Exhibit 10.17


 


SERVICES AGREEMENT


 


THIS SERVICES AGREEMENT (“Agreement”) is made as of the 1st day of
December 2001, by and among ACE Financial Solutions International, Ltd., a
Bermuda management company (“ACE FSI”),
ACE Financial Solutions, a division of ACE American Insurance Company, a
Pennsylvania company (“FSUS”), ACE
Capital Re International, Ltd., a Bermuda Class 3 and Long Term
insurer/reinsurer (“ACRI”), and
Paget Reinsurance International Ltd., a Bermuda Class 3 and Long Term
insurer/reinsurer (“PAGET”)
(collectively the “Clients”); and ACE Financial Solutions International, Inc.,
Japan Branch, a company registered in Japan (“FSIJ”).  The Clients and FSIJ may also be referred to
individually as “Party” and collectively as “Parties”.


 


W I T N E S S E T H


 


WHEREAS, ACE Financial Solutions International, Inc., a Delaware
company, has established a branch office in Japan (hereinafter referred to as
“FSIJ”) that is engaged in performing various preliminary and auxiliary
marketing-related services in Japan; and


 


WHEREAS, the Clients wish FSIJ to perform various auxiliary and
prepatory services in connection with insurance and reinsurance business and in
consideration of receipt of fees, FSIJ is willing to provide those services
subject to the terms hereof; and


 


NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereby agree as
follows:


 


ARTICLE I - SERVICES


 


1.1           At any time, the Clients may request from
FSIJ, and FSIJ shall provide to the Clients, certain services, subject to such
guidelines as may be agreed from time to time (the “Agreed Guidelines”) between
FSIJ and the Clients (“Services”).  FSIJ
shall offer such Services to the Clients in exchange for the payment of certain
amounts agreed upon pursuant to Article II, and as further stipulated in
Schedule A.


 


1.2           Such Services may include, without
limitation: (1) identification of prospective insurance or reinsurance
purchasers located in Japan, (2) making presentations to prospective purchasers
of potential risk reduction solutions, (3) introduction of such prospective
purchasers to the appropriate ACE insurance, reinsurance or services company,
and (4) receipt of data and other financial information from a prospective
purchaser and transmittal of such data and information to the appropriate ACE
entity.


 


1.3           The Services and associated fees may be
changed from time to time by an amendment to the attached Schedule A as agreed,
in writing, by the Parties.


 


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1.4           The Parties hereby acknowledge that any
employee rendering a Service pursuant to this Agreement (“Employee”) shall be
acting at all times as an employee of FSIJ. 
In the performance of any such Service, the Employee shall report and
act at the direction of FSIJ with regard to the Services, which shall have full
authority to direct his or her services related to this Agreement.  The Client shall exercise no control over
the Employee in the performance of Services. 
Subject to the terms and conditions of this Agreement and any Agreed
Guidelines, FSIJ will retain final decision-making authority in all matters in
respect of which it provides Services under this Agreement.


 


1.5           FSIJ shall perform Services as an independent
contractor.  Nothing contained herein
shall be construed to create the relation of partner, employer and employee or
principal and agent as between any Clients or as between FSIJ and the Clients.  FSIJ shall have no authority to negotiate or
transact business on behalf of the Clients.


 


1.6           FSIJ represents that it possesses and will
maintain the appropriate licenses and authority to perform any Services
provided to the Clients under this Agreement. 
However, notwithstanding this representation, nothing in this Agreement
shall require FSIJ to obtain any licenses, systems, personnel, or operations to
provide or comply with the obligations set forth in this Agreement or to retain
any specific Employee to perform the Services.


 


1.7           FSIJ may change the contents of the Services
and the manner in which such Services are performed by giving a notice to the
Clients, whenever there arises any question in relation to such contents or
manner of provision of the Services in respect of compliance with Japan’s
Insurance Business Law, Banking Law, Securities and Exchange Law, and/or other
applicable Japanese laws and ordinances.


 


ARTICLE II – COST ALLOCATION


 


2.1           For the Services rendered by FSIJ to the
Clients pursuant to Section 1 of this Agreement, each of the Clients shall pay
to FSIJ the amount of any Direct Expense incurred in respect of the provision
of Services to such Client.  In the
event Direct Expense is incurred in respect of Services to one or more Clients,
the individual Clients receiving such Services will pay the percentage of such
Direct Expense allocable to the Services received.  In addition, each of ACE FSI, FSUS, ACRI and PAGET shall be
liable to pay to FSIJ the applicable percent of the Common Charges as set forth
in Schedule A hereto.  For the avoidance
of doubt, it is understood that the entire amount of Common Charges will not be
reimbursed to FSIJ by the Clients; however, FSIJ shall have other sources of
revenue, whether or not specified herein.


