MANAGEMENT SERVICES AGREEMENT
EXHIBIT 10.30
This Management Services Agreement (the “Agreement”) is made and entered into this 1st
day of January 2006, by and between Liberty Mutual Insurance Company (“Liberty Mutual”), a
Massachusetts stock insurance company and Gulf States AIF, Inc.
(“Gulf”), a Texas corporation, for
and on behalf of itself and as Attorney-in-Fact for America First Lloyds’ Insurance Company
(“AFLIC”), a Texas Lloyds’ company.
I. Performance of Services. Liberty Mutual agrees, to the extent requested by Gulf, to
perform such services (collectively, “services”) for AFLIC as Gulf determines to be reasonably
necessary or desirable in the conduct of AFLIC’s 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
AFLIC, including all laws and regulations relating to review of AFLIC’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 Gulf or bind Gulf 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 AFLIC, 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 Gulf’s
Board of Directors and responsible officers, Liberty Mutual shall provide AFLIC 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 AFLIC is
transacting business, the maintenance of necessary and proper records and books of account with
respect to the business of AFLIC, and the maintenance and compilation of all data required for the
preparation of tax returns.
2. Assistance to AFLIC in connection with the examination or audit of the books, records,
affairs and activities of AFLIC by governmental, insurance or taxing authorities having regulatory
or taxing authority with respect to the operations of AFLIC, or by any firm of certified public
accounts appointed by Gulf to audit AFLIC’s books, records and accounts.
3. Assistance to AFLIC with treasury and accounts payable functions as may be determined
between the parties. Gulf shall certify to Liberty Mutual the names and specimen signatures of all
officers or employees of Gulf who are authorized to sign instructions on AFLIC’s 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 AFLIC’s books records and
accounts are owned by AFLIC; and Gulf shall have the right to inspect, or authorize others to
inspect, AFLIC’s books, records and accounts.
B. Purchasing, payroll and employee benefits. Subject to the direction and control of Gulf’s Board
of Directors and responsible officers, Liberty Mutual shall provide AFLIC 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 desirable.
C. Information Technology and Support. Subject to the direction and control of Gulf’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 AFLIC and shall provide trouble-shooting
functions on behalf of AFLIC.
D. Policy Administration and Production. Subject to the direction and control of Gulf’s Board of
Directors and responsible officers, Liberty Mutual may perform all policy production, print and
mail activities on Gulf’s behalf for all the states in which Gulf currently operates and in which
it may operate in the future.
E. Real Estate Management. Subject to the direction and control of Gulf’s Board of Directors and
responsible officers, Liberty Mutual may handle all matters and issues relating to AFLIC’s real
estate purchases, sales, leases and lease-backs.
F. Legal. Subject to the direction and control of Gulf’s Board of Directors and
responsible officers, Liberty Mutual may provide legal services, including litigation
management services, to or on behalf of AFLIC.
G. General Administration. Providing all personnel, equipments, 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 Gulf’s Board of Directors and
responsible officers, Liberty Mutual may perform such other services on behalf of AFLIC as Gulf
may desire, and as may be mutually agreed to between Liberty Mutual and Gulf.
II. Charges. AFLIC, through Gulf, 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 AFLIC 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, Gulf and AFLIC 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 on the one hadn, or Gulf or AFLIC on the other, 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, Gulf or AFLIC, 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 AFLIC’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 Gulf. 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 1st day of January 2006 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 AFLIC, Gulf or Liberty Mutual, without cause, 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 AFLIC, Gulf 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 Gulf or AFLIC
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 Gulf and AFLIC, Gulf and AFLIC 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 AFLIC or
Liberty Mutual.
(d) The insolvency, voluntary or involuntary bankruptcy, reorganization or liquidation of either
AFLIC, Gulf or Liberty Mutual.
(e) In the event of (i) the acquisition of Gulf or AFLIC by a third party from Liberty Mutual; (ii)
Gulf’s ceasing to be Attorney-in-Fact for AFLIC; or (iii) any other change in control which causes
Liberty
Mutual to no longer maintain a majority on the Board of Directors of Gulf, then this
Agreement shall terminate 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 Gulf or AFLIC as
applicable (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 Gulf and AFLIC. Liberty Mutual shall indemnify,
defend and hold harmless Gulf, as applicable, 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 Gulf or AFLIC, as applicable, 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. Gulf or
AFLIC, as applicable, may set off against any amount due Liberty Mutual any amount due to Gulf or
AFLIC, as applicable, pursuant to this or any other agreement to which the parties to this
indemnification are also parties.
B. AFLIC’s Indemnification of Liberty Mutual. AFLIC shall indemnify Liberty Mutual
and hold Liberty Mutual harmless 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 agree 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 services, 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 | |||
| Gulf States AIF, Inc. as Attorney-in-Fact for America First Lloyds’ Insurance Company | ||||
| /s/ Xxxxx X. Xxxx | ||||
By:
|
Xxxxx X. Xxxx | |||
Its:
|
Chief Financial Officer | |||
| Gulf States AIF, Inc. | ||||
| /s/ Xxxxx X. Xxxx | ||||
By:
|
Xxxxx X. Xxxx | |||
Its:
|
Chief Financial Officer | |||
LIBERTY MUTUAL INSURANCE COMPANY (“Manager”) and GULF STATES AIF, INC., as attorney-in-fact for
America First Lloyds’ Insurance Company (“Company”);
(hereinafter together called the “Parties”).
WHEREAS, the Parties entered into the Agreement for Manager to provide various services effective
January 1, 2006.
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 | Gulf States AIF, Inc. as attorney-in-fact for America First Lloyds’ 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 | |||||
by and between
LIBERTY MUTUAL INSURANCE COMPANY (“Manager”) and GULF STATES AIF, INC., as attorney-in-fact
for America First Lloyds’ Insurance Company (“Company”); (hereinafter together called the
“Parties”).
WHEREAS, the Parties entered into the Management Services Agreement, effective January 1, 2006, and
amended by Amendment No. 1 as of December 31, 2007 (the “Agreement”) for Manager to provide various
services; and
WHEREAS, the Parties deem it desirable to amend certain provisions of the Agreement with respect to
the provision of services by Manager.
NOW, THEREFORE, the Parties hereto agree to amend the Agreement, as follows:
| 1. | Section I.H of the Agreement is deleted and the following new Section I.H is hereby inserted in its place: |
Reinsurance Services. Reinsurance services, including, but not limited to
(a) 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.
| 2. | A new Section I.I is hereby added to the Agreement: |
Miscellaneous. Subject to the direction and control of Gulf’s Board of
Directors and responsible officers, Liberty Mutual may perform such other
services on behalf of AFLIC as are reasonable and consistent with the
efficient operation of companies within an
insurance holding company system and offered by Liberty Mutual or
its affiliates to other members of its holding company system.
Except as provided herein, the terms and provisions of the Agreement shall remain the same and in
full force and effect.
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment No. 2 to the Agreement, effective
as of the 1st day of January, 2006 to be executed by their respective duly authorized officers.
| Liberty Mutual Insurance Company | Gulf States AIF, Inc. as attorney-in-fact for America First Lloyds’ Insurance Company |
|||||||
| /s/ Xxxx X. Xxxxx | /s/ Xxxxxxx X. Xxxxxx | |||||||
By:
|
Xxxx X. Xxxxx | By: | Xxxxxxx X. Xxxxxx | |||||
Its:
|
Vice President and Comptroller | Its: | Chief Financial Officer | |||||
