Exhibit 10.11
NOVATION
REVERSE CORPORATE SERVICES AGREEMENT
This Corporate Services Agreement (this "Agreement") is effective as of
September 27, 2005 (the "Effective Date"), by and between FIDELITY NATIONAL
TITLE GROUP, INC., a Delaware corporation ("FNT" or "RECEIVING PARTY"), and
FIDELITY NATIONAL INFORMATION SERVICES, INC., a Delaware corporation ("FIS" or
"PROVIDING PARTY"). FNT and FIS shall be referred to together in this Agreement
as the "Parties" and individually as a "Party."
WHEREAS, FIS previously entered into a certain Stock Purchase
Agreement, dated as of December 23, 2004 (the "Stock Purchase Agreement"), with
Fidelity National Financial, Inc., a Delaware corporation ("FNF"), pursuant to
which certain purchasers (the "Purchasers") purchased from FIS 50,000,000 shares
of FIS' common stock, subject to the terms and conditions of the Stock Purchase
Agreement; and
WHEREAS, a condition to the closing of the transactions contemplated by
the Stock Purchase Agreement required that FIS and FNF enter into certain
Intercompany Agreements (as defined in the Stock Purchase Agreement), and that
the form and substance of such Intercompany Agreements be satisfactory to the
Parties and the representatives of the Purchasers; and
WHEREAS, pursuant to the requirements in the Stock Purchase Agreement,
FIS previously entered into a Reverse Corporate Services Agreement dated as of
March 4, 2005 (the "FNF Agreement") with FNF, as the parent company of FNT and
its subsidiaries, for the provision of certain corporate services, as more fully
described herein; and
WHEREAS, pursuant to an Assignment and Assumption Agreement of even
date herewith between FNF and FNT, FNT has assumed, with the consent of FIS, all
of FNF's rights and obligations under the FNF Agreement; and
WHEREAS, FIS and FNT wish to enter into a novation of the rights and
obligations under the FNF Agreement, as assumed by and assigned to FNT, so that
FNT is the clear party in interest with respect to the corporate services to be
provided by FIS, as more particularly described herein;
NOW THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto agree as follows:
ARTICLE I
CORPORATE SERVICES
1.1 Corporate Services. This Agreement sets forth the terms and
conditions for the provision by PROVIDING PARTY to RECEIVING PARTY of various
corporate services and products, as more fully described below and in Schedule
1.1(a) attached hereto (the Scheduled
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Services, the Omitted Services, the Resumed Services and Special Projects (as
defined below), collectively, the "Corporate Services").
(a) PROVIDING PARTY, through its Subsidiaries (as defined
below) and their respective employees, agents or contractors, shall provide or
cause to be provided to RECEIVING PARTY and its Subsidiaries, and at the request
of RECEIVING PARTY, to FNF and its Subsidiaries (excluding for these purposes
FIS and all of its Subsidiaries), all services set forth on Schedule 1.1(a) (the
"Scheduled Services") on and after the Effective Date (with such services to be
provided to the RECEIVING PARTY's Subsidiaries as they become Subsidiaries of
RECEIVING PARTY, and to FNF's Subsidiaries as they become Subsidiaries of FNF,
in each case subject to the exception in clause (ii) of Section 1.2(a)).
RECEIVING PARTY shall pay fees to PROVIDING PARTY for providing the Scheduled
Services or causing the Scheduled Services to be provided as set forth in
Schedule 1.1(a). "Subsidiary" means, with respect to any person, any corporation
or other legal entity of which such person controls or owns, directly or
indirectly, more than fifty percent (50%) of the stock or other equity interest
entitled to vote on the election of the members to the board of directors or
similar governing body. For purposes of this Agreement, the use of the term
"RECEVING PARTY and its Subsidiaries" or "RECEIVING PARTY or its Subsidiaries",
and terms of similar import, shall be deemed to include FNF and its Subsidiaries
(excluding for these purposes FIS and all of its Subsidiaries), so that FNF and
its Subsidiaries (other than FIS and its Subsidiaries) are able to receive
services hereunder from PROVIDING PARTY, as requested by FNF and the RECEIVING
PARTY.
(b) PROVIDING PARTY, through its Subsidiaries and their
respective employees, agents or contractors, shall provide or cause to be
provided to RECEIVING PARTY and its Subsidiaries all services that PROVIDING
PARTY was performing for RECEIVING PARTY and its Subsidiaries as of the
Effective Date that pertain to and are a part of Scheduled Services under
Section 1.1(a) (with such services to be provided to the RECEIVING PARTY's
Subsidiaries as they become Subsidiaries of RECEIVING PARTY, and to FNF's
Subsidiaries as they become Subsidiaries of FNF, subject to the exception in
clause (ii) of Section 1.2(a)), which are not expressly included in the list of
Scheduled Services in Schedule 1.1(a), but are required to conduct the business
of RECEIVING PARTY and its Subsidiaries (the "Omitted Services"), unless
RECEIVING PARTY consents in writing to the termination of such services. Such
Omitted Services shall be added to Schedule 1.1(a) and thereby become Scheduled
Services, as soon as reasonably practicable after the Effective Date by the
Parties. In the event that RECEIVING PARTY or its Subsidiaries had been
allocated charges or otherwise paid PROVIDING PARTY or its Subsidiaries for such
Omitted Services immediately prior to the Effective Date, RECEIVING PARTY shall
pay to PROVIDING PARTY for providing the Omitted Services or causing the Omitted
Services to be provided hereunder fees equal to the actual fees paid for such
Omitted Services immediately preceding the Effective Date; provided, that
payment of such fees by the RECEIVING PARTY for the Omitted Services provided
hereunder shall be retroactive to the first day of the calendar quarter in which
either Party identifies such services as Omitted Services, but in no event shall
RECEIVING PARTY be required to pay for any Omitted Services provided hereunder
by the PROVIDING PARTY or its Subsidiaries prior to the Effective Date. In the
event that RECEIVING PARTY or its Subsidiaries had not been allocated charges or
otherwise paid PROVIDING PARTY or its Subsidiaries for such Omitted Services
immediately prior to the Effective Date, the Parties shall negotiate in good
faith a fee to be based on the cost of providing such Omitted Services, which
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shall in no event be less than the Default Fee (as defined below); provided,
that payment of such fees by the RECEIVING PARTY for the Omitted Services
provided hereunder by the RECEIVING PARTY shall be retroactive to the first day
of the calendar quarter in which either the Party identifies such services as
Omitted Services, but in no event shall RECEIVING PARTY be required to pay for
any such Omitted Services provided hereunder by the PROVIDING PARTY or its
Subsidiaries prior to the Effective Date. The "Default Fee" means an amount
equal to one hundred fifty percent (150%) of the salary of each full-time
employee, on an hourly basis, who provides the applicable Corporate Service or
Transition Assistance (as defined in Section 2.3).
(c) At RECEIVING PARTY's written request, PROVIDING PARTY,
through its Subsidiaries and their respective employees, agents or contractors,
shall use commercially reasonable efforts to provide or cause to be provided to
RECEIVING PARTY and its Subsidiaries any Scheduled Service that has been
terminated at RECEIVING PARTY's request pursuant to Section 2.2 (the "Resumed
Services"); provided, that PROVIDING PARTY shall have no obligation to provide a
Resumed Service if providing such Resumed Service will have a material adverse
impact on the other Corporate Services. Schedule 1.1(a) shall from time to time
be amended to reflect the resumption of a Resumed Service and the Resumed
Service shall be set forth thereon as a Scheduled Service.
(d) At RECEIVING PARTY's written request, PROVIDING PARTY,
through its Subsidiaries and their respective employees, agents or contractors,
shall use commercially reasonable efforts to provide additional corporate
services that are not described in the Schedule 1.1(a) and that are neither
Omitted Services nor Resumed Services ("Special Projects"). RECEIVING PARTY
shall submit a written request to PROVIDING PARTY specifying the nature of the
Special Project and requesting an estimate of the costs applicable for such
Special Project and the expected time frame for completion. PROVIDING PARTY
shall respond promptly to such written request, but in no event later than
twenty (20) days, with a written estimate of the cost of providing such Special
Project and the expected time frame for completion (the "Cost Estimate"). If
RECEIVING PARTY provides written approval of the Cost Estimate within ten (10)
days after PROVIDING PARTY delivers the Cost Estimate, then within a
commercially reasonable time after receipt of RECEIVING PARTY's written request,
PROVIDING PARTY shall begin providing the Special Project; provided, that
PROVIDING PARTY shall have no obligation to provide a Special Project where, in
its reasonable discretion and prior to providing the Cost Estimate, it has
determined and notified RECEIVING PARTY in writing that (i) it would not be
feasible to provide such Special Project, given reasonable priority to other
demands on its resources and capacity both under this Agreement or otherwise or
(ii) it lacks the experience or qualifications to provide such Special Project.
