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Exhibit 10.6
PRIVATE &
CONFIDENTIAL
Dated:
9 August 2007
TOWER BRIDGE INTERNATIONAL
SERVICES L.P. and
BGC INTERNATIONAL
(1)
and
BGC PARTNERS, L.P
(2)
On behalf of itself and
the BGC Entities
including those listed on
page 1 hereof
ADMINISTRATIVE SERVICES
AGREEMENT
Administrative Services
Agreement
Tower Bridge International Services L.P.
and others
BGC Partners, L.P and others
THIS ADMINISTRATIVE SERVICES
AGREEMENT is dated 9 August 2007 and is made BETWEEN
:
| (1) |
TOWER BRIDGE INTERNATIONAL SERVICES L.P. a United
Kingdom limited partnership established under the Limited
Partnership Act 1907 acting through its General Partner Tower
Bridge GP Limited whose registered office is at One Churchill
Place, London E14 5RD ( “Services LP” ) and,
BGC International , an English unlimited company whose
registered office is at One Churchill Place, London E14 5RD (
“BGCI” ). Collectively Services LP, and BGC
International shall be referred to herein as the “Services
Providers” and |
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(2)
|
BGC PARTNERS, L.P a
Delaware limited partnership whose principal place of business is
199 Water Street, New York, NY 10038 on behalf of itself and the
BGC Entities, including but not limited to BGC BROKERS GP
LIMITED, BGC BROKERS LIMITED, BGC INTERNATIONAL GP LIMITED, BGC GP
LIMITED, EURO BROKERS HOLDINGS LIMITED, EURO BROKERS SERVICES
LIMITED, MIS BROKERS LIMITED, BGC EUROPEAN GP LIMITED, BGC GLOBAL
LIMITED, TOWER BRIDGE SECURITIES LIMITED and TOWER BRIDGE GP
LIMITED all English private limited companies whose registered
office is One Churchill Place, London E14 5RD, and BGC
INTERNATIONAL L.P, BGC BROKERS L.P and BGC EUROPEAN HOLDINGS
L.P all limited partnerships incorporated under the Limited
Partnership Act, 1907, whose registered office is at One Churchill
Place, London E14 5RD, BGC FINANCIAL, INC LONDON BRANCH a
New York corporation whose registered branch office in London is at
One Churchill Place, London E14 5RD, AUREL LEVEN SECURITIES
a French Societe par actions simplifee whose registered office is
at 29 Rue de Berri, 75008 Paris , BGC FRANCE HOLDINGS a
French Societe par actions simplifee whose registered office is at
1 Rue Favart, 75002 Paris, France , ETC POLLAK SAS and
EPP HOLDINGS SAS both French Societe par actions simplifee
whose registered office is at 14 Rue Auber, 75009 Paris, France,
BGC PARTNERS MENKUL DEGERLER AS , whose registered office is
at Nisantasi Valikonagi Caddesi, Cimen Apt No 79/3, Sisli,
Istanbul, Turkey, BGC CAPITAL MARKETS (HONG KONG) LIMITED
and BGC SECURITIES (HONG KONG), LLC both of whose registered
office is Suites 6402-6408, 64 th Floor, Two International Finance Centre, No 8 Finance Street,
Central, Hong Kong, BGC CAPITAL MARKETS (JAPAN), LLC and
BGC SHOKEN KAISHA LIMITED whose registered office is 111
East 58th Street, New York, NY 10022, BGC SECURITIES (SOUTH
AFRICA) PTY LIMITED whose registered office is 287 Lynnwood
Road, Menlo Park, 0081 South Africa, BGC CAPITAL MARKETS
(SWITZERLAND), LLC whose registered office is at 111 East 58th
Street, New York, NY 10022, BGC SECURITIES SARL whose
registered address is Succursale de Nyon, Chemin de la Vuarpilliere
31, CH – 1260 Nyon, Switzerland, EURO BROKERS
(SWITZERLAND) S.A whose registered address is c/o Schellenberg
Wittmer, 15bis, rue des Alpes, P.O. 2088, 1211 Geneva 1,
Switzerland, BGC PARTNERS (AUSTRALIA) PTY LIMITED and
EAUSTBOND PTY LIMITED both Australian limited liability
companies whose registered office are at MLC Centre, Level 50,
19-29 Martin Place, Sydney, NSW, 2000 also including any BGC
Entities which become a party to this Agreement pursuant to clause
14.8 or 14.9 hereof. Collectively and individually BGC Partners,
L.P. and the BGC Entities shall be referred to herein as the
“Services Recipients” .
