MANAGEMENT AGREEMENT
This Management Agreement (this "AGREEMENT") is made and entered into to
be effective for all purposes as of June 1, 1998, by and between INDEPENDENT
RESEARCH AGENCY FOR LIFE INSURANCE, INC., a Texas corporation ("XXX"), and
FIRST COMMAND FINANCIAL CORPORATION, a Texas corporation ("FCFC").
RECITALS
A. FCFC is in the business of building, operating, and leasing a
parking garage to be located in Fort Worth, Texas.
B. FCFC desires to obtain various services, facilities, equipment, and
supplies necessary in order to operate its business, and FCFC has requested
XXX to provide certain of those services and facilities and certain equipment
and supplies needed by FCFC.
C. XXX is willing to provide certain services, facilities, equipment,
and supplies to FCFC on the terms and conditions set forth in this Agreement.
AGREEMENT
In consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
XXX and FCFC hereby agree as follows:
1. SERVICES. FCFC agrees to retain XXX as an independent contractor,
and XXX agrees to be retained by FCFC as an independent contractor, to
provide to FCFC various services on the terms and conditions set forth in
this Agreement. As such, XXX shall, for the term of this Agreement, make
representatives of XXX available to FCFC to render, and XXX shall render, the
following services (collectively, the "SERVICES") relating to or affecting
the operation of FCFC's business:
(a) Preparation and processing of payroll and payroll records for
FCFC's business, including the annual filing of the FUTA return, the
quarterly FUTA deposit, the filing of the Federal Reconciliation, the
deposits related to employment taxes, the filing of the annual 941 return
with the IRS and the depositing and filing of state unemployment insurance.
(b) Processing of accounts payable for FCFC's business, including
the control and disbursement of FCFC funds to vendors and reconciliation of
related bank accounts.
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(c) Administration of employee benefits for employees of FCFC,
including the collection and disbursement of premiums related to various
group insurance policies as well as the administration of any fringe benefits
or bonus plans adopted by FCFC.
2. FACILITIES. During the term of this Agreement, XXX will, at IRA's
expense, furnish to FCFC such facilities as are reasonably necessary for the
operation of FCFC's business. XXX and FCFC will by mutual agreement
determine the size and location of all such facilities consistent with FCFC's
needs for facilities. Such facilities may be located within buildings owned
or leased by XXX, all as determined by the mutual agreement of XXX and FCFC.
XXX will pay all costs (including acquisition costs, rents, repair costs,
maintenance costs, and utilities costs) incurred in connection with
furnishing such facilities to FCFC.
3. EQUIPMENT. During the term of this Agreement, XXX will, at IRA's
expense, furnish to FCFC two (2) automobiles and such equipment and
furnishings as are reasonably necessary for the operation of FCFC's business.
Such equipment and furnishings will include telephones, computers, printers,
photocopy machines, facsimile machines, office furniture, and other equipment
normally utilized in a business office. XXX will select and acquire (by
purchase or lease) all such automobiles, equipment, and furnishings. No such
automobiles, equipment, or furnishings supplied by XXX will be or become the
property of FCFC. XXX will pay all costs (including acquisition costs, lease
expenses, insurance, maintenance costs, and repair costs) incurred in
connection with furnishing such automobiles, equipment, and furnishings to
FCFC.
4. SUPPLIES. During the term of this Agreement, XXX will, at IRA's
expense, furnish to FCFC such supplies as are reasonably necessary in order
for XXX to provide the Services.
