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Exhibit 10.3
AMENDED AND RESTATED AGREEMENT
This AMENDED AND RESTATED AGREEMENT is made as of February 26, 1999,
by and among INTER-ATLANTIC SECURITIES CORPORATION, a Delaware corporation
("Inter-Atlantic"), Global Markets Access Ltd. a Bermuda corporation (the
"Company"), and Global Markets Guaranty Ltd., a Bermuda corporation (the
"Operating Company").
BACKGROUND
The Company and the Operating Company were incorporated in August
1998, and neither has an operating history. The Company intends to engage in
the business of providing financial guaranty insurance and reinsurance and
expects to conduct substantially all of its operations through the Operating
Company.
Inter-Atlantic is willing to provide assistance to the Company and
the Operating Company in connection with the proposed initial public offering
and any concurrent private placements of common shares of the Company (the
"Offering"), subject to the terms of this Agreement.
The Company and the Operating Company desire to engage
Inter-Atlantic in connection with the Offering, subject to the terms of this
Agreement.
The Company, the Operating Company and Inter-Atlantic desire to
amend and restate in its entirety the Agreement dated as of August 28, 1998 by
and among the Company, the Operating Company and Inter-Atlantic.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements herein contained, the parties hereto, intending
to be legally bound, hereby agree as follows:
SECTION 1. ENGAGEMENT OF INTER-ATLANTIC.
(a) The Company and the Operating Company hereby engage Inter-Atlantic to
assist with the Offering and certain other matters and in connection therewith,
to provide the services set forth in Section 1(b) of this Agreement, subject to
the supervision and direction of the Company's Board of Directors (the "Board").
Inter-Atlantic hereby accepts such engagement on the terms and conditions
hereinafter set forth.
(b) Inter-Atlantic shall perform or supervise the performance by others of
the following services in connection with the Offering, as may be requested by
the Company or the Operating Company from time to time:
(1) assist the Company in preparing or causing to be prepared a
registration statement registering the Offering under the United States
Securities Act of 1933, as amended, and all applicable state and federal
securities laws;
(2) assist the Company in retaining such underwriters (the
"Underwriters") as may be necessary or desirable in connection with the
Offering;
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(3) assist the Company in identifying potential investors in and
negotiating the terms of any private placements;
(4) incur in the name of the Company or the Operating Company, as
agent, or in the name of Inter-Atlantic, and pay, all reasonable costs and
expenses related to the Offering;
(5) assist the Company and the Operating Company in engaging such
legal counsel, independent auditors and other third parties as may be necessary
or desirable in connection with the foregoing;
(6) prepare regular reports to the Board describing the status of
the Offering; and
(7) upon Board authorization or as otherwise deemed appropriate by
Inter-Atlantic, perform additional services relating to any of the foregoing or
to the Offering.
SECTION 2. FEES AND EXPENSE REIMBURSEMENTS.
(a) Fee Payment. Upon the closing of the Offering, the Company and the
Operating Company shall, in addition to the other amounts payable hereunder, pay
Inter-Atlantic a fee equal to US$3,600,000 by wire transfer pursuant to
instructions previously given to the Company and the Operating Company for that
purpose. Unless otherwise extended by mutual agreement among Inter-Atlantic and
the Company and the Operating Company, in the event the closing of the Offering
does not occur by March 31, 1999, no fee shall be owed by the Company and the
Operating Company to Inter-Atlantic pursuant to this Section 2(a).
(b) Expense Reimbursements.
(1) The Company and the Operating Company shall reimburse
Inter-Atlantic for all reasonable costs and expenses incurred by Inter-Atlantic,
whether incurred before or after the date hereof, in connection with the
performance of the services contemplated by this Agreement, including, without
limitation, fees and disbursements paid in accordance with Section 1(b)(4)
hereof to third-parties retained by Inter-Atlantic (including out-of-pocket
expenses that may be incurred by American Capital Access Service Corporation or
any other consultant retained by Inter-Atlantic) to assist in the Offering, and
fees charged by third-parties in connection with any filing, notification,
consent, approval or authorization made or obtained by Inter-Atlantic in
connection with the Offering; provided that if the Offering has not been
consummated by March 31, 1999, the Company and the Operating Company shall not
be obligated to reimburse Inter-Atlantic for any such costs or expenses
incurred.
