Exhibit 10.15
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE SYMBOL
"XXX" HAS BEEN INSERTED IN PLACE OF THE PORTIONS SO OMITTED.
ADMINISTRATIVE SERVICES AGREEMENT
This ADMINISTRATIVE SERVICES AGREEMENT (the "Agreement") is
made as of the 13th day of November, 1997 (the "Effective Date") by and among
United Family Life Insurance Company, a Georgia domiciled insurer with offices
located at 000 Xxxx Xxxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000-0000 ("UFL");
Liberty Insurance Services Corporation, a South Carolina corporation with
offices located at 0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
("Liberty"); Fortis, Inc., a Nevada corporation with offices located at One
Chase Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Fortis"); and The
Liberty Corporation, a South Carolina corporation with offices located at 0000
Xxxx Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 ("The Liberty
Corporation"), with Fortis and The Liberty Corporation being parties for the
limited purposes set forth herein.
W I T N E S S E T H:
WHEREAS, Liberty desires to provide to UFL, for itself and,
from and after the closing (the "Closing") of the transaction contemplated by
the Stock Purchase Agreement by and among Fortis, Interfinancial Inc., The
Liberty Corporation, Liberty Life Insurance Company and The Liberty Marketing
Corporation, dated as of November 13, 1997 (the "Stock Purchase Agreement"), for
and on behalf of UFL and Xxxxxx National Life Insurance Company, a California
domiciled insurer with offices located at 0000 Xxxx Xxxxxxx Xxxxxxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 ("PNL"), and UFL, for itself and from and after
the Closing for itself and PNL, desires to obtain from Liberty, the software
modification, interface and development, data conversion, data processing,
customer service and related services described in this Agreement, on the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the agreements of
the parties set forth below, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
For all purposes of this Agreement, unless the context or use
clearly indicates another or different meaning or intent, the following terms
shall have the following meanings and such definitions shall be equally
applicable to both the singular and plural forms of any of the terms herein
defined. Terms other than those defined shall be given their plain English
meaning.
"Account Manager" has the definition so provided in Section
3.09.
"Account Staff" has the definition so provided in Section
3.10.
"Activation Date" has the definition so provided in Section
4.02(a).
"Additional Services" has the definition so provided in
Section 3.06.
"Additional Service Fees" has the definition so provided in
Section 3.06.
"AFA, Brookings and Pan Western Data" means the policy
administration data of PNL related to books of business currently administered
by Liberty for PNL and referred to by such names.
"Affiliate" means, with respect to a Person, any other Person
that directly, or indirectly, through one or more intermediaries, controls or is
controlled by, or is under common control with, such Person.
"Agreement" means this Agreement together with the Exhibits
attached hereto.
"Back-up Copies" has the definition so provided in Section
6.02.
"Base Fees" has the definition so provided in Section 8.01.
"Base Services" means, collectively, the Software
Customization Services, the Data Conversion Services, the Data Processing
Services and the Customer Services.
"Books and Records" has the definition so provided in Section
3.15(f).
"Candidate" has the definition so provided in Section 3.10.
"Change of Control Event" has the definition so provided in
Section 13.02(a).
"Claims Notice" has the definition so provided in Section
14.03.
"Closing" has the definition so provided in the Recitals to
this Agreement.
"Confidential Information" has the definition so provided in
Section 10.01.
"Consents" has the definition so provided in Section 11.03.
"Consumer Price Index" means Employment Cost Index for total
compensation, private industry workers, professional specialty and technical
occupations as published by the United States Bureau of Labor Statistics of the
Department of Labor.
"Control" and its derivatives mean, with respect to any
Person, the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of voting securities or voting interests, by contract or otherwise.
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"Customer Services" has the definition so provided in Section
3.04.
"Customer Service Performance Standards" has the definition so
provided in Section 3.04.
"Data Center" has the definition so provided in Section 3.07.
"Data Conversion Services" has the definition so provided in
Section 3.02.
"Data Processing Services" has the definition so provided in
Section 3.03.
"Data Processing Performance Standards" has the definition so
provided in Section 3.03.
"Disaster Recovery Plan" has the definition so provided in
Section 7.01.
"Effective Date" has the definition so provided in the
preamble.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"First Refusal Notice" has the definition so provided in
Section 13.02(c).
"FTE" has the definition so provided in Section 3.10.
"Genelco Software" means the Third Party Software identified
on Exhibit N, as developed and/or licensed by Genelco Incorporated, a Missouri
corporation.
"Indemnifying Party" has the definition so provided in Section
14.03.
"Indemnitee" has the definition so provided in Section 14.03.
"Insurance Risk" shall mean the mortality or morbidity risk
for any Policy of UFL or, after Closing, UFL or PNL.
"Liberty" has the definition so provided in the preamble of
this Agreement.
"Liberty Software" has the definition so provided in Section
4.02.
"Management Committee" has the definition so provided in
Section 12.01.
"Model Statute" has the definition so provided in Section
3.15(a).
"Modified Software" has the definition so provided in Section
4.03(a).
"Monthly New Business Fee" has the definition so provided in
Section B of Exhibit Q.
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"Monthly Processing Fee" has the definition so provided in
Section A of Exhibit Q.
"Off-Site Facility" has the definition so provided in Section
6.02.
"Performance Standards" means, collectively, the Customer
Services Performance Standards and the Data Processing Performance Standards.
"Person" means an association, firm, individual, partnership
(general or limited), corporation, trust, financial institution, unincorporated
organization or other entity.
"PNL" has the definition provided in the recitals to this
Agreement.
"Policy" or "Policies" shall mean any of UFL's or, after
Closing, PNL's insurance policies, whether individual or group, including paid
up policies and policies on extended term insurance and reduced paid-up
insurance under non-forfeiture options, policy riders, any associated policy
benefits, and any annuity contract, whether originally issued by UFL or PNL, or
whether acquired by UFL or PNL by assumption reinsurance or otherwise, which are
the subject of this Agreement and which policies of UFL are more specifically
identified in Exhibit U but shall specifically exclude any variable or separate
account products.
"Pre-Need Policies" has the definition so provided in Section
3.01(e).
"Project Plan" has the definition so provided in Exhibit A.
"Renewal Term" has the definition so provided in Article 2.
"Security Procedures" has the definition so provided in
Section 3.08.
"Software Customization Services" has the definition so
provided in Section 3.01(c).
"Software Modifications" has the definition so provided in
Section 3.01(a).
"Special Dates" means dates used by programmers to create
exceptions where no date could be determined as specified to serve as
end-of-file indicators or to facilitate sort routines (e.g., 01/2/99 or
09/09/99). For example, such dates were generally used when the date is a
mandatory field in a database, but could not be determined or specified, and
which, when such date actually occurs, may cause computational errors.
"Specifications" has the definition so provided in Section
3.01(a).
"Standard Rates" XXX.
"Stock Purchase Agreement" has the definition so provided in
the preamble to this Agreement.
"System" means the UFL Software, Liberty Software, Third Party
Software and Modified Software.
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"Term" has the definition so provided in Article 2.
"Termination Fee" has the definition so provided in Section
13.08.
"Third Party Software" has the definition so provided in
Section 4.06.
"UFL" has the definition so provided in the preamble.
"UFL Data" has the definition so provided in Section 5.01.
"UFL Software" has the definition so provided in Section 4.01.
"Year 2000 Compliant" means that software shall have the
ability to:
(a) Correctly accept, recognize, manage, manipulate and
perform calculations with respect to data involving dates or portions
of dates that are before, during and after January 1, 2000 (including
single-century formulas, multicentury formulas that reflect the
century, Julian dates and binary dates) and not cause an abnormally
ending scenario within the application or result in the generation of
incorrect results or values involving dates;
(b) Cause all date-related input, user interface
functionalities and data fields to include the indication of century.
Liberty shall determine, in its discretion, how to display data;
provided, however, that the ambiguity as to century shall be clearly
evident to the product user, based on product function and
documentation;
(c) Cause all date related functions (including but not
limited to software interfaces) to include the indication of century if
required;
(d) Cause all software, before, on and after January 1, 2000,
to store and provide output of date information in ways that are
unambiguous as to century, and to function accurately and without
interruption at the same level and quality without changes in operation
associated with the advent of the new century or the occurrence of
Special Dates; and
(e) Manage the leap year occurring in the Year 2000.
ARTICLE 2
TERM
The term of this Agreement shall commence on the Effective
Date and shall continue for a period ending five years following the date of the
earlier to occur of: (i) the Closing or (ii) the date on which Liberty assumes
responsibility for servicing the UFL Policies unless terminated earlier pursuant
to Article 13 or extended as provided below (the "Term"). UFL, at its option,
may renew this Agreement and extend the Term for an additional period of either
five (5) years or three (3) years, at UFL's option (the "Renewal Term"), under
the same terms and conditions by providing notice to Liberty in accordance with
Section 16.02 at least 180
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days before the expiration of the initial Term described in the first sentence
of this Article 2; provided, however, that during the Renewal Term the fees for
Policy Administration and Data Processing, New Business and Data Processing (as
adjusted pursuant to Section 8.07) shall be as provided in Exhibit Q in the
column headed "Renewal Term." UFL's notice to renew shall specify whether the
Renewal Term is to be three (3) years or five (5) years.
ARTICLE 3
PROVISION OF SERVICES
3.01 Software Modification, Interface and Development Services
(a) The Data Processing Services to be provided by Liberty to
UFL pursuant to this Agreement shall be provided using certain Liberty
Software and Third Party Software. Liberty agrees to provide
modifications (the "Software Modifications") to the Liberty Software
and the Third Party Software to meet the functional specifications
generally described on Exhibit A (the "Specifications"), and to install
the Liberty Software and Third Party Software as so modified in the
Data Center, all in accordance with the schedule set forth on Exhibit A
(the "Development Schedule"), subject to testing by UFL as provided in
Section 3.01(b) below. Notwithstanding the foregoing, the parties
acknowledge that the Specifications and Development Schedule are
general in nature and, accordingly, the parties agree to negotiate in
good faith in accordance with the process described in Exhibit A under
the heading "UFL Conversion and Transition Analysis Phase" to finalize
and mutually agree upon a Project Plan on or before January 26, 1998,
which will include detailed Specifications and a completed Development
Schedule. Upon the agreement of the parties to the Project Plan, the
detailed Specifications and Development Schedule included in the
Project Plan shall supplement the general Specifications and
Development Schedule included in Exhibit A, effective as of the date of
approval of the Project Plan by UFL and Liberty. In the event that UFL
and Liberty do not agree upon the Project Plan on or before January 26,
1998, UFL may, at its option, terminate this Agreement pursuant to
Article 13 and receive a full refund of all amounts previously paid to
Liberty pursuant to this Agreement less the actual out-of-pocket
expenses incurred by Liberty since the date of this Agreement in
performance of the Base Services and a fee for the time of Liberty's
personnel engaged in the performance of the Base Services subsequent to
the date of this Agreement calculated at the Standard Rates, up to a
maximum retained by Liberty of $XXX for such expenses and services.
(b) UFL shall have sixty (60) days following the date of
installation of all Software Modifications (and any modifications
thereto) in final form in a model office environment, in which to
conduct acceptance testing and to inspect, test and evaluate the
Software Modifications to determine whether the Software Modifications
(and any modifications thereto) meet the Specifications. Such period
shall also be prior to the scheduled conversion of UFL Data to
Liberty's data processing system pursuant to the Project Plan. If the
Software Modifications (and any modifications thereto) do not meet the
Specifications, UFL shall give Liberty written notice stating why the
Software Modifications (and any modifications thereto) do not meet the
Specifications. Liberty
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shall have ten (10) days from the receipt of such notice to correct the
deficiencies. Following correction of such deficiencies by Liberty, UFL
shall then have ten (10) days to reinspect, test and evaluate the
Software Modifications (and any modifications thereto). The foregoing
inspection and correction procedures shall be repeated until the
Software Modifications are accepted by UFL; provided, however, in any
event the Software Modifications contemplated in Section 3.01 (a) above
(without further modification as contemplated by Section 3.01(c)) shall
be satisfactorily completed by September 15, 1998, unless another date
is specified in the Project Plan. Software Modifications will not be
deemed accepted by UFL unless and until UFL sends written notice of
such acceptance to Liberty; provided, however, that Software
Modifications will be deemed accepted by UFL if UFL does not reject
such Software Modifications within sixty (60) days of notification by
Liberty that the Software Modifications are available for acceptance
testing. Within thirty (30) days of acceptance of the Software
Modifications (and any modifications thereto), Liberty shall make the
Software Modifications available for production use by UFL and by
Liberty in providing the services under this Agreement.
(c) As new versions or releases of the Liberty Software and
the Third Party Software are installed by Liberty according to the
requirements of this Agreement, Liberty shall make such further
modifications thereto and to any Software Modifications (or any
modifications thereto) operating in conjunction with such new versions
or releases as may be necessary to cause the new versions or releases
and the Software Modifications to continue to meet the Specifications.
All modification services described in this Section 3.01 are sometimes
referred to herein collectively as the "Software Customization
Services."
(d) From and after the date on which Liberty begins to provide
Customer Services with respect to Policies administered by UFL prior to
such date, Liberty shall be responsible for maintaining the UFL
Software used for processing policy administration data with respect to
such Policies, for so long as such UFL Software continues to be used to
process such data.
(e) Liberty agrees that the Software Modifications (and any
modifications thereto) and any other software developed by Liberty as
Additional Services will not be used by Liberty, or permitted to be
used by any other person, for processing policy administration data for
any current issuer of insurance contracts sold through or in connection
with funeral homes as a funding vehicle for pre-need funeral service
contracts ("Pre-Need Policies"). Liberty agrees that it will not
disclose to any current issuer of Pre-Need Policies or any Affiliate of
such issuer, the design or function of any such Software Modifications
or other software developed pursuant to Additional Services: The
provisions of this Section 3.01(e) are intended to retain for UFL the
benefit of the use of the Software Modifications and any software
developed by Liberty pursuant to Additional Services within the
industry issuing Pre-Need Policies. Nothing contained in this Section
3.01(e) is intended to prevent Liberty from independently developing
software pursuant to an independent request by a current issuer and/or
marketer of Pre-Need Policies for purposes of processing policy
administration data for such issuer or for servicing closed blocks of
Pre-Need Policies.
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3.02 Data Conversion Services. Beginning on the Effective
Date, Liberty shall commence planning and analysis of the conversion of all of
the AFA, Brookings and Pan Western Data and UFL policy administration data to a
format appropriate for processing by Liberty at the Data Center as described
further in Exhibit B (the "Data Conversion Services") for the fees set forth in
Exhibit Q. Liberty shall complete the Data Conversion Services in accordance
with the conversion Schedule also set forth in Exhibit B. The parties
acknowledge that the description and definition of the Data Conversion Services
and the Schedule therefor attached hereto as Exhibit B are general in nature and
the parties agree to negotiate in good faith to agree on or before January 26,
1998 upon the Project Plan in accordance with the procedures outlined under the
heading "UFL Conversion and Transition Analysis Phase" in Exhibit A, which plan
will define the Data Conversion Services and Schedule therefor in greater
detail. Upon approval of the Project Plan by UFL and Liberty, the final Data
Conversion Services and the Schedule therefor included in the Project Plan shall
supplement the general Data Conversion Services and the Schedule therefor set
forth in Exhibit B.
