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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2.
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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 reflec
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