Exhibit
10.19


 


SECOND AMENDMENT
TO LEASE


 


                This
SECOND AMENDMENT TO LEASE (this “Second Amendment”) is made this 25th
day of May, 2004, by and between KPERS REALTY HOLDING CO. #31, INC., a
Kansas corporation (“Landlord”), and AMCOMP PREFERRED INSURANCE COMPANY, a
Florida corporation (“Tenant”).


 


W I  T  N
E  S  S  E  T  H:


 


                WHEREAS,
Landlord and Tenant are bound under that certain Lease Agreement for Office
Facilities dated as of March 17, 1997 originally between Lincoln -300 Lincoln
Place, LTD, Landlord’s predecessor in interest, and Tenant, f/k/a Pinnacle
Assurance Corporation, as amended by First Amendment to Lease dated November
2002 between Landlord and Tenant (collectively, said Lease Agreement and
Amendment are referred to as the “Lease”) regarding certain Premises located in
that certain building (the “Building”) located at 851 Trafalgar Court,
Maitland, Florida 32751;


 


                WHEREAS,
Tenant wishes to modify the Lease as set forth below.


 


                NOW,
THEREFORE, based upon the foregoing mutual premises and the sum of Ten and
00/100 Dollars ($10.00) and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the parties agree as
follows:


 


                1.             Defined Terms. Terms in this
Second Amendment shall have the same meaning as such terms have in the Lease,
unless otherwise noted in this Second Amendment.


 


                2.             Building Generator.


 


                                A.            Pursuant to request by Tenant and
Nextel South Corp (the “Other Tenant”), Landlord agrees to install a Building
generator (the “Generator”) having a minimum capacity of 275 KVA. Landlord’s
agreement is subject to Landlord receiving all governmental permits and
approvals applicable to such installation. Tenant shall be entitled to have the
Premises served by an amount of load on the Generator which does not exceed the
amount as requested by Tenant and approved by Landlord. Tenant’s use of the
Generator is subject to (i) Landlord’s rules and regulations which it adopts
from time to time and (ii) Tenant obtaining all governmental permits and
approvals applicable to such use. Tenant’s use of the Generator is also subject
to all applicable governmental requirements including, without limitation,
requirements which directly or indirectly necessitate a reduction in the
permitted amount of Tenant’s load on the generator, and in no event shall
Landlord have any liability nor shall Tenant have any claim against Landlord
based on such reduction in the permitted amount of Tenant’s load on the
generator. However, absent such governmental requirements, Landlord agrees that
notwithstanding the foregoing including Landlord’s adoption of rules and
regulations, Landlord will not reduce the capacity allotted to Tenant below 100
KVA. In the event Tenant uses more of the Generator capacity than is approved
in writing by Landlord (as such amount may be subsequently reduced due to
applicable governmental requirements), (i) in addition to exercising its
default remedies under the Lease, Landlord shall be permitted to immediately
take all actions necessary to discontinue Tenant’s use of the Generator
including without limitation disconnecting any of Tenant’s installations to or
involving the Generator, (ii) Tenant shall upon demand reimburse Landlord for
its out of pocket costs of taking such actions together with an administrative
overhead charge equal to 15% of the such costs and (iii) Tenant shall indemnify
and hold harmless Landlord from any liability or claim resulting from Tenant’s
improper use of the generator including without limitation claims of third
parties using the Generator who are adversely affected by Tenant’s improper use
of the Generator. Upon expiration or earlier termination of the Lease, Tenant
shall as directed by Landlord remove all cabling and related installations by
which Tenant accesses the Generator and restore affected parts of the Building
to their former condition. Notwithstanding the foregoing, in no event shall
Tenant or its agents and/or contractors physically access the Generator without
the prior written consent of Landlord. Landlord may elect to cause any
installations on Tenant’s behalf involving the Generator to be performed by
contractors selected by Landlord, and any resulting costs shall be payable by
Tenant to Landlord together with administrative overhead charge equal to 15% of
the foregoing costs. Except on a temporary basis as reasonably needed due to
repairs, maintenance, replacement and operation of the Generator, Landlord will
not discontinue Tenant’s use of the Generator unless (i) the Lease or Tenant’s
possession of the Premises are terminated in accordance with the Lease or (ii)
Tenant fully vacates or abandons the Premises. Further, the Landlord will
notify the Tenant in writing after the Landlord receives any notice from any
governmental entity(s) imposing a requirement that will result in Tenant’s
allocated capacity being reduced. Tenant shall, at such point, have the
reasonable opportunity to participate in the Landlord’s discussions with such
governmental entity to determine whether there is a commercially reasonable
alternative to any such reduction in Tenant’s allocated capacity unless
Landlord reasonably determines that Tenant’s participation will impair Landlord’s
negotiations with the governmental entity.


 


                                B.            Except for ongoing maintenance costs
referenced below, all costs related to the Generator shall be shared by Tenant
and Other Tenant. Tenant’s share is a fraction, the numerator of which is the
amount of Tenant’s design load on the Generator and the denominator of which is
the total design load of Tenant and Other Tenant on the Generator. The costs to
be shared by Tenant and Other Tenant include, without limitation, consultant
fees, attorneys fees, design fees together with costs of purchasing and
installing the Generator and Landlord’s administrative overhead charge equal to
15% of


 


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the foregoing costs.