1.2 Provision of Corporate Services; Excused Performance.
(a) To the extent commercially reasonable, the Parties will
work together and begin the process of migrating the Corporate Services from
PROVIDING PARTY to RECEIVING PARTY or one or more of its Subsidiaries or a third
party (at RECEIVING PARTY's direction) such that the completion of the migration
of the Corporate Services from PROVIDING PARTY to RECEIVING PARTY or one or more
of its Subsidiaries or a third party, as the case may be, shall occur prior to
the end of the Term. PROVIDING PARTY shall
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provide or cause to be provided each of the Corporate Services through the
expiration of the Term, except (i) as automatically modified by earlier
termination of a Corporate Service by RECEIVING PARTY in accordance with this
Agreement, (ii) for Corporate Services to or for the benefit of any entity which
ceases to be a Subsidiary of RECEIVING PARTY (or, if applicable, a Subsidiary of
FNF (other than FIS and its Subsidiaries) prior to the end of the Term, or (iii)
as otherwise agreed to by the Parties in writing.
(b) All obligations of PROVIDING PARTY with respect to any one
or more individual Corporate Services or Transition Assistance under this
Agreement shall be excused to the extent and only for so long as a failure by
PROVIDING PARTY with respect thereto is directly attributable to and caused
specifically by a failure by RECEIVING PARTY or any of its Subsidiaries to meet
their obligations (including any performance) under any other Intercompany
Agreement (as defined in the Stock Purchase Agreement) or under the Master
Information Technology Services Agreement dated as of September 27, 2005 by and
between Fidelity Information Services, Inc. and FNT (as novated pursuant to the
Assignment and Assumption Agreement dated as of September 27, 2005 between FNT
and Fidelity National Financial, Inc.).
1.3 Third Party Vendors; Consents.
(a) PROVIDING PARTY shall use its commercially reasonable
efforts to keep and maintain in effect its relationships with its vendors that
are integral to the provision of the Corporate Services. PROVIDING PARTY shall
use commercially reasonable efforts to procure any waivers, permits, consents or
sublicenses required by third party licensors, vendors or service providers
under existing agreements with such third parties in order to provide any
Corporate Services hereunder ("Third Party Consents"). In the event that
PROVIDING PARTY is unable to procure such Third Party Consents on commercially
reasonable terms, PROVIDING PARTY agrees to so notify RECEIVING PARTY, and to
assist RECEIVING PARTY with the transition to another vendor. If, after the
Effective Date, any one or more vendors (i) terminates its contractual
relationship with PROVIDING PARTY or ceases to provide the products or services
associated with the Corporate Services or (ii) notifies PROVIDING PARTY of its
desire or plan to terminate its contractual relationship with PROVIDING PARTY or
(iii) ceases providing the products or services associated with the Corporate
Services, then, in either case, PROVIDING PARTY agrees to so notify RECEIVING
PARTY, and to assist RECEIVING PARTY with the transition to another vendor so
that RECEIVING PARTY may continue to receive similar products and services.
(b) PROVIDING PARTY shall not be required to transfer or
assign to RECEIVING PARTY any third party software licenses or any hardware
owned by PROVIDING PARTY or its Subsidiaries in connection with the provision of
the Corporate Services or at the conclusion of the Term.
1.4 Dispute Resolution.
(a) Amicable Resolution. PROVIDING PARTY and RECEIVING PARTY
mutually desire that friendly collaboration will continue between them.
Accordingly, they will try to resolve in an amicable manner all disagreements
and misunderstandings connected with their respective rights and obligations
under this Agreement, including any amendments hereto.
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In furtherance thereof, in the event of any dispute or disagreement (a
"Dispute") between PROVIDING PARTY and RECEIVING PARTY in connection with this
Agreement (including, without limitation, the standards of performance, delay of
performance or non-performance of obligations, or payment or non-payment of fees
hereunder), then the Dispute, upon written request of either Party, will be
referred for resolution to the president (or similar position) of the division
implicated by the matter for each of PROVIDING PARTY and RECEIVING PARTY, which
presidents will have fifteen (15) days to resolve such Dispute. If the
presidents of the relevant divisions for each of PROVIDING PARTY and RECEIVING
PARTY do not agree to a resolution of such Dispute within fifteen (15) days
after the reference of the matter to them, such presidents of the relevant
divisions will refer such matter to the president of each of PROVIDING PARTY and
RECEIVING PARTY for final resolution. Notwithstanding anything to the contrary
in this Section 1.4, any amendment to the terms of this Agreement may only be
effected in accordance with Section 11.10.
(b) Arbitration. In the event that the Dispute is not resolved
in a friendly manner as set forth in Section 1.4(a), either Party involved in
the Dispute may submit the dispute to binding arbitration pursuant to this
Section 1.4(b). All Disputes submitted to arbitration pursuant to this Section
1.4(b) shall be resolved in accordance with the Commercial Arbitration Rules of
the American Arbitration Association, unless the Parties involved mutually agree
to utilize an alternate set of rules, in which event all references herein to
the American Arbitration Association shall be deemed modified accordingly.
Expedited rules shall apply regardless of the amount at issue. Arbitration
proceedings hereunder may be initiated by either Party making a written request
to the American Arbitration Association, together with any appropriate filing
fee, at the office of the American Arbitration Association in Orlando, Florida.
All arbitration proceedings shall be held in the city of Jacksonville, Florida
in a location to be specified by the arbitrators (or any place agreed to by the
Parties and the arbitrators). The arbitration shall be by a single qualified
arbitrator experienced in the matters at issue, such arbitrator to be mutually
agreed upon by PROVIDING PARTY and RECEIVING PARTY. If PROVIDING PARTY and
RECEIVING PARTY fail to agree on an arbitrator within thirty (30) days after
notice of commencement of arbitration, the American Arbitration Association
shall, upon the request of any Party to the Dispute, appoint the arbitrator. Any
order or determination of the arbitral tribunal shall be final and binding upon
the Parties to the arbitration as to matters submitted and may be enforced by
any Party to the Dispute in any court having jurisdiction over the subject
matter or over any of the Parties. All costs and expenses incurred in connection
with any such arbitration proceeding (including reasonable attorneys' fees)
shall be borne by the Party incurring such costs. The use of any alternative
dispute resolution procedures hereunder will not be construed under the
doctrines of laches, waiver or estoppel to affect adversely the rights of either
Party.
(c) Non-Exclusive Remedy. Nothing in this Section 1.4 will
prevent either PROVIDING PARTY or RECEIVING PARTY from immediately seeking
injunctive or interim relief in the event (i) of any actual or threatened breach
of any of the provisions of Article VIII or (ii) that the Dispute relates to, or
involves a claim of, actual or threatened infringement of intellectual property.
All such actions for injunctive or interim relief shall be brought in a court of
competent jurisdiction in accordance with Section 11.6. Such remedy shall not be
deemed to be the exclusive remedy for breach of this Agreement, and further
remedies may be pursued in accordance with Section 1.4(a) and Section 1.4(b)
above.
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(d) Commencement of Dispute Resolution Procedure.
Notwithstanding anything to the contrary in this Agreement, PROVIDING PARTY and
RECEIVING PARTY, but none of their respective Subsidiaries or affiliates, are
entitled to commence a dispute resolution procedure under this Agreement,
whether pursuant to Article XI, this Section 1.4 or otherwise, and each Party
will cause its respective affiliates not to commence any dispute resolution
procedure other than through such Party as provided in this Section 1.4(d).
(e) Compensation. RECEIVING PARTY shall continue to make all
payments due and owing under Article III for Corporate Services not the subject
of a Dispute and shall not off-set such fees by the amount of fees for Corporate
Services that are the subject of the Dispute.