5. MANAGEMENT FEE. In consideration for the Services to be rendered
by XXX to FCFC under this Agreement, the facilities, equipment, and supplies
to be furnished by XXX to FCFC under this Agreement and all other duties and
obligations of XXX under this Agreement, and as compensation for the
Services, the facilities, equipment, and supplies to be furnished by XXX to
FCFC under this Agreement and all other duties and obligations of XXX under
this Agreement, FCFC agrees to pay to XXX a MANAGEMENT FEE (herein so called)
in the amount of $2,030.00 per month. The Management Fee shall be due and
payable in monthly installments in advance on the first day of each calendar
month during the term of this Agreement. The Management Fee shall be payable
by FCFC to XXX at the address for XXX set forth in this Agreement or at such
other place as may be designated in writing by XXX to FCFC. If the term of
this Agreement commences on other than the first day of a calendar month or
ends on other than the last day of a calendar month, the Management Fee for
the partial month shall be prorated on the basis of the number of days during
the month for which this Agreement was in effect. If any payment of the
Management Fee remains unpaid for more than ten (10) days after XXX has given
FCFC written notice that such payment was not paid when due, such payment
shall bear interest at the rate of twelve percent (12%) per annum from the
date such payment was due until the date such payment is paid.
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6. TERM. Unless this Agreement is sooner terminated as otherwise
provided in this Agreement and except as otherwise provided herein, this
Agreement initially shall be in effect for a period of one (1) year beginning
on the date of this Agreement and ending on May 31, 1999. Thereafter, this
Agreement shall automatically renew itself from year to year unless otherwise
terminated as provided in this Agreement.
7. PLACE OF SERVICES. It is understood that the Services and the
other duties and obligations of XXX under this Agreement will be rendered or
performed primarily at IRA's office located at 0000 Xxxxx Xxxxx, Xxxx Xxxxx,
Xxxxx or at such other place or places mutually agreed upon by XXX and FCFC.
8. TIME DEVOTED TO SERVICES; PERSONNEL. In the performance of the
Services and the other duties and obligations of XXX under this Agreement,
the hours XXX is required to work on any given day and the personnel provided
by XXX to perform such work will be within IRA's control, and FCFC will rely
upon XXX to devote such time and to provide such personnel as is reasonably
necessary to fulfill the spirit and purpose of this Agreement. However, XXX
will coordinate with FCFC on scheduling the performance of the Services and
the other duties and obligations of XXX under this Agreement, and the
Services and such other duties and obligations will be performed at such
times as are mutually agreeable to FCFC and XXX.
9. PERSONNEL, MATERIALS, FACILITIES AND EQUIPMENT. XXX shall furnish,
at IRA's own expense, all personnel, materials, facilities, equipment,
supplies and other things necessary to carry out IRA's obligations under this
Agreement.
10. EXPENSES OF XXX. Except as otherwise provided in this Agreement,
XXX shall pay all of IRA's own expenses in connection with the performance of
the Services and of IRA's other duties and obligations under this Agreement
and in furnishing the facilities, equipment, and supplies to be provided by
XXX under this Agreement.
11. INSURANCE. At all times during the term of this Agreement, FCFC
will obtain and maintain, at FCFC's expense, a policy of general liability
insurance in such amounts as may be mutually agreeable to FCFC and XXX. XXX
shall be named as an additional insured in each such policy.
12. RELATIONSHIP OF THE PARTIES. The parties to this Agreement agree
that XXX is an independent corporation and that the relationship created by
this Agreement is that of client and independent contractor. XXX may perform
services for itself and for others at the same time that XXX is performing
the Services for FCFC pursuant to this Agreement. FCFC may, during the term
of this Agreement, engage employees and other independent contractors to
perform other services on behalf of FCFC.
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13. ASSIGNMENT. Neither XXX nor FCFC may assign this Agreement or any
of IRA's or FCFC's rights or obligations under this Agreement without the
prior written consent of the other party; provided, however, that XXX may,
without FCFC's consent, assign IRA's rights and obligations under this
Agreement to any affiliate of XXX that assumes in writing the obligations of
XXX under this Agreement.
14. EVENTS OF DEFAULT BY FCFC. FCFC shall be in default under this
Agreement upon the occurrence of any of the following events or conditions,
and the term "FCFC EVENT OF DEFAULT" as used in this Agreement shall mean the
occurrence of any one or more of the following events or conditions:
(a) The failure or refusal of FCFC to pay any Management Fee when
due and such failure or refusal continues for more than ten (10) days after
XXX has given FCFC written notice thereof.
