EXHIBIT 10.1
AMENDED AND RESTATED
LEASE
between
Forty-Four Forty-Four Forest Park
Redevelopment Corporation
(LANDLORD)
and
RightCHOICE Managed Care, Inc.
(TENANT)
Dated as of
May 1, 2001
INDEX
1. Premises; Use. 1
2. Term: Options to Extend. 1
3. Rent. 2
4. Maintenance and Repairs--Services and Utilities. 2
5. Operating Expenses--Taxes, Electricity. 5
6. Alternations and Improvements; Surrender. 7
7. Right of Entry. 8
8. Casualty. 8
9. Insurance and Indemnity. 9
10. Condemnation. 11
11. Default. 12
12. Holdover. 14
13. Assignment and Subletting. 14
14. Quiet Enjoyment. 14
15. Subordination; Attornment; Rights of Landlord's Mortgagee. 14
16. Counterparts. 15
17. Lease Memorandum. 15
18. Mechanics' Liens. 15
19. Attachments. 15
20. Miscellaneous. 15
21. Binding Effect. 16
22. Entire Agreement. 17
23. Notices. 17
24. Relinquishment of Space. 17
25. Parking Garage. 18
26. Signage. 19
27. Right of First Refusal. 20
28. Services Agreement. 20
29. Limitation of Liability. 20
AMENDED AND RESTATED LEASE
THIS AMENDED AND RESTATED LEASE ("Lease"), made and entered
into effective as of May 1, 2001 ("Effective Date"), by and
between FORTY-FOUR FORTY-FOUR FOREST PARK REDEVELOPMENT
CORPORATION, a Missouri corporation, having an address of
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("LANDLORD"), and
RIGHTCHOICE MANAGED CARE, INC., a Missouri corporation d/b/a
Alliance Blue Cross Blue shield, having an address of
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("TENANT").
RECITAL
LANDLORD and TENANT have previously executed a certain
Lease, dated as of January 1, 1995 (the "Prior Lease"). This
Lease amends and restates such Prior Lease in its entirety. From
and after the Effective Date, all terms of the Prior Lease, to
the extent still in effect, shall be incorporated into this
Lease. Any provisions which of necessity relate to the term in
the Prior Lease shall be deemed to relate to such applicable
dates.
1. Premises; Use.
(A) LANDLORD demises to TENANT and TENANT rents from LANDLORD
the premises (the "Premises") identified on Exhibit A to this
Lease containing 312,643 square feet of rentable area as shown on
Exhibit A located in the building (the "Building") owned by
LANDLORD at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
and known as the Blue Cross Blue Shield Plaza, together with the
non-exclusive use of the hallways, corridors, lobbies,
lavatories, elevators, stairways and other areas and facilities
of the Building appurtenant thereto intended for the nonexclusive
use of TENANT and other tenants, if any, of the Building
(collectively the "Common Areas") and together with the use of
certain spaces in the parking facility located adjacent to the
Building (the "Parking Garage") as further provided herein. The
term "Premises" as used hereinafter shall include the space
leased in the Building and the parking spaces leased in the
Parking Garage.
(B) The Premises shall be used for general office purposes and
any other lawful uses that are permitted by applicable zoning.
2. Term: Options to Extend.
(A) The initial term of this Lease under the Prior Lease (the
"Initial Term") commenced on January 1, 1995 and shall continue
through December 31, 2004.
(B) TENANT shall have two (2) separate options to extend the
term of this Lease for an additional period of five (5) years
each (each such period being herein referred to as an "Extended
Term"). If TENANT intends to exercise an option to extend the
term of this Lease for an Extended Term, TENANT shall give
written notice of such fact to LANDLORD not less than 90 days
prior to the expiration of the then current term. The Extended
Terms shall have all of the same provisions as are herein set
forth (except rent which shall be determined as herein provided).
3. Rent.
Initial Term Commencing with the Effective Date and throughout
the Initial Term, TENANT shall pay as annual rent ("Annual Rent")
for the Premises an amount as set forth below. There shall be no
separate or additional rent for the use of the Parking Garage.
Annual rent shall be an amount per annum computed by multiplying
the total square footage of rentable area in the Building that
constitutes TENANT's space (being 312,643 rentable square feet as
of the Effective Date) by $15.24 per rentable square foot, with
Annual Rent equal to $4,764,679 and monthly fixed rent of
$397,057. Annual Rent for each rentable square foot of the
Premises shall remain at the same amount throughout the Initial
Term.
The term "Lease Year" shall mean the annual period of
twelve (12) consecutive full months running from January 1, with
the first Lease Year commencing on January 1, 1995.
(A) Extended Term. During each Extended Term, Annual Rent shall
be negotiated between TENANT and LANDLORD within the 45-day
period immediately preceding the first day of the applicable
Extended Term. After mutual agreement, TENANT and LANDLORD will
memorialize the Annual Rent for the applicable Extended Term. If
TENANT and LANDLORD are unable to agree on a mutually acceptable
Annual Rent, TENANT may either withdraws its notice to extend for
the Extended Term or Annual Rent shall continue at the same rate
as may then be in effect.
4. Maintenance and Repairs--Services and Utilities.
Subject to the terms of Sections 5 and 28 hereof, it is agreed as
follows:
(A) Maintenance and Repairs.
