|
Exhibit 10.8
LEASE AGREEMENT
THIS LEASE AGREEMENT (the " Lease ") is entered into and
made effective as of the 1 st
day of November, 2006 (the " Effective Date
"), by and between CALIBER WYOMING PROPERTIES LLC, a Delaware
limited liability company (the " Landlord "), and
DIAMONDBACK-QUANTUM LLC, an Oklahoma limited liability company (the
" Tenant ").
WITNESSETH :
WHEREAS, the Landlord owns certain real property and
improvements situated thereon physically located at 63 Casper View
Court, Mills, Natrona County, Wyoming, consisting of approximately
1.47 acres more or less and improvements situated thereon
consisting of 9,000 square feet more or less (the " Property
"); and
WHEREAS, the Landlord desires to lease to the Tenant, and the
Tenants desires to lease from the Landlord, the Property subject to
the terms and conditions described in this Lease.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Lease, and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the Landlord and the Tenant agree as follows:
1. LEASE . The Landlord hereby leases to the Tenant,
and the Tenant hereby leases from the Landlord, the Property,
subject to the terms and conditions described in this Lease. So
long as the Tenant is not in default under this Lease, the Landlord
covenants that the Tenant shall peacefully and quietly have, hold
and enjoy the Property during the Term.
2. TERM . The initial term of this Lease shall be
for a period of twenty (20) years commencing from the
Effective Date (the " Initial Term ") unless earlier
terminated in accordance with the terms and conditions described in
this Lease.
-
2.1 Extension Term . The Tenant shall have the right
to extend the Initial Term for up to one (1) additional five
(5) year period (an " Extension Term " and collectively
with the Initial Term and Extension Term being collectively
referred to as the " Term ") following the expiration of the
Initial Term or the Extension Term by providing the Landlord with
written notice of the exercise of such right at least thirty
(30) days prior to the expiration of the Initial Term or
Extension Term, as applicable. In the event the Tenant does not
exercise its right to the Extension Term, then this Lease shall
expire effective as of the expiration date of the Initial Term.
2.2 Terms and Conditions . All terms and conditions
in this Lease shall remain in force and effect during the Term
unless otherwise agreed to in writing between the Landlord and the
Tenant.
3. RENT . In exchange for the leasehold rights and
interests in and to the Property granted to the Tenant under this
Lease, the Tenant agrees to pay to the Landlord rent in the monthly
amount of $5,650.00 for the Property (the " Rent ") during
the Term. The Rent shall be paid on a monthly basis in advance by
the first day of each month during the Term. Payment for November
2006 shall be due upon execution of said Lease. Payment of the Rent
shall be made to the Landlord at 14313 N. May Ave, Suite 100,
Oklahoma City, Oklahoma 73134, or such other place as the Landlord
may designate in writing.
-
3.1 Rental increase following alteration .
Immediately following the completion of a Landlord funded material
alteration under Paragraph 11, Tenant agrees to pay Landlord an
increased rental amount. Said increase shall be mutually agreed
upon by the parties and shall be based upon the total cost of
material alterations requested by the Tenant and paid by the
Landlord.
4. DEPOSITS . No deposit of any kind will be
required in connection with this Lease.
5. TITLE . No right, title or interest in or to the
Property or the Property shall pass to or otherwise be acquired by
the Tenant other than the rights described in this Lease.
6. USE OF PROPERTY . During the Term, the Tenant
shall not use the Property for any illegal purposes or in violation
of any applicable laws or regulations of any governmental body or
authority. The Tenant shall not commit or cause any waste, or allow
any waste to be committed or caused, on the Property or violate any
laws with respect to the Property. Further, the Tenant shall
operate its business in a way to conform to all applicable health
and safety standards.
7. ANIMALS . Except for guide, signal or service
dogs in use by a blind, deaf or physically handicapped person or a
watch dog used by the Tenant, no animals shall be allowed, even
temporarily, anywhere in or on the Property without the
Landlord’s prior written consent, which consent may be
withheld, conditioned or delayed at the Landlord’s
discretion.
8. UTILITIES AND SERVICES . The Tenant shall be
solely obligated and responsible for, and shall timely pay, all
charges for utilities to the Property including, but not limited
to, the following: water, garbage, gas, electricity, telephone,
cable, fuel, light, power, sewer and any other utility or
service.
9. TAXES . During the Term, the Tenant shall be
solely obligated and responsible to timely pay all taxes,
assessments and charges against or involving the Property and the
Tenant’s personal property on the Property, and upon payment
shall provide a copy of the receipt or other proof of payment to
Landlord.
10. ACCESS . During the Term, the Tenant shall allow
the Landlord and its employees, agents and representatives access
to the Property at all reasonable times for the purpose of
inspecting the Property and any other purpose not inconsistent with
this Lease.
11. ALTERATIONS . The Tenant shall not make any
material alterations, additions, installations, repairs or
improvements to the Property without the prior written consent of
Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed. Any permitted material alterations shall be
performed in a good and workmanlike quality and condition, and all
costs and expenses shall be the sole obligation of, and shall be
timely paid by, the Tenant, unless otherwise agreed to in writing.
