EX-10.3



 






Exhibit 10.3



EXECUTION COPY



TRADEMARK LICENSE AGREEMENT




Between




TM ACQUISITION CORP.




COLDWELL BANKER REAL ESTATE CORPORATION




ERA FRANCHISE SYSTEMS, INC.




And




CENDANT MORTGAGE CORPORATION




Dated as of January 31, 2005





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE I DEFINITIONS

	 
	 	 	 	 	 	 
	1.01
	 	Defined Terms	 	 	1	 
	 
	 	 	 	 	 	 
	1.02
	 	Interpretation.	 	 	5	 
	 
	 	 	 	 	 	 
	ARTICLE II LICENSE TO LICENSEE OF THE MARKS

	 
	 	 	 	 	 	 
	2.01
	 	Scope of License to Licensee.	 	 	6	 
	 
	 	 	 	 	 	 
	2.02
	 	Rights Reserved.	 	 	6	 
	 
	 	 	 	 	 	 
	2.03
	 	Appearance of the Marks.	 	 	6	 
	 
	 	 	 	 	 	 
	2.04
	 	Sublicensing.	 	 	6	 
	 
	 	 	 	 	 	 
	2.05
	 	Domain Names.	 	 	7	 
	 
	 	 	 	 	 	 
	ARTICLE III OWNERSHIP OF THE MARKS

	 
	 	 	 	 	 	 
	3.01
	 	Acknowledgments and Covenants of Licensee.	 	 	7	 
	 
	 	 	 	 	 	 
	3.02
	 	Avoidance of Adverse Actions by Licensee	 	 	7	 
	 
	 	 	 	 	 	 
	ARTICLE IV MAINTENANCE OF QUALITY

	 
	 	 	 	 	 	 
	4.01
	 	Quality of Licensee's Services.	 	 	8	 
	 
	 	 	 	 	 	 
	4.02
	 	Compliance and Performance Reviews.	 	 	8	 
	 
	 	 	 	 	 	 
	4.03
	 	Quality of Mortgage Business Offices	 	 	8	 
	 
	 	 	 	 	 	 
	4.04
	 	Promotion and Goodwill.	 	 	9	 
	 
	 	 	 	 	 	 
	4.05
	 	Notification of Breach of Quality Standards	 	 	9	 
	 
	 	 	 	 	 	 
	ARTICLE V LICENSE FEES

	 
	 	 	 	 	 	 
	5.01
	 	Fees.	 	 	9	 
	 
	 	 	 	 	 	 
	5.02
	 	Payment of Fees.	 	 	9	 
	 
	 	 	 	 	 	 
	5.03
	 	Late Payments.	 	 	9	 
	 
	 	 	 	 	 	 
	5.04
	 	Method of Payment.	 	 	10	 
	 
	 	 	 	 	 	 
	ARTICLE VI RECORDS; AUDITS AND INSPECTIONS

	 
	 	 	 	 	 	 
	6.01
	 	Maintenance of Records.	 	 	10	 
	 
	 	 	 	 	 	 
	6.02
	 	Right of Inspection and Audit.	 	 	10	 
	 
	 	 	 	 	 	 
	6.03
	 	Payment Deficiency.	 	 	10	 
	 
	 	 	 	 	 	 
	ARTICLE VII COMPLIANCE WITH LAW

	 
	 	 	 	 	 	 
	7.01
	 	Compliance with Law.	 	 	11	 
	 
	 	 	 	 	 	 
	7.02
	 	Government Licenses, Permits, and Approvals	 	 	11	 
	 
	 	 	 	 	 	 






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	ARTICLE VIII INTELLECTUAL PROPERTY PROTECTION

	 
	 	 	 	 	 	 
	8.01
	 	Protection of the Marks.	 	 	11	 
	 
	 	 	 	 	 	 
	8.02
	 	Domain Names.	 	 	11	 
	 
	 	 	 	 	 	 
	ARTICLE IX DISCLAIMER OF
REPRESENTATIONS AND WARRANTIES	12	 
	 
	 	 	 	 	 	 
	9.01
	 	Disclaimer	 	 	12	 
	ARTICLE X DEFENSE AND INDEMNIFICATION

	 
	 	 	 	 	 	 
	10.01
	 	Indemnification by Licensee	 	 	12	 
	 
	 	 	 	 	 	 
	ARTICLE XI REMEDIES FOR BREACH

	 
	 	 	 	 	 	 
	11.01
	 	Equitable Relief	 	 	12	 
	 
	 	 	 	 	 	 
	ARTICLE XII TERM AND TERMINATION

	 
	 	 	 	 	 	 
	12.01
	 	Term.	 	 	12	 
	 
	 	 	 	 	 	 
	12.02
	 	Licensors' Right to Terminate Agreement.	 	 	13	 
	 
	 	 	 	 	 	 
	12.03
	 	Termination for Material Breach	 	 	13	 
	 
	 	 	 	 	 	 
	12.04
	 	Effect of Termination.	 	 	13	 
	 
	 	 	 	 	 	 
	12.05
	 	Post-Transitional Period Use.	 	 	14	 
	 
	 	 	 	 	 	 
	12.06
	 	Survival.	 	 	14	 
	 
	 	 	 	 	 	 
	ARTICLE XIII MISCELLANEOUS

	 
	 	 	 	 	 	 