(i) Maintenance by TENANT. Throughout the term of this Lease,
TENANT shall, at TENANT's expense, take good care of and be
solely responsible for the Premises and "TENANT's Property" as
defined in Section 6(B) hereof, including, without limitation,
making all necessary repairs and replacements to (a) TENANT's
trade fixtures and equipment, (b) fluorescent bulbs and ballasts
(including replacements of the same as necessary), (c) doors
(both interior and exterior), (d) built-in furniture and
furnishings, (e) wall and floor coverings, (f) interior non-load
bearing partitions, (g) kitchen equipment, appliances and kitchen
plumbing fixtures (including supply lines, vents and drains),
(h) ceilings and ceiling tiles, and (i) any electrical, plumbing,
heating, ventilating and air conditioning equipment and fixtures
which were installed to specially accommodate the particular
requirements of TENANT's machinery and equipment. TENANT is
further liable for all damage to the Building or the Parking
Garage caused by any act, misuse, omission or negligence of
TENANT or its invitees or licensees or contractors or their
respective officers, agents, employees or visitors.
(ii) Maintenance by LANDLORD. LANDLORD shall make all repairs
and replacements to the roof, foundation, walls (except those
installed or constructed by TENANT), structure and, except as to
those items to be repaired by TENANT under Section 4(A)(i) above,
other portions of the Building and Parking Garage (subject to the
obligations of other tenants to perform any of the foregoing for
such tenants' respective premises), structural floor slab,
exterior glass, exterior fascia and to the plumbing, sprinklers,
elevators, public stairways, Common Area corridors and lobbies,
air conditioning, heating, ventilating, plumbing and electrical
systems and equipment in or otherwise serving the Premises
(excluding any climate control systems specially installed for
TENANT). LANDLORD shall not be required to commence any repairs
until after notice from TENANT that the same are necessary.
(iii) Compliance. LANDLORD shall comply with all
Governmental Requirements which affect the Building; provided,
however, TENANT shall comply with all such Governmental
Requirements and with the reasonable and customary rules and
recommendations of Landlord's hazard insurer which arise by
reason of any use or occupancy of the Premises by TENANT which is
different from that normally used for general office purposes.
LANDLORD acknowledges its responsibility under the Americans with
Disabilities Act (the "ADA"), to maintain an accessible Building
for the handicapped, including but not limited to parking
facilities, public restrooms and general building access. TENANT
shall, at its sole cost and expense, take such actions and
construct such alterations as shall be necessary to bring the
Premises and TENANT's use and occupancy thereof into compliance
with the ADA.
(B) Services: Utilities. LANDLORD shall furnish to the Premises
the following services, utilities, supplies and facilities:
(i) Access (by means of a pass key outside normal business
hours) to the Premises twenty-four hours a day, seven days a
week.
(ii) Freight and passenger self-service elevator service at
times as required by TENANT; however, LANDLORD shall have the right to
limit use as a freight elevator to non-peak hours.
(iii) Heat, ventilation and air conditioning ("HVAC
Service") for the Premises. TENANT shall reimburse LANDLORD upon demand
for the cost incurred by LANDLORD (as reasonably determined by
the LANDLORD) to provide after hours HVAC Service to TENANT, if
TENANT desires such additional hours of HVAC Service.
(iv) Cleaning and janitorial services for the Premises, Monday
through Friday.
(v) Hot and cold running water adequate for drinking, lavatory
and toilet purposes.
(vi) Electricity serving the Premises.
(vii) Removal of ice, snow and debris from the walks,
drives, curbs and Common Areas of the Premises.
(viii) Security service for the Common Areas (including but
not limited to, security in the Parking Garage), provided,
however, LANDLORD shall not be liable in any manner whatsoever to
TENANT or to any third party by reason of LANDLORD's act or
failure to act in providing or maintaining security in the Common
Areas of the Building or Parking Garage.
5. Operating Expenses--Taxes, Electricity.
The following provisions are subject to the terms of Section 28
hereof:
(A) (i) Payment of Operating Expenses. For each calendar year
during the term of this Lease, TENANT shall pay a portion of the
Operating Expenses (as defined herein) determined by multiplying
the Operating Expenses for such calendar year by the fraction,
the denominator of which is 425,057, being the rentable area of
the Building, and the numerator of which is the rentable square
footage in the Building leased by TENANT (such amount to be paid
by TENANT being herein called "Tenant's Expense Charge"); it
being the intent hereof that, except as otherwise herein
provided, Tenant's Expense Charge shall be redetermined and
adjusted each calendar year without reference to any Tenant's
Expense Charge paid in any prior calendar year. Tenant's Expense
Charge shall be paid in equal monthly installments on the first
day of each month, in advance, in amounts estimated by LANDLORD.
No later than 90 days following the end of each calendar year
during the term of this Lease, LANDLORD shall furnish TENANT with
a statement in reasonable detail of the Operating Expenses for
such calendar year. Any overpayment or underpayment by TENANT by
reason of the aforesaid monthly payments shall be adjusted and
paid by LANDLORD or TENANT (as the case may be) within 30 days
after receipt by TENANT of the statement of Operating Expenses
for such calendar year, such obligation to survive the
termination of this Lease.
(ii) Review and Audit Rights. TENANT may audit such
books and records relating to statements of the Operating
Expenses at LANDLORD's office.
