Exhibit 10.2
LEASE AGREEMENT
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THIS LEASE AGREEMENT ("this Lease") is entered into as of the 1st day of
April, 2002 between DJK, LLC, an Alabama limited liability company (hereinafter
referred to as the "Landlord"), and COMPUTER PROGRAMS AND SYSTEMS, INC., an
Alabama corporation (hereinafter referred to as the "Tenant").
WITNESSETH:
The Landlord, for and in consideration of the rents, conditions, terms and
covenants herein specified to be paid, performed and observed by the Tenant,
does hereby let, lease and demise to the Tenant, and the Tenant does hereby
lease and take from the Landlord, that certain real estate with accompanying
improvements and appurtenances located at 0000 Xxxx Xxxxxx in the City and
County of Mobile, State of Alabama and more particularly identified on Exhibit A
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attached hereto and incorporated herein by reference (the "Demised Premises")
upon the following terms and conditions:
NOW, THEREFORE, in consideration of the premises and the rents, covenants
and conditions hereinafter contained, the Landlord and the Tenant do hereby
covenant, promise and agree as follows:
1. Landlord does hereby lease unto Tenant and Tenant does hereby lease from
Landlord the Demised Premises for a term of one hundred twenty (120) calendar
months commencing as of April 1, 2002 (hereinafter referred to as the "Lease
Term").
2. Tenant shall during the first year of the Lease Term, pay to the
Landlord an annual rental of Thirty Nine Thousand and No/100 Dollars
($39,000.00) unless abated or diminished as hereinafter provided, in equal
monthly installments of Three Thousand Two Hundred Fifty and No/100 Dollars
($3,250.00) in advance, on the 1st day of each month, commencing upon the 1st
day of April, 2002. For each of the remaining nine years of the Lease Term, the
rental rate shall be adjusted, as of March 31, 2003 and on March 31 of each year
thereafter, in accordance with changes in the Consumer Price Index ("CPI") as
published by the Bureau of Labor Statistics for All Urban Consumers (CPI-U),
1982-84 = 100. Upon each such lease rate adjustment date, the lease rate for the
upcoming year of the Lease Term shall be an amount equal to the monthly lease
rate for the immediately preceding year multiplied by a fraction, the
denominator of which shall be the CPI for April, 2002 and the numerator of which
shall be the CPI for the month of such lease rate adjustment . It is the
intention of the parties that the determination of the adjusted lease rate shall
not be distorted by any changes in the method by which the CPI is determined or
the form in which the CPI is presented, including but not limited to, changes in
the reference year on which the CPI is based or changes in the components of the
CPI. Accordingly, if the method by which the CPI is determined or the form in
which the CPI is presented is hereafter changed, the index used in the numerator
of the fraction described above shall be adjusted so that such index is
determined and presented on the same basis as the CPI used in the denominator of
such fraction. To the extent possible, such adjustment shall be based on any
adjustment factor published by the U.S. Department of Labor or any successor
governmental agency. If for any reason the index used in the numerator of such
fraction cannot be determined on the same basis as the CPI used in the
denominator of such fraction, or if the CPI is not hereafter published, the
adjusted lease rate shall be determined by reference to the index of consumer
prices then published by the U.S. Government, or an agency thereof, that most
nearly resembles the CPI as in effect for April, 2002.
In addition to the foregoing, the rental may also be re-negotiated at such
future times that additional rental space may become available for use by Tenant
at the Demised Premises.
Notwithstanding the foregoing, the parties hereby agree that ninety (90)
days prior to the expiration of the first five (5) years of the Lease Term, they
shall obtain an appraisal, in accordance with the procedures set forth below, in
order to determine the Fair Market Rental Value of the Demised Premises. Upon
the completion of such appraisal, the rental rate for the sixth (6th) year of
the Lease Term shall be adjusted to an amount equal to the Fair Market Rental
Value as set forth in said appraisal.
On or about the date that is ninety (90) days prior to the expiration of
the fifth (5th) year of the Lease Term, Landlord and Tenant shall consult with
one another for the purpose of appointing a mutually acceptable qualified
independent appraiser. If the parties are unable to agree on an appraiser within
ten (10) days, such Fair Market Rental Value shall be determined by a panel of
three independent appraisers, one of whom shall be selected by each of Landlord
and Tenant within five (5) days thereafter. If one party appoints an appraiser
pursuant to the immediately preceding sentence, and if the other party fails to
appoint a second appraiser within the applicable time limit, the appraisal shall
be made by such appraiser. On or before the tenth day after appointment of the
second appraiser, a third appraiser shall be selected by agreement of the first
two appraisers. Landlord and Tenant shall split all fees and expenses of the
appraisers. Each appraiser appointed pursuant to the foregoing procedure shall
be experienced, have equivalent qualifications to those of a senior member of
the American Society of Appraisers, shall be independent of Landlord and Tenant,
and shall be instructed to determine Fair Market Rental Value in accordance with
the uniform standards for professional appraisal practice or the equivalent,
before the 45th day after the appointment of the last of such appraisers to be
appointed, and such determination shall be final, binding and conclusive upon
the parties. If three appraisers shall be appointed, the determination of Fair
Market Rental Value shall be the average of the three appraisals rendered by the
appraisers. In the event, however, that the lowest or the highest of the three
appraisals, or both, varies by more than ten percent (10%) from the middle
appraisal, the appraisal or appraisals so varying shall be disregarded and the
average of the remaining appraisals, or the remaining appraisal, shall be the
determination of Fair Market Rental Value.
