FORM OF PROPERTY MANAGEMENT AGREEMENT
Exhibit 99.6
FORM OF PROPERTY MANAGEMENT AGREEMENT
THIS AGREEMENT (this “Agreement”) dated as of June _. 2008, by and between FIDELITY
NATIONAL FINANCIAL, INC., a Delaware corporation (together with its subsidiaries, affiliates,
successors and assigns, collectively “FNF”), and LENDER PROCESSING SERVICES, INC., a
Delaware corporation (together with its subsidiaries, affiliates, successors and assigns,
collectively “LPS” or the “Manager”). FNF and LPS are herein referred to
individual as a “Party” and, collectively, the “Parties”.
WHEREAS, FNF is a party to a synthetic lease financing arrangement for the office building
known as “Building V” located at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx (the
“Property”), as set forth on various documents dated on our about June 29, 2004, including
the Master Lease Agreement, dated as of June 29, 2004, and the Master Agreement dated as of June
29, 2004, as amended by the First Omnibus Amendment dated as of November 5, 2004, the First
Amendment to Master Agreement dated as of September 24, 2004, the Second Omnibus Amendment dated as
of February 15, 2005, the Third Omnibus Amendment dated as of December 2, 2005, the Waiver
Amendment to Operative Documents dated as of April 2005, and the Fourth Omnibus Amendment dated as
of March 16, 2006 (as amended, the “Master Lease Agreement”), all among FNF, as lessee,
SunTrust Equity Funding, LLC, as lessor, certain financial institutions parties thereto, as
lenders, and SunTrust Bank, as agent (collectively, the “Lessors”); and
WHEREAS, a portion of the Property is subleased to the Manager, as subtenant, and another
portion of the Property is subleased to Fidelity National Information Services, Inc., a Georgia
corporation (“FIS”, and together with the Manager in its capacity as a tenant, each a
“Tenant” and collectively the “Tenants”), as subtenant, pursuant to Sublease
Agreements, of even date herewith between FNF, as lessor, and each of the Manager and FIS, in each
case as lessee (said Subleases, as so amended, being hereinafter referred to as the
“Subleases”); and
WHEREAS, FIS previously entered into a Property Management Agreement dated as of October 23,
2006 (the “Prior Agreement”) with FNF for the management of the Property; and
WHEREAS, in connection with the separation and spin-off of LPS from FIS, and the consummation
of the transactions contemplated by that certain Contribution and Distribution Agreement dated as
of June ___, 2008 (the “Distribution Agreement”), between FIS and LPS, FIS terminated the Prior
Agreement in contemplation of the simultaneous effectiveness of this Agreement in its stead,
effective as of the Spin-off (as defined in the Distribution Agreement); and
WHEREAS, FNF wishes to retain the services of the Manager as manager of the Property with
responsibilities for managing, operating, maintaining, and servicing the Property and for the
performance on behalf of FNF of all of its obligations with respect to the Property pursuant to the
Master Lease Agreement and the Subleases;
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NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties, intending to be legally bound hereby, agree as follows:
1. Appointment of Manager. Effective as of the date hereof, FNF hereby appoints the
Manager as manager of the Property with the responsibilities and upon the terms and conditions
outlined in this Agreement, and the Manager hereby accepts such appointment.
2. Manager’s Responsibilities.
2.1. Management of the Property.
(a) The Manager shall perform the services for FNF hereunder in a professional and competent
manner, using standards of performance consistent with its performance of such services for itself
and as otherwise required pursuant to the terms of the Master Lease Agreement and the Subleases.
The Manager shall use commercially reasonable efforts to properly protect and account for FNF’s
assets.
(b) In connection with the management of the Property, the Manager shall duly and punctually
perform and comply with, or cause to be performed or complied with, all of the obligations, terms
and conditions required to be performed or complied with by FNF under the Master Lease Agreement
and the Subleases (copies of which have been made available to the Manager) and, to the extent
copies have been provided to the Manager, under any mortgages or deeds of trust affecting the
Property, and any other agreements relating to the ownership, financing, development, management,
operation, maintenance and servicing of the Property, including, without limitation (to the extent
funds of FNF are available), the timely payment of all sums required to be paid thereunder, all to
the end that FNF’s interest in the Property and its interest as landlord under the Subleases shall
be preserved and no default of FNF shall occur under any of such agreements, so that the Master
Lease Agreement and the Subleases (as well as any other relevant agreements) shall remain in full
force and effect, with no default by FNF. The Manager shall enforce the full performance of all
obligations of each of the Tenants under the Subleases and of the Lessors under the Master Lease
Agreement.