(B) Definition of Operating Expenses. The term "Operating
Expenses" shall mean the total costs and expenses incurred by or
on behalf of LANDLORD in the operation of the Building and the
Parking Garage, including, without limitation, (i) the cost of
electricity and all other utilities for the Building and Parking
Garage, (ii) the "Taxes" described in Section 5 hereof,
(iii) public liability, property damage, sign and casualty
insurance for the Building and Parking Garage; (iv) all of the
costs and expenses in operating, maintaining and repairing the
HVAC Systems, and (v) an annual sum (the "Administrative Fee") to
reimburse LANDLORD for its administrative expenses equal to [five
percent (5%) of the Operating Expenses (but for this purpose,
Operating Expenses shall not include the Administrative Fee)] for
each calendar year (or portion thereof); (vi) the costs and
expenses in operating, maintaining, managing, equipping,
inspecting, protecting and repairing the Building and Parking
Garage, including, without limitation, the cost and expense of
the following: snow removal, gardening, landscaping; repairs,
maintenance, painting and decorating; maintenance and replacement
of light fixtures and bulbs; sanitary control, extermination, and
removal of rubbish, garbage and other refuse; security for the
Building and Parking Garage; (vii) amortization or rent as
respects machinery and equipment used in the operation and
maintenance of the Building and Parking Garage; (viii) paving,
curbs and walkways and drainage facilities; (ix) cleaning and
janitorial services; (x) all of the services and utilities
required to be provided by LANDLORD under this Lease; and
(x) other similar costs incurred in the operation.
(C) Exclusions from Operating Expenses. Notwithstanding the
foregoing, Operating Expenses shall not include the following:
(i) the cost of any electricity and other utilities if TENANT or
another tenant is paying for such electricity; (ii) costs which
are paid by any warranty; advertising expenses; brokerage fees;
attorney's fees related to tenant lease negotiations or
enforcement; (iii) costs which are paid or reimbursed by TENANT
or other tenants; (iv) costs or expenses reimbursed from
insurance or condemnation proceeds; and (v) any cost or expense
attributable to the negligent act or omission of LANDLORD, its
agents, employees or independent contractors or any costs
attributable to any faulty, defective or improper construction by
Landlord, its agents, employees or independent contractors. The
cost of any expenditure relating to the Premises which must be
capitalized under generally accepted accounting principles or
under applicable Federal income tax law and regulations shall be
borne by LANDLORD notwithstanding any provision to the contrary
in the Services Agreement referred to in Section 28 hereof, and
the same shall not be an Operating Expense.
(D) Taxes. The term "Taxes" shall mean all real estate taxes,
assessment, water and sewer rents and other governmental
impositions and charges of every kind, and installment which are
during the term of this Lease levied or assessed in connection
with the use, occupancy or possession of, including, without
limitation, payments made in lieu of taxes. If, at any time
during the term of this Lease, the method of taxation shall be
altered so that in lieu of, or, in addition to, any part of the
Taxes now levied, assessed or imposed on real estate as such,
there shall be levied, assessed or imposed (a) a tax on the rents
received from real estate, or (b) any other tax or levy imposed
in lieu of or as a supplement to Taxes which are in existence as
of the date of execution of this Lease, then the same shall be
included in the computation of Taxes hereunder, computed as if
the amount of such tax or fee so payable were that due if the
Premises were the only property of owner subject thereto. TENANT
shall have the right to contest the validity or amount of any
Taxes by appropriate legal proceedings. TENANT shall hold
LANDLORD whole and harmless from any costs and expenses LANDLORD
may incur related to any such contest.
(E) Payments to Utility Suppliers. TENANT shall have the right
to pay directly for electrical energy consumed in the Premises
leased to TENANT. TENANT shall install separate meters at its
sole cost to measure such electrical energy consumed. TENANT
shall remain liable for its pro rata share of the cost of
electrical energy used for HVAC Services in the Premises leased
to TENANT and HVAC Services to the common areas of the Premises
based on the rentable area of the Building leased to TENANT as
compared to the total rentable area in the Building.
(F) Control of Common Areas. All Common Areas shall be subject
to the exclusive management and control of LANDLORD, subject,
however, to the terms hereof.
(G) Interruption of Services. LANDLORD shall not be liable to
TENANT or to any other party occupying any part of the Building
for any failure in the supply of water, electric energy, heating,
air conditioning or any other utility service or elevator service
furnished to the Premises (whether furnished by LANDLORD or by
others), by reason of any cause beyond LANDLORD's reasonable
control.
6. Alternations and Improvements; Surrender.
(A) Alterations. TENANT shall not make any structural or
exterior alternations, additions or improvements in or to the
Premises or the Building without the prior written consent of
LANDLORD, not to be unreasonably withheld. TENANT may make
interior, non-structural changes to the Premises (such as the
installation, removal or relocation of the nonload bearing
partitions), and may install such furniture, furnishings, trade
fixtures and business equipment as TENANT desires from time to
time. If TENANT's alternations shall require any change to the
Premises in order to comply with Governmental Requirements,
TENANT agrees to make such change, at TENANT's cost, in order to
comply with such Governmental Requirements. All of such work by
TENANT shall be performed in a good and workmanlike manner in
accordance with all applicable Governmental Requirements.
(B) Surrender of Premises. Upon the expiration or sooner
termination of this Lease, TENANT may remove from the Premises
its furniture, furnishings, trade fixtures and business equipment
which are installed by or for TENANT at TENANT's expense
("Tenant's Property"). TENANT shall repair all damage to the
Premises caused by the removal of Tenant's Property. Except for
Tenant's Property, the title to all permanently affixed
alternations, additions, and improvements, shall remain upon and
be surrendered with the Premises as a part thereof, without
disturbance and without charge.
