EXHIBIT 10.5
ACQUISITION COOPERATION AGREEMENT
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ACQUISITION COOPERATION AGREEMENT (this "Agreement"), dated as of
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February 9, 1999, by and between NRT Incorporated, a Delaware corporation (the
"Company"), Cendant Corporation, a Delaware corporation ("Cendant"), Apollo
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Investment Fund III, L.P., Apollo Overseas Partners III, L.P. and Apollo (UK)
Partners III, L.P. and, for purposes of Section 3.9 only, Apollo Management,
L.P. ("Apollo").
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WHEREAS, pursuant to Section 5.8 of the Stockholders Agreement, dated
as of August 11, 1997 (the "1997 Agreement"), by and among the Company, Apollo
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and each of the stockholders listed therein, Cendant has acquired the trade
names, trademarked operating names and mortgage operations of real estate
brokerages acquired by the Company (subject to Cendant's approval of each such
brokerage acquisition) on the terms and subject to the conditions set forth
therein; and
WHEREAS, Cendant and the Company desire for Cendant to continue to
acquire the trade names, trademarked operating names and mortgage operations (if
any) of brokerages acquired by the Company following the date hereof on the
terms and subject to the conditions set forth herein.
WHEREAS, Cendant, for itself and its Affiliates (as defined herein),
wishes to assure that the Company will not sell or transfer such trade names,
trademarked operating names and mortgage operations to another person or entity,
and the Company is willing to provide such assurance on the terms and subject to
the conditions set forth herein.
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 hereto agree as follows, hereby deleting and
superceding the provisions of Sections 5.8 and 5.10 of the 1997 Agreement (and
all related references thereto) in their entirety:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Unless otherwise defined herein, the
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following terms used in this Agreement shall have the meanings specified below:
"1997 Agreement Amount" shall mean $470,398,000; provided that if
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after the date hereof, the parties have consummated a Brokerage Acquisition and
in connection therewith determined to calculate Total Cendant Acquisition Cost
pursuant to clause (II) of the definition of Total Cendant Acquisition Cost in
lieu of clause (I), 1997 Agreement Amount shall be increased by the Total
Cendant Acquisition Cost for such Brokerage Acquisition, so long as Total
Cendant Acquisition Cost for such Brokerage Acquisition would otherwise have
been calculated pursuant to clause (I) of the definition of Total Cendant
Acquisition Cost.
"Acquired Brokerage EBITDA" shall mean, for an Acquired Brokerage (as
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defined in Section 2.1) during any period, such Acquired Brokerage's
consolidated earnings from continuing operations (excluding (i) the effects of
purchase accounting, (ii)
compensation, perquisites and benefits determined by management of the Company
to be in excess of those that would have been paid under the Company's policies
for similarly situated employees, if any, and in respect of principal corporate
executive officers of the Acquired Brokerage who will not be continuing
employees of the Company (other than on a transitional basis for not more than
one year), (iii) other payments or expenses in respect of owners and employees
not in the ordinary course of business, (iv) extraordinary gains and losses, (v)
Conversion Costs and (vi) as mutually agreed to by Cendant, the Company and
Sponsors (until such time as Sponsors own less than 10% of the outstanding
common stock of the Company), other one-time or non-recurring items of income or
expense, plus (A) interest expense, (B) provision for income taxes and (C)
depreciation and amortization expenses.
"Acquired Brokerage EBITDA Acquisition Multiple" means, with respect
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to any Brokerage Acquisition, Total Company Acquisition Cost for such Brokerage
Acquisition divided by Acquired Brokerage Pro Forma LTM EBITDA.
"Acquired Brokerage EBITDAR" means, for any Acquired Brokerage during
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any period, Acquired Brokerage EBITDA plus such Acquired Brokerage's
consolidated royalties, franchise fees and marketing fund contributions payable
to entities other than the Company's Franchisors that are deducted in
calculating earnings for purposes of determining Acquired Brokerage EBITDA.
"Acquired Brokerage Margin" means, with respect to any Brokerage
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Acquisition, Acquired Brokerage Pro Forma LTM EBITDAR divided by the LTM gross
revenues of the Acquired Brokerage.
"Acquired Brokerage Pro Forma LTM EBITDA" means, with respect to an
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Acquired Brokerage, Acquired Brokerage EBITDA for the LTM immediately prior to
such Brokerage Acquisition (including appropriate cost allocations to reflect
operation on a standalone basis if the acquired business was part of a group of
companies with shared expenses and excluding anticipated synergies).
