EXHIBIT 10.9
MASTER SERVICES AGREEMENT
This Master Services Agreement is made this 4th day of August, 2006 (the
"Effective Date") between XL SERVICES (BERMUDA) LTD, a service company
incorporated under the laws of Bermuda ("XLBS") (for purposes of this form of
agreement, the "SERVICE PROVIDER"); and SCA BERMUDA ADMINISTRATIVE Ltd, a
company incorporated under the laws of Bermuda ("SCA BS") (for purposes of this
form of agreement, the "Company") (each a "Party" and collectively the
"Parties").
WHEREAS:
Service Provider and Company are currently wholly owned subsidiaries of the XL
Capital Ltd group of companies ("XL Group"); and
Service Provider provides certain services to XL Group companies including the
Company; and
It is contemplated that an initial public offering will be made of a portion of
the capital stock of Security Capital Assurance Ltd, a parent of the Company,
resulting in partial public ownership of Security Capital Assurance Ltd; and
Service Provider and the Company both desire for Service Provider to continue to
provide certain services to Company following the initial public offering of
Security Capital Assurance Ltd; and
Service Provider and the Company desire to enter into this Agreement to set
forth the roles and responsibilities with regard to services to be provided by
Service Provider to the Company.
Now, in consideration for the mutual benefits contained in this Master Services
Agreement, it is agreed as follows:
1. DEFINITIONS
The following words and phrases shall have the meaning given to them
below:
"Actual Cost" shall have the meaning specified in clause 17.2.
"Agreement" means this Master Services Agreement, the Schedules and
Appendices attached to it and any subsequent amendments or alterations
agreed in writing by the Parties.
"AOP" shall have the meaning specified in clause 11.1.
"AOP Objectives" shall have the meaning specified in clause 11.1.
"Employee Costs" shall have the meaning specified in the Schedules
attached hereto.
"Expiration Date" shall have the meaning specified in clause 2.1.
"Fees" shall have the meaning specified in clause 17.1.
"Non-XL Third Party Contractors" means any individual, company or other
legal entity with whom Service Provider enters into a contract for the
benefit of the Company, including (but not
limited to) to enhance its ability to provide any part of the Services,
where such individual, company or other legal entity is not within the
XL Group .
"Representatives" shall have the meaning specified in clause 10.1.
"Services" shall have the meaning specified in clause 3.1.
"Staff" means individuals employed by the Service Provider or with
another company within the XL Group.
"Steering Committee" shall have the meaning specified in Clause 10.3.
"Support Services" means Security Capital Assurance Ltd's and/or the
Company's proportional share of the services provided to and in support
of the Service Provider by any employees of the XL Group, determined on
a per capita basis.
"Third Party Contractors" means both XL Third Party Contractors and
Non-XL Third Party Contractors.
"XL Third Party Contractors" means any individual, company or other
legal entity with whom Service Provider enters into a contract for the
benefit of Company, including (but not limited to) to enhance its
ability to provide any part of the Services, where such individual,
company or other legal entity is within the XL Group.
2. TERM OF THIS AGREEMENT
2.1 This Agreement shall commence on the Effective Date and shall terminate
on the second anniversary of the Effective Date (the "Expiration Date")
unless earlier terminated in accordance with clause 11.1 or 20 of this
Agreement.
3. PROVISION OF SERVICES
3.1 Each Schedule attached to and made a part of this Agreement describes
the services to be provided by Service Provider to the Company, as
amended from time to time by written agreement of the Parties (the
"Services"). The Parties have made a good faith effort as of the date
hereof to identify each Service and to complete the content of the
Schedules accurately. It is anticipated that the Parties will modify the
Services from time to time. In that case or to the extent that any
Schedule is incomplete, the Parties will use good faith efforts to
modify the Schedules. There are certain terms that are specifically
addressed in the Schedules attached hereto that may differ from the
terms provided hereunder. In those cases, the specific terms described
in the Schedules shall govern.
3.2 The Parties may also identify additional Services that they wish to
incorporate into this Agreement. The Parties will create additional
Schedules setting forth the description of such Services, the Fees for
such Services and any other applicable terms.