1.5 Standard of Services.
(a) PROVIDING PARTY shall perform the Corporate Services for
RECEIVING PARTY in a professional and competent manner, using standards of
performance consistent with its performance of such services for itself.
(b) During the Term, PROVIDING PARTY shall maintain a disaster
recovery program for the Corporate Services substantially consistent with the
disaster recovery program in place for such Corporate Services as of the
Effective Date. For the avoidance of doubt, the disaster recovery program
maintained by PROVIDING PARTY will not include a business continuity program.
(c) If RECEIVING PARTY provides PROVIDING PARTY with written
notice ("Shortfall Notice") of the occurrence of any Significant Service
Shortfall (as defined below), as determined by RECEIVING PARTY in good faith,
PROVIDING PARTY shall rectify such Significant Service Shortfall as soon as
reasonably possible. For purposes of this Section 1.5(c), a "Significant Service
Shortfall" shall be deemed to have occurred if the timing or quality of
performance of Corporate Services provided by PROVIDING PARTY hereunder falls
below the standard required by Section 1.5(a) hereof; provided that PROVIDING
PARTY's obligations under this Agreement shall be relieved to the extent, and
for the duration of, any force majeure event as set forth in Article V.
1.6 Response Time. PROVIDING PARTY shall respond to and resolve any
problems in connection with the Corporate Services for RECEIVING PARTY within a
commercially reasonable period of time, using response and proposed resolution
times consistent with its response and resolution of such problems for itself.
1.7 Ownership of Materials; Results and Proceeds. All data and
information submitted to PROVIDING PARTY by RECEIVING PARTY, in connection with
the Corporate Services or the Transition Assistance (as defined in Section 2.3)
(the "RECEIVING PARTY Data"), and all results and proceeds of the Corporate
Services and the Transition Assistance with regard to the RECEIVING PARTY Data,
is and will remain, as between the Parties, the property of the RECEIVING PARTY.
The PROVIDING PARTY shall not and shall not permit its Subsidiaries to use the
RECEIVING PARTY Data for any purpose other than to provide the Corporate
Services or Transition Assistance.
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ARTICLE II
TERM AND TRANSITION ASSISTANCE
2.1 Term. The term (the "Term") of this Agreement shall commence as of
the date hereof and shall continue until the date on which the last of the
Scheduled Services under this Agreement is terminated or the date on which this
Agreement is terminated by mutual agreement of the Parties, whichever is earlier
(in either case, the "Termination Date"); provided, however, that in no event
shall the Term:
(a) expire later than the date that is six (6) months after
(i) any Sale of FIS (as defined below) or any IPO (as defined below) or (ii) the
exercise by the Sponsor Group (as defined in the Stockholders Agreement
hereinafter defined) of exchange rights under Section 4.2 of the Stockholders
Agreement, or
(b) continue, with respect to any entity that ceases to be a
Subsidiary of RECEIVING PARTY (or in the case of FNF, a Subsidiary of FNF) prior
to the end of the Term, from and after the date that such entity ceases to be a
Subsidiary of RECEIVING PARTY (or in the case of FNF, a Subsidiary of FNF).
For purposes of this Agreement, (i) the term "Sale of FIS" means an acquisition
by any Person (within the meaning of Section 3(a)(9) of the Securities and
Exchange Act of 1934, as amended (the "Exchange Act") and used in Sections 13(d)
and 14(d) thereof ("Person")) of Beneficial Ownership (within the meaning of
Rule 13d-3 under the Exchange Act ("Beneficial Ownership")) of 50% or more of
either the then outstanding shares of FIS common stock (the "Outstanding FIS
Common Stock") or the combined voting power of the then outstanding voting
securities of FIS entitled to vote generally in the election of directors (the
"Outstanding FIS Voting Securities"); excluding, however, the following: (A) any
acquisition directly from FIS, other than an acquisition by virtue of the
exercise of a conversion privilege unless the security being so converted was
itself acquired directly from FIS, (B) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by FIS or a member of the FIS
Group, or (C) any acquisition of Outstanding FIS Common Stock by one or more
Subsidiaries of RECEIVING PARTY or of FNF; (ii) the term "IPO" means an offering
and sale to the public of any shares or equity securities of FIS or any of its
Subsidiaries pursuant to a registration statement in the United States; and
(iii) the term "Stockholders Agreement" means that certain Stockholders
Agreement to be dated on or about March 9, 2005 by and among RECEIVING PARTY and
the holders of its common stock.
2.2 Termination.
(a) If RECEIVING PARTY is not able to complete its transition
of the Corporate Services by the Termination Date, then upon written notice
provided to PROVIDING PARTY at least thirty (30) days prior to the Termination
Date, RECEIVING PARTY shall have the right to request and cause PROVIDING PARTY
to provide up to thirty (30) days of additional Corporate Services to RECEIVING
PARTY; provided, that RECEIVING PARTY shall pay for all such additional
Corporate Services.
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(b) If RECEIVING PARTY wishes to terminate a Corporate Service
(or a portion thereof) on a date that is earlier than the Termination Date,
RECEIVING PARTY shall provide written notice (the "Termination Notice") to
PROVIDING PARTY of a proposed termination date for such Corporate Service (or
portion thereof), at least ninety (90) days prior to such proposed termination
date. Upon receipt of such notice, PROVIDING PARTY shall promptly provide notice
to RECEIVING PARTY (the "Termination Dispute Notice") in the event that the
PROVIDING PARTY believes in good faith that, notwithstanding the PROVIDING PARTY
using its commercially reasonable efforts, the requested termination will have a
material adverse impact on other Corporate Services and the scope of such
adverse impact. In such event, the Parties will resolve the dispute in
accordance with Section 1.4. If PROVIDING PARTY does not provide the Termination
Dispute Notice, based on the standards set forth above, within ten (10) days of
the date on which the Termination Notice was received, then, effective on the
termination date proposed by RECEIVING PARTY in its Termination Notice, such
Corporate Service (or portion thereof) shall be discontinued (thereafter, a
"Discontinued Corporate Service") and deemed deleted from the Scheduled Services
to be provided hereunder and thereafter, this Agreement shall be of no further
force and effect with respect to the Discontinued Corporate Service (or portion
thereof), except as to obligations accrued prior to the date of discontinuation
of such Corporate Service (or portion thereof). Upon the occurrence of any
Discontinued Corporate Service, the Parties shall promptly update Schedule
1.1(a) to reflect the discontinuation, and the Corporate Service Fees shall be
adjusted in accordance therewith and the provisions of Article III.
Notwithstanding anything to the contrary contained herein, at any time that
employees of FIS move to a department within FNT or FNF (an "Employee Shift"), a
proportional portion of the relevant Corporate Service shall be deemed
automatically terminated. If a Corporate Service, or portion thereof, is
terminated as a result of an Employee Shift, then such termination shall take
effect as of the date of the Employee Shift, and the adjustment in Corporate
Service Fees shall also take effect as of the date of the Employee Shift.
(c) If all Corporate Services shall have been terminated under
this Section 2.2 prior to the expiration of the Term, then either Party shall
have the right to terminate this Agreement by giving written notice to the other
Party, which termination shall be effective upon delivery as provided in Section
6.1.
2.3 Transition Assistance. In preparation for the discontinuation of
any Corporate Service provided under this Agreement, PROVIDING PARTY shall,
consistent with its obligations to provide Corporate Services hereunder and with
the cooperation and assistance of RECEIVING PARTY, use commercially reasonable
efforts to provide such knowledge transfer services and to take such steps as
are reasonably required in order to facilitate a smooth and efficient transition
and/or migration of records to the RECEIVING PARTY or its Subsidiaries (or at
RECEIVING PARTY's direction, to a third party) and responsibilities so as to
minimize any disruption of services ("Transition Assistance"). RECEIVING PARTY
shall cooperate with PROVIDING PARTY to allow PROVIDING PARTY to complete the
Transition Assistance as early as is commercially reasonable to do so. Fees for
any Transition Assistance shall be determined in accordance with the calculation
formula and methods applicable to the Scheduled Services that are most similar
in nature to the Transition Assistance being so provided, as set forth on the
applicable section of Schedule 1.1(a).