3.03 Data Processing Services. Beginning on the date specified
in the Project Plan, Liberty shall provide to UFL the services described in
Exhibit C (the "Data Processing Services") at the levels of service set forth in
Exhibit D (the "Data Processing Performance Standards") for the Base Fees set
forth in Exhibit Q; provided, however, that Liberty shall not be bound by the
Data Processing Performance Standards until it has commenced performing the Data
Processing Services from its Data Center. For so long as Liberty shall agree to
provide Data Processing Services with respect to all Policies maintained by UFL
and, if the Closing has occurred, PNL under this Agreement,. Liberty shall be
the exclusive provider of Data Processing Services for UFL and, if the Closing
has occurred, PNL; provided, however, in the event that UFL and Liberty are
unable to agree upon terms on which Policies other than those listed on Exhibit
U or maintained by PNL on the Effective Date will be processed by Liberty under
this Agreement, UFL and, if the Closing has occurred, PNL shall be entitled to
have all such Policies as to which no such agreement is reached processed by a
party other than Liberty.
3.04 Customer Services. Liberty shall provide to UFL the
services described in Exhibit E (the "Customer Services") commencing, with
respect to all UFL Policies, on April 1, 1998 and, with respect to all PNL
Policies, on the date of Closing, at the levels of service set forth in Exhibit
F (the "Customer Service Performance Standards") for the Base Fees set forth in
Exhibit Q. For so long as Liberty shall agree to provide Customer Services with
respect to all Policies maintained by UFL and, if the Closing has occurred, PNL
under this Agreement, Liberty shall be the exclusive provider of Customer
Services for UFL and, if the Closing has occurred, PNL; provided, however, in
the event that UFL and Liberty are unable to agree upon terms on which Policies
other than those listed on Exhibit U or maintained by PNL on the Effective Date
will be processed by Liberty under this Agreement, UFL and, if the Closing has
occurred, PNL shall be entitled to have all such Policies as to which no such
agreement is reached processed by a party other than Liberty.
3.05 Special Projects. To the extent that the Data Processing
Services to be provided under this Agreement require less than the number of
system development professional FTEs required by Section 3.10 below, Liberty
will apply such additional resources (up to the number of FTEs required by
Section 3.10), at no additional charge, to projects requested and defined from
time to time by UFL. This FTE level will be adjusted as described in Section
3.10.
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3.06 Additional Services. UFL may from time to time request
that Liberty perform services (1) outside the scope of the Base Services or (2)
to augment or supplement the Base Services (the "Additional Services"). As to
all requests for Additional Services that are reasonably related to services
then being provided by Liberty to UFL under this Agreement or otherwise
reasonably related to the business of UFL or PNL or the logical extensions of
such businesses, Liberty will agree to provide the Additional Services, subject
to the reasonable availability of resources within Liberty to perform such
services at the time requested and subject to the remaining provisions of this
Section 3.06. Upon receipt of such a request from UFL, Liberty shall inform UFL
as soon as practicable after receipt of UFL's request as to whether Liberty is
able (subject to provisions of the immediately preceding sentence) to perform
such Additional Services and, if so, Liberty shall provide UFL with (a) a
written description of the work Liberty anticipates performing in connection
with such Additional Services, (b) a Schedule for commencing and completing the
Additional Services and (c) Liberty's charges for such Additional Services (the
"Additional Service Fees") which charges shall be calculated using those rates
set forth on Exhibit G (the "Standard Rates"). In the event UFL elects to have
Liberty perform the Additional Services, UFL and Liberty shall execute a written
amendment to this Agreement in substantially the form set forth in Exhibit H
(the "Amendment for Additional Services"). Liberty shall not begin performing
any Additional Services until an Amendment for Additional Services in respect of
such Additional Services has been executed on behalf of UFL, as agreed by UFL
and Liberty and in compliance with any applicable Third Party software
restrictions. Any and all Modified Software developed by Liberty pursuant to
Additional Services shall be subject to an acceptance procedure substantially
similar to those procedures set forth in Section 3.01(b).
3.07 Data Center. The Data Processing Services and the
Customer Services shall be provided from (1) the data centers identified in
Exhibit I and (2) any other location selected by Liberty and identified in
advance to UFL ((1) and (2) collectively, the "Data Center"). Liberty may
provide the Data Processing Services or the Customer Services from another
location or locations which meet the security provisions of Section 3.08 and may
provide the Data Processing Services and the Customer Services subject to a
Disaster Recovery Plan which meets the standards set forth in Section 7.01, as
long as Liberty continues to perform services in accordance with the Performance
Standards.
3.08 Data Center Security Procedures. During the Term and the
Renewal Term, Liberty shall maintain and enforce security procedures at the Data
Center that are at least as rigorous as those security procedures in effect at
the Data Center as of the date of this Agreement, which security procedures are
set forth in Exhibit J (the "Security Procedures").
3.09 Account Managers. Liberty shall appoint Xxxx Xxxxxxx as
the individual who shall be in charge of the Base Services and the Additional
Services (the "Account Manager"). In addition, Liberty shall appoint Xxxxx
Xxxxxx as the program manager responsible for supervision of all technical
aspects of the Software Customization Services, Data Conversion Services and
Data Processing Services. Liberty shall (1) assign Xx. Xxxxxx to work on a
dedicated full-time, first priority basis under this Agreement, (2) provide UFL
with as much notice as possible of any change in the identity of the Account
Manager, (3) not reassign the Account Manager during the first year of the Term,
or Xx. Xxxxxx at any time prior to the
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completion of the Data Conversion Services, and (4) use its best efforts to
cause any transition of either Xx. Xxxxxx or the Account Manager to be orderly
and efficient.
3.10 Account Staff. During the term of the Agreement, Liberty
shall maintain sufficient staff to provide, and management to supervise, the
Base Services (the "Account Staff"), which staffing shall at a minimum include
five (5) system development professional full-time equivalents ("FTEs"),
inclusive of appropriate management and supervision, assigned to the UFL account
with a total of 1650 hours per year per FTE of time available to work on Base
Services and Special Projects. The five (5) FTE level will be increased or
decreased appropriately as reasonably required to maintain the Data Processing
Performance Standards; provided, however, to the extent not required in order to
maintain the Data Processing Performance Standards, the number of FTEs may be
decreased (in increments of 0.1 FTEs) pro rata from five (5) FTEs, based on
aggregate Monthly Processing Fees and Monthly New Business Fees at an annualized
rate of $XXX, to a minimum of three (3) FTEs, based on aggregate Monthly Data
Processing Fees and Monthly New Business Fees at an annualized rate of $XXX.
Adjustments in the number of FTEs available pursuant to this Section 3.10 shall
be made on a quarterly basis based upon aggregate Monthly Processing Fees and
Monthly New Business Fees paid in the immediately preceding calendar quarter.
UFL may at any time and with reasonable cause require Liberty to promptly remove
a specified employee of Liberty from the Account Staff currently in place. Prior
to hiring or otherwise engaging any person who would be an exempt employee who
will (1) replace any member of the Account Staff directly assigned to providing
the Base Services or the Additional Services, including any Account Manager, or
(2) otherwise perform functions predominantly in connection with the Base
Services ((1) and (2), each a "Candidate"), Liberty shall provide UFL with (a) a
summary of the Candidate's qualifications, (b) a description of the tasks the
Candidate is to perform, and (c) an opportunity to consult with Liberty
regarding the Candidate. Upon review of the Candidate's qualifications, UFL may
object to the Candidate on the grounds that the Candidate is not sufficiently
qualified to perform the contemplated tasks. Notwithstanding any such objection,
Liberty may hire the Candidate and assign the Candidate to the Account Staff. If
within ninety (90) days of the first day the Candidate performs a significant
task in connection with the Base Services or the Additional Services and UFL (i)
notifies Liberty that the Candidate's performance is inadequate and (ii)
provides reasonable documentation to support this conclusion, Liberty shall
remove the Candidate from the Account Staff.
3.11 Conduct of Liberty's Personnel. While on UFL's premises,
Liberty's personnel shall (1) observe the rules and requirements of UFL
regarding personal or professional conduct and appearance and (2) otherwise
conduct themselves in a businesslike manner. In the event that UFL determines
that a particular employee or employees of Liberty is not conducting himself,
herself, or themselves appropriately, UFL may notify Liberty of, and provide
Liberty documentation of such fact and Liberty shall promptly remove him, her or
them from the Account Staff.
3.12 Performance Standards.
(a) After receipt of notice from UFL in respect of Liberty's
failure to provide the Data Processing Services and Customer Services
in accordance with the Performance Standards, Liberty shall, within
five (5) business days: (i) perform a root-cause analysis
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to identify the cause of such failure, and (ii) provide UFL with a
report detailing the cause of, and procedure for correcting, such
failure, which report shall address how the procedure for correcting
the failure will prevent recurrences. Liberty shall then (x) use
commercially reasonable efforts to correct the problem as soon as
practicable, and (y) take all reasonable measures to prevent recurrence
of the failure.
(b) The Management Committee shall review during the last
quarter of every calendar year and may adjust, as appropriate, the
Performance Standards for the next succeeding calendar year and reflect
any necessary adjustment in the Base Fees resulting from any such
change in the Performance Standards; provided, however, that any such
adjustment in the Base Fees or change in the Performance Standard must
be embodied in a written amendment to this Agreement executed by UFL
and Liberty. In addition, either UFL or Liberty may, at any time upon
notice to the other party, initiate discussions to review and, upon
agreement by the Management Committee, adjust any Performance Standards
which such party in good faith believes is inappropriate at that time.
3.13 Changes.
(a) Changes in any Base Services or Additional Services shall
become effective only when a written change request is executed by
authorized representatives of both parties.
(b) Requests for changes in any Base Services or Additional
Services shall be treated by the parties in the same manner as requests
for Additional Services.
3.14 Acquisition of PNL by Fortis. From and after the Closing,
all insurance and other policies, data, customers, and other assets of PNL
shall, for all purposes of this Agreement and the rights and obligations of the
parties hereunder, be deemed to be insurance and other policies, data, customers
and other assets of UFL (i.e., all data and information of PNL of the types
included in UFL Data shall become, and be deemed to be for all purposes of this
Agreement, UFL Data). From and after the Closing, the obligations of Liberty
under this Agreement with respect to Data Processing Services and Customer
Services shall apply equally to Policies, data, customers and other assets of
the type covered by this Agreement.
3.15 Other Base Services.
(a) Liberty agrees to provide the Customer Services in
accordance with standard insurance industry practice, conducting itself
in a manner which complies either with the Model Statute for Third
Party Administrators as promulgated by the National Association of
Insurance Commissioners ("Model Statute"), as the Model Statute is
amended from time to time, or, alternatively, in a manner which
complies with appropriate state regulations or legislation governing
the Customer Services to be provided herein.
(b) Liberty agrees that all claims paid by Liberty from funds
collected on behalf of UFL or PNL shall be paid only on checks or
drafts of UFL or PNL, respectively, and as authorized by UFL or PNL,
respectively.
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(c) To the extent required by applicable state law, Liberty
agrees to provide a written notice to the insureds or policyholders, as
mutually agreed upon by Liberty and UFL, advising the UFL insureds or
policyholders and, after Closing, the UFL and PNL insureds or
policyholders, of the identity of and relationship among Liberty, the
insured and UFL or PNL. The cost of such notices, however, shall be
borne solely by UFL as pass-through costs. Liberty agrees that if
Liberty collects funds from the insured or policyholder of UFL or,
after Closing, UFL or PNL, Liberty will provide the insured or
policyholder with written notice of the premium charged by UFL or PNL
for such insurance coverage.
(d) Liberty agrees that information which identifies an
individual covered by an ERISA plan is confidential, and that all such
information furnished by UFL or, after Closing, by UFL or PNL to
Liberty hereunder is confidential. During the time such ERISA
confidential information is in Liberty's custody or control, Liberty
agrees to hold such information in compliance with Article 10 and to
take all reasonable precautions to prevent disclosure or use of the
ERISA confidential information for a purpose unrelated to the
administration of the ERISA plan. Liberty agrees to disclose such ERISA
confidential information only: (a) in response to a court order; (b)
for an examination conducted by the applicable insurance regulator for
an audit or investigation conducted under ERISA; (c) to or at the
request of UFL or, after Closing, of UFL or PNL; or (d) with the
written consent of the identified individual or his or her legal
representative.
(e) Liberty agrees to comply with the bond and insurance
requirements of each state in which Liberty administers claims for UFL
or, after Closing, UFL or PNL.
(f) Liberty agrees to establish and maintain facilities and
procedures for the safekeeping of UFL's and, after Closing, UFL's and
PNL's Policy forms, check forms and facsimile signature imprinting
devices, if any, and all other documents, reports, records, books,
files, and other materials relative to this Agreement and to the Base
Services and the Additional Services to be provided by Liberty
hereunder, and all transactions between Liberty, UFL and, after
Closing, UFL and PNL, and UFL's and PNL's insureds, which shall include
the identity and addresses of policyholders and certificate holders
(collectively, "Books and Records"). Except as otherwise provided by
regulatory authority, Liberty agrees to maintain the Books and Records
of UFL and, after Closing, UFL and PNL at either UFL's or PNL's place
of operations, at Liberty's principal administrative office, or at such
other designated site mutually agreed upon, for the duration of this
Agreement and for a period of six (6) years thereafter, unless
otherwise instructed by UFL or PNL, or, at UFL's or PNL's request,
shall transfer such Books and Records to UFL or UFL's designee, or to
PNL or PNL's designee, respectively, at UFL's and PNL's respective
cost. Such retention period for Books and Records may be extended by
UFL or PNL if required by regulatory or taxing authority. Any
additional expense associated with the longer retention period shall be
borne by UFL or PNL.
(g) Liberty agrees that UFL and, after Closing, UFL and PNL,
and any applicable insurance or pre-need regulator, shall have
reasonable access, during Liberty's normal business hours, to all
pertinent Books and Records of UFL and PNL which relate to the
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Base Services to be performed under this Agreement for the purpose of
examination, audit and inspection, in a form usable by them. UFL and,
after Closing, UFL and PNL, and any applicable insurance or pre-need
regulator, shall keep confidential any of Liberty's confidential
information or trade secrets contained in the Books and Records of UFL
or PNL, provided that the applicable insurance or pre-need regulator
may use such information in a proceeding instituted against UFL, PNL or
Liberty.
(h) In addition to the provisions of Article 9, Liberty agrees
that UFL and, after Closing, UFL and PNL, or each of its duly
authorized independent auditors, shall have the right under this
Agreement to perform on-site audits of the Books and Records of UFL or
PNL, respectively, directly pertaining to the Policies for which
Liberty is performing the Base Services and the Additional Services
under this Agreement, in accordance with reasonable procedures and at
reasonable frequencies.
(i) In addition to the provisions of Article 10, Liberty, and
any employee, agent, attorney, accountant, advisor, consultant, or
other representative of Liberty with a need to know, shall keep UFL's
and, after Closing, UFL's and PNL's confidential data and confidential
information to which Liberty is directly accessible in the
implementation and performance of the Base Services and the Additional
Services in strictest confidence and, except for disclosures strictly
required by public agencies having jurisdiction over Liberty or UFL or
PNL or made as required by law or applicable regulation, will not
disclose any such data and/or information to third parties without the
express written consent of UFL or PNL, respectively.
(j) Liberty agrees that Liberty shall be responsible for the
following functions:
(1) Liberty agrees to maintain detailed books and
records that reflect all administered transactions specifically in regard to
premiums for the Policies, agents' commissions for the Policies, Liberty's
administrator's fees, contributions received and deposited on behalf of UFL and,
after Closing, UFL and PNL, claims paid on behalf of UFL and, after Closing, UFL
and PNL, and authorized expenses paid on behalf of UFL and, after Closing, UFL
and PNL.