(b) The failure or refusal of FCFC to properly and timely perform,
observe, and comply with any other covenant or agreement contained in this
Agreement on the part of FCFC to be performed, observed, or complied with
and such failure or refusal continues for more than thirty (30) days after
XXX has given FCFC written notice thereof.
(c) Any statement, representation, or warranty made in this
Agreement or in any writing required to be delivered by FCFC to XXX pursuant
to this Agreement or any statement or representation made in any certificate
or report delivered by FCFC to XXX pursuant to this Agreement is knowingly
false or erroneous in any material respect at the time made.
15. REMEDIES FOR FCFC DEFAULT. If an FCFC Event of Default shall occur
and be continuing, at any time thereafter during the continuance of such FCFC
Event of Default, unless such FCFC Event of Default shall have been remedied
to the satisfaction of XXX or waived in writing by XXX, XXX may, at its
election, do any one or more of the following:
(a) Declare this Agreement terminated.
(b) Discontinue all of the Services and other duties and
obligations required by this Agreement to be performed by XXX and discontinue
furnishing any facilities, equipment, or supplies to FCFC.
(c) Exercise any and all rights afforded by the laws of the State
of Texas or any other jurisdiction, or by this Agreement, or by law or
equity, or otherwise.
(d) Enforce the specific performance of this Agreement.
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16. EVENTS OF DEFAULT BY XXX. XXX shall be in default under this
Agreement upon the occurrence of any of the following events or conditions,
and the term "XXX EVENT OF DEFAULT" as used in this Agreement shall mean the
occurrence of any one or more of the following events or conditions:
(a) The failure or refusal of XXX to properly and timely perform,
observe, and comply with any covenant or agreement contained in this
Agreement on the part of XXX to be performed, observed, or complied with and
such failure or refusal continues for more than thirty (30) days after FCFC
has given XXX written notice thereof.
(b) Any statement, representation, or warranty made in this
Agreement or in any writing required to be delivered by XXX to FCFC pursuant
to this Agreement or any statement or representation made in any certificate
or report delivered by XXX to FCFC pursuant to this Agreement is knowingly
false or erroneous in any material respect at the time made.
17. REMEDIES FOR XXX DEFAULT. If a XXX Event of Default shall occur
and be continuing, at any time thereafter during the continuance of such XXX
Event of Default, unless such XXX Event of Default shall have been remedied
to the satisfaction of FCFC or waived in writing by FCFC, FCFC may, at its
election, do any one or more of the following:
(a) Declare this Agreement terminated, in which event FCFC shall
have no further obligations under this Agreement (including without
limitation any obligation to pay any additional Management Fees accruing
after the date of termination).
(b) Exercise any and all rights afforded by the laws of the State
of Texas or any other jurisdiction, or by this Agreement, or by law or
equity, or otherwise.
(c) Enforce the specific performance of this Agreement.
18. CUMULATIVE RIGHTS. All rights available to XXX or to FCFC under
this Agreement shall be cumulative of and in addition to all other rights
granted to XXX or FCFC at law or in equity. Pursuit of any of the foregoing
remedies shall not preclude pursuit of any other remedies herein provided or
any other remedies provided by law, nor shall pursuit of any remedy herein
provided constitute a forfeiture or waiver of any damages accruing to XXX or
to FCFC by reason of the violation of any of the terms, provisions, or
covenants contained in this Agreement. Forbearance by XXX or FCFC to enforce
one or more of the remedies herein provided upon an FCFC Event of Default or
a XXX Event of Default (collectively, "EVENTS OF DEFAULT," and individually,
an "EVENT OF DEFAULT") shall not be deemed or construed to constitute a
waiver of such Event of Default.
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19. TERMINATION. In addition to the other events and conditions set
forth in this Agreement that may result in the termination of this Agreement,
this Agreement shall be terminated upon the occurrence of any of the
following events or conditions:
(a) The mutual agreement of the parties.
