EX-99.1
2
ex99-1.htm
KAMAN CORPORATION EXHIBIT 99.1
RELOCATION MANAGEMENT
AGREEMENT
This Agreement is between KAMAN
CORPORATION (the “Client”), and CARTUS CORPORATION, a Delaware corporation,
(“Cartus”), effective as of this 7th day of April, 2008.
1. Term. This Agreement sets forth
the terms and conditions pursuant to which Cartus (and its subsidiaries,
affiliates and selected suppliers) will provide the services described in the
Exhibits attached hereto and made a part hereof. Defined terms herein shall have
the meanings as set forth in the Exhibits. The Agreement is effective
as of the date set forth above (“Effective Date”) and shall continue until five
(5) years from the Effective Date, unless terminated by either party in
accordance with the terms of this Agreement. Client shall have the
option to renew the Agreement for two (2) additional one (1) year terms upon
prior written notice to Cartus.
2. Services to Subsidiaries and
Affiliates. Client will have the right to authorize services
for its subsidiaries, affiliates or other entities under this Agreement, and
Client will remain responsible under this Agreement for any such services
provided.
3. Assignment and Succession.
This Agreement shall inure to the benefit of and be binding upon the successors
and permitted assigns of the parties hereto. Neither party may assign its rights
hereunder without the written permission of the other party; however, Cartus may
assign its rights hereunder for purposes of financing, which shall not affect
the performance of its obligations hereunder. Cartus will be responsible for
providing the services described herein throughout the term of this
Agreement.
4. Independent
Contractor. Cartus is an independent contractor and not a
partner, employee, agent, or joint venture of the Client.
5. Tax Advice. Cartus
is being retained to administer a relocation program in accordance with the
Client’s relocation policy. Cartus makes no representations concerning the tax
consequences of any transaction, or the tax-effectiveness of any program, under
this Agreement.
6. Notice and Billing
Address. All notices under this Agreement shall be in writing
and shall be deemed to have been duly submitted when received by the respective
party at the notice address set forth below. All invoices will be sent to the
Client at the billing address as set forth below. Such addresses may
be changed upon mutual agreement of the parties.
|
Notice
Address: Cartus
|
Notice
Address: Client
|
Billing
Address: Client
|
|
Cartus
Corporation
|
Kaman
Corporation
|
Kaman
Corporation
|
|
00
Xxxxx Xxxxx Xxxx
|
0000
Xxxx Xxxxx Xxxxxx
|
0000
Xxxx Xxxxx Xxxxxx
|
|
Xxxxxxx,
XX 00000
|
Xxxxxxxxxx,
XX 00000
|
Xxxxxxxxxx,
XX 00000
|
|
Attention: Contracts
Departments
|
Attention:
|
Attention:
|
7. Governing Law. The
laws of the State of
Connecticut shall govern this Agreement, and the parties
agree that the state and federal courts located in the State of
Connecticut
shall have exclusive jurisdiction over any lawsuits brought under this
Agreement.
8. Attorney’s Fees. If
either party brings an action to enforce the terms hereof or declare the rights
of the parties hereunder, the prevailing party as determined by the court in any
such action, on trial or appeal, shall be entitled to recover from the other
party the reasonable costs and attorneys’ fees incurred in connection with such
action.
9. Responsibilities of the
Parties. (a) Cartus. Cartus will
be responsible for providing its services under this Agreement in a commercially
reasonable manner and in accordance with all applicable federal, state, and
local laws. Cartus agrees to indemnify and hold the Client and its Employees
harmless from all claims, liability, losses, damages, expenses, and lawsuits
(including reasonable attorney's fees) that may arise out of the breach of this
Agreement, the willful misconduct, or any negligent act or omission by Cartus,
its employees, agents, or selected suppliers, in the performance of its
obligations hereunder, except to the proportionate extent of any negligence on
the part of the Client, its employees, its agents, or suppliers chosen by
Client.
