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EXHIBIT 10.34
LEASE
THIS LEASE (this "Lease") is made and entered into this 1st day of April,
1997, by and between BAT Rentals, Inc., a Nevada corporation (hereinafter called
"Landlord"), and BAT Acquisition Corp., a Delaware corporation (hereinafter
called "Tenant").
W I T N E S S E T H:
Landlord, for and in consideration of the covenants and agreements
hereinafter set forth to be kept and performed by both parties, does hereby
demise and lease to Tenant (for the term hereinafter stipulated) the Premises
(hereinafter called the "Demised Premises") commonly known as 0000 Xxxxx
Xxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000 and 0000 Xxxxx Xxxxxxxxxx Xxxx, Xxx
Xxxxx, Xxxxxx 00000, together consisting of an area approximately 183,000 square
feet; provided that the most northernmost portion of 0000 Xxxxx Xxxxxxxxxx Xxxx
outside the fenced yard used by BAT Rentals and consisting of an area
approximately 14,430 square feet, which property is leased to a third party,
shall not be considered to be part of the Demised Premises.
Landlord hereby leases the Demised Premises to Tenant and hereby grants to
Tenant its guests, invitees and licensees all easements, rights and privileges
appurtenant thereto, including the right to use adjoining parking areas,
driveways, roads, alleys and means of ingress and egress.
1. TERM: RENEWAL AND USE.
A. The original term ("Term") of this Lease shall begin on April 1, 1997
(the "Commencement Date") and shall expire on October 1, 1998. Tenant may renew
the Term of the Lease for an additional eighteen (18) month period by providing
Landlord with notice of such renewal 90 days prior to the expiration of the
Term. The "Term" shall include the original Term and any renewals thereof.
B. The Demised Premises may be used and occupied for any lawful purpose.
2. RENTAL.
A. Tenant does hereby covenant and agree to pay to Landlord, for the use
and occupancy of the Demised Premises, at the times and in the manner
hereinafter provided, $20,833.33 a month during the original Term and any
renewal Term ("Base Rent"); provided that the Base Rent during any renewal Term
shall be increased to reflect the change in the Consumer Price Index for the
Western Region (as measured on the first day of the renewal Term) during the
prior Term. Such Base Rent shall be paid in advance, without notice or invoice
from Landlord, on the first day of each and every month during the Term hereof.
In the event such Base Rent shall be determined under the
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provisions of Article 2 hereof to commence on a day other than the first day of
a month or the term shall end on other than the last day of a month, then Base
Rent shall be prorated accordingly.
B. In order to secure the performance of the provisions of this Lease to be
performed by the Tenant, Tenant has deposited with Landlord cash in the sum of
$20,833.33 (the "Security Deposit"). In the event a default occurs of the type
described in Article 17 hereof, Landlord may use or apply all or any part of the
Security Deposit to remedy any such default and upon ten (10) days notice,
Tenant shall remit to Landlord the amount of the Security Deposit so used or
applied. The Security Deposit may be applied to the last monthly Base Rent
payment. Any balance of the Security Deposit remaining at the expiration of the
Term or termination of the Lease shall be returned to Tenant within thirty (30)
days after the expiration of the Term. The terms of this Article 2 shall
survive expiration of the Term or termination of the Lease.
3. TAXES. Landlord agrees to pay on or before the date when due, all real
estate property taxes, general and special assessments which may be levied or
assessed against the Demised Premises.
4. COMPLIANCE WITH LAWS. Tenant and Landlord agree to comply with all laws,
ordinances, orders and regulations regarding the use and occupancy of the
Demised Premises and the cleanliness, safety or operation thereof. Tenant
agrees to comply with the reasonable regulations and requirements of any
insurance underwriter, inspection bureau or similar agency with respect to
improvements installed by Tenant. Tenant agrees to permit Landlord to comply
with such recommendations and requirements with respect to that portion of the
Demised Premises for which Landlord is responsible to repair and maintain.
5. CONDITION OF PREMISES. Tenant shall, during the Term of this Lease, have the
right to report to Landlord any defects or condition which are in need of repair
based upon the obligations of Landlords under this Lease. In connection
therewith, Landlord shall be obligated within a reasonable amount of time, not
to exceed thirty (30) days, to cure and correct such defects and conditions.
