1
EXHIBIT 10.50
COMMERCIAL LEASE AGREEMENT
THIS LEASE AGREEMENT made and entered into by and between IIS REALTY
LTD., a Texas limited partnership hereinafter referred to as "Landlord," and
INSPIRE INSURANCE SOLUTIONS, INC. hereinafter referred to as "Tenant;"
WITNESSETH:
Landlord hereby leases to Tenant, and Tenant hereby takes from Landlord
the following described premises (hereinafter referred to as the "demised
premises" or "premises") situated within the County of Tarrant, State of Texas:
The entire first (1st), second (2nd) and third (3rd) floors of that
certain building located at 000 Xxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx, comprising
approximately 96,160 rentable square feet,
together with all rights, privileges, easements and appurtenances belonging to
or in any way pertaining to the demised premises and together with the building
and other improvements now situated or to be erected upon the demised premises.
TO HAVE AND TO HOLD the same for a term of ten (10) years beginning on
11-13-98, upon the following terms, conditions and covenants:
(a) RENT: Tenant agrees to pay the Landlord, without offset or
deduction, rent for the demised premises at the rate of (i) Eight Dollars
($8.00) per rentable square foot, totaling Sixty-four Thousand One Hundred Six
and 66/100 Dollars ($64,106.66) per month in advance, for the first five (5)
years of the term and (ii) Nine and 00/100 Dollars ($9.00) per rentable square
foot, totaling Seventy-two Thousand One Hundred Twenty and 00/100 Dollars
($72,120.00) per month in advance for the remaining five (5) years of the term.
One such monthly installment shall be due and payable on or before the beginning
date of this lease, and a like monthly installment shall be due and payable on
or before the first day of each succeeding calendar month during the term
hereof; provided that, in the event the term hereof shall commence or end during
a calendar month, the rent for any fractional calendar month following the
commencement or preceding the end of the term of this lease shall be pro rated
by days.
Tenant has deposited with Landlord, upon delivery of this lease, One
Hundred Twenty-eight Thousand Two Hundred Thirteen and 32/100 Dollars
($128,213.32) to be applied as follows:
(b) $64,106.66 for rent for the first month of the term of this lease.
(c) $64,106.66 as a security deposit. Such security deposit shall be
held by Landlord without interest as security for the performance by Tenant of
Tenant's covenants and obligations under this lease. The security deposit is not
an advance payment of rental or the full measure of liquidated damages in case
of default by Tenant. Upon the occurrence of any event of default, Landlord may,
from time to time, without prejudice to any other remedy provided herein or
provided by law, use the security deposit to the extent necessary to make good
any arrears of rent
1
2
and any other damage, injury, expense or liability caused to Landlord by such
event of default. Following any such application of the security deposit, Tenant
shall pay to Landlord, on demand, the amount so applied in order to restore the
security deposit to its original amount. If Tenant is not in default, any
remaining balance of such deposit shall be returned by Landlord to Tenant upon
expiration or termination of this lease.
1. ACCEPTANCE OF PREMISES:
Tenant acknowledges that it has fully inspected the demised premises
and accepts the demised premises, and any buildings and improvements situated
thereon, as suitable for the purposes for which the same are leased in their
present condition.
2. USE OF PREMISES:
The demised premises shall be used and occupied only for the purpose of
conducting Tenant's business and not otherwise. Tenant shall, at its own
expense, obtain any and all governmental licenses and permits necessary for such
use.
3. COMPLIANCE WITH LAW:
Tenant shall comply with all governmental laws, ordinances and
regulations applicable to the use of the demised premises, and shall promptly
comply with all governmental orders and directives for the correction,
prevention and abatement of nuisances in or upon, or connected with the demised
premises, all at Tenant's sole expense.
4. REAL ESTATE TAXES:
(a) Tenant agrees to pay before they become delinquent all taxes (both
general and special), assessments or governmental charges of any kind and nature
whatsoever (hereinafter collectively referred to as the "taxes"), levied or
assessed against the premises or any part thereof. Tenant shall furnish to
Landlord not later than twenty (20) days before the date any such taxes become
delinquent, official receipts of the appropriate taxing authority or other
evidence satisfactory to Landlord evidencing payment thereof. If Tenant shall
fail to pay any taxes, assessments, or governmental charges required to be paid
by Tenant hereunder, in addition to any other remedies provided herein, Landlord
may, if it so elects, pay such taxes, assessments, and governmental charges. Any
sums so paid by Landlord shall be deemed to be additional rental owing by Tenant
to Landlord and due and payable on written demand by Landlord together with
interest thereon at the rate of ten percent (10%) per annum from the date paid
by Landlord to the date of repayment by Tenant.
