EXHIBIT 10.78
FIRST AMENDMENT OF LEASE
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This First Amendment of Lease ("Amendment") dated this 1st day of August
2001, by and between BANKERS INSURANCE COMPANY ("Landlord") and INSURANCE
MANAGEMENT SOLUTIONS GROUP, INC. ("Tenant")
R E C I T A L S
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A. Landlord and Tenant entered into a certain Lease Agreement dated January
1, 1997 and executed and effective as of January 1, 1998 (the "Lease"),
which Lease is scheduled to expire on December 31, 2001, relating to the
lease of 82,566 rentable square feet more or less ("Original Premises") in
the building commonly known as the Bankers Financial Center, 360 Central
Avenue, St. Petersburg, Florida 33701 ("Building").
B. Landlord and Tenant desire to modify the Lease to extend the Term, provide
for a reduction in leased space and otherwise modify certain terms of the
Lease as hereinafter set forth.
A G R E E M E N T S
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NOW, THEREFORE, Landlord and Tenant agree as follows:
1. TERM. Paragraph 1.4 of the Lease is hereby deleted in its entirety and
replaced with the following: The Lease shall be renewed and the Term
extended for a period of twenty-nine (29) months beginning on August 1,
2001 (the "Extended Term"). All terms and conditions of the Lease in effect
as of June 27, 2001 shall remain in effect during the Extended Term, except
as hereinafter provided.
2. COMMENCEMENT DATE. Paragraph 1.5 of the Lease is hereby deleted in its
entirety and replaced with the following: Commencement Date: August 1,
2001.
3. TERMINATION DATE. Paragraph 1.6 of the Lease is hereby deleted in its
entirety and replaced with the following: Termination Date: December 31,
2003. The Tenant has the option to cancel this Lease prior to the
Termination Date provided the Tenant gives the Landlord one hundred twenty
(120) days prior written notice. In the event the Tenant cancels the Lease
before the Termination Date, the Tenant agrees to pay to the Landlord a
payment equal to the unamortized cost of carpeting and painting the 5th
Floor.
4. BASE RENT. Paragraph 1.7 of the Lease is hereby deleted in its entirety and
replaced with the following: Base Rent: $13.75 per square foot, $605,440.00
per annum, $50,453.33 per month plus applicable tax. In addition to the
Base Rent, IMSG will pay an additional sum in the amount of $5,449.58 per
month plus applicable tax for the use of the computer room and support
areas. This specific monthly charge for computer room and support area
usage will be recalculated on a quarterly basis beginning on November 1,
2001.
5. RENTABLE AREA OF DEMISED PREMISES (NET RENTABLE AREA). Paragraph 1.9 of the
Lease is hereby deleted in its entirety and replaced with the following:
Rentable Area of Demised Premises ("Net Rentable Area"): 44,032 square feet
more or less.
6. TENANT IMPROVEMENT ALLOWANCE. Paragraph 1.11 of the Lease is hereby deleted
in its entirety and replaced with the following: Landlord agrees to carpet
and paint the 5th Floor.
7. EXPENSE STOP. Paragraph 1.19 of the Lease is hereby deleted in its entirety
and replaced with the following: Building operating costs for calendar year
ending December 31, 2001.
8. TENANT'S PROPORTIONATE SHARE OF OPERATING COSTS ("PROPORTIONATE SHARE").
Paragraph 1.10 of the Lease is hereby deleted in its entirety and replaced
with the following: Tenant's Proportionate Share of Operating Costs
("Proportionate Share"), seventeen percent (17%).
9. NUMBER OF PARKING SPACES WHICH TENANT SHALL RENT. Paragraph 1.12 of the
Lease is hereby deleted in its entirety and replaced with the following:
Number of Parking Spaces which Tenant shall rent: 74 in the adjacent
parking garage, 45 covered and 29 uncovered. Additional spaces in the
garage will be made available on an as-available month-to-month basis in
the event IMSG would like to lease additional parking spaces. In addition,
the Tenant shall lease approximately 100 parking spaces in the surface lot
located at 3rd Avenue South and 3rd Street South, depending upon
availability.
10. MONTHLY RENTAL FOR PARKING SPACES. Paragraph 1.13 of the Lease is hereby
deleted in its entirety and replaced with the following: Monthly Rental for
parking spaces: $50.00 per month plus taxes for each covered space, $40.00
per month for each uncovered space plus taxes for each parking space in the
adjacent parking garage; and $25.00 per month per space plus taxes, for
each space in the surface parking lot (rates subject to change to reflect
the rates generally charged by the Landlord).
11. TERM. Paragraph 3.2 and 3.3 of the Lease are hereby deleted in their
entirety.
12. RENT. Paragraph 4.5 of the Lease is hereby deleted in its entirety and
replaced with the following. The Monthly Rent shall be adjusted, upward
only, beginning August 1, 2002 and annually thereafter by the greater of
thirty-five cents ($.35), per square foot or by the same percentage that
the "Index" (as hereinafter defined) most recently published prior to such
anniversary date had increased over the Index on the date of this Lease.