"Acquired Brokerage Pro Forma LTM EBITDAR" means, with respect to an
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Acquired Brokerage, Acquired Brokerage EBITDAR for the LTM immediately prior to
such Brokerage Acquisition (including appropriate cost allocations to reflect
operation on a standalone basis if the acquired business was part of a group of
companies with shared expenses) but excluding anticipated synergies.
"Acquired Brokerage Pro Forma LTM Cendant Royalty Fees" means, with
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respect to an Acquired Brokerage, (A) the pro forma royalty fees that would have
been payable to the Company's Franchisors for the LTM if the Brokerage
Acquisition had occurred at the beginning of such period minus (B) any net
royalty fees that were payable to the Company's Franchisors for the LTM prior to
the Brokerage Acquisition (in the case
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of (A) or (B) above, net of any amounts which would have been required to be
contributed by Century 21 Real Estate Corporation to its national advertising
fund for the LTM prior to the Brokerage Acquisition as a result of such
Brokerage Acquisition).
"Acquired Brokerage Pro Forma LTM Mortgage EBITDA" means, in the case
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of a Brokerage Acquisition in which Cendant acquires the Acquired Brokerage's
mortgage operations pursuant to Section 2.1 hereof, that portion of Acquired
Brokerage Pro Forma LTM EBITDA that is attributable to the mortgage operations
of the Acquired Brokerage, minus interest expense of such mortgage operations
related to indebtedness the proceeds of which are used to fund mortgages, to the
extent not otherwise deducted in calculating Acquired Brokerage EBITDA.
"Acquisition Multiple" means, with respect to any Brokerage
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Acquisition, Total Acquisition Cost for such Brokerage Acquisition divided by
Acquired Brokerage Pro Forma LTM EBITDAR.
"Adjustment Amount" shall mean, with respect to any Brokerage Acquisi-
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tion, the amount obtained by multiplying $58.37 by the number of real estate
brokerage transaction sides closed by the Acquired Brokerage during the LTM
immediately prior to the Brokerage Acquisition.
"Affiliate" shall mean, with respect to any Person, any of (a) a
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director or executive officer of such Person and (b) any other Person that,
directly or indirectly, controls, or is controlled by or is under common control
with such Person. For the purpose of this definition, "control" (including the
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terms "controlling", "controlled by" and "under common control with"), as used
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with respect to any Person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities or by contract
or agency or otherwise; it being understood that Cendant and Sponsors and their
Affiliates shall be deemed to be Affiliates of the Company.
"Board" shall mean the Board of Directors of the Company.
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"Brokerage Acquisition" shall have the meaning set forth in Section
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2.1(a) hereof.
"Cash Secured Loans" shall mean any loan incurred in connection with
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title insurance and escrow operations to the extent that the principal and
interest thereon is secured by an amount of cash or U.S. governmental securities
to ensure the full payment of principal and interest thereon after giving effect
to the interest income earned thereon.
"Cendant" shall mean Cendant Corporation, a Delaware corporation.
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"Company's Franchisors" means, any franchisor of real estate
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brokerages of which the Company or any of its subsidiaries is a franchisee. At
the date of this Agreement, the Company's Franchisors are Coldwell Banker Real
Estate Corporation, Century 21 Real Estate Corporation, and ERA Franchise
Systems, Inc.
"Conversion Costs" shall mean all reasonable costs incurred by the
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Company which are reasonably necessary to convert an Acquired Brokerage to a
franchisee of one of the Company's Franchisors, including, without limitation,
(i) the reasonable costs of purchasing yard signs, billboards and other signs,
(ii) the reasonable costs of promoting public awareness of the change in a brand
name, (iii) the reasonable costs of replacing supplies, stationery, business
cards and other similar items required to bring the Acquired Brokerage and its
operations into compliance with the requirements of the applicable Master
Franchise Agreement, (iv) the reasonable costs relating to the employment of
temporary employees and contractors to assist in the conversion, (v) initial
branch office fees payable under the Master Franchise Agreement with respect to
the Acquired Brokerage and (vi) reasonable compensation and bonuses and
reasonable amounts related to entertainment, travel and meals, in each case paid
or provided to employees or sales agents of the Acquired Brokerage to induce
them to remain with the Acquired Brokerage after the Brokerage Acquisition
(provided that in the case of compensation and bonuses, Conversion Costs shall
only include such amounts spent in respect of retaining such individuals for no
more than one year, even if such persons are actually retained for greater than
one year); provided that if the Company would have incurred any of such costs,
or similar costs, in the absence of such Brokerage Acquisition, then Conversion
Costs shall only include the portion of (i) through (vi) above which is
attributable to the Brokerage Acquisition; provided, however, that (i)
Conversion Costs shall exclude all costs and expenses incurred for the purpose
of creating synergies or cost savings, including, without limitation, in
connection with the termination or closing of offices, and (ii) costs must be
spent or committed by the Company within 60 days of the Brokerage Acquisition to
be includable in the definition of Conversion Costs. With respect to any
Brokerage Acquisition, at or prior to the time that the Company requests
Cendant's participation in a Brokerage Acquisition pursuant to Section 2.1
hereof, the Company shall provide to Cendant a good faith written estimate of
the Conversion Costs associated with such Brokerage Acquisition (the "Estimated
Conversion Costs"). To the extent the actual Conversion Costs incurred by the
Company exceed the Estimated Conversion Costs, "Conversion Costs" shall exclude
any amount in excess of 110% of the Estimated Conversion Costs.
