Exhibit 10.22
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 PHH Corporation, a
Maryland corporation, with is principal place of business at 0 Xxxxxx Xxx,
Xxxxxxxxxx, XX 00000 (together with any subsidiaries and affiliates of PHH,
"PHH"), 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 (together with any subsidiaries and affiliates of Avis Fleet, "Avis
Fleet"). Avis and the Transferred Businesses (as hereinafter defined) are
hereinafter referred to jointly as "Avis Fleet." PHH and Avis Fleet are
hereinafter referred to jointly as the "Parties" and individually as "Party."
WITNESSETH:
WHEREAS, 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, as amended by
the Amendment to Agreement and Plan of Merger and Reorganization, dated as of
June 30, 1999 (as amended, the "Merger Agreement") pursuant to which PHH and PHH
Holdings are transferring and assigning to Avis PHH's fleet and fuel card
businesses (the "Transferred Businesses") in a merger of PHH Holdings and Avis
(the "Merger"), in exchange for the assumption by Avis of certain liabilities
and obligations associated with the Transferred Businesses and the issuance by
Avis to PHH of shares of Avis preferred stock on such terms and conditions as
are contained therein; and
WHEREAS, the Merger Agreement provides that PHH and Avis Fleet shall enter
into an agreement relating to certain transition services to be provided by Avis
Fleet to PHH in relation to PHH's mobility operations in the United Kingdom and
certain retained equipment leases and this Agreement is entered into in order to
fulfill that provision.
NOW, THEREFORE, in consideration of good and valuable consideration, the
Parties agree as follows:
ARTICLE I
SERVICES
1.01 Provision of Services. Subject to the terms and conditions of this
Agreement, Avis Fleet agrees to provide to PHH and PHH agrees to purchase from
Avis Fleet 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
Avis Fleet specifically agrees to provide to PHH 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, PHH may find it desirable to
request, in addition to the Services described in Exhibit A, additional services
to be made available to PHH by Avis Fleet (hereinafter referred to as "Other
Services"). It is understood and agreed, however, that Avis Fleet is under no
obligation to provide PHH with any such Other Services. Upon PHH'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) Avis Fleet will provide Services
on terms which are similar in nature, volume and scope to those which PHH
provided to the Transferred Businesses immediately prior to the Merger.
(b) Notwithstanding any other provisions of this Agreement, Avis Fleet shall not
be required to provide to PHH 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 Avis Fleet and any business unit or function of
Avis Fleet or otherwise cause an unreasonable or material burden to Avis Fleet.
The parties hereby agree that no services specifically detailed in Exhibit A to
this Agreement are unreasonable or a material burden to Avis Fleet.
1.04 Subcontracting of Services. PHH understands that prior to the date of this
Agreement, Avis Fleet may have subcontracted with third parties to provide
services in connection with all or any portion of the Services to be provided
hereunder. Avis Fleet 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 PHH at actual cost without
markup.
1.05 PHH Acknowledgment and Representation. PHH understands that the Services
provided hereunder are transitional in nature, other than the Services of
Equipment Leases set forth on Exhibit A-2. PHH understands that Avis Fleet is
not in the business of providing Services to third parties, other than its
Services described in Exhibit A-2, and has no long-term interest in continuing
this Agreement. PHH agrees to make a prompt transition to its own internal
organization or other third party suppliers for the provision of the Services.
ARTICLE II
UK SERVICES
2.01 In the United Kingdom only the Articles of this Agreement shall apply
mutatis mutandis to the Services provided by Avis Fleet to PHH for the purposes
of PHH's continuing mobility businesses in the United Kingdom. In relation to
Article 13, the
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parties agree that an equivalent body to the Centre for Public Resources Model
ADR Procedure - Meditation of Business Disputes shall be used in connection with
any mediation in relation to any disputes arising out of the provision of the
Services under this Agreement in the United Kingdom.
