Company Documents Executive agrees and acknowledges that Executive holds as the Company’s property all memoranda, books, papers, letters, and other data, including duplicates, relating to the Company’s business and affairs (“Company Documents”). This includes Company Documents created or used by Executive or otherwise coming into Executive’s possession in connection with the performance of Executive’s job duties. All Company Documents in the possession, custody, or control of Executive shall be returned to the Company at the time of termination of employment.
Returning Company Documents I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items developed by me pursuant to my employment with the Company or otherwise belonging to the Company, its successors or assigns. In the event of the termination of my employment, I agree to sign and deliver the “Termination Certification” attached hereto as Exhibit C.
Return of Company Documents When I leave the employ of the Company, I will deliver to the Company any and all drawings, notes, memoranda, specifications, devices, formulas, and documents, together with all copies thereof, and any other material containing or disclosing any Company Inventions, Third Party Information or Proprietary Information of the Company. I further agree that any property situated on the Company's premises and owned by the Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company personnel at any time with or without notice. Prior to leaving, I will cooperate with the Company in completing and signing the Company's termination statement.
Closing Obligations At Closing, the following events shall occur, each being a condition precedent to the others and each being deemed to have occurred simultaneously with the others:
(a) Seller shall execute, acknowledge and deliver to Buyer
(i) an Assignment, Bxxx of Sale and Conveyance of the Assets, effective as of the Effective Time to Buyer (in sufficient counterparts to facilitate filing and recording) substantially in the form of Exhibit C conveying the Assets; and
(ii) such other assignments, bills of sale, or deeds necessary to transfer the Assets to Buyer, including without limitation any conveyances on official forms and related documentation necessary to transfer the Assets to Buyer in accordance with requirements of governmental regulations (collectively, the “Conveyances”);
(b) Buyer shall deliver to Seller the cash portion of the Purchase Price in immediately available funds, less the amount of the Deposit and any additional deposit paid to Seller pursuant to Section 10.1, and the Purchase Price Units;
(c) Seller shall deliver to Buyer possession of the Assets;
(d) Seller and Buyer shall execute and deliver letters in lieu directing all purchasers of production to pay Buyer the proceeds attributable to production from the Assets from and after the Effective Time;
(e) Buyer shall deliver to Seller evidence of appropriate federal, state and local bonds relating to ownership of the Assets after the Closing and certificates of insurance evidencing that Buyer has obtained appropriate insurance covering the Assets;
(f) Seller shall deliver to Buyer certificates substantiating non-foreign status in accordance with Treasury Regulations under Section 1445 of the Code, in the form of Exhibit D (“FIRPTA Certificate”);
(g) Buyer shall prepare and Seller shall execute and deliver to Buyer all forms necessary for Buyer to assume operations on the Assets as agreed to by the Parties; and
(h) Seller shall deliver to Buyer the certificates for all of the GMO Stock and all of the MV Stock properly executed for assignment to Buyer.
Seller’s Closing Obligations On the Closing Date, Seller, at its sole cost and expense, will deliver to Purchaser the following items:
(a) A special warranty deed (the “Deed”), duly executed and acknowledged by Seller, conveying to Purchaser the Real Property and the Improvements, subject only to the Permitted Exceptions;
(b) A xxxx of sale in the form attached hereto as Exhibit C (the “Xxxx of Sale”), duly executed by Seller, assigning and conveying to Purchaser, without representation or warranty, title to the Personal Property;
(c) A counterpart original of an assignment and assumption of Seller’s interest, as lessor, in the Leases and Security Deposits in the form attached hereto as Exhibit B (the “Assignment of Leases”), duly executed by Seller, conveying and assigning to Purchaser all of Seller’s right, title and interest, as lessor, in the Leases and Security Deposits;
(d) A counterpart original of an assignment and assumption of Seller’s interest in the Service Contracts (other than any Service Contracts as to which Purchaser has notified Seller prior to the expiration of the Evaluation Period that Purchaser elects not to assume at Closing) and the Licenses and Permits in the form attached hereto as Exhibit A (the “Assignment”), duly executed by Seller, conveying and assigning to Purchaser all of Seller’s right, title, and interest, if any, in such Service Contracts and the Licenses and Permits;
(e) The Tenant Notice Letters, duly executed by Seller, with respect to the Tenants;
(f) Evidence reasonably satisfactory to Purchaser and the Title Company that the person executing the documents delivered by Seller pursuant to this Section 10.3 on behalf of Seller has full right, power, and authority to do so;
(g) A certificate in the form attached hereto as Exhibit I (“Certificate as to Foreign Status”) certifying that Seller is not a “foreign person” as defined in Section 1445 of the Internal Revenue Code of 1986, as amended;
(h) All original Leases, to the extent in Seller’s possession, the original Major Tenant Estoppels and any other estoppels as described in Section 7.2, SNDAs as described in Section 7.3 and all original Licenses and Permits and Service Contracts in Seller’s possession bearing on the Property;
(i) A certificate, dated as of the Closing Date, stating that the representations and warranties of Seller contained in Section 8.1 are true and correct in all material respects as of the Closing Date (with appropriate modifications to reflect any changes therein that are not prohibited by this Agreement, including but not limited to updates to the Lease Schedule, Schedule of Service Contracts and Arrearage Schedule as set forth in Section 9.1(b));
(j) An Affidavit of Title in form and substance reasonably satisfactory to the Title Company; and
(k) A counterpart original of an operating agreement in the form of Exhibit L attached to this Agreement, duly executed by Seller or an affiliate of Seller (the “Operating Agreement”).