 


2.2           “Direct Expense” as used herein shall mean an
amount due to a third party whether incurred by FSIJ directly, or at the
request of, or in support of the request of, an individual Client or group of
Clients in relation to specific Services provided by FSIJ to such Client(s),
and shall include, but not be limited to any government fees, legal, tax,
accounting, consulting or other professional service expenses. “Common Charges”
as used herein shall mean the total amount of FSIJ’s operating expenses, including
salary, office, marketing, travel and other operating expenses of FSIJ, plus
five percent (5%).


 


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2.3           PAGET may provide further compensation to
FSIJ for the Services on a fee or commission basis in accordance with the terms
of other negotiated agreements.


 


2.4           FSIJ will provide each Client with a
statement, setting forth the amounts of Direct Expense and Common Charges due
and payable, as applicable, within thirty (30) days after the last day of each
calendar quarter.  Each Client will pay
FSIJ the amount due hereunder within thirty (30) days of receipt of such
quarterly statement.


 


2.5           The Parties acknowledge and agree that the
Clients shall have the right to offset any amounts due and owing to FSIJ under
this Agreement against any other amounts due and owing to the Clients from
FSIJ.


 


2.6           Each Client herein shall only be liable for
its own participation and/or obligations hereunder, and shall not be jointly
liable for the participation or obligations of any other Client herein.


 


ARTICLE III - BOOKS AND RECORDS


 


3.1           The ownership of all books, supplies,
records or other materials furnished by or on behalf of the Clients relating to
any of the Services provided by FSIJ shall be vested in, and remain the
property of such Client, and all shall be delivered to such Client immediately
upon the termination of this Agreement or at any time upon the request of the
Client.


 


3.2           Each Client shall have the right, from time
to time, to conduct reviews, inspections and/or audits of any or all of the
records and documents related to its business under this Agreement, during
ordinary business hours upon reasonable notice, and FSIJ shall cooperate and
cause its employees, agents or advisors to cooperate with the Clients
conducting such reviews, inspections and audits.


 


ARTICLE IV - TERM AND TERMINATION


 


4.1           This Agreement is effective as of the date
first set forth above, and shall remain in effect until terminated by any Party
upon thirty (30) days prior written notice to the other Parties.


 


4.2           Notwithstanding any other provision of this
Agreement, any Party may terminate this Agreement immediately upon written
notice to the other Parties in the event that one of the other Parties (i)
becomes insolvent or bankrupt, or admits in writing its inability to pay its
debts as they become due, or makes an assignment for the benefit of creditors,
or applies for or consents to the appointment of a trustee or receiver for the
major part of its property, (ii) becomes the subject of bankruptcy,
reorganization, rearrangement, insolvency or liquidation proceedings, or other
proceedings for relief of creditors and such proceedings are not stayed or
discharged within ninety (90) days after being commenced; (iii) is acquired by
another entity, unless such acquiring entity is wholly owned, directly or
indirectly, by ACE Limited; (iv) fails to obtain or maintain any licenses,
permits or other qualifications that are required by law to fulfill


 


3

















 


 


its
obligations under this Agreement and such failure remains uncured after fifteen
(15) days, or (v) commits abandonment, fraud or willful misconduct with the
provision of Services under this Agreement.


 


4.3           Termination of this Agreement shall not relieve
a Party of its obligations under this Agreement up to the effective date of
termination.  Following any termination,
the Parties will cooperate with each other to provide a smooth transition of
services and to satisfy reasonable requests for information concerning actions
taken during the term.


 


ARTICLE V - INDEMNIFICATION


 


5.1           FSIJ agrees to hold harmless and indemnify
each Client and each of their officers, directors, employees, shareholders,
independent contractors and agents (collectively the “Client Indemnitees”) from
and against any and all claims, suits, causes of action, demands, losses,
damages, fines, penalties, punitive damages, costs or expenses, including
attorneys’ fees, or other liabilities of any nature (“Damages”) based on,
related to or in connection with: (i) any action taken or omitted by any of the
Client Indemnitees solely at the direction of FSIJ, (ii) Damages incurred by
any Client Indemnitee as a result solely of any negligent, willful or
intentional acts, errors or omissions of FSIJ or its officers, directors,
employees or agents in the performance or breach of this Agreement, (iii) any
litigation, arbitration or other proceeding related to this Agreement and
involving any of the Client Indemnities in which the plaintiff, petitioner or
other claimant does not allege any fault or wrongdoing on the part of any of
the Client Indemnities, and/or (iv) based on or related to or in connection
with any obligation of FSIJ to withhold and pay over any taxes based on wages,
salary or other compensation of employees of FSIJ.