(c) In addition to providing the services specifically set forth in this Section 2.1
and in Section 2.2 and elsewhere in this Agreement, the Manager shall reasonably consider
and accommodate such other services as FNF may reasonably request in connection with the Property
or any other properties or facilities owned or leased by FNF (or its subsidiaries) on mutually
agreeable terms, and provided that such other services do not negatively affect its ability to
manage the other buildings on 000 Xxxxxxxxx Xxx. in Jacksonville, Florida.
2.2. Specific Management Services. Without limiting the generality of any other term
or provision of this Agreement, the Manager shall provide the following services (the
“Management Services”):
(a) Collection and Handling of Money. The Manager shall xxxx and direct each Tenant
to pay directly to FNF all Rent, including all Base Rent and Additional Rental (as
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such terms are
defined in the Subleases) and all other additional rents and other
payments due from each Tenant and any sums otherwise payable to FNF with respect to the Property, unless
otherwise directed by FNF.
(i) All sums collected by the Manager shall be deposited in accordance with
instructions received from FNF from time to time. If required by law, the Manager shall, if
applicable, establish separate accounts for holding tenants’ security deposits, and funds in
such accounts shall not be commingled with other funds of the Manager.
(ii) Within five business days after the end of each month, the Manager shall inform
FNF of the anticipated expenses of the Property for the coming 60 days and, to the extent
that FNF has not already provided the Manager with funds to cover the anticipated expenses,
FNF shall remit to the Manager all amounts necessary in order to meet the anticipated
expenses of the Property.
(b) Taxes. To the extent funds of FNF are available, the Manager shall duly and
punctually pay all real estate taxes and assessments payable with respect to the Property. Such
payment shall be made prior to the time that any penalties or interest would accrue upon such taxes
or assessments. The Manager shall inform FNF of any change in the amount of real property
assessments or taxes relating to the Property. The Manager shall not undertake, nor is authorized
to undertake, to provide any legal services with respect to property tax abatement or eminent
domain proceedings.
(c) Repairs and Maintenance. The Manager shall make all repairs and perform all
maintenance on the buildings, grounds and other improvements of the Property necessary to maintain
the Property in the manner required of FNF under the Master Lease Agreement and the Subleases and
otherwise consistent with the same manner that Manager is repairing and maintaining the other
properties on 000 Xxxxxxxxx Xxx. Xxxxxxxxxxxx, Xxxxxxx. The Manager shall also perform or furnish
any and all emergency repairs or reasonably identified services necessary for the preservation of
the Property or to avoid the suspension of any service to the Property or danger to life or
property. Emergency repairs or services may be made or furnished by the Manager without FNF’s
prior approval, but only if it is not reasonably feasible to secure such prior approval. In any
event, the Manager shall, not later than five business days after performing or furnishing an
emergency repair or service, notify FNF of the details and cost thereof.
(d) Service Contracts. Subject to Section 3, the Manager shall enter into, in
Manager’s name (unless FNF otherwise directs), agreements for the furnishing to the Property of
such utility, maintenance and other services and for the acquisition of such equipment and supplies
as may be necessary for the management, operation, maintenance and servicing of the Property in
accordance with this Agreement and FNF’s obligations under the Master Lease Agreement and the
Subleases.
(e) Personnel. The Manager shall employ such personnel, as employees of the Manager
and not of FNF, as may be necessary in order for the Manager to perform its obligations hereunder.
All wages, salaries, fringe benefits, other salary expenses and payroll taxes with respect to said
employees shall be paid by the Manager. The Manager shall comply
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with all laws relating to the employment of its employees, including, without limitation,
those requiring workers’ compensation insurance to cover all of the Manager’s employees.