Landlord warrants that upon delivery of the Demised Premises to Tenant the
interior and exterior of the Demised Premises will meet with all present codes
required at the time by regulations of governing authorities. If at any time
the Demised Premises does not meet with codes as required by regulations of
governing authorities, then, except for work that is specifically performed by
Tenant for Tenant's use and occupancy, the Demised Premises will be brought up
to the proper standards at Landlord's expense. If Landlord fails to prosecute
such diligently and continuously until completion then Tenant may prosecute such
repairs itself and apply the cost of same against the next Base Rent obligation
due hereunder. Landlord shall also be responsible for paying any and all fines
or penalties assessed by any governmental authority if the Demised Premises
fails to meet codes and regulations of governmental authorities during the Term
of this Lease with respect to items for which Landlord is responsible to repair
and maintain as set forth in Article 6 of this Lease. Tenant shall be
responsible for paying any or all fines or penalties for noncompliance or
violation of codes and
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regulations of governmental authorities during the Term of this Lease with
respect to items for which Tenant is responsible to repair and maintain as set
forth in this Lease.
6. REPAIRS AND MAINTENANCE. Landlord covenants and agrees, at its expense
without reimbursement or contribution by Tenant, to keep, maintain and replace,
if necessary, the foundations, the exterior paint, the HVAC system, the plumbing
system, the electrical system, the utility lines and connections to and other
systems servicing the Demised Premises, the sprinkler mains, if any, structural
elements including, without limitations the roof, roof membrane, roof covering
(including interior ceiling), load-bearing walls, floors and masonry walls in
good condition and repair. Tenant covenants and agrees to keep and maintain the
Demised Premises in the same condition as existed at the Commencement Date,
normal wear and tear, damage from casualty and condemnation excepted. In the
event the Demised Premises become or are out of repair and condition due to the
failure of Landlord or Tenant to comply with the terms of this Article 6, then
the non-defaulting party shall have the right to perform or cause to be
performed any and all repairs necessary to restore and repair the Demised
Premises.
7. ALTERATIONS. Tenant shall not make any structural alterations to the Demised
Premises without, in each instance, first obtaining the written consent of
Landlord, which consent shall not be unreasonably withheld or delayed. Tenant
shall be permitted to make interior nonstructural alterations, additions and
improvements without Landlord's prior consent.
8. FIXTURES AND PERSONAL PROPERTY. Any trade fixtures, business equipment,
inventory, trademarked items, signs, and other removable personal property
installed in or on the Demised Premises ("Tenant's Property"), shall remain the
property of the Tenant. Landlord agrees that Tenant shall have the right, at
any time or from time to time, to remove any and all of Tenant's Property.
Tenant, at its expense, shall immediately repair any damage occasioned by the
removal of Tenant's Property and upon expiration or earlier termination of this
Lease, shall leave the Demised Premises in a neat and clean condition, free of
debris, normal wear and tear and damage from casualty and condemnation excepted.
9. LIENS. Neither Landlord nor Tenant shall permit to be created nor to remain
undischarged any lien, encumbrance or charge arising out of any work or work
claim of any contractor, mechanic or laborer of Tenant or material supplied by a
materialman to, Landlord or Tenant which might be, or become, a lien or
encumbrance or charge upon the Demised Premises. If any lien or notice of lien
on account of an alleged debt of Landlord or Tenant or any notice of contract by
a party engaged by Landlord or Tenant or Landlord's or Tenant's contractor to
work in the Demised Premises shall be filed against the Demised Premises, the
responsible party shall, within forty-five (45) days after notice of the filing
thereof, cause the same to be discharged of record by payment, deposit or bond.
10. ACCESS TO PREMISES. Upon reasonable prior written notice, but in no event
less than twenty-four (24) hours (except in the case of an emergency), Landlord
may enter the Demised Premises during Tenant's business hours for purposes of
inspection, to show the Demised Premises
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to prospective purchasers and lenders, or to perform maintenance and repair
obligations imposed upon Landlord by this Lease.
11. SERVICES.
A. Landlord agrees to cause the necessary mains, conduits and other
facilities to be provided to make water, sewer, gas, phone and electricity
available to the Demised Premises and to make available to Tenant water, sewer,
gas, phone and electrical services prior to the Commencement Date at Landlord's
expense.