(b) All real estate taxes and assessments on the demised premises shall
be prorated between Landlord and Tenant with respect to the tax years in which
this lease commences or terminates. Tenant shall pay that part of the real
estate taxes attributable to the portion of the tax year covered by this lease.
(c) In the event the premises constitute a portion of a multiple
occupancy building, in lieu of Tenant paying the "taxes" as above provided,
Landlord agrees to pay before they become delinquent all "taxes" lawfully levied
or assessed against such building and the grounds, parking
2
3
areas, driveways and alleys around the said building, and Tenant agrees to pay
to landlord upon written demand the amount of Tenant's "proportional share" of
all such "taxes" paid by Landlord. Tenant's "proportionate share," as used
throughout this lease, shall mean a fraction, the numerator of which is the
space occupied by Tenant and the denominator of which is the entire gross space
contained in the building.
(d) Tenant may, alone or together with any other tenants of said
building, at its or their sole cost and expense, in its or their own name(s)
and/or in the name of the Landlord, dispute and contest any "taxes" by
appropriate proceedings diligently conducted in good faith, but only after
Tenant and all other tenants, if any, joining with Tenant in such contest have
deposited with Landlord the amount so contested and unpaid, or their
proportionate share thereof as the case may be, which shall be held by landlord
without obligations for interest until the termination of the proceedings, at
which time the amount(s) deposited shall be applied by Landlord toward the
payment of the items held valid (plus any court costs, interest, penalties and
other liabilities associated with the proceedings), and Tenant's share of any
excess shall be returned to Tenant. Tenant further agrees to pay to Landlord
upon demand Tenant's share (as among all tenants who participated in the
contest) of all court costs, interest, penalties and other liabilities relating
to such proceedings. Tenant hereby indemnifies and agrees to hold harmless the
Landlord from and against any cost, damage or expense, including attorney's
fees, in connection with any such proceedings.
(e) If any time during the term of this Lease, the present method of
taxation shall be changed so that in lieu of the whole or any part of any taxes,
assessments, levies or charges levied, assessed or imposed on real estate and
the improvements thereon there shall be levied, assessed or imposed on Landlord
a capital levy or other tax directly on the rents received therefrom and/or a
franchise tax, assessments, levies or charges, or the part thereof so measured
or based, shall be deemed to be included within the term "taxes" for the purpose
hereof.
5. REPAIRS AND MAINTENANCE.
(a) Tenant shall, at its sole cost and expense, keep, maintain and take
good care of the premises and make all necessary repairs thereof, interior and
exterior, structural and non-structural, ordinary and extraordinary, and shall
suffer no waste or nuisance; provided, however, that the cost of maintenance and
repair of any common party wall (any wall, divider, partition or any other
structure separating the premises from any adjacent premises occupied by other
tenants) shall be shared equally by Tenant and the tenant occupying adjacent
premises. Tenant shall not damage any party wall or disturb the integrity and
support provided by any party wall and shall, at its sole cost and expense,
promptly repair any damage or injury to any party wall caused by Tenant or its
employees, agents or invitees. At the end of the term or other termination of
this lease, Tenant shall deliver the premises with all improvements thereon in
good repair and condition, reasonable wear and tear only excepted.
(b) In the event the premises constitute a portion of a multiple
occupancy building, Tenant and its employees, customers, and licensees shall
have the nonexclusive right to use, in common with the other parties occupying
said building, the parking areas, driveways and alleys adjacent to said
building, subject to such reasonable rules and regulations as Landlord may from
time to time prescribe, and Tenant shall be liable for its proportionate share
of the cost and expense of the care for the grounds around the said building,
including but not limited to, the mowing of
3
4
grass, care of shrubs, general landscaping, and maintenance of parking areas,
driveways and alleys. Tenant shall, at Landlord's option, either (i) pay its
proportionate share of such costs and expenses along with the other tenants of
the building directly to the persons performing such work, or (ii) reimburse
Landlord upon demand for the amount of its proportionate share of such costs and
expenses in the event Landlord elects to perform or cause to be performed such
work.