(f) Other Services. The Manager shall perform all other services which are normally
performed in connection with the operation and management of other building on 000 Xxxxxxxxx Xxx.,
Xxxxxxxxxxxx, Xxxxxxx; and specifically, without limiting the generality of the foregoing, the
Manager shall perform all services required to be provided to Tenants under the terms of the Master
Lease Agreement and the Subleases. If requested by FNF and agreed to by the Manager (in its sole
discretion), the Manager shall also perform other property operation and management services for
one or more other properties or facilities owned or leased by FNF (or one or more of its
subsidiaries) in Jacksonville or elsewhere in the United States.
(g) Compliance with Laws and Insurance Policy Requirements. The Manager shall take
such action as may be necessary to comply with all laws, rules and regulations and any and all
known orders or requirements of any governmental authority having jurisdiction thereover affecting
the management of the Property, including, without limitation, all laws, rules, regulations, orders
and requirements relating to the use, generation, storage and disposal of hazardous wastes and
materials and oil, and orders of the Board of Fire Underwriters and other similar bodies.
(h) Notices. The Manager shall promptly deliver to FNF all notices received from any
Tenant, any mortgagee, ground lessor, contractor, subcontractor, governmental or official entity or
any other party with respect to the Property, pursuant to the Master Lease Agreement, the Subleases
or otherwise. The Manager may sign and serve in the name of FNF any and all notices required in
connection with the proper performance by the Manager of the services hereunder.
(i) Cooperation. The Manager shall give FNF all pertinent information and reasonable
assistance in the defense or disposition of any claims, demands, suits or other legal proceedings
which may be made or instituted by any third party against FNF which arise out of any matters
relating to the Property, the Master Lease Agreement, the Subleases, this Agreement or the
Manager’s performance hereunder.
(j) Tenant Relations. The Manager shall maintain business-like relations with the
Lessors and the Tenants, receive requests, complaints and the like, from the Lessors and/or the
Tenants and respond and act upon the foregoing in reasonable fashion. To insure full performance
by Tenants of all of their respective obligations under the Subleases including, without
limitation, those relating to the use, generation, storage or disposal of hazardous wastes and
materials and oil, the Manager shall inspect the Property periodically, and, if appropriate, shall
make demands on Tenants to perform their respective obligations under the Subleases. The Manager
shall notify Tenants of all rules, regulations, and notices as may be promulgated by FNF, governing
bodies and insurance carriers. The Manager shall obtain insurance certificates from each Tenant
evidencing compliance with the insurance requirements under the Subleases.
(k) Inspections. The Manager shall perform periodic inspections of the Property, and
report on such inspections to FNF. Such inspections shall include, without limitation, an
evaluation of the compliance of the Property with all laws, rules and regulations
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governing the use, generation, storage and disposal of hazardous wastes and materials and oil.
The Manager shall also periodically inspect the roof of the building within the Property.
(l) Disaster Recovery. The Manager shall maintain a disaster recovery program for the
Property, substantially consistent with the disaster recovery program in place for the other
buildings and facilities located at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx. For the avoidance
of doubt, the disaster recovery program maintained by the Manager may not include a business
continuity program.
(m) Response and Resolution. The Manager shall respond to and resolve any problems in
connection with the services hereunder within a commercially reasonable period of time, using
response and proposed resolution times consistent with its response and resolution of such problems
for itself.
2.3. Service Shortfalls and Force Majeure.
(a) Service Shortfall. If FNF provides the Manager with written notice (“Shortfall
Notice”) of the occurrence of any Significant Service Shortfall (as defined herein), as determined
by FNF in good faith, the Manager shall rectify such Significant Service Shortfall as soon as
reasonably possible. For purposes hereof, a “Significant Service Shortfall” is deemed to have
occurred if the timing or quality of performance of services provided by the Manager hereunder
falls below the standard required by Sections 2.1 and 2.2; provided that the
Manager’s obligations under this Agreement shall be relieved to the extent, and for the duration
of, any force majeure event as set forth in Section 2.3(b).
(b) 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 Section 2.3(b), 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.