B. Tenant shall be solely responsible for and promptly pay all charges for
the use and consumption of sewer, gas, electricity, water, phone and all other
utility services used within the Demised Premises.
C. If the said utilities or services are interrupted or terminated because
of necessary repairs, installations, or improvements, or any cause beyond the
Landlord's reasonable control and if Tenant is unable to operate its business,
there shall be an abatement of all Base Rent and all other charges and items
payable under this Lease during such time period and if such interruption shall
continue for a period of more than seven (7) days, then Tenant may terminate the
Lease.
12. DAMAGE TO PREMISES. In the event the Demised Premises is damaged or
destroyed or rendered totally or partially untenantable for its accustomed use,
by fire or other casualty, then Landlord shall, within sixty (60) days after
such casualty, commence repair of said Demised Premises and within one hundred
twenty (120) days after commencement of such repair, restore the Demised
Premises to substantially the same condition in which it was immediately prior
to the occurrence of the casualty, except as otherwise provided in this Article
12. From the date of such casualty until the Demised Premises is so repaired
and restored all Base Rent and all other charges and items payable under this
Lease shall xxxxx in such proportion as the part of the Demised Premises thus
damaged, destroyed or rendered untenantable bears to the total Demised Premises.
If the Demised Premises cannot be repaired within 120 days, then Landlord or
Tenant shall have right to terminate this Lease effective as of the date of such
casualty, by giving one to the other within thirty (30) days of such casualty,
written notice of termination. Tenant may also terminate this Lease upon thirty
(30) days notice if Landlord fails to commence or complete such restoration and
repairs within the time period specified in this Article 12. If notice of
termination is given within the applicable thirty (30) day period, this Lease
shall terminate and Base Rent and all other charges shall xxxxx as aforesaid
from the date of such casualty, and Landlord shall promptly repay to Tenant any
Base Rent paid in advance which has not been earned as of the date of such
casualty.
13. INSURANCE.
A. Landlord also agrees to carry, during the Term hereof, all risk property
insurance (hereinafter, "Landlord's Property Insurance") covering fire and
extended coverage, vandalism and malicious mischief, sprinkler leakage and all
other perils of direct physical loss or damage insuring
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the improvements and betterments located in the Demised Premises, including the
Demised Premises and all appurtenances thereto (excluding Tenant's Property) for
the full replacement value thereof. Landlord, upon request, shall furnish
Tenant a certificate of such Landlord's Property Insurance. During the Term of
this Lease, Tenant agrees to reimburse to Landlord, for Tenant's proportionate
share of Landlord's annual total costs for the premiums for Landlord's Property
Insurance.
B. Tenant agrees to carry, during the Term hereof, Commercial General
Liability insurance on the Demised Premises, naming Landlord as an additional
insured, covering both Tenant and Landlord as their interest may appear, with
companies reasonably satisfactory to Landlord and giving Landlord and Tenant a
minimum of ten (10) days' written notice by the insurance company prior to
cancellation or termination of such insurance. Such insurance shall be for
limits of not less than One Million Dollars ($1,000,000.00) combined Bodily
Injury and Property Damage Liability.
C. Landlord and Tenant and all parties claiming under them, mutually
release and discharge each other from all claims and liabilities arising from or
caused by any casualty or hazard, covered or required hereunder to be covered in
whole or in part by insurance on the Demised Premises or in connection with
property on or activities conducted on the Demised Premises, and waive any right
of subrogation which might otherwise exist in or accrue to any person on account
thereof. This waiver shall not be required if the insurance carrier charges an
additional premium in order to provide such waiver and the party benefitting
from the waiver does not agree to pay the additional premium.
14. INDEMNIFICATION.
A. Tenant hereby indemnifies and holds Landlord harmless from and against
any and all claims, demands, liabilities and expenses, including attorneys,
fees, arising from Tenant's use of the Demised Premises or from any act
permitted, or any omission to act, in or about the Demised Premises by Tenant or
its agents, employees or contractors, or from any breach or default by Tenant of
this Lease, except to the extent caused by Landlord's negligence or willful
misconduct. In the event any action or proceeding shall be brought against
Landlord by reason of any such claim, Tenant shall defend the same at Tenant's
expense by counsel reasonably satisfactory to Landlord.
