Property shall
thereby be rendered unfit for use or occupation, then and in such case the rent
herein reserved or a just proportionate part thereof, according to the nature
and extent of the injury which has been sustained, shall be abated until the
Property shall have been duly repaired and restored.


 


13.           Tenant’s
Default.  If Tenant is in default in
performance of any of its obligations under this lease, and such default
continues for a period of ten (10) days after written notice of such default is
given by Landlord to Tenant, then, in addition to any other remedy Landlord may
have against Tenant, Landlord may terminate Tenant’s right to possession and
all other rights with respect to the Property under this Agreement, and to
re-enter and repossess the Property, and to remove therefrom any personal
property belonging to Tenant, without prejudice to any claim for rent or for
the breach of covenants hereof.


 


14.           Abandonment.  If Tenant abandons or vacates the Property
before the end of the term of this lease, then Landlord may, without being
obliged to do so, re-take possession of the Property.


 


15.           Remedies
Cumulative.  No reference to nor
exercise of any specific right or remedy by Landlord shall prejudice or
preclude Landlord from exercising or invoking any other remedy in respect
thereof, whether allowed at law or in equity or expressly provided for
herein.  No such remedy shall be
exclusive or dependent upon any other such remedy, but Landlord may from time
to time exercise any one or more of such remedies independently or in
combination.


 


16.           Holding
Over.  It is mutually agreed that if,
after the expiration of this lease, Tenant remains in possession of the
Property, without a written agreement as to such holding, then such holding
over shall be deemed and taken to be a holding upon a tenancy from month to
month at the monthly rental set forth in Section 3, adjusted upward by the
percentage increase in the U.S. Consumer Price Index from the latest index
available at expiration of this lease, and payable in advance on or before the
fifth day of each calendar month.  Any
month-to-month tenancy or tenancy at sufferance hereunder shall be subject to
all other terms and conditions of this lease and nothing contained in this
Section shall be construed to alter or impair any of Landlord’s rights of
re-entry or eviction or constitute a waiver thereof.  Unless there is a mutal agreement of the
parties the option to purchase the property shall terminate at the end of the
lease term.


 


17.           No
Waiver.  No waiver of any breach of
any one or more of the conditions or covenants of this lease by either party
shall be deemed to imply or constitute a waiver of any succeeding or other
breach hereunder.  Failure of either
party to insist upon strict performance of the terms, covenants, agreements,
and conditions herein contained, or any of them, shall not constitute or be
construed as a waiver or relinquishment of such party’s right to thereafter 


 


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enforce any such term, covenant, agreement,
or condition, but the same shall continue in full force and effect.  Each party acknowledges and agrees that it
has not relied upon any statements, representations, agreements, or warranties,
except such as are expressed in this Agreement.


 


18.           Late
Charges.  If Tenant fails to timely
pay any rent as required under this lease, then and in such event Landlord
shall be entitled to collect a late fee of five percent (5%) of any such
installment not paid within five (5) days of the due date.


 


19.           Estoppel.  Tenant shall, at any time and from time to
time, upon not less than ten days’ prior notice from Landlord, execute,
acknowledge, and deliver a written statement ratifying this lease and
certifying any information concerning Tenant’s lease and occupancy of the
Property reasonably required by Landlord.


 


OPTION TO PURCHASE


 


20.           Option
to Purchase.  For and in
consideration of its entering into the lease, Landlord grants to Tenant the
exclusive right and option to purchase the Property on the terms and subject to
the conditions of this Agreement.  The
Purchase Price for the Property shall be $275,000.00.  Seller shall be responsible for pro-rata
property taxes and for full payment of any special assessments.


 


21.           Option
Period.  Tenant’s right and option to
purchase the Property shall commence upon commencement of the lease, and expire
at the close of business, Central Time time, on the date on which the lease
expires (including any renewal hereof) (the “Option Period”).


 


22.           Option
Exercise.  At any time during the
Option Period, Tenant may elect to exercise its option to purchase the Property
by delivering to Landlord written notice of such election.  If Tenant does not deliver to Landlord such
notice prior to the expiration of the Option Period, the option to purchase
shall terminate, shall be of no further force and effect, and Landlord shall
have no further obligation or liability whatsoever to Tenant.


 


23.           Closing.  If Tenant timely and properly exercises his
option to purchase the Property, the parties shall proceed diligently to
closing and complete closing within sixty (60) days following the option exercise.  Tenant shall pay the Purchase Price at
closing in immediately available funds. 
The time and place of closing shall be designated by agreement of the
parties, and at the closing Landlord shall convey merchantable title by good
and sufficient general warranty deed, at such time free and clear of all taxes
and encumbrances except those of record which do not materially adversely
affect the title to the Property. 
Landlord will promptly obtain a title commitment and furnish it to
Tenant after it exercises the option as provided herein, and will furnish a
title insurance policy to Tenant after the Closing and pay the premium
thereon.  If title is not satisfactory to
Tenant, Tenant may rescind exercise of its option to purchase the
Property.  Taxes, as determined by the
most recently available levy and assessment, and all pre-paid items shall be
apportioned to the date of Closing when the deed and possession of the Property
shall be delivered to Tenant.  Other customary
closing costs shall be split fifty percent (50%) to Landlord and fifty percent
(50%) to Tenant.


 


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24.           Default.  If Landlord defaults under the terms and
conditions of this option, Tenant may have the right to an action for specific
performance of its option to purchase the Property, in addition to any other
remedies available at law or in equity.


 


25.           Access
to Information.  During the Option
Period, Landlord agrees to afford tp Tenant and to Tenant’s authorized
representatives reasonable access during normal business hours to the records
of Landlord relating to the Property, and to make available to Tenant such
other information pertaining to the Property in its possession or under its
control.


 


MISCELLANEOUS


 


26.           Inurement.  This Agreement shall bind and inure to the
benefit of the successors and assigns of the respective parties.


 


27.           Entire
Agreement; Applicable Law.  This
Agreement contains the entire understanding between the parties with respect to
the subject matter hereof.  Tenant and
Landlord each acknowledge that no representations of any kind whatsoever have
been made to induce its or his execution hereof, except such as are herein set
forth, and that the sole consideration for this Agreement is specifically
stated herein.  Neither this Agreement
nor any modification hereof (which must be in writing) shall be binding upon
any party until executed by the parties. 
Failure of any party to exercise any right hereunder, upon default of
any other party, shall not constitute a waiver of any such rights and shall not
permit such party from exercising any of its rights at any time thereafter or
upon any subsequent default.  This
Agreement and the rights and obligations of the parties shall be governed by
and construed pursuant to the applicable laws of the State of South Dakota, and
if any portion of this Agreement shall be held invalid or contrary to law, such
portion shall be severable from this Agreement and the remainder shall be valid
and enforceable.


 


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IN WITNESS WHEREOF, the parties have set
their hands and seals as of the day and year first above written.


 


 


	
  Tenant:

  	
  BURGER TIME ACQUISITION
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
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  Landlord:

  	
   

  	
   

  
	
   

  	
  MARK FIECHTER

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
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