"Convertible Preferred Stock" shall mean the 5.00% Series B Cumulative
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Convertible Preferred Stock of the Company.
"Independent Directors" shall mean those directors of the Board of
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Directors of the Company who are not employed by, or an affiliate or associate
of,
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Cendant, Apollo or the Company (other than solely in their capacities as
directors of the Company).
"Junior Preferred Stock" shall mean the 18.00% Series C Cumulative
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Junior Redeemable Preferred Stock of the Company.
"LTM" shall mean, for any Person, as of any determination date, the
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twelve consecutive fiscal months ending on the most recently completed full
month for which financial statements prepared in accordance with generally
accepted accounting principles consistently applied are available.
"Master Franchise Agreements" shall mean the Master Real Estate
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Franchise Agreements between the Company and each of Coldwell Banker Real Estate
Corporation, ERA Franchise Systems, Inc. and Century 21 Real Estate Corporation,
as the same shall be amended or supplemented after the date hereof.
"Marketing Agreement" shall mean the Marketing Agreement, dated as of
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August 11, 1997, between Cendant Mortgage Corporation (formerly known as PHH
Mortgage Services Corporation) and the Company, as the same shall be amended.
"Mortgage Joint Venture" shall mean any joint venture that is
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established by Cendant or one of its subsidiaries and the Company or one of its
subsidiaries to originate and close mortgage loans.
"Person" shall mean a corporation, an association, a partnership, a
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limited liability company, an organization, a business, a trust, an individual,
a government or a subdivision thereof or a governmental agency or any other
entity.
"Preferred Stock" shall mean shares of any class of Preferred Stock of
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the Company, including the Senior Preferred Stock, the Convertible Preferred
Stock and the Junior Preferred Stock.
"Selected Liabilities" shall mean, in connection with any Brokerage
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Acquisition, likely future liabilities created by such Brokerage Acquisition or
assumed by the Company or any of its subsidiaries, which liabilities are (i) of
a nature that do not regularly recur in the ordinary course of business of the
Acquired Brokerage's business or (ii) in an amount materially in excess of the
expense incurred for similar liabilities of the Acquired Brokerage in the LTM
period (which may include, without limitation, tax obligations, environmental
liabilities and litigation), but excluding any amounts for liabilities arising
from ongoing operations as intended by management of the Company to be conducted
after such acquisition; provided that the items included under clauses (i),
(ii), (iv), and (v) in the definition of Total Acquisition Cost below shall not
be Selected Liabilities.
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"Selected Liability Value" shall mean the present value (using a
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discount rate equal to the then current prime rate) of Selected Liabilities in
connection with any Brokerage Acquisition. In connection with each Brokerage
Acquisition in which Cendant participates pursuant to Section 2.1 hereof, the
Selected Liability Value, if any, shall be determined by mutual agreement of
Cendant and the Company; provided, that in the case of any such Brokerage
Acquisition that is approved by the Board of Directors of the Company, at the
request of a majority of the Independent Directors at or prior to the time of
such approval, the Company shall, at its cost, retain a nationally recognized
accounting firm chosen by mutual agreement of Cendant and the Independent
Directors (the "Accounting Referee") to promptly review the determination of
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Selected Liability Value (provided that if Cendant and the Independent Directors
cannot agree on an Accounting Referee, they shall each designate a nationally
recognized accounting firm, and shall cause the respective accounting firms to
promptly select the Accounting Referee). Each of Cendant, the Company and the
Independent Directors shall be permitted to provide supporting information to
the Accounting Referee and all reasonable efforts shall be made to preserve the
privileged nature of the privileged communication of the Company. The
Accounting Referee shall deliver to the Company, as promptly as practicable, a
report setting forth its determination, which report shall be final and binding
upon the parties hereto for determining Selected Liability Value under this
Agreement. If the Independent Directors make the request described above, the
Company and Cendant may mutually agree to complete the Brokerage Acquisition
pending final determination by the Accounting Referee, based on the Selected
Liability Value as determined by Cendant and the Company. If the Accounting
Referee determines that the Selected Liability Value of the Brokerage
Acquisition exceeds 10% of the Total Acquisition Cost of such Acquired
Brokerage, and the Company has completed the Brokerage Acquisition with the
consent of Cendant and without the consent of a majority of the Independent
Directors, then Cendant shall be required to reimburse the Company for costs and
expenses (as such costs and expenses are incurred) actually paid by the Company
in respect of such Selected Liabilities to the extent that such costs and
expenses exceed 10% of the Total Acquisition Cost.