6. ALTERATIONS, ADDITIONS AND IMPROVEMENTS
Tenant shall not create any openings in the roof or exterior walls, or
make any alterations, additions or improvements to the demised premises without
the prior written consent of Landlord. Consent for non-structural alterations,
additions or improvements shall not be unreasonably withheld by Landlord. Tenant
shall have the right, without the prior consent of Landlord, to erect or install
shelves, bins, machinery, air conditioning or heating equipment and trade
fixtures, provided that Tenant complies with all applicable governmental laws,
ordinances and regulations. At the expiration or termination of this lease,
Tenant shall have the right to remove such item so installed, provided Tenant is
not in default at the time of such removal and provided further that Tenant
shall, at the time of removal of such items, repair in a good and workmanlike
manner any damages caused by installation or removal thereof.
Tenant shall pay for all costs incurred or arising out of alterations,
additions or improvements in or to the demised premises and shall not permit a
mechanic's or materialman's lien to be asserted against the demised premises.
Upon request by Landlord, Tenant shall deliver to Landlord proof of payment
reasonably satisfactory to Landlord of all costs incurred or arising out of any
such alterations, additions or improvements.
All alterations, additions or improvements in or to the demised
premises shall become the property of Landlord at the expiration or termination
of this lease; however, Landlord may direct the removal of alteration, additions
or improvements by giving written notice to Tenant prior to the expiration or
termination of this lease. At the direction of Landlord, Tenant shall promptly
remove all alterations, additions and improvements and any other property placed
in the demised premises by Tenant, and Tenant shall repair in a good and
workmanlike manner any damage caused by such removal.
7. SIGNS:
Tenant shall not place or affix any signs or other objects upon or to
the roof or exterior walls of the demised premises or paint or otherwise deface
the exterior walls of the demised premises without the prior written consent of
Landlord. Any signs installed by Tenant shall conform with applicable laws,
deeds and other restrictions. Tenant shall remove all signs at the termination
of this lease and shall repair any damage and close any holes caused or revealed
by such removal.
8. INSURANCE, FIRE AND CASUALTY DAMAGE:
(a) Landlord agrees to maintain insurance covering the building of
which the demised premises are a part in an amount not less than 90% (or such
greater percentage as may be necessary to comply with the provisions of any
co-insurance clauses of the policy) of the "replacement cost" thereof,
including, without limitation, insurance against the perils of Fire, Lightning,
Extended
4
5
Coverage, Vandalism and Malicious Mischief, extended by Special Extended
Coverage Endorsement to insure against all other Risks of Direct Physical Loss,
such coverages and endorsements to be as defined, provided and limited in the
standard bureau forms prescribed by the insurance regulatory authority for the
State in which the demised premises are situated for use by insurance companies
admitted in such State for the writing of such insurance on risks located within
such State. Subject to the provisions of subparagraphs 8(b) and 8(c) below, such
insurance shall be for the sole benefit of Landlord and under its sole control.
Tenant agrees to pay Landlord's cost of maintaining such insurance on said
building (or, in event the premises constitute a portion of a multiple occupancy
building, Tenant's full proportionate share of such cost). Said payments shall
be made to Landlord within ten (10) days after presentation to Tenant of
Landlord's statement setting forth the amount due. Any payment to be made
pursuant to this subparagraph (a) with respect to the year in which this lease
commences or terminates shall bear the same ratio to the payment which would be
required to be made for the full year as that part of such year covered by the
terms of this lease bears to a full year.
(b) If the buildings situated upon the premises should be damaged or
destroyed by any peril covered by the insurance to be provided by Landlord under
subparagraph 8(a) above, Tenant shall give immediate notice thereof to Landlord,
and Landlord shall, at its sole cost and expense, thereupon proceed with
reasonable diligence to rebuild and repair such buildings to substantially the
condition in which they existed prior to such damage or destruction, except that
Landlord shall not be required to rebuild, repair or replace any part of the
partitions, fixtures, additions or other improvements which may have been placed
in, on or about the premises by Tenant and except that Tenant shall pay to
Landlord upon demand any applicable deductible amounts specified under
Landlord's insurance. The rent payable hereunder shall in no event xxxxx by
reason of any damage or destruction.
