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EXHIBIT 10.54
AMENDED AND RESTATED
BENEFITS ADMINISTRATION CONTRACT
THIS AMENDED AND RESTATED BENEFITS ADMINISTRATION CONTRACT
("Agreement") dated as of January 1, 1998, is made by and between INSpire
Insurance Solutions, Inc. a Texas corporation ("INSpire"), and The Millers
Mutual FIRE Insurance Company, a Texas mutual insurance company ("Millers
Mutual," and together with INSpire, the "Parties").
PRELIMINARY STATEMENTS
A. Millers Mutual and INSpire are parties to a Benefits Administration
Contract, dated as of July 1, 1997 (the "Prior Agreement"), pursuant to which
Millers Mutual performs certain services for and on behalf of INSpire.
B. The employees of Millers Mutual have become employees of INSpire.
C. Millers Mutual and INSpire desire to amend in its entirety the Prior
Agreement.
D. Millers Mutual desires to procure certain services from INSpire in
connection with the business of Millers Mutual and INSpire is willing to
provide such services.
NOW, THEREFORE, in consideration of the foregoing preliminary statements,
the mutual covenants and agreements contained herein, the parties hereto,
intending to be legally bound hereby, agree to amend and restate in its
entirety the Prior Agreement as follows:
STATEMENT OF AGREEMENT
ARTICLE I.
DEFINITIONS
Unless the context otherwise requires, the terms defined in this Article I
shall, for the purposes of this Agreement, have the meanings herein specified:
"Effective Date" means January 1, 1998.
"Fiscal Year" shall mean the period from January 1 through December 31 of
each year.
"Term of Agreement" means the period from the Effective Date until the
Agreement is terminated pursuant to Article 5.
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ARTICLE II.
DUTIES AND OBLIGATIONS OF MILLERS MUTUAL
Section 2.1 Benefits Administration Services. INSpire shall provide
administrative and support services for and on behalf of Millers Mutual and its
subsidiaries which shall include payroll and benefits administration. INSpire
shall make available facilities and equipment as Millers Mutual may determine
to be reasonably necessary in the conduct of its business including, but not
limited to, business property and communications equipment, whether owned or
leased.
ARTICLE III.
COMPENSATION, EXPENSES AND PAYMENT
Section 3.1 Fee. The compensation due INSpire from Millers Mutual for
services provided pursuant to Section 2.1 of this Agreement shall be a monthly
fee of $15,000 (the "Monthly Fee").
Section 3.2 Invoicing and Payment. INSpire shall xxxx Xxxxxxx Mutual
monthly for the Monthly Fee within 15 days after the end of each calendar month
during the Term of Agreement. Payment shall be made by Millers Mutual within 30
days after the delivery of such invoice.
Section 3.3 Late Payment. Any amount owing from Millers Mutual to INSpire
that has not been paid by the due date shall be subject to a late payment charge
of 1% per month.
ARTICLE IV.
ACCESS TO INFORMATION, BOOKS AND RECORDS
INSpire and its duly authorized representatives shall have access, to the
extent necessary to perform the services pursuant to Section 2.1, to Millers
Mutual's offices, facilities and records wherever located, in order to
discharge INSpire's responsibilities hereunder; provided, however, Millers
Mutual shall provide and make available to INSpire and its duly authorized
representatives at INSpire's Fort Worth, Texas, USA offices, at INSpire's
request, all such records required by INSpire to perform its duties pursuant to
this Agreement. All records and materials furnished to INSpire by Millers
Mutual in performance of this Agreement shall at all times during the Term of
Agreement remain the property of Millers Mutual.
ARTICLE V.
TERM AND TERMINATION OF THE AGREEMENT
Section 5.1 Initial Term. This agreement shall be effective from the
Effective Date and shall continue for three (3) years thereafter (the "Initial
Term"); subject, however, to the
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terms of Section 5.2 hereof. At the end of the Initial Term, this Agreement
shall continue in force and effect for subsequent one (1) year periods unless
terminated by either Party by written notice at least sixty (60) days prior to
the anniversary date of the Effective Date.
Section 5.2 Termination. This Agreement may be sooner terminated on the
first to occur of the following:
(a) Termination by Mutual Agreement
In the event the Parties shall mutually agree in writing,
this Agreement may be terminated on the terms and dates
stipulated therein.
(b) Uncorrected Material Breach
In the event either Party shall fail to discharge any of its
material obligations hereunder, or shall commit a material
breach of this Agreement, and such default or breach shall
continue for a period of thirty (30) days after the other
Party has served notice of such default, this Agreement may
then be terminated at the option of the non-breaching Party
by notice thereof to the breaching Party.