Intercompany Arrangements (a) Except as set forth in Section 5.5(a) of the Seller Disclosure Schedules and except for this Agreement and the Ancillary Agreements, and the agreements specifically referred to therein as remaining outstanding after the Closing, all intercompany and intracompany accounts, indebtedness, transactions or Contracts between the Companies and their respective Subsidiaries, on the one hand, and the Seller and its Affiliates (other than the Companies and their respective Subsidiaries or with respect to the TS Business), on the other hand, shall be cancelled, settled, offset, capitalized or otherwise eliminated prior to the determination of Indebtedness for purposes of calculating the Cash Purchase Price, without any consideration or further liability to any party and without the need for any further documentation, prior to the Closing.
(b) The Parties recognize and acknowledge that the Enterprise-Wide Contracts set forth in Section 5.5(b) of the Seller Disclosure Schedules relate to both the TS Business and the Retained Business. All Enterprise-Wide Contracts shall be retained by the Seller. Following the date hereof, to the extent requested by the Buyer, the Seller and the Buyer shall use reasonable best efforts to negotiate a new Contract for the benefit of the Buyer and its Affiliates (including the Companies and their Subsidiaries) with respect to the matters covered by such Enterprise-Wide Contracts. The terms and conditions of any Contract or arrangement applicable to the TS Business entered into pursuant to this Section 5.5(b) shall be reasonably acceptable to the Buyer. For the avoidance of doubt, the Seller shall be under no obligation to obtain alternative Contracts with an equivalent level of pricing or other terms as provided in the Enterprise-Wide Contract sought to be obtained for the benefit of the Buyer. In the event that the Parties are not able to obtain any such new Contract, then the Parties shall use reasonable best efforts to cause the Transition Services Agreement to include, as a Service (as defined in the Transition Services Agreement), for such time as is reasonably necessary for the TS Business to obtain a new Contract covering such products and services, which period shall be set forth in the Transition Services Agreement, either (x) the products and services provided under such Contract or (y) reasonable alternative arrangements which permit the Buyer to continue operating the TS Business in substantially the same manner as currently conducted. The Buyer shall bear all costs and expenses incurred with Persons (other than the Seller or any of its Affiliates) that are parties to Enterprise-Wide Contracts with respect to any such efforts described in this Section 5.5(b).
(c) From and after the Closing, if either Party receives any (a) funds or any other assets intended for or otherwise the property of the other Party pursuant to the terms of this Agreement or any of the Ancillary Agreements, the receiving Party shall promptly (i) notify and (ii) forward such funds or other assets to, the other Party (and, for the avoidance of doubt, the Parties acknowledge and agree that there is no right of offset with respect to such funds or other assets, whether in connection with a dispute under this Agreement or any of the Ancillary Agreements or otherwise) or (b) mail, courier package, facsimile transmission, purchase order, invoice, service request or other document intended for or otherwise the property of the other Party pursuant to the terms of this Agreement or any of the Ancillary Agreements, the receiving Party shall promptly (i) notify and (ii) forward such mail, packages, transmission, order, invoice, request or other document to, the other Party.
Intercompany Indebtedness The Company shall not create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness arising from loans from any Subsidiary to the Company unless (a) such Indebtedness is unsecured and (b) such Indebtedness shall be expressly subordinate to the payment in full in cash of the Obligations on terms satisfactory to the Administrative Agent.