(c) If the buildings situated upon the premises should be damaged or
destroyed by a casualty other than a peril covered by the insurance to be
provided by Landlord under subparagraph 8(a) above, or if any other improvements
situated on the demised premises should be in any manner damaged or destroyed,
Tenant shall at its sole cost and expense thereupon proceed with reasonable
diligence to rebuild and repair such buildings and/or improvements to
substantially the condition in which they existed prior to such damage or
destruction, subject to Landlord's approval of the plans and specifications for
such rebuilding and repairing, which approval shall not be unreasonably
withheld. Tenant's obligation hereunder shall not include destruction of the
premises by war, riot, civil disobedience or flood.
(d) Tenant covenants and agrees to maintain insurance on all
alterations, additions, partitions and improvements erected by, or on behalf of,
Tenant in, on or about the demised premises in an amount not less than 90% (or
such greater percentage as may be necessary to comply with the provisions of any
co-insurance clause of the policy) of the "replacement cost" thereof. Such
insurance shall insure against the perils and be in form, including stipulated
endorsements, as provided in subparagraph 8(a) hereof. Such insurance shall be
for the sole benefit of Tenant and under its sole control. All such policies
shall be procured by Tenant from responsible insurance companies satisfactory to
Landlord. Certified copies of policies of such insurance, together with evidence
of payment of premiums therefor shall be delivered to Landlord prior to the
commencement date of this lease. Not less than fifteen (15) days prior to the
expiration date of any such policies, certified copies of renewals thereof
(bearing notations evidencing the payment of
5
6
renewal premiums) shall be delivered to Landlord. Such policies shall further
provide that not less than thirty (30) days written notice shall be given to
Landlord before such policy may be cancelled or changed to reduce insurance
provided thereby.
(e) Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
premises required that the insurance proceeds be applied to such indebtedness
then the Landlord shall have the right to terminate this lease by delivering
written notice of termination to Tenant within fifteen (15) days after such
requirement is made by any such holder, whereupon all rights and obligations
hereunder shall cease and terminate.
9. WAIVER OF SUBROGATION:
Each party hereto waives any and every claim which arises or may arise
in its favor against the other party hereto during the term of this lease or any
renewal or extension thereof for any and all loss of, or damage to, any of its
property located within or upon, or constituting a part of the demised premises,
which loss or damage is covered by valid and collectible fire and extended
coverage insurance policies, to the extent that such loss or damage is
recoverable under such insurance policies. Such mutual waivers shall be in
addition to, and not in limitation or derogation of, any other waiver or release
contained in this lease with respect to any loss of, or damage to, property of
the parties hereto. Inasmuch as such mutual waivers will preclude the assignment
of any aforesaid claim by way of subrogation or otherwise to an insurance
company (or any other person), each party hereby agrees immediately to give to
each insurance company which has issued to it policies of fire and extended
coverage insurance, written notice of the terms of such mutual waivers, and to
cause such insurance policies to be properly endorsed, if necessary, to prevent
the invalidation of such insurance coverages by reason of such waivers.
Landlord and its authorized agents shall have the right, during normal
business hours, to enter the demised premises (i) to inspect the general
condition and state of repair thereof, (ii) to make repairs required or
permitted under this lease, (iii) to show the premises to any prospective tenant
or purchaser or (iv) for any other reasonable purpose.
10. UTILITY SERVICES:
Tenant shall pay the cost of all utility services, including but not
limited to initial connection charges, all charges for gas, water and
electricity used on the demised premises, and for all electric lights, lamps and
tubes.