ARTICLE III
TERM AND RENEWAL
3.01 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; provided that, the Services described in Exhibit A-2 shall
continue until the leases related to the Leased Equipment (as defined in Exhibit
A-2) have terminated.
3.02 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
for 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 for otherwise in Exhibit A, in the
event PHH desires to renew any Service, PHH shall provide Avis Fleet 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) PHH 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. Avis Fleet shall respond in writing to PHH within
fifteen (15) business days following receipt of such Notice of Service Renewal,
and indicate what Service(s), if any, Avis Fleet 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.
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ARTICLE IV
COMPENSATION
4.01 Compensation. PHH shall pay Avis compensation for Services based on the
fees and expenses set forth in Exhibit A, or any amendment to Exhibit A, for
each Service, or any amendments to Exhibit A. If no fee is specified for a
particular Service, the cost of such Service to PHH shall be based on the total
cost to Avis Fleet of providing such Service. "Total cost" shall be defined as
direct and/or indirect costs incurred by Avis Fleet as a result of supplying
Services to PHH and shall be calculated as follows: (depending on which of the
following calculations is most readily determinable for the Service provided):
(i) historical usage by PHH; or (ii) Avis Fleet allocations based upon Avis
Fleet's standard accounting practices; or (iii) Avis Fleet management estimates
of Services provided to PHH.
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 Avis Fleet for the period of time during which such employee services
are provided based on the amount of time reasonably estimated by Avis Fleet that
such employees devoted to providing any such employee services to PHH.
(ii) For expenses of Avis Fleet employees traveling away from home and overnight
on behalf of PHH, 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 Avis Fleet.
(iv) For printing, reproduction and postage charges and overnight courier
incurred in connection with Services provided under this Agreement, the actual
cost incurred by Avis Fleet.
(v) For supplies, service parts and other materials purchased by Avis Fleet to
perform Services under this Agreement, the actual cost incurred by Avis Fleet.
(vi) For equipment leased from third parties in connection with Services
provided under this Agreement, the actual cost incurred by Avis Fleet.
4.02 Billing and Payment Terms. Amounts due under this Agreement will be billed
and paid for in the following manner: Statements will be rendered to PHH on a
monthly basis and in reasonable detail as reasonably requested by PHH 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.
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ARTICLE V
INTERRUPTION OF SERVICES
5.01 Avis Fleet 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, Avis Fleet 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
Avis Fleet shall deem it necessary to suspend delivery of a Service hereunder
for purposes of inspection, maintenance, repair, or replacement of equipment
parts or structures, Avis Fleet shall not be obligated to deliver such Service
during such periods, provided that Avis Fleet 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 Avis Fleet scheduled interruptions or maintenance,
Avis Fleet shall have provided, when feasible, reasonable advance written notice
thereof. If such interruption of Services has a significant negative impact on
PHH's business operation and Avis Fleet cannot readily reinstate the Service
involved, Avis Fleet will use reasonable efforts to assist PHH in securing
alternative services to minimize such negative impact on PHH.
ARTICLE VI
PERSONNEL
6.01 Supervision and Compensation. Avis Fleet shall select, employ, pay,
supervise, direct and discharge all Avis Fleet personnel providing Services
hereunder. Subject to Section 3.01, Avis Fleet shall be solely responsible for
the payment of all fringe benefits and any other direct and indirect
compensation for Avis Fleet 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. Avis Fleet shall be an independent contractor in
connection with the performance of Services hereunder and none of Avis Fleet's
employees performing services in connection therewith shall be deemed employees
of PHH.
6.02 Staffing of Personnel. Avis Fleet shall be solely responsible for assigning
personnel to perform the Services, which personnel will be instructed by Avis
Fleet to perform the Services in a timely, efficient and workmanlike manner.