(2) The detailed preparation, journalizing, and
posting of Books and Records shall be made in accordance with the terms and
conditions of this Agreement, and, if applicable, in accordance with ERISA, as
amended, and in such a manner as to enable UFL and, after Closing, UFL and PNL
to complete its respective annual financial statement in accordance with the
National Association of Insurance Commissioners' guidelines, as amended, or
other reports as may be required by any applicable law or insurance or pre-need
regulatory authority.
(3) Liberty shall maintain a cash receipts register
of all premiums and contributions received.
(4) The description of a disbursement shall be in
sufficient detail to identify the source document the purpose of the
disbursement; and shall include all of the following: (i) the check number; (ii)
the date of disbursement; (iii) the person to whom the disbursement was made;
(iv) the amount disbursed; and (v) ledger account number. If the
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amount disbursed does not agree with the amount billed or authorized, Liberty
shall prepare a written record as to the application for the disbursement. If
the disbursement is for the earned administrative fee or commission, the
disbursement shall be supported by evidential matter. The evidential matter must
be referenced in the journal entry so that it may be traced for verification.
(5) Liberty shall prepare and maintain monthly
financial institution account reconciliations if such service is requested by
UFL or PNL as part of the Base Services or as an Additional Service.
(6) Liberty shall render accounts to UFL and, after
Closing, to UFL and PNL detailing all transactions and remit all money due to
UFL and, after Closing, to UFL or PNL, under this Agreement at least monthly.
Liberty will not less often than monthly render an accounting to UFL and, after
Closing, to UFL and PNL, detailing all transactions performed by Liberty
pertaining to the Policies for which Liberty is performing Base Services and
Additional Services under this Agreement.
(k) Liberty agrees that it will maintain complaint records and
logs for UFL and, after Closing, UFL and PNL, as required by respective
insurance regulatory authorities. Liberty will follow prescribed UFL
standards for response to such complaints and for other complaints
which are not received through an insurance regulatory authority.
Liberty will make available all records and logs required in connection
with any audits or examinations of UFL and, after Closing, UFL and PNL.
Liberty will notify UFL and, after Closing, UFL and PNL, of any
suspected employee or agent fraud or defalcations within forty-eight
(48) hours of Liberty becoming aware of such suspected problem. Liberty
will promptly notify UFL and, after Closing, UFL and PNL, of any
threatened or filed lawsuits which have any connection to the Policies
or to this Agreement. Liberty will provide UFL and, after Closing, UFL
and PNL, with a copy of any proposed written response to an insurance
regulatory authority complaint on behalf of UFL or PNL, and UFL or PNL,
as the case may be, shall either approve said proposed written
response or make suggested changes within forty eight (48) hours of
receipt of said proposed written response in order to facilitate a
timely response to the insurance regulatory authority on behalf of UFL
or PNL, respectively.
(l) Notwithstanding anything to the contrary herein, Liberty
shall not receive commissions, fees, or charges contingent upon savings
obtained in the adjustment, settlement and payment of losses covered by
UFL's obligations, and, after Closing, UFL's and PNL's obligations, but
Liberty may receive compensation based on premiums or charges collected
or the number of claims paid or processed. Liberty shall not receive
from UFL and, after Closing, UFL and PNL, or any covered individual any
compensation or other payments except as expressly set forth in this
Agreement.
(m) In addition to the provisions of Article 10, Liberty shall
not use any confidential information for any purpose other than
providing the Base Services and the Additional Services to UFL or,
after Closing, PNL.
(n) Except as specifically granted in this Agreement, this
Agreement grants to Liberty no right to use, possess, or reproduce any
products or customer lists or other
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confidential material of UFL or any UFL affiliate company or, after
Closing, UFL or PNL or any UFL or PNL affiliate company.
(o) Upon termination of this Agreement, any monies held by
Liberty on behalf of UFL or PNL and owing to UFL or PNL shall
immediately become due and payable and shall be forwarded to UFL or
PNL, as the case may be. Thereafter, any additional funds of UFL or PNL
received by Liberty shall immediately be sent to UFL or PNL, as the
case may be.
(p) Any policies, certificates, booklets, termination notices
or other written communications delivered by UFL or PNL to Liberty for
delivery to UFL or PNL policyholders shall be delivered by Liberty
promptly after receipt of instructions from UFL or PNL to do so.
(q) Payments received by Liberty for insurance on behalf of
UFL or PNL shall be deemed received by UFL or PNL, respectively. The
payment of return premiums or claims by UFL or PNL to Liberty is not
considered payment to UFL or PNL or claimant until the payments are
received by UFL or PNL or claimant.
(r) Liberty may only use advertising pertaining to the
business of UFL or PNL which has been approved in writing by UFL or
PNL, and which has been approved by state regulatory authorities as
required by applicable insurance or pre-need laws.
(s) In performing the Base Services and the Additional
Services, Liberty must use the underwriting standards which are set by
UFL or PNL in writing.
(t) Notwithstanding any other provision in this Agreement to
the contrary, whenever a policy is issued to a trustee, a copy of the
trust agreement and any amendments to it must be furnished to UFL or
PNL by Liberty and be retained as part of the official records of both
Liberty and UFL or PNL, respectively, for the duration of the policy
and for five (5) years thereafter.
(u) All insurance charges, premiums, returned premiums, or
other money collected by Liberty on behalf of UFL or PNL shall be held
by Liberty in a fiduciary capacity and deposited in an account
established and maintained by Liberty on behalf of UFL or PNL,
respectively, or such other account as UFL or PNL may designate.
3.16 Provisions Related to Certain Insurance Laws. Liberty and
UFL and, after Closing, Liberty, UFL and PNL, each agree as follows:
(a) Pursuant to A.R.S. Section 20-485.01.E of the Insurance
Laws of the State of Arizona which specifies that UFL must provide
fifteen (15) days written notice to the Director of Insurance for the
State of Arizona in the event of termination, cancellation or any other
change in the Agreement, Liberty and UFL and, after Closing, Liberty,
UFL and PNL, all agree to provide such notice in compliance therewith
in the event any of the services provided under this Agreement are
provided in ARIZONA.
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(b) Liberty and UFL and, after Closing, Liberty, UFL and PNL,
all agree as follows in the event any of the services provided under
this Agreement are provided in GEORGIA: Liberty agrees to maintain for
UFL and PNL, at Liberty's principal administrative office, a complete
file of all UFL's and PNL's advertisements, regardless of by whom
written, created or designed, which are used by UFL and PNL,
respectively, with respect to policyholders or potential policyholders
of UFL and PNL located in Georgia, with a notation indicating the
manner and extent of distribution and the form number of any Policy
advertised. Such file shall be subject to inspection by the Office of
Commissioner of Insurance of the State of Georgia. All such
advertisements shall be maintained in said file for a period of not
less than five (5) years. UFL and PNL shall each prepare, with
Liberty's assistance, and Liberty shall, on behalf of UFL and PNL,
respectively, file with the Commissioner of Insurance of the State of
Georgia on or before March 1 in each year, UFL's and PNL's
certification executed by an authorized officer of UFL and PNL,
respectively, wherein it is stated that to the best of his knowledge,
information and belief, the advertisements disseminated by Liberty, on
behalf of UFL and PNL, during the preceding calendar year complied, or
were made to comply in all respects, with the advertising regulations
of GEORGIA.
(c) Pursuant to Sections 41-905, 41-909, 41-910, and 41-911 of
the Idaho Code, Liberty and UFL and, after Closing, Liberty, UFL and
PNL, all agree as follows in the event any of the services provided
under this Agreement are provided in IDAHO:
(1) Notwithstanding any other provision in this
Agreement to the contrary, Liberty may only use advertising pertaining to the
business underwritten by UFL and PNL which has been approved in writing by UFL
and PNL, respectively. UFL and PNL shall each have the prior approval of the
Director of Insurance before approving advertising for use by Liberty.
(2) Notwithstanding any other provision in this
Agreement to the contrary, any policies, certificates, booklets, termination
notices or other written communications delivered by UFL or PNL to Liberty for
delivery to its respective policyholders shall be delivered by Liberty promptly
after receipt of instructions from UFL or PNL to do so.
(3) Notwithstanding any other provision in this
Agreement to the contrary, compensation to Liberty for any Policies where
Liberty adjusts or settles claims shall in no way be contingent on a claim
experience.
(4) Notwithstanding any other provision in this
Agreement to the contrary, Liberty will retain records of UFL and PNL,
respectively, for a period of six (6) years.
(5) Notwithstanding any other provision in this
Agreement to the contrary, Liberty shall be bonded in an amount not less than
ten percent (10%) of the amount of total funds handled with a minimum bonding
amount of $5,000. For purposes of fixing the amount of such bond, the amount of
funds handled shall be determined by the total funds handled by Liberty during
the preceding year, or if no funds were handled during the preceding year, the
amount of funds reasonably estimated to be handled during the current calendar
year by Liberty. Such bond shall provide protection to UFL and PNL,
respectively, against loss by
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reason of acts of fraud or dishonesty and may include individual bonds or
Schedule or blanket forms of bonds. Only one (1) such bond shall be required of
Liberty for all insureds which utilize the services of Liberty, unless provided
otherwise in this Agreement or any amendments thereto.
(d) Pursuant to Section 00-00-000, Montana Code Annotated,
Liberty and UFL and, after Closing, Liberty, UFL and PNL, all agree as
follows in the event any of the services provided under this Agreement
are provided in MONTANA:
(1) Notwithstanding any other provision in this
Agreement to the contrary, payments received by Liberty for insurance on behalf
of UFL or PNL, respectively, shall be deemed received by UFL or PNL,
respectively. The payment of return premiums or claims by UFL or PNL to Liberty
is not considered payment to UFL or PNL or claimant until the payments are
received by UFL or PNL or claimant.
(2) Notwithstanding any other provision in this
Agreement to the contrary, Liberty may only use advertising pertaining to the
business of UFL or PNL which has been approved in writing by UFL or PNL,
respectively.
(3) Notwithstanding any other provision in this
Agreement to the contrary, underwriting standards are set by UFL or PNL,
respectively.
(4) Notwithstanding any other provision in this
Agreement to the contrary, any policies, certificates, booklets, termination
notices, or other written communications delivered by UFL or PNL to Liberty for
delivery to UFL's or PNL's policyholders shall be delivered by Liberty promptly
after receipt of instructions from UFL or PNL to do so.
(5) Notwithstanding any other provision in this
Agreement to the contrary, this Agreement must be retained as part of the
official records of both Liberty and UFL and PNL, respectively, for the duration
of this Agreement and for five (5) years thereafter.
(6) Notwithstanding any other provision in this
Agreement to the contrary, whenever a policy is issued to a trustee, a copy of
the trust agreement and any amendments to it must be furnished to UFL or PNL by
Liberty and be retained as part of the official records of both Liberty and UFL
or PNL for the duration of the policy and for five (5) years thereafter.
(7) Notwithstanding any other provision in this
Agreement to the contrary, with respect to any policies where Liberty adjusts or
settles claims, the compensation to Liberty with regard to the policies shall in
no way be contingent on claim experience, but may be based on premiums or
charges collected or number of claims paid or processed.
(e) Pursuant to N.R.S. 683A.0857 of the Insurance Laws of the
State of Nevada, Liberty and UFL and, after Closing, Liberty, UFL and
PNL, all agree as follows in the event any of the services provided
under this Agreement are provided in NEVADA:
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(1) Notwithstanding any other provision in this
Agreement to the contrary, Liberty will retain records of UFL and PNL for a
period of at least five (5) years.
(2) Notwithstanding any other provision in this
Agreement to the contrary, Liberty will hold in a fiduciary capacity all
insurance charges or premiums collected by it on behalf of or for UFL or PNL
with respect to insureds, and return premiums received from UFL or PNL,
respectively. Liberty shall comply with all applicable fiduciary account
statutes and regulations. Liberty will immediately (and in any event within
fifteen days) remit such funds to the person or persons entitled thereto, or
shall promptly (and in any event within fifteen days) deposit them in a
fiduciary account established and maintained by Liberty in the name of UFL or
PNL, respectively, which fiduciary account, with respect to funds relating to
Nevada policyholders, shall be deposited in an account located at a financial
institution located in Nevada. Liberty shall require the bank in which such
fiduciary account is maintained to keep records clearly recording the deposits
in and withdrawals from such account on behalf of or for each insurer for which
Liberty may collect charges or premiums. Liberty shall promptly obtain and keep
copies of all such records and, upon request of UFL or PNL, respectively,
furnish UFL or PNL with copies of such records pertaining to deposits and
withdrawals on behalf of or for UFL or PNL, respectively. Liberty may make
withdrawals from such account for:
i. remittance to UFL or PNL when entitled
thereto;
ii. transfer to and deposit in a claims
paying account, with claims to be paid as provided in this Agreement; or
iii. remittance of return premiums to the
person or persons entitled thereto.
(f) Pursuant to Chapter IV of the Wyoming Insurance
Regulations, Liberty and UFL and, after Closing, Liberty, UFL and PNL,
all agree as follows in the event any of the services provided under
this Agreement are provided in WYOMING:
(1) Notwithstanding any other provision in this
Agreement to the contrary, payments received by Liberty for insurance on behalf
of UFL or PNL, respectively shall be deemed received by UFL or PNL,
respectively.
(2) Notwithstanding any other provision in this
Agreement to the contrary, Liberty may only use advertising pertaining to UFL or
PNL which has been approved in writing by UFL or PNL, respectively.
(3) Notwithstanding any other provision in this
Agreement to the contrary, underwriting standards are to be set by UFL and PNL,
respectively.
(4) Notwithstanding any other provision in this
Agreement to the contrary, withdrawals from any bank account shall be made for
the following items: (i) remittance to UFL or PNL, respectively; (ii) deposit
into account for UFL or PNL, respectively; (iii) transfer to or deposit in
claims paying account; (iv) payment to a group policy; (v) payment to Liberty
for its commissions (if any); and (vi) remittance of returned premiums to
persons.
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(5) Notwithstanding any other provision in this
Agreement to the contrary, Liberty may only act in the capacity in which it is
licensed.
(6) Notwithstanding any other provision in this
Agreement to the contrary, when Liberty is used as an administrator, UFL and
PNL, respectively, shall each provide such information in writing to the
insured.
3.17 Certain Agreements Regarding Benefit Plans and Other
Employee Matters.
(a) For purposes of this section, "Company Employee" means
each individual employed by UFL or any of its Affiliates ("Prior
Employer") at the Effective Date who is hired by Liberty in connection
with this Agreement prior to the thirtieth (30th) day following the
date on which servicing of the UFL Policies is assumed by Liberty.
(b) With respect to each Company Employee, service with the
Prior Employer shall be counted for purposes of determining whether any
period required for eligibility to participate or to vest in benefits
is satisfied under Liberty's benefit plans to the same extent such
service was counted in any similar type of benefit plan of the Prior
Employer under which such Company Employee was covered at the Effective
Date including, without limitation, carry over of accumulated and
unused sick leave up to 400 hours or vacation, in each case as of date
of termination of employment with the Prior Employer and provided,
however, that any such service will be credited only up to 10 years
after age 40 for purposes of eligibility for the post-retirement
medical plan coverage of Liberty and for eligibility for early
retirement under The Liberty Corporation Retirement and Savings Plan
(as amended and restated effective April 1, 1997). For purposes of
deductible limits and out of pocket annual maximums under their welfare
plans, Liberty shall credit each Company Employee with the actual
applicable deductibles satisfied and actual amounts credited toward out
of pocket annual maximums, in each case in the year in which hire of
such Company Employee occurs, under the same type of benefit plan in
which such Company Employee is participating as of date of termination
of employment with the Prior Employer. For each Company Employee,
Liberty group health plans shall not exclude coverage for pre-existing
conditions.
ARTICLE 3A.
