Exhibit 10.21
Corporate Services Transition Agreement
THIS AGREEMENT is made and entered into this 30th day of June 1999,
(hereinafter referred to as "Effective Date") by and between Cendant Operations,
Inc., a Delaware corporation, with its principal place of business at 0 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (together with any subsidiaries and
affiliates of Cendant, "Cendant"), and Avis Fleet Leasing and Management
Corporation, a Texas corporation with its principal place of business at 000 Xxx
Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxx Xxxx 00000 ("Avis Fleet"). Cendant and Avis Fleet
are hereinafter referred to jointly as the "Parties" and individually as
"Party".
WITNESSETH:
WHEREAS, PHH Corporation, an affiliate of Cendant ("PHH"), PHH Holdings
Corporation, a subsidiary of PHH ("PHH Holdings"), Avis Rent A Car, Inc. and
Avis Fleet have entered into an Agreement and Plan of Merger and Reorganization
dated as of May 22, 1999 (the "Merger Agreement") pursuant to which PHH and PHH
Holdings are transferring and assigning to Avis Fleet PHH's fleet and fuel card
businesses (the "Transferred Businesses") in a merger of PHH Holdings and Avis
Fleet (the "Merger"), in exchange for the assumption by Avis Fleet of certain
liabilities and obligations associated with the Transferred Businesses and the
issuance by Avis Fleet to PHH of shares of Avis Fleet preferred stock on such
terms and conditions as are contained therein; and
WHEREAS, the Merger Agreement provides that Cendant and Avis Fleet shall
enter into an agreement relating to certain transition services to be provided
by Cendant to Avis Fleet with respect to the Transferred Businesses and this
Agreement is entered into in order to fulfill that provision.
NOW, THEREFORE, in consideration of the mutual and reciprocal agreements
and promises hereinafter set forth and for other good and valuable
consideration, the Parties agree as follows.
ARTICLE I
SERVICES
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1.01 Provision of Services. Subject to the terms and conditions of this
Agreement, Cendant agrees to provide to Avis Fleet and Avis Fleet agrees to
purchase from Cendant those services described in Exhibit A attached hereto on
the terms set forth on Exhibit A, and those Other Services described in Section
1.02 which Cendant specifically agrees to provide to Avis Fleet upon the terms
agreed upon by the parties in an amendment to Exhibit A (collectively referred
to herein as "Services").
1.02 Miscellaneous Services. From time to time, Avis Fleet may find it desirable
to request, in addition to the Services described in Exhibit A, additional
services to be made available to Avis Fleet by Cendant (hereinafter referred to
as "Other Services"). It is understood and agreed, however, that Cendant is
under no obligation to provide Avis Fleet with any such Other Services. Upon
Avis Fleet's written request for such Other Services, the Parties shall commence
negotiations in good faith in order to arrange for the delivery thereof and
compensation therefor and terms upon which such other Services shall be
provided. The Parties' obligations with respect to providing any such Other
Services shall only become effective upon execution of an amendment to Exhibit A
signed by an officer of each party.
1.03 Nature, Volume and Scope of Services. (a) Cendant will provide Services on
terms which are similar in nature, volume and scope to those which Cendant
provided to the Transferred Businesses immediately prior to the Merger.
(b) Notwithstanding any other provisions of this Agreement, Cendant shall
not be required to provide to Avis Fleet any of the Services agreed to be
provided hereunder to the extent doing so would unreasonably or materially
interfere with the performance of services for Cendant and any business unit or
function of Cendant or otherwise cause an unreasonable or material burden to
Cendant and any business unit or function of Cendant. The parties hereby agree
that no services specifically detailed on Exhibit A to this Agreement are
unreasonable or a material burden to Cendant.
1.04 Subcontracting of Services. Avis Fleet understands that prior to the date
of this Agreement, Cendant may have subcontracted with third parties to provide
services in connection with all or any portion of the Services to be provided
hereunder. Cendant reserves the right to continue to subcontract with third
parties to provide the Services or to enter into new subcontract relationships
for any Service described in Exhibit A. Unless otherwise provided in Exhibit A,
the fees and expenses of such subcontractors used in connection with Services
provided under this Agreement will be charged to Avis Fleet at actual cost
without markup.