(b) At the option of XXX or FCFC on any anniversary date of the
date of this Agreement beginning with the first anniversary of the date of
this Agreement, on written notice by one party to the other party given at
least thirty (30) days prior to the effective date of termination.
Upon the termination of this Agreement for any of the reasons set
forth in this Agreement, XXX shall cease to be obligated to perform the
Services and the other duties and obligations of XXX required by this
Agreement, XXX shall cease to be obligated to furnish any facilities,
equipment, or supplies to FCFC, XXX shall cease to have any rights or
benefits under this Agreement except the right to receive any unpaid
Management Fees which have accrued to the effective date of termination, and
FCFC shall cease to have any further obligations or liabilities under this
Agreement except the obligation to pay to XXX any unpaid Management Fees
which have accrued to the effective date of termination.
20. OWNERSHIP OF RECORDS; RETURN OF RECORDS AND EQUIPMENT AND SURRENDER
OF FACILITIES ON TERMINATION. All records and books relating to FCFC's
business, whether prepared by XXX or otherwise coming into IRA's possession,
shall be the property of FCFC regardless of who actually prepared or
purchased the original book or record. Upon the termination of this
Agreement, XXX shall make available to FCFC at its main office all of FCFC's
books and records in IRA's possession. XXX, at IRA's option, may retain
copies of all of FCFC's records that were prepared by XXX in the performance
of IRA's duties and obligations under this Agreement. Upon the termination
of this Agreement, FCFC shall return to XXX at its main office all of IRA's
equipment, furnishings, and supplies in FCFC's possession, together with all
other property belonging to or leased by XXX or used in connection with IRA's
business which may be in FCFC's possession, and FCFC shall immediately
surrender possession to XXX of all facilities provided by XXX to FCFC under
this Agreement.
21. EFFECT OF TERMINATION ON LIABILITY. Unless otherwise expressly
provided herein, termination of this Agreement shall not affect any liability
of either party to the other which accrued prior to the effective date of
such termination.
22. INDEMNIFICATION BY FCFC. FCFC agrees to indemnify XXX and hold XXX
harmless from and against all liabilities, losses, damages, claims, causes of
action, and expenses connected therewith (including reasonable attorneys'
fees) arising out of or resulting from the performance of FCFC's duties and
obligations under this Agreement that are caused directly or
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indirectly by, or as a result of, the negligent act or omission or willful
misconduct of FCFC or any of FCFC's employees, officers, directors, agents,
or representatives.
23. INDEMNIFICATION BY XXX. XXX agrees to indemnify FCFC and hold FCFC
harmless from and against all liabilities, losses, damages, claims, causes of
action, and expenses connected therewith (including reasonable attorneys'
fees) arising out of or resulting from the performance of IRA's duties and
obligations under this Agreement that are caused directly or indirectly by,
or as a result of, the negligent act or omission or willful misconduct of XXX
or any of IRA's employees, officers, directors, agents, or representatives.
24. CLAIM FOR INDEMNITY. In the event either party hereto receives
notice of a claim or demand which results or may result in indemnification
pursuant to SECTION 22 or SECTION 23, such party shall immediately give
notice thereof to the other party to this Agreement. The party receiving
such notice shall immediately take such measures as may be reasonably
required to properly and effectively defend such claim, and may defend same
with counsel of its own choosing. In the event the party receiving such
notice fails to properly and effectively defend such claim, and in the event
such party is liable therefor, then the party so giving such notice may
defend such claim at the expense of the party receiving such notice.
25. ATTORNEYS' FEES. If any party defaults in the performance of any
term, covenant, or condition contained in this Agreement on the part of such
party to be performed and the non-defaulting party places the enforcement of
this Agreement, or any part thereof, or the exercise of any rights under this
Agreement in the hands of an attorney, or files suit upon the same, the
defaulting party agrees to pay to the non-defaulting party all costs of suit
and all costs of enforcement of the non-defaulting party's rights hereunder,
including reasonable attorneys' fees.