11. ASSIGNMENT AND SUBLEASING:
Tenant shall not, without the prior written consent of Landlord, assign
this lease or sublet the demised premises or any portion thereof. Any assignment
or subletting shall be expressly subject to all terms and provisions of this
lease, including the provisions of paragraph 2 pertaining to the use of the
demised premises. In the event of any assignment or subletting, Tenant shall
remain fully liable for the full performance of all Tenant's obligations under
this lease. Tenant shall not assign its rights hereunder or sublet the premises
without first obtaining a written agreement from sublessee whereby assignee or
sublessee agrees to be bound by the terms of this lease. No such assignment or
subletting shall constitute a novation. In the event of the
6
7
occurrence of an event of default while the demised premises are assigned or
sublet, Landlord, in addition to any other remedies provided herein or by law,
may, at Landlord's option, collect directly from such assignee or subtenant all
rents becoming due under such assignment or subletting and apply such rent
against any sums due to Landlord hereunder. No direct collection by Landlord
from any such assignee or subtenant shall release Tenant from the performance of
its obligations hereunder.
12. INDEMNITY AND PUBLIC LIABILITY INSURANCE:
(a) Landlord shall not be liable to Tenant or Tenant's employees,
agents, patrons or visitors, or to any other person whomsoever, for any injury
to person or damage to property on or about the premises caused by the
negligence or misconduct of Tenant, its agents, servants or employees, or any
other person entering upon the premises under express or implied invitation of
Tenant, or caused by the buildings and improvements located on the premises
becoming out of repair, or caused by leakage of gas, oil, water or steam or by
electricity emanating from the premises, or due to any cause whatsoever, and
Tenant agrees to indemnify Landlord and hold it harmless from any loss, expenses
or claims including attorney's fees, arising out of any such damage or injury;
except injury to persons or damage to property the sole cause of which is the
negligence of the Landlord.
(b) Tenant shall procure and maintain throughout the term of this lease
a policy or policies of insurance, at its sole cost and expense, insuring both
Landlord and Tenant against all claims, demands, or actions arising out of or in
connection with: (i) the premises; (ii) the condition of the premises, the
limits of such policy or policies to be in the amount of not less than $500,000
per person and $2,000,000 per occurrence in respect of injury to persons
(including death), and in the amount of not less than $100,000 per occurrence in
respect to property damage or destruction, including loss of use thereof. All
such policies shall be procured by Tenant from responsible insurance companies
satisfactory to Landlord. Certified copies of such policies, together with
receipt evidencing of premiums therefor, shall be delivered to Landlord prior to
the commencement date of this lease. Not less than fifteen (15) days prior to
the expiration date of any such policies, certified copies of the renewals
thereof (bearing notations evidencing the payment of renewal premiums) shall be
delivered to Landlord. Such policies shall further provide that not less than
thirty (30) days written notice shall be given to Landlord before such policy
may be cancelled or changed to reduce insurance provided thereby.
(c) If Tenant should fail to comply with the foregoing requirements
relating to insurance, Landlord may obtain such insurance, and Tenant shall pay
to Landlord on demand, as additional rental hereunder, the premium cost thereof
plus interest at the rate of ten percent (10%) per annum from the date of
payment by Landlord until repaid by Tenant.
13. CONDEMNATION:
(a) If, during the term of this lease or any extension or renewal
thereof, all or a substantial part of the demised premises should be taken for
any public or quasi-public use under any governmental law, ordinance, regulation
or by right of eminent domain, or should be sold to the condemning authority
under threat of condemnation, this lease shall terminate and the rent shall be
7
8
abated during the unexpired portion of this lease, effective from the date of
taking of the demised premises by the condemning authority.
(b) If less than a substantial part of the demised premises is taken
for public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain, or is sold to the condemning
authority under threat of condemnation, Landlord, at its option, may by written
notice, terminate this lease or shall forthwith at its sole expense restore and
reconstruct the buildings and improvements (other than leasehold improvements
made by Tenant or any assignee, subtenant or other occupant of the demised
premises) in order to make the same reasonably tenantable and suitable for the
uses for which the demised premises are leased as defined in paragraph 2. The
rent payable hereunder during the unexpired portion for this lease shall be
adjusted equitably.
(c) Landlord and Tenant shall be entitled to receive and retain such
separate awards and portions of lump sum awards as may be allocated to their
respective interests in any condemnation proceedings. The termination of this
lease shall not affect the rights of the respective parties to such awards.
14. HOLDING OVER:
Should Tenant, or any of its successors in interest, fail to surrender
the demised premises, or any part thereof, on the expiration of the term of this
lease, such holding over shall constitute a tenancy from month to month, at a
monthly rental equal to 110% of the rent paid for the last month of the term of
this lease unless otherwise agreed in writing by Landlord and Tenant.