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2.4 Return of Materials. As a Corporate Service or Transition
Assistance is terminated, each Party will return all materials and property
owned by the other Party, including, without limitation, all RECEIVING PARTY
Data, if any, and materials and property of a proprietary nature involving a
Party or its Subsidiaries (or, if applicable, in the case of RECEIVING PARTY,
FNF or its Subsidiaries) relevant to the provision or receipt of that Corporate
Service or Transition Assistance and no longer needed regarding the performance
of other Corporate Services or other Transition Assistance under this Agreement,
and will do so (and will cause its Subsidiaries and if applicable, its
affiliates to do so) within thirty (30) days after the applicable termination.
Upon the end of the Term, each Party will return all material and property of a
proprietary nature involving the other Party or its Subsidiaries (or, if
applicable, its affiliates), in its possession or control (or the possession or
control of an affiliate) within thirty (30) days after the end of the Term. In
addition, upon RECEIVING PARTY's request, PROVIDING PARTY agrees to provide to
RECEIVING PARTY copies of RECEIVING PARTY's Data, files and records on magnetic
media, or such other media as the Parties shall agree upon, to the extent
practicable. PROVIDING PARTY may retain archival copies of RECEIVING PARTY's
Data, files and records.
ARTICLE III
COMPENSATION AND PAYMENT ARRANGEMENTS FOR CORPORATE SERVICES
AND CORPORATE MARKS
3.1 Compensation for Corporate Services.
(a) In accordance with the payment terms described in Section
3.2 below, RECEIVING PARTY agrees to timely pay PROVIDING PARTY, as compensation
for the Corporate Services provided hereunder, all fees as contemplated in
Section 1.1 (the "Corporate Service Fees") and in Section 2.3 (the "Transition
Assistance Fees").
(b) Without limiting the foregoing, the parties acknowledge
that RECEIVING PARTY is also obligated to pay, or reimburse PROVIDING PARTY for
its payment of, all Out of Pocket Costs (as defined below); provided, however,
that the incurrence of any liability by RECEIVING PARTY or any of its
Subsidiaries for any New Out of Pocket Cost (as defined below) that requires the
payment by RECEIVING PARTY or one of its Subsidiaries of more than $50,000, on
an annualized basis, shall require the prior written approval of a full-time
employee of RECEIVING PARTY or one of its Subsidiaries. For purposes hereof, the
term "Out of Pocket Costs" means all fees, costs or other expenses payable by
RECEIVING PARTY or its Subsidiaries to third parties that are not affiliates of
PROVIDING PARTY in connection with Services provided hereunder; and "New Out of
Pocket Cost" means any Out of Pocket Cost incurred after the Effective Date that
is not a continuation of services provided to FNT or its Subsidiaries, or to FNF
or its Subsidiaries, in the ordinary course of business consistent with past
practices and for which RECEIVING PARTY had paid or reimbursed a portion thereof
prior to the Effective Date.
3.2 Payment Terms. The PROVIDING PARTY shall invoice the RECEIVING
PARTY on a monthly basis in arrears for Corporate Service Fees, plus the
Transition Assistance Fees, as calculated in accordance with Section 3.1 and
Schedule 1.1(a). In addition, the PROVIDING PARTY shall promptly notify the
RECEIVING PARTY, no more frequently than
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monthly, of the aggregate amount of Out of Pocket Costs to be reimbursed or
paid. The RECEIVING PARTY shall pay by electronic funds transfer or other method
satisfactory to PROVIDING PARTY and RECEIVING PARTY, in full, the monthly amount
so invoiced and the Out of Pocket Costs incurred, within thirty (30) days after
the date on which the PROVIDING PARTY's monthly invoice or notification of Out
of Pocket Costs, as the case may be, was received. All invoices shall include,
without limitation, the category of applicable Corporate Service or Transition
Assistance Service (as the case may be), a brief description of the Out of
Pocket Costs (if applicable), the billing period, and such other information as
RECEIVING PARTY may reasonably request. Should RECEIVING PARTY dispute any
portion of the amount due on any invoice or require any adjustment to an
invoiced amount, or dispute any Out of Pocket Costs for which it received
notification, then RECEIVING PARTY shall notify PROVIDING PARTY in writing of
the nature and basis of the dispute and/or adjustment as soon as reasonably
possible using, if necessary, the dispute resolution procedures set forth in
Section 1.4. The Parties shall use their reasonable best efforts to resolve the
dispute prior to the payment due date.
3.3 Audit Rights. Upon reasonable advance notice from RECEIVING PARTY,
PROVIDING PARTY shall permit RECEIVING PARTY to perform annual audits of
PROVIDING PARTY's records only with respect to amounts invoiced and Out of
Pocket Costs invoiced pursuant to this Article III. Such audits shall be
conducted during PROVIDING PARTY's regular office hours and without disruption
to PROVIDING PARTY's business operations and shall be performed at RECEIVING
PARTY's sole expense.
ARTICLE IV
LIMITATION OF LIABILITY
4.1 LIMITATION OF LIABILITY. THE LIABILITY OF EITHER PARTY FOR A CLAIM
ASSERTED BY THE OTHER PARTY BASED ON BREACH OF ANY COVENANT, AGREEMENT OR
UNDERTAKING REQUIRED BY THIS AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATE, THE
FEES PAYABLE BY RECEIVING PARTY TO PROVIDING PARTY DURING THE ONE (1) YEAR
PERIOD PRECEDING THE BREACH FOR THE PARTICULAR CORPORATE SERVICE AFFECTED BY
SUCH BREACH UNDER THIS AGREEMENT; PROVIDED, THAT SUCH LIMITATION SHALL NOT APPLY
IN RESPECT OF ANY CLAIMS BASED ON A PARTY'S (i) GROSS NEGLIGENCE, (ii) WILLFUL
MISCONDUCT, (iii) IMPROPER USE OR DISCLOSURE OF CUSTOMER INFORMATION, (iv)
VIOLATIONS OF LAW OR (v) INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF A
PERSON OR ENTITY WHO IS NOT A PARTY HERETO OR THE SUBSIDIARY OF A PARTY HERETO
(OR, IN THE CASE OF THE RECEIVING PARTY, FNF OR A SUBSIDIARY OF FNF).
4.2 DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY
INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGE OF ANY KIND WHATSOEVER;
PROVIDED, HOWEVER, THAT TO THE EXTENT AN INDEMNIFIED PARTY UNDER ARTICLE X IS
REQUIRED TO PAY ANY SPECIAL, INCIDENTAL, INDIRECT, COLLATERAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES OR LOST PROFITS TO A PERSON OR ENTITY WHO IS NOT A PARTY OR A
SUBSIDIARY OF THE INDEMNIFIED PARTY (OR IN THE CASE OF THE RECEIVING PARTY, FNF
OR A
10
SUBSIDIARY OF FNF) IN CONNECTION WITH A THIRD PARTY CLAIM, SUCH DAMAGES WILL
CONSTITUTE DIRECT DAMAGES AND WILL NOT BE SUBJECT TO THE LIMITATION SET FORTH IN
THIS ARTICLE IV.
ARTICLE V
FORCE MAJEURE
Neither Party shall be held liable for any delay or failure in
performance of any part of this Agreement from any cause beyond its reasonable
control and without its fault or negligence, including, but not limited to, acts
of God, acts of civil or military authority, embargoes, epidemics, war,
terrorist acts, riots, insurrections, fires, explosions, earthquakes,
hurricanes, tornadoes, nuclear accidents, floods, strikes, terrorism and power
blackouts. Upon the occurrence of a condition described in this Article, the
Party whose performance is prevented shall give written notice to the other
Party, and the Parties shall promptly confer, in good faith, to agree upon
equitable, reasonable action to minimize the impact, on both Parties, of such
conditions.
ARTICLE VI
NOTICES AND DEMANDS
6.1 Notices. Except as otherwise provided under this Agreement
(including Schedule 1.1(a)), all notices, demands or requests which may be given
by any Party to the other Party shall be in writing and shall be deemed to have
been duly given on the date delivered in person, or sent via telefax, or on the
next business day if sent by overnight courier, or on the date of the third
business day after deposit, postage prepaid, in the United States Mail via
Certified Mail return receipt requested, and addressed as set forth below:
If to RECEIVING PARTY, to:
Fidelity National Title Group, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
If to PROVIDING PARTY, to:
Fidelity National Information Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
11
prior to the Sale of FIS (unless such sale is to THL, TPG or their affiliates)
or any IPO, with copies to:
Xxxxxx X. Xxx Partners, L.P.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx and Xxxx Xxxxx
Facsimile: (000) 000-0000
and
Texas Pacific Group
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx and Xxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
The address to which such notices, demands, requests, elections or other
communications are to be given by either Party may be changed by written notice
given by such Party to the other Party pursuant to Section 6.1 and this Section
6.2.