B. Landlord hereby indemnifies and holds Tenant harmless from and against
any and all claims, demands, liabilities and expenses, including attorneys'
fees, arising from Landlord's obligations, actions or from any act permitted, or
any omission to act, in or about the Demised Premises by Landlord or its agents,
employees, contractors or invitees, or from any breach or default by Landlord of
this Lease, except to the extent caused by Tenant's negligence or willful
misconduct. In the event any action or proceeding shall be brought against
Tenant by reason of any such claim, Landlord shall defend the same at Landlord's
expense by counsel reasonably satisfactory to Tenant.
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15. ASSIGNMENT, SUBLETTING AND OWNERSHIP.
A. Tenant shall have the right to sublet, assign or otherwise transfer its
interest in this Lease to any parent, affiliate, or operating subsidiary of
Tenant, subsidiary of Tenant's parent, or to a corporation with which it may
merge or consolidate or to a company, entity or individual that purchases all or
substantially all of the assets or common stock of Tenant either in one
transaction or a series of transactions, without Landlord's approval, written or
otherwise; provided that no such assignment or sublet shall be permitted nor
valid unless the assignee or sublessee is sufficiently financially solvent at
the time of the assignment or sublet to satisfy all obligations assigned to it
by Tenant, including all obligations with respect to this Lease assigned to it.
In the event of any such subletting, assignment or other transfer, Tenant shall
automatically be released from all liability upon such assignment or sublease
with respect to that portion of the Tenant's leasehold estate so assigned or
subleased.
B. The consent by Landlord to any other transfer, assignment, subletting,
encumbrance, license or concession agreement, change of ownership or
hypothecation shall not be unreasonably withheld, conditioned or delayed;
provided, however, if Landlord fails to respond to any request by Tenant for
Landlord's consent or approval within thirty (30) days of such request, the
consent or approval of Landlord shall be deemed given.
C. Landlord shall have the right to transfer, assign and convey, in whole
or in part, any or all of the right, title and interest to the Demised Premises,
provided such transferee or assignee shall be bound by the terms, covenants and
agreements herein contained, and shall expressly assume and agree to perform the
covenants and agreements of Landlord herein contained.
16. NON-DISTURBANCE AND ATTORNMENT.
A. Upon written request of Landlord, or any mortgagee or beneficiary of
Landlord, Tenant will, in writing, subordinate its right hereunder to the
interest of any ground lessor of the land upon which the Demised Premises is
situated and to the lien of any mortgage or deed of trust now or hereafter in
force against the land and building of which the Demised Premises is a part, and
upon any building hereafter placed upon the land of which the Demised Premises
is a part and to all advances made or hereafter to be made upon the security
thereof, provided, however, that the ground lessor, or the mortgagee or trustee
named in said mortgage or deed of trust shall agree that Tenant's peaceable
possession of the Demised Premises or its rights under this Lease will not be
disturbed on account thereof.
B. In the event any proceedings are brought for foreclosure, or in the
event of the exercise of the power of sale under any mortgage or deeds of trust,
upon any such foreclosure or sale Tenant agrees to recognize such beneficiary or
purchaser as the Landlord under this Lease, provided Tenant's rights under this
Lease continue unabated and its tenancy shall not be disturbed.
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17. DEFAULTS BY TENANT.
A. The occurrence of any of the following shall constitute a material
default and breach of this Lease by Tenant:
(i) Any failure by Tenant to pay Base Rent or make any other payment
required to be made by Tenant hereunder within ten (10) days after receipt
of written notice from the Landlord; and
(ii) A failure by Tenant to observe and perform any other material
provision of this Lease to be observed or performed by the Tenant, where
such failure continues for thirty (30) days after written notice thereof by
Landlord to Tenant, except that this thirty (30) day period shall be
extended for a reasonable period of time if the alleged default is not
reasonably capable of cure within said thirty (30) day period and Tenant
proceeds to diligently cure the default.
