MANAGEMENT SERVICES AGREEMENT
EXHIBIT 10.49
This Management Services Agreement (the “Agreement”) is made and entered into this 24 day of August
2007, by and between Liberty Mutual Insurance Company (“Liberty Mutual”), a Massachusetts stock
insurance company and Ohio Security Insurance Company (“OSIC”), an Ohio stock insurance company.
1. Performance of Services. Liberty Mutual agrees, to the extent requested by OSIC, to perform such
services (collectively, “services”) for OSIC as OSIC determines to be reasonably necessary or
desirable in the conduct of its operations; provided, however, that Liberty Mutual may, in its sole
discretion, decline to provide any of the services contemplated in this Agreement if providing the
requested services would interfere with Liberty Mutual’s ability to meet its obligations to its
policyholders or would otherwise adversely affect Liberty Mutual. All services provided under this
Agreement shall comply with all applicable state laws and regulations governing OSIC, including all
laws and regulations relating to review of OSIC’s books and records. As may be necessary for the
performance of Liberty Mutual’s services under this Agreement, Liberty Mutual shall have the
authority to negotiate or conclude contracts on behalf of OSIC or bind OSIC to any such contracts.
The listing of the following services to be performed under this Agreement is not intended to limit
the performance of other services that may be provided by Liberty Mutual to or on behalf of OSIC,
as may be agreed to by the parties from time to time:
A. Accounting, financial, tax and auditing. Subject to the direction and control of XXXX’x Board of
Directors and responsible officers, Liberty Mutual shall provide OSIC with such financial and
accounting services as may be desirable, including:
1. Preparation and maintenance of annual and quarterly financial statements and other reports
providing information required by the state of domicile and other states in which OSIC is
transacting business, the maintenance of necessary and proper records and books of account with
respect to the business of OSIC, and the maintenance and compilation of all data required for the
preparation of tax returns.
2. Assistance to OSIC in connection with the examination or audit of the books, records,
affairs and activities of OSIC by governmental, insurance or taxing authorities having regulatory
or taxing authority with respect to the operations of OSIC, or by any firm of certified public
accounts appointed by OSIC to audit its books, records and accounts.
3. Assistance
to OSIC with treasury and accounts payable functions as may be determined
between the parties. OSIC shall certify to Liberty Mutual the names and specimen signatures of all
officers or employees of OSIC who are authorized to sign instructions on its behalf. Liberty Mutual
shall have the right to require that all instructions made in connection with this Agreement meet
its satisfaction as to content, form and authenticity.
Nothing in this Agreement shall be construed to alter the fact that OSIC’s books records and
accounts are owned by OSIC; and OSIC shall have the right to inspect, or authorize others to
inspect, its books, records and accounts.
B. Purchasing, payroll and employee benefits. Subject to the direction and control of OSIC’s Board
of Directors and responsible officers, Liberty Mutual shall provide OSIC with such services
involving purchasing (including access to group purchasing contracts and fleet management
services), payroll processing, and employee relations and/or benefits as may be permissible and
desirable.
C. Information Technology and Support. Subject to the direction and control of OSIC’s Board of
Directors and responsible officers, Liberty Mutual shall provide the technology infrastructure,
information technology systems, software, data center management, network management services,
monitoring, management/oversight, and support services to OSIC and shall provide trouble-shooting
functions on behalf of OSIC.
D. Policy Administration and Production. Subject to the direction and control of OSIC’s Board of
Directors and responsible officers, Liberty Mutual may perform all policy production, print and
mail activities on OSIC’s behalf for all the states in which OSIC currently operates and in which
it may operate in the future.
E. Real Estate Management. Subject to the direction and control of OSIC’s Board of Directors and
responsible officers, Liberty Mutual may handle all matters and issues, relating to OSIC’s real
estate purchases, sales, leases and lease-backs.
F. Legal. Subject to the direction and control of OSIC’s Board of Directors and responsible
officers, Liberty Mutual may provide legal services, including litigation management services, to
or on behalf of OSIC.
G. General Administration. Providing all personnel, equipment, data processing program, materials
and supplies necessary or desirable for the performance of the services contemplated in this
Agreement.
H. Miscellaneous. Subject to the direction and control of OSIC’s Board of Directors and responsible
officers, Liberty Mutual may perform such other services on behalf of OSIC as it may desire, and as
may be mutually agreed to between Liberty Mutual and OSIC.
I. Reinsurance. Reinsurance services including, but not limited to (i) agreement to reinsurance
policy and/or contract wordings and endorsements to existing policies; (ii) processing of
reinsurance policy cancellations, nonrenewals and endorsements and other amendatory addenda; (iii)
collection of premiums due under reinsurance policies or contracts, audits and remittances; (iv)
negotiation and purchase of reinsurance coverage; (v) administration of letters of credit and other
arrangements for the provision of security; and (vi) administration of reinsurance contracts.
