MANAGEMENT SERVICES AGREEMENT
EXHIBIT 10.63
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 West American Insurance Company (“WAIC”), an Indiana stock insurance company.
I. Performance of Services Liberty Mutual agrees, to the extent requested by WAIC, to perform such
services (collectively, “services”) for WAIC as WAIC 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 WAIC, including all
laws and regulations relating to review of WAIC’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 WAIC or bind WAIC 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 WAIC,
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 WAIC’s Board of
Directors and responsible officers, Liberty Mutual shall provide WAIC 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 WAIC is
transacting business, the maintenance of necessary and proper records and books of account with
respect to the business of WAIC, and the maintenance and compilation of all data required for the
preparation of tax returns.
2. Assistance to WAIC in connection with the examination or audit of the books, records,
affairs and activities of WAIC by governmental, insurance or taxing authorities having regulatory
or taxing authority with respect to the operations of WAIC, or by any firm of certified public
accounts appointed by WAIC to audit its books, records and accounts.
3. Assistance to WAIC with treasury and accounts payable functions as may be determined
between the parties. WAIC shall certify to Liberty Mutual the names and specimen signatures of all
officers or employees of WAIC who are authorized to sign instructions of 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 WAIC’s books records and
accounts are owned by WAIC; and WAIC 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 WAIC’s Board
of Directors and responsible officers, Liberty Mutual shall provide WAIC 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 WAIC’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 WAIC and shall provide trouble-shooting
functions on behalf of WAIC.
D. Policy Administration and Production. Subject to the direction and control of WAIC’s Board of
Directors and responsible officers, Liberty Mutual may perform all policy production, print and
mail activities on WAIC’s behalf for all the states in which WAIC currently operates and in which
it may operate in the future.
E. Real Estate Management. Subject to the direction and control of WAIC’s Board of Directors and
responsible officers, Liberty Mutual may handle all matters and issues relating to WAIC’s
real estate purchases, sales, leases and lease-backs.
F. Legal. Subject to the direction and control of WAIC’s Board of Directors and responsible
officers, Liberty Mutual may provide legal services, including litigation management services, to
or on behalf of WAIC.
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 WAIC’s Board of Directors and responsible
officers, Liberty Mutual may perform such other services on behalf of WAIC as it may desire, and as
may be mutually agreed to between Liberty Mutual and WAIC.
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. WAIC shall reimburse Liberty Mutual or 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 WAIC 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 parties shall settle all amounts owing on at least a calendar quarterly basis.
IV. Confidentiality. Liberty Mutual and WAIC 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 WAIC 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 WAIC,
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
WAlC’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 WAIC. 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 WAIC 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 WAIC 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 WAIC that the
services so delegated are not being performed in an appropriate or 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 WAIC, WAIC 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 WAIC or
Liberty Mutual.
(d) The insolvency, voluntary or involuntary bankruptcy, reorganization or liquidation of either
WAIC or Liberty Mutual.
(e) In the event of (i) the acquisition of WAIC 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 WAIC, then this Agreement shall terminate with respect to WAIC 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 or in part, as appropriate, the relevant services shall continue to be provided by Liberty
Mutual until alternate arrangements reasonably can be made by WAIC (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 WAIC Liberty Mutual shall indemnify, defend and hold harmless
WAIC 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 WAIC 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.
WAIC may set off against any amount due Liberty Mutual any amount due to WAIC, pursuant to this or
any other agreement to which the parties to this indemnification are also parties.
B. WAIC’s Indemnification of Liberty Mutual. WAIC shall indemnify Liberty Mutual and hold Liberty
Mutual harmless WAIC 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 |
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| /s/ Xxxxx X. Xxxx | ||||
| By: Xxxxx X. Xxxx | ||||
| Its: Assistant Secretary | ||||
| West American Insurance Company |
||||
| /s/ Xxxxx X. Xxxx | ||||
| By: Xxxxx X. Xxxx | ||||
| Its: Chief Financial Officer | ||||
LIBERTY MUTUAL INSURANCE COMPANY (“Manager”) and WEST AMERICAN 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: Section III 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.
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
|
West American 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 |