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Page 2 of 17
Administrative Services
Agreement
Tower Bridge International Services L.P.
and others
BGC Partners, L.P and others
WHEREAS:
| (A) |
The Services Providers have the resources and capacity to
provide certain services, including office space, personnel and
corporate services, such as cash management, internal audit,
information technology, facilities management, promotional sales
and marketing, legal, payroll, benefits administration and other
administrative services and insurance services (collectively,
“Administrative Services” ). |
| (B) |
The Services Providers are willing to provide or arrange for
the provision of Administrative Services to the Services
Recipients, all upon the terms and conditions set forth
herein. |
| (C) |
In the absence of obtaining such services from the Services
Providers the Services Recipients would require additional staff
and would need to enhance its existing administrative
infrastructure. |
| (D) |
The Services Recipients may develop the resources and capacity
to provide certain Administrative Services to the Services
Providers, and are willing to provide or arrange for the provision
of such services to the Services Providers, all upon the terms and
conditions set forth herein. |
| (E) |
Each of the parties hereto acknowledges that greater
efficiencies and reduced costs are expected to be achieved from the
economies of scale associated with the provision of such services
by the Services Providers to the Services Recipients and by the
Services Recipients to the Services Providers in the manner
provided herein during the Term hereof. |
NOW IT IS HEREBY AGREED as
follows:
| 1. |
Definitions and interpretation |
| 1.1 |
In this Agreement, unless the context otherwise
requires: |
“Administrative
Services” bears the meaning in Recital A;
“Affiliate” means, in relation to a Party,
any person controlled by, controlling, or under common control with
that Party;
“BGC
Entities” means the direct and indirect current and
future Subsidiaries of BGC Partners, L.P. (or of such other entity
that BGC Partners, L.P may nominate in writing from time to time as
controlling BGC Partners, L.P) together with those entities which
are nominated to be BGC Entities in accordance with clause 14
hereof and does not include CFLP Entities or eSpeed, Inc and its
direct and indirect Subsidiaries;
“CFLP
Entities” means the direct and indirect current and
future Subsidiaries of CFLP other than (1) the Services
Providers and the BGC Entities and (2) eSpeed, Inc. and its
direct and indirect Subsidiaries) together with those entities
which are nominated to be
Page 3 of 17
Administrative Services
Agreement
Tower Bridge International Services L.P.
and others
BGC Partners, L.P and others
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CFLP Entities in accordance with the Administrative Services
Agreement between the Services Providers and CFLP and others signed
on or about the date hereof; |
“CFLP”
means Cantor Fitzgerald, L.P.;
“Effective
Date” save where the Parties hereto may agree in writing
means the later of 1 January 2007 or the date on which
Services Providers commence the provision of services hereunder to
a Services Recipient;
“Extended
Term” bears the meaning in clause 2 of this
Agreement;
“Initial
Term” bears the meaning in clause 2 of this
Agreement;
“Office”
bears the meaning in part (a) of the Schedule;
“Party and
Parties” means collectively the Services Providers and
the Services Recipients and each of them individually;
“Subsidiaries” means any entity directly or
indirectly controlled by CFLP., BGC Partners, L.P. or eSpeed, Inc.