For purposes of this Paragraph 4.5, the "Index" means the Consumer Price
Index for Urban Wage Earners and Clerical Workers (CPI-W); U.S. City
Average (1967=100) as published by the United States Department of Labor,
Bureau of Labor Statistics; provided that, in the event the Index shall not
be published or shall be discontinued, the most nearly comparable index
shall be substituted therefor by Landlord.
13. TENANT'S SHARE OF OPERATING COSTS. Paragraph 5 is amended to read:
5. TENANT'S SHARE OF OPERATING COSTS.
5.1 In addition to Base Rent, Tenant shall pay Tenant's percentage share
as specified in paragraph 5.2(f) of the "Building Operating Costs" (as
hereinafter defined), paid or incurred by Landlord in such year in
excess of the Building
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Operating Cost for the Base Year ("Operating Expenses Rent") which
shall be the calendar year ending December 31, 2000, which was $7.29
per square foot of Net Rentable Area
The term "Building Operating Costs" includes:
(a) All taxes, assessments, water and sewer charges and other similar
governmental charges levied on or attributable to the Building,
the land, and the roads, walks, plazas, landscaped areas, garages
and parking areas, common areas, improvements, and facilities
thereon (collectively, the "Property"), or its operation,
including, but not limited to, general and special real property
taxes and assessments levied or assessed against the Property,
personal property taxes or assessments levied or assessed against
the Property, and any tax measured by gross rentals received from
the Property, together with any reasonable costs incurred by
Landlord (including attorney's fees) in contesting any such
taxes, assessments or charges; but excluding any net income,
capital stock, estate or inheritance taxes imposed by the State
or Federal Government or by any agency, branch or department
thereof; provided that if at any time during the Term there shall
be levied, assessed or imposed on Landlord or the Property by any
governmental entity, any general or special, ad valorem or
specific, excise, capital levy or other tax, assessment, levy or
charge directly on the rent received under this Lease (except as
separately paid to Landlord in accordance with Paragraph 4.6
above) or other lease affecting the Property and/or any license
fee, excise or sales tax, assessment, levy or charge measured by
or based, in whole or in part, upon such rents, and/or transfer,
transaction, or similar tax, assessment, levy or charge based
directly or indirectly upon the transaction represented by this
Lease or other leases affecting the Property, and/or occupancy,
use, per capital or other tax, assessment, levy or charge based
directly or indirectly upon the use or occupancy of the Premises
or the Property, then all such taxes, assessments, levies and
charges shall be deemed to be included in the term "Building
Operating Costs"; plus
(b) Operating costs of the Property consisting of any and all
reasonable costs incurred by Landlord in repairing, maintaining,
insuring, and operating the Property and all personal property of
Landlord used in connection therewith, including (without
limiting the generality of the foregoing) the following: all
light bulbs, heating and air conditioning, water, fuel, refuse,
sewer, and telephone); all costs of supplies, materials; all
insurance costs (including but not limited to public liability,
extended coverage property damage and casualty, business
interruption, loss of rents, flood, earthquake, workmen's
compensation, with companies and in amounts as determined by
Landlord); licenses, permits, inspection fees; costs of striping
and paving-parking areas and driveways; painting; repair,
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maintenance and replacement of plumbing, roofing, elevator, HVAC,
electrical and other systems; repair, maintenance and replacement
(including reasonable reserves for depreciation and
replacements) of all improvements, both structural and
non-structural; any costs of services of independent contractors,
security personnel, trash removal, exterminator, landscaping,
parking operations, and maintenance personnel and costs of
compensation (including employment taxes and fringe benefits) of
all persons who perform management, operation, maintenance,
repair and overhaul of the Property and equipment thereon used in
connection therewith, including, without limitation, full or
part-time building staff, janitors, foremen, window washers,
security personnel and gardeners; any costs for contract
maintenance of any or all of the above; and all legal, accounting
and other professional expenses in connection with the operation
of the Property.
5.1 The Rent Adjustment shall be payable by Tenant to Landlord in
accordance with the following:
(a) Landlord shall notify Tenant of Landlord's estimate of the Rent
Adjustment for the twelve (12) succeeding calendar months as soon
as reasonably practical. Upon receipt of such notice, Tenant
shall pay to Landlord, during each of the succeeding twelve
calendar months, one-twelfth (1/12) of the estimated Rent
Adjustment. If at any time during a year Landlord determines that
its estimate is incorrect by no less than 15%, Landlord may
notify Tenant of the revision of such estimate and thereafter for
the remainder of such twelve (12) months Tenant shall pay
estimated Rent Adjustment based upon such revision. On or before
March 15 of each calendar year, Landlord shall deliver to Tenant
the actual statement of the amount of Building Operating Costs
for the preceding calendar year as well as Tenant's actual Rent
Adjustment based thereon. Any adjustments payable by Tenant, as
shown on such final statement, or any reduction in amount
previously paid by Tenant, shall be paid by, or reimbursed to,
Tenant, within fifteen (15) days from receipt of such statement.
