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Exhibit (A)(8)(d)
MASTER ADMINISTRATION AGREEMENT
between
McCamish Systems, L.L.C.
and
The Manufacturers Life Insurance Company (U.S.A.) and its subsidiaries,
including, but not limited to
The Manufacturers Life Insurance Company of America
and The Manufacturers Life Insurance Company of New York
dated as of _________ __, 1998
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TABLE OF CONTENTS
SECTION 1 Definitions ................................................... 1
1.01 Books and Records ............................................. 1
1.02 Case .......................................................... 2
1.03 End User ...................................................... 2
1.04 Effective Date ................................................ 2
1.05 Initial Term .................................................. 2
1.06 Policy Administration Services ................................ 2
1.07 Plan Administration Services .................................. 3
1.08 Policies ...................................................... 3
1.09 Products ...................................................... 3
1.10 Participants .................................................. 3
SECTION 2 Term .......................................................... 3
SECTION 3 Policy or Plan Administration ................................. 3
3.01 Administrative Services ....................................... 4
3.02 Performance Criteria .......................................... 4
3.03 Authorized Personnel .......................................... 4
3.04 Records ....................................................... 4
SECTION 4 Fees and Expenses ............................................. 5
4.01 Administration Fees ........................................... 5
4.02 Expenses ...................................................... 5
4.03 System Enhancements ........................................... 6
4.04 Payment ....................................................... 6
SECTION 5 Representations and Warranties of McCamish .................... 7
SECTION 6 Representations and Warranties of Company ..................... 8
7.01 Independent Contractor ........................................ 9
7.02 Confidentiality and Disclosure ................................ 9
7.03 Indemnification ............................................... 11
7.04 Arbitration ................................................... 12
7.05 Compliance .................................................... 12
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7.06 Actions ....................................................... 13
7.07 Records ....................................................... 14
7.08 Audit ......................................................... 14
7.09 Security of Operations ........................................ 14
7.10 Insurance Coverage ............................................ 14
SECTION 8 Termination of Agreement ...................................... 15
8.01 By Mutual Agreement ........................................... 15
8.02 By Non-renewal ................................................ 15
8.03 For Cause ..................................................... 15
SECTION 9 Assignment .................................................... 16
9.01 Assignment by Company ......................................... 16
9.02 Assignment by McCamish ........................................ 16
SECTION 10 Miscellaneous ................................................. 16
10.01 Governing Law ................................................. 16
10.02 Notices ....................................................... 16
10.03 Entire Agreement .............................................. 17
10.04 Binding Effect ................................................ 17
10.05 Severability .................................................. 17
10.06 No Third Party Beneficiaries .................................. 18
10.07 Headings ...................................................... 18
10.08 Counterparts .................................................. 18
10.09 Waiver ........................................................ 18
10.10 Construction .................................................. 18
10.11 Taxes ......................................................... 19
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TABLE OF EXHIBITS
A Policy Administration Services
B Plan Administration Services
C Performance Criteria
D Fee Schedule
E Products
F Schedule of Authorized Personnel
G Insurance Coverage
H Sample Escrow Agreement
I Sample Software License Agreement for Escrow Agreement
K Sample Software License Agreement
L Schedule of Authorized Personnel
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MASTER ADMINISTRATION AGREEMENT
This MASTER ADMINISTRATION AGREEMENT is made and entered into as of the
__ day of _________, 1998, by and among McCamish Systems, L.L.C., a Georgia
limited liability company, having its principal address and place of business at
6425 Powers Ferry Road, Third Floor, Atlanta, Georgia, 30339 (hereinafter
referred to as "McCamish"); and, The Manufacturers Life Insurance Company
(U.S.A.) and its subsidiaries, including, but not limited to The Manufacturers
Life Insurance Company of America and The Manufacturers Life Insurance Company
of New York, a stock company registered under the laws of the state of Michigan,
having its principal place of business at 200 Bloor Street East, Toronto,
Ontario, Canada (hereinafter collectively referred to as "Manulife (U.S.A.)").
W I T N E S S E T H:
WHEREAS, the parties hereto desire to enter into this Agreement to
provide for the provision by McCamish, as an independent subcontractor, of
insurance policy administration services and non-qualified plan administration
services to Manulife (U.S.A.) on the terms and conditions hereinafter set forth,
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, and other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereto hereby agree as follows:
SECTION 1 DEFINITIONS.