7. Right of Entry.
LANDLORD shall, subject to TENANT's reasonable security
requirements, upon advance notice to TENANT (except in an
emergency, in which case no notice shall be necessary), have the
right at all reasonable times during TENANT's business hours to
inspect the Premises and show the same to prospective mortgages
and purchasers (and during the last 12 months of the lease term,
to show the Premises to prospective tenants) and, at all times to
make repairs or replacements as required by this Lease or as may
be necessary. TENANT hereby waives any claim in connection with
inconvenience to TENANT or interference with is operations, and
waives any other loss occasioned by the exercise by LANDLORD of
its rights hereunder.
8. Casualty.
In the event the Premises are damages or destroyed by fire or
other casualty or occurrence, then the following agreements shall
be controlling between LANDLORD and TENANT:
(A) Abatement of Rent. In the event the Premises or any part
thereof are damaged or destroyed by fire or other casualty or
occurrence, TENANT's obligation to pay rent shall be abated as
set forth below and its other obligations hereunder appropriately
and equitably adjusted from the date of such fire or other
casualty or occurrence through and including the date LANDLORD
shall substantially complete the restoration as herein required
and TENANT commences business operations in the affected area
(but such abatement to end no later than 30 days after such
substantial completion).
(B) Repairs and Restoration. Using available insurance
proceeds, LANDLORD shall make all repairs and restorations
necessary to restore the Premises (excluding Tenant's Property),
to substantially the same condition as immediately prior to the
casualty as soon as reasonably possible after the occurrence.
All repairs and restoration by Landlord shall be completed by
LANDLORD diligently at LANDLORD's expense. LANDLORD shall have
no obligation to replace or repair any damage to Tenant's
property, any alternations, decorations, additions or
improvements made to the Premises by TENANT or any other property
or effects of TENANT, all of which TENANT shall repair with due
diligence,
(C) Rights of Termination. Notwithstanding the foregoing
provisions, LANDLORD and TENANT shall have the following rights
and options to terminate this Lease:
(i) If during the term, the Premises are so damaged by fire or
other casualty that the cost to repair such damage is greater
than 25 percent of the full replacement cost of the Premises,
then LANDLORD, at LANDLORD's option, may, by notice thereof to
TENANT elect to terminate this Lease.
(ii) If it will take longer than one hundred eighty (180) days
from the commencement of restoration to restore the Premises to
such a condition that substantially all of the Premises will be
usable by TENANT, then TENANT or LANDLORD shall have the right,
by notice thereof to the other, to elect to terminate this Lease.
In the event of any termination under these provisions, this
Lease and the term shall come to an end and expire upon the
giving of such termination notice, and all rent and other charges
payable under this Lease shall be adjusted as of the date of such
casualty or occurrence and all prepaid rent and other charges
shall be refunded by LANDLORD to TENANT.
9. Insurance and Indemnity.
The following provisions are subject to the terms of Section 28
hereof:
(A) Property Insurance to be Maintained. LANDLORD shall
maintain insurance policies covering the Building and Parking
Garage against loss, damage, or destruction caused by fire and
other perils in the standard extended coverage endorsement, by
vandalism and malicious mischief, by sprinkler and water leakage,
and other risks determined by LANDLORD to be insured against.
The amount of insurance shall be determined by LANDLORD and shall
equal at least the amount required to be maintained by LANDLORD
under the leases for the Building. TENANT shall maintain
insurance policies covering TENANT's Property in an amount
determined by TENANT against all of the perils enumerated above.
Such policies (and the hazard policies of TENANT) shall contain a
so-called "agreed amount endorsement" and shall (subject to
paragraph (B) of this Section) contain appropriate endorsements
denying LANDLORD's and TENANT's insurers the right of subrogation
against TENANT and LANDLORD.
(B) Indemnification. TENANT indemnifies and agrees to hold
harmless LANDLORD from all claims or losses resulting from any
injury to property or persons upon the Premises due to any
negligence or willful act of TENANT, its agents or employees
during the term of this Lease. LANDLORD indemnifies and agrees
to hold harmless TENANT from all claims losses (other than those
for which liability is waived by express provision in this Lease)
resulting from any injury to property or persons in, or upon the
Premises, due to any willful act or negligence of the LANDLORD,
its agents or employees during the term of this Lease.
(C) Waiver and Release of Landlord. Anything to the contrary in
this Lease notwithstanding, LANDLORD shall not be liable for, and
TENANT release LANDLORD and waives all claims for loss or damage
to TENANT's business or injury to person or property sustained by
TENANT resulting from any accident or occurrence in or upon the
Premises or the Building or the Parking Garage from any of the
following causes: (a) any equipment or appurtenances becoming
out of repair, but this shall not be construed to relieve
LANDLORD from its obligation, if any, to make any repairs
required of LANDLORD; (b) injury occasioned by natural
occurrences; (c) any failure of plumbing, heating or air
conditioning or ventilation equipment, electric wiring, gas,
water, steam or other pipes or other systems or parts of the
Building; (d) broken glass; (e) the bursting, leaking or running
of any tank, tub, water closet, waste pipe, drain or any other
pipe or tank in, upon or about the Premises; (f) water, snow or
ice being upon or coming through the roof, skylight, trapdoor,
stairs, doorways, show windows, walks or any other place upon or
near the Premises or otherwise; (g) theft or vandalism; (h) any
act, omission or negligence of other tenants or any other
persons, and (i) any other cause not within the reasonable
control of LANDLORD. The foregoing waiver and release does not
apply to LANDLORD's negligence or intentional acts or any breach
of any of LANDLORD's obligations under this Lease.