Post-Closing Obligations (a) Within 90 days after the Closing Date (as such period may be extended from time to time by the Administrative Agent upon request of the Borrower, such extension not to be unreasonably withheld or delayed), deliver to the Administrative Agent (and, in the case of clause (ii), the title insurance company referred to in clause (iii) below (the “Title Insurance Company”)) with respect to each Mortgaged Property listed on Schedule 1.1B each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) a fully executed counterpart of a Mortgage, which Mortgage shall cover such Mortgaged Property, together with evidence that counterparts of such Mortgage has been delivered to the title insurance company insuring the Lien of such Mortgage for recording in all places where such Mortgage is recorded, which Mortgage shall effectively create in favor of the Administrative Agent for the benefit of the Secured Parties, a first-priority mortgage Lien on such Mortgaged Property, subject only to Liens that are permitted under Section 7.3 of this Agreement, and which Mortgage shall secure an amount limited to the Fair Market Value of such Mortgaged Property, if the recordation of such Mortgage would otherwise require payment of a Mortgage Tax;
(ii) (A) maps or plats of an as-built survey of the sites of the Mortgaged Properties certified to the Administrative Agent and the Title Insurance Company in a manner satisfactory to them, dated a date satisfactory to the Administrative Agent and the Title Insurance Company by an independent professional licensed land surveyor satisfactory to the Administrative Agent and the Title Insurance Company, or (B) such surveys as are in the possession of the Borrower or any Loan Party and such other documents as the Administrative Agent may reasonably request with respect to any such Mortgaged Property, as may be reasonably necessary to cause the title insurance company to issue the title insurance required pursuant to clause (iii) below, but in any event including a survey endorsement, comprehensive endorsement, location endorsement, address endorsement, contiguity endorsement and Easement – Damage from Forced Removal endorsement;
(iii) with respect to each Mortgage intended to encumber such Mortgaged Property, a policy or policies of title insurance insuring the Lien of the Mortgage on such Mortgaged Property, in an amount equal to the aggregate of the Loan Party’s interest in the land value and insurable building, improvements and site improvements value of such Mortgaged Property (or such other amount as may reasonably be requested by Administrative Agent) (the “Mortgage Policies”), issued by a nationally recognized title insurance company insuring the Lien of such Mortgage as a valid Lien on the Mortgaged Property described therein, free of any other Liens that are permitted under Section 7.3 of this Agreement, containing no general survey exception and issued together with such endorsements as the Administrative Agent may reasonably request;
(iv) opinions, addressed to the Administrative Agent and the Lenders, of (1) outside counsel or in-house counsel, as to the due authorization, execution and delivery of the Mortgages by the applicable Loan Party, and (2) local counsel in each jurisdiction where such Mortgaged Property is located as to enforceability of the Mortgages, each in form and substance reasonably satisfactory to the Administrative Agent;
(v) if necessary or required, proper fixture filings under the Uniform Commercial Code on Form UCC-1 for filing under the Uniform Commercial Code in the appropriate jurisdiction in which such Mortgaged Property is located, desirable to perfect the security interests in fixtures purported to be created by the Mortgages in favor of the Administrative Agent;
(vi) such affidavits, certificates, instruments of indemnification and other items (including a so-called “gap” indemnification) as shall be reasonably required to induce the title insurance company to issue the Mortgage Policies and endorsements contemplated above;
(vii) evidence reasonably acceptable to the Administrative Agent of payment by the Borrower of all Mortgage Policy premiums, search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages, fixture filings and issuance of the Mortgage Policies referred to above; and
(viii) all recorded documents referred to, or listed as exceptions to title in, the title policy or policies referred to in clause (iv) above and a copy of all other material documents affecting the Mortgaged Properties.
(b) Within 60 days after the Closing Date (as such period may be extended from time to time by the Administrative Agent upon request of the Borrower, such extension not to be unreasonably withheld or delayed), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, duly executed account control agreements in order to perfect the Administrative Agent’s security interest under the UCC in Collateral for which a control agreement is required for perfection (excluding, for the avoidance of doubt, accounts that are not required to be pledged under the Loan Documents).
Intercompany Debt It is understood that Debt shall not include any redeemable equity interest in the Company.
Intercompany Agreements (a) Except as set forth in Section 6.07(b), in furtherance of the releases and other provisions of Section 8.01, Newmark and each member of the Newmark Group, on the one hand, and BGC Partners and each member of the BGC Partners Group, on the other hand, hereby terminate any and all Contracts, arrangements, commitments or understandings, whether or not in writing, between or among Newmark and/or any member of the Newmark Group, on the one hand, and BGC Partners and/or any member of the BGC Partners Group, on the other hand, effective as of immediately prior to the Distribution Effective Time. No such terminated Contract, arrangement, commitment or understanding (including any provision thereof which purports to survive termination) shall be of any further force or effect after the Distribution Effective Time. Each Party shall, at the reasonable request of the other Party, take, or cause to be taken, such other actions as may be necessary to effect the foregoing.
(b) The provisions of Section 6.07(a) shall not apply to any of the following Contracts, arrangements, commitments or understandings (or to any of the provisions thereof): (i) this Agreement and the Ancillary Agreements (and each other agreement or instrument expressly contemplated by this Agreement or any Ancillary Agreement to be entered into by any of the Parties or any of the members of their respective Groups or to be continued from and after the Distribution Effective Time); (ii) any Contracts, arrangements, commitments or understandings listed or described on Schedule 6.07(b)(ii); and (iii) any Contracts, arrangements, commitments or understandings to which any Person other than a member of the BGC Partners Group or the Newmark Group is a party thereto.
(c) All of the intercompany accounts payable or accounts receivable between any member of the BGC Partners Group, on the one hand, and any member of the Newmark Group, on the other hand, accrued as of the IPO Closing Date that are reflected in the books and records of the Parties or otherwise documented in writing in accordance with past practices shall, as promptly as practicable after the IPO Closing Date (and in any event within ninety (90) days thereafter), be net settled in cash by means of cash payments, a dividend, capital contribution, a combination of the foregoing, or otherwise as determined by BGC Partners in its sole and absolute discretion.