As used in this Agreement, the following terms shall have the meaning
set forth:
1.01 BOOKS AND RECORDS. "Books and Records" means all books and
records in the possession or control of McCamish that contain information
related to the Policies (defined in Section 1.09 below) and Participants
Policies (defined in Section 1.11 below), including without limitation, to the
extent any of the following exist, (i) hard copy and microfiche records; (ii)
all paper files; (iii) all electronic images; (iv) all computer data files; (v)
all correspondence between
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McCamish and owners of Policies; (vi) administrative records; (vii) claim
records; (viii) sales records; (ix) reinsurance records, (x) underwriting
records and (xi) accounting records; provided, however, that Books and Records
shall not include any of McCamish's internal documentation of its own programs,
systems and procedures or any of McCamish's books and records which are not
directly related to the Policies.
1.02 CASE. "Case" means a group of Policies that have a common
owner and payor, have a common corporate objective, and/or a group of
Participants that are part of a common benefit plan.
1.03 CPI INDEX. "CPI Index" means the Consumer Price Index - All
Urban Consumers, Metropolitan Atlanta, Georgia, Area, Services (1982 to 1984 =
100), as published by the United States Bureau of Labor Statistics; provided,
however, that if such Consumer Price Index shall cease to be published or
issued, Manulife (U.S.A.) and McCamish shall agree on a reasonable substitute
therefor.
1.04 END USER. "End User" means a party for whom Manulife (U.S.A.)
has agreed to provide Plan Administration Services which are the subject of this
Agreement.
1.05 EFFECTIVE DATE. "Effective Date" means the date stated in the
first paragraph of this Agreement.
1.06 INITIAL TERM. "Initial Term" means the five (5) year period
commencing on the Effective Date of this Agreement and ending at 11:59 p.m. on
the day prior to the fifth anniversary of the Effective Date.
1.07 POLICY ADMINISTRATION SERVICES. "Policy Administration
Services" means the services set forth in EXHIBIT A attached hereto and
designated as "Policy Administration Services".
1.08 PLAN ADMINISTRATION SERVICES. "Plan Administration Services"
means the services set forth in EXHIBIT B attached hereto and designated as
"Plan Administration Services".
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1.09 POLICIES. "Policies" means, collectively, the insurance
policies included within one of the Products and "Policy" means any one of the
Policies.
1.10 PRODUCTS. "Products" means the insurance products described in
Exhibit E attached hereto and made a part hereof. A "Product" is limited to a
single policy form of an insurance company. Exhibit E may be amended during the
Term by mutual written agreement of the parties hereto.
1.11 PARTICIPANT. "Participant" means, collectively, the
individuals included within a non-qualified benefit plan for which service is
provided under terms of this Agreement.
SECTION 2 TERM.
2.01 TERM. This Agreement shall commence on the Effective Date and
shall continue in effect for the Initial Term; thereafter this Agreement shall
continue in full force and effect from year to year until terminated as herein
provided, each such additional year being an "Additional Term" of this
Agreement. The Initial Term and any Additional Terms hereunder are herein
collectively referred to as the "Term".
2.02 CONVERSION OPTION. At any time after the first year of this
Agreement, Manulife (U.S.A.) may, at its sole option, choose to convert this
Agreement to a software system license agreement on substantially the terms and
conditions set out in Exhibit K, attached hereto. The license fees shall be
based on McCamish's then current fee schedule.
SECTION 3 ADMINISTRATION SERVICES.
3.01 ADMINISTRATION SERVICES. During the Term, McCamish shall
perform Policy Administration Services. At its option, Manulife (U.S.A.) can
request, in writing, for McCamish to perform Plan Administration Services for an
individual Case. Policy Administration Services and Plan Administration Services
are collectively sometimes referred to as the "Administration Services".
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3.02 PERFORMANCE CRITERIA. The manner and method of performing
Administration Services is set forth in EXHIBIT C.
3.03 AUTHORIZED PERSONNEL. At any time McCamish may apply to a
person indicated on the "Schedule of Authorized Personnel", attached hereto as
EXHIBIT F, as a person authorized to give instructions under this section with
respect to any matter arising in connection with this Agreement. McCamish shall
not be liable for, and shall be indemnified and held harmless by Manulife
(U.S.A.) against any loss, cost, damage or expense arising from, any action
taken or omitted by McCamish to the extent McCamish can demonstrate that the
action or omission was taken or omitted in good faith in reliance upon such
instruction.