II. Charges. OSIC shall reimburse Liberty Mutual for the reasonable cost of performing any of the
services provided pursuant to this Agreement. Charges for such services shall include direct
expenses and directly allocable expenses allocated to OSIC by Liberty Mutual in conformity with
customary insurance accounting practices consistently applied. The method of expense allocations
under this Agreement shall be consistent with the principles stated in the Statement of Statutory
Accounting Principles No. 70, “Allocation of Expenses.”
III. Accounts and Disbursements. Amount owing between the parties shall be settled between the
parties on a monthly basis, unless otherwise agreed to between the parties, provided, however, that
the patties shall settle all amounts owing on at least a calendar quarterly basis.
IV. Confidentiality. Liberty Mutual and OSIC are prohibited from disclosing or communicating to any
other person, not a party to this Agreement, any confidential or proprietary information or trade
secrets relating to the parties respective business or relating to any affiliate or agency of any
party to this agreement, including business methods and techniques, research data, marketing and
sales information, customer lists, know-how and any other information concerning, the business
operations of any party of this Agreement, or any such party’s affiliates and subsidiaries, unless
the disclosure of communication of such information has been consented to in writing by the party
whose confidential and propriety information or trade secrets is to be released. Confidential and
proprietary information shall not include (a) information generally known to the public, (b)
information known to Liberty Mutual or OSIC to be non-confidential from other, third party, sources
prior to the execution of this Amendment, and (c) information required to be disclosed by law or a
state or federal governmental agency having authority over the business of Liberty Mutual or OSIC,
but only for the limited purpose of such disclosure.
V. Standards for Performance of Delegated Administrative and Management Functions.
A. At all times during the term of the Agreement, Liberty Mutual shall perform all delegated
administrative and management functions at a level that is at least equal to its standards for
performing such functions on behalf of its own insurance operations. In additions, all delegated
administrative and management functions shall be performed in accordance with, and subject to, at
all times the relevant and applicable state (or federal) insurance laws and regulations to which
OSIC’s insurance operations are, or may be, subject.
B. In the event that Liberty Mutual receives a notice from any governmental agency, board, bureau,
commission or public authority of any type, of any alleged violation of any state or federal
insurance law, such notice shall immediately be forwarded to OSIC. Liberty Mutual shall cooperate
in responding to any such governmental notice as such notice relates to its rendering of services
under the Agreement.
VI. Term and Termination.
A. Term. This Agreement shall be effective as of the 24 day of August 2007 and shall continue in
full force an effect until terminated in accordance with subsection B, below. In
the event that this Agreement is required to be approved by any state Department of Insurance, any
request for such approval shall seek an effective date that mirrors the date expressed above.
B. Termination.
1. Termination without Cause, This. Agreement may be terminated, in whole or in relevant part, as
appropriate, by OSIC or Liberty Mutual, without case upon ninety (90) days prior written notice.
The terminating, party shall provide the applicable state Department(s) of Insurance with written
notification of any whole or partial termination of this Agreement, as may be appropriate, in
accordance with state law requirements.
2. Termination with Cause. This Agreement may be terminated immediately, in relevant part, as
appropriate, by OSIC or Liberty Mutual, for the following reasons:
(a) Material failure by Liberty Mutual to perform the services delegated in accordance with the
standards set forth in this Agreement; provided, however, that upon notification by OSIC that the
services so delegated are not being performed in an appropriate of satisfactory manner, Liberty
Mutual shall have thirty (30) days in which to cure the deficiency. In the event the deficiency is
not cured to the satisfaction of OSIC, OSIC may immediately terminate this Agreement.
(b) nonpayment of costs by a delegating party of the party performing the services so delegated.
(c) The suspension, revocation or other restriction on the insurance license of either OSIC or
Liberty Mutual.
(d) The insolvency, voluntary or involuntary bankruptcy, reorganization or liquidation of either
OSIC or Liberty Mutual.
(e) In the event of (i) the acquisition of OSIC by a third party from Liberty Mutual; or (ii) any
other change in control with causes Liberty Mutual to no longer maintain a majority on the Board of
Directors of OSIC, then this Agreement shall terminate with respect to OSIC as of the effective
date of the change of control.
C. Effect of Termination. In the event that this Agreement is terminated, with, or without, cause,
in whole .of in part, as appropriate, the relevant services shall continue to be provided by
Liberty Mutual until alternate arrangements reasonably can be made by OSIC (the “Transition
Services”); provided, however, that the Transition Services shall not be required to be provided
for a period of time extending beyond ninety (90) days from the effective date of termination,
unless otherwise agreed to by parties. In the event that this Agreement is terminated, in whole or
in part, as appropriate, for any reason other than those relating to change of control as described
in Section VI,B.2(e), above, all such Transition Services shall continue to be compensation for on
a cost basis. In the event that this Agreement is terminated for reasons specified in Section
VI.B.2(e), above, all such Transition Services shall be compensated for at the then-prevailing
market rate for the provision of such services.