	13.01
	 	Counterparts.	 	 	14	 
	 
	 	 	 	 	 	 
	13.02
	 	Entire Agreement.	 	 	14	 
	 
	 	 	 	 	 	 
	13.03
	 	Invalidity.	 	 	14	 
	 
	 	 	 	 	 	 
	13.04
	 	Amendment.	 	 	15	 
	 
	 	 	 	 	 	 
	13.05
	 	Binding Effect.	 	 	15	 
	 
	 	 	 	 	 	 
	13.06
	 	Governing Law.	 	 	15	 
	 
	 	 	 	 	 	 
	13.07
	 	Effect of Waiver or Consent.	 	 	15	 
	 
	 	 	 	 	 	 
	13.08
	 	Notices	 	 	15	 
	 
	 	 	 	 	 	 
	13.09
	 	Headings.	 	 	17	 
	 
	 	 	 	 	 	 
	13.10
	 	No Assignment.	 	 	17	 
	 
	 	 	 	 	 	 
	13.11
	 	Remedies Cumulative.	 	 	17	 
	 
	 	 	 	 	 	 
	13.12
	 	No Third-Party Beneficiaries.	 	 	17	 
	 
	 	 	 	 	 	 
	13.13
	 	Further Assurances and Cooperation.	 	 	17	 
	 
	 	 	 	 	 	 
	13.14
	 	No Strict Construction.	 	 	17	 






SCHEDULE A (Marks)

SCHEDULE B (Sublicensees)



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THIS TRADEMARK LICENSE AGREEMENT (this “Agreement”), dated as of January 31, 2005,
(the “Effective Date”), by and among TM ACQUISITION CORP., a Delaware corporation located
at 10750 W. Charleston Blvd., Suite 130, Las Vegas, NV 89135 (“TM Corp.”), COLDWELL BANKER
REAL ESTATE CORPORATION (“Coldwell Banker”) and ERA FRANCHISE SYSTEMS, INC.
(“ERA”), both located at 1 Campus Drive, Parsippany, New Jersey 07054 (ERA, Coldwell Banker
and TM Corp. are collectively the “Licensors”), and
CENDANT MORTGAGE CORPORATION (to be renamed “PHH Mortgage
Corporation”), a New Jersey
corporation located at 3000 Leadenhall Road, Mt. Laurel, New Jersey 08054 (“Licensee”).
Licensors and Licensee are hereinafter referred to collectively as the “Parties” or
individually as a “Party”.



WITNESSETH:



WHEREAS, Licensee is engaged in providing mortgage services that include counseling, efficient
processing, origination, and servicing of Mortgage Loans on homes located in the United States,
which Mortgage Loans are sourced through a Brand Franchisee.


WHEREAS, TM Corp. owns the Marks set forth on Schedule A;


WHEREAS, TM Corp. has previously entered into exclusive licensing arrangements with Coldwell
Banker and ERA whereby TM Corp. granted (i) Coldwell Banker exclusive rights to use the Coldwell
Banker Marks and (ii) ERA exclusive rights to use the ERA Marks, in connection with the operation
of real estate franchisor businesses;


WHEREAS, Licensee desires a license to use the Marks to conduct the Franchisee Mortgage
Business, and for a limited time prior to the initiation of the operation of the NRT Mortgage
Business by PHH LLC, the NRT Mortgage Business, and Licensors desire to grant such license to
Licensee on the terms and subject to the conditions contained herein.


NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants,
promises, and agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:



ARTICLE I

DEFINITIONS



1.01      Defined Terms. As used in this Agreement, the following capitalized terms shall
have the meanings set forth below:


“Affiliate” means, when used with reference to a specific Person, any Person that,
directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under
common control with such specific Person. For the avoidance of doubt, neither PHH LLC nor any of
the Brand Franchisees shall be deemed to be an Affiliate of Cendant or any of Cendant’s Affiliates.


“Agreement” has the meaning set forth in the preamble of this Agreement.



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“Brand Franchisee” means any residential real estate brokerage business that (i)
operates under a Mark and (ii) is not owned by Cendant Real Estate or any of its Subsidiaries;
provided that the Parties acknowledge that any such businesses operated under the
“Sotheby’s International Realty” brand are not included in the definition of “Brand
Franchisee” for purposes of this Agreement.


“Business Day” means any day other than a Saturday, Sunday, or a holiday on which
commercial banks in the State of New York are closed.


“Calendar Quarter” means the three-month quarters from January 1st through
March 31st,
April 1st
through June 30th, July 1st through
September 30th, and October 1st through December 31st of each
calendar year.


“Cendant” means Cendant Corporation, a Delaware corporation.


“Cendant Marks” means the marks identified as “Cendant Marks” on Schedule A.


“Cendant Mark License” has the meaning set forth in Section 2.01.


“Cendant Put” has the meaning set forth in Section 8.2 of the Operating Agreement.


“Cendant Real Estate” means Cendant Real Estate Services Group, LLC, a Delaware
limited liability company.


“Cendant Real Estate Services Division” means (i) the residential and commercial real
estate brokerage business owned and operated by NRT Incorporated and its Subsidiaries; (ii) the
relocation business owned and operated by Cendant Mobility Services Corporation and its
Subsidiaries; and (iii) the Settlement Services business owned and operated by Cendant Settlement
Services Group LLC and its Subsidiaries (it being understood that for all purposes of the NRT
Mortgage Business, the Cendant Real Estate Services Division shall not include Century 21 Real
Estate LLC, Coldwell Banker, ERA, and Sotheby’s International Realty Affiliates, Inc.).


“Cendant Termination Event” has the meaning set forth in Section 8.1 of the Operating
Agreement.


“Cessation Date” has the meaning set forth in Section 12.04(b).


“Coldwell Banker” has the meaning set forth in the preamble of this Agreement.


“Coldwell Banker Marks” means the marks identified as “Coldwell Banker Marks”
on Schedule A.


“Control” shall mean, with regard to any Person, the power to direct the management
and policies of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract, or otherwise; and the terms “controlling” and “controlled”
have meanings correlative with the foregoing.



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“Covered Books and Records” has the meaning set forth in Section 6.01(a).