(2) With respect to costs and expenses incurred by Inter-Atlantic in
connection with the performance of the services contemplated by Section 1(b) of
this Agreement, Inter-Atlantic shall deliver to the Board an itemized statement
(the "Closing Statement") of such costs and expenses five business days prior to
the scheduled closing of the Offering. The Closing Statement should attach
copies of material invoices received by Inter-Atlantic with regard to such costs
and expenses. The Closing Statement shall include Inter-Atlantic's
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reasonable estimate of all costs and expenses expected to be incurred after the
delivery of such statement and through to the closing of the Offering. The
Company and the Operating Company shall pay Inter-Atlantic the amount set forth
on the Closing Statement at the closing of the Offering.
(3) The Board shall promptly notify Inter-Atlantic of any objection
to the Closing Statement, and the parties shall negotiate in good faith to
resolve any such objection. If the parties fail to resolve such disputed matter
within ten business days after receipt by Inter-Atlantic of notice of the
Board's objection, then any such disputed matter may, at the election of either
party, be submitted to and resolved by KPMG Peat Marwick. The fees and expenses
of such accounting firm incurred in resolving the disputed matter shall be
equitably apportioned by such accounting firm based upon the extent to which the
Company and the Operating Company, on the one hand, or Inter-Atlantic, on the
other hand, are determined by such accounting firm to be the prevailing party.
(c) This Section 2 shall survive the termination of this Agreement.
SECTION 3. TERM.
This Agreement shall commence on the date hereof and shall expire on
the earlier of: (i) March 31, 1999 or (ii) the closing of the Offering.
SECTION 4. LIMITATION OF LIABILITY OF INTER-ATLANTIC.
The duties of Inter-Atlantic shall be confined to those expressly
set forth herein, and no implied duties are assumed by or may be asserted
against Inter-Atlantic hereunder. Inter-Atlantic shall not be liable for any
error of judgment or mistake of law or for any loss arising out of any act or
omission in carrying out its duties hereunder, except a loss resulting solely
from Inter-Atlantic's willful misfeasance or gross negligence.
SECTION 5. INDEMNITY.
(a) The Company and the Operating Company shall indemnify, defend and hold
harmless Inter-Atlantic and its officers, directors, shareholders, employees,
agents, representatives and affiliates ("Inter-Atlantic Indemnities") against
and in respect of any and all losses, costs, expenses (including, without
limitation, costs of investigation and defense and reasonable attorneys' fees),
claims, damages, obligations and liabilities (collectively, "Damages") arising
out of, based upon or otherwise in respect of the Offering or the operation by
the Company and the Operating Company of their businesses, or related to this
Agreement or the performance by Inter-Atlantic or any party retained by
Inter-Atlantic thereof, except to the extent that any such Damages result solely
from the willful misfeasance or gross negligence of one or more Inter-Atlantic
Indemnities.
(b) Inter-Atlantic shall indemnify, defend and hold harmless the Company
and the Operating Company and their officers, directors, shareholders,
employees, agents, representatives and affiliates against and in respect of any
and all Damages to the extent arising out of, based upon or otherwise in respect
of Inter-Atlantic's willful misfeasance or gross negligence in connection with
Inter-Atlantic's performance of this Agreement.
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(c) This Section 5 shall survive the termination of this Agreement.
SECTION 6. MISCELLANEOUS.