Section 5.3 Effects of Termination. Except for covenants or other
provisions herein that, by their terms, expressly extend beyond the Term of
Agreement, the Parties' obligations hereunder are limited to the Term of
Agreement.
Section 5.4 Reimbursement by INSpire. In the event of termination
under this Agreement, INSpire shall reimburse Millers Mutual within 30 days
after such termination for fees paid by Millers Mutual but unearned by INSpire.
Section 5.5 Force Majeure. If either Party shall be prevented from
performing any portion of this Agreement (except the payment of money) by
causes beyond its control, including labor disputes, civil commotion, war,
governmental regulations or controls, casualty, inability to obtain material
or services or acts of God, the defaulting party shall be excused from
performance for the period of the delay and for a reasonable time thereafter.
ARTICLE VI.
INDEMNIFICATION OF MILLERS MUTUAL
Section 6.1 Limitation of Liability. In providing services hereunder,
INSpire shall have a duty to act, and cause its affiliates and designees to act,
in a reasonably prudent manner. Neither INSpire, nor any officer, director,
employee or agent of INSpire shall be liable to Millers Mutual for any error of
judgment or for any loss incurred by Millers Mutual in connection with the
matters to which this Agreement relates, except a loss resulting from the gross
negligence or willful misconduct on the part of INSpire.
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Section 6.2 Indemnification. Millers Mutual hereby agrees to indemnify and
hold harmless INSpire from and against any and all claims, causes of action,
liabilities, damages, costs, charges, fees, expenses (including reasonable
attorneys' fees and expenses to be reimbursed as incurred), suits, orders,
judgments, adjudications and losses of whatever nature and kind which INSpire
or its affiliates or designees or for which INSpire or its affiliates or
designees become liable as the result of the performance of INSpire's
obligations and duties pursuant to this Agreement; provided, INSpire shall not
be indemnified for gross negligence or willful misconduct on the part of
INSpire.
ARTICLE VII.
MISCELLANEOUS
Section 7.1 Relationship Of Parties. This Agreement does not create a
partnership, joint venue or association; nor does this Agreement, or the
operations hereunder, create the relationship of lessor and lessee or xxxxxx
and bailee. Nothing contained in this Agreement or in any agreement made
pursuant hereto shall ever be construed to create a partnership, joint venture
or association, or the relationship of lessor and lessee or xxxxxx and bailee,
or to impose any duty, obligation or liability that would arise therefrom with
respect to either or both of the Parties. Specifically, but not by way of
limitation, except as otherwise expressly provided for herein, nothing contained
herein shall be construed as imposing any responsibility on INSpire for the
debts or obligations of Millers Mutual or any of its affiliates. It is hereby
expressly understood that INSpire is hereby engaged by Millers Mutual to
provide benefits administration services as an agent of Millers Mutual.
INSpire, its affiliates and designees shall have the right to render similar
services for other business entities and persons, including its own, whether or
not engaged in the same business as Millers Mutual, and may enter into such
other business activities as INSpire and its affiliates, in their sole
discretion, may determine.
Section 7.2 No Third Party Beneficiaries. Except to the extent a third
party is expressly given rights herein, any agreement herein contained,
expressed or implied, shall be only for the benefit of the Parties and their
respective legal representatives, successors and assigns, and such agreements
or assumption shall not inure to the benefit of any other party whomsoever, it
being the intention of the Parties hereto that no person or entity shall be
deemed a third party beneficiary of this Agreement except to the extent a third
party is expressly given rights herein.
Section 7.3 General Representations. Each Party represents and warrants
that on the Effective Date: (i) it is a corporation, duly established, validly
existing and in good standing under the laws of its state or jurisdiction of
incorporation, with power and authority to carry on the business in which it is
engaged and to perform its respective obligations under this Agreement; (ii)
the execution and delivery of this Agreement have been duly authorized and
approved by all requisite corporate action; (iii) it has all the requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder; and (iv) the execution and delivery of this Agreement do
not, and consummation of the transactions contemplated herein will not, violate
any of the provisions of its charter or bylaws or any applicable state or
federal laws applicable to them.
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Section 7.4 Assignment. No assignment of this Agreement or any of the
rights or obligations set forth herein by either Party shall be valid without
the specific written consent of the other Party.
Section 7.5 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered
personally, mailed by first class mail postage prepaid and return receipt
requested or sent by recognized overnight delivery service or facsimile
transmission to the address below indicated:
If to INSpire: INSpire Insurance Solutions, Inc.