B. In the event of any breach of this Lease by Tenant, the Landlord,
besides other rights or remedies Landlord may have, shall have the immediate
right of re-entry and may remove all persons and property from the Premises;
such property may be removed and stored in a public warehouse or elsewhere at
the cost of, and for the account of Tenant. Should Landlord elect to re-enter,
as herein provided, or should he take possession pursuant to legal proceedings,
or pursuant to any notice provided for by law, Landlord may either terminate
this Lease or Landlord may from time to time, without terminating this Lease,
re-let said Premises, or any part thereof, for such term or terms (which may be
for a term extending beyond the term of this Lease) and at such rental or
rentals and upon such other fair market terms and conditions as Landlord in his
sole reasonable discretion may deem advisable. Upon each such re-letting (a)
Tenant shall be immediately liable to pay to Landlord, in addition to any
indebtedness other than rent due hereunder, the reasonable cost and expenses of
such re-letting, and the present value (using an 8.5% discount rate) of the
amount, if any, by which the rent reserved in this Lease for the period of such
reletting (up to but not beyond the term of this Lease) exceed the amount agreed
to be paid as rent for the demised Premises for such period on such re-letting;
or (b) at the option of Landlord rents received by such Landlord from such
re-letting shall be applied; first, to the payment of any indebtedness, other
than rent due hereunder from Tenant to Landlord; second, to the payment of any
reasonable costs and expenses of such re-letting; third, to the payment of rent
due and unpaid hereunder and the residue, if any, shall be held by the Landlord
and applied in payment of future rent as the same may become due and payable
hereunder. If Tenant has been credited any amount of the rent to be received by
such re-letting under option (a), and such rent shall not be promptly paid to
Landlord by the new Tenant, or, if such rentals received from such re-letting
under option (b) during any month be less than that to be paid during that month
by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such
deficiency shall be calculated and paid monthly. No such re-entry or taking
possession of said Premises by Landlord shall be construed as an election on his
part to terminate this Lease unless a written notice of such intention be given
to Tenant or unless the termination thereof be decreed by a Court of competent
jurisdiction. Notwithstanding any such re-letting without termination, Landlord
may at
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any time thereafter elect to terminate this Lease for such previous breach.
Should Landlord at any time terminate this Lease for any breach, in addition to
any other remedy he may have, he may recover from Tenant all damages he may
incur by reason of such breach, including the cost of recovering the Premises,
and including the present value (using an 8.5% discount rate) of the worth at
the time of such termination of the excess, if any, of the amount of rent and
charges equivalent to rent reserved in this Lease for the remainder of the
stated term over the then reasonable rental value of the Premises for the
remainder of the stated term, all of which amounts shall immediately be due and
payable from Tenant to Landlord.
18. DEFAULT BY LANDLORD. If Landlord should be in default in the performance of
any of its obligations under this Lease, which default continues for a period of
more than thirty (30) days after receipt of written notice from Tenant
specifying such default, or if such default is of a nature to require more than
thirty (30) days for remedy and continues beyond the time reasonably necessary
to cure (and Landlord has not undertaken procedures to cure the default within
such thirty (30) day period and diligently pursued such efforts to complete such
cure), Tenant may, in addition to any other remedy available at law or in
equity, at its option, upon written notice, terminate this Lease, or may incur
any expense necessary to perform the obligation of Landlord specified in such
notice and deduct such expense from the Base Rent or other charges and payments
due under the Lease.
19. SURRENDER OF PREMISES. Tenant shall, upon the expiration of the Term
granted herein, or any earlier termination of this Lease for any cause,
surrender to Landlord the Demised Premises, and all alterations, improvements
and other additions which may be made or installed by either party to, in, upon
or about the Demised Premises, other than Tenant's Property which shall remain
the property of Tenant as provided in Article 8 hereof.
20. EMINENT DOMAIN.
A. In the event that any material portion of the Demised Premises shall be
appropriated or taken under the power of eminent domain by any public or quasi
public authority, then at the election of Tenant, this Lease shall terminate and
expire as of the date of such taking, and both Landlord and Tenant shall
thereupon be released from any liability thereafter accruing under the Lease.
Notice of any termination relating to such eminent domain proceeding must be
made by Tenant to Landlord within sixty (60) days after receipt of written
notice of such taking.
B. If Tenant elects not to so terminate this Lease, Landlord shall promptly
repair and restore the Demised Premises to the condition that existed, as near
as possible, prior to such appropriation or taking, and Tenant may remain in
that portion of the Demised Premises which shall not have been appropriated or
taken, and thereafter all Base Rent and a other payments and charges under this
Lease of Tenant shall be adjusted on an equitable basis, taking into account the
relative value of the portion taken as compared to the portion remaining.
C. Tenant shall have the right to pursue a claim for damages with the
public or quasi public authority in connection with any eminent domain
proceeding.