"Senior Preferred Stock" shall mean the 9.00% Series A Cumulative
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Senior Redeemable Preferred Stock of the Company.
"Sponsors" shall mean Apollo Investment Fund III, L.P., Apollo
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Overseas Partners III, L.P. and Apollo (UK) Partners III, L.P.
"Total Acquisition Cost" shall mean, with respect to any Brokerage
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Acquisition, without duplication, the aggregate direct and indirect cost of such
Brokerage Acquisition to the Company and its subsidiaries (and, in the case of
an Acquired Brokerage other than pursuant to Section 2.1(b), to Cendant and its
Affiliates) including without limitation, (i) the consideration (including
earnout payments), including the Non-Competition Payment (as defined in Section
2.1(c)), if any, paid directly or indirectly, to the seller or sellers in
connection with the Brokerage Acquisition, (ii) indebtedness assumed (but not
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payables and not Cash Secured Loans) net of cash, (iii) the Selected Liability
Value (or if lesser, in the event that Cendant has agreed to pay the Company for
any Selected Liability Value pursuant to this Agreement, 10% of the Total
Acquisition Cost (prior to giving effect to this parenthetical)), (iv) out-of-
pocket fees and expenses of such Brokerage Acquisition incurred or assumed by
the Company or its subsidiaries, and (v) Conversion Costs; provided that any of
the foregoing items that are not payable by the Company, Cendant or their
respective subsidiaries at the time of closing of the Brokerage Acquisition
shall not be included in Total Acquisition Cost except to the extent that such
items, in the aggregate, do not exceed 10% of the Total Acquisition Cost at the
time of closing (without giving effect to such items) of such Brokerage
Acquisition; provided that Total Acquisition Cost will be appropriately adjusted
when such excluded amounts are payable.
"Total Cendant Acquisition Cost" shall mean, with respect to any
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Brokerage Acquisition, (I) to the extent that the sum of all Total Cendant
Acquisition Cost (after giving effect to the Total Cendant Acquisition Cost
associated with such Brokerage Acquisition) relating to Brokerage Acquisitions
under this Agreement and the 1997 Agreement is less than the 1997 Agreement
Amount, the lesser of (a) (i) the Acquisition Multiple multiplied by 125%
of Acquired Brokerage Pro Forma LTM Cendant Royalty Fees, plus (ii) in case of
any Brokerage Acquisition in which the Acquired Brokerage Pro Forma LTM Mortgage
EBITDA is more than $1,000,000 and Acquired Brokerage Pro Forma LTM Mortgage
EBITDA is greater than the Adjustment Amount, the Acquisition Multiple
multiplied by the amount equal to (A) Acquired Brokerage Pro Forma LTM Mortgage
EBITDA minus (B) the Adjustment Amount, minus (iii) in case of any Brokerage
Acquisition in which the Acquired Brokerage Pro Forma LTM Mortgage EBITDA is
more than $1,000,000 and Acquired Brokerage Pro Forma LTM Mortgage EBITDA is
less than the Adjustment Amount, the Acquisition Multiple multiplied by the
amount equal to (A) the Adjustment Amount minus (B) Acquired Brokerage Pro Forma
LTM Mortgage EBITDA, and (b) 90% of the Total Acquisition Cost, and (II) to the
extent that the sum of all Total Cendant Acquisition Cost (after giving effect
to the Total Cendant Acquisition Cost associated with such Brokerage
Acquisition) relating to Brokerage Acquisitions under this Agreement and the
1997 Agreement equals or exceeds the 1997 Agreement Amount, the lesser of (a)
(i) the Acquisition Multiple multiplied by 100% of Acquired Brokerage Pro Forma
LTM Cendant Royalty Fees, plus (ii) in case of any Brokerage Acquisition in
which the Acquired Brokerage Pro Forma LTM Mortgage EBITDA is more than
$1,000,000 and Acquired Brokerage Pro Forma LTM Mortgage EBITDA is greater than
the Adjustment Amount, the Acquisition Multiple multiplied by an amount equal to
(A) the Adjustment Amount minus (B) Acquired Brokerage Pro Forma LTM Mortgage
EBITDA, minus (iii) in case of any Brokerage Acquisition in which the Acquired
Brokerage Pro Forma LTM Mortgage EBITDA is more than $1,000,000 and Acquired
Brokerage Pro Forma LTM
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Mortgage EBITDA is less than the Adjustment Amount, the Acquisition Multiple
multiplied by the amount equal to (A) the Adjustment Amount minus (B) Acquired
Brokerage Pro Forma LTM Mortgage EBITDA, and (b) 90% of the Total Acquisition
Cost; provided, in each case, that if the Acquired Brokerage Pro Forma LTM
EBITDA is less than or equal to zero, Total Cendant Acquisition Cost shall be
equal to 90% of the Total Acquisi tion Cost; provided, further, that if the
Total Cendant Acquisition Cost with respect to a Brokerage Acquisition in which
Cendant participates pursuant to Section 2.1 hereof would be less than $1.00,
the Total Cendant Acquisition Cost with respect to such Brokerage Acquisition
shall be $1.00.