CERTAIN COVENANTS OF UFL AND,
AFTER CLOSING, UFL and PNL
3A.01 UFL and, after Closing, UFL and PNL, each acknowledges
that Liberty assumes no Insurance Risk for any of UFL's or PNL's Policies,
policyholders, certificateholders, and insureds. UFL and, after Closing, UFL and
PNL, shall each retain the Insurance Risk for all of UFL's and PNL's Policies,
policyholders, certificateholders, and insureds.
3A.02 UFL agrees to provide to Liberty, at UFL's sole expense,
access to UFL's employees and independent contractors that may be required in
the performance of the Base Services.
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3A.03 UFL and, after Closing, UFL and PNL each agrees that it shall
be solely responsible for determining the benefits, premium rates, underwriting
standards and criteria, claims payment procedures and claims settlement
procedures applicable to coverage of UFL's and PNL's Policies, respectively, for
which the Base Services and the Additional Services are to be performed by
Liberty, and for securing reinsurance for the Policies, if any is necessary. UFL
and, after Closing, UFL and PNL shall each provide Liberty, in writing, with all
rules, procedures, guidelines, and instructions pertaining to these matters.
3A.04 UFL and, after Closing, UFL and PNL each agrees that it shall
be responsible for approving all written responses to insurance or pre-need
regulators relating to the Policies or to acts or omissions of agents who sold
or serviced the Policies. UFL and, after Closing, UFL and PNL each agrees that
it will approve or revise any Liberty drafted responses to insurance or pre-need
regulators within forty-eight (48) hours of receipt of said proposed written
response from Liberty in order to facilitate a timely response on behalf of UFL
or PNL to the insurance or pre-need regulator.
3A.05 UFL and, after Closing, UFL and PNL each agrees that it shall
be responsible for filing and maintaining anti-fraud plans in the jurisdictions
requiring such anti-fraud plans to be filed, whether currently required or
required during the term of this Agreement. Liberty shall cooperate with UFL in
UFL's efforts to prepare any such required anti-fraud plan.
3A.06 UFL agrees to allow Liberty to offer employment to those of
UFL's employees identified by UFL in writing in a list provided to Liberty by
UFL on or before December 1, 1997, to assist Liberty in the performance of the
Base Services, and will cooperate with Liberty to support an orderly transition
of the Customer Services, the Data Conversion Services, the Data Processing
Services, the Software Customization Services and the Software Modifications.
UFL agrees that UFL shall bear all costs and expenses associated with any
employment termination costs, severance costs and costs of employee benefits for
UFL's employees who are displaced as a result of this Agreement. Liberty agrees
to provide employees hired from UFL with a benefit program consistent with
Liberty's then current benefit programs.
3A.07 UFL and, after Closing, UFL and PNL each agrees that it shall
be responsible for fulfilling all lawful obligations provided for under the
Policies which are serviced by Liberty pursuant to this Agreement, regardless of
any dispute between UFL, or PNL, and Liberty.
3A.08 UFL and, after Closing, UFL and PNL, each agrees that Liberty
shall have the right, as Liberty deems necessary from time to time, to audit
UFL-provided facts and figures and, after Closing, UFL- and PNL-provided facts
and figures, in order to independently verify any information provided by either
UFL or PNL. Any such audit shall be conducted by Liberty during UFL's or PNL's
normal business hours and at Liberty's sole expense. All such audits pursuant to
this Section 3A.08 shall be conducted in such a manner so as not to unreasonably
interfere with UFL's or PNL's normal operations. While on UFL's or PNL's
premises, Liberty's personnel shall (1) observe the rules and requirements of
UFL or PNL regarding personal or professional conduct and appearance and (2)
otherwise conduct themselves in a businesslike manner. In the event that UFL or
PNL determines that a particular employee or employees of Liberty is not
conducting himself, herself or themselves appropriately, UFL or PNL may notify
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Liberty of, and provide Liberty documentation of, such fact and Liberty shall
promptly correct such conduct to UFL's or PNL's reasonable satisfaction or
remove him, her or them from UFL's or PNL's premises. All Confidential
Information of UFL or PNL obtained as a result of any monitoring, audits or
inspections pursuant to this Section 3A.08 shall be held by Liberty in
accordance with the provisions of Article 10.
3A.09 UFL and, after Closing, UFL and PNL, each agrees that fees
specified for the Base Services may be increased by Liberty in the event that
major legislative and/or regulatory changes affecting the Policies which occur
during the term of this Agreement and which are not currently contemplated by
the parties cause Liberty's cost of performing the Base Services to result in
unforeseen increases; provided that such increase shall not exceed XXX.
ARTICLE 4
SYSTEMS AND PROPRIETARY RIGHTS
4.01 UFL Software. UFL hereby grants to Liberty, at no cost to
Liberty, a nonexclusive, royalty-free, non-transferable right and license to
use, copy, maintain and adapt the software listed in Exhibit L, together with
any and all associated documentation (the "UFL Software") solely to provide the
Base Services and the Additional Services, subject to any and all applicable
license restrictions of UFL's third-party software licensors. To the extent
necessary, UFL shall, at its expense, obtain from applicable third-party
software licensors, the right of Liberty to use and modify the UFL Software as a
third party consultant to UFL as necessary to perform the Base Services. Upon
expiration or termination of this Agreement for any reason or the end of
Liberty's need to use portions of the UFL Software, the applicable rights
granted to Liberty in this Section 4.01 immediately shall, except as necessary
for Liberty to carry out its obligations under Section 13.07(1) of this
Agreement revert to UFL, and Liberty shall, except as necessary for Liberty to
carry out its obligations under Section 13.07(1) of this Agreement, (1) deliver
to UFL, a current copy of all the UFL Software in the form in use as of the date
of such expiration or termination, (2) destroy or erase all other copies of the
UFL Software in Liberty's possession, and (3) certify in writing that Liberty
has complied with the obligations of this paragraph. All modifications,
enhancements or other changes in the UFL Software made by or for Liberty shall
be and shall remain the sole and exclusive property of UFL and be included in
the license granted hereby.
4.02 Liberty Software.
(a) License. Liberty hereby grants to UFL, at no cost to UFL, a
perpetual, non-transferable (except as transferability is permitted in
this Agreement), royalty-free, worldwide, non-exclusive license to use,
execute, reproduce, display, perform, modify, prepare derivative works
based upon and sublicense as provided in Section 4.02(c) all software
(including but not limited to modifications or enhancements to software
owned by others) owned by Liberty and used at any time during the Term to
provide the Base Services or Additional Services (the "Liberty Software"),
together with any and all associated documentation for use by UFL in
connection with the Base Services and the Additional Services and,
following the termination of this Agreement, in connection with
performing, or having performed by others, services for UFL's Policies
comparable to the Base Services and the Additional Services. The Liberty
Software as of the date of this Agreement is set forth on Exhibit M. The
software licensed hereunder may not be used by UFL until expiration of
this Agreement or, if earlier, the date UFL sends notice of termination to
Liberty (the "Activation Date") provided that prior to the actual date of
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termination or expiration, the Liberty Software will only be used in a
non-production environment.
(b) Title to Software and Confidentiality. UFL acknowledges that
Liberty represents that the Liberty Software, all copies thereof and all
related documentation, are proprietary to Liberty. Nothing in this
Agreement grants title of the Liberty Software, or any patents,
copyrights, trademarks and trade secrets therein, to UFL. In addition to
the obligations of UFL pursuant to Article 10, UFL shall protect the
confidentiality of all source code and related documentation, object code
and other confidential and proprietary information, trade secrets, and
know-how related to the Liberty Software that UFL receives from Liberty in
connection with the license of the Liberty Software, and UFL shall use
such source code, documentation, object code and other information, trade
secrets and know-how only for the purposes of exercising UFL's rights
under its license to the Liberty Software. UFL shall not sell its license
to use the Liberty Software to a third party (except as permitted by
Section 4.02(c) or 16.01) or disclose any of such code, documentation,
information, trade secrets or know-how, except to those officers, agents,
employees and third-party contractors of UFL and to the officers, agents,
third-party contractors and employees of its Affiliates or subsidiaries
who require access thereto in connection with the exercise of UFL's rights
under its license to the Liberty Software and who have agreed to be bound
by the confidentiality obligations of UFL hereunder. This restriction
shall not apply to any information that is generally available to the
public without restriction other than through the actions of UFL in
violation of its obligations under this Agreement, or is previously known
to, independently developed by, or rightfully acquired by UFL, in each
case without confidentiality restriction.
(c) Transferability: Sublicensing. UFL may, upon notice to Liberty,
assign all of the rights granted under this Section 4.02 with respect to
the Liberty Software, without Liberty's consent, to any Affiliate of UFL,
or to a successor entity pursuant to a merger, corporate reorganization or
sale of all or substantially all of the assets of UFL related to its
pre-need insurance business as long as the subsidiary, affiliate or
successor entity agrees in writing to be bound by the terms and conditions
of this Section 4.02. UFL may sublicense the rights granted under this
Section 4.02 with respect to the Liberty Software to another entity for
the sole purpose of such entity's performing services for UFL that are
substantially similar to the Base Services and Additional Services
performed by Liberty under this Agreement, or reasonably related to such
services or otherwise reasonably related to the business of UFL or PNL;
provided such entity agrees in writing to be bound by obligations
substantially similar to the obligations set forth in this Section 4.02.
(d) Unauthorized Disclosure. UFL shall notify Liberty promptly upon
discovery of any prohibited use or disclosure of the Liberty Software (or
any copies thereof) and/or any related documentation, and shall reasonably
cooperate with Liberty, at UFL's expense, to help Liberty regain
possession of any unauthorized disclosures, which are the fault of UFL,
and prevent the further prohibited use or disclosure.
(e) WARRANTY DISCLAIMER. AFTER THE ACTIVATION DATE, THE LIBERTY
SOFTWARE IS LICENSED "AS IS" AND LIBERTY DISCLAIMS, AND
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UFL HEREBY EXPRESSLY WAIVES, ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AFTER
THE ACTIVATION DATE, LIBERTY DOES NOT WARRANT THAT THE LIBERTY SOFTWARE
WILL MEET UFL'S REQUIREMENTS OR THAT THE OPERATION OF THE LIBERTY SOFTWARE
WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ERRORS IN THE LIBERTY SOFTWARE
WILL BE CORRECTED.
(f) Breach. After the Activation Date, Liberty may terminate the
license to the Liberty Software granted in this Section 4.02, without
prejudice to any other remedy Liberty may have, immediately without
further obligation to UFL, in the event of (i) any material breach by UFL
of any of the conditions of this license as set forth in this Section 4.02
if such breach is not cured within thirty (30) days after notice of such
breach is given to UFL by Liberty, or (ii) UFL making an assignment for
the benefit of its creditors, the filing under any voluntary bankruptcy or
insolvency law, under the reorganization or arrangement provisions of the
United States Bankruptcy Code, or under the provisions of any law of like
import in connection with UFL, or the appointment of a trustee or receiver
for UFL or its property.
4.03 Modified Software.
(a) License. Liberty hereby grants to UFL, at no cost to UFL, a
perpetual, non-transferable (except as transferability is permitted in
this Agreement) royalty-free, worldwide, non-exclusive license to use,
execute, reproduce, display, perform, modify, prepare derivative works
based upon and sublicense as provided in Section 4.03(c), (1) all
enhancements and modifications to the Liberty Software developed by
Liberty pursuant to this Agreement, (2) all enhancements and modifications
to the Third Party Software developed by Liberty pursuant to this
Agreement and (3) all other software or enhancements and modifications
thereto developed by Liberty pursuant to this Agreement (collectively, (1)
through (3), inclusive, shall be referred to as the "Modified Software"),
together with any and all associated documentation for use by UFL in
connection with the Base Services and the Additional Services and,
following the termination of this Agreement, in connection with
performing, or having performed by others, services comparable to the Base
Services and the Additional Services. The software licensed hereunder may
not be used by UFL until expiration of this Agreement or, if earlier, the
Activation Date, provided that prior to the actual date of termination or
expiration, the Modified Software will only be used in a non-production
environment.
(b) Title to Software and Confidentiality. UFL acknowledges that
Liberty represents that the Modified Software, all copies thereof and all
related documentation, are proprietary to Liberty. Nothing in this
Agreement grants title of the Modified Software, or any patents,
trademarks and trade secrets therein, to UFL. In addition to the
obligations of UFL pursuant to Article 10, UFL shall protect the
confidentiality of all source code and related documentation, object code
and other confidential and proprietary information, trade secrets, and
know-how related to the Modified Software that UFL receives from Liberty
in connection with the license of the Liberty Software, and UFL shall use
such source code, documentation, object code and other information,
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trade secrets and know-how only for the purposes of exercising UFL's
rights under its license to the Modified Software. UFL shall not sell its
license to use the Modified Software to a third party (except as permitted
by Section 4.03(c) or 16.01) or disclose any of such code, documentation,
information, trade secrets or know-how, except to those officers, agents,
employees and third-party contractors of UFL and to the officers, agents,
third-party contractors and employees of its Affiliates or subsidiaries
who require access thereto in connection with the exercise of UFL's rights
under its license to the Modified Software. This restriction shall not
apply to any information that is generally available to the public without
restriction other than through the actions of UFL in violation of its
obligations under this Agreement, or is previously known to, independently
developed by, or rightfully acquired by UFL, in each case without
confidentiality restriction.
(c) Transferability: Sublicensing. UFL may, upon notice to Liberty,
assign all of the rights granted under this Section 4.03 with respect to
the Liberty Software, without Liberty's consent, to any Affiliate of UFL,
or to a successor entity pursuant to a merger, corporate reorganization or
sale of all or substantially all of the assets of UFL related to its
pre-need insurance business as long as the subsidiary, affiliate or
successor entity agrees in writing to be bound by the terms and conditions
of this Section 4.03. UFL may sublicense the rights granted under this
Section 4.03 with respect to the Modified Software to any other entity for
the purpose of such entity's performing services for UFL that are
substantially similar to the Base Services and Additional Services
performed by Liberty under this Agreement, or reasonably related to such
services or otherwise reasonably related to the business of UFL or PNL;
provided such entity agrees in writing to be bound by obligations
substantially similar to the obligations set forth in this Section 4.03.
(d) Unauthorized Disclosure. UFL shall notify Liberty promptly upon
discovery of any prohibited use or disclosure of the Modified Software (or
any copies thereof) and/or any related documentation, and shall reasonably
cooperate with Liberty, at UFL's expense, to help Liberty regain
possession of any unauthorized disclosures, which are the fault of UFL,
and prevent the further prohibited use or disclosure.
(e) WARRANTY DISCLAIMER. AFTER THE ACTIVATION DATE, THE MODIFIED
SOFTWARE IS LICENSED "AS IS" AND LIBERTY DISCLAIMS, AND UFL HEREBY
EXPRESSLY WAIVES, ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AFTER THE
ACTIVATION DATE, LIBERTY DOES NOT WARRANT THAT THE MODIFIED SOFTWARE WILL
MEET UFL'S REQUIREMENTS OR THAT THE OPERATION OF THE MODIFIED SOFTWARE
WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ERRORS IN THE LIBERTY SOFTWARE
WILL BE CORRECTED.
(f) Breach. After the Activation Date, Liberty may terminate the
license to the Modified Software granted in this Section 4.03, without
prejudice to any other remedy Liberty may have, immediately without
further obligation to UFL, in the event of (i) any material breach by UFL
of any of the conditions of this license as set forth in this Section 4.03
if such breach is not cured within thirty (30) days after notice of such
breach
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is given to UFL by Liberty, or (ii) UFL making an assignment for the
benefit of its creditors, the filing under any voluntary bankruptcy or
insolvency law, under the reorganization or arrangement provisions of the
United States Bankruptcy Code, or under the provisions of any law of like
import in connection with UFL, or the appointment of a trustee or receiver
for UFL or its property.
