MANAGEMENT SERVICES AGREEMENT
EXHIBIT 10.52
This Management Services Agreement (the “Agreement”) is made and entered into this 15th day of
December, 2001 by and between Liberty Mutual Insurance Company (“Liberty Mutual”), a Massachusetts
mutual insurance company and Peerless Insurance Company (“PIC”), a New Hampshire insurance
corporation.
1. Performance of Services. Liberty Mutual agrees, to the extent requested by PIC, to perform such
services (collectively, “services”) for PIC as PIC 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 PIC, including all
laws and regulations relating to review of PIC’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 PIC or bind PIC 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 PIC, 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
PIC’s Board of Directors and responsible officers, Liberty Mutual shall provide PIC 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
PIC is transacting business, the maintenance of necessary and proper records and books of
account with respect to the business of PIC, and the maintenance and compilation of all data
required for the preparation of tax returns.
2. Assistance to PIC in connection with the examination or audit of the books, records,
affairs and activities of PIC by governmental, insurance or taxing authorities having
regulatory or taxing authority with respect to the operations of PIC, or by any firm of
certified public accountants appointed by PIC to audit its books, records and accounts.
3. Assistance to PIC with treasury and accounts payable functions as may be determined
between the parties. PIC shall certify to Liberty Mutual the names and specimen signatures
of all officers or employees of PIC 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 PIC’s books, records and
accounts are owned by PIC; and PIC 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 PIC’s
Board of Directors and responsible officers, Liberty Mutual shall provide PIC 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 PIC’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 PIC and shall provide trouble-shooting
functions on behalf of PIC.
D. Policy Administration and Production. Subject to the direction and control of PIC’s Board of
Directors and responsible officers, Liberty Mutual may perform all policy production, print and
mail activities on PIC’s behalf for all the states in which PIC currently operates and in which it
may operate in the future.
E. Real Estate Management. Subject to the direction and control of PIC’s Board of Directors and
responsible officers, Liberty Mutual may handle all matters and issues relating to PIC’s real
estate purchases, sales, leases and lease-backs.
F. Legal. Subject to the direction and control of PIC’s Board of Directors and responsible
officers, Liberty Mutual may provide legal services, including litigation management services, to
or on behalf of PIC.
G. General Administration. Providing all personnel, equipment, data processing programs, materials
and supplies necessary or desirable for the performance of the services contemplated ill this
Agreement.
H. Miscellaneous. Subject to the direction and control of PIC’s Board of Directors and responsible
officers, Liberty Mutual may perform such other services on behalf of PIC as it may desire, and as
may be mutually agreed to between Liberty Mutual and PIC.
II. Charges. PIC 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 PIC 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. Amounts 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 PIC 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
PIC 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 PIC, 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 addition, 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
PIC’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 PIC. 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 15th day of December, 2001 and shall
continue in full force and 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 PIC 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 parts
or in its entirety, as appropriate, 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 PIC 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 PIC, PIC may immediately terminate this Agreement.
(b) nonpayment of costs by a delegating party to the party performing the
services so delegated.
(c) The suspension, revocation or other restriction on the insurance license of
either PIC or Liberty Mutual.
(d) The insolvency, voluntary or involuntary bankruptcy, reorganization or
liquidation of either PIC or Liberty Mutual.
(e) In the event of (i) the acquisition of PIC by a third party from Liberty
Mutual; or (ii) any other change in control which causes Liberty Mutual to no longer
maintain a majority on the Board of Directors of PIC, then this Agreement shall
terminate with respect to PIC as of he 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 PIC (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 the 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 compensated 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 PIC. Liberty Mutual shall indemnify, defend
and hold harmless PIC 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
PIC 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 regulation, 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
o f any subcontractor appointed by Liberty Mutual if such breach is the result of willful neglect
or gross negligence. PIC may set off against any amount due Liberty Mutual any amount due to PIC,
pursuant to this or any other agreement to which the parties to this indemnification are also
parties.
B. PIC’s Indemnification of Liberty Mutual. PIC 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 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
|
Peerless Insurance Company | |
/s/ |
/s/ | |
Its:
|
Its: |
LIBERTY MUTUAL INSURANCE COMPANY (“Manager”) and PEERLESS INSURANCE COMPANY (“Company”);
(hereinafter together called the “Parties”)
WHEREAS, the Parties entered into the Agreement for Manager to provide various services effective
December 15, 2001.
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 | Peerless 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 | ||||
Peerless Insurance Company
00 Xxxxx Xxxxxx
Xxxxx, XX 00000
00 Xxxxx Xxxxxx
Xxxxx, XX 00000
October 13, 2005
RE: Letter Agreement Regarding Reinsurance Services
This letter will confirm that, effective as of December 15, 2001, Liberty Mutual Insurance
Company’s performance of the following services for and on behalf of Peerless Insurance Company is
encompassed by the terms of the Management Services Agreement dated as of December 15, 2001 between
the parties:
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.
/s/ Xxxxx X. Xxxx
|
/s/ Xxxxx X. Xxxx | ||
Xxxxx X. Xxxx, Asst. Secretary
|
Xxxxx X. Xxxx, Chief Financial Officer | ||
Liberty Mutual Insurance Company
|
Peerless Insurance Company |