(b) Client. Except to the
proportionate extent of Cartus’ responsibility described in (a) above, the
Client agrees to indemnify, and hold Cartus harmless from all claims, liability,
losses, damages, expenses, lawsuits, and costs of collection (including
reasonable attorney's fees) that may arise out of any transaction or service
performed under this Agreement and any Exhibit, including without limitation,
those arising from (i) encumbrances upon title of a Home, (ii) defects in the
physical or structural condition of any Home (including but not limited to
hazardous or toxic materials and gases), (iii) fraud, deceit, failure to
disclose, or misrepresentation by any person receiving services
hereunder, (iv) failure or inability of any person receiving benefits
hereunder to make a payment, adjustment, or repayment, to make a total refund
under the appropriate circumstances, or to fulfill any other obligation to
Cartus, or (v) inaccurate or untimely information provided by or through the
Client, its Employees or its vendors.
(c) The rights and
responsibilities under this section shall survive the termination of the
Agreement. Each party shall be subrogated to the rights of the other party upon
performance of its obligations under this section.
10. Payment. Cartus’
fees, costs, expenses, or any other invoiced amounts as set forth in any
Exhibit, shall be paid within 30 days of the date of the invoice. Payment of
those portions of invoices not subject to disputes shall not be withheld pending
resolution of disputes as to other portions. The Client agrees to pay a finance
charge of 1.5% of the undisputed unpaid amount per month or fraction thereof (or
the highest rate allowed by law, whichever is lower). All monetary values herein
are expressed in US Dollars.
11. Financial
Condition. Cartus may perform periodic reviews of the Client's
financial condition to evaluate the Client's ability to perform its financial
obligations under this Agreement. Based on the results of this review, Cartus
may, upon prior notice to the Client, temporarily suspend the provision of
services, including the execution of contracts of purchase or
sale. Client will provide Cartus with copies of its audited
financial statements upon request.
12. Service Fee
Adjustments. The parties agree that fees shall be adjusted
annually. No adjustment shall take place any earlier than 12 months
from the effective date of the Agreement. Fee adjustments shall be
effective each January 1 or July 1, whichever date occurs first after the one
year anniversary of the Agreement. The standard employed shall be the Consumer
Price Index, US average for all Consumers (“CPI-U”) as determined by the Bureau
of Labor Statistics, using the most recent November 30 CPI-U for January
adjustments and May 31 CPI-U for July adjustments. The amount of
inflation/deflation for the prior year shall be calculated by dividing the most
recent CPI-U (November 30 or May 31, as appropriate) by the CPI-U as of the
effective date of this contract. This inflation/deflation factor shall then be
multiplied by the respective fees stated herein, rounding to the nearest ten
(10) dollars.
13. Mutual Cooperation. Cartus and
Client will cooperate to enable each party to perform its obligations under this
Agreement. Cartus has relied on projections and assumptions made by the Client
with respect to its relocation program when determining the services and pricing
structure to be offered to the Client. Should these projections or assumptions
change and adversely affect the volume or character of the services to be
provided by Cartus, the parties agree to re-evaluate and renegotiate in good
faith service fees and other provisions hereunder. Cartus may introduce improved
procedures and documents for the mutual benefit of both parties that do not
materially affect either party's rights and obligations.
14. Audit of
Records. Cartus will maintain complete records of all
transactions under this Agreement for a period of 6 years from the date on which
the service is rendered. Such records shall be available for audit by the Client
at the offices of Cartus during regular business hours upon reasonable prior
notice. Client may use a third party auditor for
any audit, provided such third party auditor is not a competitor of
Cartus and agrees in writing to keep Cartus’ information
confidential. Audits shall be subject to Cartus' standard audit
guidelines (available upon request). Should the Client wish to
deviate from Cartus' standard audit guidelines, additional costs may
apply.
2
15. Confidentiality. The
Client and Cartus understand that each will deliver to the other confidential
and proprietary information in performing under this Agreement, including
personal information of Client's employees, and each agrees to keep confidential
all such information received by it hereunder and treat it as it would treat its
own confidential and proprietary information. For any personal information
relating to any employee of Client receiving services under this Agreement,
Client agrees that it will obtain the informed agreement of the employee
allowing Client to release the employee's personal information to Cartus for use
in connection with services provided to that employee under this Agreement. Each
party agrees that it will not show, nor permit to be shown, any copies of, or
terms and conditions of, this Agreement or any subsequent agreements between the
parties to any third party without the prior approval of the other
party.