“Customer” means any Person who is referred to Licensee by any Brand Franchisee (with
respect to the Franchisee Mortgage Business) or the Cendant Real Estate Division (with respect to
the NRT Mortgage Business) and contacts Licensee whether in person or by mail, phone, via the
Internet (including by electronic mail), or otherwise, or who is so contacted by Licensee, about
the possibility of obtaining a Mortgage Loan through Licensee, or who otherwise obtains a Mortgage
Loan from or through Licensee.


“Damages” shall mean any and all damages, disbursements, suits, claims, liabilities,
obligations, judgments, fines, penalties, charges, amounts paid in settlement, costs, and expenses
(including reasonable attorneys’ fees and expenses) arising out of or related to this Agreement,
and any interest charged by third parties on any of the foregoing.


“Domain Names” means the Internet domain names identified on Schedule A or such other
Internet domain name containing a Mark approved in writing by Licensors from time to time pursuant
to this Agreement.


“Effective Date” has the meaning set forth in the preamble of this Agreement.


“ERA” has the meaning set forth in the preamble of this Agreement.


“ERA Marks” means the marks identified as “ERA Marks” on Schedule A.


“Fees” has the meaning set forth in Section 5.01.


“Franchisee Mortgage Business” means providing mortgage services to the Customer that
include counseling, efficient processing, origination, and servicing of Mortgage Loans on homes
located in the Territory, which Mortgage Loans are sourced solely through the Brand Franchisees.


“Governmental Entity” means any court, administrative agency or commission, or other
governmental authority or instrumentality.


“Law” means any order, writ, injunction, decree, judgment, ruling, law, decision,
opinion, statute, rule, or regulation of any Governmental Entity, including, any federal, state, or
local fair lending laws.


“License” has the meaning set forth in Section 2.01.


“Licensee” has the meaning set forth in the preamble of this Agreement.


“Licensor” means (i) TM Corp. with respect to all Marks, (ii) Coldwell Banker with
respect to the Coldwell Banker Marks, and (iii) ERA with respect to the ERA Marks.


“Marks” means the service marks, trademarks, trade names, and real estate brand names
(and corresponding applications and registrations) identified on Schedule A.



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“Mortgage Business” means the Franchisee Mortgage Business and, for the duration of
the NRT Mortgage License, as set forth in Section 2.01(b) hereof, the NRT Mortgage Business.


“Mortgage Lending Laws” means any Law applicable to the (i) communication with, and
marketing directed toward, Customers, (ii) application process for Mortgage Loans, (iii) Mortgage
Pre-Approval Decision process described in the Operating Agreement, (iv) processing of Mortgage
Loan applications, (v) communication to the Customer of a Mortgage Loan underwriting decision, and
(vi) closing and funding of a Mortgage Loan as well as the preparation, execution, and delivery of
Mortgage Loan Documents and Mortgage Loan Disclosures (as respectively defined in the Operating
Agreement). Mortgage Lending Laws include the following: (i) the record keeping and reporting
requirements of the Home Mortgage Disclosure Act (“HMDA”), (ii) the Real Estate Settlement
Procedures Act and Regulation X (24 C.F.R. Part 3500), (iii) the Fair Housing Act, (iv) the Fair
Credit Reporting Act, (v) the Flood Disaster Protection Act, (vi) the Truth-in-Lending Act and
(Regulation Z), (vii) the National Housing Act, (viii) the Servicemen’s Readjustment Act, (ix) the
Equal Credit Opportunity Act and (Regulation B), (x) any usury laws or regulations, and (xi) the
Homeowner’s Protection Act.


“Mortgage Loan” means a mortgage loan (including a home equity line of credit)
evidenced by one or more promissory notes and secured by a mortgage or deed of trust on one or more
residential real estate properties.


“Non-Renewal Put” has the meaning set forth in Section 8.4 of the
Operating Agreement.


“Non-Renewal
PHH Sale” has the meaning set forth in Section 8.4 of the
Operating Agreement.


“NRT Mortgage Business” means providing mortgage services to the Customer that include
counseling, efficient processing, origination, and servicing of Mortgage Loans on homes located in
the Territory, which Mortgage Loans are sourced solely through the Cendant Real Estate Services
Division.


“NRT Mortgage License” has the meaning set forth in Section 2.01(b).


“Offices” has the meaning set forth in Section 4.02.


“Operating Agreement” means the Amended and Restated Limited Liability Company
Operating Agreement of PHH LLC, dated as of January 31, 2005, as it may be amended from time to
time.


“Party” or “Parties” has the meaning set forth in the preamble of this
Agreement.


“Person” means any individual, general partnership, limited partnership, corporation,
limited liability company, joint venture, trust, business trust, governmental agency, cooperative,
association, or other entity, and the heirs, executors, administrators, legal representatives,
successors, and assigns of such person, as the context may require.


“PHH LLC” means PHH Home Loans, LLC, a Delaware limited liability company.


“Pipeline Loans” shall mean all potential Mortgage Loans which are in one of various
stages of loan origination, approval and processing at Licensee, but which, as of the time of
consummation of a Cendant Put or Two Year Put, shall not have closed and funded.



4









 






“PHH Sale” has the meaning set forth in Section 8.2 of the Operating Agreement.


“PHH Termination Event” has the meaning set forth in Section 8.3 of the Operating
Agreement.


“Prime Rate” means, at any given time, the prime rate most recently reported by J.P.
Morgan Chase, New York, New York (or any successor entity).


“Purchase Right” has the meaning set forth in Section 8.3 of the Operating Agreement.


“Special
Termination Put” has the meaning set forth in Section 8.4 of the
Operating Agreement.


“SRA” means the Strategic Relationship Agreement by and among Cendant Real Estate, PHH
Corporation, Cendant Real Estate Services Venture Partner, Inc., Licensee, PHH Broker Partner
Corporation, and PHH LLC, as it may be amended from time to time.


“Sublicensees” has the meaning set forth in Section 2.04.