"Total Company Acquisition Cost" shall mean, with respect to any
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Brokerage Acquisition, Total Acquisition Cost minus Total Cendant Acquisition
Cost.
ARTICLE II
BROKERAGE ACQUISITIONS
Section 2.1 Brokerage Acquisitions. (a) The Company shall, if practi
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cable, make an election under Section 338(h)(10) of the Internal Revenue Code of
1986, as amended (or, if such election is not available, if practicable any
similar election (an "Election")) with respect to the Company's acquisition (a
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"Brokerage Acquisition") of any real estate brokerage (each, an "Acquired
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Brokerage") in order to treat such Brokerage Acquisition as an acquisition of
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the assets of such Acquired Brokerage for federal income tax purposes (and any
corresponding elections under state and local law). Acquired Brokerages shall
operate as a franchisee of a real estate brokerage franchise system owned by
Cendant or a subsidiary of Cendant as of the date hereof or subsequently
acquired by Cendant or one of its subsidiaries and shall be included under the
terms of the applicable Master Franchise Agreement with Cendant or the
subsidiary of Cendant owning the franchise system of which the Acquired
Brokerage shall be a franchisee.
(b) In connection with any Brokerage Acquisition in which the Company
elects to acquire the Acquired Brokerage directly through a purchase of its
assets or stock, and Cendant has consented in writing to such Brokerage
Acquisition after the Company has requested Cendant's participation in such
Brokerage Acquisition pursuant to the terms hereof, Cendant or one or more of
its Affiliates shall purchase, and the Company shall sell, the trade names and
trademarked operating names (including those relating to mortgage operations)
and, so long as the Marketing Agreement is in effect, the mortgage operations
(if any) of the Acquired Brokerage (the "Cendant Purchase"), and in
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consideration therefor, Cendant shall make a cash payment (the "Cash Payment")
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to the Acquired Brokerage or NRT, as the case may be, equal to the Total Cendant
Acquisition Cost. If the Cendant Purchase has occurred prior to the Brokerage
Acquisition, then the amount of the Cash Payment shall be distributed to the
seller of the Acquired Brokerage as
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part of the Total Acquisition Cost for the Acquired Brokerage. In no event shall
the Company sell, transfer or assign such mortgage operations, or the trade
names and trademarked operating names related thereto, to any person or entity
other than Cendant or one or more of its Affiliates in accordance with the terms
and subject to the provisions of this Agreement. Notwithstanding the foregoing,
in case of any Brokerage Acquisition in which the Total Acquisition Cost equals
or exceeds $5 million or any Brokerage Acquisition that involves the acquisition
of mortgage operations, Cendant's consent to such Brokerage Acquisition shall be
subject to its confirming such consent in writing prior to the closing of such
Brokerage Acquisition (after receipt of the final form of any acquisition
agreement, unless such receipt is waived) and confirming satisfactory review of
requested due diligence materials.