16. Compliance With
Laws. Each party will comply with all laws, ordinances, rules, and
regulations applicable to each respective party. Additionally, Client represents and warrants that Client,
its owners, officers, directors and employees (i) are not included on any list
maintained by the U.S. government (including the Office of Foreign Assets
Control) of persons or entities with whom financial or similar transactions are
prohibited; or (ii) subject to sanctions imposed by the
U.S. Government. Client will promptly notify Cartus in the event it the
representations in this section are inaccurate, and cooperate with Cartus with
respect of any resulting audits or investigations.
17.
Solicitation. During the Term of this Agreement, and
for a period of one (1) year following the expiration or termination of Term,
neither party shall solicit employees of the other party
having performed under or
in connection with this Agreement, without the prior written consent of the
other party. A general solicitation to the public shall not be deemed to
be a violation of this section.
18. Termination. (a)
Either party may terminate this Agreement for convenience upon written notice to
the other party, which termination shall be effective: (i) sixty [60] days after
the date on which notice of termination is mailed, or (ii) on any later date
stated in the notice. ("Termination Date") If either party terminates the
Agreement for convenience, Cartus will complete all services still in process at
the effective termination date, unless otherwise directed by the
Client.
(b) Either party may
terminate this Agreement for cause upon written notice to the other party, which
termination shall be effective immediately: (i) upon either party's breach of
the terms of this Agreement, including the Client’s failure to pay any and all
undisputed invoices which remain in arrears despite written request for payment,
or (ii) upon either party’s determination that the other party’s financial
condition has deteriorated, or may deteriorate, such that its ability to perform
under this Agreement may be delayed or adversely
affected ("Termination Date"). If the Agreement is terminated for
cause, Cartus will not be obligated to complete services in process, make any
Offers to the Client's Employees, or purchase any Homes of Employees for which
Cartus has made an Offer and Acceptance has not occurred.
(c) Except as otherwise mutually
agreed, after notice of termination is given by either party, the Client or its
designee will purchase all Inventory Homes. Cartus will be paid any equity
payments and equity loans in addition to its Direct Expenses incurred and the
fee for Appraised Value Sales or Special Homes, as appropriate, for each Home.
Such purchase of Inventory Homes by Client will occur prior to the Termination
Date if the Agreement was terminated for convenience in accordance with (a)
above, or within 5 days of the Termination Date if the Agreement was terminated
for cause in accordance with (b) above.
(d) All obligations of one party
to the other existing as of the termination date shall survive the termination
of this Agreement.
3
19. Entire
Agreement. This Agreement, together with any Exhibits,
constitutes the entire agreement between the parties hereto and supersedes all
prior understandings and agreements, written or oral, with respect to the
services contemplated hereunder. This Agreement may be amended or modified,
(including the addition of services outside the scope and intent of this
Agreement, or a waiver of any provision of this Agreement), only by a writing
signed by both parties hereto. The waiver or the failure to insist upon the
strict performance of any provision of this Agreement by either party shall not
be construed as a waiver or relinquishment of the right to rely upon such
provision on any future occasion. In the event that any provision of
this Agreement or any Exhibit shall be held invalid, illegal, or unenforceable,
such invalidity, illegality, or unenforceability shall not affect any other
provision(s) hereof and the affected provision shall be curtailed and limited
only to the extent necessary to bring such provision within the legal
requirements, and this Agreement, as so modified, shall continue in full force
and effect.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the date first set forth above.
|
|
KAMAN
CORPORATION
|
|
CARTUS
CORPORATION
|
|
|
|
|
|
|
By:
|
/s/ Xxxxxx
X. Xxxx
|
By:
|
/s/ X.X.
Xxx
|
|
|
Name:
Xxxxxx X. Xxxx
|
|
Name:
Xxxxxx X. Xxx
|
|
|
Title:
VP HR
|
|
Title:
VP, Associate General Counsel
|
|
|
Its
Authorized Signatory
|
|
Its
Authorized Signatory
|
4
EXHIBIT
A
SERVICES
AND PROCEDURES: DOMESTIC UNITED STATES
I.