“Subsidiary” means, when used with respect to any party, any corporation, partnership,
limited liability company or other organization, whether incorporated or unincorporated, which is
consolidated with such party for financial reporting purposes under generally accepted accounting
principles in the United States.


“Term” has the meaning set forth in Section 12.01.


“Territory” means the United States and its territories and possessions.


“Transitional Period” has the meaning set forth in Section 12.04(b).


“Two
Year PHH Sale” has the meaning set forth in Section 8.4 of the Operating
Agreement.


“Two Year Put” has the meaning set forth in Section 8.4 of the Operating Agreement.


1.02      Interpretation. Each definition in this Agreement includes the singular and the
plural. The words “include” or “including” when used in this Agreement shall mean “including,
without limitation”. The word “or” shall not be exclusive. Except as otherwise stated, reference
to Articles, Sections, Schedules and Exhibits means the Articles,
Sections, Schedules and Exhibits of this Agreement.
The Schedules and Exhibits are hereby incorporated by reference into and shall be deemed a part of this
Agreement.



5









 








ARTICLE II

LICENSE TO LICENSEE OF THE MARKS



2.01      Scope of License to Licensee.  


(a)      During the Term and subject to the terms and conditions of this Agreement, Licensors
hereby grant to Licensee a non-exclusive, non-assignable, non-transferable, non-sublicenseable
(except as set forth in Section 2.04) right and license to use in the Territory the:


(i)      Marks as trademarks and service marks and in its trade or assumed name (but
not corporate name,
except as set forth in Section 2.04); and


(ii)      Domain Names,


in connection solely with the offering of products and services (and the advertisement, promotion,
and marketing of such products and services) in the Franchisee Mortgage Business and the NRT
Mortgage Business (the “License”). Notwithstanding any other provision of this Agreement,
the License with respect to the Cendant Marks shall be for ninety (90) days following the Effective
Date (the “Cendant Mark License”), and immediately upon the end of such ninety (90) day
period, the Cendant Mark License shall terminate and Licensee shall cease using the Cendant Marks
as provided in Section 12.04(b)(i) – (v) with respect to cessation, removal, and destruction of the
Cendant Marks.


(b)      Upon the commencement of the operation by PHH LLC of the NRT Mortgage Business, the
License granted to Licensee with respect to the NRT Mortgage Business (the “NRT Mortgage
License”) will automatically and immediately terminate, and the provisions of Sections 12.04
and 12.05 hereof shall automatically and immediately apply thereto.


2.02      Rights Reserved. For the avoidance of doubt, Licensors hereby reserve the right
to use and grant others the right to use the Marks alone or in association with any other
trademark, service mark, domain name, or name, as trademarks, service marks, domain names, and/or
names for any purpose whatsoever.


2.03      Appearance of the Marks. The Marks may only be used under the License in the
same manner, including in the same style, typeface, and graphic appearance, depicted on Schedule A.
Notwithstanding any other provision of this Agreement, Licensee may not combine the Marks with any
other trademark or service mark (including any logo, design, or symbol), domain name (except for
the Domain Names), name, prefix or suffix, or any other modifying word or term or matter without
Licensors’ prior written approval.


2.04      Sublicensing.
The License includes the right of Licensee to grant a sublicense of the Marks solely to the
companies listed on Exhibit B (“Sublicensees”) during the Term and solely for use in such
Sublicensee’s corporate name as set forth on Exhibit B. Sublicensees shall have no right to
sublicense the Marks to any other Person. Each Sublicensee’s use of the Marks shall be governed by
all provisions contained in this Agreement applicable to Licensee. Licensee shall ensure that each
Sublicensee complies with all such provisions of this



6









 







Agreement, and any breach of
any provision of this Agreement by any Sublicensee shall also be deemed a breach of this Agreement by Licensee.


2.05      Domain Names. Licensee acknowledges and agrees that any use of the Domain Names,
including in connection with any website or other advertising or promotional materials (including
electronic mail sent from an electronic mail address associated with the Domain Names) or other
content available through the Domain Names, must comply with all restrictions in this Agreement
relating to the Marks, to the extent applicable.



ARTICLE III

OWNERSHIP OF THE MARKS



3.01      Acknowledgments and Covenants of Licensee.


(a)      Licensee acknowledges that (i) TM Corp. is the owner of the Marks in the Territory, (ii)
other than the rights granted to Licensee under this License, (x) Coldwell Banker is the exclusive
licensee of the Coldwell Banker Marks in the Territory and (y) ERA is the exclusive licensee of the
ERA Marks in the Territory, and (iii) the rights of Licensors in the Marks are valid and
enforceable. Licensee covenants and agrees not to challenge Licensors’ ownership of the Marks
anywhere, including as part of a Domain Name.


(b)      Licensee shall not acquire any ownership rights in the Marks or Domain Names or any other
right adverse to Licensors’ interests in the Marks or Domain Names. Nothing herein shall be
deemed, intended, or implied to constitute a sale or assignment of the Marks or Domain Names to
Licensee. Licensee agrees that its use of the Marks or Domain Names under this Agreement shall
inure to the benefit of Licensors, and this Agreement does not confer on Licensee any goodwill or
ownership interest in the Marks.


(c)      Licensee shall include the following written notice in connection with its use of the
Marks (or such other written ownership notice as requested by Licensors from time to time):
"[insert service mark] is a service mark of a subsidiary of Cendant Corporation and used under
license by [insert Licensee].”