VII. Indemnification.
A. Liberty Mutual Indemnification of OSIC. Liberty Mutual shall indemnify, defend and hold harmless
OSIC from and against any expenses, damages, liability, actions, costs or other claims., including
but not limited to reasonable attorney’s fees and associated costs, incurred by OSIC either (i) as
a result of the failure of Liberty Mutual or any subcontractor appointed by Liberty Mutual to
comply with any law or administrative regulations, only if such failure is the result of willful
neglect or gross negligence, or (ii): as a result of, or in connection with, Liberty
Mutual’s breach of any duty or obligation hereunder or the breach of any duty or obligation of any
subcontractor appointed by Liberty Mutual if such breach is the result of willful neglect or gross
negligence. OSIC may set off against any amount due Liberty Mutual any amount due to OSIC, pursuant
to this or any other agreement to which the parties, to this indemnification are also parties.
B. OSIC’s Indemnification of Liberty Mutual, OSIC shall indemnify Liberty Mutual and hold Liberty
Mutual harmless OSIC from all actions, liabilities, costs and expenses arising out of or in any way
related to Liberty Mutual’s services under this Agreement, unless directly related to Liberty
Mutual’s willful neglect or gross negligence.
VIII. No Waiver. The parties hereto agreement that no indulgence or acceptance of any delinquent or
partial payment or ratification after the fact of any violation or breach of any provision of this
Agreement by any party hereto shall be construed as a waiver of any party’s rights hereunder.
IX. Notices. Any notice required to be given pursuant to any provision of this Agreement shall be
in writing and shall be sent to the parties at their respective last known address by first class
mail, postage prepaid, by overnight delivery service, or by confirmed facsimile transmission.
X. Severability. If any provision of this Agreement is held invalid or unenforceable, such
invalidity or unenforceability shall not affect any other provision, and the Agreement shall be
construed and enforced as if that provision had not been included.
XI. Amendment. This Agreement may only be amended upon the written agreement of both parties
hereto.
XII. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be
considered an original, but all of which together, shall be considered one and the same.
XIII. Governing Law. This Agreement shall be governed by and construed in accordance with the laws
of the Commonwealth of Massachusetts (without application of the conflict of laws principles
thereof).
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement under seal
as of the day and year first above written.
| Liberty Mutual Insurance Company | ||||
| /s/ Xxxxx X. Xxxx | ||||
By:
|
Xxxxx X. Xxxx | |||
Its:
|
Assistant Secretary | |||
| Ohio Security Insurance Company | ||||
| /s/ Xxxxx X. Xxxx | ||||
By:
|
Xxxxx X. Xxxx | |||
Its:
|
Chief Financial Officer | |||
LIBERTY MUTUAL INSURANCE COMPANY (“Manager”) and OHIO SECURITY INSURANCE COMPANY (“Company”);
(hereinafter together called the “Parties”).
WHEREAS, the Parties entered into the Agreement for Manager to provide various services effective
August 24, 2007.
WHEREAS, the Parties deem it necessary to amend certain provisions of the Agreement with respect to
settlement of amounts due between them.
NOW, THEREFORE, the Parties hereto agree to amend the Agreement, as follows:
1. Section III “Accounts and Disbursements” of the Agreement is amended and restated as follows:
III. Accounts and Disbursements. Amounts owing between the parties shall be settled
between the parties on a quarterly basis and payments of amounts owing shall be made within
45 days after the end of the calendar quarter.
2. Section I. “Performance of Services” is hereby amended to include a new subsection I.
“Maintenance and Property Rights of Records:”
I. Maintenance and Property Rights of Records. Manager shall maintain accurate and
complete records as related to this Agreement. Each of the Parties shall retain the rights
to access such records upon request.
3. Section XV. “Successors and Assigns” is hereby added to the Agreement.
XV. Successors and Assigns. No assignment of this Agreement, including by operation of
Law, may be made by any party to this Agreement without the prior written consent of other
party hereto. Notwithstanding the foregoing, the Manager has full discretion to delegate
any of its responsibilities, duties and authority set forth herein to, or otherwise to
utilize any of its affiliates to provide
services under this Agreement, provided that Manager will be fully accountable for any
acts or omissions of an affiliate pursuant to such an arrangement, as if such acts or
omissions were its own.
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment No. 1 to the Agreement, effective
as of the 31st day of December, 2007 to be executed by their respective duly authorized officers.
| Liberty Mutual Insurance Company | Ohio Security Insurance Company | ||||||
| /s/ Xxxx X. Xxxxx | /s/ Xxxxx X. Xxxx | ||||||
By:
|
Xxxx X. Xxxxx | By: | Xxxxx X. Xxxx | ||||
Its:
|
Vice President and Comptroller | Its: | Chief Financial Officer | ||||