 


                                C.            Ongoing maintenance costs (including
Landlord’s administrative overhead charge equal to 15% of such maintenance
costs) related to operation of the Generator shall be shared by Tenant, Other
Tenant, Landlord and any other party that Landlord may permit to utilize
capacity of the Generator. Tenant’s share is a fraction, the numerator of which
is the amount of Tenant’s design load on the Generator and the denominator of
which is the total design load of Tenant, Other Tenant, Landlord and any other
party that Landlord may permit to utilize capacity of the Generator. Landlord
agrees that it will not permit any party other than Landlord to utilize
capacity of the Generator to an extent that capacity of the Generator available
to Tenant is less than 100 KVA. Notwithstanding the foregoing, Landlord agrees
that it will not permit any party (other than Landlord under the governmental
requirements exception set forth in 2A above) to utilize capacity of the
Generator to the extent that capacity of the Generator available to Tenant is
less than 100 KVA.


 


                                D.            Landlord shall, from time to time,
invoice Tenant for its share of the costs regarding the Generator as described
above, and Tenant shall pay such invoice within 30 days following receipt of
same. Notwithstanding anything herein or in the Lease to the contrary, Landlord’s
share of ongoing maintenance costs related to operation of the Generator are
properly included by Landlord in Basic Costs.


 


                                E.             Landlord shall not be liable,
except in cases of Landlord’s willful misconduct, for any damages directly or
indirectly relating to the Generator, including without limitation, any failure
of the Generator to operate. No such failure shall be construed as an eviction
of Tenant, nor shall the same relieve Tenant from any obligation to perform any
covenant or agreement under the Lease, nor shall the same entitle Tenant to any
abatement of Rent or any right to terminate the Lease. Moreover, no such
failure shall subject Landlord to any liability for Tenant’s damages resulting
from such failure (which damages may include, without limitation, lost
productivity, loss of business and damage to any of Tenant’s equipment), and
Tenant hereby expressly waives any such damages. Landlord has not made and
hereby expressly disclaims any representation or warranty regarding operation
of the Generator or its fitness for any of Tenant’s purposes. Tenant shall
indemnify and hold harmless Landlord from any liability in connection with
Tenant’s use of the Generator which is either improper or in violation of this
Second Amendment.


 


                3.             Brokers. Landlord and Tenant
each represents and warrants to each other that it has not dealt with any agent
or broker in connection with this Second Amendment except CB Richard Ellis. If
either party’s representation and warranty proves to be untrue, such party will
indemnify the other party against all resulting liabilities, costs, expenses,
claims, demands and causes of action, including reasonable attorneys’ fees and
costs through all appellate actions and proceedings, if any. The foregoing will
survive the end of the Lease Term.


 


                4.             Ratification The parties
hereby reaffirm their rights and obligations under the Lease as modified by this
Second Amendment. In the event of a conflict or ambiguity between the Lease and
this Second Amendment, the terms and provisions of this Second Amendment shall
control. Landlord and Tenant each represent and warrant to the other (i) that
the execution and delivery of this Second Amendment has been fully authorized
by all necessary corporate action, (ii) that the person signing this Second
Amendment has the requisite authority to do so and the authority and power to
bind the company on whose behalf they have signed, and (iii) that to the best
of their knowledge and belief, this Second Amendment is valid, binding and
legally enforceable in accordance with its terms. Each party hereby warrants
and represents that, to the best of its knowledge (i) as of the date hereof the
parties have complied with all of the terms and conditions of the Lease, (ii)
Tenant has no rights to any credit, claim, cause of action, offset or similar
charge against Landlord or the Base Rent existing as of the date hereof, except
as specifically set forth in this Second Amendment and (iii) without Landlord’s
prior written consent there have been no assignees, sublessees or transferees
of the Lease, or any person or firm occupying or having the right in the future
to occupy the Premises, or any part thereof, except Tenant.


 


                IN
WITNESS WHEREOF, Landlord and Tenant have each executed this Second Amendment
on the dates written below their names.


 


	
  WITNESSES:

  	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  KPERS REALTY HOLDING CO. #31, INC.,
  a

  
	
   

  	
   

  	
  Kansas corporation

  
	
  Name Printed

  	
   

  	
   

  
	
   

  	
   

  	
  By: AEW Capital Management, L.P.,
  authorized

  
	
   

  	
   

  	
  agent

  
	
   

  	
   

  	
   

  
	
  Name Printed

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


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  Dated:

  	
   

  
	
   

  	
   

  	
   

  
	
  WITNESSES:

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
  /s/ Gary Bishop

  	
   

  	
  AMCOMP PREFERRED INSURANCE

  
	
  Gary Bishop

  	
   

  	
  COMPANY, a Florida corporation

  
	
  Name Printed

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  
	
  /s/ Marguerite Defee

  	
   

  	
  Name:

  	
  [ILLEGIBLE]

  
	
  Marguerite Defee

  	
   

  	
  Title:

  	
  VP, IT

  
	
  Name Printed

  	
   

  	
  Dated:

  	
  5/27/2004

  
					



 


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