(b) In the event the current year Building Operating Costs exceed the
Building Operating Costs for the prior year by ten percent (10%),
Tenant shall have the right, at Tenant's expense, to perform by
June 30 of any year an audit of the Building Operating Costs of
the preceding calendar year as well as the calculations of
Tenant's Proportionate Share thereof. Landlord shall, on Tenant's
written request, provide to Tenant copies of and make available
to Tenant for inspection at Landlord's offices and at Tenant's
option for audit, Landlord's invoices, bills and cancelled checks
pertaining to Building Operating Costs for the Building. If
Landlord fails to deliver a statement of the amounts owing by
Tenant for Building Operating Costs for any calendar year within
six (6) months following the
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end of such year, Landlord shall be deemed to have waived
collection of such amounts for that year.
(c) In the event that Tenant shall fail to object prior to June
30 any amounts set forth in the Statement of Rent Adjustment
delivered by Landlord, said statement shall be deemed
binding, conclusive and final on all parties.
(d) Notwithstanding anything to the contrary hereinabove,
Landlord's failure to timely deliver said notice and
statements to Tenant shall not constitute a waiver by
Landlord nor a defense by Tenant toward payment of amounts
required to be paid to Landlord after receipt of written
notice of said amounts by Tenant. In the event Landlord
delivers said statement after March 15, the June 30
objection date shall be extended by a like amount of time.
(e) If this Lease shall commence on any day other than the first
day of a month or terminate on a day other than the last
day of a month, the amount of any Rent Adjustment payable by
Tenant for the month in which this Lease commences or
terminates shall be equitably prorated and shall be due and
payable within thirty (30) days of such commencement or
termination.
(f) Tenant's Proportionate Share of the Operating Expenses is
the proportion that the rentable square footage occupied by
Tenant bears to the total rentable square footage of the
Building as set forth in Section 1.1 of the Lease.
Notwithstanding any provision of this paragraph to the
contrary, if the Building is less than ninety-five percent
(95%) leased and/or occupied during any calendar year,
including the Base Year for the purposes of determining
Base Year Operating Expenses, appropriate adjustments
shall be so that Operating Expense Rent shall be computed
for such year as though 95% of the Building had been leased
and occupied during such year.
14. The Landlord and Tenant agree to share conference rooms and the Boardroom
on the 16th and 17th floors of the Bankers Financial Center based upon
availability; scheduling to be handled by Landlord and/or Tenant based on
locus of control.
15. Except as set forth herein, the Lease as herein amended remains in full
force and effect in accordance with its terms and provisions; and Landlord
and Tenant do hereby ratify, adopt, and confirm its terms and provisions,
and its terms and provisions shall remain in full force and effect.
16. The Lease as herein amended is intended by the parties as the final
expression of their agreement and as a complete and exclusive statement of
the terms thereof, all negotiations, considerations and representations
between the parties having been incorporated herein or therein. No course
of prior dealings between the parties, their
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officers, employees, agents, or affiliates shall be deemed relevant or
admissible to supplement, explain or vary any of the terms and provisions of
the Lease as herein amended. No representations, understandings or
agreements have been made or relied upon in the making of this First
Amendment other than set forth herein.
17. Landlord and Tenant agree that should any provision in this First Amendment
disagree with or conflict with any provisions in the Lease as herein
amended, the provisions in this First Amendment will control.
18. Capitalized terms used in this First Amendment unless otherwise defined in
this First Amendment shall have the respective meanings ascribed to them in
the Lease.
19. Tenant agrees to contribute $1,537.50 per month towards the cost of the
Looper service, a transportation system operated in downtown St. Petersburg
by the City of St Petersburg.
IN WITNESS WHEREOF, the Landlord and Tenant have executed this First
Amendment of Lease as of the day and year first above written.
WITNESSES AS TO LANDLORD: LANDLORD
BANKERS INSURANCE COMPANY
/s/ [illegible]
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By: /s/ [illegible]
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Name: /s/ [illegible]
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Its: Vice President
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Date: 8-23-01
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WITNESSES AS TO TENANT: TENANT
INSURANCE MANAGEMENT SOLUTIONS
GROUP, INC.
/s/ Gail Basile
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By: /s/ Robert G. Gantley
Gail Basile --------------------------
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Name: /s/ Robert G. Gantley
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Its: Chief Operating Officer
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Date: 8/21/01
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Diagram of:
BANKERS FINANCIAL CENTER
2nd FLOOR
Diagram of:
BANKERS FINANCIAL CENTER
5th FLOOR
Diagram of:
BANKERS FINANCIAL CENTER
6th FLOOR
Diagram of:
BANKERS FINANCIAL CENTER
16th FLOOR
Diagram of:
BANKERS FINANCIAL CENTER
17th FLOOR