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1.05 Avis Fleet Acknowledgment and Representation. Avis Fleet understands that
the Services provided hereunder are transitional in nature and are furnished by
Cendant solely for the purpose of accommodating the transfer of the Transferred
Businesses from Cendant to Avis Fleet. Avis Fleet understands that Cendant is
not in the business of providing Services to third parties and has no long-term
interest in continuing this Agreement. Avis Fleet agrees to make a prompt
transition to its own internal organization or other third party suppliers for
the provision of the Services.
ARTICLE II
TERM AND RENEWAL
2.01 Term of Agreement. Unless otherwise stated in the Exhibit relating to a
specific Service, the term of this Agreement shall commence on June 30, 1999 and
shall expire on December 31, 1999 unless earlier terminated by the Parties as
provided herein.
2.02 Term of Services and Renewal of Services. The term of each Service
identified in Exhibit A shall commence on June 30, 1999 and expire on December
31, 1999 unless earlier terminated as provided herein or specifically provided
otherwise in Exhibit A. The Parties may, upon mutual written agreement, extend
the term of any or all of the Services for additional, successive six (6) month
terms. Unless specifically provided otherwise in Exhibit A, in the event Avis
Fleet desires to renew any Service, Avis Fleet shall provide Cendant with
written notice ("Notice of Service Renewal") sixty (60) days in advance of the
expiration of the Service term, or any renewal term. The Notice of Service
Renewal shall specify which Service(s) Avis Fleet is interested in renewing,
with a description of any requested changes and the terms upon which such
services shall be provided during such renewal term from those terms that are
then described in Exhibit A. Cendant shall respond in writing to Avis Fleet
within fifteen (15) business days following receipt of such Notice of Service
Renewal, and indicate what Service(s), if any, Cendant will agree to provide
during such renewal term and under what terms and conditions such Service(s)
shall be provided. Upon mutual agreement of the Parties, Exhibit A of this
Agreement shall be amended in writing to effect such renewal of Services.
ARTICLE III
COMPENSATION
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3.01 Compensation. Avis Fleet shall pay Cendant compensation for Services based
on the fees and expenses set forth in Exhibit A, or any amendments to Exhibit A,
for each Service. If no fee is specified for a particular Service, the cost of
such Service to Avis Fleet shall be based on the total cost to Cendant of
providing such Service. "Total cost" shall be defined as direct and/or indirect
costs incurred by Cendant as a result of supplying Services to Avis Fleet and
shall be calculated as follows: (depending on which of the following
calculations is most readily determinable for the Service provided): i) usage by
Avis Fleet; ii) Cendant allocations based upon Cendant's standard accounting
practices; or iii) Cendant management estimates of Services provided to Avis
Fleet.
Unless otherwise provided in Exhibit A, the following expenses are included in
the compensation for Services included in Exhibit A:
(i) In the case of employee services provided in connection with the
provision of any Services hereunder, the portion of any employees' salaries and
benefits accrued by Cendant for the period of time during which such employee
services are provided based on the amount of time reasonably estimated by
Cendant that such employees devoted to providing any such employee services to
Avis Fleet.
(ii) For expenses of Cendant employees traveling away from home and
overnight on behalf of Avis Fleet, the actual costs of transportation, meals and
lodging. (Airfare is to be the most economical rate available, but never more
costly than regular carrier coach rate.)
(iii) For long distance telephone calls, facsimile, and telegrams
placed in connection with Services provided under this Agreement, the actual
cost incurred by Cendant.
(iv) For printing, reproduction and postage charges and overnight
courier incurred in connection with Services provided under this Agreement, the
actual cost incurred by Cendant.
(v) For computer services incurred directly in connection with
Services provided under this Agreement, the actual cost incurred by Cendant.
(vi) For supplies, service parts and other materials purchased by
Cendant to perform Services under this Agreement, the actual cost incurred by
Cendant.
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(vii) For automobile mileage charges incurred in connection with
Services provided under this Agreement, the rate of thirty-one cents ($.31) per
mile.
(viii) For equipment leased from third parties in connection with
Services provided under this Agreement, the actual cost incurred by Cendant.
(ix) In addition to, and not in lieu of the foregoing, Avis Fleet
will reimburse Cendant for the "Direct Cost" of providing employee benefits
pursuant to Exhibit A hereto. The "Direct Cost" of providing such employee
benefits to the Employees shall be determined as follows: (A) for all employee
benefits which are "welfare benefits" as defined in Section 3 of ERISA, the
greater of (i) the per-employee estimated and budgeted premium or
premium-equivalent cost applicable to all Cendant employees covered under such
type of coverage and (ii) if such benefits are "self-insured" by Cendant, the
actual costs realized by Cendant in respect of each Employee under such type of
coverage, after giving effect to Cendant's actual losses by virtue of its acting
as a "self-insurer" and (B) for 401(k) company contributions under the Cendant
Corporation Employee Savings Plan, including discretionary company contributions
earned in respect of calendar year 1999 but actually contributed during calendar
year 2000, an amount equal to the contributions actually made by Cendant. Avis
Fleet will also make any other payments or reimbursements set forth in Exhibit
A.
(x) For third party administrative and consulting services incurred
by Cendant in respect of employee benefit plans covering Avis Fleet employees
pursuant to this Agreement, a pro rata portion of the fees charged to Cendant by
such third parties.
3.02 Billing and Payment Terms. Amounts due under this Agreement will be billed
and paid for in the following manner: Statements will be rendered to Avis Fleet
on a monthly basis (and in reasonable detail as reasonably requested by Avis
Fleet) for all Services delivered during the preceding month, and each such
statement shall be payable within thirty (30) days after the date of the
statement. Statements not paid within such thirty (30) day period shall
accumulate interest at the annual rate of ten percent (10%) per annum.
ARTICLE IV
INTERRUPTION OF SERVICES
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Cendant will endeavor to provide uninterrupted Services through the term of this
Agreement and any renewal term agreed upon by the parties. In the event,
however, Cendant or its suppliers are wholly or partially prevented from
providing a Service or Services or if Services are interrupted or suspended, in
either case by reason of any Force Majeure event set forth in Section 13.01, or
Cendant shall deem it necessary to suspend delivery of a Service hereunder for
purposes of inspection, maintenance, repair, or replacement of equipment parts
or structures, Cendant shall not be obligated to deliver such Service during
such periods, provided that Cendant has given, when feasible, reasonable written
notice of the interruption within a reasonable period of time, explaining the
reason, purpose and likely duration therefor, and provided further, that with
respect to Cendant scheduled interruptions or maintenance, Cendant shall have
provided, when feasible, reasonable advance written notice thereof. If such
interruption of Services has a significant negative impact on Avis Fleet's
business operation and Cendant cannot readily reinstate the Service involved,
Cendant will use reasonable efforts to assist Avis Fleet in securing alternative
services to minimize such negative impact on Avis Fleet.
ARTICLE V
PERSONNEL
5.01 Supervision and Compensation. Cendant shall select, employ, pay, supervise,
direct and discharge all Cendant personnel providing Services hereunder. Subject
to Section 3.01, Cendant shall be solely responsible for the payment of all
benefits and any other direct and indirect compensation for Cendant personnel
assigned to perform services under this Agreement, as well as be responsible for
their worker's compensation insurance, employment taxes, and other employer
liabilities relating to such personnel as required by law to be provided.
Cendant shall be an independent contractor in connection with the performance of
Services hereunder and none of Cendant's employees performing services in
connection therewith shall be deemed employees of Avis Fleet.
5.02 Staffing of Personnel. Cendant shall be solely responsible for assigning
personnel to perform the Services, which personnel will be instructed by Cendant
to perform the Services in a timely, efficient and workmanlike manner.
5.03 Standard of Care. Notwithstanding anything to the contrary contained in
this Agreement, it is understood and agreed that Cendant is not in the business
of
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providing Services to third parties and that the standard of care to which
Cendant and any Cendant employees or agents performing Services hereunder shall
be accountable for shall be the standard of care used by Cendant in furnishing
these Services to its own internal organization and affiliates, and under no
circumstances shall Cendant or its employees or agents be held accountable for a
greater standard of care or one that is appropriate for a party in the business
of furnishing similar services.
ARTICLE VI
INGRESS AND EGRESS
Cendant shall at all times during the term of this Agreement have the right of
ingress to and egress from the facilities and premises of Avis Fleet for any
purposes connected with the delivery of Services hereunder or the exercise of
any right under this Agreement or the performance of any obligations required by
this Agreement, subject to reasonable safety and security policies and practices
implemented by Avis Fleet.
ARTICLE VII
CONFIDENTIALITY
7.01 Confidential Information. As used in this Agreement, Cendant Confidential
Information and Avis Fleet Confidential Information are defined as follows:
A. "Cendant Confidential Information" means information known by Avis
Fleet on the date of this Agreement and related to Cendant's business interests,
or disclosed confidentially by Cendant to Avis Fleet prior to or after the
Effective Date under the terms and for purposes of this Agreement except for:
(i) information which is or becomes publicly available through no
act of Avis Fleet, from and after the date of public availability;
(ii) information disclosed to Avis Fleet by a third party, provided
(a) under the circumstances of disclosure Avis Fleet does not have a duty of
non-disclosure owed to such third party, (b) the third party's disclosure is not
violative of a duty on non-disclosure owed to another, including Cendant, and
(c) the disclosure by the third party is not otherwise unlawful;
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(iii) information developed by Avis Fleet independent of any
confidential Cendant information which is known by Avis Fleet on the Effective
Date and/or disclosed by Cendant under this Agreement; and
(iv) information which is developed solely by a business which is
being transferred to Avis Fleet.
B. "Avis Fleet Confidential Information" means information known by
Cendant on the Effective Date and reasonably understood by Cendant to be
confidential and related to Avis Fleet's present or future business interests,
or disclosed confidentially by Avis Fleet to Cendant under the terms and for
purposes of this Agreement except for:
(ii) information which is or becomes publicly available through no
act of Cendant, from and after the date of public availability;
(ii) information disclosed to Cendant by a third party, provided (a)
under the circumstances of disclosure Cendant does not have a duty of
non-disclosure owed to such third party, (b) the third party's disclosure is not
violative of a duty of non-disclosure owed to another, including Avis Fleet, and
(c) the disclosure by the third party is not otherwise unlawful;
(iii) information developed by Cendant independent of any
confidential Avis Fleet information which is known by Cendant on the Effective
Date and/or disclosed by Avis Fleet thereafter;
(iv) information which is inherently disclosed in marketing of a
product by Cendant in the usual course of business and within the scope of the
rights granted; and
(v) information which is developed by a business which remains with
Cendant on the Effective Date.
C. Cendant and Avis Fleet each shall not disclose to any other person or
use except for purposes of the Agreement any business information which is Avis
Fleet Confidential Information or Cendant Confidential Information,
respectively. The foregoing restrictions shall expire with respect to business
information which is Avis Fleet Confidential Information and Cendant
Confidential Information two (2) years after the date of disclosure of such
information, unless and to the extent the
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Parties agree to a longer period for the foregoing restrictions with respect to
specific categories of business information which is Avis Fleet Confidential
Information and/or Cendant Confidential Information, in which case the foregoing
restrictions shall expire with respect to such information on the expiration of
such longer period. The date of disclosure in the case of business information
which is either Cendant Confidential Information known by Avis Fleet or Avis
Fleet Confidential Information known by Cendant on the Effective Date shall be
considered to be the Effective Date.
D. Each Party shall protect Confidential Information hereunder by using
the same degree of care, but no less than a reasonable degree of care, to
prevent the unauthorized disclosure of the other Party's Confidential
Information as the Party uses to protect its own confidential information of a
like nature.
E. Each Party shall insure that its Affiliates, sublicensees and other
transferees agree to be bound by the same restriction on use and disclosure of
Confidential Information as bind the Party in advance of the disclosure of
Confidential Information to them.
ARTICLE VIII
DISCLAIMER AND LIMITATION OF LIABILITY
8.01 Disclaimer of Warranties/Limitation of Direct Damages. EXCEPT AS EXPRESSLY
SET FORTH IN THIS AGREEMENT, CENDANT MAKES NO REPRESENTATIONS OR WARRANTIES
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES TO BE PROVIDED
UNDER THIS AGREEMENT. In the event of any performance or non-performance under
this Agreement which results in direct damages to Avis Fleet, Cendant's maximum,
cumulative and sole liability to Avis Fleet for such direct damages shall be an
amount up to the fee paid by Avis Fleet to Cendant (as of the date of the
performance or non-performance giving rise to the damage) during the term for
the specific Service set forth in Section 2.02 which resulted in direct damages
to Avis Fleet and shall only be payable by Cendant if such loss results from the
willful misconduct or gross negligence on the part of Cendant or any officer,
director or employee of Cendant. Avis Fleet acknowledges that such payment
constitutes fair and reasonable compensation for any direct damages. Notice of
any claim for direct damages must be made within one year of the date of
termination or expiration of the Service which gave rise to the claim and such
claim must specify the damage amount claimed and a description of the action and
the service giving rise to the claim. In no circumstances
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shall Cendant be liable to Avis Fleet in connection with the provision of
subcontracted services.
8.02 Limitation of Consequential Damages. EXCEPT AS PROVIDED IN ARTICLE IX,
NEITHER PARTY SHALL UNDER ANY CIRCUMSTANCES BE LIABLE TO THE OTHER PARTY FOR ANY
SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT
LIMITED TO LOSS OF PROFITS OR REVENUE) RESULTING OR ARISING FROM THIS AGREEMENT,
ANY PERFORMANCE OR NONPERFORMANCE UNDER THIS AGREEMENT OR TERMINATION OF THIS
AGREEMENT. THIS LIMITATION APPLIES REGARDLESS OF WHETHER THE DAMAGES OR OTHER
RELIEF ARE SOUGHT BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE,
STRICT LIABILITY IN TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
ARTICLE IX
INDEMNIFICATION
9.01 Avis Fleet agrees to indemnify, defend and hold harmless Cendant, its
directors, officers, employees, affiliates, agents and representatives from any
and all third party claims, actions, demands, judgments, losses, costs,
expenses, damages and liabilities (including but not limited to attorneys fees
and other expenses of litigation) arising out of or connected with the Services
supplied under this Agreement or in any way related to this Agreement,
regardless of the legal theory asserted; provided, however, that Avis Fleet
shall have no obligation to indemnify pursuant to Section 9.01 for any claims
arising out of the gross negligence or willful misconduct of Cendant or any of
its employees. This indemnity applies to claims, actions and demands for which
Cendant may be, or may be claimed to be, partially or solely liable. The parties
agree that the indemnities stated in Section 9.01 and 9.02 should be construed
and applied in favor of indemnification. The parties agree that the indemnities
will not apply to claims between the parties arising out of or connected to this
Agreement.
9.02 Avis Fleet shall reimburse Cendant and indemnify, defend and hold harmless
Cendant, its directors, officers, employees, agents, and representatives from
any and all claims, actions, demands, judgments, losses, costs, expenses,
damages, and liabilities (including but not limited to attorneys fees and
expenses of litigation), arising from or related to any Avis Fleet act or
omission connected with the provision
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of any Service by Cendant in the performance of this Agreement or caused by any
Avis Fleet product or information provided to Cendant in connection with the
Services being provided by Cendant or by any employee of Avis Fleet.
9.03 If Cendant intends to claim indemnification under Section 9.01 or 9.02,
Cendant will promptly notify Avis Fleet in writing of any claim, action, or
demand for which Cendant intends to claim indemnification. In addition, Cendant
will promptly notify Avis Fleet in writing if Cendant elects to waive its right
to have Avis Fleet defend the claim, action, or demand. If Cendant does not
waive its right to have Avis Fleet defend the claim, action, or demand, Cendant
agrees that Avis Fleet will control the defense of the claim, action, or demand.
