Exhibit 10.4
EXECUTION
COPY
MARKETING
AGREEMENT
BY AND BETWEEN
COLDWELL BANKER REAL
ESTATE CORPORATION,
CENTURY 21 REAL ESTATE CORPORATION,
ERA FRANCHISE SYSTEMS, INC., AND
SOTHEBY’S INTERNATIONAL AFFILIATES, INC.
AND
CENDANT MORTGAGE
CORPORATION
MARKETING
AGREEMENT
This
Marketing Agreement (“Agreement”) is entered into as of
the 31 st day of January,
2005 (“Effective Date”), between Cendant Mortgage
Corporation (to be renamed PHH Mortgage Corporation), a New Jersey
corporation (“PHH Mortgage”) having an office at 3000
Leadenhall Road, Mt. Laurel, New Jersey 08054 and Coldwell Banker
Real Estate Corporation (“Coldwell Banker”), Century 21
Real Estate LLC, ERA Franchise Systems, Inc. (“ERA”),
and Sotheby’s International Affiliates, Inc., each having
offices at 1 Campus Drive, Parsippany, New Jersey 07054 (each a
“Brand” and collectively, the “Brands”)
(collectively, the “Parties”).
WHEREAS,
PHH Mortgage is engaged in providing mortgage services that include
counseling, efficient processing, origination, and servicing of
mortgage loans on homes located in the United States; and
WHEREAS,
the Brands operate as real estate franchisors that license their
respective marks, tools, and systems to independently owned and
operated real estate brokerages who in turn provide home purchase
and sales services to their customers; and
WHEREAS,
PHH Mortgage and Coldwell Banker, ERA and TM Acquisition Corp.
executed a trademark license agreement of even date herewith
pursuant to which PHH Mortgage licensed Coldwell Bank
Mortgage®, Century 21 Mortgage® and ERA Mortgage® names
and marks; and
WHEREAS,
PHH Mortgage and the Brands wish to develop a marketing program
(“Program”) the purpose of which will be to market PHH
Mortgage’s mortgage services to the Brands’ franchisees
(the “Franchisees”) offices;
NOW,
THEREFORE, in consideration of the mutual promises contained
herein, the Parties hereby agree as follows:
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(a) |
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The Brands shall recommend PHH
Mortgage as their preferred providers of mortgage programs and
products to their Franchisees. The Program shall also include mail
inserts, brochures and advertisements on a quarterly basis to the
Franchisees. In addition, the Brands shall provide access to PHH
Mortgage in the Brands’ company newsletters and to all of the
Franchisees, if appropriate, during periodic sales meetings. The
Brands shall also actively promote the PHH Mortgage products and
services to the Franchisees, and such Franchisees’ sales
agents (as applicable), including without limitation, providing
annual letters or e-mails (the contents of such promotional
literature could be determined within the reasonable discretion of
the Brands) to both the Franchisees and the Franchisees’
sales agents, as appropriate, from the respective Brands’
presidents or chief operating officers promoting the salability of
the PHH Mortgage products and services. Additionally, the Brands
shall provide PHH Mortgage (at no additional charge) at each of the
Brand’s and Cendant’s residential real estate trade
shows (as applicable) and at each of the Brand’s and
Cendant’s international business conferences relating to real
estate where there is a trade show: (i) two
(2) complimentary standard size booths at a mutually agreeable
location prominent to visitors to such trade shows or international
business conference; and (ii) an opportunity for a PHH
Mortgage representative to host its own break-out session (if any
are held) during such conferences on a day on which a majority of
such break-out sessions are being held and at a location where a
majority of break-out sessions are being held, and at a location
reasonably designed to obtain participation.
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The Brands shall provide to PHH
Mortgage (at no charge to PHH Mortgage) a meaningful opportunity
for a senior member of PHH Mortgage’s management to speak for
a period of time, mutually agreed upon by the parties, at each
Brand’s annual franchise conventions subject to respective
Brand approval of individual and script, which approval shall not
be unreasonably withheld. PHH Mortgage shall abide by all
reasonable rules established by the Brands or the convention center
for each such convention.
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The Brands shall provide to PHH
Mortgage (at no charge) a “premier” (or highest level
that may exist) sponsorship at all brand national conventions,
regional or local conferences under the control of the
Brands.
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The Brands shall include on-line
promotion on each of the Brand sites of the PHH Mortgage
opportunity, as well as a hyperlink to the PHH Mortgage site. PHH
Mortgage agrees not to over-ride any browser or back functionality
for those users who arrive at the PHH Mortgage site from such link
and shall provide a link back to such Brand site on each of the PHH
Mortgage web pages.
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The Brands shall also provide PHH
Mortgage certain marketing opportunities as set forth on Exhibits
A-D.
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(b) |
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Although each Brand shall market PHH
Mortgage to its Franchisees as required by the Program, the Brands
shall not be required to, and they shall not as part of the
Program, provide advice, counseling or assistance to consumers in
connection with any particular mortgage loan for which the
consumers have applied or may apply to PHH Mortgage.
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(c) |
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The Brands shall encourage their
Franchisees to embrace PHH Mortgage as each Franchisee’s
provider of mortgage products and services and, when and
where
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appropriate, to inform the
Franchisees’ agents of the mortgage loan products and
services offered by PHH Mortgage.
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(d) |
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The Brands shall provide monthly
reports to PHH Mortgage reflecting monthly Franchisee mortgage
activity.
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(e) |
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The Brands shall offer to PHH
Mortgage those additional programs, and shall employ those
strategies with respect thereto, as are listed on
Exhibit E.
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Compensation . Beginning on
March 1, 2005, PHH Mortgage shall pay a fee to the Brands
(“Monthly Marketing Fee”) for the access and marketing
provided under the Program every month during the term of this
Agreement (“Monthly Term”). The amount of the Monthly
Marketing Fee is set forth in Exhibit 2 hereto as amended from
time to time in accordance with this Section 2. The Monthly
Marketing Fee shall be paid in arrears, on the first day of the
month next succeeding the end of the Monthly Term in respect of
which such fee is paid, with the exception of the first payment
which shall be made with the second payment when the second payment
is due on April 1, 2005. The Parties each acknowledge and
agree that the Monthly Marketing Fee reflects
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