EXHIBIT 10.29
NINTH LEASE AMENDMENT
THIS NINTH LEASE AMENDMENT (the "Ninth Amendment") is executed this 19th
day of February, 1999 by and between DUKE REALTY LIMITED PARTNERSHIP, an Indiana
limited partnership, ("Landlord"), and EXPRESS SCRIPTS, INC., a Delaware
corporation, ("Tenant")
W I T N E S S E T H :
WHEREAS, Riverport, Inc. and ▇▇▇▇▇▇▇ Development Company - Irvine
Partnership in Commendam (collectively, the "Original Landlord") and Tenant
entered into a lease dated March 3, 1992 (including all Exhibits, Addenda and
Amendments thereto, the "Lease") for a certain 64,000 square foot
office/warehouse building located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ (the "Building");
WHEREAS, in November, 1992, Original Landlord transferred all its right,
title, and interest in the Building to Sverdrup/MDRC Joint Venture ("Successor
Landlord") and said Successor Landlord assumed all of Original Landlord's duties
and obligations under the Lease;
WHEREAS, Successor Landlord and Tenant entered into a First Amendment to
Lease dated December 29, 1992 (the "First Amendment"), a Second Amendment to
Lease dated May 28, 1993 (the "Second Amendment"), a Third Amendment to Lease
dated October 15, 1993 (the "Third Amendment"), a Fourth Amendment to Lease
dated March 24, 1994 (the "Fourth Amendment"), a Fifth Amendment to Lease dated
June 30, 1994 (the "Fifth Amendment"), a Sixth Amendment to Lease dated January
31, 1995 (the "Sixth Amendment"), a Seventh Amendment to Lease dated August 14,
1998 (the "Seventh Amendment"), and an Eighth Amendment to Lease dated August
14, 1998 (the "Eight Amendment");
WHEREAS, pursuant to the Third Amendment, Landlord agreed to rent to Tenant
and Tenant agreed to lease from Landlord an additional 12,365 square feet (the
"Additional Space");
WHEREAS, pursuant to the Fifth Amendment, Landlord and Tenant agreed that
the Additional Space was no longer a part of the Premises, and that the Third
Amendment would constitute a lease of and by itself (the "Additional Space
Lease") standing on its own terms and consisting of all the same terms and
conditions as were contained in the Lease (except to the extent that such terms
and conditions relate solely and expressly to the Premises) and in the Third
Amendment;
WHEREAS, on or about September 26, 1997, Successor Landlord transferred all
of its right, title and interest under the Lease and in and to the Premises and
in and to the Additional Space Lease to Landlord;
WHEREAS, pursuant to the Seventh Amendment, the termination date of the
Additional Space Lease was extended from December 1, 1998 to the later of (i)
August 1, 1999 or (ii) the date which is sixty (60) days following the
Commencement Date (as defined in the Office Lease referenced and identified in
the Seventh Amendment) of the Office Lease;
WHEREAS, Tenant desires to extend the term of the Additional Space Lease
until December 31, 2000; and
WHEREAS, Landlord and Tenant desire to amend certain provisions of the
Additional Space Lease to reflect such extension;
NOW THEREFORE, in consideration of the foregoing premises, the mutual
covenants herein contained and each act performed hereunder by the parties,
Landlord and Tenant hereby enter into this Ninth Amendment and agree as follows:
1. TERMINATION DATE. The termination date of the Additional Space Lease
(but said lease only) is hereby extended to December 31, 2000.
2. ADDITIONAL SPACE RENT. Commencing on January 1, 2000, and on the first
day of each calendar month thereafter during the course of the tenancy with
respect to the Additional Space, Tenant shall pay to Landlord as Base Rent an
amount equal to $5,873.38 instead of $4,585.35.
3. CONDITION OF PREMISES. Upon the expiration or earlier termination of the
Additional Space Lease, Tenant shall return the Additional Space in broom clean
condition, normal wear and tear, Tenant's improvements (as defined in the Third
Amendment), other non-structural improvements and modifications, and loss by
fire or other casualty excepted.
4. OPTION TO EXTEND.
▇. ▇▇▇▇▇ AND EXERCISE OF OPTION. This Option to Extend applies to the
Additional Space Lease only. Provided that (i) Tenant has not been in default
hereunder at any time during the Term of the Additional Space Lease (the
"Original Additional Space Term"), (ii) Tenant originally named herein remains
in possession of and has been continuously operating in the Additional Space
throughout the Original Additional Space Term and (iii) Tenant's use of the
Additional Space remains the same as designated in Section XI of the Lease,
Tenant shall have one (1) option to extend the Original Additional Space Term
for one (1) additional period of three (3) years (the "Additional Space
Extension Term"). The Additional Space Extension Term shall be upon the same
terms and conditions contained in the Additional Space Lease for the Original
Additional Space Term except (i) Tenant shall not have any further option to
extend and (ii) the Minimum Annual Base Rent shall be adjusted as set forth
herein ("Rent Adjustment"). Tenant shall exercise such option by delivering to
Landlord, no later than April 1, 2000, written notice of Tenant's desire to
extend the Original Additional Space Term. Tenant's failure to properly exercise
such option shall waive it. If Tenant properly exercises its option to extend,
Landlord shall notify Tenant in writing, within twenty (20) days of receipt by
Landlord of Tenant's said notice, of Landlord's proposed Effective Market Base
Rent Rate (as hereinafter defined) and Landlord's proposed Minimum Annual Base
Rent for the Additional Space Extension Term. The Minimum Monthly Base Rent
shall be an amount equal to one-twelfth (1/12) of the Minimum Annual Base Rent
for the Additional Space Extension Term and shall be paid at the same time and
in the same manner as provided in the Additional Space Lease. If Tenant properly
exercises its option to extend, Landlord and Tenant shall execute an amendment
to the Lease (or, at Landlord's option, a new lease on the form then in use for
the Building) reflecting the terms and conditions of the Additional Space
Extension Term.