Any such permitted alterations shall be in compliance with all
applicable city, state and federal ordinances, regulations and
codes and shall comply with all applicable health and safety
requirements. If during the Term, an ordinance, regulation, code
provision or other requirement applicable to the Property changes
so as to require any additional expenditure in order to achieve
compliance, such expenditure shall be paid
-2-
for by the Tenant. The Tenant shall obtain any
and all necessary permits for any such permitted alterations prior
to commencing the same. Upon completion, the same shall be
inspected, as appropriate or as required, by the appropriate
officials. Any deficiencies and/or violations identified or noted
by such officials shall be repaired, replaced and/or remedied by
the Tenant at the Tenant’s sole expense and in the time frame
required by such official related to such deficiency or violation
or otherwise within a reasonable time frame. Any such permitted
alterations made to the Property shall remain the sole property of
the Landlord upon the expiration or termination of this Lease, and
the Tenant shall not be entitled to reimbursement or offset for the
same; provided, that the Tenant shall have the right to remove its
fixtures and other property within a reasonable time following the
expiration or termination of this Lease, provided they can be
removed without damage to the property. Any damage caused must be
repaired by the Tenant. In the event that any liens or other
encumbrances are filed against the Property related to or arising
from any such permitted alteration, the Tenant shall be solely
obligated and responsible for, and shall pay all costs including
attorneys fees and costs, associated with the immediate removal of
such lien or encumbrance.
12. INSURANCE . During the Term, the Tenant shall,
at its sole cost and expense, procure and maintain: (i) fire
and extended coverage insurance covering the Property in an amount
sufficient to replace any improvements situated thereon;
(ii) commercial or comprehensive general liability insurance
covering the Property in an amount of not less than One Million
Dollars ($1,000,000.00) and covering for personal property damage
and personal injury in an amount of not less than One Million
Dollars ($1,000,000.00); and (iii) worker’s compensation
insurance as required under the laws of the State of Oklahoma,
which policies shall be in a form and issued by a company
reasonably acceptable to the Landlord. Such insurance must be
written on an "occurrence" as opposed to a "claims made" basis.
Within ten (10) days after the Effective Date, and within
thirty (30) days of the renewal date of such policy, the
Tenant shall furnish to the Landlord a certificate of the insurer
showing such insurance to be in force and showing the Landlord as
an additional named insured on such policy and having a loss
payable clause to both the Landlord and the Tenant. Such
certificate must also evidence the issuer’s agreement to
provide the Landlord with written notice at least thirty
(30) days in advance of any cancellation, termination,
amendment or modification to such insurance.
13. ASSIGNMENT . The Tenant shall not sell, pledge
or otherwise encumber or grant a lien upon or against the Property
or any interest in this Lease, and the Tenant shall not sublease
all or any portion of the Property or assign any of its rights, or
delegate any of its duties, obligations or responsibilities, under
this Lease without the Landlord’s prior written consent,
which consent may be withheld, conditioned or delayed at the
Landlord’s sole discretion; provided, that the Tenant shall
have the right to sublease all or part of the Property to any of
its related entities or affiliates. Consent by the Landlord to any
assignment or sublease shall not be deemed to be a consent to any
subsequent assignment or sublease. Any encumbrance, assignment,
sublease or transfer without the prior written consent of Landlord,
whether voluntarily, by operation or law or otherwise, is void. The
Tenant agrees that the Landlord may assign, sell or encumber all or
any part of this Lease and the payments hereunder, and upon written
notice, the Tenant shall unconditionally pay to such assignee all
Rent and other sums due under or to become due under this
Lease.
-3-
14. SUBORDINATION . The Tenant
accepts this Lease subject and subordinate to any mortgage
presently existing or hereafter arising upon any of the Property
and to any renewal, extension or refinancing thereof, and the
Tenant agrees that any such mortgagee or lien holder shall have the
right at any time to subordinate such mortgage or other lien to
this Lease on such terms and subject to such conditions as such
mortgagee may deem appropriate in its discretion. The provisions of
the foregoing sentence shall be self-operative and no further
instrument of subordination shall be required. The Landlord is
hereby irrevocably vested with full power and authority to
subordinate this Lease to any mortgage or other lien now existing
or hereafter placed upon all or any part of the Property, and the
Tenant agrees within twenty (20) days after demand to execute
and deliver any instrument subordinating this Lease or attorning to
the holder of any such liens as the Landlord may request; provided,
that the mortgagee agrees not to disturb the Tenant’s rights
under this Lease. In the event the Tenant should fail to execute
any subordination or other agreement promptly as requested, the
Tenant hereby irrevocably appoints and constitutes the Landlord as
its attorney-in-fact to execute such instrument in the
Tenant’s name, which power is coupled with an interest and is
irrevocable. The Tenant agrees to execute and deliver any
certificate or statement certifying that (i) this Lease is
unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as so
modified), (ii) the expiration date of this Lease,
(iii) the dates to which Rent and other charges payable under
this Lease have been paid, (iv) the Tenant has accepted
possession of the Property and that any improvements required by
the terms of this Lease to be made by the Landlord have been
completed to the satisfaction of the Tenant, (v) no Rent has
been paid more than thirty (30) days in advance of its due
date, (vi) the Landlord is not in default hereunder (or if
Tenant alleges a default stating the nature of such alleged
default) and (vii) such other matters as the Landlord or any
mortgagee or lien holder shall reasonably require.
15. CASUALTY AND CONDEMNATION . If during the Term,
the Property is materially damaged or destroyed by fire, wind,
tornado or other casualty or of any actual or threatened
condemnation or eminent domain by any entity or authority having
such powers so as to render the Property unsuitable for occupancy,
this Lease may be terminated
|