For purposes of this section, (i) "Fair Market Rental Value" means an
amount determined by an Independent Appraisal (as defined below) on the basis
of, and shall be equal in amount to, the rental rate which would be obtained in
an arm's-length transaction between an informed and willing tenant under no
compulsion to lease and an informed and willing landlord under no compulsion to
rent; and (ii) "Independent Appraisal" means the procedure specified above for
determining Fair Market Rental Value.
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3. Landlord represents and warrants that (A) it is the owner in fee simple
of the Demised Premises; (B) the Demised Premises are free and clear of all
liens and encumbrances other than the lien of current ad valorem taxes,
easements for roads and utilities serving the Demised Premises, setbacks and
other conditions of title as may be set forth in any recorded plat, easements
and restrictions of record that do not interfere with the present use of the
Demised Premises, and those liens and encumbrances set forth on Exhibit B
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attached hereto (the "Permitted Encumbrances"); (C) Landlord has not received
any notification from any governmental authority of any pending public
improvements affecting the Demised Premises or requiring any repairs,
replacements or alterations to the Demised Premises that have not been
satisfactorily made; (D) Landlord has no knowledge of any pending or threatened
condemnation or appropriation of all or any part of the Demised Premises by any
governmental authority or other entity having the right of eminent domain; and
(E) to the best of Landlord's knowledge and belief, there are no applicable
laws, ordinances or regulations that would prohibit or interfere with the use of
the Demised Premises by Tenant for its intended use thereof.
Landlord covenants that Tenant, by paying the rent herein reserved and
performing and observing all of the covenants and agreements herein agreed by
Tenant to be kept and performed, may peaceably hold and enjoy the Demised
Premises with exclusive control and possession thereof during the full Lease
Term without hindrance or interruption by Landlord and that Landlord will
warrant and defend Tenant in peaceful and quiet enjoyment of the Demised
Premises against the claims of all persons claiming through or under Landlord,
except condemning and similar authorities.
4. The Tenant shall assess the Demised Premises and shall pay promptly as
and when they become due all real estate taxes and all assessments, water rates
and water charges, and other governmental levies and charges, general and
special, ordinary and extraordinary, unforeseen as well as foreseen, of any
kind, which are assessed or imposed upon the Demised Premises or any part
thereof, or become payable during the term of this Lease.
During the term of this Lease, Tenant may attempt to have the assessed
valuation of the Demised Premises reduced or may initiate proceedings to contest
the Taxes and Assessments. If requested by Tenant, Landlord shall join in any
such proceedings initiated by Tenant; provided that Tenant shall pay all costs
and expenses in connection therewith, including reasonable costs and expenses
incurred by Landlord. Upon the final determination of any such proceedings,
Tenant immediately shall pay the Taxes and Assessments, together with all costs,
charges, interest and penalties, incidental to the proceedings.
5. Landlord hereby demises said premises in "as is" condition and Tenant
accepts same "as is". Tenant shall make and pay for all repairs and replacements
to the Demised Premises including all water, plumbing, gas or electrical lines
or conduits originally furnished by the Landlord.
6. Tenant may, at its own expense, from time to time, make such
alterations, additions or changes, structural or otherwise, in and to the
Demised Premises as it may deem necessary or suitable; provided, however, Tenant
shall obtain Landlord's prior written consent to plans and specifications for
structural alterations, additions or changes; provided, further,
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Landlord shall not unreasonably withhold its consent thereto if the structural
strength or value of the building will not be reduced or impaired by such work.
The term "structural changes", as used herein, shall not include moving of stud
partitions, minor plumbing and electrical work, modification and rearrangement
of fixtures or other minor changes.
7. Tenant shall contract in its own name for and pay when due, all charges
and bills for utility services used on or charged against the Demised Premises,
including, without limitation, all gas, water, sewer, electricity and telephone
services, during the term of this Lease, and any extensions or renewals thereof.