4.04 Changes and Upgrades to the System. Except as provided below or
as may be approved by UFL, Liberty shall not make any changes or modifications
to the: (1) Liberty Software, Third Party Software or the Modified Software that
would materially adversely alter the functionality or materially degrade the
performance of the Liberty Software or the Third Party Software; or (2) UFL
Software other than emergency fixes necessary for continued performance of the
Base Services and the Additional Services. UFL shall have the right to require
that Liberty (i) at all times use a production (non-beta) version of the Genelco
Software (and any replacement for the Genelco Software) and operating systems
that is within two releases of the most current release of such Genelco Software
(or replacement for the Genelco Software) or operating system running in a
production environment (it being agreed that for purposes hereof an upgraded
software "release" is noted by an increase in the first-level software
identifier (e.g., 3.0 or 3.7 to 4.0)), that is Year 2000 Compliant and for which
maintenance and support is then provided by the vendor thereof and to upgrade to
a newer version or release of such Genelco Software (or replacement for the
Genelco Software) as necessary to fix errors therein or to maintain compliance
with applicable laws or regulations, all of which shall be performed for the
Base Fees; and (ii) upgrade to any newer version or release of Genelco Software
(or replacement for the Genelco Software), for which UFL agrees to compensate
Liberty at the Standard Rates. Notwithstanding the foregoing, UFL agrees that
through December 31, 2000, Liberty may use Genelco's LSP system (Release 3.7.1
or higher) so long as such release continues to be supported by Genelco. In
addition, Liberty shall pay the cost of any modification or enhancement to, or
substitution for, the System and any other equipment or software used in
connection with the Base Services or the Additional Services necessitated by (a)
unauthorized changes to the UFL Software, (b) unauthorized changes to the
Liberty Software (except as may result from the implementation of an Additional
Service), (c) unauthorized changes to the Modified Software (except as may
result from the implementation of an Additional Service) or (d) unauthorized
changes to the Third Party Software, including the operating environment for the
System.
4.05 Independent Contractor Agreements. Liberty shall obtain and
maintain in effect written agreements with each of its independent contractors
who participate in any of Liberty's work under this Agreement sufficient to
support all grants and assignments of rights and ownership in this Article 4.
4.06 Third-Party Software and Services. If Liberty anticipates using
any software developed or otherwise owned by a third party, including but not
limited to the Genelco Software (together with any and all associated
documentation, "Third Party Software"), to provide any Base Services or
Additional Services, Liberty shall identify in writing to UFL: (1) the nature of
the Third Party Software, (2) its owner, (3) any restrictions or royalty terms
applicable to Liberty's or UFL's use of the Third Party Software, (4) the source
of Liberty's authority to employ the Third Party Software in the provision of
Base Services or Additional Services, (5) any modifications to the Third Party
Software made by or for Liberty and whether
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such modifications or enhancements are owned by Liberty or the third party
vendor of the Software, and (6) whether the object and/or source code (and
appropriate use license) for the Third Party Software will be delivered to UFL
by Liberty upon termination or expiration of this Agreement. The Third Party
Software as of the date of this Agreement is set forth on Exhibit N. If Liberty
anticipates using any services provided by a third party to provide any Base
Services or Additional Services, Liberty shall identify in writing to UFL: (1)
the nature of the third party service and (2) the identity and address of the
entity, person or persons providing such service. On a quarterly basis, within
the first two weeks of each calendar quarter, Liberty shall deliver to UFL a
written update of all information required to be provided pursuant to this
Section 4.06.
4.07 Hardware. Unless otherwise provided in the Agreement, Liberty
shall obtain and maintain, at its cost and expense (including but not limited to
delivery, installation and connectivity), all computer hardware and peripherals,
telecommunications products and services and other equipment, together with any
and all associated documentation ("Hardware") necessary for the performance of
the Base Services and the Additional Services that are performed at Liberty's
facilities. Liberty will provide UFL with a complete listing of all Hardware,
which listing shall be updated on an annual basis throughout the Term or the
Renewal Term.
ARTICLE 5
UFL DATA
5.01 Ownership of UFL Data. All data and information submitted to
Liberty by UFL in connection with the Base Services and the Additional Services
or produced by Liberty in performing the Base Services and Additional Services
(the "UFL Data") is and shall remain the exclusive property of UFL and shall be
considered the Confidential Information of UFL. UFL Data shall not be (1) used
by Liberty other than in connection with providing the Base Services and the
Additional Services, (2) disclosed, sold, assigned, leased or otherwise provided
to third parties by Liberty or (3) commercially exploited by or on behalf of
Liberty, its employees or agents. Data and information submitted to Liberty by
PNL in connection with the Base Services and the Additional Services or produced
by Liberty in performing the Base Services and Additional Services is and shall
remain the exclusive property of PNL but, from and after the Closing, shall be
deemed to be UFL Data and for purposes of this Agreement to be considered the
Confidential Information of UFL.
5.02 Correction of Errors. At its own expense, Liberty shall
promptly correct any errors or inaccuracies in the UFL Data (1) caused by
Liberty or (2) which fall within the normal level of such errors or inaccuracies
at UFL's facilities prior to the date of this Agreement. At UFL's expense
(calculated using the Standard Rates and subject to the prior agreement of UFL),
Liberty shall, with reasonable promptness in light of the nature of the errors
or inaccuracies, correct any other errors or inaccuracies in the UFL Data. UFL
is responsible for (a) the accuracy and completeness of the UFL Data provided by
UFL and (b) any errors in and with respect to data obtained from Liberty because
of any inaccurate or incomplete UFL Data provided by UFL.
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5.03 Ownership of Media. Unless furnished or paid for by UFL, all
media upon which UFL Data is stored is and shall remain the property of Liberty.
5.04 Return of Data. Upon (i) the expiration or termination of this
Agreement for any reason, (ii) the reasonable request by UFL at any time, at
Standard Rates, (iii) with respect to any particular UFL Data, on such earlier
date that such data are no longer required by Liberty in order to provide the
Base Services or Additional Services or in order to comply with applicable
third-party insurance administrator laws and regulations, Liberty shall (1)
promptly return to UFL, in the format and on the media reasonably requested by
UFL, all UFL Data or, at the election and direction of UFL (2) with respect to
UFL Data returned pursuant to clauses (i) or (iii) above and at the election and
direction of UFL, erase or destroy all UFL Data in Liberty's possession and
provide written certification thereof. Any archival tapes containing UFL Data
shall be used by Liberty solely for backup purposes.
ARTICLE 6
SOURCE AND OBJECT CODE AND BACK-UP.
6.01 Source Code. Except as may be prohibited by the applicable
license of Third-Party Software, Liberty shall deliver to UFL every ninety (90)
days after the date of this Agreement during the Term or the Renewal Term a copy
of all of the source and object code and related documentation in respect of the
UFL Software, if modified, the Liberty Software, the Third Party Software and
the Modified Software as may be necessary to recreate the functionality of, and
operate, the UFL Software, the Liberty Software, the Third Party Software and
the Modified Software.
6.02 Back-Up. Liberty shall make tapes, microfiche and other
hardcopy backups containing copies of any and all UFL Data then residing on the
System (the "Back-Up Copies") and shall maintain the Back-Up Copies in
accordance with the procedures and for the time periods set forth in Exhibit O.
Liberty shall send the Back-Up Copies to the off-site storage facilities
(collectively, the "Off Site Facilities"; each, an "Off Site Facility") also
described in Exhibit O or to any other facility which Liberty may select to
replace a current Off-Site Facility, provided, however, that (1) UFL receives at
least thirty (30) days advance written notice of any change in the location of
an Off Site Facility and (2) that each new Off Site Facility is reasonably
acceptable to UFL and maintains at least the same level of security procedures
which were maintained at the replaced Off Site Facility and otherwise complies
with the provisions of this Agreement. Upon request, authorized personnel of UFL
shall be permitted access to the Off Site Facilities during normal business
hours subject to any reasonable security procedures or other restrictions in
effect at the Off Site Facilities at the time of the access. Upon the reasonable
request of UFL, Liberty shall make available to UFL a copy of such of the
Back-Up Copies as UFL shall request and UFL shall compensate Liberty therefor at
Standard Rates.
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ARTICLE 7
CONTINUED PROVISION OF SERVICES.
7.01 Disaster Recovery Plan. Exhibit P sets forth the procedures to
be followed with respect to the continued provision of the Base Services and the
Additional Services in the event the Data Center is unavailable for use by
Liberty because it has been destroyed, damaged or is otherwise not available for
use (the "Disaster Recovery Plan") to such an extent that Liberty is unable to
provide any or all of the Base Services or the Additional Services. Liberty may
modify or change the Disaster Recovery Plan at any time; provided, however, that
such change or modification shall be reasonably acceptable to UFL and shall not
materially adversely affect Liberty's ability to restore the Base Services or
the Additional Services. Liberty shall (1) notify UFL of any material change or
modification in the Disaster Recovery Plan, (2) test the Disaster Recovery Plan
at least once every calendar year during the Term or the Renewal Term and
certify to UFL that the Disaster Recovery Plan is operational, (3) consult with
UFL regarding the priority to be given to the Base Services and the Additional
Services during the pendency of any such disaster and (4) not be excused from
implementing the Disaster Recovery Plan as a result of the events described in
Section 7.02.
7.02 Force Majeure. Neither party shall be liable, or be deemed to
be in default, to the other party hereunder (except as provided in Section 7.01)
by reason or on account of any delay or omission caused by epidemic, fire, order
of a court of competent jurisdiction (other than preliminary or permanent
injunctions issued pursuant to Liberty's indemnity obligations for intellectual
property infringement set forth in Section 14.02), executive decree or order,
act of God or public enemy, war, riot, civil commotion, flood, earthquake,
accident, explosion, casualty, embargo or any other cause beyond the reasonable
control of such party; provided that such force majeure event that is an
accident or casualty is not caused directly or indirectly by the excused party
and could not have been prevented by such party's reasonable diligence; and
provided, further, that such events shall not be excused to the extent they are
within or can be obviated by the implementation of Liberty's Disaster Recovery
Plan. The time of performance for each party's obligations under this Agreement
shall be extended by such period of enforced delay; provided, however, that in
the event such enforced delay on the part of Liberty exceeds thirty (30) days,
UFL may terminate this Agreement upon notice to Liberty without regard to
Article 13. For clarity, neither financial hardship nor issues related to
whether products are Year 2000 Compliant shall be considered a force majeure
event.
ARTICLE 8
PAYMENTS TO LIBERTY.
8.01 Base Fees. In consideration of Liberty providing the Base
Services, UFL shall pay to Liberty the fees set forth in Exhibit Q (the "Base
Fees"), subject to any applicable adjustments set forth in this Agreement,
according to the payment terms set forth in Exhibit Q.
8.02 Additional Service Fees. In consideration of Liberty providing
the Additional Services, UFL shall pay the Additional Service Fees in the
manner agreed upon by UFL and Liberty in accordance with Section 3.02.
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8.03 Telecommunication Charges. Unless set forth otherwise in this
Agreement, all telecommunication charges incurred by Liberty in respect to the
Base Services or the Additional Services shall be paid by Liberty and the same
will be deemed included in the fee for such services.
8.04 Payment Schedule. Unless set forth otherwise in this Agreement,
the Base Fees, the Additional Service Fees and any other fees or charges owed
by UFL shall be due and payable no later than thirty (30) days after UFL's
receipt of an invoice from Liberty, unless disputed in good faith in accordance
with Section 12.02 of this Agreement. Each invoice shall include one or more
reports describing (1) the charges in a detailed itemized fashion, and (2) such
other information as may be reasonably requested by UFL to ascertain Liberty's
compliance with this Agreement. Liberty shall invoice UFL for charges under this
Agreement on a monthly basis, unless otherwise specified in this Agreement. UFL
shall be invoiced on the first of each month for the estimated services to be
performed in such month based upon the fees set forth in Exhibit Q and for any
Additional Services provided in the prior month. Payment shall be due by UFL
fifteen (15) days after receipt of the invoice. All estimated amounts on the
prior month's invoice are to be trued-up in the current month's invoice. UFL
shall pay Liberty all amounts when due by ACH transfer of immediately available
funds in U.S. dollars. Subject to the provisions of Section 12.02, if any
invoice is not paid within thirty (30) days of receipt by UFL, UFL shall pay
Liberty interest on the past due amount at a rate of XXX% per month; provided,
however, that the charging of interest is not a consent to late payment. Except
as provided in Section 9.03 neither (i) the failure of Liberty to deliver an
invoice for services rendered or to be rendered under the terms of this
Agreement nor (ii) any error in the amount billed by Liberty for such services
shall constitute a waiver by Liberty of UFL's obligation to pay for such
services.
8.05 Taxes
(a) UFL shall pay to Liberty all sales, use and excise taxes (not
including any personal property taxes or taxes based on Liberty's net
income) based on the provision of the Base Services or the Additional
Services which are found to be applicable and that Liberty is required
under applicable law to collect. The appropriate amount of tax shall be
invoiced to and paid by UFL to Liberty at the same time and on the same
conditions as applied to the payment due.
(b) If UFL disagrees with Liberty's determination that any tax is
due with respect to the subject matter of this Agreement, and Liberty is
attempting to invoice UFL for such tax as provided in Section 8.05(a) then
UFL shall have the right to seek an administrative determination from the
applicable taxing authority, or alternatively, UFL shall have the right to
legally contest any asserted claim for taxes and, to the extent allowed by
law, withhold payment of such contested taxes. UFL shall have the right to
control any such administrative or legal proceedings, and in connection
therewith Liberty shall (i) be consulted, and (ii) cooperate with UFL and
take any and all actions reasonably requested by UFL (at UFL's expense).
(c) If any taxes payable by UFL that are required to be collected by
Liberty pursuant to Section 8.05(a) are not invoiced by Liberty (or are
invoiced on a date such
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that UFL and Liberty are not reasonably able to deliver the amount of such
taxes to the relevant taxing authority in a timely fashion), and it is
ultimately determined that such taxes are due and payable, then UFL shall
reimburse Liberty for the amount of such taxes, provided that Liberty
shall indemnify UFL from any and all interest and other penalties assessed
as a result of such taxes not being paid in a timely manner.
(d) Amounts paid to Liberty as a result of this Section 8.05 shall
be reduced or refunded to the extent that Liberty obtains a net tax
benefit (including but not limited to foreign tax credits) resulting from
the payment of the relevant taxes. The parties will cooperate in good
faith to determine the amount of such net tax benefit (if any).
(e) UFL shall not be required to pay or otherwise be liable or
responsible for, and Liberty hereby indemnifies, defends and holds UFL
harmless against, any penalty, additional tax, costs or interest that may
be assessed or levied by any taxing authority as a result of the failure
of Liberty to file any return, form, or information statement that may be
duly required from Liberty by such taxing authority or to pay any tax
amounts collected from UFL hereunder.
(f) In addition, notwithstanding the foregoing provisions of this
Section 8.05, with respect to all individuals it provides to perform the
services required under this Agreement, Liberty shall be responsible for
and make all appropriate tax payments and tax withholding and shall verify
such individuals as being legally able to work in the United States.