Definitions
The
following terms shall have the meanings as set forth below throughout the
Agreement:
“Acceptance”
shall mean submission by the Employee of a written acceptance of Cartus’ Offer
to purchase the Employee's Home, together with all documents (properly
completed, signed and notarized) required by Cartus, within sixty (60) days of
Cartus’ Offer. The Offer shall be binding on Cartus only when all other required
information and documents are received by Cartus (or its representative, as
appropriate) and approved by Cartus.
“Amended
Value Sale” shall mean the sale of a Home by an Employee to Cartus at a price
equal to a bona fide third-party offer that is (i) higher than the Appraised
Value or (ii) acceptable to the Employee, and approved by Cartus (the “Amended
Value”).
“Appraised
Value” shall mean the average of two independent appraisals from a list of
appraisers provided by Cartus. If the two appraisals vary by more than five
percent (5%) of the higher of the two appraisals then a third independent
appraisal shall be ordered and the Appraised Value shall be computed by
averaging the two closest appraisals. If the three appraisals are
equidistant from each other, the Appraised Value shall be computed by averaging
all three appraisals.
“Appraised
Value Sale” shall mean the sale of a Home by the Employee to Cartus at a price
equal to the Home's Appraised Value.
“Assigned
Sale” shall mean assignment by the Employee to Cartus of an executed third party
contract for the sale of the Employee’s Home.
“Authorization”
shall mean the Client’s direction in writing or electronically that an Employee
is eligible to receive services under this Agreement.
“Cancellation”
shall mean the withdrawal by the Client of a bona fide
Authorization.
“Employee”
shall mean any individual designated by the Client to receive services, or for
Home Sale Services, also any other person to the extent that such person has an
interest in the Home of the designated individual.
“Equity
Payment” shall mean payment of the Employee's equity in the Home by
Cartus.
“Expiration”
shall mean the rejection of an Offer by an Employee, or the failure of the
Employee to submit to Cartus all required documentation necessary to purchase
the Home prior to the time frame described in the Offer.
“Home”
shall mean improved real estate: (i) which is owned and used by an Employee as a
principal year-round one or two family residence, including condominiums but
excluding cooperative housing and mobile homes; (ii) which contains acreage
within the norm and zoning limits for the locale or neighborhood; (iii) with
respect to which insurance is available at standard rates for normal hazards of
fire and extended coverage; (iv) with respect to which any leases can be
terminated by Cartus with no more than sixty (60) days' notice to the tenant;
(v) whose value, as determined hereunder, does not fall below One Hundred
Thousand Dollars ($100,000) or exceed Seven Hundred Fifty
Thousand Dollars ($750,000); (vi) which is not situated on or near and does not
contain any hazardous or toxic materials or gases, including but not limited to
asbestos, lead paint, mold, or radon gas, in excess of governmental guidelines,
if any; (vii) which is not sided by synthetic stucco products (commonly known as
EIFS); (viii) in which the Employee has marketable title; and (ix) with respect
to which mortgage financing is available at standard rates.
5
“Inventory
Period” shall commence on the day that Cartus signs a contract of sale to
purchase an Employee's Home and shall end on the day that Cartus closes the
resale of such Home to a third-party purchaser. During the Inventory Period, a
Home shall be an "Inventory Home.”
“Offer”
shall mean a written offer from Cartus to the Employee to purchase the
Employee's Home.
“Special
Home ” shall mean improved real estate that (i) does not fit one or more of the
characteristics set forth in the definition of “Home” above, (ii) is an Assigned
Sale or Amended Value Sale that failed to close, or (iii) involves special
considerations or requires material deviations from the procedures set forth in
this Agreement. In the event Cartus agrees to handle a Special Home, Cartus will
provide services in accordance with the terms, conditions and Special Home
pricing set forth herein, or as otherwise agreed in writing.
“Vacate
Date” shall mean the date on which the Employee vacates the Home, which date
shall be within sixty (60) days of Acceptance. Upon Acceptance the Employee will
notify Cartus in writing of the Vacate Date.
II.
Home Sale Services
A. Marketing
Assistance. Cartus will assist the Employee in marketing the
Home by providing counseling and direction on the Client’s relocation policy
and, with the advice of a local real estate broker/agent, on the listing price,
sales strategies, corrective maintenance, etc., and in responding to any offers
received in order to maximize the net price received by the Employee. The
Employee is not obligated to use any real estate broker recommended by Cartus
and can request that Cartus refer the Employee to any broker of the Employee’s
choice meeting Cartus’ qualification criteria. Cartus will provide marketing
assistance services for a period of 60 days from the beginning of the provision
of service.