(excluding each other’s subsidiaries) as the case may be (or
in relation to BGC Partners, L.P. only, controlled by such other
entity that BGC Partners, L.P. may nominate in writing to Services
LP from time to time as controlling BGC Partners, L.P);
and
“Term”
bears the meaning set out in clause 2.
| 1.2 |
In this Agreement, unless the context otherwise
requires: |
| 1.2.1 |
references to a Clause or the Schedule are to a clause of,
or the schedule to, this Agreement, and references to this
Agreement include its Schedule and references in the
Schedule or part or section of the Schedule to a
paragraph are to a paragraph of the Schedule or that
part or section of the Schedule; |
| 1.2.2 |
references to this Agreement or any other document or to any
specified provision of this Agreement or any other document are to
this Agreement, that document or that provision as in force for the
time being and as altered from time to time in accordance with the
terms of this Agreement or that document or, as the case may be,
with the agreement of the relevant parties; |
| 1.2.3 |
words importing the singular include the plural and vice versa,
words importing a gender include every gender and references to
persons include corporations; |
| 1.2.4 |
the descriptive headings to Clauses, the Schedule and
paragraphs are inserted for convenience only, have no legal
effect and shall be ignored in the interpretation of this
Agreement; and |
| 1.2.5 |
references to a party are to a party hereto and references to
the parties are to the parties hereto. |
| 1.3. |
references to writing includes any method of reproducing words
in a legible and non-transitory form. |
Page 4 of 17
Administrative Services
Agreement
Tower Bridge International Services L.P.
and others
BGC Partners, L.P and others
| 2.1 |
The term of this Agreement commenced on the Effective Date and
shall remain in effect for a three year period (the
“Initial Term” ). Thereafter, this Agreement
shall be renewed automatically for successive one year terms (the
“Extended Term” ), unless any party shall give
written notice to the other parties at least 180 days before the
end of the Initial Term or the then current Extended Term, as the
case may be, of its desire to terminate this Agreement, in which
event this Agreement shall end with respect to the terminating
party, on the last day of the Initial Term or the then current
Extended Term, as the case may be, provided, however, that in the
event any of the Services Providers terminates this Agreement, the
Services Recipients shall be entitled to continued use of any
hardware and equipment that it used prior to the date of this
Agreement upon the terms and conditions set forth herein (including
the payment terms in clause 5), and provided, further, that the
Services Providers shall not be required to repair or replace any
such hardware or equipment. |
| 2.2 |
This Agreement may be terminated by a Party as provided herein
or as provided in clause 9, with respect to a particular service or
group of services only, in which case it shall remain in full force
and effect with respect to the other services described herein. The
terminating party shall pay to the other party an amount equal to
the costs incurred by the party providing services as a result of
such termination, including, without limitation, any severance or
cancellation fees. Notwithstanding the foregoing, the Term of this
Agreement, with respect to any space made available by a Services
Provider to Services Recipients pursuant to Schedule A, shall not
extend beyond the term of the Services Provider’s lease of
(or equivalent right to occupy) such space, including any extension
thereof. The Initial Term and the Extended Term are referred to
herein as the “Term” . |
| 3.1 |
During the Term hereof and upon the terms and conditions set
forth herein, the Services Providers shall provide such
Administrative Services to Services Recipients as reasonably
requested by the Services Recipients, including but not limited to,
(i) administration and benefits services; (ii) employee
benefits, human resources and payroll services;
(iii) financial and operations services; (iv) internal
auditing services; (v) legal related services; (vi) risk
and credit services; (vii) accounting services;
(viii) general tax services; (ix) space;
(x) personnel; (xi) hardware and equipment;
(xii) communication and data facilities;
(xiii) facilities management services; (xiv) promotional,
sales and marketing services; (xv) procuring of insurance
coverage; (xvi)miscellaneous services as the Parties may reasonably
agree. |
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| 3.2 |
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(i) |
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During the
Term and upon the terms and conditions set forth herein, the
relevant Services Recipient shall provide to a Services Provider,
Administrative Services set out in clause 3.1(i) to (xvi) as
the Services Provider may reasonably request from time to time.