Manulife (U.S.A.) may at any time provide McCamish with written notice
of any change of authority of persons authorized and enumerated in EXHIBIT F to
provide McCamish with instructions or directions relating to services to be
performed by McCamish under this Agreement.
The McCamish employees listed on Exhibit L attached hereto, shall be
the sole authorized individuals in the performance of the Policy Administration
Services and Plan Administration Services and any other services or matters
arising under this Agreement. This list and any changes thereto shall be
approved in writing by Manulife (U.S.A.) prior to any performance hereunder.
McCamish shall provide Manulife (U.S.A.) with written notice of any change to
Exhibit L. Manulife (U.S.A.) reserves the right to review and approve any change
to Exhibit L prior to the implementation of such change.
3.04 RECORDS. During the Term, McCamish shall keep true and correct
Books and Records relating to the performance of all Administration Services
hereunder. McCamish shall deliver the Books and Records and copies thereof to
Manulife (U.S.A.) both in hard copy and in machine readable form, if so
requested by Manulife (U.S.A.), within thirty (30) days upon termination of this
Agreement. Anything herein to the contrary notwithstanding, McCamish shall be
allowed to make and retain copies of the Books and Records, at its own expense,
upon termination of this Agreement. It is acknowledged and agreed that any such
Books and Records may be maintained on magnetic media, electronic media,
microfiche, CD and other non-paper media. It is acknowledged and
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agreed that the copies of the Books and Records retained by McCamish on
termination of this agreement shall be sealed and shall only be used for such
purposes required by law.
SECTION 4 FEES AND EXPENSES.
4.01 ADMINISTRATION FEES.
(a) During the Initial Term of this Agreement, provided that a
minimum of one (1) policy has been entered into the System,
Manulife (U.S.A.) shall pay to McCamish, as compensation for
all Administration Services rendered pursuant to this
Agreement, the amounts set forth on EXHIBIT D. In no event,
except as provided below, will the fees payable by Manulife
(U.S.A.) to McCamish hereunder be less than the fees
determined by the application of the Minimum Charges set forth
on EXHIBIT D.
(b) At least one hundred and eighty (180) days prior to the end of
the Initial Term or any Additional Term, McCamish shall
provide Manulife (U.S.A.) with a schedule of compensation for
Administrative Services, such fees and charges as shall be
agreed to by the parties and attached hereto as an amended
EXHIBIT D prior to commencement of such Additional Term. For
each Additional Term of this Agreement, Manulife (U.S.A.)
shall pay to McCamish, as compensation for all Administration
Services rendered pursuant to this Agreement, such fees and
charges.
4.02 EXPENSES. Manulife (U.S.A.) will promptly reimburse McCamish
for all reasonable out-of-pocket expenses incurred by McCamish in the
performance of this Agreement. Out-of-pocket expenses include, but are not
limited to the following:
(a) Travel related costs for travel requested by Manulife
(U.S.A.).
(b) Postage and forms cost of special mailings requested by
Manulife (U.S.A.),
(c) Charges for telephone line(s) dedicated to service of Manulife
(U.S.A.) customers, agents and brokers.
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(d) Charges for dedicated voice/data lease line(s) providing wide
area network access from Manulife (U.S.A.) site(s) to McCamish
site(s).
4.03 SYSTEM ENHANCEMENTS. Requests by Manulife (U.S.A.) for
enhancements to systems or procedures for support of new products or new
functional capabilities will be performed and billed by McCamish to Manulife
(U.S.A.) on a time and expense basis at the then current rates in effect.
McCamish agrees that any increase in consulting rates shall not exceed the
percentage increase in the Consumer Price Index, Urban Consumers, Metropolitan
Atlanta, Georgia Area, Services (1982-1984=100) as published by the Bureau of
Labor Statistics (the "CPI Index") since the last increase in consulting;
provided, however, that if the CPI Index shall cease to be published during the
term hereof, the parties shall agree on a reasonable substitute therefor. Such
Manulife (U.S.A.) requests will be in writing. McCamish will provide, in
writing, a design specification which will include a detailed description of the
requested enhancement, an estimate of cost and an estimated implementation
schedule. McCamish will undertake the project upon receipt of the signed
acceptance of the design specification by Manulife (U.S.A.).