15. DEFAULT BY TENANT:
The following events shall be deemed to be events of default under this
lease:
(a) Failure of Tenant to pay any installment of the rent or other sums
payable to Landlord hereunder on the date that same is due and such failure
shall continue for a period of 10 days.
(b) Failure of Tenant to comply with any term, condition or covenant of
this lease, other than the payment of rent or other sum of money, and such
failure shall not be cured within 30 days after written notice thereof to
Tenant.
(c) Insolvency, the making of a transfer in fraud of creditors, or the
making of an assignment for the benefit of creditors by Tenant or any guarantor
of Tenant's obligations.
(d) Filing of a petition under any section or chapter of the United
States Bankruptcy Code, as amended, or under any similar law or statute of the
United States or any State thereof by Tenant or any guarantor of Tenant's
obligations or adjudication as a bankrupt or insolvent in proceedings filed
against Tenant or such guarantor.
(e) Appointment of a receiver or trustee for all or substantially all
of the assets of Tenant or any guarantor of Tenant's obligations hereunder.
8
9
(f) Abandonment by Tenant of any substantial portion of the demised
premises or cessation of the use of the demised premises for the purpose leased.
16. REMEDIES OF LANDLORD:
Upon the occurrence of any of the events of default listed in Section
15, Landlord shall have the option to pursue any one or more of the following
remedies without any notice or demand whatsoever:
(a) Terminate this lease, in which event Tenant shall immediately
surrender the demised premises to Landlord. If Tenant fails to so surrender such
premises, Landlord may, without prejudice to any other remedy which it may have
for possession of the demised premises or arrearages in rent, enter upon and
take possession of the demised premises and expel or remove Tenant and any other
person who may be occupying such premises or any part thereof, by force if
necessary, without being liable for prosecution or any claim for damages
therefor. Tenant shall pay to Landlord on demand the amount of all loss and
damage which Landlord may suffer by reason of such termination, whether through
inability to relet the demised premises on satisfactory terms or otherwise.
(b) Enter upon and take possession of the demised premises, by force if
necessary, without terminating this lease and without being liable for
prosecution or for any claim or damages therefor, and expel or remove Tenant and
any other person who may be occupying such premises or any part thereof.
Landlord may relet the demised premises and receive the rent therefor. Tenant
agrees to pay to Landlord monthly or on demand from time to time any deficiency
that may arise by reason of any such reletting. In determining the amount of
such deficiency, the brokerage commission, attorney's fees, remodeling expenses
and other costs of reletting shall be subtracted from the amount of rent
received under such reletting.
(c) Enter upon the demised premises, by force if necessary, without
terminating this lease and without being liable for any prosecution or for any
claim for damages therefor, and do whatever Tenant is obligated to do under the
terms of this lease. Tenant agrees to pay Landlord on demand for expenses which
Landlord may incur in effecting compliance with Tenant's obligations under this
lease, together with interest thereon at the rate of 10% per annum from the date
expended until paid. Landlord shall not be liable for any damages resulting to
the Tenant from such action, whether caused by the negligence of Landlord or
otherwise.
Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other remedies provided by law,
nor shall pursuit of any remedy herein provided constitute forfeiture or waiver
of any rent due to Landlord hereunder or of any damages accruing to Landlord by
reason of the violation of any of the terms, conditions and covenants herein
contained.
