ADMINISTRATION AGREEMENT
This Administration 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. XXX is in the business of, among other things, owning and operating a
multi-story office building located at 0000 Xxxxx Xxxxx, Xxxx Xxxxx, Xxxxx (the
"BUILDING").
B. XXX desires to obtain various services necessary in order to operate
the Building and certain portions of IRA's business, and XXX has requested FCFC
to provide certain of those services needed by XXX.
C. FCFC is willing to provide certain services to XXX 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, FCFC and XXX
hereby agree as follows:
1. SERVICES. XXX agrees to retain FCFC as an independent contractor, and
FCFC agrees to be retained by XXX as an independent contractor, to provide to
XXX various services on the terms and conditions set forth in this Agreement.
As such, FCFC shall, for the term of this Agreement, make representatives of
FCFC available to XXX to render, and FCFC shall render, the following services
(collectively, the "SERVICES") relating to or affecting the operation of IRA's
business:
(a) Manage the Building, including managing the maintenance staff,
grounds staff, telephone and security systems for the Building.
(b) Manage IRA's Personnel Administration Department, including
supervision of the employee policies and benefits of XXX as well as
administering and managing the printing, graphics, and supplies administration
functions of XXX.
2. ADMINISTRATION FEE. In consideration for the Services to be rendered
by FCFC to XXX under this Agreement and all other duties and obligations of FCFC
under this Agreement, and as compensation for the Services and all other duties
and obligations of FCFC
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under this Agreement, XXX agrees to pay to FCFC an ADMINISTRATION FEE (herein
so called) in the amount of $2,080.00 per month. The Administration 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 Administration
Fee shall be payable by XXX to FCFC at the address for FCFC set forth in this
Agreement or at such other place as may be designated in writing by FCFC to
XXX. 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
Administration 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 Administration Fee remains unpaid for more than ten
(10) days after FCFC has given XXX 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.
3. 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.
4. PLACE OF SERVICES. It is understood that the Services and the other
duties and obligations of FCFC 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 FCFC and XXX.
5. TIME DEVOTED TO SERVICES; PERSONNEL. In the performance of the
Services and the other duties and obligations of FCFC under this Agreement, the
hours FCFC is required to work on any given day and the personnel provided by
FCFC to perform such work will be within FCFC's control, and XXX will rely upon
FCFC to devote such time and to provide such personnel as is reasonably
necessary to fulfill the spirit and purpose of this Agreement. However, FCFC
will coordinate with XXX on scheduling the performance of the Services and the
other duties and obligations of FCFC under this Agreement, and the Services and
such other duties and obligations will be performed at such times as are
mutually agreeable to XXX and FCFC.
6. PERSONNEL, MATERIALS, FACILITIES AND EQUIPMENT. FCFC shall furnish,
at FCFC's own expense, all personnel, materials, facilities, equipment, supplies
and other things necessary to carry out FCFC's obligations under this Agreement.
7. EXPENSES OF FCFC. Except as otherwise provided in this Agreement,
FCFC shall pay all of FCFC's own expenses in connection with the performance of
the Services and of FCFC's other duties and obligations under this Agreement.
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8. INSURANCE. At all times during the term of this Agreement, XXX will
obtain and maintain, at IRA's expense, a policy of general liability insurance
in such amounts as may be mutually agreeable to XXX and FCFC. FCFC shall be
named as an additional insured in each such policy.
9. RELATIONSHIP OF THE PARTIES. The parties to this Agreement agree that
FCFC is an independent corporation and that the relationship created by this
Agreement is that of client and independent contractor. FCFC may perform
services for itself and for others at the same time that FCFC is performing the
Services for XXX pursuant to this Agreement. XXX may, during the term of this
Agreement, engage employees and other independent contractors to perform other
services on behalf of XXX.
10. ASSIGNMENT. Neither FCFC nor XXX may assign this Agreement or any of
FCFC's or IRA's rights or obligations under this Agreement without the prior
written consent of the other party; provided, however, that FCFC may, without
IRA's consent, assign FCFC's rights and obligations under this Agreement to any
affiliate of FCFC that assumes in writing the obligations of FCFC under this
Agreement.
11. 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 pay any Administration Fee when
due and such failure or refusal continues for more than ten (10) days after FCFC
has given XXX written notice thereof.
(b) The failure or refusal of XXX to properly and timely perform,
observe, and comply with any other 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.
(c) 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.
12. REMEDIES FOR XXX DEFAULT. If an 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:
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(a) Declare this Agreement terminated.
(b) Discontinue all of the Services and other duties and obligations
required by this Agreement to be performed by 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.
13. 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 properly and timely perform,
observe, and comply with any 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.
(b) 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.
14. REMEDIES FOR FCFC DEFAULT. If a 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, in which event XXX shall have
no further obligations under this Agreement (including without limitation any
obligation to pay any additional Administration 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.
15. CUMULATIVE RIGHTS. All rights available to FCFC or to XXX under this
Agreement shall be cumulative of and in addition to all other rights granted to
FCFC or XXX at law or in equity. Pursuit of any of the foregoing remedies shall
not preclude pursuit of any other
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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 FCFC or to XXX by reason of the violation of any of
the terms, provisions, or covenants contained in this Agreement. Forbearance
by FCFC or XXX to enforce one or more of the remedies herein provided upon an
XXX Event of Default or a FCFC 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.
16. 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 FCFC or XXX 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, FCFC shall cease to be obligated to perform the
Services and the other duties and obligations of FCFC required by this
Agreement, FCFC shall cease to have any rights or benefits under this Agreement
except the right to receive any unpaid Administration Fees which have accrued to
the effective date of termination, and XXX shall cease to have any further
obligations or liabilities under this Agreement except the obligation to pay to
FCFC any unpaid Administration Fees which have accrued to the effective date of
termination.
17. OWNERSHIP OF RECORDS; RETURN OF RECORDS AND EQUIPMENT ON TERMINATION.
All records and books relating to IRA's business, whether prepared by FCFC or
otherwise coming into FCFC's possession, shall be the property of XXX regardless
of who actually prepared or purchased the original book or record. Upon the
termination of this Agreement, FCFC shall make available to XXX at its main
office all of IRA's books and records in FCFC's possession. FCFC, at FCFC's
option, may retain copies of all of IRA's records that were prepared by FCFC in
the performance of FCFC's duties and obligations under this Agreement. Upon the
termination of this Agreement, XXX shall return to FCFC at its main office all
of FCFC's equipment, furnishings, and supplies in IRA's possession, together
with all other property belonging to or leased by FCFC or used in connection
with FCFC's business which may be in IRA's possession.
18. 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.
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19. 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.
20. 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 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.
21. 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 19 or SECTION 20, 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.
22. 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.
23. 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.
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24. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between FCFC and XXX 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
Agreement shall be binding upon FCFC or XXX unless in writing and signed by both
FCFC and XXX.
25. BINDING EFFECT. This Agreement shall inure to the benefit of and be
binding on FCFC and XXX and their respective successors and permitted assigns.
26. NO PARTNERSHIP. Nothing contained in this Agreement shall constitute
or be construed to be or create a partnership or joint venture between FCFC and
XXX.
27. 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
28. 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
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consent that venue of any action brought under this Agreement shall be in
Tarrant County, Texas.
29. 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.
30. 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.
31. 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.
32. 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
--------------------------------
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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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