3.02      Avoidance of Adverse Actions by Licensee. Licensee hereby covenants that it
shall not: (i) use the Marks in any way that may tend to impair their validity as proprietary
trademarks or service marks; (ii) take any action that would jeopardize or impair TM Corp.’s
ownership of the Marks or the legality and/or enforceability of the Marks, or Coldwell Banker’s
right to use the Coldwell Marks and ERA’s right to use the ERA Marks; (iii) either directly or
indirectly, apply for the registration or renewal
of registration of the Marks or any variation thereon, or any trademark, service mark, domain
name (except for the Domain Names with respect to renewal as set forth herein), name or other
matter which contains or is similar to, the Marks, without the prior written consent of Licensors;
(iv) use (except for the Marks and Domain Names as set forth herein) or attempt to register in any
jurisdiction, directly or indirectly, any trademark, service mark, domain name, name, or other
matter containing or similar to any trademark, service mark, domain name, or name as to which
Licensors or their Affiliates have any registration or proprietary rights; or (v) sublicense any of
the Marks, except as permitted in Section 2.04.



7









 








ARTICLE IV

MAINTENANCE OF QUALITY



4.01      Quality of Licensee’s Services.


(a)           Licensee shall use the Marks and conduct its business under the Marks in a manner designed
to enhance the reputation and integrity of the Marks and the goodwill associated therewith.
Licensee hereby covenants that in the course of conducting the Mortgage Business, the quality of
products and services provided by Licensee under the Marks will be at least equal to (i) the
quality of products and services provided by Cendant, Coldwell Banker, ERA or their respective
Affiliates under the Marks as of the Effective Date and (ii) generally accepted good industry
practice, which includes the origination, processing, underwriting, approval, closing, shipping,
and other origination services on all Mortgage Loans by Licensee in accordance with all Mortgage
Lending Laws and with no less degree of care than Cendant or its Affiliates exercised when they
originated Mortgage Loans prior to the Effective Date.


(b)           Licensee shall not take any action that in any way might tend to diminish or disparage the
value, goodwill, or reputation of the Marks, Cendant, or Licensors.


4.02      Compliance and Performance Reviews. Licensors shall have the right to review the
manner in which Licensee uses the Marks, including the right at any Licensor’s written request to
receive and review samples of materials on which Licensee uses the Marks, including letterhead,
business cards, advertising, signage, and other promotional materials, and other business materials
used in connection with the Marks, to ensure that Licensee is complying with the provisions hereof,
and Licensors reserve their right to require written approval of such materials prior to Licensee’s
use of the same. If any Licensor determines, in its discretion, that Licensee has failed to comply
with the quality provisions set forth in this Agreement, such failure shall be deemed a default
under this Agreement, and Licensors shall have the right to terminate this Agreement as provided
for in Section 12.03.


4.03      Quality of Mortgage Business Offices. Licensee shall:


(i)      maintain a high moral and ethical standard of operation at each office
servicing the Mortgage Business (the “Offices”);


(ii)      maintain each of its Offices in a clean, attractive, and orderly
condition;


(iii)      provide efficient, courteous, and high-quality services to the Customers
at each Office or via any telecommunication process such as telephone or the
Internet;


(iv)      comply with Licensors’ reasonable requirements so as to maintain the high
quality of each Office 

and telecommunication processes; and



8









 







(v)      conduct the Mortgage Business in the manner set forth under the Operating
Agreement and the SRA.


4.04      Promotion and Goodwill.


(a)           Licensee shall:


(i)      advertise and promote the Mortgage Business subject to Licensors’
reasonable requirements as to form and content of all advertising and promotional
material;


(ii)      not make or publish any statement or advertisement which would reasonably
be expected to be construed to demean the image, value, identity, reputation, or
goodwill associated with Cendant, Licensors, or any Mark; and


(iii)      advertise only in a manner that is professional, dignified, and not
intentionally misleading.


(b)           Licensee acknowledges that its compliance with the quality provisions of this Agreement is
essential to preserve the goodwill of the Marks and the integrity of the Mortgage Business.


4.05      Notification of Breach of Quality Standards. Licensee shall promptly deliver to
Licensors written notice of any material breach by Licensee with respect to the quality standards
contained herein.



ARTICLE V

LICENSE FEES 



5.01
     Fees. Licensee shall pay, for
each Calendar Quarter, a fee equal to the amount specified in
Exhibit A to
Licensors or a Subsidiary of Cendant as designated by Licensors (the “Fees”).


5.02      Payment of Fees.


(a)      The Fees will be payable by Licensee each Calendar Quarter and will be due and payable on
the 15th Business Day after the end of such Calendar Quarter, in arrears.


(b)      Each payment of Fees shall be accompanied by a statement, certified by the chief financial
officer of Licensee, setting forth a reasonably detailed calculation of the Fees corresponding
thereto.


5.03      Late Payments. Any payment of Fees which are not paid by the date such payments
are due and payable shall bear interest to the extent permitted by applicable Law at the Prime Rate
on the date such payment is due, calculated based on the number of months (pro rated, as necessary)
such payment is delinquent.



9









 







5.04      Method of Payment. All payments to Licensors or a Subsidiary of Cendant under
this Agreement shall be made by wire transfer of same day funds or check in United States dollars
in the requisite amount to such bank account as Licensors or a Subsidiary of Cendant may from time
to time designate by notice to Licensee. Payments shall be net of any withholding taxes required
by applicable Law.



ARTICLE VI

RECORDS; AUDITS AND INSPECTIONS



6.01      Maintenance of Records. Licensee shall maintain accurate books, records, and
accounts, including financial and accounting records, relating to the Mortgage Business (and shall
use commercially reasonable efforts to cause its independent accountants to retain their working
papers), including with respect to the determination of (i) any Fees pursuant to this Agreement,
and (ii) compliance with the quality provisions set forth in Article IV (such books, records, and
accounts, collectively, the “Covered Books and Records”).


6.02      Right of Inspection and Audit.


(a)      Licensors and their Affiliates, and their officers, employees, and agents, including
third-party attorneys and accountants and auditors, and regulatory officials with regulatory
authority over Licensors, may, during the Term and for a period of three (3) years following any
termination of this Agreement (or longer to the extent of any applicable statute of limitations or
any dispute hereunder), perform reviews, including onsite visits and an audit of the Covered Books
and Records to ensure that Licensee is conducting its activities and performing its obligations
under this Agreement in accordance with all Mortgage Lending Laws and the provisions of this
Agreement. In connection therewith, Licensee shall provide to such Person, during normal business
hours and with reasonable advance notice, access to such Covered Books and Records as Licensors may
reasonably request for the purpose of carrying out such reviews. Licensors shall have the right to
make copies or extracts of the Covered Books and Records.