ARTICLE VII
REMEDIES
7.1 Remedies Upon Material Breach. In the event of material breach of
any provision of this Agreement by a Party, the non-defaulting Party shall give
the defaulting Party written notice, and:
(a) If such breach is for RECEIVING PARTY's non-payment of an
amount that is not in dispute, the defaulting Party shall cure the breach within
thirty (30) calendar days of such notice. If the defaulting Party does not cure
such breach by such date, then the defaulting Party shall pay the non-defaulting
Party the undisputed amount, any interest that has accrued hereunder through the
expiration of the cure period plus an additional amount of interest equal to
four percent (4%) per annum above the "prime rate" as announced in the most
recent edition of the Wall Street Journal. The Parties agree that this rate of
interest constitutes reasonable liquidated damages and not an unenforceable
penalty.
(b) If such breach is for any other material failure to
perform in accordance with this Agreement, the defaulting Party shall cure such
breach within thirty (30) calendar days of the date of such notice. If the
defaulting Party does not cure such breach within such period, then the
defaulting Party shall pay the non-defaulting Party all of the non-defaulting
Party's actual damages, subject to Article IV above.
7.2 Survival Upon Expiration or Termination. The provisions of Section
1.4 (Dispute Resolution), Section 2.4 (Return of Materials), Article IV
(Limitation of Liability), Article VI (Notices and Demands), this Section 7.2,
Article VIII (Confidentiality), Article X (Indemnification) and Article XI
(Miscellaneous) shall survive the termination or expiration of this Agreement
unless otherwise agreed to in writing by both Parties.
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ARTICLE VIII
CONFIDENTIALITY
8.1 Confidential Information. Each Party shall use at least the same
standard of care in the protection of Confidential Information of the other
Party as it uses to protect its own confidential or proprietary information;
provided that such Confidential Information shall be protected in at least a
reasonable manner. For purposes of this Agreement, "Confidential Information"
includes all confidential or proprietary information and documentation of either
Party, including the terms of this Agreement, including with respect to each
Party, all of its software, data, financial information all reports, exhibits
and other documentation prepared by any of its Subsidiaries or affiliates. Each
Party shall use the Confidential Information of the other Party only in
connection with the purposes of this Agreement and shall make such Confidential
Information available only to its employees, subcontractors, or agents having a
"need to know" with respect to such purpose. Each Party shall advise its
respective employees, subcontractors, and agents of such Party's obligations
under this Agreement. The obligations in this Section 8.1 will not restrict
disclosure by a Party pursuant to applicable law, or by order or request of any
court or government agency; provided, that prior to such disclosure the
receiving Party shall (a) immediately give notice to the disclosing Party, (b)
cooperate with the disclosing Party in challenging the right to such access and
(c) only provide such information as is required by law, such order or a final,
non-appealable ruling of a court of proper jurisdiction Confidential Information
of a Party will not be afforded the protection of this Article VIII if such
Confidential Information was (A) developed by the other Party independently as
shown by its written business records regularly kept, (B) rightfully obtained by
the other Party without restriction from a third party, (C) publicly available
other than through the fault or negligence of the other Party or (D) released by
the disclosing Party without restriction to anyone.
8.2 Work Product Privilege. RECEIVING PARTY represents and PROVIDING
PARTY acknowledges that, in the course of providing Corporate Services pursuant
to this Agreement, PROVIDING PARTY may have access to (a) documents, data,
databases or communications that are subject to attorney client privilege and/or
(b) privileged work product prepared by or on behalf of the affiliates of
RECEIVING PARTY in anticipation of litigation with third parties (collectively,
the "Privileged Work Product") and RECEIVING PARTY represents and PROVIDING
PARTY understands that all Privileged Work Product is protected from disclosure
by Rule 26 of the Federal Rules of Civil Procedure and the equivalent rules and
regulations under the law chosen to govern the construction of this Agreement.
RECEIVING PARTY represents and PROVIDING PARTY understands the importance of
maintaining the strict confidentiality of the Privileged Work Product to protect
the attorney client privilege, work product doctrine and other privileges and
rights associated with such Privileged Work Product pursuant to such Rule 26 and
the equivalent rules and regulations under the law chosen to govern the
construction of this Agreement. After PROVIDING PARTY is notified or otherwise
becomes aware that documents, data, database, or communications are Privileged
Work Product, only PROVIDING PARTY personnel for whom such access is necessary
for the purposes of providing Services to RECEIVING PARTY as provided in this
Agreement shall have access to such Privileged Work Product. Should PROVIDING
PARTY ever be notified of any judicial or other proceeding seeking to obtain
access to Privileged Work Product, PROVIDING PARTY shall (A) immediately give
notice to RECEIVING PARTY, (B) cooperate with RECEIVING PARTY in challenging the
right to such access and (C) only provide such information as is
13
required by a final, non-appealable ruling of a court of proper jurisdiction.
RECEIVING PARTY shall pay all of the cost incurred by PROVIDING PARTY in
complying with the immediately preceding sentence. RECEIVING PARTY has the right
and duty to represent PROVIDING PARTY in such resistance or to select and
compensate counsel to so represent PROVIDING PARTY or to reimburse PROVIDING
PARTY for reasonable attorneys' fees and expenses as such fees and expenses are
incurred in resisting such access. If PROVIDING PARTY is ultimately required,
pursuant to an order of a court of competent jurisdiction, to produce documents,
disclose data, or otherwise act in contravention of the confidentiality
obligations imposed in this Article VIII, or otherwise with respect to
maintaining the confidentiality, proprietary nature, and secrecy of Privileged
Work Product, PROVIDING PARTY is not liable for breach of such obligation to the
extent such liability does not result from failure of PROVIDING PARTY to abide
by the terms of this Article VIII. All Privileged Work Product is the property
of RECEIVING PARTY and will be deemed Confidential Information, except as
specifically authorized in this Agreement or as shall be required by law.
8.3 Unauthorized Acts. Each Party shall (a) notify the other Party
promptly of any unauthorized possession, use, or knowledge of any Confidential
Information by any person which shall become known to it, any attempt by any
person to gain possession of Confidential Information without authorization or
any attempt to use or acquire knowledge of any Confidential Information without
authorization (collectively, "Unauthorized Access"), (b) promptly furnish to the
other Party full details of the Unauthorized Access and use reasonable efforts
to assist the other Party in investigating or preventing the reoccurrence of any
Unauthorized Access, (c) cooperate with the other Party in any litigation and
investigation against third parties deemed necessary by such Party to protect
its proprietary rights, and (d) use commercially reasonable efforts to prevent a
reoccurrence of any such Unauthorized Access.
8.4 Publicity. Except as required by law or national stock exchange
rule or as allowed by any Ancillary Agreement, neither Party shall issue any
press release, distribute any advertising, or make any public announcement or
disclosure (a) identifying the other Party by name, trademark or otherwise or
(b) concerning this Agreement without the other Party's prior written consent.
Notwithstanding the foregoing sentence, in the event either Party is required to
issue a press release relating to this Agreement or any of the transactions
contemplated by this Agreement, or by the laws or regulations of any
governmental authority, agency or self-regulatory agency, such Party shall (A)
give notice and a copy of the proposed press release to the other Party as far
in advance as reasonably possible, but in any event not less than five (5) days
prior to publication of such press release and (B) make any changes to such
press release reasonably requested by the other Party. In addition, RECEIVING
PARTY may communicate the existence of the business relationship contemplated by
the terms of this Agreement internally within PROVIDING PARTY's organization and
orally and in writing communicate PROVIDING PARTY's identity as a reference with
potential and existing customers.