(D) Liability Insurance. LANDLORD and TENANT shall each keep in
force at all times during the term of this Lease, comprehensive
commercial general liability insurance in the amount of at least
$1,000,000, combined single limits for bodily injury and property
damage, insuring itself and the other party (as an additional
insured) against liability arising out of the ownership, use,
occupancy or maintenance of the Premises and the Building. The
insurance required hereunder shall not be cancelled, materially
amended or allowed to lapse without at least 30 days prior
written notice to the party named as-the additional insured.
(E) Self Insure. Either LANDLORD or TENANT, upon notice to the
other party, may elect to self insure any risk required to be
insured under this Section pursuant to a self insurance plan
established by such party.
10. Condemnation.
(A) Substantial Condemnation. In the event the entire Premises
shall be condemned for public use or voluntarily transferred to a
public or quasi-public body in lieu of condemnation (such action
being hereinafter referred to as "Condemned" or a
"Condemnation"), this Lease shall terminate and the rent and
other charges shall be adjusted as of the date possession is
taken by the condemning authority. In the event a portion of the
Premises shall be Condemned and the remainder of the Premises, as
the case may be, is unsuitable, in TENANT's reasonable judgment,
to carry on TENANT's business operations, TENANT shall have the
right to terminate this Lease by giving written notice of such
termination to the LANDLORD not later than the date of occurrence
of such condemnation. Upon the giving of such notice, this Lease
shall cease and terminate as of the date of such notice and the
rent and other charges payable under the Lease shall be adjusted
as of such termination date. In the event a material portion of
the Premises shall be Condemned, LANDLORD shall have the right to
terminate this Lease by giving written notice of such termination
to TENANT not later than the date of occurrence of such
Condemnation.
(B) Rent Adjustment; Restoration. In the event a portion of the
Premises shall be Condemned and this Lease is not terminated
pursuant to paragraph (A) of this Section, the rent and other
charges payable hereunder shall be reduced in proportion to the
rentable area of the Building so condemned or transferred. All
repairs necessary to restore the Premises as nearly as possible
to its condition immediately prior to the Condemnation shall be
(i) commenced by LANDLORD as soon as reasonably possible after
the taking or transfer using condemnation proceeds awarded to
LANDLORD, (ii) performed in a diligent and workmanlike manner
with materials of at least the same quality utilized originally
in the construction of the Premises; and (iii) completed by
LANDLORD with a minimum of interference with TENANT's normal
business operations; provided, however, LANDLORD shall have no
obligation to restore or replace TENANT's Property.
(C) Condemnation Awards or Payments. TENANT waives any award or
settlement resulting from the Condemnation (including, without
limitation, any amount attributable to the taking of TENANT's
leasehold estate); provided, however, in the event this Lease is
terminated in accordance with paragraph (A) of this Section,
TENANT may assert a claim in TENANT's own name for moving
expenses and other damage to TENANT's business incurred by TENANT
as a result of such Condemnation (provided such claim does not
reduce the amount of the Condemnation award otherwise payable to
LANDLORD).
11. Default.
(A) Event of Default by TENANT. An "Event of Default" shall
exist if (i) TENANT shall default in the payment of rent (Annual
Rent and/or other charges payable by TENANT) and such default
shall continue for 10 consecutive days after written notice
thereof from LANDLORD, or (ii) if TENANT shall default in the
performance of any of its other obligations under this Lease and
if such default under this clause (ii) shall continue for 30
consecutive days after notice thereof from LANDLORD specifying
the nature of TENANT's default (except that if such default
cannot be cured within such 30 day period, such period shall be
extended for a reasonable additional time, provided that TENANT
commences to cure such default within such 30 day period and
proceeds diligently thereafter to completion to effect such
cure).
(B) Remedies of LANDLORD. If an Event of Default shall exist,
LANDLORD may, at its option, terminate TENANT's right to
possession of the Premises (without terminating the Lease) and
make such alterations and repairs as LANDLORD shall determine may
be reasonably necessary to relet the Premises, and relet the same
or any part thereof upon such terms and conditions as LANDLORD
may deem advisable. Upon such reletting, all rentals received by
LANDLORD from such reletting shall be applied, first, to the
payment of any indebtedness other than rent due under this Lease
from TENANT to LANDLORD; second, to the payment of any costs and
expenses of such reletting, including brokerage fees and attorney
fees and costs of such alterations and repairs, and third, to the
payment of rent due and unpaid hereunder. In no event shall
TENANT be entitled to receive any surplus of any sums received by
LANDLORD on a reletting in excess of the rental and other charges
payable hereunder. If such rentals and other charges received
from such reletting during any month are less than those to be
paid during that month by TENANT hereunder, TENANT shall pay any
such deficiency to LANDLORD, such deficiency to be calculated and
payable monthly. LANDLORD may at any date terminate this Lease
by giving notice thereof to TENANT. If an Event of Default shall
exist, LANDLORD may lawfully, by appropriate proceedings, enter
the Premises and repossess the same and expel TENANT and those
claiming under TENANT without being deemed guilty of any manner
of trespass and without prejudice to any other remedies which
LANDLORD may have for arrears of rent or preceding breach of
covenant, and upon entry as aforesaid, this Lease shall terminate
and TENANT covenants that in case of such termination, it will
pay to LANDLORD on a monthly basis all rent during the residue of
the term.
(C) Attorneys' Fees. If suit shall be brought because of the
breach of any agreement or obligation contained in this Lease on
the part of TENANT or LANDLORD to be kept or performed, and a
breach shall be established, the prevailing party shall be
entitled to recover all expenses incurred therefor, including
reasonable attorney fees.