17. LANDLORD'S LIEN:
In addition to the statutory Landlord's lien, Tenant hereby grants to
Landlord a security interest to secure payment of all rent and other sums of
money becoming due hereunder from Tenant, upon all goods, wares, equipment,
fixtures, furniture and other personal property of Tenant situated in or upon
the demised premises, together with the proceeds from the sale or
9
10
lease thereof. Such property shall not be removed without the consent of
Landlord until all arrearages in rent and other sums of money then due to
Landlord hereunder shall first have been paid and discharged. Upon the
occurrence of any event of default, Landlord may, in addition to any other
remedies provided herein or by law, enter upon the demised premises and take
possession of any and all goods, wares, equipment, fixtures, furniture and other
personal property of Tenant situated on the premises without liability for
trespass or conversion, and sell the same at public or private sale, with or
without having such property at the sale, after giving Tenant reasonable notice
of the time and place of any such sale. Unless otherwise required by law, notice
to Tenant of such sale shall be deemed sufficient if given in the manner
prescribed in this lease at least 10 days before the time of the sale. Any
public sale made under this paragraph shall be deemed to have been conducted in
a commercially reasonable manner if held in the demised premises or where the
property is located, after the time, place and method of sale and a general
description of the types of property to be sold have been advertised in a daily
newspaper published in Tarrant County, Texas, for five consecutive days before
the date of the sale. Landlord or its assigns may purchase at a public sale and,
unless prohibited by law, at a private sale. The proceeds from any disposition
dealt with in this paragraph, less any and all expenses connected with the
taking of possession, holding and selling of the property (including reasonable
attorneys' fees and legal expenses), shall be applied as a credit against the
indebtedness secured by the security interest and granted herein. Any surplus
shall be paid to Tenant or as otherwise required by law; Tenant shall pay any
deficiencies forthwith. Upon request by Landlord, Tenant agrees to execute and
deliver to Landlord a financing statement in form sufficient to perfect the
security interest of Landlord in the aforementioned property and proceeds
thereof under the provisions of the Business and Commerce Code in force in the
State of Texas. The statutory lien for rent is expressly reserved; the security
interest herein grant is in addition and supplementary thereto.
18. ATTORNEYS' FEES:
If, on account of any breach or default by Landlord or Tenant of their
respective obligations under this lease, it shall become necessary for the other
to employ an attorney to enforce or defend any of its rights or remedies
hereunder, and should such party prevail, it shall be entitled to any reasonable
attorneys' fees incurred in such connection.
19. QUIET ENJOYMENT:
Landlord warrants that it has full right and power to execute and
perform this lease and to grant the estate demised herein and that Tenant, on
payment of rent and performing the covenants herein contained, shall peaceably
and quietly have, hold and enjoy the demised premises during the full term of
this lease and any extension or renewal hereof; provided, however, that Tenant
accepts this lease subject and subordinate to any recorded mortgage, deed of
trust or other lien presently existing upon the demised premises. Landlord is
hereby irrevocably vested with full power and authority to subordinate Tenant's
interest hereunder to any mortgage, deed of trust or other lien hereafter placed
on the demised premises, and Tenant agrees upon demand to execute such further
instruments subordinating this lease as Landlord may request, provided such
further subordination shall be upon the express condition that this lease shall
be recognized by the mortgagee and that the rights of Tenant shall remain in
full force
10
11
and effect during the term of this lease so long as Tenant shall continue to
perform all of the covenants of this lease.
20. WAIVER OF DEFAULT:
No waiver by the parties hereto of any default or breach of any term,
condition or covenant of this lease shall be deemed to be a waiver of any
subsequent default or breach of the same or any other term, condition or
covenant contained herein.
21. CERTIFICATE OF OCCUPANCY:
Tenant may, prior to the commencement of the term of this lease, apply
for a Certificate of Occupancy to be issued by the municipality in which the
demised premises are located, but this lease shall not be contingent upon
issuance thereof. Nothing herein contained shall obligate Landlord to install
any additional electrical writing, plumbing or plumbing fixtures which are not
presently existing in the demised premises, or which have not been expressly
agreed upon by Landlord in writing.
22. FORCE MAJEURE:
In the event performance by Landlord of any term, condition or covenant
in this lease is delayed or prevented by any Act of God, strike, lockout,
shortage of material or labor restriction by any governmental authority, civil
riot, flood, or any other cause not within the control of Landlord, the period
for performance of such term, condition or covenant shall be extended for a
period of time equal to the period of time Landlord is delayed or hindered.
23. RIGHT OF FIRST REFUSAL:
Upon termination of that certain Lease Agreement (the "Millers Lease")
of even date herewith by and between Landlord and The Millers Mutual Fire
Insurance Company, Tenant shall have the right to lease the space covered by the
Xxxxxx Lease on the same terms, conditions and covenants as are contained in
this lease, at the same rate per rentable square foot as Tenant shall pay for
the demised property. Landlord shall notify Tenant of the Termination of the
Millers Lease not less than thirty (30) days prior to the expiration or prior
termination of the Millers Lease and Tenant shall be entitled to exercise its
right of first refusal for a period of sixty (60) days following receipt of such
notice. Upon exercise of its right of first refusal, the premises covered by the
Xxxxxx Lease shall become and be including within the demised premises.