8.5 Data Privacy. (a) Where, in connection with this Agreement,
PROVIDING PARTY processes or stores information about a living individual that
is held in automatically processable form (for example in a computerized
database) or in a structured manual filing system ("Personal Data"), on behalf
of any Subsidiaries of RECEIVING PARTY (or FNF or its Subsidiaries) or their
clients, then PROVIDING PARTY shall implement appropriate measures to protect
those personal data against accidental or unlawful destruction or accidental
loss,
14
alteration, unauthorized disclosure or access and shall use such data solely for
purposes of carrying out its obligations under this Agreement.
(b) RECEIVING PARTY may instruct PROVIDING PARTY, where
PROVIDING PARTY processes Personal Data on behalf of Subsidiaries of RECEIVING
PARTY (or FNF or its Subsidiaries), to take such steps to preserve data privacy
in the processing of those Personal Data as are reasonably necessary for the
performance of this Agreement.
(c) Subsidiaries of RECEIVING PARTY (or FNF or its
Subsidiaries) may, in connection with this Agreement, collect Personal Data in
relation to PROVIDING PARTY and PROVIDING PARTY's employees, directors and other
officers involved in providing Corporate Services hereunder. Such Personal Data
may be collected from PROVIDING PARTY, its employees, its directors, its
officers, or from other (for example, published) sources; and some limited
personal data may be collected indirectly at RECEIVING PARTY's, or Subsidiaries
of RECEIVING PARTY's (or FNF's or its Subsidiaries'), locations from monitoring
devices or by other means (e.g., telephone logs, closed circuit TV and door
entry systems). Nothing in this Section 8.5(c) obligates PROVIDING PARTY or
PROVIDING PARTY's employees, directors or other officers to provide Personal
Data requested by RECEIVING PARTY. The Subsidiaries of RECEIVING PARTY (or FNF
or its Subsidiaries, as applicable) may use and disclose any such data disclosed
by PROVIDING PARTY solely for purposes connected with this Agreement and for the
relevant purposes specified in the data privacy policy of the Subsidiary of
RECEIVING PARTY (or of FNF or one of its Subsidiaries, as applicable), a copy of
which is available on request. RECEIVING PARTY will maintain the same level of
protection for Personal Data collected from PROVIDING PARTY (and PROVIDING
PARTY's employees, directors and officers, as appropriate) as RECEIVING PARTY
maintains with its own Personal Data, and will implement appropriate
administrative, physical and technical measures to protect the personal data
collected from PROVIDING PARTY and PROVIDING PARTY's employees, directors and
other officers against accidental or unlawful destruction or accidental loss,
alternation, unauthorized disclosure or access.
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS
EXCEPT FOR THE REPRESENTATIONS, WARRANTIES AND COVENANTS EXPRESSLY MADE
IN THIS AGREEMENT, PROVIDING PARTY HAS NOT MADE AND DOES NOT HEREBY MAKE ANY
EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR COVENANTS, STATUTORY OR
OTHERWISE, OF ANY NATURE, INCLUDING WITH RESPECT TO THE WARRANTIES OF
MERCHANTABILITY, QUALITY, QUANTITY, SUITABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE OR THE RESULTS OBTAINED OF THE CONTINUING BUSINESS. ALL OTHER
REPRESENTATIONS, WARRANTIES, AND COVENANTS, EXPRESS OR IMPLIED, STATUTORY,
COMMON LAW OR OTHERWISE, OF ANY NATURE, INCLUDING WITH RESPECT TO THE WARRANTIES
OF MERCHANTABILITY, QUALITY, QUANTITY, SUITABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE OR THE RESULTS OBTAINED OF THE CONTINUING BUSINESS ARE HEREBY DISCLAIMED
BY PROVIDING PARTY.
15
ARTICLE X
INDEMNIFICATION
10.1 Indemnification.
(a) Subject to Article IV, RECEIVING PARTY will indemnify,
defend and hold harmless PROVIDING PARTY, each Subsidiary of PROVIDING PARTY,
each of their respective past and present directors, officers, employees,
agents, consultants, advisors, accountants and attorneys ("Representatives"),
and each of their respective successors and assigns (collectively, the
"PROVIDING PARTY Indemnified Parties") from and against any and all Damages (as
defined below) incurred or suffered by the PROVIDING PARTY Indemnified Parties
arising or resulting from the provision of Corporate Services hereunder, which
Damages shall be reduced to the extent of:
(i) Damages caused or contributed to by PROVIDING
PARTY's negligence, willful misconduct or violation or law; or
(ii) Damages caused or contributed to by a breach of
this Agreement by PROVIDING PARTY.
"Damages" means, subject to Article IV hereof, all losses, claims, demands,
damages, liabilities, judgments, dues, penalties, assessments, fines (civil,
criminal or administrative), costs, liens, forfeitures, settlements, fees or
expenses (including reasonable attorneys' fees and expenses and any other
expenses reasonably incurred in connection with investigating, prosecuting or
defending a claim or Action).
(b) Except as set forth in this Section 10.1(b), PROVIDING
PARTY will have no liability to RECEIVING PARTY for or in connection with any of
the Corporate Services rendered hereunder or for any actions or omissions of
PROVIDING PARTY in connection with the provision of any Corporate Services
hereunder. Subject to the provisions hereof and subject to Article IV, PROVIDING
PARTY will indemnify, defend and hold harmless RECEIVING PARTY, each Subsidiary
of RECEIVING PARTY, FNF, each Subsidiary of FNF (other than FIS and its
Subsidiaries), each of their respective past and present Representatives, and
each of their respective successors and assigns (collectively, the "RECEIVING
PARTY Indemnified Parties") from and against any and all Damages incurred or
suffered by the RECEIVING PARTY Indemnified Parties arising or resulting from
either of the following:
(i) any claim that PROVIDING PARTY's use of the
software or other intellectual property used to provide the
Corporate Services or Transition Assistance, or any results
and proceeds of such Corporate Services or Transition
Assistance, infringes, misappropriates or otherwise violates
any United States patent, copyright, trademark, trade secret
or other intellectual property rights; provided, that such
intellectual property indemnity shall not apply to the extent
that any such claim arises out of any modification to such
software or other intellectual property made by RECEIVING
PARTY without PROVIDING PARTY's authorization or
participation, or
16
(ii) PROVIDING PARTY's gross negligence, willful
misconduct, improper use or disclosure of customer information
or violations of law;
provided, that in each of the cases described in subclauses (i) through (ii)
above, the amount of Damages incurred or sustained by RECEIVING PARTY shall be
reduced to the extent such Damages shall have been caused or contributed to by
any action or omission of RECEIVING PARTY in amounts equal to RECEIVING PARTY's
equitable share of such Damages determined in accordance with its relative
culpability for such Damages or the relative fault of RECEIVING PARTY or its
Subsidiaries.
10.2 Indemnification Procedures.
(a) Claim Notice. A Party that seeks indemnity under this
Article X (an "Indemnified Party") will give written notice (a "Claim Notice")
to the Party from whom indemnification is sought (an "Indemnifying Party"),
whether the Damages sought arise from matters solely between the Parties or from
Third Party Claims. The Claim Notice must contain (i) a description and, if
known, estimated amount (the "Claimed Amount") of any Damages incurred or
reasonably expected to be incurred by the Indemnified Party, (ii) a reasonable
explanation of the basis for the Claim Notice to the extent of facts then known
by the Indemnified Party, and (iii) a demand for payment of those Damages. No
delay or deficiency on the part of the Indemnified Party in so notifying the
Indemnifying Party will relieve the Indemnifying Party of any liability for
Damages or obligation hereunder except to the extent of any Damages caused by or
arising out of such failure.
(b) Response to Notice of Claim. Within thirty (30) days after
delivery of a Claim Notice, the Indemnifying Party will deliver to the
Indemnified Party a written response in which the Indemnifying Party will
either: (i) agree that the Indemnified Party is entitled to receive all of the
Claimed Amount and, in which case, the Indemnifying Party will pay the Claimed
Amount in accordance with a payment and distribution method reasonably
acceptable to the Indemnified Party; or (ii) dispute that the Indemnified Party
is entitled to receive all or any portion of the Claimed Amount, in which case,
the Parties will resort to the dispute resolution procedures set forth in
Section 1.4.