4.04 PAYMENT. During the Term of this Agreement, Manulife (U.S.A.)
shall pay McCamish within thirty (30) days of the date of McCamish's invoice.
Late payments shall be subject to McCamish's standard late payment charges as
set forth on McCamish's invoice.
SECTION 5 REPRESENTATIONS AND WARRANTIES OF MCCAMISH.
McCamish hereby represents and warrants to Manulife (U.S.A.) as
follows:
(a) It is a limited liability company duly organized and existing and in
good standing under the laws of the State of Georgia.
(b) It is empowered under applicable laws and by its articles of
organization and operating agreement to enter into and perform the
services contemplated in this Agreement.
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(c) All requisite proceedings have been taken to authorize it to enter into
and perform the services contemplated in, and execute and deliver, this
Agreement.
(d) It has duly executed and delivered this Agreement and such execution
and delivery nor the performance by it of any of its obligations under
any Agreement will (i) violate any provision of its certificate of
incorporation or by-laws, (ii) result in a violation or breach of, or
constitute a default or an event of default under, any indenture,
mortgage, bond or other contract, license, agreement, permit,
instrument or other commitment or obligation to which it is a party or
(iii) violate any law, rule or regulation of any governmental body,
writ, judgment, injunction or court decree (collectively, "Laws")
applicable to it or its business.
(e) It has all licenses, permits, registrations and other governmental
approvals necessary or advisable for the performance of its obligations
under this Agreement.
(f) Its business operations have been conducted, are now, and will continue
to be in compliance in all material respects with all Laws.
(g) In its reasonable business judgment, it has the facilities, equipment
and personnel necessary to carry out its duties and obligations under
this Agreement.
(h) That the Software, as defined in Exhibit I attached hereto, is designed
to be used prior to, during and after the year 2000 and that the
Software will operate during each such time period without error
relating to date data, specifically including any error relating to, or
the product of, date data which represents or references different
centuries or more than one century. Without limiting the foregoing,
McCamish also represents and warrants that the Software will not
abnormally end or provide invalid or incorrect results as a result of
date data and it has been designed to ensure year 2000 compatibility
including, but not limited to, date data century recognition,
calculations which accommodate same century and multi-century formulas
and date values and date data interface values that reflect the
century. The above warranty shall not be
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subject to any disclaimer or exclusion of warranties or to any
limitation of McCamish's liability under this Agreement.
SECTION 6 REPRESENTATIONS AND WARRANTIES OF MANULIFE (U.S.A.).
Manulife (U.S.A.) hereby represents and warrants to McCamish as
follows:
(a) It is a registered stock life insurance company organized and
existing and in good standing under the laws of the State of
Michigan.
(b) It is empowered under the applicable laws and regulations and
by its governing documents to enter into and perform this
Agreement.
(c) All requisite proceedings have been taken to authorize it to
enter into and perform this Agreement.
(d) It has duly executed and delivered this Agreement and neither
such execution and delivery nor the performance by it of any
of its obligations under any Agreement will (i) violate any
provision of its governing documents, (ii) result in a
violation or breach of, or constitute a default or an event of
default under, any indenture, mortgage, bond or other
contract, license, agreement, permit, instrument or other
commitment or obligation to which it is a party or (iii)
violate any Law applicable to it or its business.
SECTION 7 ADDITIONAL COVENANTS.
7.01 INDEPENDENT CONTRACTOR. It is understood and agreed that all
Administration Services performed hereunder by McCamish shall be performed
solely for Manulife (U.S.A.) by McCamish in the capacity of an independent
sub-contractor of Manulife (U.S.A.). Nothing contained herein shall be construed
to create between McCamish and Manulife (U.S.A.) a partnership, joint venture,
association or other legal entity or relationship other than that of independent
sub-contractor.
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7.02 CONFIDENTIALITY AND DISCLOSURE.
(a) Each Party ("Disclosing Party") may disclose to the other
("Recipient") certain proprietary and confidential information
including, without limitation, policyholder information,
procedures, Manulife (U.S.A.) customer lists, prospect lists,
contracted broker and agent lists, and material related to
policy design, pricing, filings, marketing and sales
administration and systems information ("Information").