(D) Right to Perform. If TENANT fails to perform any agreement
or obligation on its part to be performed under this Lease,
LANDLORD shall have the right (i) if no emergency exists, to
perform the same after giving 30 days notice to TENANT; and
(ii) in any emergency situation, to perform the same immediately
without notice or delay. If LANDLORD fails to perform any
agreement or obligation on its part to be performed under this
Lease, TENANT shall have the right (x) if no emergency exists, to
perform the same after giving 30 days notice to LANDLORD or (y)
in any emergency situation, to perform the same immediately
without notice or delay. The defaulting party shall on demand
reimburse the non-defaulting party for the reasonable costs and
expenses incurred by the non-defaulting party in rectifying the
defaulting party's defaults as aforesaid, including reasonable
attorney fees, together with interest thereon at 10% per annum.
12. Holdover.
Any holding over after the expiration of the Initial Term or any
Extended Term of this Lease shall be deemed and construed to be a
tenancy from month to month at 120% of the rent being paid for
the last month of the unexpired term, and shall otherwise be on
the terms and conditions herein specified so far as applicable.
13. Assignment and Subletting.
(A) TENANT may assign this Lease or any interest therein, or
sublet all or any part of the Premises or allow or permit the use
of its spaces in the Parking Garage by any parties without the
prior written consent thereto by LANDLORD, but TENANT will notify
LANDLORD of any such assignment or sublease.
(B) Notwithstanding any assignment, mortgage, pledge or other
transfer of this Lease, or subletting of the Premises, TENANT
shall remain responsible for the faithful performance of all of
the covenants, terms and conditions hereof on TENANT's part to be
performed, unless released by LANDLORD at the time of the
assignment or sublease.
(C) If LANDLORD conveys or transfer its interest in the Premises
or in this Lease (which sale or transfer may be effected without
TENANT's consent), upon such conveyance or transfer, LANDLORD
(and in the case of any subsequent conveyances or transfers, the
then grantor or transferor) shall be released from all liability
with respect to the performance of any obligations on the part of
the LANDLORD to be performed under this Lease from and after the
date of such conveyance or transfer; provided, however, any
amounts then due and payable to TENANT by LANDLORD (or by the
then grantor or transferor) or any other obligation then to be
performed by LANDLORD (or by the then grantor or transferor)
under any provisions of this Lease shall either be paid or
performed by LANDLORD (or by the then grantor or transferor) or
such payment or performance shall be assumed by the grantee or
transferee.
14. Quiet Enjoyment.
So long as TENANT is not in default beyond the applicable grace
periods in the payment of rent hereunder or in the performance of
any other covenant or agreement herein contained, LANDLORD
covenants and agrees with TENANT that TENANT may peaceably and
quietly have, hold, occupy and enjoy the Premises without
ejection, hindrance or molestation.
15. Subordination; Attornment; Rights of Landlord's Mortgagee.
(A) TENANT agrees that this Lease and TENANT's interest in the
Premises may, at LANDLORD's option, be made subordinate to any
"mortgages" (which term, for the purposes of this Lease, shall
include deeds of trust) or underlying leases now or hereafter
covering the Premises; provided, however, any subordination shall
be contingent upon TENANT's receipt of an agreement ("Non-
Disturbance Agreement") from the holder or holders of any such
mortgages or leases in form reasonably acceptable to TENANT,
providing that so long as TENANT shall not be in default under
the Lease beyond the applicable grace periods, if any, provided
for the curing of such default, TENANT shall not be disturbed in
its occupancy of the Premises, and this Lease and each and all of
TENANT's rights hereunder shall continue in full force and effect
in accordance with the terms stated herein with TENANT
recognizing and attorning to the then owner of the Premises as
its LANDLORD hereunder. TENANT shall, in the event of
foreclosure or the exercise of the power of sale under any
mortgage made by LANDLORD covering any part of the Premises, or
in the event of the sale of the Premises, attorn to the purchaser
as landlord under this Lease.
16. Counterparts.
This Lease may be executed in multiple counterparts, all of which
shall together constitute one and the same instrument.
17. Lease Memorandum.
Either LANDLORD or TENANT will, at the request of the other,
execute a Memorandum or Notice of Lease in recordable form
satisfactory to both LANDLORD and TENANT specifying the date and
term of this Lease (but omitting reference to any charges payable
by TENANT hereunder). Either LANDLORD or TENANT may record said
Memorandum or Notice of Lease, at its expense.
18. Mechanics' Liens.
During the term of this Lease, TENANT shall promptly discharge by
payment, bond or otherwise, mechanics' liens filed against the
Premises for work, labor, services or materials claimed to have
been performed at or furnished to the Premises for or on behalf
of TENANT but excluding any work performed by LANDLORD for the
benefit of TENANT.
19. Attachments.
All Exhibits attached to this Lease are made a part hereof by
this reference.
20. Miscellaneous.
(A) Remedies Cumulative. No right, remedy or election given by
any provision in this Lease shall be deemed exclusive unless so
indicated, but each shall, wherever possible, be cumulative and
in addition to all other rights and remedies in law or equity
which either party may have arising out of the default of the
other party and failure to cure such default within the
applicable grace period.
(B) Non-Waiver. Failure of either party to cure a default of
the other under this Lease shall not render such non-defaulting
party in any way liable therefore, or relieve the defaulting
party from any of its obligations hereunder.