3.3 Subject to the terms of this Agreement, Service Provider undertakes to
and shall provide the Services to Company to the best of its ability at
all times and to a standard that would reasonably be expected of it by a
professional, independent person or body.
-2-
3.4 Without prejudice to clause 3.3, to the extent that Service Provider is
unable to perform any part of the Services in accordance with this
Agreement, it shall advise Company as soon as reasonably practicable. In
addition, Service Provider shall, to the extent possible, advise Company
of a timetable for it to be able to resume full performance of the
Services in accordance with this Agreement and the steps it is taking in
that regard. Service Provider shall notify the Company to the extent
there is likely to be any deviation from the timetable proposed.
3.5 The Parties acknowledge and agree that Service Provider and the Staff
shall be entitled to provide similar services as the Services to any
other legal entity, provided that in doing so the operation of the
Company is not unreasonably prejudiced and the provision of the Services
to the Company is not materially adversely affected. The Parties further
acknowledge and agree that the Company may retain any individual or
legal entity, other than Service Provider and the Staff, to perform
services similar or identical to the Services; provided that in doing so
the ability of Service Provider to perform any part of the Services in
accordance with this Agreement is not materially adversely affected.
4. PROVISION OF STAFF TO PERFORM THE SERVICES
4.1 Service Provider acknowledges it has been given sufficient information
to understand and appreciate the requirements and operations of the
Company relating to the provision of the Services currently described in
each Schedule. Service Provider shall and undertakes to provide at all
times, Staff or Non-XL Third Party Contractors of the requisite calibre,
and with appropriate training and experience and in sufficient numbers
as required by the Company and as agreed between the Parties and in
accordance with the attached Schedules.
4.2 The Company acknowledges and agrees that at the commencement of this
Agreement the Staff or Non-XL Third Party Contractors provided to
perform the Services are of the requisite calibre, have appropriate
experience and training and are of a sufficient number.
4.3 Clause 4.1 is subject to the Company's business plan and changing
requirements. If the Company's business plan and requirements alter
materially after the date this Agreement commences, the Parties shall
endeavour to agree the additional or reduced requirements relating to
the provision of the Services, and Service Provider shall use its
reasonable best endeavours to fulfil such agreed requirements of the
Company.
4.4 If Service Provider cannot provide Staff to perform the Services, it
shall, with the agreement of Company, contract or subcontract with
Non-XL Third Party Contractors to provide all or part of the Services.
The direction and management of the Non-XL Third Party Contractors
provided to perform the Services on behalf of the Company will be the
responsibility of Service Provider, unless otherwise agreed by the
Parties in writing but only to the extent that Service Provider has
contracted directly with such Non-XL Third Party Contractors.
5. THIRD PARTY CONTRACTORS
5.1 The Company acknowledges and agrees that the provision of the Services
may in part be delegated or contracted or subcontracted to Third Party
Contractors by Service Provider.
5.2 Service Provider may enter into contracts with Third Party Contractors,
including, but not limited to, for the provision of the Services, either
on its own behalf or on its own behalf and on behalf of the Company,
whichever Service Provider reasonably deems appropriate and in the best
interests of Company.
-3-
5.3 When entering into contracts with Third Party Contractors, Service
Provider will have regard to the stated interests of the Company,
including, but not limited to, the identity of the Third Party
Contractor, the terms, costs and period of the contract.
5.4 To the extent Service Provider delegates to, or contracts or
subcontracts with, Third Party Contractors to perform any part of the
Services or to perform specific functions, Service Provider shall
(remain responsible and) be liable to the Company for the (non)
performance of the Services and the (non) performance of such specific
functions in their entirety (and for the oversight and management of the
Third Party Contractors) and in accordance with clause 6.1. below,
unless otherwise agreed in writing by the Company.
6. LIABILITY
6.1 Except to the extent set out in clauses 6.2, to 6.3 below or as a result
of a breach by the Company of its obligations under clause 16.1, Service
Provider shall be liable to indemnify the Company for any loss the
Company incurs (including defence costs) caused by (i) the acts and/or
omissions of Service Provider, its employees, directors and officers in
providing the Services, (ii) the breaches of obligations, acts and/or
omissions of Third Party Contractors, and (iii) the failure of Service
Provider to abide by the terms and conditions of this Agreement. Both
Parties shall take all reasonable steps to mitigate any loss including
pursuing recovery from any third party. Where appropriate, the Parties
further agree they will consult each other in respect of such steps in
accordance with clause 10 below.