B. RENT ADJUSTMENT. The Minimum Annual Base Rent for the Additional Space
Extension Term shall be an amount equal to ninety-five percent (95%) of the
projected Effective Market Base Rent Rate, as at the commencement date of the
Additional Space Extension Term which said Effective Market Base Rent Rate shall
be the rate charged to tenants for space of comparable size, location, and
conditions in comparable property within a five (5) mile radius of the Building.
Said Effective Market Base Rent Rate shall take into consideration the
following: location, quality, age, common area factors, finish allowances,
rental abatement, parking charges, lease assumptions, moving allowances, space
planning allowances, refurbishment allowances, and any other concession or
inducement. In addition, other consideration such as credit standing of Tenant,
lease term, and any other issues that would be relevant in making a market rate
determination should be considered. If Landlord and Tenant should be unable to
agree as to the Effective Market Base Rent Rate for the Additional Space
Extension Term within twenty (20) days of receipt by Tenant of Landlord's said
notice, then Landlord and Tenant shall each select a qualified real estate
appraiser (as hereinafter defined) to determine the Effective Market Base Rent
Rate. Said appraisers shall render their written decision within twenty (20)
days after the date of their selection. If the difference between the high
appraisal and the low appraisal is ten percent (10%) or less of the low
appraisal, then the Effective Market Base Rent Rate shall be the average between
the low appraisal and the high appraisal and the Minimum Annual Base Rent for
the Additional Space Extension Term shall be ninety-five percent (95%) thereof.
In the event said difference is in excess of ten percent (10%), then the
appraisers shall mutually select a third appraiser who shall render a written
decision of the Effective Market Base Rent Rate within twenty (20) days of
his/her selection. The Minimum Annual Base Rent during the Additional Space
Extension Term shall be ninety-five percent (95%) of the Effective Market Base
Rent Rate as established by the third appraiser; provided, however, that said
Effective Market Base Rent Rate shall not be greater than the initial high
appraisal or be less than the initial low appraisal nor shall the Minimum Annual
Base Rent for the Additional Space Extension Term be less than the Minimum
Annual Base Rent payable by Tenant to Landlord as of the Termination Date of the
immediately preceding Original Additional Space Term. In the event that the two
appraisers fail or refuse to select a third appraiser, either party may make
application, upon written notice to the other, to the Chief Judge of the United
States District Court for the Eastern District of Missouri, Eastern Division,
who shall select the third appraiser. Either party may, within three (3)
business days of the making of application to the Chief Judge, submit a list of
not more than five (5) qualified (as herein specified) real estate appraisers
for the guidance of the Chief Judge. Each party shall pay the appraiser selected
by it and the costs of the third appraiser, if any, shall be borne equally by
Landlord and Tenant. If it shall become necessary to select appraisers in
accordance with the terms of this Section 4.B, said appraisers shall be either
(i) a disinterested commercial real estate broker with at least ten (10) years
professional experience in the St. Louis, Missouri metropolitan industrial
market or (ii) a disinterested person with at least ten (10) years professional
experience in commercial real estate appraisal in the St. Louis, Missouri
metropolitan area, and a member in good standing in at least one of the
following professional organizations: The Society of Real Estate Appraisers
(holding the SREA designation), or the American Institute of Real Estate
Appraisers (holding the MAI designation).
5. EXAMINATION OF AMENDMENT. Submission of this instrument for examination
or signature to Tenant does not constitute a reservation or option, and it is
not effective until execution by and delivery to both Landlord and Tenant.
6. DEFINITIONS. Except as otherwise provided herein, the capitalized terms
used in this Ninth Amendment shall have the definitions set forth in the Lease.
7. INCORPORATION. This Ninth Amendment shall be incorporated into and made
a part of the Additional Space Lease, and all provisions of the Additional Space
Lease not expressly modified or amended hereby shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties have caused this Ninth Amendment to be
executed on the day and year first above written.
LANDLORD:
DUKE REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke Realty Investments, Inc.,
its General Partner
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Corporate Attorney ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and Vice President Vice President and General Manager
St. Louis Industrial Group
TENANT:
EXPRESS SCRIPTS, INC., a Delaware
corporation
ATTEST: By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Senior Vice President and General Counsel
Secretary
STATE OF MISSOURI )
) SS:
COUNTY OF ST. LOUIS )
Before me, a Notary Public in and for said County and State, personally
appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, by me known and by me known to be the Sr. Vice
President of Express Scripts, Inc., a Delaware corporation who acknowledged the
execution of the foregoing Ninth Amendment on behalf of said corporation.
WITNESS my hand and Notarial Seal this 9th day of February, 1999.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(Printed Signature)
My Commission Expires: 4/14/2001
My County of Residence: St. Louis County
STATE OF MISSOURI )
) SS:
COUNTY OF ST. LOUIS )
Before me, a Notary Public in and for said County and State, personally
appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, by me known and by me known to be the Vice President
and General Manager-St. Louis Industrial Group of Duke Realty Limited
Partnership, an Indiana limited partnership who acknowledged the execution of
the foregoing Ninth Amendment on behalf of said corporation.
WITNESS my hand and Notarial Seal this 19th day of February, 1999.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Notary Public
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
(Printed Signature)
My Commission Expires:5/4/2002
My County of Residence: St. Louis County