(b) Recipient agrees to maintain, during the Term and thereafter,
the Information of the Disclosing Party in confidence using at
least the same degree of care as it uses in maintaining as
secret its own trade secret, confidential and proprietary
information, but always at least a reasonable degree of care.
(c) Disclosing Party agrees that Recipient shall have no
obligation under the provisions of this Section 7.02 with
respect to any Information which:
1. is now or hereafter becomes publicly known other than
through a breach hereof,
2. is disclosed to Recipient by a third party that
Recipient reasonably believes is legally entitled to
disclose such information,
3. is known by Recipient prior to its receipt of the
Information, without any obligation of
confidentiality with respect thereto,
4. subject to paragraph (g) below, is disclosed with the
Disclosing Party's written consent,
5. is disclosed by the Disclosing Party to a third party
without the same or similar restrictions as set forth
herein,
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6. is required to be disclosed by Recipient by a court
of competent jurisdiction, administrative agency or
governmental body, or by law, rule or regulation, or
by applicable regulatory or professional standards,
7. is disclosed by Recipient in connection with any
judicial or other legal proceeding involving this
Agreement, or
8. subject to paragraph (g) below, is not identified or
marked as "Confidential and Proprietary" as provided
in paragraph (a).
(d) Recipient shall use reasonable efforts to limit access to
Information received from the Disclosing Party to only those
personnel of Recipient who have need of such access for the
performance of any obligation of Recipient under this
Agreement.
(e) Information shall be used by Recipient only for purposes of
fulfilling its obligations under this Agreement.
(f) Except as expressly provided in this Agreement, Disclosing
Party grants no license, right or interest to Recipient under
any copyrights, patents, trademarks, trade secrets or other
property rights of Disclosing Party by reason of the
disclosure of the Information.
(g) Each party acknowledges that some Information may, under
applicable law, be deemed to be confidential information of
third parties (such as natural persons whose lives are insured
under a Policy) and agrees to preserve the confidentiality of
all Information which under applicable Law must be treated as
confidential.
The terms and conditions of this SECTION 7.02 shall survive the
termination of this Agreement.
7.03 INDEMNIFICATION. Each party shall indemnify and hold harmless
the other party and its officers, directors, partners, principals, independent
contractors,
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employees, member firms, subcontractors and affiliates and their respective
personnel from and against any and all liabilities, losses, damages, costs,
expenses (including, without limitation, reasonable attorneys' fees and court
costs), interest, penalties or other loss directly or indirectly arising out of,
in connection with or with respect to any breach of this Agreement or any
fraudulent, criminal, negligent and/or bad faith acts or omissions by such party
or its officers, directors, partners, principals, independent contractors,
employees, member firms, subcontractors and affiliates and their respective
personnel under this Agreement.
If a party is named in any lawsuit or other proceeding for which such
party believes it may be entitled to indemnification hereunder (other than any
action or proceeding described in Section 7.06), such party shall promptly give
notice thereof to the other party, such notice to include a description in
reasonable detail of such lawsuit or proceeding and the basis for such party's
belief that it may be entitled to indemnification hereunder. The parties shall
cooperate in all reasonable respects with each other in defending such lawsuit
or proceeding. McCamish agrees not to settle any such lawsuit or proceeding
without the written consent of Manulife (U.S.A.).
The terms and conditions of this SECTION 7.03 shall survive the
termination of this Agreement.
7.04 ARBITRATION. In the event of any dispute between Manulife
(U.S.A.) and McCamish with respect to the subject matter of this Agreement or
the enforcement of rights hereunder, either party may, by written notice to the
other, require such dispute or difference to be submitted to arbitration. This
provision, however, shall not be applicable to any dispute that involves a claim
by or against a Third Party. The arbitrator or arbitrators shall be selected by
agreement of the parties or, if they cannot agree on an arbitrator or
arbitrators within twenty (20) days after the notice of such party's desire to
have the question settled by arbitration, then the arbitrator or arbitrators
shall be selected by the American Arbitration Association (the "AAA") in
Atlanta, Georgia. The determination reached, or award granted, in such
arbitration shall be final and binding, to the extent not in violation of law or
public policy, on all parties hereto. Enforcement of the arbitration award or
determination may be sought in any court of competent jurisdiction. The
arbitrators shall not be bound by judicial formalities and may abstain from
following the strict rules of evidence. The parties hereby mutually instruct the
arbitrators to limit the time and scope of discovery to the greatest extent
practicable and request the arbitrators to provide a decision as rapidly as
practicable, in each case
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consistent with the interests of justice, it being the intention of the parties
that any arbitration under this Section 7.04 be commenced, conducted and
completed, and a decision rendered, as rapidly as practicable. Pending such
decision, each party will continue to perform its obligations under this
Agreement. Unless otherwise agreed by the parties, any such arbitration shall be
conducted in accordance with the rules of the AAA.