(c) Contested Claims. In the event that the Indemnifying Party
disputes the Claimed Amount, as soon as practicable but in no event later than
ten (10) days after the receipt of the notice referenced in Section 10.2(b)(ii)
hereof, the Parties will begin the process to resolve the matter in accordance
with the dispute resolution provisions of Section 1.4 hereof. Upon ultimate
resolution thereof, the Parties will take such actions as are reasonably
necessary to comply with such agreement or instructions.
(d) Third Party Claims.
(i) In the event that the Indemnified Party receives
notice or otherwise learns of the assertion by a person or
entity who is not a Party hereto or a Subsidiary of a Party
hereto (or, in the case of RECEIVING PARTY, FNF or one of its
Subsidiaries) of any claim or the commencement of any action
(a "Third-Party Claim") with respect to which the Indemnifying
Party may be obligated to
17
provide indemnification under this Article X, the Indemnified
Party will give written notification to the Indemnifying Party
of the Third-Party Claim. Such notification will be given
within fifteen (15) days after receipt by the Indemnified
Party of notice of such Third-Party Claim, will be accompanied
by reasonable supporting documentation submitted by such third
party (to the extent then in the possession of the Indemnified
Party) and will describe in reasonable detail (to the extent
known by the Indemnified Party) the facts constituting the
basis for such Third-Party Claim and the amount of the claimed
Damages; provided, however, that no delay or deficiency on the
part of the Indemnified Party in so notifying the Indemnifying
Party will relieve the Indemnifying Party of any liability for
Damages or obligation hereunder except to the extent of any
Damages caused by or arising out of such failure. Within
twenty (20) days after delivery of such notification, the
Indemnifying Party may, upon written notice thereof to the
Indemnified Party, assume control of the defense of such
Third-Party Claim with counsel reasonably satisfactory to the
Indemnified Party. During any period in which the Indemnifying
Party has not so assumed control of such defense, the
Indemnified Party will control such defense.
(ii) The Party not controlling such defense (the
"Non-controlling Party") may participate therein at its own
expense.
(iii) The Party controlling such defense (the
"Controlling Party") will keep the Non-controlling Party
reasonably advised of the status of such Third-Party Claim and
the defense thereof and will consider in good faith
recommendations made by the Non-controlling Party with respect
thereto. The Non-controlling Party will furnish the
Controlling Party with such Information as it may have with
respect to such Third-Party Claim (including copies of any
summons, complaint or other pleading which may have been
served on such Party and any written claim, demand, invoice,
billing or other document evidencing or asserting the same)
and will otherwise cooperate with and assist the Controlling
Party in the defense of such Third-Party Claim.
(iv) The Indemnifying Party will not agree to any
settlement of, or the entry of any judgment arising from, any
such Third-Party Claim without the prior written consent of
the Indemnified Party, which consent will not be unreasonably
withheld or delayed; provided, however, that the consent of
the Indemnified Party will not be required if (A) the
Indemnifying Party agrees in writing to pay any amounts
payable pursuant to such settlement or judgment, and (B) such
settlement or judgment includes a full, complete and
unconditional release of the Indemnified Party from further
Liability. The Indemnified Party will not agree to any
settlement of, or the entry of any judgment arising from, any
such Third-Party Claim without the prior written consent of
the Indemnifying Party, which consent will not be unreasonably
withheld or delayed.
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ARTICLE XI
MISCELLANEOUS
11.1 Relationship of the Parties. The Parties declare and agree that
each Party is engaged in a business that is independent from that of the other
Party and each Party shall perform its obligations as an independent contractor.
It is expressly understood and agreed that RECEIVING PARTY and PROVIDING PARTY
are not partners, and nothing contained herein is intended to create an agency
relationship or a partnership or joint venture with respect to the Corporate
Services. Neither Party is an agent of the other and neither Party has any
authority to represent or bind the other Party as to any matters, except as
authorized herein or in writing by such other Party from time to time.
11.2 Employees. (a) PROVIDING PARTY shall be solely responsible for
payment of compensation to its employees and, as between the Parties, for its
Subsidiaries' employees and for any injury to them in the course of their
employment. PROVIDING PARTY shall assume full responsibility for payment of all
federal, state and local taxes or contributions imposed or required under
unemployment insurance, social security and income tax laws with respect to such
persons.
(b) RECEIVING PARTY shall be solely responsible for payment of
compensation to its employees and, as between the Parties, for its Subsidiaries'
employees and for any injury to them in the course of their employment.
RECEIVING PARTY shall assume full responsibility for payment of all federal,
state and local taxes or contributions imposed or required under unemployment
insurance, social security and income tax laws with respect to such persons. FNF
shall be solely responsible for payment of compensation to its employees and, as
between the Parties, for its Subsidiaries' employees and for any injury to them
in the course of their employment. FNF shall assume full responsibility for
payment of all federal, state and local taxes or contributions imposed or
required under unemployment insurance, social security and income tax laws with
respect to such persons. Without limiting the foregoing, RECEIVING PARTY
acknowledges and agrees that, as between the Parties, RECEIVING PARTY shall be
obligated to cause FNF to abide by the terms of this Section 11.2(b) and shall
be liable for any failure by FNF to comply with therewith.
11.3 Assignment. Neither Party may, in connection with a sale of an
asset to which one or more of the Corporate Services relate, assign, transfer or
convey any right, obligation or duty, in whole or in part, or of any other
interest under this Agreement relating to such Corporate Services without the
prior written consent of the other Party, provided, however, that in the event
of a Sale of FIS (as defined in Section 2.1), FIS may assign its interest in
this Agreement without the prior written consent of FNT. All obligations and
duties of a Party under this Agreement shall be binding on all successors in
interest and permitted assigns of such Party. Each Party may use its
Subsidiaries (and in the case of RECEIVING PARTY, may use FNF or its
Subsidiaries) or subcontractors to perform the Corporate Services; provided that
such use shall not relieve such assigning Party of liability for its
responsibilities and obligations.
11.4 Severability. In the event that any one or more of the provisions
contained herein shall for any reason be held to be unenforceable in any respect
under law, such unenforceability
19
shall not affect any other provision of this Agreement, and this Agreement shall
be construed as if such unenforceable provision or provisions had never been
contained herein.
11.5 Third Party Beneficiaries. The provisions of this Agreement are
for the benefit of the Parties and their affiliates and not for any other
person. However, should any third party institute proceedings, this Agreement
shall not provide any such person with any remedy, claim, liability,
reimbursement, cause of action, or other right.
11.6 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida, without giving effect to
such State's laws and principles regarding the conflict of laws. Subject to
Section 1.4, if any Dispute arises out of or in connection with this Agreement,
except as expressly contemplated by another provision of this Agreement, the
Parties irrevocably (a) consent and submit to the exclusive jurisdiction of
federal and state courts located in Jacksonville, Florida, (b) waive any
objection to that choice of forum based on venue or to the effect that the forum
is not convenient and (c) WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT
TO TRIAL OR ADJUDICATION BY JURY.
11.7 Executed in Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same document.
11.8 Construction. The headings and numbering of articles, sections and
paragraphs in this Agreement are for convenience only and shall not be construed
to define or limit any of the terms or affect the scope, meaning, or
interpretation of this Agreement or the particular Article or Section to which
they relate. This Agreement and the provisions contained herein shall not be
construed or interpreted for or against any Party because that Party drafted or
caused its legal representative to draft any of its provisions.
11.9 Entire Agreement. This Agreement, including all attachments,
constitutes the entire Agreement between the Parties with respect to the subject
matter hereof, and supersedes all prior oral or written agreements,
representations, statements, negotiations, understandings, proposals and
undertakings, with respect to the subject matter hereof.
11.10 Amendments and Waivers. (a) The Parties may amend this Agreement
only by a written agreement signed by each Party and that identifies itself as
an amendment to this Agreement. No waiver of any provisions of this Agreement
and no consent to any default under this Agreement shall be effective unless the
same shall be in writing and signed by or on behalf of the Party against whom
such waiver or consent is claimed. No course of dealing or failure of any Party
to strictly enforce any term, right or condition of this Agreement shall be
construed as a waiver of such term, right or condition. Waiver by either Party
of any default by the other Party shall not be deemed a waiver of any other
default.