3. Approval of Contracts. The Manager may enter into on behalf of FNF any contract or
agreement for equipment, supplies, services or any other item in the ordinary course of the
management, operation, maintenance and servicing of the Property, such as, for example, involving
the provision of utility, maintenance or other services or the furnishing of services to each or
both Tenants on the Property; provided, however, if any such contract involves a
term of five (5) years or more or the expenditure or obligation on the part of FNF is in excess of
$500,000 in the aggregate, then FNF upon written direction may require the Manager to first obtain
and submit to FNF three competitive, written bids for the performance or furnishing of the same,
and FNF shall have approved the awarding of such contract or agreement. All service contracts with
a term of five (5) years or more shall contain a provision permitting FNF to terminate such
contracts in the event FNF sells or transfers all or any portion of FNF’s interest in the Property.
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4. Insurance.
4.1. Damage to Property. The Manager shall cause to be maintained the following
insurance against property damage to the Property:
(a) All-risk coverage in an amount equal to full replacement cost, with an agreed amount
endorsement or a waiver of co-insurance.
(b) Boiler and machinery insurance, if required, and flood and earthquake insurance, if
available, in each case in amounts not less than ten percent (10%) of value or as may otherwise be
required by FNF.
(c) Building ordinance, demolition and increased cost of construction coverages.
(d) Any additional insurance coverage required to be carried by FNF under the Master Lease
Agreement or the Subleases or by any lender making a loan relating to the Property.
All of such insurance may be provided under a blanket policy, provided that such blanket
policy will, in all events, provide FNF the protection against loss specified above. The insurance
coverages required under this Section 4.1 shall in no event provide for deductibles in
excess of $100,000 per occurrence, without the approval of FNF.
4.2. Loss of Use of Property. The Manager shall maintain insurance against loss of
rental income from the Property (or business interruption insurance, if applicable) which shall
meet the following requirements:
(i) The amount of such insurance shall equal the maximum actual loss which might be
sustained if the Property were totally destroyed, but in no event less than the maximum
Tenants economic obligations for a twelve-month period, less a deductible as may be approved
by FNF.
(ii) Such insurance shall include extra expense coverage, if applicable.
(iii) Such insurance shall provide coverage against the perils insured against under
Section 4.1.
(iv) Such insurance shall contain an agreed amount endorsement or a waiver of
co-insurance as specified by FNF.
4.3. Liability Coverages. The Manager shall maintain, or cause to be maintained,
liability insurance coverages relating to the Property as follows:
(i) Comprehensive, broad form general liability insurance, in an amount not less than
$1,000,000, combined single limit.
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(ii) Liability insurance for owned, hired or non-owned vehicles, in an amount not less
than $1,000,000, combined single limit.
(iii) Workers’ compensation, as required by law, and employer’s liability insurance in
an amount not less than $1,000,000.
(iv) The Manager shall maintain umbrella, or excess liability, coverage, in an amount
not less than $5,000,000. Such insurance shall be in excess of all liability coverages
required in the above subsections and maintained by the Manager.
(v) Such additional insurance against other risks of loss to the Property as, from time
to time, may be required by any lender making a loan relating to the Property or which may
be deemed desirable by FNF or be required by law.
All liability insurance policies shall be written on an occurrence basis. The required coverages
may be provided by a blanket, multi-location policy, if such policy provides a separate aggregate
limit per occurrence for the benefit of the Property.
4.4. Fidelity Insurance. Employees of the Manager who handle or are responsible for
funds of FNF shall be covered by fidelity insurance in an amount not less than $500,000.
4.5. General Requirements.
(a) Required Provisions. All insurance policies required this Section 4 shall
(i) name FNF as named insureds, (ii) provide that any proceeds shall be paid to FNF, or to the
Lessors pursuant to a mortgage endorsement if required by the Lessors, (iii) be issued by an
insurer and be in a form and contain terms, all as approved by FNF, (iv) provide that such policies
shall not be cancelled without at least 30 days’ prior written notice to FNF.
(b) Rating. All insurers providing the coverages specified in this Section 4
shall be rated A-IX or better by Best’s or such higher rating as may be required by the Lessors
under the Master Lease Agreement.