In the event of any litigation or arbitration as provided under this
Agreement, or the enforcement of rights hereunder, each party shall bear its own
costs and expenses relating to such litigation or arbitration, including
reasonable attorney's fees and expenses, unless otherwise provided by the
arbitration award or determination. In no event shall the arbitrators have the
right or authority to award consequential, incidental, indirect, special or
punitive damages relating to this Agreement.
The terms and conditions of this SECTION 7.04 shall survive the
termination of this Agreement.
7.05 COMPLIANCE. McCamish shall provide staff with the skills
necessary to perform the Administration Services, as determined by McCamish
using its reasonable business judgment. McCamish shall obtain and maintain for
itself, all licenses necessary for performance under this Agreement.
7.06 ACTIONS.
(a) Each party (the "Notifying Party") shall promptly notify the
other party of any threatened or pending lawsuit or
governmental or regulatory agency inquiry or complaint
relating to Policies of which the Notifying Party has actual
knowledge and shall promptly transmit to such other party a
copy of any applicable service of process or other instrument
related to a court proceeding or any correspondence or other
document transmitted to or from any governmental or regulatory
agency relating to the Policies which shall be actually
received by the Notifying Party.
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(b) McCamish shall make no response to any governmental or
regulatory agency's inquiry or complaint relating to Policies
without first obtaining MANULIFE (U.S.A.)'s approval and
consent to the response to such inquiry or complaint;
provided, however, that if MANULIFE (U.S.A.) fails to give its
approval or consent or delays its approval or consent and such
failure or delay would subject McCamish to any fine, penalty,
liability or sanction, then McCamish may make a response.
(c) Manulife (U.S.A.) reserves the right to control the defense of
any litigation, threatened or pending, by or against it, or to
respond on its own behalf to any governmental or regulatory
agency's inquiry or complaint; provided, however, that if
MANULIFE (U.S.A.) shall exercise this right in such a manner
as shall subject McCamish to any fine, penalty, liability or
sanction for failure to follow procedure, or otherwise in a
manner which, in the reasonable opinion of McCamish or its
legal counsel may have a material adverse effect on McCamish,
then McCamish shall have the right to defend itself with
counsel of its choice at its own expense.
(d) McCamish reserves the right to control the defense of any
litigation, threatened or pending, by or against it, or,
subject to subsection (b) above, to respond on its own behalf
to any governmental or regulatory agency's inquiry or
complaint; provided, however, that if McCamish shall exercise
this right in such a manner as shall subject MANULIFE (U.S.A.)
to any fine, penalty, liability or sanction for failure to
follow procedure, or otherwise in a manner which, in the
reasonable opinion of MANULIFE (U.S.A.) or its legal counsel
may have a material adverse effect on MANULIFE (U.S.A.), then
MANULIFE (U.S.A.) shall have the right to defend itself with
counsel of its choice at its own expense.
(e) The parties shall cooperate with each other in responding to
or defending any such lawsuit, threat, demand, inquiry,
complaint, administrative or regulatory investigation or
proceeding.
7.07 RECORDS. Each party to this Agreement shall maintain,
following the termination of this Agreement for any reason, its Books and
Records with respect to business
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produced under this Agreement for such period of time as may be required by law.
It is acknowledged and agreed that any such books and records may be maintained
on magnetic media, electronic media, microfiche or other non-paper media.