B.
Home Sale
Services. Cartus will support the
sale of the Employee’s Home in accordance with the following
procedures:
(1) Amended Value
Sale. If during the Acceptance period the Employee locates a
buyer for the Home and has neither executed a binder, contract, or other
agreement with that buyer nor accepted any payment in connection therewith,
Cartus will purchase the Home from the Employee at the net price offered by the
buyer and then sell the Home to the buyer at that same net price. Should the
sale to the buyer fail to close, Cartus will take the Home into its inventory at
the Amended Value purchase price, for which the Client agrees to pay the fee
listed for a Special Home.
(2) Appraised Value
Sale. If the Employee is unsuccessful in selling the Home
during the Acceptance Period, Cartus will purchase the Employee’s Home at the
Appraised Value and will use its best efforts to sell the Home at the most
advantageous price and terms.
(3) Assigned
Sale. If the Employee locates a buyer for the Home and,
contrary to the procedures applying to the Amended Value Sale, has nevertheless
executed a binder, contract, or other agreement with that buyer, or has accepted
any payment in connection therewith, Cartus will accept an assignment from the
Employee of the sale to the buyer and close the sale to the buyer. If the sale
to the buyer falls through (before the expiration/removal of contingencies in
the contract with the buyer), Cartus will buy the Home from the Employee and pay
the Employee the Appraised Value for the Home, for which the Client agrees to
pay the fee listed for a Special Home.
6
(4) Equity
Loan. Cartus will process an Employee’s equity loan in
accordance with the Client’s employee relocation policy. Cartus will be repaid
from the proceeds of sale of an Employee’s Home. The Xxxxxxxx-Xxxxx
Act of 2002 (the "Act") prohibits loans by publicly traded companies (including
equity loans) to any of its directors or executive officers (as defined in the
Securities and Exchange Act of 1934 and the regulations thereunder). If Client
is subject to the provisions of the Act, the Client agrees that no loan which it
authorizes under this Agreement will violate the Act. In addition, if
the Client is subject to the provisions of the Act, the Client agrees to
indicate on any authorization for any such director or executive officer
"EXECUTIVE OFFICER--NO LOANS AUTHORIZED."
C. Sale of the Home by the
Employee. Nothing in this
Agreement is intended to be deemed as a guarantee by Cartus that the Employee
will successfully sell the Home within a specific period of time at a particular
price, it being expressly understood that Cartus’ services are designed and
intended to assist the Employee in complying with Client’s relocation policy
and, with the advice of a local real estate broker/agent, in developing and
implementing an objective marketing strategy for selling the Home.
III. Destination
Services
A. Home
Finding. Cartus will assist the Employee with the coordination
of home finding efforts and closing services through qualified local real estate
sources. The Employee is not obligated to use any real estate source
recommended by Cartus and can request that Cartus refer the Employee to any
source of the Employee’s choice meeting Cartus’ qualification
criteria.
IV. Mortgage
Services
When the
Client determines that an Employee is eligible for mortgage assistance, Cartus
will utilize the services of an affiliated company, PHH Home Loans LLC d/b/a
Cartus Home Loans (“Cartus Home Loans”), to provide Employees of the Client with
mortgage assistance services as follows:
A. Authorization. Upon
Authorization to Cartus Home Loans (with a copy to Cartus), Cartus Home Loans
will offer mortgage assistance to the eligible Employee.
B. Approval. Upon
completion of its review of the Employee’s mortgage application and other
documentation, Cartus Home Loans will make a determination whether a mortgage
loan should be made to the Employee (and any co-borrower); if the loan is
granted, the loan amount, duration, interest rate and other terms and conditions
governing such loan shall be communicated to the Employee. Final approval of the
mortgage loan shall be at the sole discretion of Cartus Home Loans in compliance
with its mortgage loan policies.
C. Mortgage Loan
Closing. If the Employee (and any co-borrower) has
successfully fulfilled all of the obligations with respect to the mortgage loan
application and commitment procedure, Cartus Home Loans will arrange for the
closing of the loan. The Employee (and any co-borrower) will execute all
instruments, including but not limited to the mortgage instrument, mortgage or
promissory note, or similar documents, and will pay any fees and closing costs
required by Cartus Home Loans.