 


5.2           The Clients each agree to severally and not
jointly hold harmless and indemnify FSIJ and each of it’s officers, directors,
employees, shareholders, independent contractors and agents (collectively the
“FSIJ Indemnitees”) from and against any and all Damages based on, related to
or in connection with: (i) any action taken or omitted by any of the FSIJ
Indemnitees solely at the direction of a Client, (ii) Damages incurred by any
FSIJ Indemnitee as a result solely of any negligent, willful or intentional
acts, errors or omissions of any Client or its directors, employees or agents
in the performance or breach of this Agreement, (iii) any litigation,
arbitration or other proceeding relating to this Agreement and involving any of
the FSIJ Indemnitees in which the plaintiff, petitioner or other claimant does
not allege any fault or wrongdoing on the part of the FSIJ Indemnities or any
of them, and/or (iv) based on or related to or in connection with any
obligation of any Client to withhold and pay over any taxes based on wages,
salary or other compensation of employees of that respective Client.


 


5.3           The terms of this Article shall survive the
termination of this Agreement.


 


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ARTICLE VI - ARBITRATION


 


6.1           All disputes between the Parties relating to
or in connection with this Agreement, including but not limited to its
interpretation, performance or breach, shall be submitted to binding
arbitration as described in this Article.


 


6.2           The Party initiating arbitration shall
provide notice of its demand for arbitration, which shall include appointment
of an arbitrator.  The other Party shall
have thirty (30) days from receipt of such demand for arbitration in which to
appoint its arbitrator.  If the
responding Party fails to appoint its arbitrator within such thirty (30) days,
the initiating Party shall be entitled to choose the second arbitrator.  Together the two arbitrators shall agree
upon a neutral umpire.  If no such
agreement is reached within thirty (30) days of the appointment of the second
arbitrator, the umpire shall be chosen by drawing lots.  The arbitrators and the umpire (collectively
the “Panel”) shall be active or retired insurance professionals of
disinterested insurance-related companies not under the control of either Party
or their respective parent companies.


 


6.3           Each Party shall submit its case to the Panel
within one (1) month from the date of the appointment of the umpire, but this
period of time may be extended by unanimous written consent of the Panel.


 


6.4           The Panel shall make its decision with regard
to the custom and usage of the insurance business.  The Panel shall be relieved of all judicial formalities and the
strict rules of law.  The written
decision of a majority of the Panel shall be rendered within sixty (60) days
following the termination of the Panel’s hearings, unless the Parties consent
to an extension.  Such majority decision
of the Panel shall be final and binding upon the Parties both as to law and
fact, and may not be appealed to any court of any jurisdiction.  Judgment may be entered upon the final
decision of the Panel in any court of proper jurisdiction.


 


6.5           Each Party shall bear the fees and expenses
of the arbitrator selected by or on its behalf, and the costs of arbitration,
including the fees of the umpire, shall be divided equally between the two
Parties.  The Panel shall have the
authority to award to the prevailing Party its costs and attorneys’ fees.


 


6.6           Except as may be otherwise provided herein,
the arbitrators shall promulgate rules to interpret this Agreement under ARIAS
Arbitration Rules.


 


6.7           Any arbitration proceeding shall take place
in Bermuda or such other location as may be mutually agreed upon by the
Parties.


 


ARTICLE VII - CONFIDENTIALITY


 


7.1           FSIJ agrees that, except with the consent of
the relevant Client, it will not disclose or use for any purpose outside the
scope of this Agreement proprietary or confidential information provided to it
by that Client unless and until such information: (i) becomes public knowledge
other than through disclosure by FSIJ, or (ii) is subpoenaed or otherwise
required by an authorized governmental authority.  In the event that FSIJ, upon the advice of counsel,


 


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determines that it is
required to provide any such information, it shall promptly provide notice to
the Client.


 


7.2           FSIJ’s obligations under this Article shall
survive the termination of this Agreement.


 


ARTICLE VIII - NOTICES


 


8.1           Any notice required or permitted under this
Agreement shall be in writing and shall be deemed to have been given: (i) when
received if given in person or by courier or a courier service, or (ii) on the
date of transmission if sent by telex, facsimile or other wire transmission
(receipt confirmed):


 


8.2           If to FSIJ,
addressed as follows:


 


	
   

  	
   

  	
  ACE
  Financial Solutions International, Inc., Japan Branch

  
	
   

  	
   

  	
  Attention:
  Mr. Hiroshi Hasagawa

  
	
   

  	
   

  	
  1-8-1
  Shimomeguro

  
	
   

  	
   

  	
  Meguro-ku

  
	
   

  	
   

  	
  Tokyo,
  Japan 153-0064

  
	
   

  	
   

  	
  Fax:
  813.5740.0813

  



 


8.3           If to a Client,
addressed as follows:


 


	
  If
  to ACE FSI:

  	
   

  	
  ACE
  Financial Solutions International, Ltd.