(c) In connection with any Brokerage Acquisition (other than a
Brokerage Acquisition pursuant to Section 2.1(b)) with respect to which Cendant
has consented in writing after the Company has requested Cendant's participation
in such Brokerage Acquisition pursuant to the terms hereof, Cendant (or one of
its Affiliates, excluding the Company and its subsidiaries), rather than the
Company, shall purchase the Acquired Brokerage from the seller thereof and
immediately sell to the Company all of the assets of the Acquired Brokerage
(provided, however, that if any of the companies comprising the Acquired
Brokerage do not have real estate brokerage operations, then the stock of such
companies, rather than the assets, will be sold to the Company) other than trade
names and trademarked operating names (including those relating to mortgage
operations) and, so long as the Marketing Agreement is in effect, mortgage
operations (if any), at a price equal to (i) Total Acquisition Cost minus (ii)
Total Cendant Acquisition Cost minus (iii) the Non-Competition Payment. In
connection with each Brokerage Acquisition consummated pursuant to this Section
2.1(c), the Company shall be a party to a non-competition agreement and/or other
arrangements to be entered into with such seller and shall make a direct payment
to the seller of the Acquired Brokerage (the "Non-Competition Payment") in
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consideration of any such agreements or arrangements. The Company shall use its
best efforts to ensure that the Non-Competition Payment in relation to the Total
Acquisition Cost is structured so as to maximize the tax attributes of the
Company to the extent permitted by law. Notwithstanding the foregoing, in case
of any Brokerage Acquisition in which the Total Acquisition Cost equals or
exceeds $5 million or any Brokerage Acquisition that involves the acquisition of
mortgage operations, Cendant's consent to such Brokerage Acquisition shall be
subject to its confirming such consent in writing (after receipt of the final
form of any acquisition agreement, unless such receipt is waived) and confirming
satisfactory review of requested due diligence materials.
(d) Cendant's obligation to make Cash Payments and purchase Acquired
Brokerages pursuant to Sections 2.1(b) and 2.1(c), which obligation shall only
apply to Brokerage Acquisitions to which Cendant shall have consented in
writing, shall cease after such time as the sum of all Total Cendant Acquisition
Cost (including, for purposes of this Section 2.1(d), any amounts potentially
includable in Total Acquisition Cost after the date of the Brokerage
Acquisition) shall equal at least $499,544,000 and
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shall extend to any Brokerage Acquisition which would cause such sum to exceed
$499,544,000 only to the extent that the sum of all Total Cendant Acquisition
Cost (after giving effect to such Brokerage Acquisition) would be no greater
than $500,583,000; provided, however, that in the event that the Company
consummates an initial public offering of its securities on or prior to June 30,
1999, subject to and effective upon the later to occur of (i) the fifth
anniversary of the date hereof, unless earlier agreed to by Cendant, and (ii)
the date on which the sum of all Total Cendant Acquisition Cost shall equal or
exceed $999,544,000, Cendant's obligation to make Cash Payments and purchase
Acquired Brokerages pursuant to Sections 2.1(b) and 2.1(c) hereof (subject to
the terms of this Section 2.1(d)) shall cease after such time as the sum of all
Total Cendant Acquisition Cost shall equal at least $999,544,000 and shall
extend to any Brokerage Acquisition which would cause such sum to exceed
$999,544,000 only to the extent that the sum of all Total Cendant Acquisition
Cost (after giving effect to such Brokerage Acquisition) would be no greater
than $999,544,000.
(e) Following the redemption of all outstanding shares of the
Company's 18.00% Series C Cumulative Junior Redeemable Preferred Stock, with
respect to any Brokerage Acquisition in which Cendant participates pursuant to
this Section 2.1, Cendant shall have the right, at its election, to cancel
liquidation preference of its Senior Preferred Stock in lieu of paying up to 50%
of the Total Cendant Acquisition Cost in such Brokerage Acquisition, provided
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that immediately prior to the consummation of such Brokerage Acquisition, the
Company would have been permitted to incur at least $50 million in indebtedness
without violating the indebtedness covenant set forth in the Master Franchise
Agreements, provided, further, that if, immediately prior to the consummation of
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such Brokerage Acquisition, the Company does not have available funds (after
taking into account its cash needs for the three months following such Brokerage
Acquisition) to consummate such Brokerage Acquisition without the payment by
Cendant of 100% of the Total Cendant Acquisition Cost, the Company will have the
right to postpone the cancellation of liquidation preference of the Preferred
Stock held by Cendant for up to 90 days following the consummation of such
Brokerage Acquisition and Cendant will pay the Total Cendant Acquisition Cost in
accordance with the terms of Section 2.1(b) or 2.1(c) hereof, as the case may
be. In the event of any postponement of the cancellation of liquidation
preference of Preferred Stock held by Cendant pursuant to the immediately
preceding proviso, as soon as the Company has available funds to pay for the
cancellation of such liquidation preference and in any event within 90 days of
the Brokerage Acquisition, the Company will cancel such liquidation preference
in the amount requested by Cendant and repay to Cendant an amount equal to the
liquidation preference cancelled plus all accrued and unpaid dividends thereon
through the date of cancellation. Any election by Cendant to cancel liquidation
preference in accordance with this Section 2.1(e) shall not affect the
calculation of the sum of all Total Cendant Acquisition Cost in connection with
Brokerage Acquisitions.