D. Direct Xxxx. If the
Client has elected to participate in Cartus Home Loans’ Direct Xxxx program,
then at time of closing Cartus Home Loans will pay on behalf of the Employee all
reimbursable closing costs described in the Client’s current benefit policy,
which shall be supplied to Cartus Home Loans. This arrangement shall be
administered by Cartus Home Loans only if the Employee obtains a mortgage
through Cartus Home Loans.
7
V. Moving
Services
A. Procedures. Cartus
will facilitate shipment of the Employee's household goods by: counseling the
Employee on the procedures and benefits of the program; selecting a qualified
carrier with which Cartus has a relationship; booking the move; coordinating the
packing, loading, pickup, storage, and delivery, as appropriate, of the
Employee's household goods; and assisting the Employee in filing and resolving
any claims resulting from damage in transit. Upon completion of the move, Cartus
will manage the audit and payment of the carrier's invoice. As a registered
moving broker, Cartus may receive commissions in connection with the procuring
of moving services.
B. Insurance. If requested by
Client, Cartus shall maintain as a Direct Expense, insurance covering the
Employee’s household goods against loss, damage, or injury. The
insurance is a full value policy, covering loss or damage during transportation
and storage in transit including coverage for Pairs and Sets, Mechanical and
Electrical Derangement, Mold and Mildew, Acts of God and Nature, and substantial
loss of value. The total shipment value will be based on $10 per
pound of the entire shipment plus the total value of items of unusual value as
described herein. The total shipment value computation may be increased in
accordance with industry standards but will not decrease. Employees
will be required to provide a list of any items of unusual value (exceeding
$2,500.00 in value) including but not limited to antiques, artwork, high value
electronics, Persian or oriental carpets and collectibles which will be added to
the base valuation to ensure appropriate coverage. The settlement for
individual items that may be damaged will be based upon the lesser of either the
cost to repair the item to pre-move condition or its actual replacement
cost. There is no consideration for a decrease in value due to
depreciation of an item. There is no deductible to the employee of
Client. Such coverage may be subject to policy
exclusions. Other than maintaining the foregoing insurance, Cartus
shall not be responsible for any loss or damage to any household
goods or personal effects sustained during any portion of the move.
VI. Fees
A. Services Fees. Service
fees for all services shall be billable upon receipt of an
Authorization. The Client will pay Cartus the service fees as stated
below, plus Direct Expenses. Cartus may also receive a referral fee, or like
payment from its suppliers in connection with services performed.
|
(1)
|
Home
Sale Services
|
|
|
|
|
(a)
|
Marketing
Assistance
|
|
No fee for Employees
Authorized for Home Sale Services
|
|
|
(b)
|
Appraised Value
Sales
|
|
$ [***]
|
|
|
(c)
|
Amended Value Sales
and Assigned Sales
|
|
$ [***]
|
|
|
(d)
|
Special
Homes
|
|
$ [***] plus the
Client will pay an Inventory Fee of $[***] for each month or part thereof
that the Home is an Inventory Home after 90 days
|
|
|
(e)
|
Equity
Loans
|
|
$ [***] per
Loan
|
|
|
(f)
|
Home Sale
Cancellations
|
|
$ [***] for each
Authorization which has been canceled
|
8
|
|
(g)
|
Home Sale
Expirations
|
|
$ [***] for each
Offer which has expired
|
|
(2)
|
Destination
Services
|
|
|
(a)
|
Home
Finding
|
|
No additional
fee
|
|
(3)
|
Moving
Services
|
|
|
(a)
|
For each Move
completed within
the continental
United States (excluding Hawaii):
|
|
No fee for Employees
Authorized for Home Sale Services
|
|
|
(b)
|
Permanent Storage.
Payable upon delivery of goods out of permanent storage:
|
|
$ [***]
|
|
(4)
|
Mortgage
Services
|
|
No additional
fee
|
B. Non-Network Fee. Cartus anticipates
collecting a referral fee for each Employee who owns a Home in the departure
location and will be receiving Home Sale services. As anticipated revenue, such
referral fees collected by Cartus have been used as the basis for providing
reduced pricing to the Client.