8.06 XXX
8.07 Adjustment to Fees. XXX
8.08 Expenses. Except for those certain pass-through expenses
identified in Exhibit Q (which will be reimbursed by UFL at out-of-pocket cost),
any expenses, including expenses for supplies, facilities, management, clerical
help, application development tools, overtime expenses, travel expenses related
to the Base Services (except for travel specifically requested by UFL) incurred
by Liberty in connection with its provision of the Base Services, installation
and ongoing dedicated lines from Liberty's facilities to UFL's facility in
Atlanta and all telecommunications hardware and software located at Liberty's
facilities required for performance by Liberty are included in the Base Fees and
shall not be reimbursed by UFL unless agreed to in advance in writing by UFL. If
agreed upon in advance in writing by UFL, UFL shall pay or reimburse Liberty for
the reasonable and actual documented expenses, including travel and
travel-related expenses, incurred by Liberty in connection with its performance
of the Additional Services provided that such expenses are incurred in
accordance with UFL's then-current reimbursement policy for such expenses.
Liberty will reasonably cooperate with UFL to reduce the costs associated with
any reimbursable expenses.
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8.09 [RESERVED]
8.10 Proration. All fees or charges under this Agreement that are to
be computed on a periodic basis (e.g., monthly, yearly, etc.) will be prorated
on a daily basis for any partial period (or prorated as otherwise agreed by the
parties).
8.11 Reports
(a) Unless agreed otherwise by the parties, Liberty agrees to
provide to UFL at least monthly a written report on the services and the
progress of any work required under this Agreement, any anticipated
problems (resolved or unresolved), and any indication of delay in fixed or
tentative schedules.
(b) Approximately once every three months unless mutually agreed
otherwise, the Management Committee and other invited parties shall meet
for a formal progress presentation during which Liberty's management shall
describe the status of the services and work required under this
Agreement. Such presentation shall provide projections of the time of
completion and the status of services, and shall address any problems that
have come to Liberty's attention and Liberty's views as to how such
problems may be resolved.
(c) Liberty shall, from time to time and upon reasonable notice,
allow access to its premises by UFL for purposes of ongoing supervision,
design reviews, "walk throughs," and discussions by UFL with management
and personnel of Liberty concerning the status and conduct of services and
work being performed under this Agreement.
(d) Liberty shall also submit to UFL any reports concerning the
performance of the services as UFL may reasonably request from time to
time. Other than reports provided for in the Project Plan or otherwise
expressly provided for in this Agreement, reports requested pursuant to
this Section 8.11(d) shall be provided at Standard Rates.
8.12 Records. Liberty shall maintain complete and accurate
accounting records in accordance with sound accounting practices to substantiate
Liberty's charges under this Agreement and on each invoice. Such records shall
not include Liberty's pricing model for this Agreement. Liberty shall preserve
such records for a period of at least two (2) years after completion of the
pertinent services.
ARTICLE 9
AUDITS.
9.01 Monitoring Audit of Services
(a) In connection with the provision of the Base Services and the
Additional Services, Liberty shall provide UFL with the right to regularly
monitor on-site the performance of such services. In connection therewith,
Liberty will provide during the period that either Base Services or
Additional Services are being provided to UFL, office
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space at Liberty's customer support facility for one on-site monitor
designated from time to time by UFL. Such space shall be reasonably
appropriate for use by UFL's monitor and shall contain appropriate
furniture, telephone and computer access to the System for inquiry only.
Liberty shall make access to this office available to UFL's on-site
monitor during all hours that Customer Services are being performed.
Liberty shall provide UFL's on-site monitor with access to all customer
service reports related to performance of the Base Services and the
Additional Services and the ability to monitor Customer Services being
performed, including telephone conversations.
(b) In addition to regular on-site monitoring as provided in Section
9.01(a), upon notice from UFL (which notice shall be reasonable advance
notice in the case of audits or inspections not requested or required by a
federal or state authority), Liberty shall provide such auditors and
inspectors as UFL or any federal or state regulatory authority may, from
time to time, designate with access to the Data Center and for the purpose
of performing, at UFL's expense, audits or inspections of the business of
Liberty (including Liberty's provision of the Base Services and the
Additional Services to UFL). Such audits may include, but are not limited
to, the internal control audits described in Exhibit R. Liberty shall
provide to such auditors and inspectors any assistance that they
reasonably require. If any audit by a regulatory authority having
jurisdiction over UFL or Liberty results in Liberty being notified that it
is not in compliance with any rule, regulation or law relating to the Base
Services and the Additional Services, Liberty shall, at its own expense
and within the period of time specified by such regulatory authority,
comply with such regulatory authority.
(c) All on-site monitoring and other audits and inspections pursuant
to this Section 9.01 shall be conducted in such a manner so as not to
unreasonably interfere with Liberty's normal operations. While on
Liberty's premises, UFL's personnel shall (1) observe the rules and
requirements of Liberty regarding personal or professional conduct and
appearance and (2) otherwise conduct themselves in a businesslike manner.
In the event that Liberty determines that a particular employee or
employees of UFL is not conducting himself, herself or themselves
appropriately, Liberty may notify UFL of and provide UFL documentation of,
such fact and UFL shall promptly correct such conduct to Liberty's
reasonable satisfaction or remove him, her or them from Liberty's
premises. All Confidential Information of Liberty obtained as a result of
any monitoring, audits or inspections pursuant to this Section 9.01 shall
be held by UFL in accordance with the provisions of Article 10.
9.02 Audit of Charges. Upon at least five days' notice from UFL and
no more than twice during any calendar year (unless a previous audit reveals a
discrepancy), Liberty shall provide UFL with access to all of the financial
records and supporting documentation in respect of its charges to UFL, excluding
Liberty's pricing model for this Agreement. If, as a result of such audit, UFL
determines that Liberty has overcharged UFL, UFL shall notify Liberty of the
amount of such overcharge and Liberty shall promptly pay to UFL the amount of
the overcharge, plus interest at the rate of XXX% per month, but in no event to
exceed the highest lawful rate of interest, calculated from the date of receipt
by Liberty of the overcharged amount until the date of payment to UFL. All
Confidential Information of UFL obtained as a result of such audits shall be
held by Liberty in accordance with the provisions of Article 10.
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9.03 Undercharges. If as a result of an internal audit of its
charges to UFL, Liberty determines that it has undercharged UFL, Liberty may
provide UFL with an invoice in respect of such amount. Any such invoice shall
include the information specified in Section 8.04 and evidence that the amount
was not charged to UFL previously. Upon receipt of this information and
evidence, UFL shall pay the amount of the undercharge according to Section 8.04
unless disputed in good faith; provided, however, that UFL shall not be
obligated to pay any charges related to Base Services or Additional Services
provided more than twelve (12) months before the date of the invoice for such
charges; provided, further that charges for Base Services or Additional Services
that are by their terms due more than twelve (12) months following the date of
such services may only be covered in an invoice delivered no later than six (6)
months after the date on which such charges were originally due.
ARTICLE 10
CONFIDENTIALITY
10.01 Confidential Information. All confidential or proprietary
information and documentation ("Confidential Information") relating to either
party shall be held in confidence by the other party (including its Affiliates
or subsidiaries) to the same extent and in at least the same manner as such
party protects its own confidential or proprietary information, but in any event
using no less than reasonable security measures. Neither party shall disclose,
publish, release, transfer or otherwise make available Confidential Information
of the other party in any form to, or for the use or benefit of, any person or
entity without the other party's approval. Each party shall, however, be
permitted to disclose relevant aspects of the other party's Confidential
Information to its officers, agents, employees and third-party contractors and
to the officers, agents, third-party contractors and employees of its Affiliates
or subsidiaries to the extent that such disclosure is reasonably necessary for
the performance of its duties and obligations under this Agreement, provided
that such party shall take all reasonable measures to ensure that Confidential
Information of the other party is not disclosed or duplicated in contravention
of the provisions of this Agreement by such officers, agents and employees. The
obligations in this Section 10.01 shall not restrict any disclosure by either
party pursuant to any applicable law, or by order of any court or government
agency (provided that the disclosing party shall endeavor to give such notice to
the non-disclosing party as may be reasonable under the circumstances) and shall
not apply with respect to information that is independently developed by the
other party, becomes part of the public domain (other than through unauthorized
disclosure), is disclosed by the owner of such information to a third party free
of any obligation of confidentiality or which either party gained knowledge or
possession of free of any obligation of confidentiality.
10.02 Unauthorized Acts. Each party shall: (1) notify the other
party promptly of any material unauthorized possession, use or knowledge, or
attempt thereof, of the other party's Confidential Information by any person or
entity which may become known to such party, (2) promptly furnish to the other
party full details of the unauthorized possession, use or knowledge, or attempt
thereof, and assist the other party in investigating or preventing the
reoccurrence of any unauthorized possession, use or knowledge, or attempt
thereof, of Confidential Information, (3) use reasonable efforts to cooperate
with the other party in any litigation and investigation against third parties
deemed necessary by the other party to protect its
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proprietary rights and (4) promptly use all reasonable efforts to prevent a
reoccurrence of any such unauthorized possession, use or knowledge of
Confidential Information. Each party shall bear the cost it incurs as a result
of compliance with this Section 10.02.
10.03 Action by Parties. Neither Liberty nor UFL shall commence any
legal action or proceeding in respect of any unauthorized possession, use or
knowledge, or attempt thereof, of the other party's Confidential Information by
any person or entity without the consent of such other party.
ARTICLE 11
REPRESENTATIONS AND WARRANTIES
11.01 BY UFL. UFL represents, warrants and covenants that:
(a) it is a corporation duly incorporated, validly existing and in
good standing under the laws of Georgia;
(b) it has all the requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement;
(c) the execution, delivery and performance of this Agreement has
been duly authorized by UFL;
(d) no approval, authorization or consent of any governmental or
regulatory authority is required to be obtained or made by it in order for
it to enter into and perform its obligations under this Agreement;
(e) it has not, and will not, disclose any Confidential Information
of Liberty in violation of the terms of this Agreement;
(f) the UFL Software (i) is original works of authorship of which
UFL is the owner or licensee of all right, title and interest, with the
right to sublicense to Liberty; (ii) is not subject to any valid patent,
copyright, trademark or any other proprietary rights of any third party;
and (iii) does not and will not infringe upon the proprietary rights of
any third party;
(g) it has obtained, or shall have obtained on or before April 1,
1998, consent or licenses from all necessary third-party software vendors
to permit Liberty to gain access to and to use the UFL Software to provide
the Base Services for the term necessary during this Agreement, at no cost
to Liberty;
(h) the Policies which are the subject of the Base Services
hereunder were issued in conformity in all material respects with the laws
and regulations of the jurisdiction governing the issue or delivery of
such Policies at the time of issue and such Policies will remain in
compliance in all material respects with applicable laws and regulations
during the term of this Agreement. The policy forms that have been used by
UFL to issue the Policies which are the subject of the Base Services, and
any Policies acquired by UFL
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during the term of this Agreement which are the subject of the Base
Services hereunder have been filed, where necessary, with the appropriate
state insurance authorities in the states where such products have been
offered and meet in all material respects all applicable legal
requirements of each such state;
(i) there is no claim, action, suit, investigation, or proceeding
pending or, to UFL's knowledge, contemplated or threatened against UFL
which seeks damages or penalties in connection with any of the
transactions contemplated by this Agreement or to restrict or delay the
transactions contemplated hereby or to limit in any manner Liberty's
rights under this Agreement;
(j) there are no brokers with claims to fees based upon the
transactions contemplated under this Agreement; and
(k) the nature of its obligations are time sensitive, and
accordingly, time is of the essence in the performance of UFL's
obligations under this Agreement.
11.02 By Liberty. Liberty represents, warrants and covenants that:
(a) it is a corporation duly incorporated, validly existing and in
good standing under the laws of South Carolina;
(b) it has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement;
(c) the execution, delivery and performance of this Agreement has
been duly authorized by Liberty;
(d) no approval, authorization or consent of any governmental or
regulatory authority is required to be obtained or made by it in order for
it to enter into and perform its obligations under this Agreement;
(e) it has not, and will not, disclose any Confidential Information
of UFL in violation of the terms of this Agreement;
(f) the Base Services and the Additional Services shall be rendered
by personnel reasonably qualified by training and experience to perform
such services;
(g) the Base Services and the Additional Services do not and will
not infringe upon the proprietary rights of any third party;
(h) the Liberty Software is, and the Modified Software developed by
Liberty when delivered will be, original works of authorship of which
Liberty is the owner of all right, title and interest; are not subject to
any valid patent, copyright, trademark or any other proprietary rights of
any third party; and do not and will not infringe upon the proprietary
rights of any third party;
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(i) the Base Services and the Additional Services will be provided
with diligence and shall be executed in a workmanlike manner in accordance
with practices and professional standards used in well-managed operations
performing services similar to the Base Services and the Additional
Services;
(j) it will use all commercially reasonable efforts to complete the
Software Modification Services (including making the Modified Software,
the Liberty Software and the Third Party Software, other than software on
which no PNL Policies other than the Pan Western and Brookings blocks are
currently being processed, Year 2000 Compliant) and Data Conversion
Services, and commence the Data Processing Services with respect to all
Policies except the Pan Western and Brookings blocks by December 31, 1998;
(k) it has obtained all consents, approvals, licenses or assignments
necessary to perform the Base Services and the Additional Services;
(l) Liberty will take reasonable precautions and will apply testing
procedures to assure that the Liberty Software, Third Party Software and
the Modified Software are free from material reproducible programming
errors and defects in workmanship and materials, and the Modified Software
will conform in all material respects to the Specifications. If material
reproducible programming errors are discovered, Liberty shall promptly
remedy them at no additional expense to UFL;
(m) Liberty will take reasonable precautions and will use
industry-accepted virus scan software to verify that no portion of the
Liberty Software, Third Party Software or the Modified Software contains
or will contain any protection feature designed to prevent its use. This
includes, without limitation, any computer virus, worm, software lock,
drop dead device, Trojan-horse routine, trap door, time bomb or any other
codes or instructions that may be used to access, modify, delete, damage
or disable the Liberty Software or the Modified Software. Liberty further
warrants that it will not impair the operation of the Liberty Software or
the Modified Software in any way other than by order of a court of law;
(n) the Modified Software, the Liberty Software and the Third Party
Software is Year 2000 Compliant or will be Year 2000 Compliant by August
1, 1998, or such other date as may be mutually agreed to by UFL and
Liberty. Exhibit V contains a materially accurate description of the
portions of the Modified Software, Liberty Software and Third Party
Software that are not currently Year 2000 Compliant as well as Liberty's
intended Schedule for making those portions Year 2000 Compliant;
(o) Liberty has, or prior to the performance of any Customer
Services will have, all licenses and permits from state or federal
regulatory authorities required for the performance of the Base Services;
(p) there is no claim, action, suit, investigation, or proceeding
pending or, to Liberty's knowledge, contemplated or threatened against
Liberty which seeks damages or penalties in connection with any of the
transactions contemplated by this Agreement or to
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restrict or delay the transactions contemplated hereby or to limit in any
manner UFL's or, after Closing UFL's and PNL's rights under this
Agreement;
(q) there are no brokers with claims to fees based upon the
transactions contemplated under this Agreement; and
(r) the nature of its obligations are time sensitive and
accordingly, time is of the essence in the performance of Liberty's
obligations under this Agreement.
11.03 Consents
(a) All licenses, consents and approvals necessary for Liberty to
provide the Base Services pursuant to this Agreement have been, or prior
to the requirement therefor will be, obtained by Liberty. Liberty shall
bear the cost of obtaining the Consents, including any additional license
or sublicense fees or transfer fees. Liberty has provided to UFL a consent
letter from Genelco with respect to the Genelco software.
(b) All licenses, consents and approvals necessary for Liberty to
grant the license rights granted to UFL pursuant to this Agreement have
been, or prior to the requirement therefor will be, obtained by Liberty.