(C) Surrender. Upon any termination or expiration of this
Lease, TENANT shall surrender the Premises broom clean and in
substantially the same condition as existed at the commencement
of the term, except for normal wear and tear, with all of
TENANT's furniture and furnishings removed therefrom.
(D) Force Majeure. Notwithstanding anything to the contrary set
forth in this Lease, in the event either party hereto shall be
delayed or hindered in or prevented from the performance of any
act required under this Lease by reason of strikes, lockouts,
labor troubles, demonstrated inability to procure materials,
failure of power, casualty damage, restrictive governmental law
or regulations, riots, insurrection, war or other reason of a
like nature not the fault of the party delayed in performing
work, such delays are excusable.
(E) Management. Any third party which LANDLORD engages to be
responsible for the operation and management of the Premises
shall be a manager or management company with prior experience in
the management and operation of first-class office buildings and
shall be subject to TENANT's approval, not to be unreasonably
withheld, but LANDLORD shall have the right to operate and manage
the Premises with its own employees.
(F) Tenant's Right. Any moneys which become due or owing from
LANDLORD to TENANT under, pursuant to or by virtue of this Lease
shall bear interest from the date the same become due or payable
at the Interest Rate, and any such moneys which are not paid
within thirty (30) days after written demand may be set off and
taken as a credit against rent or other sums due from TENANT or
LANDLORD hereunder.
21. Binding Effect.
Subject to the provisions governing assignments, this Lease shall
be binding upon and inure to the benefit of the parties hereto,
their respective successors and permitted assigns.
22. Entire Agreement.
This Lease contains the entire agreement of the parties with
respect to the lease of the Premises, except for the Services
Agreement described in Section 25 hereof and may not be modified
except by an agreement in writing signed by both parties.
23. Notices.
All notices permitted or required to be given hereunder shall be
in writing and either personally delivered (and receipted for) or
mailed by certified or registered mail, return receipt requested,
as follows: (i) if to LANDLORD, to its address first hereinabove
stated, and (ii) if to TENANT, to its address first hereinabove
stated. LANDLORD and TENANT may form time to time by notice to
the other designate another place or places for the receipt of
future notices. Notices shall be deemed served on the date of
actual receipt if personally delivered, or upon the registration
or certification thereof if mailed.
24. Relinquishment of Space.
(A) Right to Relinquish. Commencing January 1, 2001, and on
each January 1 thereafter during the Initial Term, TENANT shall,
upon delivery of 90 days written notice to LANDLORD, have the
option to vacate, surrender and relinquish to LANDLORD, space in
the Building, along with the responsibilities and obligations
associated therewith (the "Relinquished Space").
(B) Reduction of Rent. On the date TENANT surrenders the
Relinquished Space, which date is the surrender date, the Annual
Rent payable by TENANT, as defined in Section 3, shall be re-
computed by multiplying the total rentable area occupied by
TENANT from and after the surrender date by the applicable amount
provided for in Section 3, and there shall be such other
adjustments and prorations of TENANT's obligations hereunder
shall be as are just and equitable and as may be provided for in
the Services Agreement executed pursuant to Section 25 hereof.
(C) Removal of TENANT's Property. LANDLORD consents and agrees
that TENANT may remove the TENANT's Property from the
Relinquished Space, and TENANT agrees that it shall deliver
Relinquished Space to LANDLORD on the applicable Surrender Date
in a broom clean condition.
(D) Alterations for Relinquished Space. TENANT agrees that it
will make, at its costs, such alterations to the Building as are
reasonably necessary so that any space relinquishment by TENANT
is separated from the balance of the Premises, including, without
limitations, such alterations as may be required for purposes of
security and separate metering of HVAC and utilities.
25. Parking Garage.
The term "Parking Garage" means and refers to that garage more
fully described on Exhibit A which is a part of the Premises as
defined in Section 1. TENANT shall have the exclusive right to
use the Parking Garage at no charge to TENANT during the term of
this Lease and any extensions hereof. In the event TENANT
relinquishes to LANDLORD one or more floors or other space of the
Building pursuant to Section 24 hereof, TENANT shall relinquish
the right to use a pro rata number of parking spaces in the
Parking Garage, computed by multiplying the total number of
parking spaces in the Parking Garage by the percentage of the
square footage of rentable area relinquished. Any new tenant of
the Building shall have the right to use parking spaces in the
Parking Garage on a pro rata basis. The exact location of
parking spaces to be assigned to any such new tenant shall be
mutually agreed upon by the parties, with all parties acting
reasonably and in good faith.
(A) Maintenance of Parking Garage. LANDLORD will at all times
(i) maintain in good condition and repair the
Parking Garage, and
(ii) comply with all Governmental Requirements in the
operation thereof. The Parking Garage will be properly lighted, cleaned
and maintained. LANDLORD will continue to assign reserved
parking spaces in the Parking Garage to handicapped employees who
work in the Building even though such persons may not otherwise
qualify for parking in the Parking Garage, in order to meet the
requirements of the Americans With Disabilities Act in lieu of
providing designated handicapped parking spaces in the Parking
Garage, Eighteenth Street Garage and in the surface parking lots.
(B) Casualty to Parking Garage. In the event that all or any
portion of the Parking Garage is damaged or destroyed by fire or
other casualty or occurrence or is condemned or taken as a part
of any eminent domain action, then the following agreements shall
be binding between the parties hereto:
(i) In the case of damage or destruction by fire or other
casualty or occurrence, the provisions of Section 8(B) hereof
shall be applicable to the repair and restoration thereof.
