EXHIBIT 10.39
AMENDMENT AND ASSIGNMENT OF LEASE
THIS AMENDMENT AND ASSIGNMENT OF LEASE is entered into this 1st day of
November, 2003, by and between REHCO EAST, L.L.C., an Oklahoma limited liability
company ("Landlord"), XXXXXX XXXX, INC., a Delaware corporation ("Assignor") and
XXXXXX-FLM, INC., a Delaware corporation ("Assignee")
WHEREAS, Landlord and Assignor executed that certain Lease Agreement
dated February 28, 2003 (the "Lease"), whereby Landlord leased to Assignor that
improved real property located in Oklahoma County, Oklahoma, more fully
described on Exhibit "A" attached to and incorporated in the Lease (the "Land");
and
WHEREAS, Assignor desires to assign its right, title and interest in
and to the Lease to Assignee, and Assignee desires to acquire Assignor's right,
title and interest in and to the Lease;
WHEREAS, Landlord and Assignee desire to amend certain provisions of
the Lease as hereinafter provided;
WHEREAS, the Assignee has completed certain improvements on the
Premises. Landlord and Assignee agree that the improvements shall remain the
sole property of the Assignee until the expiration or earlier termination of
this Lease; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants between the parties, Landlord and Tenant hereby agree and amend the
Lease as follows:
1. ASSIGNMENT OF LEASE. Assignor hereby transfers and assigns to
Assignee, all of Assignor's right, title and interest in, to and under the
Lease. Assignee hereby accepts the transfer and assignment of Assignor's right,
title and interest in, to and under the Lease. Assignee hereby assumes and
agrees to be bound by the terms and provisions of the Lease as if Assignee were
an original party thereto and timely to perform all of the obligations of
Assignor thereunder.
2. BASE RENT. The first paragraph of Section 3.1 of the Lease is
hereby amended and restated as follows:
"Section 3.1 Base Rent. Subject to the terms and
provisions contained in this Section 3.1, Tenant
shall pay Landlord monthly Base Rent of Eighteen
Thousand Two Hundred Eighty One and 25/100 Dollars
($18,281.25), in advance on or before the first day
of each calendar month during the Term, subject to
adjustment as hereafter provided. If the Term
commences on a day other than the first day of a
calendar month, or ends on a day other than the last
day of a calendar month, then the Base Rent for such
month shall be prorated on the basis of 1/30th of the
monthly Base Rent for each day of such month. If the
CPI on any Adjustment Date shall be greater than the
CPI for the Commencement Date, monthly Base Rent
commencing on the Adjustment Date shall be adjusted
to be the original monthly Base Rent specified in
this Section 3.1(a) plus an amount equal to one-half
(1/2) of the product obtained by multiplying: (i) the
original monthly Base Rent specified in this Section
3.1 (a) by (ii) the percentage increase in the CPI
from the Commencement Date through the Adjustment
Date. "ADJUSTMENT DATE" shall be January 1 of each of
the following years: 2008; 2013;
2018; 2023, and the term "CPI" shall have the meaning
specified therefor in Section 13.5."
3. COMMENCEMENT DATE. Section 3.1(b) of the Lease is hereby
amended and restated as follows:
"3.1(b) As used herein, "COMMENCEMENT DATE" means the
date hereof and the term "LEASE YEAR" means the
12-month period commencing on November 1, 2003 and
each subsequent 12-month period during the Term."
4. EFFECT OF THIS AMENDMENT. Each defined term used but not
otherwise defined in this Amendment shall have the meaning assigned to it in the
Lease. In the event of any conflict between this Amendment and the Lease, this
Amendment shall control. As amended hereby, the Lease is ratified and confirmed
and shall remain in full force and effect in accordance with its terms.
5. MULTIPLE COUNTERPARTS. This Amendment and Assignment may be
executed in a number of identical counterparts which, taken together, shall
constitute collectively one (1) agreement; but in making proof of this Amendment
and Assignment, it shall not be necessary to produce or account for more than
one such counterpart.
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This signature page is attached to that certain Amendment to Lease as
of the date and year first above written.
"LANDLORD"
REHCO EAST, L.L.C., an Oklahoma limited liability
company
By: s/Xxxxxx Xxxxxx XX
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Xxxxxx X. Xxxxxx XX, Manager
"ASSIGNOR"
XXXXXX XXXX, INC., a Delaware corporation
By: s/Xxxxx X. Xxxxxxxx
----------------------------------------------------
Xxxxx X. Xxxxxxxx, Vice President
"ASSIGNEE"
XXXXXX-FLM, INC., a Delaware corporation
By: s/Xxxxx X. Xxxxxxxx
----------------------------------------------------
Xxxxx X. Xxxxxxxx, Vice President
EXHIBIT "A"
LEASE