7.08 INSPECTION. Upon forty-eight (48) hours advanced notice to
McCamish, Manulife (U.S.A.) will have the right under this Agreement to perform
on-site inspection and analyses of the Books and Records in accordance with
reasonable procedures and at reasonable frequencies. At the request of Manulife
(U.S.A.), McCamish will make available to Manulife (U.S.A.) representatives of
the appropriate regulatory agencies all reasonable requested Books and Records
and access to operating procedures.
7.09 SECURITY OF OPERATIONS. McCamish shall maintain such off-site
backup of its systems, procedures, and Books and Records as Manulife (U.S.A.)
may reasonably request. McCamish shall maintain at all times during the Term a
disaster recovery capability materially consistent with that currently
maintained by McCamish.
7.10 INSURANCE COVERAGE. McCamish shall use its reasonable efforts
to continue in effect the insurance coverages described in Exhibit G attached
hereto provided that such coverage is available from a domestic insurance
carrier at a reasonable cost to McCamish. McCamish shall not voluntarily cause
any termination, reduction, or alteration of these coverages without 30 days
prior written notice to Manulife (U.S.A.).
SECTION 8 TERMINATION OF AGREEMENT.
8.01 BY MUTUAL AGREEMENT. This Agreement may be terminated or
amended by mutual written agreement of the parties at any time.
8.02 BY NON-RENEWAL. At least one hundred and eighty (180) days
prior to the end of the Initial Term and any Additional Term hereof, either
party may give the other notice if the party delivering such notice desires to
change any term of this Agreement. If McCamish and Manulife (U.S.A.) do not
agree in writing with respect to the matters described in such notice
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before the end of the Term during which such notice is given by McCamish, this
Agreement shall terminate at the end of such Term.
8.03 FOR CAUSE. If either of the parties hereto shall materially
breach this Agreement or be materially in default hereunder (the Defaulting
Party), the other party hereto may give written notice thereof to the Defaulting
Party and if such default or breach shall not have been remedied within thirty
(30) days after such written notice is given, then the party giving such written
notice may terminate this Agreement by giving thirty (30) days written notice of
such termination to the Defaulting Party. Termination of this Agreement by
default or breach by a party shall not constitute a waiver of any rights of the
other party in reference to services performed prior to such termination, rights
to be reimbursed for out-of-pocket expenditures or any other rights such other
party might have under this Agreement at law, in equity or otherwise. Material
default under this Agreement includes, but is not limited to, the material
breach of any provision of this Agreement, insolvency, a declaration of
bankruptcy or an assignment for the benefit of creditors.
SECTION 9 ASSIGNMENT.
9.01 ASSIGNMENT BY MANULIFE (U.S.A.). Manulife (U.S.A.) shall not,
directly or indirectly, in whole or in part, assign any of its rights or
obligations hereunder without the prior written consent of McCamish, which
consent shall not be unreasonably withheld.
9.02 ASSIGNMENT BY MCCAMISH. McCamish shall not directly or
indirectly, in whole or in part, delegate its duties or assign its rights under
this Agreement without the prior written consent of Manulife (U.S.A.), which
consent shall not be unreasonably withheld.
SECTION 10 MISCELLANEOUS.
10.01 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Georgia, without giving
effect to the principles of conflicts of laws thereof.
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10.02 NOTICES. Any notice, consent, approval or other communication
required or permitted hereunder shall be in writing and shall be delivered
personally, or sent by facsimile transmission, overnight courier service or by
registered or certified mail, postage prepaid, return receipt requested, and
addressed as follows:
(a) If to McCamish:
McCamish Systems, L.L.C.
6425 Powers Ferry Road
Third Floor
Atlanta, GA 30339
Attention: President
Facsimile Number: (770) 690-1800
(b) If to Manulife (U.S.A.):
The Manufacturers Life Insurance Company (U.S.A.),
for it and its subsidiaries including, but not
limited to The Manufacturers Life Insurance Company
of America and The Manufacturers Life Insurance
Company of New York
200 Bloor Street East
Toronto, ON
Attention: Maureen Beechinor
Facsimile Number: (416) 926-5353
Any such notice shall be deemed given when so delivered (in the case of
personal delivery or overnight courier service) or sent by facsimile
transmission or, if mailed, upon receipt as evidenced by the return receipt. If
the address of any party hereunto is changed, written notice of such change
shall be given to the other party, in accordance with this Section, and said new
address shall be used for purposes of this Agreement.