Where such Services are provided, references herein to the Services
Provider shall be the Services Recipient and vice
versa.. |
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(ii) |
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During the
Term and upon the terms and conditions set forth herein, the
relevant Services Provider shall provide to the other Services
Provider, Administrative Services set out in clause 3.1(i) to
(xvi) as the Services Provider may reasonably |
Page 5 of 17
Administrative Services
Agreement
Tower Bridge International Services L.P.
and others
BGC Partners, L.P and others
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request from
time to time. Where such Services are provided, references herein
to the (receiving) Services Provider shall be the Services
Recipient and vice versa. |
| 3.3 |
A party providing Administrative Services under clauses 3.2 or
3.3 may at its discretion arrange for Affiliates or other third
parties to provide such services hereunder. The provision of such
Administrative Services shall also be subject to the terms of any
other agreements entered into between the parties hereto and any
other administrative services agreement with any Affiliate of such
services provider or services recipient. |
| 3.4 |
Each party shall use that degree of skill, care and diligence
in the performance of services hereunder that (i) a reasonable
Person would use acting in like circumstances in accordance with
financial services industry standards and all applicable laws and
regulations and (ii) is no less than that exercised by such
party with respect to comparable services that it performs on its
own behalf. |
| 3.5 |
The applicable Services Provider and Recipient shall cooperate
with each other in all reasonable respects in matters relating to
the provision and receipt of the Administrative Services. Such
cooperation shall include obtaining all consents, licenses or
approvals necessary to permit each party to perform its obligations
hereunder. |
Notwithstanding anything to
the contrary contained in clause 3, each Services Provider
acknowledges and agrees that it shall provide the services set
forth in clause 3 subject to the ultimate authority of each of
the Services Recipients to control its own business and affairs.
Each Party acknowledges that the services provided hereunder by the
Services Providers are intended to be administrative and technical
support services and are not intended to set policy for each of the
Services Recipients.
| 5.1 |
In consideration for the provision of services under clause 3,
the Services Providers shall charge each of the Services Recipients
(including any applicable taxes, in connection with the provision
of such services), based upon: |
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(i) |
an amount equal to the direct cost that the Services Providers
estimates it will incur or actually incurs in performing those
services including third party charges incurred in providing
services pursuant to clause 3 (and space shall be charged in
accordance with the Schedule hereto), plus |
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(ii) |
a reasonable allocation of other costs (including, without
limitation, any irrecoverable value added tax or similar tax the
Services Providers estimates it will incur or actually incurs in
connection with such services, depreciation and amortization)
determined in a consistent and fair manner so as to cover the
Services Providers’ appropriate costs or in such other manner
as the Parties shall agree. The Services Providers shall not charge
the Services Recipients any portion of any tax for which the
Services Providers receives a rebate or credit, or to which the
Services Providers are entitled to a rebate or credit, |
together with such mark up
(if any) as the relevant Parties may agree from time to
time.
Page 6 of 17
Administrative Services
Agreement
Tower Bridge International Services L.P.
and others
BGC Partners, L.P and others
| 5.2 |
Any value added or other turnover taxes required to be charged
in respect of services provided hereunder shall be separately
charged in addition to any charges otherwise due
hereunder. |
| 5.3 |
Each Services Recipient shall pay to the relevant Services
Provider the aggregate charge for services provided under this
Agreement in arrears within 30 days after each calendar month.
Amounts due by any one Services Recipient to any one Services
Provider under the Agreement shall be set off against amounts due
by the second party to the first under this or any other
Agreement. |
| 5.4 |
To the extent that any Services Recipient provides any services
to any Services Provider under clause 3.2 hereof, then the
provisions of this Agreement including clauses 5 and 8 shall apply
to the provision of such services mutatis mutandis. |
| 6 |
Exculpation and Indemnity; Other Interests |
| 6.1 |
Each Services Provider (including its partners, officers,
directors and employees) shall not be liable to any of the Services
Recipients or the shareholders of the Services Recipients for any
acts or omissions taken or not taken in good faith on behalf of any
of them and in a manner reasonably believed by the Services
Provider to be within the scope of the authority granted to it by
this Agreement and in the best interests of the Services
Recipients, except for acts or omissions constituting fraud or
wilful misconduct in the performance of the Services
Provider’s duties under this Agreement. Notwithstanding the
foregoing, the Services Providers shall be liable to the Services
Recipients for any losses incurred by any of them in connection
with the provision of the Services Provider’s services
hereunder to the extent such Services Provider is entitled to be
reimbursed by an unaffiliated third party for any such liability.