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(f) Cendant shall have the right, at any time up to 60 days after
each Brokerage Acquisition, to cause the Company or its subsidiaries to sell to
one or more Persons (which Person shall be engaged in the real estate brokerage
business) designated by Cendant one or more of the brokerage offices selected by
Cendant that were owned, prior to such Brokerage Acquisition, by such Acquired
Brokerage (the "Carved-Out Offices"), unless either the Acquired Brokerage Pro
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Forma LTM EBITDAR (before allocation of the Company's corporate overhead) or LTM
gross revenues of the Carved-Out Offices are greater than 5% (10% with Sponsors'
consent) of such Acquired Brokerage's Acquired Brokerage Pro Forma LTM EBITDAR
(before allocation of the Company's corporate overhead) or such Acquired
Brokerage's LTM gross revenues, respectively. The purchase price for the
Carved-Out Offices shall equal the product of the Acquired Brokerage EBITDA
Acquisition Multiple multiplied by the greater of (i) the difference between the
Acquired Brokerage Pro Forma LTM EBITDAR for the Acquired Brokerage before
giving effect to the sale of the Carved-Out Offices and the Acquired Brokerage
Pro Forma LTM EBITDAR for the Acquired Brokerage after giving effect to the sale
of the Carved-Out Offices (in each case before allocation of the Company's
corporate overhead) and (ii) the product of the Acquired Brokerage's LTM gross
revenues of the Carved-Out Offices multiplied by the Acquired Brokerage EBITDAR
Margin for the entire Acquired Brokerage before giving effect to the sale of the
Carved-Out Offices. Cendant shall use its best efforts to reach a determination
whether to exercise its rights hereunder, and if it so determines, to exercise
such rights, as soon as practicable after the completion of a Brokerage
Acquisition.
(g) Subject to Section 2.1(d), Total Acquisition Cost shall be
adjusted, as appropriate, to reflect the amounts actually payable for the
relevant Brokerage Acquisition to the extent that such amounts are includable in
Total Acquisition Cost pursuant to the definition thereof and any amounts owed
in respect thereof shall be paid promptly.
(h) (i) With respect to any Brokerage Acquisition in which the Total
Acquisition Cost equals or exceeds $5 million or any Brokerage Acquisition that
involves the acquisition of mortgage operations, in which Cendant's
participation has been requested pursuant to this Section 2.1, the Company shall
provide Cendant and its officers, employees, attorneys, accountants and agents
(the "Cendant Representatives") access to any agreement or agreements being
negotiated with the seller of the Acquired Brokerage and shall provide the
Cendant Representatives with a reasonable opportunity to conduct a due diligence
investigation of the Acquired Brokerage (including by providing the Cendant
Representatives with access to any information received by the Company and its
officers, employees, attorneys, accountants and agents with respect to the
Acquired Brokerage);
(ii) with respect to any Brokerage Acquisition, the Company agrees to
negotiate with the seller of the Acquired Brokerage representations and warran-
11
ties and indemnities with respect to the trademarks, trade names and mortgage
operations (if any) of the Acquired Brokerage that are at least as favorable to
NRT and Cendant as the representations and warranties and indemnities relating
to other aspects of the business of the Acquired Brokerage, and the Company
shall assign to Cendant the benefit of such representations and warranties and
indemnities upon the closing of the Brokerage Acquisition. The Company shall
indemnify and hold harmless Cendant, its affiliates and their respective
directors, officers, shareholders, partners, attorneys, accountants, agents and
employees and their heirs, successors and assigns (the "Cendant Indemnified
Parties") from and against any damages, claims, losses, charges, actions, suits,
proceedings, deficiencies, interest, penalties and reasonable costs and expenses
(including reasonable attorneys' and consultants' fees) imposed on, sustained,
incurred or suffered by or asserted against any of the Cendant Indemnified
Parties relating to or arising out of the Acquired Brokerage (except to the
extent relating to or arising out of the Acquired Brokerage's trademarks, trade
names or mortgage operations (if any)). In connection with any such Brokerage
Acquisition in which Cendant acquires the trademarks, trade names and mortgage
operations (if any) of an Acquired Brokerage, Cendant shall indemnify and hold
harmless NRT, its affiliates and their respective directors, officers,
shareholders, partners, attorneys, accountants, agents and employees and their
heirs, successors and assigns (the "NRT Indemnified Parties") from and against
any damages, claims, losses, charges, actions, suits, proceedings, deficiencies,
interest, penalties and reasonable costs and expenses (including reasonable
attorneys' and consultants' fees) imposed on, sustained, incurred or suffered by
or asserted against any of the NRT Indemnified Parties relating to or arising
out of the acquired trademarks, trade names or mortgage operations (if any)).