10.03 ENTIRE AGREEMENT. This Agreement, the Exhibits which are
attached hereto and made a part hereof, and the documents executed pursuant
hereto, contain the entire understanding of the parties with respect to the
subject matter hereof and thereof and no
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representation, warranty, covenant or agreement not embodied herein or therein,
oral or otherwise, shall be of any force or effect whatsoever with respect to
the subject matter hereof or thereof. Further, no change, amendment or
modification of this Agreement shall be effective unless in writing and signed
by both parties hereto.
10.04 BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
10.05 SEVERABILITY. In the event any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement.
10.06 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement is
intended or shall be construed to give any person, other than the parties
hereto, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
10.07 HEADINGS. The Section headings of this Agreement are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
10.08 COUNTERPARTS. This Agreement may be executed in two (2) or
more counterparts, each of which shall be deemed an original but all of which
will constitute one and the same document.
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10.09 WAIVER.
(a) A waiver of any default or breach hereunder granted by any
party hereto shall not constitute a waiver by such party of
any other default or breach or a waiver by such party of the
same default or breach at a later time. Further, to be
effective, any such waiver must be in writing and be signed by
the party granting such waiver.
(b) Subject to the last sentence of Section 10.09(a), the
forbearance or neglect by Manulife (U.S.A.) or McCamish to
insist upon strict compliance with any of the provision of
this Agreement, or to declare a forfeiture or termination,
shall not be construed as a waiver of any right or privilege
hereunder. No waiver of any right or privilege arising from
any default or failure of performance hereunder shall affect
the rights or privileges of either party in the event of a
further default or failure of performance hereunder.
10.10 CONSTRUCTION. All parties hereto have participated, directly
or indirectly, in the negotiations and preparation of this Agreement. In no
event shall this Agreement be construed more or less stringently against any
party hereto by reason of either party being construed as the principal drafting
party hereto.
10.11 TAXES. All sales, use, excise or other similar taxes or duties
which may be or become payable on account of goods or services provided
hereunder shall be payable by Manulife (U.S.A.) to McCamish Systems upon the
receipt by Manulife (U.S.A.) of McCamish Systems' invoice therefor. In lieu of
paying such taxes, Manulife (U.S.A.) may provide McCamish Systems with a tax
exemption certificate acceptable in form and substance to the appropriate taxing
authorities.
10.12 SOFTWARE ESCROW AGREEMENT. As soon as is practicable after the
execution of this Agreement, (i) the parties hereto shall execute and deliver an
Escrow Agreement substantially in the form of Exhibit H attached hereto and made
a part hereof (the "Escrow Agreement") for the purpose of protecting Manulife
(U.S.A.) in the event of a breach of this Agreement
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by McCamish or the termination of this Agreement by Manulife (U.S.A.) for Cause,
pursuant to Section 8 hereof, prior to the end of the Term; and (ii) upon
execution of the Escrow Agreement by all parties thereto, McCamish shall deposit
with the Escrow Agent a copy of the Software to be held in accordance with the
terms and conditions of the Escrow Agreement.
10.13 SOFTWARE LICENSE IN ESCROW. As soon as is practicable after
execution of the Escrow Agreement, the parties hereto shall execute and deliver
to the Escrow Agent, to be held in accordance with the terms and conditions of
the Escrow Agreement, a License Agreement substantially in the form of Exhibit I
attached hereto and made a part hereof (the "License Agreement"), which shall
provide that in the event the Software shall be released by the Escrow Agent to
Manulife (U.S.A.), upon the occurrence of a Release Event (as defined in the
Escrow Agreement), but only in such event, McCamish grants to Manulife (U.S.A.),
effective upon receipt of the Software from the Escrow Agent, a license to use
the Software (and such modifications, enhancements, improvements, updates,
corrections or changes as Manulife (U.S.A.) shall elect to make to the Software)
(the "Software License") for a period of twenty-four months following the
termination of this Agreement, solely on the terms and conditions of the License
Agreement. At the expiration of the license term, the Manulife (U.S.A.) shall
have no further rights with respect to the Software.
IN WITNESS WHEREOF, the parties hereto have caused this Administration
Agreement to be executed and delivered by their duly authorized partners and
officers, all as of the date first above written.
McCamish Systems, L.L.C.
By:___________________________
Manulife (U.S.A.)
By:___________________________
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