The Services Recipients shall indemnify, defend and hold harmless
the Services Providers (and their stockholders, partners, officers,
directors and employees) from and against any and all claims or
liabilities of any nature whatsoever (including consequential
damages and reasonable attorney’s fees) arising out of or in
connection with any claim against the Services Providers under or
otherwise in respect of this Agreement, except where attributable
to the fraud or wilful misconduct of the Services
Providers. |
| 6.2 |
Each Services Recipient (including its officers, directors and
employees) shall not be liable to any of the Services Providers or
the shareholders of the Services Provider for any acts or omissions
taken or not taken in good faith on behalf of such Services
Recipient and in a manner reasonably believed by such Services
Recipient to be within the scope of the authority granted to it by
this Agreement and in the best interests of the Services Provider,
except for acts or omissions constituting fraud or wilful
misconduct in the performance of such Services Recipient’s
duties under this Agreement. Notwithstanding the foregoing, the
Services Recipients shall be liable to the Services Providers for
any losses incurred by the Services Providers in connection with
the provision of the Services Recipients’ services hereunder
to the extent such Services Recipient is entitled to be reimbursed
by an unaffiliated third party for any such liability. The Services
Providers shall indemnify, defend and hold harmless the Services
Recipients (and their stockholders, partners, officers, directors
and employees) from and against any and all claims or liabilities
of any nature whatsoever (including consequential damages and
reasonable attorney’s fees) arising out of or in connection
with any claim against the |
Page 7 of 17
Administrative Services
Agreement
Tower Bridge International Services L.P.
and others
BGC Partners, L.P and others
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Services Recipients under or otherwise in respect of this
Agreement, except where attributable to the fraud or wilful
misconduct of the Services Recipients. |
| 6.3 |
Save to the extent prohibited by law, the provision of clauses
6.1 and 6.2 sets out the entire liability of the parties to each
other. |
| 6.4 |
Nothing in this Agreement shall prevent any of the Services
Providers, the Services Recipients or their Affiliates from
engaging in or possessing an interest in other business ventures of
any nature or description, independently or with others, whether
currently existing or hereafter created, and any Party hereto who
is not a party to such arrangements shall have any rights in or to
such independent ventures or to the income or profits derived
therefrom. |
| 7 |
Relationship of the Parties |
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No partnership, joint venture or other arrangement shall be
deemed to be created by this Agreement. Except as expressly
provided herein, none of the Services Providers nor any of the
Services Recipients nor their respective Affiliates shall have any
claim against any of the others or right of contribution by virtue
of this Agreement with respect to any uninsured loss incurred by
any of the others, nor shall either of them have a claim or right
against any of the others by virtue of this Agreement with respect
to any loss that is deemed to be included within the deductible,
retention or self-insured portion of any insured risk. |
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Any party hereto may request a review, by those certified
public accountants who examine the Services Providers or the
Service Recipients’ books and records, of the other
party’s cost allocation to the requesting party to determine
whether such allocation is proper under the procedures set forth
herein. Such a review is to be conducted at the requesting
party’s expense. |
| 9 |
Services by Third Parties |
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Except with respect to space made available to each of the
Services Recipients pursuant to Schedule A, each of the Services
Recipients may in its absolute discretion and without cause procure
any of the services or benefits specified in clause 3 from a
third party or may provide such services or benefits for itself.
The Services Provider shall discontinue providing such services or
benefits upon written notice by the discontinuing party, delivered
at least 90 days before the requested termination date. The
terminating Services Recipient shall pay to the Providing Parties
an amount equal to the costs incurred by the Providing Parties as a
result of such termination, including without limitation, any
severance or cancellation fees. |
| 10 |
Failure to Perform the Administrative
Services |
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In the event of any breach of this Agreement by the Services
Provider with respect to any error or defect in providing any
Administrative Service, the Services Provider shall, at the
Services Recipient’s request, witho |
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