To the extent that the grantor of such licenses, consents and approvals
requires the payment of a fee by Liberty in connection with such license
grant to UFL, UFL shall reimburse Liberty for the full amount of such fee.
All licenses, consents and approvals described in this Section 11.03(a)
and (b) are sometimes referred to herein as the "Consents."
11.04 DISCLAIMER. EXCEPT AS SPECIFIED IN SECTIONS 11.01 or 11.02,
NEITHER LIBERTY NOR UFL MAKES ANY OTHER WARRANTIES IN RESPECT OF THE BASE
SERVICES, THE ADDITIONAL SERVICES OR THE SYSTEM AND EACH EXPLICITLY DISCLAIMS
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A SPECIFIC PURPOSE.
ARTICLE 12
DISPUTE RESOLUTION
12.01 Management Committee. UFL and Liberty shall each appoint a
member or an equal number of members of its managerial staff to serve on a joint
management committee (the "Management Committee"). The Management Committee
shall meet during the first week of each calendar month during the Term and the
Renewal Term (or such other time as the Management Committee may agree upon from
time to time) for the purpose of reporting progress, discussing opportunities,
reviewing business plans that may impact the Base Services or Additional
Services, and resolving disputes that may arise under this Agreement. The
Management Committee shall consider the disputes in the order such disputes are
brought before it. In the event that the Management Committee is unable to
resolve a dispute, the Management Committee shall notify the senior management
of UFL and Liberty and the dispute shall be escalated to UFL's and Liberty's
presidents for their review and resolution. If the dispute cannot
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be resolved by such officers, then the parties may initiate formal proceedings;
provided however, formal proceedings for the judicial resolution of any such
dispute may not be commenced until the earlier of:
(i) the designated representatives concluding in good faith that
amicable resolution through continued negotiation of the
matter in issue does not appear likely;
(ii) thirty (30) days after the initial request to negotiate such
dispute; or
(iii) thirty (30) days before the statute of limitations governing
any cause of action relating to such dispute would expire.
No dispute under this Agreement shall be the subject of litigation
or other formal proceeding between UFL and Liberty before being considered by
the Management Committee (excluding a party's indemnity obligations under
Section 14 and an action to compel compliance with this Section); provided,
however, that either party may seek injunctive relief to prevent or stay a
breach of Article 5 and Article 10 without appearing before the Management
Committee.
All service by Liberty's personnel on the Management Committee and
in connection with the resolution of disputes is included in the Base Services.
12.02 Continued Performance. In the event of a good faith dispute
between UFL and Liberty regarding this Agreement that cannot be resolved by the
Management Committee pursuant to which UFL in good faith believes it is entitled
to withhold payment, UFL shall, upon request by Liberty and on the date which
any Base Fees or Additional Service Fees are required to be made during the
pendency of such dispute, deposit the disputed amount only of the Base Fees or
the Additional Service Fees in an interest-bearing escrow account in the bank or
depository specified by Liberty and furnish evidence of such deposit to Liberty;
provided, that the maximum aggregate amount of disputed Base Fees or Additional
Service Fees which may be held in any such escrow account at any one time shall
be a maximum of five percent (5%) of total amounts paid in the prior year under
this Agreement, exclusive of any Conversion Costs or Software Modification Costs
(as defined on Exhibit Q); and provided further, however, that if this Agreement
shall have been in effect for less than one year, the amounts paid since the
Effective Date shall be annualized. The parties shall escalate the resolution of
any such dispute to the presidents of UFL and Liberty within 30 days of the
deposit of the funds into the escrow account. For as long as UFL makes such
escrow deposits during the pendency of such dispute, Liberty shall continue to
provide the Base Services and the Additional Services. Upon resolution of the
dispute, the prevailing party shall be entitled to all money in the escrow
account, plus any interest earned on such money.
12.03 Non-Competition. During the term of this Agreement and for a
period of two (2) years after its termination or expiration for any reason,
Liberty and The Liberty Corporation and their Affiliates will not compete
directly or indirectly with UFL or PNL in the marketing or underwriting of
insurance contracts sold through or in connection with funeral homes as a
funding vehicle for funeral service contracts in any state of the United States
or province of Canada in which PNL or Affiliates markets such insurance
contracts as of the
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Effective Date, if UFL or PNL is then marketing or underwriting such insurance
contracts in such state or province. Nothing contained in this Section 12.03
shall preclude the Liberty Corporation or its Affiliates from continuing to sell
other types of final expense insurance. Nothing contained in this Agreement
shall be construed to restrict Liberty from offering or providing to any
competitor of UFL or PNL services similar to the Base Services or the Additional
Services.
ARTICLE 13
TERMINATION: EFFECT OF TERMINATION OR EXPIRATION
13.01 UFL Termination. UFL may terminate the Term of this Agreement
on and after the first anniversary of the Effective Date, at any time and
without cause, upon at least ninety (90) days notice to Liberty prior to such
termination date, provided that UFL pays to Liberty the applicable Termination
Fee as set forth in Section 13.08, payable together with the notice of
termination.
13.02 Termination on Change of Control.
(a) In the event of a sale of all or substantially all of the assets
of Liberty or a sale of sufficient stock of Liberty to effect a change in
Control (a "Change of Control Event"), scheduled to occur within eighteen
(18) months after the Effective Date:
(i) if Liberty delivers to UFL a First Refusal Notice with respect
to the Change in Control Event as provided in Section
13.02(c), and UFL rejects the offer thereunder in accordance
with the time period set forth in Section 13.02(c), upon
consummation of the Change of Control Event, UFL may terminate
this Agreement by giving ninety (90) days prior written notice
to Liberty, and UFL shall pay the applicable Termination Fee,
as set forth in Section 13.08 payable together with the notice
of termination;
(ii) if Liberty does not deliver a First Refusal Notice to UFL,
Liberty shall give UFL advance written notice of the Change of
Control Event and, following consummation of the Change of
Control Event, within thirty (30) days of the later of receipt
of notice of the Change of Control Event or consummation of
the Change of Control Event, UFL may terminate this Agreement
by giving ninety (90) days prior written notice to Liberty
without payment of any Termination Fee.
(b) In the event of a Change of Control Event that occurs after
eighteen (18) months following the Effective Date, Liberty shall give UFL
advance written notice of the Change of Control Event, and UFL may
terminate this Agreement within thirty (30) days of the later of notice of
the Change of Control Event or the consummation of the Change of Control
Event by giving ninety (90) days prior written notice to Liberty, and UFL
shall pay fifty percent (50%) of the otherwise applicable Termination Fee
as set forth in Section 13.08, payable together with the notice of
termination.
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(c) If Liberty receives a bona fide written offer from a prospective
purchaser of substantially all of the assets of Liberty or sufficient
stock of Liberty to effect a change in Control, and Liberty desires to
accept such offer, then Liberty, in its discretion, may first deliver to
UFL a notice (the "First Refusal Notice") in writing of its intention to
effect such Change of Control Event upon the terms proposed by the
prospective purchaser. The First Refusal Notice shall specify the name of
the prospective purchaser, the assets or the number of shares of stock to
be sold, the purchase price of the assets or per share price of the stock,
as applicable, and the other material terms of the proposed Change of
Control Event. The First Refusal Notice shall be considered an offer by
Liberty to sell the assets or the stock to UFL at the price and on the
terms proposed by the prospective purchaser. Within thirty (30) days after
the date of its receipt of such First Refusal Notice, UFL shall, by
written notice to Liberty, accept the offer as to all, but not less
than all, of the assets or the stock, as the case may be, or reject such
offer. If UFL does not exercise its right to purchase the assets or the
stock, as the case may be, then Liberty shall be free to sell the assets
or the stock, as the case may be, to the prospective purchaser named in
the First Refusal Notice, at the price and on the terms and conditions set
forth in the First Refusal Notice.
13.03 Termination for Cause. If either party fails to perform any of
its material obligations under this Agreement (except as provided in Section
13.04), and such failure is not cured within thirty (30) days after notice is
given to the defaulting party specifying the nature of the default, the
non-defaulting party may, upon further notice to the defaulting party, terminate
this Agreement as of the date specified in such notice of termination; provided,
however, that if the defaulting party is using its best efforts to cure such
failure at the end of such thirty (30) day period and diligently pursues such
efforts thereafter, the non-defaulting party may not terminate this Agreement
unless such failure continues for an additional thirty (30) days.
13.04 Termination for Failure to Provide Services. If Liberty fails
to provide the Base Services or the Additional Services in such a fashion as to
render UFL substantially unable to do one or more of the following: premium
accounting, issue policies, process new business, policyholder services, claims,
customer service, process commissions and administer the Canadian business, all
as set forth in Exhibit E, and Liberty does not, within ten (10) business days
after notice and an explanation of such failure from UFL, cure such failure or,
if such failure cannot be cured within such ten (10) business day period,
provide UFL with a timely workaround that allows UFL to perform its normal
business operations, then UFL may, upon notice to Liberty, terminate this
Agreement as of the date specified in the notice of termination.
13.05 Termination for Insolvency. In the event that either party
becomes or is declared insolvent or bankrupt, is the subject of any proceedings
relating to its liquidation, its insolvency or for the appointment of a receiver
or similar officer for it, makes an assignment for the benefit of all or
substantially all of its creditors or enters into an agreement for the
composition, extension, or readjustment of all or substantially all of its
obligations, then, unless the insolvent or bankrupt party (or the party
obligated to guaranty the obligations of such insolvent or bankrupt party under
Article 17 of this Agreement) immediately gives adequate assurance of the future
performance of this Agreement, the other may, by giving written notice thereof
to such party, terminate this Agreement as of a date specified in such notice of
termination.
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13.06 Other Terminations. This Agreement may terminate pursuant to
Section 3.01, Section 3.02, Article 7, and as set forth in the attached
Exhibits.
13.07 Effect of Expiration or Termination. Upon the expiration of
this Agreement or termination of this Agreement for any reason:
(1) Liberty shall provide to UFL those Base Services or
Additional Services requested by UFL for up to 365 days from the date of such
expiration or termination. UFL shall pay Liberty for such Base Services or
Additional Services at the then current rates in effect pursuant to Section
8.01, and Section 8.02 with respect to all such services performed during the
period ending on that date which is five years following the date of the earlier
to occur of: (i) the Closing or (ii) the date on which Liberty assumes
responsibility for servicing the UFL operations, and at the Renewal Term Prices
for all such services performed after such period (adjusted as necessary
pursuant to Section 8.07).
(2) UFL shall pay Liberty for all Base Services and Additional
Services performed, and systems or equipment purchased at UFL's request and
delivered to UFL, through the date of such expiration or termination;
(3) Each party shall have the rights specified in Article 4 in
respect of the UFL Software, the Liberty Software, the Third Party Software and
the Modified Software;
(4) UFL shall not be (a) obligated to pay any termination fee
to Liberty in the event of a termination of this Agreement except as provided
for in Section 13.01 and 13.02; and (b) required to make any further payments
under Article 8 except as provided for in Section 13.07(2).
(5) Following the expiration or termination of this Agreement,
UFL may seek a license to some or all of the Third Party Software used to
provide the Base Services or Additional Services as of the date of such
expiration or termination. Upon UFL's request, Liberty shall provide reasonable
cooperation and assistance to UFL in obtaining a license to such Third Party
Software sufficient to permit UFL, or a third party designated by UFL, to
provide services equivalent to the Base Services and Additional Services as then
being provided by Liberty. Such cooperation and assistance shall be provided by
Liberty at the Standard Rates.
(6) Following the expiration or termination of this Agreement,
UFL may seek contracts applicable to services provided to UFL for maintenance,
disaster recovery services, and other necessary third party services being used
by Liberty to provide the Base Services or Additional Services as of the date of
such expiration or termination. Upon UFL's request, Liberty shall provide
reasonable cooperation and assistance to UFL in connection with UFL's obtaining
contracts with such vendors for comparable third party services. Such assistance
shall be provided by Liberty at the Standard Rates.
(7) Upon termination or expiration of this Agreement for any
reason, Liberty agrees that, in order to provide for uninterrupted service to
UFL and its customers, Liberty, at UFL's request, shall provide, at the Standard
Rates, all reasonable assistance requested by UFL in promptly and orderly moving
all Data Processing Services and Customer Services to UFL or a third party
selected by UFL.
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13.08 Termination Fee. The termination fee (the "Termination Fee")
payable under Sections 13.01 and 13.02 hereunder shall be: XXX
ARTICLE 14
INDEMNITIES.
14.01 Indemnity by UFL.
(a) UFL shall indemnify Liberty from, and defend Liberty against,
any liability, loss or expense (including attorneys' fees) arising out of
or relating to (i) any claim that the UFL Software owned by UFL infringes
upon the proprietary rights of any third party (except as may have been
caused by a modification to the UFL Software by Liberty), and (ii) any
claim against Liberty arising after the termination or expiration of this
Agreement based upon the modifications of the Liberty Software by UFL
pursuant to the license rights granted UFL in Section 4.02.
(b) UFL will defend, indemnify and hold harmless Liberty, its
shareholders and agents from and against any claim, suit, demand, loss,
damage, expense or liability arising out of the employment, agency or
subcontracting relationship of one (1) or more of UFL's past or present
employees, agents or subcontractors with UFL, including but not limited to
claims relating to salaries payable by UFL, UFL termination liabilities
and claims arising under the occupational health and safety or other
applicable federal, state or local laws or regulations, including plant
closing or mass layoff laws, the Employee Retirement Income Security Act
of 1974, as amended, or the related provisions of the Internal Revenue
Code of 1986, as amended.
14.02 Indemnity by Liberty.
(a) Liberty shall indemnify UFL from, and defend UFL against, any
liability, loss or expense (including attorneys' fees) arising out of or
relating to (1) any claim that the Base Services, the Additional Services,
the Liberty Software, the Third Party Software or the Modified Software
infringe upon the proprietary rights of any third party, and (2) Liberty's
failure to obtain the Consents.
(b) Liberty will defend, indemnify and hold harmless UFL, its
shareholders, employees and agents from and against any claim, suit,
demand, loss, damage, expense or liability arising out of the employment,
agency or subcontracting relationship of one (1) or more of Liberty's past
or present employees, agents or subcontractors with Liberty, including,
but not limited to claims relating to salaries payable by Liberty, Liberty
termination liabilities and claims arising under the occupational health
and safety or other applicable federal, state or local laws or
regulations, including plant closing or mass layoff laws, the Employee
Retirement Income Security Act of 1974, as amended, or the related
provisions of the Internal Revenue Code of 1986, as amended.
14.03 Indemnification Procedures Involving Third Party Claims. If
any third party makes a claim covered by Section 14.01 or Section 14.02 against
any indemnitee (an
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"Indemnitee") with respect to which such Indemnitee intends to seek
indemnification under Section 14.01 or Section 14.02, such Indemnitee shall
promptly deliver to the indemnifying party (an "Indemnifying Party") a written
notice (a "Claims Notice"), including a brief description of the amount and
basis thereof, if known. Upon giving such Claims Notice, the Indemnifying Party
shall be obligated to defend such Indemnitee against such claim, and the
Indemnitee (except as provided below) shall cooperate fully with, and assist,
the Indemnifying Party in its defense against such claim at the Indemnifying
Party's expense. The Indemnifying Party shall keep the Indemnitee fully apprised
at all times as to the status of the defense. The Indemnitee shall have the
right to employ its own separate counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of such Indemnitee; provided,
however, (1) if the parties agree that it is advantageous to the defense for the
Indemnitee to employ its own counsel or (2) if the Indemnitee shall have
reasonably concluded that there may be a conflict of interest between the
Indemnifying Party and the Indemnitee in the conduct of the defense of such
claim (in which case, the Indemnifying Party shall not have the right to direct
or participate in the defense of such claim on behalf of the Indemnitee), then,
in each such instance, the reasonable fees and expenses of counsel for such
Indemnitees shall be borne by the Indemnifying Party. Neither the Indemnifying
Party nor any indemnitee shall be liable for any settlement of any action or
claim effected without its consent, except as set forth below.
