Acquisition Services Agreement - NRT Inc. and Cendant Corp.
ACQUISITION SERVICES AGREEMENT
------------------------------
ACQUISITION SERVICES AGREEMENT (this "Agreement"), dated as of
---------
February 9, 1999, by and among NRT Incorporated, a Delaware corporation (the
"Company"), and Cendant Corporation, a Delaware corporation ("Cendant").
-------- -------
WHEREAS, concurrent with the execution hereof, Cendant and the Company
are entering into an Acquisition Cooperation Agreement (the "Acquisition
-----------
Cooperation Agreement") relating to, among other things, Cendant's participation
---------------------
in real estate brokerage acquisitions completed by the Company after the date
hereof;
WHEREAS, the Company and Cendant desire that the Company provide
Cendant with certain Advisory Services (as defined below) in connection with
brokerage acquisitions by the Company pursuant to the Acquisition Cooperation
Agreement; and
WHEREAS, on the date hereof, Cendant has paid the Company $30 million
in cash, the receipt of which is hereby acknowledged, as an advance payment in
respect of the Advisory Services to be provided hereunder.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements and covenants contained herein, the sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
Section 1. Provision of Advisory Services. Beginning on the date
------------------------------
hereof and continuing until the earlier of (i) the date on which Cendant's
commitment under Section 2.1(c) of the Acquisition Cooperation Agreement has
been exhausted or (ii) such earlier date as the Company and Cendant may mutually
agree to terminate this Agreement (the "Termination Date"), the Company shall
----------------
provide advisory services to Cendant relating to the identification of
acquisition candidates, the negotiation of agreements and other services in
connection with brokerage acquisitions by the Company occurring after the date
hereof pursuant to the Acquisition Cooperation Agreement (such services being
referred to herein as the "Advisory Services"), the extent of such services to
-----------------
be mutually agreed upon by the Company and Cendant.
Section 2. Compensation. Cendant has paid the Company $30 million
------------
on the date hereof, the receipt of which is hereby acknowledged by the Company,
as an advance payment for the Advisory Services to be provided hereunder (the
"Advance"). The fees to be charged for the Advisory Services to be provided
hereunder, which shall be charged against such Advance as such services are
provided, are set forth on Schedule I to this Agreement. In the event that this
Agreement has terminated in accordance with its terms, any remaining portion of
the Advance which has not been earned by the Company for the provision of
Advisory Services hereunder shall be refunded to Cendant promptly following such
<PAGE>
termination. Cendant shall use its reasonable best efforts to utilize the
services to be provided by the Company hereunder, and shall utilize such
services in connection with each brokerage acquisition presented to Cendant for
its participation pursuant to the Acquisition Cooperation Agreement; provided
--------
that Cendant may determine not to utilize such services if it agrees nonetheless
to permit an offset against the Advance of the minimum amount that would have
been payable under this Agreement had such services been provided. In no event
shall Cendant be obligated to pay additional amounts to the Company in respect
of the Advisory Services to be provided pursuant to this Agreement.
Section 3. Non-Liability of the Company. The Company shall only be
----------------------------
responsible for providing the Advisory Services in accordance with this
Agreement shall have no implied covenants or obligations to perform any other
duties or provide any other services under this Agreement. The Company shall
not be responsible for any losses, liabilities, damages, claims or expenses
(collectively, the "Losses") incurred by Cendant arising from any acts or
------
omissions by the Company in connection with the performance of its duties under
this Agreement other than Losses resulting or arising from its gross negligence
or willful misconduct.
Section 4. Notice. Any notice or other communication required or
------
permitted to be given under this Agreement shall be given in the manner set
forth in Section 3.1 of the Acquisition Cooperation Agreement.
Section 5. Binding Nature of Agreement; No Third Party Beneficiaries.
---------------------------------------------------------
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto or their successors in interest. Nothing in
this Agreement shall convey any rights upon any person or entity which is not a
party or an assignee of a party to this Agreement.
Section 6. Descriptive Headings. The descriptive headings of the
--------------------
several sections and paragraphs of this Agreement are inserted for reference
only and shall not limit or otherwise affect the meaning hereof.
Section 7. Specific Performance. Without limiting the rights of each
--------------------
party hereto to pursue all other legal and equitable rights available to such
party for the other parties' failure to perform their obligations under this
Agreement, the parties hereto acknowledge and agree that the remedy at law for
any failure to perform their obligations hereunder would be inadequate and that
each of them, respectively, shall be entitled to specific performance,
injunctive relief or other equitable remedies in the event of any such failure.
Section 8. Governing Law. This Agreement shall be construed and
-------------
enforced in accordance with, and the rights of the parties shall be governed by,
the laws of the State of New York, without regard to the principles of conflicts
of law. Each party irrevocably consents to the service of any and all process
in any action or proceeding arising out of or relating to this Agreement by the
mailing of copies of such process to each party at its address specified herein.
2
<PAGE>
The parties hereto irrevocably submit to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York (or, if
subject matter jurisdiction in that court is not available, in any state court
located within the City of New York) over any dispute arising out of or relating
to this Agreement or any agreement or instrument contemplated hereby or entered
into in connection herewith or any of the transactions contemplated hereby or
thereby. Each party hereby irrevocably agrees that all claims in respect of
such dispute or proceeding may be heard and determined in such courts. The
parties hereby irrevocably waive, to the fullest extent permitted by applicable
law, any objection which they may now or hereafter have to the laying of venue
of any such dispute brought in such court or any defense of inconvenient forum
in connection therewith.
Section 9. Counterparts. This Agreement may be executed
------------
simultaneously in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
Section 10. Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unen forceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
Section 11. Entire Agreement. This Agreement is intended by the
----------------
parties hereto as a final and complete expression of their agreement and
understanding in respect to the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings, written or oral, between the
parties with respect to such subject matter.
Section 12. Amendment and Waiver. Any provision of this Agreement
--------------------
may be amended if, but only if, such amendment is in writing and is signed by
each of the parties hereto.
3
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Agreement to
be duly executed and delivered as of the date first above written.
NRT INCORPORATED
By: /s/ Steven L. Barnett
-------------------------------------
Name: Steven L. Barnett
Title: Senior Vice President,
General Counsel and Secretary
CENDANT CORPORATION
By: /s/ Samuel L. Katz
-------------------------------------
Name: Samuel L. Katz
Title: Executive Vice President
4
<PAGE>
SCHEDULE I
----------
ADVISORY SERVICE FEES
The fees to be charged against the Advance pursuant to this Agreement will be
earned by the Company on a transaction by transaction basis and be based on the
following table:
Transaction Size Fees Per Transaction
---------------- --------------------
Annual gross commission income of 3% of Total Acquisition Cost (as
the acquired brokerage is less than defined in the Acquisition
$10 million Cooperation Agreement) plus $2,000
per office
Annual gross commission income of the 2% of Total Acquisition Cost plus
acquired brokerage is less than $100 $2,000 per office
million but greater than or equal to
$10 million
Annual gross commission income of the 1.5% of Total Acquisition Cost
acquired brokerage is greater than or plus $2,000 per office
equal to $100 million
5