8. If, as the result of any neglect of the Tenant, its agents, servants or
invitees, or the nature of the use and occupancy of the Demised Premises by the
Tenant, any Federal, State or Municipal government or any department or division
thereof has or hereafter shall condemn the Demised Premises or any part thereof
as unsafe or as not in conformity with the laws, regulations or orders relating
to the use, occupancy and construction thereof, or has ordered or required or
shall hereafter order or require any rebuilding, alteration or repair thereof or
installation therein, the Tenant, at its own expense, will proceed with due
diligence to comply with such laws, regulations or orders and no abatement of
rent shall be effective.
9. Tenant shall comply with, at all times and in all respects, all laws and
ordinances relating to nuisances, health, safety and sanitation as respects
Tenant's use of the Demised Premises and the street abounding same. Tenant will
not commit any waste or permit the same to be done, and shall keep the Demised
Premises in a neat and orderly condition.
10. Tenant shall insure the Demised Premises against damage or destruction
by fire and other casualties insured under a standard extended coverage
endorsement. Said insurance shall be in an amount equal to not less than eighty
percent (80%) of the insurable value of the permanent improvements thereof. The
cost of such insurance shall be borne by the Tenant and all policies with
respect to the Demised Premises shall bear endorsements naming the Landlord and
Tenant as loss payees as their interest may appear.
In the event that, at any time during the Lease Term the permanent
improvements then constituting the Demised Premises shall be damaged or
destroyed (partially or totally) by fire, the elements or any other casualty,
Landlord shall, with due diligence repair, rebuild and restore the same as
nearly as practicable to the condition existing just prior to such damage or
destruction. The cost of such repair, restoration and rebuilding shall be borne
by Tenant, provided that if (a) the amount recovered on said insurance is less
than eighty percent (80%) of the reasonably estimated cost of such repairs,
restoration and rebuilding and (b) such estimated cost is more than $100,000.00,
then either party may terminate this Lease as of the date of such damage or
destruction by giving written notice to the other party within thirty (30) days
after receipt of such estimate and Tenant shall have an additional sixty (60)
days within which to remove its property from the Demised Premises.
During any period commencing upon the date of any such damage or
destruction and ending upon the completion of the repairs, rebuilding and
restoration required herein, there shall
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be a reasonable abatement in the annual rental and any other charges payable
under this Lease equal to any insurance proceeds received by Landlord therefor.
11. In the event of condemnation or sale under threat of condemnation, in
whole or in part, of the Demised Premises, the proceeds therefrom shall be paid
to Landlord and Tenant as owners and Tenant shall not receive compensation in
addition thereto because of the termination in whole or in part of Tenant's
tenancy.
In the event the Demised Premises, or such portion thereof rendering the
same untenable, shall be expropriated by public or quasi-public authority, this
Lease shall terminate as of the date Tenant shall be deprived of the physical
possession thereof.
12. The Demised Premises shall not be used for any unlawful purpose.
13. If the rent reserved in this Lease, or any part thereof, shall remain
unpaid for a period of thirty (30) days or if Tenant shall be in default under
any other provision of this Lease and shall remain so for a period of thirty
(30) days after notice to Tenant of said nonpayment or other default, then
Landlord may, by giving notice to Tenant at any time thereafter during the
continuance of such default, terminate this Lease and either (a) re-enter the
Demised Premises by summary proceedings or otherwise, expel Tenant and remove
all property therefrom, relet the same and receive the rent therefrom, and
Tenant shall remain liable for the equivalent of the amount of all rent reserved
herein less the net rent received from reletting, if any, after deducting
therefrom the cost (including attorney's fees) of obtaining possession of the
Demised Premises and of any repairs and alterations necessary to prepare it for
reletting, or (b) xxx for and recover the entire unpaid rent for the remainder
of the term of this Lease. In the event of default by Tenant in payment of any
rental due hereunder and employment of an attorney for the collection of the
same, Tenant agrees to pay a reasonable attorney's fee for the services of such
attorney.
14. If a petition in bankruptcy shall be filed by Tenant, or if Tenant
shall be adjudicated bankrupt, or if Tenant shall make a general assignment for
the benefit of creditors, or if in any proceeding based upon the insolvency of
Tenant a receiver of all the property of Tenant shall be appointed, then
Landlord may, at its option, terminate this Lease by giving notice to Tenant of
its intention so to do.
15. During the Lease Term, Tenant and its assignees and sublessees shall
indemnify and save Landlord harmless against all penalties, claims, or demands
arising from Tenant's negligence or wrongful use of the Demised Premises, except
those which shall result from the act, default or negligence of Landlord,
Landlord's employees, agents, licensees, invitees or contractors.
In addition, Tenant agrees to maintain insurance against all liabilities
for damages on account of injuries to property or person, including death,
sustained by any person or persons while on the Demised Premises, in a general
liability combined limits policy or policies in the amount of One Million and
No/100 Dollars ($1,000,000.00) with respect to injury to any one person, to any
one accident or disaster, and with respect to damage to property.