(b) Notwithstanding the foregoing, at any time prior to the
Sale of FIS or any IPO, this Agreement may not be amended without the prior
written consent of THL and TPG if such amendment would: (i) affect the Term of
the Agreement, (ii) affect Section 1.5 (Standard of Services) in any manner
adverse to PROVIDING PARTY, (iii) affect Section 3.1 (Compensation
20
for Corporate Services) in any manner adverse to PROVIDING PARTY, (iv) affect
PROVIDING PARTY's limitation of liability under Article IV (Limitation of
Liability) in any manner adverse to PROVIDING PARTY, (v) affect PROVIDING
PARTY's rights under Article VII (Remedies) upon default by RECEIVING PARTY in
any manner adverse to PROVIDING PARTY, (vi) affect Article X (Indemnification)
in any manner adverse to PROVIDING PARTY, or (x) affect this Section 11.10
(Amendment). For purposes hereof, the term "THL" means Xxxxxx X. Xxx Equity Fund
V, L.P. and the term "TPG" means TPG Partners III, L.P. THL and TPG are intended
third party beneficiaries of this Agreement solely with respect to this Section
11.10(b).
11.11 Remedies Cumulative. Unless otherwise provided for under this
Agreement, all rights of termination or cancellation, or other remedies set
forth in this Agreement, are cumulative and are not intended to be exclusive of
other remedies to which the injured Party may be entitled by law or equity in
case of any breach or threatened breach by the other Party of any provision in
this Agreement. Unless otherwise provided for under this Agreement, use of one
or more remedies shall not bar use of any other remedy for the purpose of
enforcing any provision of this Agreement.
11.12 Taxes. All charges and fees to be paid to PROVIDING PARTY under
this Agreement are exclusive of any applicable taxes required by law to be
collected from the RECEIVING PARTY (including, without limitation, withholding,
sales, use, excise, or services tax, which may be assessed on the provision of
Corporate Services). In the event that a withholding, sales, use, excise, or
services tax is assessed on the provision of any of the Corporate Services under
this Agreement, RECEIVING PARTY will pay directly, reimburse or indemnify
PROVIDING PARTY for such tax, plus any applicable interest and penalties. The
Parties will cooperate with each other in determining the extent to which any
tax is due and owing under the circumstances, and shall provide and make
available to each other any resale certificate, information regarding
out-of-state use of materials, services or sale, and other exemption
certificates or information reasonably requested by either Party.
[signature page to follow]
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11.13 Changes in Law. PROVIDING PARTY's obligations to provide
Corporate Services hereunder are to provide such Corporate Services in
accordance with applicable laws as in effect on the date of this Agreement. Each
Party reserves the right to take all actions in order to ensure that the
Corporate Services and Transition Assistance are provided in accordance with any
applicable laws.
IN WITNESS WHEREOF, the Parties, acting through their authorized
officers, have caused this Agreement to be duly executed and delivered as of the
date first above written.
PROVIDING PARTY:
FIDELITY NATIONAL INFORMATION SERVICES, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President
RECEIVING PARTY:
FIDELITY NATIONAL TITLE GROUP, INC.
By /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxx X. Xxxxx
Chief Executive Officer
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DEFINITIONS AND FORMULAS
FOR PURPOSES OF CALCULATING COST ALLOCATION
For purposes of this Agreement and the Reverse Corporate Service Schedules:
"Direct Employee Compensation" of an employee means the aggregate of such
employee's salary, overtime, cash bonus and commission compensation and payroll
taxes attributable thereto.
"Departmental Costs" of a department/cost center means any and all costs
incurred by or allocated to that department/cost center other than Direct
Employee Compensation of the employees in the department/cost center, such as
office furniture and equipment, office space and facilities expenses, repairs &
maintenance expenses, rent and leasehold improvements, utilities,
telecommunications and IT equipment, insurance costs, employee benefits costs,
depreciation, amortization, real property and personal property taxes,
advertising and promotional expenses (if any), postage, courier and shipping
expenses, printing, reproduction, stationary, and office supplies, travel and
entertainment expenses, educational, training and recruiting expenses,
professional dues and subscriptions, fees, costs and expenses incurred in
connection with the Services that are included in administrative overhead, and
the other similar costs that are generally characterized as "overhead"', in each
case as allocated to the department/cost center in accordance with PROVIDING
PARTY's current overhead cost allocation policy.
"Servicing Employee" means an employee of PROVIDING PARTY or its Subsidiaries
who provides services to RECEIVING PARTY and its Subsidiaries under this
Agreement.
"Standard Allocation", for purposes of the Services provided under this
Agreement and the Schedules hereto, including the Cost Allocation section of the
Schedules, shall be calculated as follows:
1. Out of Pocket Costs incurred by or on behalf of RECEIVING
PARTY or its Subsidiary(s) are charged directly to it and are
not part of the Services under this Agreement or the payments
to be made therefor.
2. The Direct Employee Compensation of the PROVIDING PARTY
Servicing Employees shall be allocated to RECEIVING PARTY
based on the percentage of work time that each such Servicing
Employee spends in providing the applicable Services to
RECEIVING PARTY and its Subsidiaries. Allocations as of the
Closing Date will be those reflected in the data and results
of January 2005, and shall be applied to determine the
allocations hereunder on a monthly basis, with each work time
percentage and corresponding Departmental Cost percentage to
be re-examined and updated (if appropriate) at the end of each
6-month period following the Closing Date, it being understood
that any changes in the allocations must be pre-approved by
the FNT Chief Accounting Officer.
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By way of example, for a Servicing Employee of PROVIDING PARTY
who has an annual salary of $50,000, a cash bonus of $20,000,
and payroll taxes of $10,000 and who spends 40% of his work
time on providing Services under this Agreement, RECEIVING
PARTY would be allocated a Direct Employee Compensation cost
of $32,000 calculated as follows:
($50,000 + $20,000 + $10,000) x 40% = $32,000.
3. In addition to the Direct Employee Compensation, Departmental
Costs of each department/cost center of PROVIDING PARTY that
has Servicing Employees shall be allocated to RECEIVING PARTY
based on a percentage reflecting the aggregate regular
salaries of all of the Servicing Employees in that
department/cost center, in relation to the aggregate regular
salaries of all employees in the department/cost center,
taking into account the percentage of work time that each
Servicing Employee in the department/cost center spends in
providing services to RECEIVING PARTY and its Subsidiaries
hereunder.
By way of example, assume that in a PROVIDING PARTY
department/cost center, there are 20 employees, 5 of whom are
Servicing Employees who each spend 40% of the work time
providing services to RECEIVING PARTY and its Subsidiaries. If
the aggregate regular salaries of the 20 employees is
$500,000, and the aggregate regular salaries of the 5
Servicing Employees is $300,000, then we determine the portion
of the Departmental Costs that will be allocated to RECEIVING
PARTY as follows:
First, determine the aggregate regular salaries allocable to
RECEIVING PARTY:
$300,000 x 40% = $120,000.
Then, determine the portion of the Departmental Costs to be
allocated to RECEIVING PARTY based on the aggregate regular
salaries percentage:
$120,000 / $500,000 = 24%.
In this example, 24% of the Departmental Costs of this
department/cost center will be allocated to RECEIVING PARTY.
4. Except to the extent otherwise expressly provided herein, for
any given 6-month period, all Direct Employee Compensation to
be allocated shall be determined on the basis of the
applicable work time percentages for the immediately preceding
6-month period, except that the Direct Employee Compensation
allocations applicable on the Closing Date shall be based on
the work time percentages applicable for the calendar month
June 2005. At the end of each 6-month period, the work time
percentages shall be re-examined and the Direct Employee
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Compensation will be re-allocated based on the revised work
time percentages, if any. For any given 6-month, all
Departmental Costs to be allocated shall be determined on the
basis of the applicable aggregate salaries and related
percentages for the immediately preceding 6-month period,
except that the aggregate salaries and related percentages
applicable on the Closing Date shall be based on the work time
percentages and aggregate salaries applicable for the calendar
month January 2005.
5. If at any time during the Term of this Agreement RECEIVING PARTY terminates
or discontinues all or any portion of a Corporate Service prior to the end of
the Term or if any Corporate Service (or portion thereof) automatically
terminates, pursuant to Section 2.2(b) (hereinafter referred to as a
"Discontinued Service"), then effective as of the last day of the calendar month
in which such termination or discontinuation is effective, Corporate Services
Fees related to the Discontinued shall no longer be owing under this Agreement.
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