6.03 Standard of Care. Notwithstanding anything to the contrary contained in
this Agreement, it is understood and agreed that Avis Fleet is not in the
business of providing Services to third parties and that the standard of care to
which Avis Fleet and any Avis Fleet employees or agents performing Services
hereunder shall be accountable for shall be the standard of care used by Avis
Fleet in furnishing these Services to its own internal organization and
affiliates, and under no circumstances shall Avis Fleet or its employees or
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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 VII
INGRESS AND EGRESS
Avis Fleet shall at all times during the term of this Agreement have the right
of ingress to and egress from the facilities and premises of PHH 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 PHH.
ARTICLE VIII
CONFIDENTIALITY
8.01 Confidential Information. As used in this Agreement, PHH Confidential
Information and Avis Fleet Confidential Information are defined as follows:
A. "PHH Confidential Information" means information disclosed
confidentially by PHH to Avis Fleet under the terms and for purposes of this
Agreement after the Effective Date 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 PHH, and (c)
the disclosure by the third party is not otherwise unlawful;
(iii) information developed by Avis Fleet independent of any
confidential PHH information which is known by Avis Fleet on the Effective Date
and/or disclosed by PHH under this Agreement; and
(iv) information which is developed solely by a business which is
being transferred to Avis Fleet.
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B. "Avis Fleet Confidential Information" means information disclosed
confidentially by Avis Fleet to PHH under the terms and for purposes of this
Agreement after the Effective Date except for:
(i) information which is or becomes publicly available through no
act of PHH, from and after the date of public availability;
(ii) information disclosed to PHH by a third party, provided (a)
under the circumstances of disclosure PHH 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 PHH independent of any confidential
Avis Fleet information which is known by PHH on the Effective Date and/or
disclosed by Avis Fleet thereafter;
(iv) information which is inherently disclosed in marketing of a
product by PHH 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
PHH on the Effective Date.
C. PHH 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 PHH Confidential Information, respectively.
The foregoing restrictions shall expire with respect to business information
which is Avis Fleet Confidential Information and PHH Confidential Information
two (2) years after the date of disclosure of such information, unless and to
the extent the 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 PHH 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 PHH Confidential Information known by Avis Fleet or
Avis Fleet Confidential Information known by PHH 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.
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ARTICLE IX
DISCLAIMER AND LIMITATION OF LIABILITY
9.01 Disclaimer of Warranties/Limitation of Direct Damages. EXCEPT AS EXPRESSLY
SET FORTH IN THIS AGREEMENT, AVIS FLEET 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 PHH, Avis Fleet's maximum,
cumulative and sole liability to PHH for such direct damages shall be an amount
up to the fee paid by PHH to Avis Fleet (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 PHH and
shall only be payable by Avis Fleet if such loss results from the willful
misconduct or gross negligence on the part of Avis Fleet or any officer,
director or employee of Avis Fleet. PHH 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 shall Avis Fleet be
liable to PHH in connection with the provision of subcontracted services.
9.02 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 X
INDEMNIFICATION
10.01 PHH agrees to indemnify, defend and hold harmless Avis Fleet, its
directors, officers, employees, affiliates, 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 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 PHH shall have no
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obligation to indemnify pursuant to Section 10.01 for any claims arising out of
the gross negligence or willful misconduct of Avis Fleet or any of its
employees. This indemnity applies to claims, actions and demands for which Avis
Fleet 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.
10.02 PHH shall reimburse Avis Fleet and indemnify, defend and hold harmless
Avis Fleet, 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 PHH act or omission
connected with the provision of any Service by Avis Fleet in the performance of
this Agreement or caused by any PHH product or information provided to Avis
Fleet in connection with the Services being provided by Avis Fleet or by any
employee of PHH.