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21. ATTORNEYS' FEES. In the event that at any time during the Term of this
Lease either Landlord or Tenant shall institute any action or proceeding against
the other relating to the provisions of this Lease, or any default hereunder,
the unsuccessful party in such action or proceeding agrees to reimburse the
successful party for the reasonable expenses of attorneys' fees and paralegal
fees and disbursements incurred therein by the successful party. Such
reimbursement shall include all legal expenses incurred prior to trial, at trial
and at all levels of appeal and postjudgment proceedings.
22. NOTICES. Notices and demands required, or permitted, to be sent to those
listed hereunder shall be sent by certified mail, return receipt requested,
postage prepaid, or by Federal Express or other reputable overnight courier
service and shall be deemed to have been given upon the date the same is
postmarked if sent by certified mail or the day deposited with Federal Express
or such other reputable overnight courier service, but shall not be deemed
received until one (1) business day following deposit with Federal Express or
other reputable overnight courier service or three (3) days following deposit in
the United States Mail if sent by certified mail to address shown below, and
addressed to:
LANDLORD: TENANT:
BAT Rentals, Inc. BAT Acquisition Corp.
c/o Xxxx Xxxxxxx c/o National Equipment Services, Inc.
0000 Xxxxx Xxxxxx Xxxxx 0000 Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
or at such other address requested in writing by either party upon thirty (30)
days' notice to the other party.
23. REMEDIES. All rights and remedies of Landlord and Tenant herein created or
otherwise extending at law are cumulative, and the exercise of one or more
rights or remedies may be exercised and enforced concurrently or consecutively
and whenever and as often as deemed desirable.
24. SUCCESSORS AND ASSIGNS. All covenants, promises, conditions,
representations and agreements herein contained shall be binding upon, apply and
inure to the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
25. WAIVER. The failure of either Landlord or Tenant to insist upon strict
performance by the other of any of the covenants, conditions, and agreements of
this Lease shall not be deemed a waiver of any subsequent breach or default in
any of the covenants, conditions and agreements of this Lease.
26. HOLDING OVER. If Tenant or any party claiming under Tenant remains in
possession of the Demised Premises or any part thereof after any termination or
expiration of this Lease, Landlord,
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in Landlord's sole discretion, may treat such holdover as an automatic renewal
of this Lease for a month-to-month tenancy subject to all the terms and
conditions provided herein.
27. INTERPRETATION. The parties hereto agree that it is their intention hereby
to create only the relationship of Landlord and Tenant, and no provision hereof,
or act of either party hereunder, shall ever be construed as creating the
relationship of principal and agent, or a partnership, or a joint venture or
enterprise between the parties hereto.
28. COVENANT OF TITLE AND QUIET ENJOYMENT. Landlord covenants that it has full
right, power and authority to make this Lease, and that Tenant or any permitted
assignee or sublessee of Tenant, upon the payment of the Base Rent and
performance of the covenants hereunder, shall and may peaceably and quietly
have, hold and enjoy the Demised Premises and improvements thereon during the
Term or any renewal or extension thereof.
29. ESTOPPEL. At any time and from time to time either party, upon request of
the other party, will execute, acknowledge and deliver an instrument, stating,
if the same be true, that the Lease identified in said instrument is a true and
exact copy of this Lease between the parties hereto, that there are no
amendments hereof (or stating what amendments there may be), that the Lease is
then in full force and effect and that, to the best of its knowledge, there are
no offsets, defenses or counterclaims with respect to the payment of Base Rent
reserved under the Lease or in the performance of the other terms, covenants and
conditions under the Lease on the part of Tenant or Landlord, as the case may
be, to be performed, and that as of such date no default has been declared under
the Lease by either party or if not specifying the same. Such instrument will
be executed by the other party and delivered to the requesting party within
fifteen (15) days of receipt, or else the statements made in the proposed
estoppel request shall be deemed to be correct.
30. CONSENT. Wherever in this Lease Landlord or Tenant is required to give its
consent or approval, such consent or approval shall not be unreasonably
withheld, conditioned or delayed. Except as otherwise provided in this Lease,
if no written response to a consent or request for approval is provided within
thirty (30) days from the receipt of the request, then the consent shall be
presumed to have been given.