(b)      Licensors shall be permitted, during the Term and for a period of three (3) years
following the Term (or longer to the extent of any applicable statute of limitations or any dispute
hereunder), during normal business hours and with reasonable advance notice, to meet with
Licensee’s officers, employees, and applicable agents and representatives for the purpose of
reviewing Licensee’s compliance with the quality and payment provisions of this Agreement.


6.03      Payment Deficiency.


(a)      Except as otherwise provided in Section 6.03(b), the expenses of any inspection and audit
conducted pursuant to Section 6.02 shall be borne by Licensors.


(b)      If the Fees actually paid by Licensee pursuant to Article V are less than the Fees that
Licensee was required to pay pursuant to Article V, then Licensee shall promptly (and in no event
later than five (5) days following such determination of such payment deficiency) pay to Licensors
or a Subsidiary of Cendant the amount of such payment deficiency (together with interest from the
date originally due to the extent permitted by applicable Law at



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the Prime Rate on the date such
payment was originally due) and reimburse Licensee for the expense of any inspection or audit
related thereto.



ARTICLE VII

COMPLIANCE WITH LAW



7.01      Compliance with Law. Licensee shall comply in all material respect with all
applicable Laws now and hereinafter enacted in connection with the Mortgage Business, its use of
the Marks, and the performance of its other obligations under this Agreement.


7.02      Government Licenses, Permits, and Approvals. Licensee, at its sole expense,
shall be responsible for obtaining and maintaining all licenses, permits, and regulatory approvals
which are required by any Governmental Entity with respect to this Agreement and/or the Mortgage
Lending Laws with respect to the Mortgage Business, and to comply in all material respect with any
requirements of such Governmental Entity or Mortgage Lending Law. Licensee shall furnish Licensors
with written evidence from such regulatory authorities of any such licenses, permits, clearances,
authorizations, or regulatory approvals at Licensors’ request.



ARTICLE VIII

INTELLECTUAL PROPERTY PROTECTION



8.01      Protection of the Marks.


(a)      Licensee shall, at its own expense, notify Licensors, within ten (10) Business Days after
it becomes aware thereof, of (i) any use, application to register, or registration of any word,
name, phrase, term, logo, or design, or any combination of any of the foregoing, that might
constitute infringement or other violation of the Marks; or (ii) any claim of
any rights in a Mark, or in any confusingly similar mark, adverse to Licensors’ interests in
and to such Mark, or any claim that Licensee’s use of a Mark infringes or otherwise violates the
rights of any other Person.


(b)      Licensee agrees, at its own expense and as Licensors may reasonably request, to (i)
cooperate fully with Licensors in the prosecution and elimination of any infringement or other
violation of the Marks, including, but not limited to, joining in a suit or proceeding against a
Person making such infringing or other violating use; and (ii) execute any further agreements or
documents as may become necessary or useful in connection therewith.


8.02      Domain Names.


(a)      Licensee shall not register any Domain Names or domain names incorporating the Marks, or
any name or mark similar to the Marks, with any domain name registrar. Licensors agrees that they
will appoint Licensee as the administrative and technical contact for the Domain Names with the
appropriate domain name registrar.


(b)      Licensee shall pay all fees (including renewal fees) associated with the Domain Names to
the appropriate domain name registrar and shall not let any Domain Name lapse by failing to pay
such renewal fees. Licensee shall promptly notify Licensors in writing



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and promptly provide
Licensors with copies of all correspondence from any domain name registrar with respect to the
registration or renewal of the Domain Names.



ARTICLE IX

DISCLAIMER OF REPRESENTATIONS AND WARRANTIES



9.01     
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN AND SUBJECT TO THE OPERATING AGREEMENT, LICENSORS HEREBY
SPECIFICALLY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED (INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, VALIDITY, REGISTRABILITY, OR
NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE),
REGARDING THE MARKS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSEE ACKNOWLEDGES THAT
THE LICENSE GRANTED IN THIS AGREEMENT AND THE MARKS ARE PROVIDED “AS IS.”



ARTICLE X

DEFENSE AND INDEMNIFICATION



10.01      Indemnification by Licensee. Licensee, at its expense, hereby agrees to
indemnify and hold harmless Licensors and their Affiliates, and their respective directors,
officers, employees, and agents with respect to any Damages incurred, arising from, or based on a
claim by any third party arising, directly or indirectly, from any use by Licensee or Sublicensees
of the Marks; provided that Licensors notify Licensee promptly in writing after Licensors
become aware of such a claim. Licensors and Licensee shall reasonably cooperate with each other
with respect to such a claim.



ARTICLE XI

REMEDIES FOR BREACH



11.01      Equitable Relief. Licensee acknowledges and agrees that (i) the Marks
constitute valuable property of Licensors and have acquired a valuable reputation and goodwill;
(ii) violation by Licensee or its directors, officers, employees, agents, subcontractors, or
Sublicensees of any provision of this Agreement may cause Licensors irreparable injury not
compensable by money damages for which Licensors may not have an adequate remedy at law; and (iii)
if Licensors institute an action or proceeding to enforce the provisions of this Agreement and seek
injunctive or other equitable relief as may be necessary to enjoin, prevent, or curtail any breach
thereof, threatened or actual, then Licensors shall not be required to prove irreparable injury,
and shall be entitled to such relief without the posting of any bond or other security.