6.2 Service Provider shall not be liable to the Company in respect of any
loss caused by acts of God, or any event beyond the reasonable control
of the Parties, including but not limited to nationalization,
expropriation, devaluation, seizure, or similar action by any government
authority, de facto or de jure; or acts of war, terrorism, insurrection
or revolution.
6.3 Service Provider agrees to take all reasonable steps to recover any loss
suffered by Company (for which Service Provider is liable to indemnify
the Company under this Agreement) from any insurer or any third party
liable to Service Provider in respect of such loss. Provided that
Service Provider complies with such obligation in a timely manner, the
Company agrees to delay commencing proceedings against Service Provider
to enforce payment in respect of any claim, which it may have under this
Agreement until such time as and to the extent that Service Provider has
obtained recovery against any third party (including but not limited to
Third Party Contractors and insurers) in respect of such losses.
7. INSURANCE
7.1 Service Provider undertakes it or one of its affiliates has and will
maintain throughout the duration and period of this Agreement
appropriate errors and omissions and directors' and officers' insurance
in full force and effect to cover its liabilities to third parties.
8. LIMITATION OF AUTHORITY
8.1 Except as expressly provided for in this Agreement, or by the Company,
neither Service Provider nor the Staff shall enter into any contract
(including verbal) on behalf of the Company or commit or bind the
Company to any agreement or obligation, or hold it or themselves out as
having authority to do so.
-4-
9. COMPLIANCE
9.1 In providing the Services, Service Provider shall, to the extent within
its control, comply with, and will not do anything or fail to do
anything, which would result in the Company failing to comply with, all
applicable laws, legislation and regulations. In addition, Service
Provider shall comply with relevant principles and guidelines, manuals,
codes and policies issued by the Company to the extent it is made aware
of such principles and guidelines, manuals, codes and policies. It is
agreed and understood that this clause does not affect or reduce the
Company's duty and responsibility with regard to its own regulatory and
legal compliance.
9.2 Service Provider shall direct all enquiries from any regulatory
authority relating to this Agreement or the Services to the Company,
unless (i) the enquiry is specifically addressed to Service Provider (in
which case Service Provider shall procure that the details or a copy of
such enquiry are promptly relayed in writing to the Company), (ii) the
enquiry relates exclusively to a third party and not to Company, or
(iii) otherwise agreed in writing by the Parties.
10. PERSONS RESPONSIBLE FOR THE OPERATION OF THIS AGREEMENT
10.1 The Service Provider and the Company shall each appoint two individuals
to be their respective representatives (the "Representatives") for the
purpose of the operation of this Agreement. The Representatives
(identified below) shall be responsible for, among other things,
managing the relationship, and acting as the principal points of
contact, between the Parties in relation to matters and disputes under
this Agreement.
10.2 Any matters or disputes under this Agreement including matters or
disputes affecting the relationship between the Parties or the
performance of their respective obligations hereunder, shall in the
first instance, be raised to and sought to be resolved by the
Representatives.
10.3 If and to the extent that any matters or disputes cannot be resolved by
the Representatives then the Representatives shall, raise such matters
or disputes with a committee comprised of the members set forth on Annex
A hereto and established by the Parties for the purpose of overseeing
the relationship between the Parties with respect to matters set forth
in this Agreement (the "Steering Committee"). The Steering Committee
shall be responsible for the resolution of those matters and disputes
brought before it.
10.4 The Parties may each appoint Representatives, in lieu of their
Representatives listed below, provided that prior written notice is
given to the other Party in accordance with Section 24 below.
COMPANY REPRESENTATIVES: See Annex A hereto.
SERVICE PROVIDER REPRESENTATIVES: See Annex A hereto.