31. WAIVER OF LANDLORD'S LIEN. Landlord hereby waives any contractual,
statutory or other Landlord's lien on Tenant's furniture, fixtures, supplies,
equipment, inventory and Tenant's Property.
32. SEVERABILITY. Any provision of this Lease which shall prove to be invalid,
void or illegal shall in no way affect, impair or invalidate any other
provisions hereof and such other provisions shall remain in full force and
effect.
33. GOVERNING LAW AND VENUE. This Lease shall be governed by the laws of the
state in which the Demised Premises is located.
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34. BROKERS. Landlord and Tenant represent and warrant one to the other that
they have not had any dealing with any real estate brokers or agents in
connection with the negotiation of this Lease. Landlord and Tenant indemnify
and hold each other harmless from and against any and all liability and cost
which Landlord or Tenant may suffer in connection with real estate brokers
claiming by, through or under either party seeking any commission, fee or
payment in connection with this Lease.
35. TENANT'S CONDUCT OF BUSINESS. Notwithstanding anything herein to the
contrary, nothing herein shall be construed as an obligation for Tenant to open
or operate its business in the Demised Premises. Tenant shall have the right to
remove Tenant's Property and cease operations in the Demised Premises at any
time and at Tenant's sole discretion.
36. TIME OF THE ESSENCE. Time shall be of the essence in interpreting the
provisions of this Lease.
37. ENTIRE AGREEMENT. This Lease contains all of the agreements of the parties
hereto with respect to matters covered or mentioned in this Lease and no prior
agreement, letters, representations, warranties, promises or understandings
pertaining to any such matters shall be effective for any such purpose. This
Lease may be amended or added to only by an agreement in writing signed by the
parties hereto or their respective successors in interest.
38. AUTHORIZATION. Landlord and Tenant each represent and warrant to the other,
that it has full power and authority to enter into this Lease and to perform all
of its obligations hereunder and that the execution and delivery of this Lease
does not and will not violate or conflict with any provision of any law,
contract, mortgage, lien, lease, instrument, agreement or judgment to which it
is a party or which is binding on such party. If Landlord or Tenant is a
corporation, limited liability company or partnership or other organization, the
person executing this Lease on behalf of such organization represents and
warrants that they have been duly authorized to execute this Lease on behalf of
such organization.
39. RIGHT OF FIRST REFUSAL. Throughout the term of this Lease, in the event
Landlord shall receive a bona fide offer for the purchase of all or any part of
the Demised Premises, and which offer Landlord desires to accept, Landlord shall
send notice thereof to Tenant as herein provided, setting forth the name and
address of the offeror and the terms of the offer. Tenant shall have fourteen
(14) days after receipt of such notice in which to elect to purchase the Demised
Premises, or the part thereof subject to the offer, as the case may be, on the
same terms and conditions as contained in the offer, such election to be
exercised by notice in writing to Landlord as hereinafter provided, sent within
such fourteen-day period. In the event Tenant shall elect to purchase such
property, such notice of election to purchase shall designate a date for the
closing of the transaction not less than thirty (30) days nor more than ninety
(90) days after the exercise of such option, and the closing shall be held on
the closing date so designated. In the event Tenant shall not elect to purchase
such property, then Landlord shall be permitted to consummate the sale thereof
to the offeror on the terms and conditions set forth in the notice of such offer
to Tenant. In the event,
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however, that Landlord shall not consummate such sale to the offeror on such
terms and conditions within ninety (90) days from the date of the sending of
notice of such offer to Tenant, then the provisions hereof shall be fully
reinstated and the rights of Tenant hereunder shall be restored with respect to
any subsequent sale of the Demised Premises, or any portion thereof. In any
event, this right of first refusal shall remain in full force and effect during
the Term of this Lease as to any part of the Demised Premises not subject to
such offer. Tenant's right of first refusal shall be applicable throughout the
entire term of the Lease, notwithstanding any transfers or sale of the Demised
Premises or portion thereof.
40. MEMORANDUM OF LEASE. The Parties hereto agree to enter into a Memorandum of
Lease in the form attached hereto and agree that such Memorandum of Lease shall
be recorded in the public records of the jurisdiction in which the Demised
Premises is located.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Lease on the day
and year first mentioned.
TENANT:
BAT ACQUISITION CORP.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
Title: CEO
LANDLORD:
BAT Rentals, Inc.,
a Nevada corporation
By: /s/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
Title: President