Section 2.2 Certain Sales. If there shall be a sale or a business
-------------
combination involving the Company or a substantial portion of its assets, any
Acquired Brokerage or a substantial portion of the assets thereof, or a
brokerage office, then in any such case the Company shall either (A) cause a
term of such transaction to be that any successor entity or other entity
acquiring such assets, an Acquired Brokerage or a brokerage office (as well as
the Company or other remaining entity, if any) take such assets, Acquired
Brokerage or brokerage office subject to the terms of the Master Franchise
Agreements or (B) to make provision reasonably acceptable to Cendant for the
payment of royalties and other amounts that would otherwise have been payable
under the Master Franchise Agreement in respect of revenues and earnings of such
disposed of Acquired Brokerage, assets or brokerage office in an amount mutually
acceptable to the Company and Cendant.
12
ARTICLE III
MISCELLANEOUS
Section 3.1 Notices. Any notice, request or other document to be
-------
given hereunder to any party shall be effective upon receipt (or refusal of
receipt) and shall be in writing and delivered personally or sent by telex,
telecopy or certified or registered mail, postage prepaid and addressed to:
If to the Company, addressed to:
NRT Incorporated
▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
If to Cendant, addressed to:
Cendant Corporation
▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
or to such other address as any party shall have specified by written notice
given to the other parties in the manner specified above.
Section 3.2 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, except
as expressly otherwise provided herein. 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.
13
Section 3.3 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 3.4 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 3.5 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 Delaware, 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.
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 3.6 Counterparts. This Agreement may be executed simulta-
------------
neously 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 3.7 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 unenforceable 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.
14
Section 3.8 Entire Agreement. This Agreement is intended by the
----------------
parties hereto as a final and complete expression of their agreement and
understanding in respect of 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 3.9 Effect on Prior Agreement. This Agreement deletes and
-------------------------
supercedes Section 5.8 and Section 5.10 of the 1997 Agreement and, upon the date
hereof, the provisions of Section 5.8 and Section 5.10 are terminated and have
no further force or effect.
Section 3.10 Amendment and Waiver. Prior to the initial public
--------------------
offering of the Company, any provision of this Agreement may be amended if, but
only if, such amendment is in writing and is signed by each of Cendant, the
Company and Apollo. Following the initial public offering of the Company, any
provision of this Agreement may be amended if, but only if, such amendment is in
writing and is signed by each of Cendant, the Company and, with respect to
Section 3.9 only, Apollo.
Section 3.11 Termination. This Agreement shall terminate and be of no
-----------
further force and effect at such time as, pursuant to Section 2.1(c), Cendant is
no longer obligated to make Cash Payments and purchase Acquired Brokerages
pursuant to Sections 2.1(b) and 2.1(c) or at such earlier time as is mutually
agreed by the parties; provided that the provisions of Section 2.2 shall survive
--------
so long as any of the Master Franchise Agreements is in effect.
Section 3.12 Expenses. All costs and expenses incurred by the Company
--------
and Cendant in connection with this Agreement and the transactions contemplated
hereby shall be borne by the Company.
Section 3.13 Joint Venture. It is the current intent of the parties
-------------
hereto to enter into a joint venture, if practicable, between the Company and
Cendant Mortgage Corporation with respect to mortgage operations. If such joint
venture is agreed upon, it is the further current intention of the parties that
such joint venture will replace Cendant Mortgage Corporation as the exclusive
marketing agent for mortgages for the Company and that the provisions contained
herein with respect to the acquisition and sale of the mortgage operations of
Acquired Brokerages will be appropriately adjusted by the parties, acting in
good faith, to reflect the existence of the joint venture.
15
IN WITNESS HEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
NRT INCORPORATED
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: _______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
CENDANT CORPORATION
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
By: _______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
APOLLO INVESTMENT FUND III, L.P.
By: APOLLO ADVISORS II, L.P., its General Partner
By: APOLLO CAPITAL MANAGEMENT II, INC.,
its General Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: _______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
APOLLO OVERSEAS PARTNERS III, L.P.
By: APOLLO ADVISORS II, L.P., its General Partner
By: APOLLO CAPITAL MANAGEMENT II,
INC., its General Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: _______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
16
APOLLO (UK) PARTNERS III, L.P.
By: APOLLO ADVISORS II, L.P., its General Partner
By: APOLLO CAPITAL MANAGEMENT II, INC.,
its General Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: _____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FOR PURPOSES OF SECTION 3.9 ONLY:
APOLLO MANAGEMENT, L.P.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: _____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
17