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16. In the event Landlord shall fail to perform any obligations on any
mortgage or encumbrance affecting title to the Demised Premises and to which
this Lease shall be subordinate, or shall fail to perform any obligation
specified in this Lease, then Tenant may, after the thirty (30) days notice
thereof by Tenant, cure such default, all on behalf of and at the expense of
Landlord, and do all necessary work and make all necessary payments in
connection therewith, and Landlord shall on demand pay Tenant forthwith the
amount so paid by Tenant together with interest thereon at the rate of 10%, but
Tenant may not withhold rental payments and other payments thereafter due to
Landlord.
17. At the expiration or earlier termination of the Lease Term, Tenant
shall surrender the Demised Premises, together with alterations, additions and
improvements then a part of said premises, in good order and condition except
for the following: ordinary wear and tear, repairs required to be made by
Landlord, and loss or damage by fire, the elements and other casualty. All
furniture and trade fixtures installed in said building at the expense of Tenant
or other occupant shall remain the property of Tenant or such other occupant.
18. Tenant may hereinafter sublet all of the Demised Premises or assign
this Lease to a parent, affiliate or subsidiary of the Tenant without Landlord's
prior written approval. Tenant may not, however, sublet all or any part of the
Demised Premises or assign this Lease under circumstances not listed above
without Landlord's prior written approval, which consent shall not be
unreasonably withheld.
19. Landlord hereby agrees to and shall indemnify Tenant and his successors
and assigns, and Tenant hereby agrees to and shall indemnify Landlord and its
successors and assigns in respect of: any liability, damage, cost, expense or
deficiency resulting from any misrepresentations, breach of warranty or
nonfulfillment of any representation or agreement of the indemnifying party made
herein, and from any misrepresentation in or omission from any certificate or
other instrument furnished or to be furnished to the indemnified party hereunder
as well as against all actions, suits, process, demands, assessments, judgments,
costs and expenses, including counsel fees, incident to any of the foregoing.
This indemnity shall survive the expiration or termination of this Lease for a
term of two (2) years.
20. Notices required under this Lease shall be in writing and deemed to be
properly served on receipt thereof if sent by certified or registered mail to
Landlord at the last address where rent was paid or to Tenant at its principal
office in Mobile, Alabama, or to any subsequent address which Tenant shall
designate for such purpose.
21. Landlord shall have the right to enter upon the Demised Premises at all
reasonable hours for the purpose of inspection and making any repairs or
restorations which it may be required to make under the terms of this Lease, but
such rights shall be exercised in such a manner as not to unreasonably interfere
with the business of Tenant.
22. The failure of Landlord or Tenant to insist, in any one or more
instances, upon a strict performance of any of the covenants of this Lease, or
to exercise an option herein contained shall not be construed as a waiver or a
relinquishment for the future, of such covenant or option, but the same shall
continue and remain in full force and effect. The receipt by
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Landlord of rent, with knowledge of the breach of any covenant hereof, shall not
be deemed a waiver of such breach, and no waiver by Landlord or Tenant of any
provision hereof shall be deemed to have been made unless expressed in writing,
and signed by Landlord or Tenant, or their agents.
23. Both Landlord and Tenant waive their right of subrogation against the
other party for any reason whatsoever, and any insurance policies herein
required to be procured shall contain a waiver of any right of subrogation by
the insurance company against such other party.
24. The necessary grammatical changes which shall be required to make the
provisions of this Lease apply (a) in the plural sense if there shall be more
than one Landlord, and (b) to any Landlord which shall be either a corporation,
an association, a partnership, or and individual, male or female, shall in all
instances be assumed as though in each case fully expressed. Unless otherwise
provided, upon the termination of this Lease under any of the sections hereof,
the parties hereto shall be relieved of any further liability hereunder except
as to acts, omissions or defaults occurring prior to such termination.
25. If any term or provision of this Lease, or the application thereof to
any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and enforced to the fullest extent permitted by law.
26. This Lease shall be interpreted and construed pursuant to and in
accordance with the laws of the State of Alabama. Time is of the essence of this
Lease.
27. The conditions, covenants and agreements contained in this Lease shall
be binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and assigns. All
covenants and agreements of this Lease shall run with the land.
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IN WITNESS WHEREOF, the parties hereto have executed these presents in
duplicate and affixed their seals hereto as of the day and year first above
written.
DJK, LLC
By: /s/ Xxxxxx X. Xxxxxxx
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Its President
COMPUTER PROGRAMS AND SYSTEMS, INC.
By: /s/ M. Xxxxxxx Xxxxxx
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Its Vice President of Finance and CFO
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