10.03 If Avis Fleet intends to claim indemnification under Section 9.01 or 9.02,
Avis Fleet will promptly notify PHH in writing of any claim, action, or demand
for which Avis Fleet intends to claim indemnification. In addition, Avis Fleet
will promptly notify PHH in writing if Avis Fleet elects to waive its right to
have PHH defend the claim, action, or demand. If Avis Fleet does not waive its
right to have PHH defend the claim, action, or demand, Avis Fleet agrees that
PHH will control the defense of the claim, action, or demand. Avis Fleet will
cooperate fully with PHH and its legal representatives in the investigation and
defense of any claim, action, or demand covered by this indemnification. Avis
Fleet will permit PHH to settle any claim, action, or demand and agrees that PHH
will control the settlement, provided, however that such settlement does not
adversely affect Avis Fleet's rights under this Agreement or impose any
obligations on Avis Fleet in addition to those stated in this Agreement. PHH, in
the defense of any claims, actions or demands in which Avis Fleet 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 Avis Fleet of a release from all liability with respect to the
claim, action, or demand. No such claim, action, or demand will be settled by
Avis Fleet without the prior written consent of PHH.
ARTICLE XI
RECORDS AND INSPECTION RIGHTS
11.01 Records. Avis Fleet 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 XII
TERMINATION
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12.01 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
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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.
12.02 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.
12.03 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;
B. PHH will be responsible to Avis Fleet for reasonable and proper
termination charges which will include all reasonable cancellation costs
incurred by Avis Fleet 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 PHH without cause or by Avis
Fleet with cause. Invoices for such charges shall be prepared in reasonable
detail by Avis Fleet and payment shall be due thirty (30) days from the date
thereof.
C. PHH shall remain liable for payment to Avis Fleet for Services
furnished prior to the effective date of termination.
ARTICLE XIII
DISPUTE RESOLUTION
13.01 Mediation and Binding Arbitration. (a) U.S. Services. If a dispute,
controversy or claim arises between Avis Fleet and PHH arising out of or
relating to the interpretation or breach or validity of this Agreement or
Exhibit A hereto ("Dispute"), Avis Fleet and PHH agree to use the procedures
outlined in this Article XIII, as the exclusive method of resolving the Dispute.
(b) U.K. Services. Avis Fleet and PHH shall use the Centre for Dispute
Resolution in London in connection with any mediation or arbitration in relation
to any disputes arising under this Agreement and the parties hereby agree to the
jurisdiction of that body and agree to abide by any decision made by it.
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13.02 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.
13.03 Submission to Mediation. (a) U.S. Services. 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.
(b) U.K. Services. 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 the Centre for Dispute Resolution in London. The costs of
such dispute resolution are to be borne equally by the parties.
13.04 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 with 20 days 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.
13.05 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.
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13.06 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.
13.07 Cost of Arbitration. The costs of arbitration shall be apportioned between
Avis Fleet and PHH 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.
13.08 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 participated in
negotiation and mediation under this Article.
13.09 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.
13.10 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.
13.11 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 XIV
MISCELLANEOUS
14.01 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
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Party shall be extended by the period of such delay. Notwithstanding the
foregoing, in no event shall PHH be relieved of its payment obligations to Avis
Fleet for Services delivered, regardless of cause.
14.02 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.
14.03 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.
14.04 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; provided that the parties may, by mutual agreement, agree to submit to
UK legal principles if an arbitration proceeding is undertaken in the United
Kingdom pursuant to ss. 13.01(b).
14.05 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 Avis Fleet and PHH relating
to services to be provided by Avis Fleet to PHH 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.
14.06 Notices. Any notices, request, 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:
14
If to PHH: To the person designated on Exhibit A as the PHH contact for a
specific Service or to:
Xxxx X. Xxxx
Vice President, Legal
PHH Corporation
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
with a copy to:
Xxxxxx X. Xxxxxx
SVP 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:
General Counsel
Avis Rent A Car, Inc.
World Headquarters
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
14.07 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.
14.08 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.
14.09 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.
14.10 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 FOLLOWS]
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ACCEPTED AND AGREED TO:
AVIS FLEET LEASING AND
MANAGEMENT CORPORATION:
By: ___________________________
Name:
Title:
PHH CORPORATION
By: ___________________________
Name:
Title:
