Support Agreement - HFS Inc. and NRT Inc.
SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT made and entered into this 11th day of August,
1997 ("Effective Date") between HFS Incorporated, a Delaware corporation with
its principal place of business located at 6 Sylvan Way, Parsippany, NJ 07054,
("HFS"), and NRT Incorporated, a Delaware Corporation with its principal place
of business located at 6 Sylvan Way, Parsippany, NJ 07054 ("NRT").
W I T N E S S E T H:
WHEREAS, NRT deems it to be in the NRT's best interest to utilize certain
information services, as set forth herein to be provided by HFS, in order to
obtain the advantages of improved economy and efficiency, and to benefit from
the experience of HFS; and
WHEREAS, HFS is willing to provide such services on the terms and
conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
SUPPORT SERVICES
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Section 1.1 Services.
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(a) HFS shall furnish certain information services to NRT, which services
shall include, without limitation, the specific service component list in
Section 1.1(b) and such other services as the parties, from time to time, may
deem necessary, appropriate and in the best interests of NRT.
(b) The information services referred to in Section 1.1(a) shall consist
of the following which, together with any additional services not specifically
listed herein, shall be referred to individually and collectively as "Services"
for the purpose of this Agreement:
(i) Component 1 - Centralized Information Services. The Centralized
Information Services consist of the Information Administration Services; Group
Development Services; Database Operations Support Services, Customer Services
and Data Communications Support Services.
a. Information Administration Services. The Information
Administration Services are provided by HFS Personnel and consist largely of the
administrative functions performed by those personnel.
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b. Group Development Services. Group Development Services include all
application maintenance and support services.
c. Database Operations Support Services. These services include various
computer operations, scheduling services, print services, technical system
support services, etc.
d. Customer Services. Customer Services consist of the Help Desk,
Desktop Supervisors, etc.;
e. Data Communication Support Services. These services comprise of
e-mail, Local Area Network and related support services
(ii) Component 2 - Mainframe Computer Services. HFS currently obtains
all Online Processing and BATCH Processing from Advantis, Incorporated. HFS
shall provide these same services to NRT through HFS' arrangement with Advantis.
(iii) Component 3 - Data Communication Services. HFS currently obtains
its Data Communication Services from Advantis, Incorporated. HFS shall provide
these same services to NRT through HFS' arrangement with Advantis. With these
services, NRT shall be able to access the Mainframe computer through a Systems
Network Architecture Network.
ARTICLE 2
FEES AND EXPENSES
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Section 2.1 Information Services Fee.
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(a) In consideration for the Services to be performed or furnished for
NRT, NRT agrees to pay HFS the following amounts:
(i) NRT will reimburse HFS directly for all actual costs incurred for
communications costs incurred by HFS on behalf of NRT, including mainframe, data
and voice communications costs. HFS will provide NRT reasonable documentation
substantiating HFS' costs charged to NRT under this provision; and
(ii) NRT will pay to HFS additional monthly fees for the Services as
follows:
a. For the period of the Effective Date through December 31, 1997
the additional monthly fee shall be $77,500;
b. For the period of January 1, 1998 through December 31, 1998
the additional monthly fee shall be $41,667; and
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c. For the period of January 1, 1999 through December 31, 1999
the additional monthly fee shall be $12,500.
(b) Monthly fees will be paid on or before the tenth day following the
end of the month.
Section 2.2 Verifications.
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(a) Each of the parties shall maintain its own books, accounts and
records in such a way to disclose clearly and accurately the nature and detail
of the transactions between them, including such accounting information as is
necessary to support the reasonableness of charges made under this Agreement.
(b) NRT and its representatives shall be entitled, from time to time
during normal business hours, upon reasonable notice to HFS, to conduct an audit
of the books, records and accounts of HFS, or their respective affiliates in
connection with expenses for which the NRT is liable (whether directly of
through reimbursement obligations) under this Article 2, and may request copies
of such bills, invoices, statements for services, and the like as are reasonably
available to HFS.
(c) Each party shall remain the sole owner of its business and corporate
records, regardless of the use and possession of any such records by HFS or any
of their respective affiliates for the purpose of furnishing the Services.
ARTICLE 3
EXCULPATION AND INDEMNIFICATION
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Section 3.1 Exculpation and Indemnification.
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(a) HFS shall not be liable to NRT for any misconduct, negligence, error
or omission in connection with the Services, provided that HFS shall, in good
faith, perform and furnish such Services in substantially the same manner and
employing substantially the same supervision, guidelines, requirements and
standards utilized in connection with the performance and furnishing of similar
service for HFS except that HFS shall be liable for and indemnify NRT against
any loss, cost or expense arising from the fraud, theft, willful misconduct or
gross negligence of any employee of HFS or any of its respective affiliates.
(b) Each of the individual's executing this Agreement on behalf of both
parties represent and warrant that they have the actual authority to execute
this Agreement and bind their respective companies to the terms and conditions
of this Agreement.
(c) The provisions of this Section 3.1 shall survive the expiration or
termination of this Agreement.
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ARTICLE 4
TERM AND TERMINATION
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Section 4.1 Term. This Agreement shall become effective on the Effective
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Date and terminate on December 31, 1999. Notwithstanding the above, after June
30, 1998, NRT may terminate this agreement with ninety (90) days written notice
to HFS. Notwithstanding the above, either party, at any time, may, upon sixty
(60) days written notice to the other party, terminate this Agreement earlier if
the other party materially breaches the Agreement.
Section 4.2 Preservations of Rights. Termination or expiration of this
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Agreement shall not affect:
(i) the rights and liabilities hereunder of any party hereto
existing, or arising from facts or circumstances existing, on the date
of expiration or termination (including, without limitation, any rights
to receive payments for Services rendered and reimbursement of expenses
incurred);
(ii) any other agreement between HFS on the one hand, and NRT, on
the other hand; or
(iii) any section or provision hereof stated elsewhere herein that
survives expiration or termination hereof.
ARTICLE 5
MISCELLANEOUS
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Section 5.1 Governing Law. THIS AGREEMENT AND THE RIGHTS OF THE PARTIES
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HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW JERSEY.
Section 5.2 Amendments. No oral explanation or oral information by any
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party hereto shall alter the meaning or interpretation of this Agreement. No
amendment or change hereof or addition hereto shall be effective or binding on
any party hereto unless in writing and executed by each of the parties hereto.
Section 5.3 Force Majeure. The failure or delay of any of the parties
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hereto to perform any obligation under this Agreement solely by reason of acts
of God, acts or failures to act of or by any government, or government agencies,
riots, wars, strikes, civil insurrection, natural disasters, lockouts, accidents
or congestion in transportation or other causes beyond its control shall not be
deemed to be a breach of this Agreement; provided, however, that the party so
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prevented from complying herewith shall continue to take all actions within its
power to comply as fully possible herewith. Except where the nature of the event
shall prevent it from doing so, the party suffering such force majeure shall
notify
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the other party in writing within ten (10) days after the occurrence of such
force majeure and shall use its best efforts to remove or remedy such cause.
Section 5.4 Severability. In the event any term or provision in this
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Agreement shall for any reason be invalid, illegal or unenforceable in any
respect, the validity, legality, and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired.
Section 5.5 Assignability. Neither party hereto may transfer, assign or
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delegate any of its duties, obligations, rights or remedies under this Agreement
without the prior written consent of the other. Notwithstanding the above, to
the extent required, NRT does not object to the Assignment of this Agreement by
HFS to the new entity that will be created should HFS, Incorporated complete its
announced merger with CUC International, Incorporated.
Section 5.6 Notices. To be effective, unless otherwise specified in this
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Agreement, all notices, requests, demands, consents and other communications
under this Agreement must be in writing and shall be deemed given:
(a) Three (3) days after depositing the same in the United States mail,
postage prepaid, certified or registered, return receipt requested;
(b) Upon delivering the same in person and receiving a signed receipt
therefor;
(c) One day after sending the same by a recognized overnight delivery
service; or
(d) When sent by telecopy. All notices, requests, demands, consents and
other communications under this Agreement shall be addressed as follows, or at
such other address as any party hereto may hereafter specify in writing to the
other parties hereto.
If to HFS: HFS Incorporated
6 Sylvan Way
Parsippany, NJ 07054
Attention: James E. Buckman, Esq.
Telecopier: (973) 359-5331
If to NRT: NRT Incorporated
6 Sylvan Way
Parsippany, NJ 07054
Attention: CFO
Section 5.7 No Third Party Beneficiaries. Nothing in this Agreement,
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whether express or implied, shall be construed to give any person other than
HFS, and NRT and their respective permitted successors and assigns any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
commitments, covenants or other
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provisions contained herein, and the same shall be for the sole benefit of HFS,
CBC and NRT and their respective permitted successors and assigns, as the case
may be.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives, on the day and year first
written above.
HFS Incorporated
By: /s/ Samuel L. Katz
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Name: Samuel L. Katz
Title: Sr. V.P. Acquisition
NRT Incorporated
By: /s/ Joshua Harris
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Name: Joshua Harris
Title: Vice President