MANAGEMENT SERVICES AGREEMENT
EXHIBIT 10.37
This
Management Services Agreement (the “Agreement”) is made and
entered into this 1st day of
January, 2002 by and between Liberty Mutual Insurance Company (“Liberty Mutual”), a Massachusetts
mutual insurance company and Colorado Casually Insurance Company (“CCIC”), a Colorado insurance
corporation.
I. Performance of Services. Liberty Mutual agrees, to the extent requested by CCIC, to perform
such services (collectively, “services”) for CCIC as CCIC 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 CCIC, including all
laws and regulations relating to review of CCIC’s books and records. As may be necessary for the
performance of LMIC’s services under this Agreement, LMIC shall have the authority to negotiate or
conclude contracts on behalf of CCIC or bind CCIC 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
CCIC, 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 CCIC’s
Board of Directors and responsible officers, Liberty Mutual shall provide CCIC 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 CCIC is
transacting business, the maintenance of necessary and proper records and books of account with
respect to the business of CCIC, and the maintenance and compilation of all data required for the
preparation of tax returns.
2. Assistance to CCIC in connection with the examination or audit of the books, records,
affairs and activities of CCIC by governmental, insurance or taxing authorities having regulatory
or taxing authority with respect to the operations of CCIC, or by any firm of certified public
accountants appointed by CCIC to audit its books, records and accounts.
3. Assistance to CCIC with treasury and accounts payable functions as may be determined
between the parties. CCIC shall certify to Liberty Mutual the names and specimen signatures of
all officers or employees of CCIC 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 CCIC’s books, records and
accounts are owned by CCIC; and CCIC 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 CCIC’s
Board of Directors and responsible officers, Liberty Mutual shall provide CCIC 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 CCIC’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 CCIC and shall provide trouble-shooting
functions on behalf of CCIC.
D. Policy Administration and Production. Subject to the direction and control of CCIC’s Board
of Directors and responsible officers, Liberty Mutual may perform all policy production, print and
mail activities on CCIC’s behalf for all the states in which CCIC currently operates and in which
it may operate in the future.
E. Real Estate Management. Subject to the direction and control of CCIC’s Board
of Directors and responsible officers, Liberty Mutual may handle all matters and issues relating
to CCIC’s real estate purchases, sales, leases and lease-backs.
F. Legal. Subject to the direction and control of CCIC’s Board of Directors and responsible
officers, Liberty Mutual may provide legal services, including litigation management services, to
or on behalf of CCIC.
G. General Administration. Providing all personnel, equipment, data processing programs,
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 CCIC’s Board of Directors and
responsible officers, Liberty Mutual may perform such other services on behalf of CCIC as it may
desire, and as may be mutually agreed to between Liberty Mutual and CCIC.
II. Charges. CCIC 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 CCIC by Liberty Mutual in conformity with
customary insurance accounting practices consistently applied; provided, however, that all such
expenses and costs shall be allocated to CCIC in accordance with the terms of that certain
Reinsurance Agreement between CCIC and Liberty Mutual, dated September 29, 1998, including all
amendments thereto. 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 CCIC 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 CCIC 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 CCIC, 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
CCIC’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 CCIC. 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,
2002 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 CCIC 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 CCIC
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 CCIC, CCIC 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 CCIC or
Liberty Mutual.
(d) The insolvency, voluntary or involuntary bankruptcy, reorganization or liquidation of
either CCIC or Liberty Mutual.
(e) In the event of (i) the acquisition of CCIC 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 CCIC, then this Agreement shall terminate with
respect to CCIC 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 CCIC (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. LMIC Indemnification of the CCIC. LMIC shall indemnify, defend and hold harmless
CCIC 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 CCIC either (i) as
a result of the failure of LMIC or any subcontractor appointed by LMIC 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, LMIC’s breach of any duty or obligation
hereunder or the breach of any duty or obligation of any subcontractor appointed by LMIC if such
breach is the result of willful neglect or gross negligence. CCIC may set off against any amount
due LMIC any amount due to CCIC, pursuant to this or any other agreement to which the parties to
this indemnification are also parties.
B. CCIC’s Indemnification of LMIC. CCIC shall indemnify LMIC and hold LMIC
harmless from all actions, liabilities, costs and expenses arising out of or in any way related to
LMIC’s services under this Agreement, unless directly related to LMIC’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 | Colorado Casualty Insurance Company | |||||||||
/s/ Xxxxxx X. Xxxxxxxx | /s/ Xxxxxxxxxxx X. Xxxx | |||||||||
By:
|
Xxxxxx X. Xxxxxxxx | By: | Xxxxxxxxxxx X. Xxxx | |||||||
Its:
|
Comptroller | Its: | Vice President/Controller |
LIBERTY MUTUAL INSURANCE COMPANY (“Manager”) and COLORADO CASUALTY INSURANCE COMPANY
(“Company”); (hereinafter together called the “Parties”).
WHEREAS, the Parties entered into the Agreement for Manager to provide various services
effective January 1, 2002.
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 | Colorado Casualty 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 |
LIBERTY MUTUAL INSURANCE COMPANY (“Liberty Mutual”) and COLORADO CASUALTY INSURANCE
COMPANY (“CCIC”) (hereinafter together called the “Parties”).
WHEREAS, the Parties entered into the Agreement for Liberty Mutual to provide various
services effective January 1, 2002.
WHEREAS, the Parties deem it desirable to amend a provision of the Agreement to delete a
reference to a Reinsurance Agreement between the Parties that is no longer in effect.
NOW, THEREFORE, the Parties agree to amend the Agreement as follows:
Section II of the Agreement is amended and restated as follows:
II. Charges. CCIC 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
CCIC 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.”
IN WITNESS WHEREOF, the Parties have caused this Amendment, effective as of the 1st day of
January 2004, to be executed by their respective duly authorized officers.
Liberty Mutual Insurance Company | Colorado Casualty Insurance Company | |||||||||
/s/ A. Xxxxxxxxx Xxxxxxxx | /s/ Xxxxxxx X. Xxxxxx | |||||||||
By:
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A. Xxxxxxxxx Xxxxxxxx | By: | Xxxxxxx X. Xxxxxx | |||||||
Its:
|
Executive Vice President and Chief Investment Officer | Its: | Vice President, Chief Financial Officer and Treasurer |
Colorado Casualty Insurance Company
00000 X. Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
00000 X. Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
October 13, 2005
RE: Letter Agreement Regarding Reinsurance Services
This letter will confirm that, effective as of January 1, 2002, Liberty Mutual Insurance
Company’s performance of the following services for and on behalf of Colorado Casualty
Insurance Company is encompassed by the terms of the Management Services Agreement dated as of
January 1, 2002 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
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/s/ Xxxxx X. Xxxx | |||||
Xxxxx X. Xxxx, Asst. Secretary
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Xxxxx X. Xxxx, Chief Financial Officer | |||||
Liberty Mutual Insurance Company
|
Colorado Casualty Insurance Company |