-5-
11. ANNUAL OPERATING PLAN
11.1 The Parties will coordinate the development of an annual operating plan
("AOP") setting forth the specific objectives, Service standards,
performance measures, activity levels and a detailed budget setting out
the cost estimates, types of services and allocation keys for each of
the Services (collectively, the "AOP Objectives"). The Parties shall
implement the AOP Objectives by January 1 of each calendar year. In the
AOP process, the Parties agree to use their best efforts to harmonize
the interests of Company to have quality services at affordable cost and
the interest of Service Provider to recover its costs of performing the
Services. On or before August 15 of each calendar year, the Company
shall submit to Service Provider a list of the types of services
required from Service Provider, upon which Service Provider shall
establish its budget and cost estimate calculations for purposes of the
AOP. On or before September 15 of each calendar year, an AOP for each
Service for the next calendar year will be submitted to each of the
Representatives of the Company and Service Provider, for review and
approval. Approval by each Party's respective Representatives will
constitute approval by the Parties of the AOP. In the event that the
Parties do not approve the AOP in whole or in part in respect of any
Service, the Service Provider shall have the right to terminate this
Agreement (or any extension hereof entered into pursuant to clause 20.2
below) in respect of any such services upon ninety (90) days written
notice to the Company.
12. PERFORMANCE REVIEW
12.1 The Parties will meet annually on or about July 31 to review progress
against the AOP Objectives, Service standards, performance measures and
activity levels. The Parties will use their good faith efforts to
resolve any issues concerning Service standards, performance measures or
changes in Fees from the AOP during these meetings. If the Parties are
unable to resolve those issues, they will refer the disputed issues, in
the first instance, to their respective Representatives and in the
second instance, to the Steering Committee, pursuant to clause 10 above.
13. DOCUMENTS AND RECORDS
13.1 Service Provider shall establish and/or maintain records relating to
this Agreement and, to the extent reasonable and appropriate, the
Services, in accordance with the document retention policy established
by XL Capital Ltd or in accordance with applicable laws and regulations
if they provide for longer periods of retention.
13.2 Company, its bona fide agents, auditors and/or a relevant regulatory
authority shall have the right on the giving of reasonable prior notice,
to inspect and audit any records of or held by Service Provider relating
to this Agreement and the Services, and shall have the right to make
copies or extracts of any such records.
13.3 In the event that an audit reveals that Service Provider is not
complying with the terms of this Agreement, or any applicable
regulation, principles, guidelines, laws or legislation in any material
respect, Company may, without prejudice to its other rights under this
Agreement, require Service Provider to take all necessary remedial
action within four (4) weeks following disclosure to Service Provider of
such audit results.
13.4 All files, materials, policies and documents prepared or obtained by
Service Provider in the course of carrying out its obligations under
this Agreement shall be and remain the property of Company, and Service
Provider shall treat them accordingly - including keeping them safe and
secure whilst in Service Provider's possession.
-6-
14. CONFIDENTIALITY
14.1 Confidential Information means all information disclosed by either
Company or Service Provider (whether in writing, orally or by another
means) concerning the other Party which comes into their possession as a
consequence of the operation of this Agreement including, without
limitation, information relating to the Parties products, operations,
processes, plans or intentions, product information, know-how, design
rights, trade secrets, market opportunities and business affairs.
14.2 The Parties undertake to hold the Confidential Information in confidence
and not to disclose the Confidential Information (except as provided in
this Agreement) without the prior written consent of the other Party.
14.3 Notwithstanding clause 14.2, and provided prior written notice is
provided to the other Party, the Parties are entitled to disclose that
portion of the Confidential Information required in order to comply with
any legal requirement or any regulation or rule or the requirements of
any rating agency, or to the extent the Confidential Information is
already in the public domain.
15. DATA PROTECTION
15.1 The Parties undertake to comply with all applicable data protection laws
and regulations in any relevant jurisdiction in which personal data (or
any other data, the use or transfer of which is regulated by law and
regulations in that jurisdiction) is transferred or used in connection
with the provision of the Services.