000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000-0000
Attn: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
If to Millers Mutual: The Millers Mutual, Fire Insurance Company
000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000-0000
Attn: Xxx X. Xxxxxx
Facsimile: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Notice
so given shall, in the case of notice so given by mail, be deemed to be given
and received on the fourth calendar day after posting, in the case of notice so
given by recognized overnight delivery service, on the date of actual delivery
and, in the case of notice so given by facsimile transmission or personal
delivery, on the date of actual transmission or, as the case may be, personal
delivery.
Section 7.6 Failure to Pursue Remedies. The failure of any party to seek
redress for violation of, or to insist upon the strict performance of, any
provision of this Agreement shall not prevent a subsequent act, which would
have originally constituted a violation, from having the effect of an original
violation.
Section 7.7 Cumulative Remedies. The rights and remedies provided by this
Agreement are cumulative and the use of any one right or remedy by any party
shall not preclude or waive its right to use any or all other remedies. Said
rights and remedies are given in addition to any other rights the parties may
have by law, statute, ordinance or otherwise.
Section 7.8 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of all of the parties and, to the extent permitted by this
Agreement, their successors, legal representatives and assigns.
Section 7.9 Interpretation. Throughout this Agreement, nouns, pronouns and
verbs shall be construed as masculine, feminine, neuter, singular or plural,
whichever shall be applicable. All references herein to "Articles," "Sections"
and paragraphs shall refer to
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corresponding provisions of this Agreement.
SECTION 7.10 HEADINGS. Headings are solely for convenience and ease of
reference and are not to be considered in the construction or interpretation of
any provision of this Agreement.
SECTION 7.11 SEVERABILITY. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such
invalid or unenforceable provision were omitted unless such invalid or
unenforceable provision affects the fundamental purpose of this Agreement.
SECTION 7.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties hereto had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument. This Agreement may also be executed and
delivered by exchange of facsimile transmissions of originally executed copies.
SECTION 7.13 INTEGRATION. This Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto.
SECTION 7.14 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAW, AND NOT THE LAW OF
CONFLICTS, OF THE STATE OF TEXAS.
SECTION 7.15 ARBITRATION.
(a) To the fullest extent permitted by law, any controversy or claim
arising out of or relating to any alleged breach shall be resolved by
arbitration by a panel of three (3) arbitrators under the American Arbitration
Association ("AAA") Arbitration Rules in force (the "AAA Rules") in accordance
with the following:
(1) In the event of any conflict between the AAA Rules and the
provisions of this Agreement, the provisions of this Agreement shall
prevail.
(2) Either party may refer a matter to arbitration by written notice to
the other party by giving notice as provided in this Agreement.
(3) The place of the arbitration shall be Fort Worth, Texas.
(4) The claimant party shall appoint one arbitrator and the respondent
party shall appoint one arbitrator, and the two arbitrators so
appointed shall appoint the third arbitrator, in accordance with
the AAA Rules. In the event of an inability to agree on a third
arbitrator, the appointing authority shall be the AAA.
(5) The decision of the arbitrators shall be made by majority vote and
shall be in
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writing.
(6) The decision of the arbitrators shall be final and binding on the
parties save in the event of fraud, manifest mistake or failure by
any of the arbitrators to disclose any conflict of interest.
(7) The decision of the arbitrators may be enforced by any court of
competent jurisdiction and may be executed against the person and
assets of the losing party in any jurisdiction.
(b) In the event any dispute is submitted to arbitration pursuant to
Section 7.15(a) above, the panel of arbitrators may, if it deems such award
appropriate, award a party costs and expenses incurred by such party in
enforcing its rights. Except as so awarded, each party shall bear its own costs
and expenses of enforcing its rights to arbitrate under this Section 7.15.
(c) Except for arbitration proceedings pursuant to Section 7.15(a) above,
no action (other than the enforcement of any arbitration decision) or lawsuit
shall be brought by or between Millers Mutual and INSpire concerning or arising
out of this Agreement.
Section 7.16 Agreement to Perform Necessary Acts. Each party agrees to
perform any further acts and execute and deliver any and all further documents
and/or instruments which may be reasonably necessary to carry out the
provisions of this Agreement and the transactions contemplated hereby.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
INSPIRE INSURANCE SOLUTIONS, INC.
By: __________________________________
Name: ________________________________
Title: _______________________________
THE MILLERS MUTUAL FIRE
INSURANCE COMPANY
By: __________________________________
Name: ________________________________
Title: _______________________________
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