  
	
   

  	
   

  	
  Attention:
  Vice President and Counsel

  
	
   

  	
   

  	
  ACE
  Global Headquarters

  
	
   

  	
   

  	
  17
  Woodbourne Ave.

  
	
   

  	
   

  	
  Hamilton
  HM 08 Bermuda

  
	
   

  	
   

  	
  Fax:
  441 296-7797

  
	
   

  	
   

  	
   

  
	
  If
  to ACRI:

  	
   

  	
  ACE
  Capital Re International, Ltd.

  
	
   

  	
   

  	
  Attention:
  Vice President, Legal Counsel

  
	
   

  	
   

  	
  The
  ACE Building

  
	
   

  	
   

  	
  30
  Woodbourne Ave.

  
	
   

  	
   

  	
  Hamilton
  HM 08 Bermuda

  
	
   

  	
   

  	
  Fax:
  441.296.3379

  
	
   

  	
   

  	
   

  
	
  If
  to FSUS:

  	
   

  	
  ACE
  Financial Services Inc.

  
	
   

  	
   

  	
  Attention:
  Suresh Krishnan

  
	
   

  	
   

  	
  1331
  Avenue of the Americas

  
	
   

  	
   

  	
  New
  York, NY 10036

  
	
   

  	
   

  	
  Fax:
  212.642.7888

  
	
   

  	
   

  	
   

  
	
  If
  to PAGET:

  	
   

  	
  Paget
  Reinsurance International Ltd.

  
	
   

  	
   

  	
  Attention:
  Roger Gillett

  



 


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  ACE Global Headquarters

  
	
   

  	
   

  	
  17 Woodbourne Ave.

  
	
   

  	
   

  	
  Hamilton HM 08 Bermuda

  
	
   

  	
   

  	
  Fax: 441.292.8635

  



 


ARTICLE IX - MISCELLANEOUS PROVISIONS


 


9.1           The Parties agree that this Agreement
constitutes the entire understanding and agreement among them and supersedes
any prior or contemporaneous written or oral agreements, undertakings,
communications or representations among them concerning the subject matter of
this Agreement.


 


9.2           If any separable provision hereof shall be
held to be invalid or unenforceable, such invalidity or unenforceability shall
not affect any other provision hereof.


 


9.3           No terms, conditions, or other provisions of
this Agreement may be waived, modified, amended, or otherwise changed except in
a writing signed by the Parties which expressly states that it is an amendment
or waiver of terms of this Agreement. 
Any such writing must also specify with particularity which term or
terms of this Agreement are so amended or waived.  Any such writing shall not be construed as a general waiver,
abandonment, modification or amendment of any terms, conditions or provisions
of this Agreement, but rather strictly construed as an amendment or waiver of
only those terms or conditions stated therein.


 


9.4           No Party may assign its rights or obligations
under this Agreement without the prior written consent of the other Parties.


 


9.5           The rights, duties and obligations under this
Agreement shall be binding upon and inure to the benefit of the Parties’
respective successors and assigns.


 


9.6           This Agreement shall be governed and
construed in accordance with the laws of Bermuda without giving effect to the
principles of conflicts of laws thereof.


 


9.7           This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


9.8           The headings in this Agreement are for
reference purposes only, and shall not affect in any way the meaning or
interpretation of this Agreement.


 


[remainder of page
intentionally left blank]


 


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IN WITNESS WHEREOF, the
Parties have caused this Agreement to be executed and delivered as of the date
first above written.


 


 


	
   

  	
  ACE Financial Solutions International Inc.,

  
	
   

  	
  Japan Branch

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACE Financial Solutions International, Ltd.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACE Capital Re International, Ltd.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACE American Insurance Company, for

  itself and on behalf of ACE Financial

  Solutions (US)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Paget Reinsurance International Ltd.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
							



 


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Schedule A


 


Common Charges


 




	
  Client

  	
   

  	
  Percent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ACE FSI

  	
   

  	
  25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  FSUS

  	
   

  	
  25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  ACRI

  	
   

  	
  25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  PAGET

  	
   

  	
  25

  	
  %

  






 


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