16. BUSINESS CONTINUITY PLAN
16.1 The Parties shall be jointly responsible for devising a plan(s) to
ensure the continuity of the Services in the event of an unforeseen
interruption and any other prudent procedures and measures that are
reasonably necessary to prevent the disruption of the Services
(collectively, the "Business Continuity Plan"). The Company shall be
responsible for maintaining the Business Continuity Plan and Service
Provider shall, in the event of an unforeseen interruption, cooperate to
the best of its ability with the Company to ensure the uninterrupted
provision of Services.
17. REMUNERATION AND FEES
17.1 GENERAL: Within thirty (30) days of the receipt of an invoice from
Service Provider, Company shall pay Service Provider semi-annually, in
arrears, on a "cost plus" basis for each Service as set forth in the
attached Schedules (collectively, the "Fees"). Such invoices shall be
provided at the end of the second and fourth quarter of each calendar
year and each such invoice shall itemize the Fees, the Employee Costs
(as defined in the attached Schedules), and the methodology for
calculating the Employee Costs. The Parties agree that the annual
percentage xxxx up, as set forth in the attached Schedules, will be
determined with the assistance of an unrelated third party utilizing US
tax related transfer pricing guidelines. Except as specifically provided
herein or in the Schedules, or as subsequently agreed in an AOP or
otherwise by Company, Company will not be responsible to Service
Provider or to any Non-XL Third Party Contractor , for any additional
fees, charges, costs or expenses relating to the Services, unless such
additional fees, charges, costs or expenses are a direct result of
Company's unilateral deviation from the scope of the Services defined in
the Schedules.
-7-
17.2 REVIEW OF FEES:
(a) Subject to the provisions of clause 11.1 above, at the end of
each annual period commencing as of January 1, 2006, Service
Provider will review the charges, costs and expenses actually
incurred by Service Provider in providing any Service, as well
as the calculation of any related Fees (collectively, "Actual
Cost") during the previous twelve (12) months. In the event that
Service Provider determines that the Actual Cost for any Service
differs from that set forth in the AOP, Service Provider will
deliver to Company documentation for such Actual Cost, and will
adjust the appropriate Fees retroactively and/or prospectively
as necessary to reflect such differences; provided, however,
that no such adjustment shall increase or decrease the Fees
payable in respect of any Service by more than 15% of the
initial related Fees currently set forth in the related
Schedules for such Service.
(b) As a part of the AOP process referred to in clause 11 above, the
Parties will set Fees or new budgets for each ensuing year, and
may make other changes to the Fees with respect to each Service,
based upon an increase or reduction in the scope of or
requirements for such Service. Once an AOP has been finalized
(whether by agreement or pursuant to the provisions of clause
12.1), the Fee for each Service set out in that AOP will apply
for the ensuing year, subject to any subsequent written
agreements between the Parties.
18. TAXES
18.1 All sums payable pursuant to this Agreement shall be exclusive of any
and other duties and taxes. Any other duties or taxes payable on such
sums shall be payable in addition to such sums.
19. COMPLAINTS
19.1 In accordance with clause 24, the Parties shall notify one another
immediately upon becoming aware of any relevant matter arising out of
the operation of, or in connection with, this Agreement, which has
resulted or could result in a complaint to, including but not limited
to, any regulatory authority or which could give rise to litigation or
proceedings against either Party.
20. TERM AND TERMINATION
20.1 At any time prior to the Expiration Date, upon ninety (90) days written
notice to the Service Provider, this Agreement may be terminated by the
Company either in whole or with respect to one or more of the Services.
20.2 At any time after the Expiration Date, this Agreement may be extended
and/or terminated by the Parties in writing, either in whole or with
respect to one or more of the Services; provided, however, that such
extension and/or termination shall only apply to the Services for which
the Agreement was extended and/or terminated. At least ninety (90) days
prior to the Expiration Date, Company shall give Service Provider
written notice of Company's request to extend the term of or terminate
the Agreement in respect of any Services. In addition, the Parties shall
be deemed to have (i) extended this Agreement with respect to a specific
Service if the Schedule for such Service specifies a completion or
termination date beyond the aforementioned Expiration Date and (ii)
terminated this Agreement with respect to a specific Service if the
Schedule for such Service specifies a completion or termination date
prior to the aforementioned Expiration Date. Services shall be provided
up to and including the date set forth in the applicable Schedule,
subject to earlier termination as provided herein.