Cendant will cooperate fully with Avis Fleet and its legal representatives in
the investigation and defense of any claim, action, or demand covered by this
indemnification. Cendant will permit Avis Fleet to settle any claim, action, or
demand and agrees that Avis Fleet will control the settlement, provided, however
that such settlement does not adversely affect Cendant's rights under this
Agreement or impose any obligations on Cendant in addition to those stated in
this Agreement. Avis Fleet, in the defense of any claims, actions or demands in
which Cendant is a party, will not consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term the giving
by the claimant or plaintiff to Cendant of a release from all liability with
respect to the claim, action, or demand. No such claim, action, or demand will
be settled by Cendant without the prior written consent of Avis Fleet.
9.04 The parties hereby agree that Avis Fleet is a fiduciary in respect of the
Employees to the extent any of the employee benefits are subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and further agree
that Cendant is not a fiduciary (within the meaning of ERISA) in respect of the
Employees.
ARTICLE X
RECORDS AND INSPECTION RIGHTS
10.01 Records. Cendant agrees to maintain accurate records arising from or
related to any Service(s) provided hereunder, including but not limited to
accounting records and documentation produced in connection with the rendering
of any Service(s).
ARTICLE XI
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TERMINATION
11.01 Termination by Either Party. This Agreement, or any Service provided
hereunder, may be terminated by either Party upon written notice to the other
Party if:
A. The other Party fails to perform or otherwise breaches an obligation
under this Agreement; provided, however, that such Party failing to perform or
otherwise breaching shall have thirty (30) days from the date notice of
intention to terminate is received to cure the failure to perform or breach of
an obligation, at which time this Agreement or Service shall terminate if the
failure or breach has not been cured to the reasonable satisfaction of the other
Party; or
B. The other Party makes a general assignment for the benefit of
creditors, becomes insolvent, a receiver is appointed, or a court approves
reorganization or arrangement proceedings; or
C. Performance of this Agreement or any Service to be provided hereunder
has been rendered impossible or impracticable for a period of three (3)
consecutive months by reason of the occurrence of any of the events described in
Section 13.01 or if any other event occurs which can be reasonably determined to
permanently prevent the performance of this Agreement or any Service; or
D. During any agreed upon renewal term, if either Party so desires at any
time, upon sixty (60) days advance written notice of intention to terminate to
the other Party, except with respect to those Services identified in Exhibit A
which specifically require either a shorter or longer period of notice, in which
case the notice period shall be as set forth in Exhibit A with respect to such
Service.
11.02 Termination Notices. Any termination notice delivered by either Party
shall specify in detail the Service or Services to be terminated and the
effective date of termination.
11.03 Consequences of Termination. In the event this Agreement or any Service is
terminated for any reason:
A. Upon request, each Party shall return to the other Party all tangible
personal property and records owned by the other Party in their possession as of
the termination date;
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X. Xxxx Fleet will be responsible to Cendant for reasonable and proper
termination charges which will include all reasonable cancellation costs
incurred by Cendant or costs for materials and equipment reasonably acquired in
connection with the provision of such Service if this Agreement or any Service
described in Exhibit A is terminated by Avis Fleet without cause or by Cendant
with cause. Invoices for such charges shall be prepared in reasonable detail by
Cendant and payment shall be due thirty (30) days from the date thereof.
X. Xxxx Fleet shall remain liable for payment to Cendant for Services
furnished prior to the effective date of termination.
ARTICLE XII
DISPUTE RESOLUTION
12.01 Mediation and Binding Arbitration. If a dispute, controversy or claim
arises between Cendant and Avis Fleet arising out of or relating to the
interpretation or breach or validity of this Agreement or Exhibit A hereto
("Dispute"), Cendant and Avis Fleet agree to use the following procedures, as
the exclusive method of resolving the Dispute.
12.02 Initiation. A Party seeking to initiate the dispute resolution procedures
shall give written notice to the other Party, describing briefly the nature of
the dispute and the relief sought. The parties shall use their best efforts to
hold a meeting within 10 days of the receipt of such notice, to be attended by
individuals with decision-making authority regarding the Dispute, who shall
attempt in good faith to negotiate a resolution of the dispute.