26. WAIVERS. No waiver by any party of any Event of Default shall be
deemed to be a waiver of any other then-existing or subsequent Event of
Default. No delay or omission by any party in exercising any right under this
Agreement shall impair such right or be construed as a waiver thereof or any
acquiescence therein, nor shall any single or partial exercise of any such
right preclude other or further exercise thereof, or the exercise of any
other right under this Agreement or otherwise. No waiver of any of the
provisions of this Agreement shall be deemed, or shall constitute, a waiver
of any other provision, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding unless executed
in writing by the party making it.
27. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between XXX and FCFC with respect to the subject matter hereof, and there are
no other covenants, agreements, promises, terms, provisions, conditions,
undertakings, or understandings, either oral or written, between them
concerning the subject matter of this Agreement other than those set forth
herein. No subsequent alteration, amendment, change, deletion, or addition
to this
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Agreement shall be binding upon XXX or FCFC unless in writing and signed by
both XXX and FCFC.
28. BINDING EFFECT. This Agreement shall inure to the benefit of and
be binding on XXX and FCFC and their respective successors and permitted
assigns.
29. NO PARTNERSHIP. Nothing contained in this Agreement shall
constitute or be construed to be or create a partnership or joint venture
between XXX and FCFC.
30. NOTICES. Any notice, approval, waiver, objection, or other
communication (for convenience, "notice") required or permitted to be given
hereunder or given in regard to this Agreement by one party to the other
shall be in writing and the same shall be given and be deemed to have been
served and given (except when by the terms of this Agreement actual notice is
required) (a) if hand delivered, when delivered in person to the address set
forth hereinafter for the party to whom notice is given, or (b) if mailed
(except where actual receipt is specified by this Agreement), when placed in
the United States mail, postage prepaid, by certified mail, return receipt
requested, addressed to the party at the address hereinafter specified. Any
party may change its address for notices by notice theretofore given in
accordance with this section and shall be deemed effective when actually
received by the other party. The addresses of the parties are as follows:
FCFC: First Command Financial Corporation
0000 Xxxxx Xxxxx
Xxxx Xxxxx, Xxxxx 00000
Attention: Chief Executive Officer
XXX: Independent Research Agency for Life Insurance, Inc.
P. O. Xxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Chief Financial Officer
31. GOVERNING LAW. This Agreement is being executed and delivered, and
is intended to be performed, in the State of Texas, and the laws of the Xxxxx
xx Xxxxx xxx xx xxx Xxxxxx Xxxxxx shall govern the rights and duties of the
parties hereto and the validity, construction, enforcement, and
interpretation of this Agreement. All obligations of the parties created by
this Agreement shall be performed in Tarrant County, Texas. The parties to
this Agreement hereby consent that venue of any action brought under this
Agreement shall be in Tarrant County, Texas.
32. HEADINGS. The headings, captions, and numbering system used in
this Agreement are intended only as a matter of convenience and may under no
circumstances be considered in interpreting the provisions of this Agreement.
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33. AGREEMENT TO EXECUTE DOCUMENTS. In connection with this Agreement,
as well as with all transactions contemplated by this Agreement, each of the
parties hereto agrees to execute and deliver any and all documents and
instruments, and to perform such additional acts, as may be necessary or
appropriate to effectuate, carry out, and perform all of the terms,
provisions, and conditions of this Agreement.
34. COUNTERPARTS. This Agreement has been executed in a number of
identical counterparts, each of which constitutes an original and all of
which constitute, collectively, one agreement; but in making proof of this
Agreement, it shall not be necessary to produce or account for more than one
such counterpart.
35. SEVERABILITY. If any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of this Agreement, and
this Agreement shall be enforced to the fullest extent permitted by
applicable law.
Executed to be effective for all purposes as of the date first above
written.
FCFC:
FIRST COMMAND FINANCIAL
CORPORATION
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Executive Officer
XXX:
INDEPENDENT RESEARCH AGENCY
FOR LIFE INSURANCE, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
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