Notwithstanding the foregoing, the Indemnitee shall retain, assume
or reassume sole control over, and all expenses relating to, every aspect of the
defense that it believes is not the subject of the indemnification provided for
in Section 14.01, and 14.02.
Until both (a) the Indemnitee receives notice from the Indemnifying
Party that it will defend and (b) the Indemnifying Party assumes such defense,
the Indemnitee may, at any time after 10 days from notifying the Indemnifying
Party of the claim, resist the claim or, after consultation with and the consent
of the Indemnifying Party, settle or otherwise compromise or pay the claim. The
Indemnifying Party shall pay all costs of the Indemnitee arising out of or
relating to that defense and any such settlement, compromise or payment. The
Indemnitee shall keep the Indemnifying Party fully apprised at all times as to
the status of the defense.
Following indemnification as provided in Section 14.01 and 14.02,
the Indemnifying Party shall be subrogated to all rights of the Indemnitee with
respect to the matters for which indemnification has been made.
ARTICLE 15
DAMAGES.
15.01 Limitation of Liberty Liability. The liability of Liberty
under this Agreement shall be limited to the lesser of (a) all amounts paid by
UFL to Liberty under this Agreement, through and including the time at which
such liability is finally adjudicated, or (b) (i) $XXX if, on or before March
31, 2000 UFL delivers a written notice of such claim to Liberty, or (ii) $XXX
if, on or after April 1, 2000 UFL delivers a written notice of such claim to
Liberty.
15.02 Exclusion. The limitations set forth in Sections 15.01 and
15.03 are not applicable to (1) any breach of Article 5 or Article 10, (2) the
failure of UFL to make payments
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due under the Agreement, (3) indemnification claims as set forth in Article 14
or (4) the gross negligence or willful misconduct of either party.
15.03 Consequential and Incidental Damages. Neither party shall be
liable for any indirect, special, incidental or consequential damages.
ARTICLE 16
MISCELLANEOUS.
16.01 Assignment. Neither party may assign this Agreement, without
the consent of the other party; provided, however, that either party may, upon
notice to the other party, assign this Agreement, without the other party's
consent, to any Affiliate or to a successor entity pursuant to a merger,
corporate reorganization or, (i) in the case of UFL, sale of all or
substantially all of the assets of UFL related to its pre-need insurance
business, and (ii) in the case of Liberty, sale of all or substantially all of
the assets of Liberty, subject, however, to the rights of UFL granted upon a
change of Control of Liberty pursuant to Section 13.02. The guarantees of Fortis
and The Liberty Corporation of the obligations of UFL and Liberty, respectively,
shall survive any such assignment. Any assignment in contravention of this
Section 16.01 shall be void.
16.02 Notices. All notices, requests, approvals and consents and
other communications required or permitted under this Agreement shall be in
writing and shall be sent by telecopy to the telecopy number specified below. A
copy of any such notice shall also be sent by certified mail, return receipt
requested on the date such notice is transmitted by telecopy to the address
specified below:
In the case of Liberty:
Liberty Insurance Services Corporation
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, President & CEO
Telecopy number: (000) 000-0000
with a copy to:
Liberty Insurance Services Corporation
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telecopy number: (000) 000-0000
In the case of UFL:
United Family Life Insurance Company
000 Xxxx Xxxxxx Xxxxx Xxxxxx
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Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxxxx
Telecopy number: (000) 000-0000
with a copy to:
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: B. Xxxxxx Xxxx, Xx.
Telecopy number: (000) 000-0000
In the case of The Liberty Corporation:
The Liberty Corporation
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy number: (000) 000-0000
In the case of Fortis:
Fortis, Inc.
One Chase Xxxxxxxxx Xxxxx 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telecopy number: (000) 000-0000
with a copy to:
Xxxxxx & Bird, LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: B. Xxxxxx Xxxx, Xx.
Telecopy number: 000-000-0000
Any party may change its address or telecopy number for notification purposes by
giving all other parties notice of the new address or telecopy number and the
date upon which it will become effective.
16.03 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one single agreement
between the parties.
16.04 Headings: Cross References. The Article and Section headings
and the table of contents are for reference and convenience only and shall not
be considered in the interpretation of this Agreement. All cross-references in
this Agreement to Sections, Articles or Exhibits shall be deemed to be
references to the corresponding Section or Article in, or Exhibit to, this
Agreement, unless the context otherwise clearly indicates.
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16.05 Relationship. The performance by Liberty of its duties and
obligations under this Agreement shall be that of an independent contractor and
nothing contained in this Agreement shall create or imply an agency relationship
between Liberty and UFL or after Closing, Liberty and PNL, nor shall this
Agreement be deemed to constitute a joint venture or partnership between the
parties.
16.06 Consents, Approvals and Requests. All consents and approvals
be given by either party under this Agreement shall not be unreasonably withheld
and each party shall make only reasonable requests under this Agreement. No
approval shall be valid or acceptable unless given by an authorized
representative of the appropriate party.
16.07 Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be contrary to law, then the remaining
provisions of this Agreement will remain in full force and effect.
16.08 Waiver. No delay or omission by either party to exercise any
right or power it has under this Agreement shall impair or be construed as a
waiver of such right or power. A waiver by any party of any breach or covenant
shall not be construed to be a waiver of any succeeding breach or any other
covenant. All waivers must be in writing and signed by the party waiving its
rights.
16.09 Publicity. Neither Liberty nor UFL shall use the other party's
name or refer to it directly or indirectly in any media release, public
announcement or public disclosure relating to this Agreement or its subject
matter, including in any promotional or marketing materials, lists or business
presentations without approval from the other party for each such use or
release.
16.10 Entire Agreement. This Agreement and each of the Exhibits,
which are hereby incorporated by reference into this Agreement, is the entire
agreement between the parties with respect to its subject matter, and there are
no other representations, understandings or agreements between the parties
relative to such subject matter.
16.11 Amendments. No amendment to, or change, waiver or discharge
of, any provision of this Agreement shall be valid unless in writing and signed
by an authorized representative of the party against which such amendment,
change, waiver or discharge is sought to be enforced.
16.12 Governing Law and Forum. This Agreement shall be governed by
the laws of the State of Georgia, without reference to conflict of laws
principles. Any claim, controversy or dispute arising out of or relating to this
Agreement shall be resolved by a proceeding in a federal or state court in
Xxxxxx County, Georgia, as appropriate, and Liberty and UFL irrevocably accept
the jurisdiction of the federal and state courts of the State of Georgia for
such claims, controversies or disputes.
16.13 Survival. In addition to those provisions expressly surviving
termination or expiration, the terms of Article 4, Article 5, Section 6.02,
Article 9, Article 10, Article 11, Section 13.07, Article 14, Article 15,
Section 16.10, Section 16.12, this Section 16.14 and
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Section 16.18 shall survive the expiration of this Agreement or termination of
this Agreement for any reason.
16.14 Third-Party Beneficiaries. Each party intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any person or entity other than UFL and Liberty.
16.15 Insurance. During the Term, Liberty shall maintain insurance
of the following types and in the following amounts, in each case effective in
the United States and Canada: (1) statutory workmen's compensation in accordance
with all federal, state and local requirements, (2) comprehensive general public
liability (including contractual liability insurance) in an amount not less than
$XXX with umbrella coverage of not less than $XXX and (3) professional liability
coverage in an amount not less than $XXX with umbrella coverage of not less than
$XXX. No insurance shall have greater than a $XXX deductible unless approved in
writing in advance by UFL. All insurance polices obtained or maintained by
Liberty pursuant to this Agreement shall name UFL as an additional insured.
Liberty shall not cancel (or permit any lapse) under any such insurance policy.
Each insurance policy shall contain the agreement of the insurer that the
insurer shall not cancel such policy without 30 days' notice to UFL. Liberty
shall deliver to UFL a certificate of insurance evidencing the above insurance
coverage upon UFL's request. Should Liberty fail or refuse to procure the
required insurance coverage from an insurance carrier acceptable to UFL, or to
maintain such coverage throughout the term of this Agreement, UFL may, but shall
not be obligated to, procure such coverage for Liberty, in which event Liberty
agrees to pay the required premiums and/or to fully reimburse UFL for them.
Liberty also shall carry such workers' compensation insurance for itself as may
be required by applicable law.
16.16 Hiring of Employees. Except as provided in Section 3A.06,
during the Term or the Renewal Term and for a period of one (1) year following
the expiration of this Agreement or termination of this Agreement for any
reason, neither party shall offer employment to or employ any person then
employed by the other party who is materially involved in providing or
administering the Base Services or the Additional Services; provided, however,
that UFL may offer employment to and employ any Liberty employees involved in
performing services under this Agreement upon any termination of this Agreement
by UFL due to Liberty's material breach of this Agreement. UFL may at any time
directly or indirectly solicit and hire any employee of Liberty after such
employee is terminated by Liberty.
16.17 Subcontracting. Liberty shall not subcontract any material
portion of the work to be performed under this Agreement without UFL's prior
written consent. In the event Liberty subcontracts any work to be performed
under this Agreement, Liberty shall retain responsibility for the work.
16.18 Remedies. By virtue of each party's duties, responsibilities
and special knowledge of the affairs and operations of the other party that will
result from the relationship of the parties under this Agreement, irreparable
damage may be suffered by the non-breaching party should a party breach or
violate any of its covenants and obligations set forth in this Agreement. The
parties agree that each such covenant and obligations set forth in this
Agreement are reasonably necessary to protect and preserve the interests of the
parties, and that, therefore, in
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addition to all of the remedies provided at law or in equity, the non-breaching
party will be entitled to a temporary restraining order and a permanent
injunction to prevent a breach of any of such covenants or obligations of the
other party.
16.19 Right of Set-Off. UFL will have the right to set-off against
any sums due from UFL to Liberty for damages incurred or suffered by UFL as a
result of any breach of this Agreement, and any application as a set-off of any
such sums will not be considered in full satisfaction of or as liquidated
damages for any such breach. The existence of any claim, demand, or cause of
action of Liberty against UFL, whether predicated upon this Agreement or
otherwise, will not constitute a defense to the enforcement by UFL of any of the
covenants or obligations herein.
16.20 Terms of Agreement. UFL and Liberty agree that the terms and
conditions of this Agreement are Confidential Information of each party and
shall be held pursuant to Article 10 as Confidential Information of the other
party.
16.21 Transfer of Policies. Nothing in this Agreement shall limit
the right of UFL or, after Closing, UFL or PNL, to sell or otherwise transfer
any of the Policies subject to this Agreement and any Policies which are
transferred shall no longer be subject to the terms of this Agreement.
ARTICLE 17
GUARANTY.
(a) In consideration of, and as an inducement to, the execution of
this Agreement, The Liberty Corporation unconditionally (1) guarantees to
UFL and its successors and assigns, for the Term or the Renewal Term of
the Agreement and afterward as provided in the Agreement, that Liberty
shall punctually pay and perform each and every undertaking, agreement and
covenant set forth in this Agreement and (2) agrees to be bound by, and
liable for the breach of, each and every provision in the Agreement, both
monetary obligations and obligations to take or refrain from taking
specific actions or to engage or refrain from engaging in specific
activities. The guaranty under this Section 17(a) shall continue in full
force and effect, and the obligations of The Liberty Corporation shall
remain absolute and unconditional irrespective of any and all
circumstances, including, without limitation, any assignment,
modification, amendment, extension, renewal, waiver of any terms or
conditions of or termination of this Agreement. UFL agrees to provide to
The Liberty Corporation copies of all notices of default given by UFL to
Liberty simultaneously with such notices (if any) being given to Liberty.
(b) The Liberty Corporation consents and agrees: (1) that The
Liberty Corporation shall render any payment or performance required under
this Agreement upon demand if Liberty fails or refuses punctually to do
so; (2) such liability shall not be contingent or conditioned upon pursuit
by UFL of any remedies against Liberty or any other person or entity, (3)
to waive any demand, protest, notice of protest, right to direct the
application of any security or the right to direct UFL to proceed against
Liberty, any
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security, insurance or other guarantor; and (4) such liability shall not
be diminished, relieved or otherwise affected by any extension of time,
credit or other indulgence which UFL may from time to time grant to
Liberty or to any other person, including, without limitation, the
acceptance of any partial payment or performance or the compromise or
release of any claims, none of which shall in any way modify or amend this
guaranty, which shall be continuing and irrevocable during the term of
this Agreement.
(c) In consideration of, and as an inducement to, the execution of
this Agreement, Fortis unconditionally (1) guarantees to Liberty and its
successors and assigns, for the Term of the Agreement and afterward as
provided in the Agreement, that UFL shall punctually pay and perform each
and every undertaking, agreement and covenant set forth in this Agreement
and (2) agrees to be bound by, and liable for the breach of, each and
every provision in the Agreement, both monetary obligations and
obligations to take or refrain from taking specific actions or to engage
or refrain from engaging in specific activities. The guaranty under this
Section 17(c) shall continue in full force and effect, and the obligations
of Fortis shall remain absolute and unconditional irrespective of any and
all circumstances, including, without limitation, any assignment,
modification, amendment, extension, renewal, waiver of any terms or
conditions of or termination of this Agreement. Liberty agrees to provide
to Fortis copies of all notices of default given by Liberty to UFL
simultaneously with such notices (if any) being given to UFL.
(d) Fortis consents and agrees: (1) that Fortis shall render any
payment or performance required under this Agreement upon demand if UFL
fails or refuses punctually to do so; (2) such liability shall not be
contingent or conditioned upon pursuit by Liberty of any remedies against
UFL or any other person or entity; (3) to waive any demand, protest,
notice of protest, right to direct the application of any security or the
right to direct Liberty to proceed against UFL, any security, insurance or
other guarantor; and (4) such liability shall not be diminished, relieved
or otherwise affected by any extension of time, credit or other indulgence
which Liberty may from time to time grant to UFL or to any other person,
including, without limitation, the acceptance of any partial payment or
performance or the compromise or release of any claims, none of which
shall in any way modify or amend this guaranty, which shall be continuing
and irrevocable during the Term or any Renewal Term.
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IN WITNESS WHEREOF, Liberty, The Liberty Corporation, UFL and Fortis
have each caused this Agreement to be signed and delivered by their duly
authorized representatives.
UNITED FAMILY LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Printed Name: Xxxx X. Xxxxxx
-----------------------------
Title: President and CEO
------------------------------------
LIBERTY INSURANCE SERVICES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Printed Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: President
------------------------------------
THE LIBERTY CORPORATION
By: /s/ W. Xxxxx Xxxx
----------------------------------------
Printed Name: W. Xxxxx Xxxx
-----------------------------
Title: President
------------------------------------
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FORTIS, INC.
By: /s/ J. Xxxxxx Xxxxxx, Xx.
----------------------------------------
Printed Name: J. Xxxxxx Xxxxxx, Xx.
-----------------------------
Title: Executive Vice President
------------------------------------
The undersigned, Xxxxxx National Life Insurance Company, a
California domiciled insurer with administrative offices located at 0000 Xxxx
Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, hereby executes the
foregoing Administrative Services Agreement for purposes of being bound by the
covenants of the undersigned contained in Section 3.16 and Article 3A of such
agreement. From and after the Closing, the undersigned agrees to be bound by the
provisions of the foregoing Agreement.
XXXXXX NATIONAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Printed Name: Xxxxxx X. Xxxxxxx.
-----------------------------
Title: President
------------------------------------
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