12.03 Submission to Mediation. If, at the conclusion of such meeting or after at
least 30 days have elapsed from the receipt of notice under Section 12.02, the
Parties have not succeeded in negotiating a resolution of the dispute, either
party may submit the dispute to mediation in accordance with the Center for
Public Resources ("CPR") Mediation Procedure, then in effect except as modified
herein. The mediation shall be held in New York, New York. The costs of the
mediator shall be borne equally by the parties.
12.04 Selection of Mediator. The Parties will jointly appoint a mutually
acceptable mediator, seeking assistance in such regard from the CPR or another
mutually agreed-upon organization if they are unable to agree upon such
appointment within 20 days
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from the receipt by a party of a notice from the other party referring the
Dispute to mediation in which case the mediator shall be selected in accordance
with the CPR Mediation Procedure.
12.05 Mediation and Arbitration. The Parties agree to participate in good faith
in the mediation for a period of 30 days or such longer period as they may
mutually agree following the initial mediation session. If the Parties are not
successful in resolving the dispute through mediation by the end of such period,
then either party may submit the matter to binding arbitration in accordance
with the CPR Rules for Non-Administered Arbitration of Business Disputes then in
effect, except as modified herein, by a sole arbitrator, selected in accordance
with the provisions of Section 12.06 hereof. The arbitration proceeding shall be
held in New York, shall be governed by the Federal Arbitration Act, 9 U.S.C. S 1
et seq. The award shall be final and binding on the parties, and judgment upon
the award rendered by the arbitrator may be entered by any court having
jurisdiction thereof.
12.06 Selection of Arbitrator. The Parties shall have 10 days from the end of
the mediation period to agree upon a mutually acceptable neutral person not
affiliated with either of the Parties to act as arbitrator. If no arbitrator has
been selected within such time, either party may request the CPR or another
mutually agreed-upon organization to supply within 10 days a list of potential
arbitrators with qualifications as specified by the Parties. Within five days of
receipt of the list, the Parties shall independently rank the proposed
candidates, shall simultaneously exchange rankings, and shall be deemed to have
selected as the arbitrator the individual receiving the highest combined ranking
who is available to serve. If the procedure results in a tie, CPR may designate
either candidate as the arbitrator.
12.07 Cost of Arbitration. The costs of arbitration shall be apportioned between
Cendant and Avis Fleet as determined by the arbitrator in such manner as the
arbitrator deems reasonable taking into account the circumstances of the case,
the conduct of the Parties during the proceeding, and the result of the
arbitration.
12.08 Arbitration Period. Unless for good cause shown, any arbitration
proceeding shall be concluded in a maximum of one (1) year from written notice
from one Party to the other Party identifying a dispute subject to arbitration
under this Article and requesting arbitration after having participate in
negotiation and mediation under this Article.
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12.09 Treatment of Negotiations and Mediation. All negotiation and mediation
pursuant to this Article shall be treated as compromise and settlement
negotiations for purposes of Rule 408 of the Federal Rules of Evidence.
12.10 Confidentiality. All negotiation, mediation and arbitration proceedings
under this Article shall be treated as Confidential Information in accordance
with the provisions of Section 7.01. Any mediator or arbitrator shall be bound
by an agreement containing confidentiality provisions at least as restrictive as
those contained in Section 7.01.
12.11 Equitable Relief. Nothing herein shall preclude either Party from taking
whatever actions are necessary to prevent any immediate, irreparable xxxxx to
its interests, including multiple breaches of this Agreement by the other Party.
Otherwise, these procedures are exclusive except for actions in and of
arbitration to enforce an interim or final award of the arbitration. Either
Party may seek specific enforcement of any arbitrator's decision under this
Section.
ARTICLE XIII
MISCELLANEOUS
13.01 Force Majeure. Neither Party shall be responsible for the delay in the
performance of any obligation hereunder due to labor disturbances, accidents,
fires, floods, wars, riots, rebellions, blockages, acts of governments,
governmental requirements and regulations, restrictions imposed by law or any
other similar conditions, beyond the reasonable control and without the fault or
negligence of such Party, and the time for performance by such Party shall be
extended by the period of such delay. Notwithstanding the foregoing, in no event
shall Avis Fleet be relieved of its payment obligations to Cendant for Services
delivered, regardless of cause.