ARTICLE XII

TERM AND TERMINATION



12.01
     Term. This Agreement shall become effective on the Effective Date and shall
continue in perpetuity unless and until terminated pursuant to Section 12.02 or 12.03 (the
“Term”).



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12.02      Licensors’ Right to Terminate Agreement. Licensors may terminate this Agreement
upon written notice to Licensee in the event of the occurrence of (i) any Cendant Termination
Event, which termination will be effective upon consummation of a
Cendant Put or a PHH Sale in accordance with Section 8.2 of the Operating Agreement, (ii) any
PHH Termination Event which termination will be effective upon the
consummation of
a Purchase Right transaction in accordance with Section 8.3 of
the Operating Agreement, (iii) the consummation of a Two Year Put in accordance with Section 8.4 of the
Operating Agreement, (iv) the consummation of a Two Year PHH
Sale in accordance with Section 8.4 of the Operating Agreement,
(v) the consummation of a Special Termination Put, a Non-Renewal Put
or a Non-Renewal PHH Sale, in each case in accordance with Section 8.4
of the Operating Agreement, or (vi) the dissolution of the PHH LLC, which termination will be
effective upon the distribution of assets in accordance with Article IX of the Operating Agreement.


12.03      Termination for Material Breach. If any Licensor, on the one hand, or Licensee,
on the other, fails to discharge a material obligation or to correct a material default hereunder,
Licensee or Licensors, respectively, may give written notice to such other Party specifying the
material obligation or material default and indicating an intent to terminate this Agreement if the
material obligation is not discharged or the material default is not cured. The Party receiving
such notice shall have sixty (60) days from the date of receipt of such notice to discharge such
material obligation or cure such material default. If such material obligation is not discharged
or such material default is not cured by the end of such sixty (60) day period, the non-defaulting
Party may terminate this Agreement immediately by written notice given at any time after the end of
such period; provided that the
material obligation has not been discharged or the material default is continuing on the date
of such termination notice.


12.04      Effect of Termination.


(a)      Upon the expiration or termination of this Agreement for any reason:


(i)      Subject to Sections 12.04(b) and 12.05, Licensee’s License immediately and
automatically shall terminate, and all rights in the Marks granted to Licensee under
this Agreement shall revert to Licensors; and


(ii)      Licensee shall, within sixty (60) days from the termination of this
Agreement (such period, the “Transitional Period”), discontinue using the
Marks and remove the Marks from all promotional and advertisement materials,
stationery, computer and electronic systems (including all Internet websites), and
any and all documents (whether in written, electronic, optical, or other form) in
the possession or control of Licensee, and during the Transitional Period (the last
day of such period being the “Cessation Date”) all of the obligations of
Licensee hereunder shall remain in force; provided, however, that
Licensee shall not be required to remove the Marks from internal business records.


(b)      Subject to Section 12.05, upon expiration of the Transitional Period, Licensee shall:



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(i)      destroy all materials utilizing the Marks and provide confirmation of same
to Licensors;


(ii)      not use any trademark, service mark, domain name, or name that is
confusingly similar to or dilutive of the Marks, and at Licensors’ request Licensee
will assign any rights to the Marks to one or more of the Licensors or an Affiliate
of one of the Licensors, as requested by Licensors;


(iii)      remove all content from any Internet website corresponding to the Domain
Names, and shall (x) post, at the request of Licensors and subject to the prior
written approval of Licensors, a notice or legend which shall state that the license
granted hereunder has been terminated and any other information reasonably requested
by Licensors, including hypertext links to one or more of Licensors’, or its
Affiliates’, other Internet websites; or (y) redirect the Domain Names to a website
of Licensors’ choosing;


(iv)      take all steps necessary, and fully cooperate with Licensors and/or their
Affiliates, to remove the Marks from Licensee’s trade and assumed names and
Sublicensee’s corporate names and cancel any recordation of such names with any
Governmental Entity; and


(v)      change any corporate, trade, and assumed name that uses the Marks to a name
that does not include the Marks or any variation, derivation, or colorable imitation
thereof.


12.05      Post-Transitional Period Use. Notwithstanding Section 12.04, Licensee shall
have the right to continue to use the Marks after the expiration of the Transitional Period solely
to the extent necessary in connection with and until, respectively, (a) the closing of any
outstanding Pipeline Loans and (b) the term of its agreement with any Brand Franchisee expires.


12.06      Survival. Notwithstanding any provisions of this Article stating otherwise,
Sections 8.02, 12.04, 12.05, 12.06, and Articles III, V (with respect to Fees due prior to the
Cessation Date), VI, IX through XI, and XIII shall survive any termination of this Agreement.



ARTICLE XIII

MISCELLANEOUS



13.01      Counterparts. This Agreement may be executed in several counterparts, each of
which will be deemed an original but all of which will constitute one and the same instrument.


13.02      Entire Agreement. This Agreement constitutes the entire agreement between the
Parties and contains all of the agreements between the Parties with respect to the subject matter
hereof. This Agreement supersedes any and all other agreements, either oral or written, between
the Parties with respect to the subject matter hereof.


13.03      Invalidity. Wherever possible, each provision hereof shall be interpreted in
such manner as to be effective and valid under applicable law, but in case any one or more of



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the
provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable
in any respect, such provision shall be ineffective only to the extent of such invalidity,
illegality, or unenforceability without invalidating the remainder of such invalid, illegal, or
unenforceable provision or provisions or any other provisions hereof, unless such a construction
would be unreasonable.


13.04      Amendment. Except as expressly provided herein, this Agreement may be amended
only by a written agreement executed by all of the Parties. Following such amendment, this
Agreement, as amended, shall be binding upon the Parties.


13.05      Binding Effect. Subject to the provisions of this Agreement relating to
transferability, this Agreement will be binding upon and shall inure to the benefit of the Parties,
and their respective permitted successors and assigns.