24. USE OF LANGUAGE:
Words of any gender used in this lease shall be held and construed to
include any other gender, and words in the singular shall be held to include the
plural unless the context otherwise requires.
25. CAPTIONS:
The captions or headings of paragraphs in this lease are inserted for
convenience only and shall not be considered in construing the provisions hereof
if any question of intent should arise.
11
12
26. SUCCESSORS:
The terms, conditions and covenants contained in this lease shall apply
to, inure to the benefit of, and be binding upon the parties hereto and their
respective successors in interest and legal representatives, except as otherwise
herein expressly provided. All rights, powers, privileges, immunities and duties
of Landlord under this lease, including, but not limited to, any notices
required or permitted to be delivered by Landlord to Tenant hereunder, may, at
Landlord's option, be exercised or performed by Landlord's agent or attorney.
27. RENEWAL OPTION:
Tenant shall have a one (1) time right to renew this Lease in
accordance with Exhibit A attached hereto.
28. SEVERABILITY:
If any provision in this lease should be held to be invalid or
unenforceable, the validity and enforceability of the remaining provisions of
this lease shall not be affected thereby.
29. NOTICES:
Any notice or document required or permitted to be delivered hereunder
may be delivered in person or shall be deemed to be delivered, whether actually
received or not, when deposited in the United States mail, postage prepaid,
registered or certified mail, return receipt requested, addressed to the parties
at the addresses indicated below, or at such other addresses as may have
theretofore been specified by written notice delivered in accordance herewith.
LANDLORD: IIS Realty, Ltd.
000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000-0000
Attn: Chief Financial Officer
TENANT: INSpire Insurance Solutions, Inc.
000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000-0000
Attn: Chief Financial Officer
12
13
EXECUTED the 13th day of November, 1998.
LANDLORD:
IIS Realty, Ltd., a Texas limited partnership
By: Xxxxxx Solutions, L.L.C., a Texas
limited liability company
By: /s/ F. XXXXXX XXXXXX, III
------------------------------------------
Name: F. Xxxxxx Xxxxxx, III
Title: Managing Member
TENANT:
INSpire Insurance Solutions, Inc.
By: /s/ XXXXX XXXXXX
----------------------------------------
Name: Xxxxx Xxxxxx
---------------------------------------
Title: EVP - CFO
--------------------------------------
13
14
EXHIBIT A
"RENEWAL OPTION: Provided that at the end of the primary term of this
lease Tenant shall not be in default of any term, condition or covenant
contained in this lease, Tenant (but not any assignee of subtenant) shall have
the right and option to renew this lease, by written notice delivered to
Landlord no later than 180 days prior to the expiration of the primary term, for
the additional term of five (5) years, under the same terms, conditions, and
covenants contained herein, except:
A. Tenant shall have no further renewal options unless expressly
granted by Landlord in writing; and
B. The rental for the renewal term shall be at the rate of $10.00 per
rentable square foot, totalling $80,133.33 per month in advance.
C. Upon notification from Tenant of the exercise of this renewal
option, Landlord shall within 15 days thereafter notify Tenant in writing of the
proposed rental for the renewal term; Tenant shall with 15 days following
receipt of same notify Landlord in writing of the acceptance or rejection of the
proposed rental. In event of rejection by Tenant, the renewal rental shall be
determined as follows:
Within 15 days following notification of rejection, Landlord and Tenant
shall each appoint a disinterested and qualified appraiser. If these two
appraisers cannot agree upon a renewal rental within 30 days following their
appointment, the two appointees shall forthwith select a third disinterested and
qualified appraiser, and the decision of any two appraisers shall be binding.
Notification in writing of this decision shall be made by the appraisers to
Landlord and Tenant within 30 days following the selection of the third
appraiser. Landlord and Tenant shall bear the expense of the appraiser appointed
by each, and the expense of the third appraiser shall be shared equally by both
parties."
14