-8-
20.3 Other than in respect of Internal Audit Services provided in connection
herewith, which will continue and/or terminate in accordance with the
other relevant provisions of this Agreement, this Agreement shall
terminate in the event XL Group's ownership of common stock of Security
Capital Assurance Ltd falls to 35% or less in which case the Parties
shall have ninety (90) days, from the date of such event, to terminate
all Services unless otherwise agreed by the Parties; provided, however,
that if the reduction in the XL Group's ownership interests referred to
above is initiated by the XL Group, the Service Provider shall use its
reasonable best efforts to maintain the General Ledger and Human
Resources Services provided hereunder, subject to applicable law, until
the Expiration Date, and any additional costs incurred by either the
Service Provider or the Company in connection with the maintenance of
such Services shall be paid by the Service Provider.
20.4 Unless the other Party specifically agrees to the contrary in writing,
this Agreement will be automatically terminated with immediate effect in
the event that one Party shall:-
(a) enter or become the subject of voluntary or involuntary
rehabilitation or liquidation proceedings;
(b) become the subject of an action in bankruptcy;
(c) make or propose any composition with its creditors or make any
assignment for the benefit of its creditors or otherwise
acknowledge its insolvency;
(d) have an administrator or administrative receiver or equivalent
office holder appointed by a court of competent jurisdiction;
(e) have a receiver or equivalent office holder appointed for the
whole or any part of its business;
(f) any past or present director, officer, partner or employee of
Service Provider is convicted of or charged with any criminal
offence involving fraud or dishonesty or any similar criminal
offence which may materially affect the operation of this
Agreement.
20.5 Each Party shall inform the other immediately upon becoming aware of the
occurrence of any of the events set out in clause 20.4 above.
20.6 In the event of persistent and material breaches of any discreet part of
the Services, Company shall inform the Representatives of Service
Provider in writing of the nature of such breaches. The Representatives
shall meet as soon as reasonably practicable to discuss these breaches
(such meeting being expected to occur within seven (7) business days of
receipt of the written notice) and try to agree an action plan designed
to remedy the breaches within a reasonable timeframe acceptable to
Company. Should an action plan not be agreed within a reasonable
timeframe, or the implementation of an action plan not result in the
Services being performed to the specified standards, then the
Representatives shall raise the matter with the Steering Committee, in
accordance with clause 10 above. If the material breaches continue and
the Steering Committee does not provide a resolution to the matter
within a reasonable timeframe, then Company has the right to terminate
the relevant part of the Services with one (1) month's notice. Such
termination will not affect the continuance of the Services not subject
to the persistent and material breaches.
20.7 On termination of any Service provided for in any Schedule or the entire
Agreement, each Party shall bear its own associated costs; Service
Provider will cooperate in good faith with Company
-9-
to provide Company (or its designee) with reasonable assistance to make
an orderly transition from Service Provider to another supplier of the
Services. Service Provider undertakes to work with Company to ensure a
smooth transition and hand-over and to minimise the costs associated
with termination for each Party. Such transition assistance shall
include the following:
(a) developing a transition plan with assistance from Company or its
designee; and
(b) organizing and delivering to Company records and documents
necessary to allow continuation of the Services, including
delivering such materials in electronic forms and versions as
requested by Company.
20.8 Termination of this Agreement does not affect a Party's accrued rights
and obligations at the date of termination.
21. LAW AND JURISDICTION
21.1 This Agreement shall be construed in accordance with the laws of Bermuda
without regard to the principles of conflict of laws.
22. THIRD PARTIES' RIGHTS
22.1 For the avoidance of doubt, no term of this Agreement is intended for
the benefit of any third party, and the Parties do not intend that any
term of this Agreement should be enforceable by a third party.
23. ASSIGNMENT
23.1 This Agreement shall not be assignable by either Party without the
express written consent of the other, and such consent shall not be
unreasonably withheld, provided however that upon delivery of notice to
Company, Service Provider may assign all or a portion of its rights
under this Agreement to an affiliate. For purposes of this Agreement
"affiliate" shall mean any person, corporation, company partnership,
individual or group (collectively a "Person"), which directly or
indirectly, through one or more intermediaries, controls or is
controlled by, or owns or is owned by another Person, with an equity or
other financial interest of 35% or more of any management interest.