13.06      Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAWS RULES THEREOF, AND THE OBLIGATIONS,
RIGHTS, AND REMEDIES OF THE PARTIES SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. Any legal
suit, action, or proceeding against any of the Parties arising out of or relating to this Agreement
shall only be instituted in any federal or state court in New York, New York, pursuant to Section
5-1402 of the New York General Obligations Law, and each Party hereby irrevocably submits to the
exclusive jurisdiction of any such court in any such suit, action, or proceeding. The Parties
hereby agree to venue in such courts and hereby waive, to the fullest extent permitted by law, any
claim that any such action or proceeding was brought in an inconvenient forum. Each of the Parties
hereby irrevocably waives all right to trial by jury in any suit, action, or proceeding arising out
of or relating to this Agreement.


13.07      Effect of Waiver or Consent. No provision of this Agreement shall be deemed to
have been waived unless such waiver is contained in a written notice given to the Party claiming
such waiver has occurred. A waiver or consent, express or implied, of or to any breach or default
by any Person in the performance by that Person of its obligations with respect to this Agreement
is not a consent or waiver to or of any other breach or default in the performance by that Person
of the same or any other obligations of that Person with respect to this Agreement. Failure on the
part of a Person to complain of any act of any Person or to declare any Person in default with
respect to this Agreement, irrespective of how long that failure continues, does not constitute a
waiver by that Person of its rights with respect to that default until the applicable
statute-of-limitations period has run.


13.08      Notices. To be effective, unless otherwise specified in this Agreement, all
notices and demands, consents, and other communications under this Agreement must be in writing and
must be given by (a) depositing the same in the United States mail, postage prepaid, certified or
registered, return receipt requested, (b) delivering the same in person and receiving a signed
receipt therefore, (c) sending the same by a nationally recognized overnight delivery service, or
(d) telecopy (promptly confirmed by telephone and followed by personal or nationally recognized
overnight delivery). For purposes of notices, demands, consents, and other



15









 







communications under
this Agreement, the addresses of the Parties (and their respective counsel, if applicable) shall be
as follows:


If to Licensors, addressed to:


Cendant Corporation

9 West 57th Street

New York, New York 10021

Facsimile: (212) 413-1922

Attention:      Eric J. Bock,

                      Executive Vice President-Law

                      and Corporate Secretary


If to Licensee, addressed to:


PHH Mortgage Corporation

3000 Leadenhall Road

Mail Stop ACC

Mt. Laurel, NJ 08054

Facsimile: (856) 917-0950

Attention:      William F. Brown,

                       Senior Vice President

                       and General Counsel


Copies of all notices hereunder shall be delivered to:


Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, New York 10036

Facsimile: (212) 735-2000

Attention: Fred B. White III, Esq.


Notices, demands, consents, and other communications mailed in accordance with the foregoing clause
(a) shall be deemed to have been given, made, and received three (3) Business Days following the
date so mailed. Notices, demands, consents, and other communications given in accordance with the
foregoing clauses (b) and (d) shall be deemed to have been given, made, and received when sent on a
Business Day or, if not a Business Day, then the next succeeding Business Day. Notices, demands,
consents, and other communications given in accordance with the foregoing clause (c) shall be
deemed to have been given, made, and received when delivered or refused on a Business Day or, if
not a Business Day, then the next succeeding Business Day. Any Party may designate a different
address to which notices or demands shall thereafter be directed and such designation shall be made
by written notice given in the manner hereinabove required, provided that at all times each
Party shall be required to maintain a notice address in the continental United States.


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13.09      Headings. The headings of the Articles and Sections herein are inserted for
convenience of reference only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.


13.10      No Assignment. Licensee may not assign or otherwise transfer (including by
operation of law) its rights or obligations under this Agreement to any Person. Any assignment or
other transfer in violation of the foregoing sentence shall be void and of no force and effect.
This Agreement shall be binding upon and inure to the benefit of the Parties and their respective
permitted successors and assigns.


13.11      Remedies Cumulative. All remedies in this Agreement are cumulative, in addition
to, and not in lieu of, any other remedies available to a Party under this Agreement at law or in
equity.


13.12      No Third-Party Beneficiaries. Unless otherwise expressly provided hereunder,
this Agreement shall be binding upon and inure solely to the benefit of each Party, and nothing in
this Agreement, express or implied, is intended to or shall confer upon any other Person any right,
benefit, or remedy of any nature whatsoever under or by reason of this Agreement.


13.13      Further Assurances and Cooperation. Each Party agrees to execute and deliver
such other documents and to take all such other actions as the other Party may reasonably request
to effect the terms of this Agreement.


13.14      No Strict Construction. The language used in this Agreement shall be deemed to
be the language chosen by the Parties hereto to express their mutual intent and no rule of strict
construction against any Party shall apply to any term or condition of this Agreement.



[SIGNATURES APPEAR ON NEXT PAGE]




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IN WITNESS WHEREOF, this Agreement has been duly executed on the day and year first above
written.


	 	 	 	 	 
	 	TM ACQUISITION CORP.

 	 
	 	By:  	 	/s/ Eric J. Bock	 
	 	 	Name:  	Eric J. Bock 	 
	 	 	Title:  	Executive Vice President and Secretary 	 
	 
	 	COLDWELL BANKER REAL ESTATE CORPORATION

 	 
	 	By:  	 	/s/ Eric J. Bock	 
	 	 	Name:  	Eric J. Bock 	 
	 	 	Title:  	Executive Vice President and Secretary 	 
	 
	 	ERA FRANCHISE SYSTEMS, INC.

 	 
	 	By:  	 	/s/ Eric J. Bock	 
	 	 	Name:  	Eric J. Bock 	 
	 	 	Title:  	Executive Vice President and Secretary 	 
	 
	 	CENDANT MORTGAGE CORPORATION

 	 
	 	By:  	 	/s/ Terence W. Edwards	 
	 	 	Name:  	Terence W. Edwards 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 





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