13.02 Assignment. Except as set forth in Section 1.04, this Agreement may not be
assigned in whole or in part by either Party without the prior written consent
of the other Party. Any assignment, delegation or transfer of this Agreement or
any interest therein without written consent of the other Party is void and
cause for termination of this Agreement. Nothing in this Agreement shall be
construed to grant any person or entity not a party hereto any rights or powers
whatsoever, and no person or entity shall be a third party beneficiary of this
Agreement. Nothing in this section affects the ability of either party to
terminate this Agreement or any Service in accordance with the provisions of
this Agreement or Exhibit A.
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13.03 Relationship of the Parties. Neither Party is an agent of the other Party
and neither Party has any authority to bind the other Party, transact any
business in the other Party's name or on its behalf, or make any promises or
representations on behalf of the other Party unless provided for in Exhibit A or
agreed to in writing. Each Party will perform all of its respective obligations
under this Agreement as an independent contractor, and no joint venture,
partnership or other relationship shall be created or implied by this Agreement.
13.04 Governing Law. Any questions, claims, disputes or litigation arising from
or related to the making, performance and termination of this Agreement shall be
governed by the laws of New York without regard to the principles of conflicts
of law.
13.05 Entire Agreement. This Agreement and the Exhibits referred to in this
Agreement, which Exhibits are incorporated and made a part of this Agreement by
reference, constitute the entire agreement between Cendant and Avis Fleet
relating to services to be provided by Cendant to Avis Fleet and, with the
exception of the Merger Agreement and any related Agreements, there are no
further agreements or understandings, written or oral, between the Parties with
respect thereto.
13.06 Notices. Any notices, requests, demands or other communications required
by or made under this Agreement shall be in writing and shall be deemed to have
been duly given i) on the date of service if served personally on the Party to
whom notice is to be given, ii) on the day of transmission if sent via facsimile
transmission to the facsimile number given below, and telephonic confirmation of
receipt is obtained promptly after completion of transmission, iii) on the day
after delivery to Federal Express or similar overnight courier or the Express
Mail service maintained by the U.S. Postal Service or iv) on the fifth day after
mailing, if mailed to the Party to whom notice is to be given, by first class
mail, registered or certified, postage prepaid and properly addressed, to the
Party as follows:
If to Cendant: To the person designated on Exhibit A as the Cendant contact for
a specific Service or to:
Xxxx X. Xxxx
Vice President, Legal
Cendant Corporation
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
00
Xxx Xxxx, XX 00000
FAX: (000) 000-0000
With a copy to:
Xxxxxx X. Xxxxxx
Senior Vice President and Corporate Counsel
Cendant Corporation
0 Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
FAX: (000) 000-0000
If to Avis Fleet: To the person designated on Exhibit A as the Avis Fleet
contact for a specific Service or to:
17
General Counsel
Avis Rent A Car, Inc.
World Headquarters
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
13.07 Paragraph Headings. The title and headings of various paragraphs of this
Agreement are inserted for convenience or reference only and shall not be used
in the construction or interpretation of any provisions of this Agreement.
13.08 Conflicting Provisions. In the event any provision of Exhibit A conflicts
with the provisions of this Agreement, the provisions of this Agreement shall be
controlling.
13.09 Survival of Provisions. The representations, warranties and covenants
contained herein shall survive the termination or expiration of this Agreement
to the full extent necessary to protect the Party in whose favor they run.
13.10 Waiver and Modification. No part of this Agreement or any of the Exhibits
may be amended, modified, supplemented or waived in any manner whatsoever
(including course of dealing or of performance) except by a written instrument
signed by authorized officers of the Parties. Any failure or delay by either
party in exercising any right or remedy in one or many instances will not
prohibit a Party from exercising it at a later time or from exercising any other
right or remedy.
[SIGNATURE PAGE TO FOLLOW]
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ACCEPTED AND AGREED TO:
AVIS FLEET LEASING AND
MANAGEMENT CORPORATION:
By: ___________________________
Name:
Title:
CENDANT OPERATIONS, INC.
By: ___________________________
Name:
Title:
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