24. NOTICES
24.1 All notices hereunder shall be sent to the Party at the address set
forth below or at such other address as shall be specified by a Party as
to it in a notice duly given. Notices shall be effective upon receipt,
and shall be addressed as follows:
If to XLBS: XX Xxxxx
Xxx Xxxxxxxxxx Xxxx
Xxxxxxxx XX 00, Xxxxxxx
Attn: General Counsel
If to SCA BS: XX Xxxxx
Xxx Xxxxxxxxxx Xxxx
Xxxxxxxx XX 00, Xxxxxxx
Attn: General Counsel
or to such other address as a Party shall have designated by notice in
writing to the other Party in the manner provided by this clause 24.1.
-10-
25. ENTIRE AGREEMENT
25.1 This Agreement, including the attached Schedules and Appendices, is the
complete and exclusive statement of the agreement between the Parties
and supersedes all prior proposals, understandings and all other
agreements, oral and written, between the Parties relating to the
subject matter of this Agreement. This Agreement may not be modified or
altered except by written instrument duly executed by both Parties.
26. FORCE MAJEURE
26.1 Any delay or failure by either Party in the performance of this
Agreement will be excused to the extent that the delay or failure is due
solely to causes or contingencies beyond the reasonable control of such
Party.
27. SEVERABILITY
27.1 If any provision, clause or part of this Agreement, or the application
thereof under certain circumstances is held invalid or unenforceable for
any reason, the remainder of this Agreement, or the application of such
provision, clause or part under other circumstances shall not be
affected thereby.
IN WITNESS WHEREOF, the Parties have signed this Agreement on the Effective Date
above.
XL SERVICES (BERMUDA) LTD SCA BERMUDA ADMINISTRATIVE LTD
By: /s/ Fiona Luck By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
------------------------------- ----------------------------------
Name: Fiona Luck Name: Xxxxxxx X. Xxxxxxxx, Xx.
------------------------------- ----------------------------------
Title: President Title: Chairman
------------------------------- ----------------------------------
SCHEDULE #__________
______________________________ SERVICES
I. DESCRIPTION OF SERVICES
A. SCOPE
XL Services (Bermuda) Ltd ("XLBS") will provide ______________________________
services to Security Capital Assurance Ltd ("SCA"), either through XLBS's own
resources, the resources of its subsidiaries or affiliates, as defined in the
Master Services Agreement (the "Services Agreement"), dated as of
_______________, by and between Service Provider and SCA, or by contracting with
other independent contractors, all in accordance with Section 2.2 of the
Services Agreement.
-11-
B. SPECIFIC SERVICES
The specific services that Service Provider will provide are as follows:
1. ________________________________________________________________
2. ________________________________________________________________
3. ________________________________________________________________
4. ________________________________________________________________
5. ________________________________________________________________
Additional services may be included upon agreement of both parties.
II. SERVICE FEES
Company will pay Service Provider semi-annually on a "cost plus" basis for each
Service as set forth herein.
The Fee will include:
(i) with respect to the Services being performed and Support
Services being provided by Service Provider, any salaries,
bonuses, benefits, fringe benefits, incentive compensation
benefits (if applicable) payroll taxes or other applicable
taxes, and depreciation/amortization of office equipment and
software attributed to the employees in the group (collectively,
the "Employee Costs"), based upon the ratio of Service
Provider's estimate of the time spent by the employees on behalf
of SCA or in connection with providing Support Services divided
by the total time spent by the employees multiplied by the
Employee Costs;
(ii) a xxxx up of ____% of the aggregate amount calculated pursuant
to (i);
(iii) third-party expenses, including travel and entertainment,
consulting fees and printing costs, incurred on behalf of SCA by
Service Provider on behalf of SCA or in connection with
providing Support Services; and
(iv) any costs incurred by the Service Provider in providing the
Services not in the ordinary course of business.
III. ADDITIONAL TERMS
Period of coverage will be ongoing subject to yearly reviews during the annual
budgeting process.
-12-