(a) Notices. All notices, waivers and other communications under this
Agreement must be in writing and will be deemed to have been duly given (i) when
delivered by hand (with written confirmation of receipt), (ii) when sent by
telecopier (with written confirmation of successful transmission), provided that
a copy is mailed by certified or registered mail, postage prepaid, return
receipt requested or (iii) two business days following deposit thereof (with all
postage and other fees paid) with a nationally recognized overnight delivery
service, in each case to the appropriate addresses and telecopier numbers, as
applicable, set forth below (or to such other addresses and telecopier numbers
as a party may designate by notice to the other parties):
To Inter-Atlantic:
Inter-Atlantic Securities Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxx, Managing Director
To the Company:
Global Markets Access Ltd.
Cumberland House
1 Victoria Street
Xxxxxxxx, XX AX, Bermuda
Attn.: Xxxxxx X. Xxxxxxxx, Chief Executive Officer
To the Operating Company:
Global Markets Guaranty Ltd.
Cumberland House
1 Victoria Street
Xxxxxxxx, XX AX, Bermuda
Attn.: Xxxxxx X. Xxxxxxxx, Chief Executive Officer
(b) Assignment and Benefit. This Agreement or any rights hereunder may not
be assigned by the Company or the Operating Company, nor may the Company or the
Operating Company delegate any obligations hereunder, without the prior written
consent of Inter-Atlantic. Inter-Atlantic shall have the right to assign this
Agreement or any rights hereunder to Inter-Atlantic Capital Partners, Inc. and
to the successors and assigns of Inter-Atlantic Capital Partners, Inc. Subject
to the foregoing, this Agreement and the rights and obligations contained herein
shall inure to the
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benefit of, and be binding upon, the parties hereto and each of their respective
successors and assigns. This Agreement shall not be construed as giving any
person, other than the parties hereto and their successors and assigns, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any of the provisions herein contained, this Agreement and all provisions and
conditions hereof being intended to be, and being, for the sole and exclusive
benefit of such parties, successors and assigns and for the benefit of no other
person or entity.
(c) Amendment and Waiver. This Agreement may not be amended except by a
written agreement executed by the party to be charged with the amendment.
Neither the failure nor any delay by any party in exercising any right, power or
privilege under this Agreement will operate as a waiver of such right, power or
privilege, and no single or partial exercise of any such right, power or
privilege will preclude any other or further exercise of such right, power or
privilege or the exercise of any other right, power or privilege. To the maximum
extent permitted by applicable law, no claim or right arising out of this
Agreement can be waived by a party, in whole or in part, except in a writing
signed by such party. The waiver by a party of any breach of any provision of
this Agreement shall not constitute or operate as a waiver of any other breach
of such provision or of any other provision hereof, nor shall any failure to
enforce any provision hereof operate as a waiver of such provision or of any
other provision hereof.
(d) Governing Law. This Agreement is made pursuant to, and shall be
construed and enforced in accordance with, the laws of the Islands of Bermuda,
without giving effect to otherwise applicable principles of conflicts of law.
(e) Severability. The invalidity or unenforceability of any particular
provision, or part of any provision, of this Agreement shall not affect the
other provisions or parts hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provisions or parts were omitted.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original; and any person may
become a party hereto by executing a counterpart hereof, but all of such
counterparts together shall be deemed to be one and the same instrument. It
shall not be necessary in making proof of this Agreement or any counterpart
hereof to produce or account for any of the other counterparts.
(g) Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter of this Agreement
and supersedes all prior agreements and understandings with respect to the
subject matter hereof.
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IN WITNESS WHEREOF, each of the parties hereto has caused its duly
authorized representatives to execute this Agreement, all as of the date first
above written.
INTER-ATLANTIC SECURITIES CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
___________________________________
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
GLOBAL MARKETS ACCESS LTD.
By: /s/ Xxxxxx X. Xxxxxxxx
___________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
GLOBAL MARKETS GUARANTY LTD.
By: /s/ Xxxxxx X. Xxxxxxxx
___________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
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