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Exhibit 10.14
AGREEMENT
This AGREEMENT is made as of November 1, 1998 by and among INSURANCE
CONSULTING SERVICES LIMITED, a Bermuda corporation ("ICS"), GLOBAL MARKETS
ACCESS LTD., a Bermuda corporation (the "Company"), and GLOBAL MARKETS GUARANTY
LTD., a Bermuda corporation (the "Operating Company").
BACKGROUND
The Company and its wholly-owned subsidiary, the Operating Company,
were both incorporated in August 1998 in Bermuda, and neither has any operating
history. The Company intends to engage in the business of providing financial
guaranty insurance and reinsurance on financial obligations through the
Operating Company.
ICS is willing to provide certain services to the Company and the
Operating Company after the consummation of the proposed initial public offering
of common shares of the Company (the "IPO"), subject to the terms of this
Agreement. The Company and the Operating Company desire to engage ICS to provide
such services, subject to the terms of this Agreement.
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 ICS.
(a) The Company and the Operating Company hereby engage ICS to provide the
services set forth in Section 1(b) of this Agreement. ICS hereby accepts such
engagement on the terms and conditions hereinafter set forth.
(b) ICS shall perform or supervise the performance by others of the
following services after the consummation of the IPO:
(1) assist the Company and the Operating Company with regard to risk
management and related financial services; and
(2) provide such other related services as may be requested from
time to time.
(c) The performance of the services set forth in Section 1(b) of this
Agreement by ICS shall be at the direction of, and subject to the supervision
of, the Company's Board of Directors.
SECTION 2. FEE.
(a) Annual Fee. The Operating Company shall pay to ICS a fee at the rate
of US$425,000 per annum, payable quarterly in advance following the consummation
of the IPO through the end of the term of the Agreement.
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SECTION 3. TERM.
The term of this Agreement shall extend from the date hereof until
the fifth anniversary of the consummation of the IPO.
SECTION 4. LIMITATION OF LIABILITY OF ICS.
ICS 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 ICS's willful misfeasance or
gross negligence.
SECTION 5. INDEMNITY.
(a) The Company and the Operating Company shall indemnify, defend and hold
harmless ICS and its officers, directors, shareholders, employees, agents,
representatives and affiliates ("ICS 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 operation by the Company and the Operating
Company of their businesses, or related to this Agreement or ICS's performance
thereof, except to the extent that any such Damages result solely from the
willful misfeasance or gross negligence of one or more ICS Indemnities.
(b) ICS 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 solely arising out of, based upon or otherwise in respect
of ICS's willful misfeasance or gross negligence in connection with ICS's
performance of this Agreement.
(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):
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To ICS:
Insurance Consulting Services Limited
c/o Conyers Xxxx & Xxxxxxx
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx, P.O. Box HM666
Xxxxxxxx, Bermuda HM CX
Attn: Xxxxxxx X. Xxxxxx, Esquire
(000) 000-0000
(000) 000-0000 Telecopy Number
To the Company:
Global Markets Access Ltd.
Xxxxxxxx Xxxx, Victoria Street
X.X. Xxx XX0000
Xxxxxxxx, XX XX, Xxxxxxx
Xxxx.: Xxxxxx X. Xxxxxxxx, President and
Chief Executive Officer
To Operating Company:
Global Markets Guaranty Ltd.
Xxxxxxxx Xxxx, Xxxxxxxx Street
X.X. Xxx XX0000
Xxxxxxxx, XX XX, Xxxxxxx
Xxxx.: Xxxxxx X. Xxxxxxxx, President and
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 ICS. This Agreement or any rights hereunder may not be assigned by
ICS, nor may ICS delegate any obligations hereunder, without the prior written
consent of the Company and the Operating Company. Subject to the foregoing, this
Agreement and the rights and obligations contained herein shall inure to the
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
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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.
INSURANCE CONSULTING SERVICES LIMITED
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
GLOBAL MARKETS ACCESS LTD.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
GLOBAL MARKETS GUARANTY LTD.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
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