During the period of the repair and restoration, LANDLORD shall
exercise its reasonable efforts to provide to TENANT substitute
parking (in addition to that currently provided in the surface
areas) that is reasonably convenient.
(ii) In the case of a Condemnation affecting only a part of the
Parking Garage and in which the remaining, unaffected part will,
after repair and restoration, be capable of providing to TENANT
the parking rights herein described the provisions of
Section 10(B) shall be applicable to the repair and restoration
thereof. During the period of the repair and restoration,
LANDLORD shall exercise its reasonable efforts to provide to
TENANT substitute parking (in addition to that currently provided
in the surface areas) that is reasonably convenient.
(iii) In the case of a Condemnation which affects all or
substantially all of the Parking Garage or where the portion
remaining will not be capable of providing TENANT with the
parking and parking rights described herein, LANDLORD shall use
its reasonable efforts to secure substitute parking (in addition
to that in the surface area).
(iv) In the circumstances covered by this Section 31 if the
necessary repair or restoration is not completed within 180 days
after the damage, destruction or Condemnation so that the parking
and parking rights described herein are available to TENANT, or
if necessary substitute parking is not available to TENANT within
such 180 days, then, in addition to its other rights under this
Lease, TENANT shall have the right, exercisable by written notice
given to LANDLORD within 30 days after the end of said 180-day
period to terminate this Lease, and upon the giving of such
notice, this Lease shall cease and terminate as of the date of
such notice and the rent and other charges payable under this
Lease shall be adjusted as of such termination date. Nothing set
forth in this Section shall be construed to require LANDLORD to
construct a substitute facility.
26. Signage.
TENANT and LANDLORD shall cooperate as to the size, design, exact
location, and placement of appropriate interior and exterior
signage by TENANT. The Parking Garage will contain such signage
as is reasonably necessary to direct persons to the Building.
The existing signage for the Building shall not be changed
without the prior written consent of TENANT.
27. Right of First Refusal.
If at any time, or from time to time, during the Initial Term, or
any Extended Term, LANDLORD, or any successor or assign of
LANDLORD, shall be willing, as a part of a bona fide transaction,
to sell, convey, or otherwise transfer the Building or Parking
Garage or any part or parts thereof, LANDLORD, or its successor
or assign, shall give TENANT, or its successor or assign, written
notice (the "First Refusal Notice") setting forth the terms and
conditions of the proposed sale, conveyance or transfer. TENANT,
or its successor or assign shall, within thirty (30) days after
the receipt of the First Refusal Notice, by written notice to
LANDLORD, elect to (a) exercise a first right of refusal
respecting the subject property as described in the First Refusal
Notice (the "Subject Property"), or (b) waive its right of first
refusal under this Lease. In the event TENANT, or its successor
or assign, fails to notify LANDLORD, or its successor or assign,
of its election within the thirty (30) day period, TENANT, or its
successor or assign, shall be deemed to have waived its right of
first refusal and LANDLORD, or its successor or assign, shall
have the right, to consummate the particular sale, conveyance or
transfer upon the terms and conditions substantially the same as
and no less favorable to LANDLORD, or its successor or assign,
than those contained in the First Refusal Notice, and upon the
consummation of such sale, conveyance or transfer the right of
first refusal set forth in this Section shall terminate as to the
Subject Project. If TENANT, or its successor or assign exercises
its right of first refusal hereunder, then TENANT, or its
successor or assign shall purchase the subject property in
question upon the terms and conditions as set forth in the First
Refusal Notice.
28. Services Agreement. LANDLORD and TENANT have entered
into a Building Services Agreement, dated January 1, 1995 (as
subsequently amended, the "Services Agreement") whereby TENANT
agreed to assume and discharge some or all of the
responsibilities, liabilities and obligations of LANDLORD created
under this Lease. LANDLORD and TENANT agree that LANDLORD shall
be relieved of each and every responsibility, liability and
obligation that is expressly agreed to be assumed, performed or
discharged by TENANT under such Services Agreement.
29. Limitation of Liability.
Notwithstanding anything contained in this Lease to the contrary,
TENANT agrees that TENANT shall look solely to the rights,
titles, interests and estates of LANDLORD in the Premises or the
proceeds from any sale or refinancing of any of LANDLORD's
rights, title, interests or estates in the Premises, for the
collection of any judgment or other judicial process requiring
the payment of money by LANDLORD to TENANT in the event of any
default or breach by LANDLORD with respect to any of the terms
and provisions of this Lease to be observed or performed by
LANDLORD, and no other asset of LANDLORD shall be subject to
levy, execution or other judicial process for the satisfaction of
TENANT's claim and LANDLORD shall not be liable for any default
or breach except to the extent of LANDLORD's estate in the
Building and Parking Garage; provided, however, nothing set forth
herein shall prohibit TENANT from obtaining injunctive relief.
IN WITNESS WHEREOF, the parties have executed and caused to
be executed this Lease.
FORTY-FOUR FORTY-FOUR FOREST PARK
DEVELOPMENT CORPORATION
By: /s/ ▇▇▇▇ ▇'▇▇▇▇▇▇
Printed Name: ▇▇▇▇ ▇'▇▇▇▇▇▇
Title: Chairman & CEO
RIGHTCHOICE MANAGED CARE, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Printed Name: ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Title: President
EXHIBIT A
Description of Premises
The Premises consist of 312,643 Rentable Square Feet of
Office Space in Building at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, which Premises are located on a number of floors in
such building, together with spaces in the Parking Garage as
stated in the Lease.