In the
destination location, in each case where Cartus is unable to collect a
referral for reasons such as (i) there was no commission paid to a
real estate broker, (ii) Cartus was not positioned to collect a referral fee due
to actions or inactions of the Employee or Client (such as an Employee who owns
a home in the departure location who chooses to rent in the destination location
rather than buy a new home), (iii) Cartus is prohibited by law, ordinance,
regulations or other binding governmental action from obtaining a referral fee,
(iv) an Employee has registered with Cartus, but the Home has not
been placed with a real estate broker within six (6) months, or (v) a Home
placed with a real estate broker does not close within twelve (12) months, then
the Client agrees to pay Cartus a non-network fee of $[***] a referral is
subsequently collected, a refund of the non-network fee will be given to the
Client. Where Cartus does not collect a referral fee due to the
actions or inactions of Cartus, no such non-network fee shall be
due.
VII. Xxxxxxxx
and Funding
X.
Xxxxxxxx.
(1) Direct Expenses.
Client will reimburse Cartus for all Direct Expenses incurred by Cartus during
the performance of this Agreement. Direct Expenses are defined as
follows: all costs which are attributable to the provision of service to an
Employee, including, but not limited to, appraisals, broker’s market analyses
(“BMA”) and inspections, brokerage commissions, title and title search fees,
transfer taxes, equity payments, mortgage payoffs, mortgage interest, interest
on mortgage payoffs (will be at the greater of the mortgage interest rate or
Prime plus 1% (compounded monthly)), insurance premiums, property taxes,
overnight delivery charges, postage, wire transfer fees, cost of improvements,
cost of removal and mitigation of hazardous materials or gases (such as
asbestos, lead paint, radon gas, or urea formaldehyde insulation and replacement
with suitable replacement materials), repair and maintenance costs, utilities,
loss on resale, buyer incentive costs, real estate closing costs, fees charged
by local homefinding or rental providers, including costs of tours and finders
fees, and all costs incurred by Cartus in handling and moving an Employee’s
goods, including but not limited to packing, transporting, storing, unpacking,
and insurance whether charged by a carrier or otherwise.
9
(2) Home Sale
Xxxxxxxx. Cartus
will invoice, and the Client will pay, the following amounts:
(a) Advance Billing. For
Appraised Value Sales, Amended Value Sales, Assigned Sales and Homes which are
Special Homes (except Buyer Value Option Sale that fail to close), a billing
equal to nine percent (9%) of the Appraised Value or sale price, if appropriate,
of all Homes for which Cartus has issued an Offer, as an advance against Cartus’
management fee and/or Direct Expenses, plus an additional eight percent (8%) of
Appraised Value or sales price, if appropriate, after the Home is in inventory
180 days and every 180 days thereafter. If the Client requests that
Cartus pay an Employee an amount in excess of the Appraised Value, Amended Value
or Assigned Sale price, the Client will also advance to Cartus an amount equal
to that excess.
(b) Final Billing. A billing on
each Home closed, showing the appropriate fee due Cartus as stated above, all
Direct Expenses (and Inventory Fees for Special Homes only) with regard to that
Home, and a reconciliation of advances or amounts paid by the Client with regard
to that Home, resulting in a credit due the Client or a payment due Cartus. Any
net resale gains shall be a credit to the Client and any proceeds of the sale of
Homes may be applied against Cartus' fees and Direct Expenses. If
expenses and/or credits are incurred, that were not ascertained at the time of
issuance of the Home’s closing invoice, these expenses and/or credits will be
issued to Client on a separate invoice.
(c) Miscellaneous: A billing for
any other costs reasonably incurred by Cartus at the Client’s request or
subsequent to the final billing.
(3)
Billing
Frequency. Except as otherwise provided herein, Cartus will
invoice the Client on a monthly basis (Twelve invoicing cycles per calendar
year).
B. Funding. Except as
otherwise provided herein, Cartus will make all disbursements of reimbursable
employee expenses, third party payments, equity payments, and other payments
required under this Agreement using Cartus' funds. Cartus will invoice the
Client for all disbursements and payments, together with interest on such
amounts at the Prime Rate plus 1% (compounded monthly).
10