(c) Certificates of Insurance. The Manager shall provide FNF with certificates
evidencing the insurance coverages required by this Section 4 prior to the commencement of
any activity or operation which could give rise to a loss to be covered by such insurance. Each
certificate shall state that at least 30 days’ notice shall be given to FNF and prior to the
amendment, termination or cancellation of any policy evidenced thereby. Replacement certificates
shall be sent to FNF as policies are renewed, replaced or modified.
(d) Investigation of Claims. The Manager shall promptly investigate and make a full,
timely, written report to any insurance company providing coverage, with a copy to FNF, of all
accidents, claims, or damage relating to the ownership, operation and maintenance of the Property,
any damage or destruction to the Property and the estimated cost of repair thereof, and shall
prepare any and all further reports required by any such insurance company in connection therewith.
The Manager shall have no right to settle any claims, demands or liabilities, whether or not
covered by insurance, exceeding $100,000, without the prior written consent of FNF.
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5. Records and Reports.
5.1. Records. The Manager shall maintain a comprehensive system of office records,
books and accounts, which if dedicated to the Property shall be the property of FNF. FNF and its
representatives shall, at all times, have access to and the ability to copy such records, books,
and accounts and to all vouchers, files and all other materials pertaining to the Property and this
Agreement, all of which the Manager agrees to keep safe, available and separate from any records
not relating to the Property. The Manager will cooperate with and give reasonable assistance to
any accountant or other person designated by FNF to examine such records.
5.2. Semi-Annual Reports. On a semi-annual basis, the Manager shall provide FNF with
the following reports for the preceding six months for the Property as a whole.
(a) Accounting Reports. A balance sheet as of the end of the preceding quarter and
any other statements reasonably requested by FNF.
(b) Variance Reports. Reports providing details of and discussing any positive or
negative variances in excess of the greater of (i) 10% from the annual budget for total expenses of
the Property for the preceding six months or (ii) $250,000 over the annual budget allocable to FNF
for the preceding six months. In addition, if it is expected that any such positive or negative
variance will continue or if a positive or negative variance of such magnitude in any revenue
expense or capital expenditure line item is anticipated, details shall be provided and discussed.
(c) Capital Expenditure Reports. Reports providing details of capital expenditures
for the preceding six months and for the remainder of the calendar year, itemized by type of
capital expenditure.
(d) Forecast. If requested by FNF, the Manager shall provide a statement setting
forth in detail, as requested by FNF, the estimated FNF revenues, expenses, capital expenditures
with respect to the Property, on a cash basis, for each of the remaining quarters of the calendar
year. The Manager shall also set forth on a semi-annual basis the estimated cash flow to FNF.
(e) Book and Tax Projections. If requested by FNF, the Manager shall consult with
FNF’s accountant regarding projections of the current year’s net income or loss on a tax basis,
together with statements supporting the calculation of these protections.
5.3. Annual Reports. Within 90 days after the end of each calendar year, the Manager
shall deliver to FNF profit and loss statements showing all revenues, expenses and the results of
operations for the immediately preceding year, and a balance sheet of the development as of the end
of such year in accordance with generally accepted accounting principles.
5.4. Annual Management Plan. No later than December 1st of each year, or
such other date specified in a written notice from FNF to the Manager, the Manager shall submit to
FNF, for FNF’s written approval, proposed budgets and operating plans (the “Annual Management
Plan”) for the Property, setting forth in such detail as may be requested by FNF the estimated
expense of the Property for the next fiscal year, including, without limitation, the amount of real
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estate taxes, assessments, and maintenance and other expenses relating to the Property,
whether for operations or capital improvements, and a description of the services to be provided
hereunder by the Manager during next fiscal year. The Manager shall provide such other financial
data and other information as may reasonably be requested by FNF. FNF reserves the right to
reject, amend or modify the Annual Management Plans as FNF may reasonably deem appropriate.
6. Compensation for Services.
6.1. Management Fee. FNF shall pay to the Manager as compensation for the services
hereunder an annual management (the “Management Fee”), equal to the Additional Rent per
rentable square foot per annum charged by FNF to all Tenants, the amount of such fee to change as
and when the Additional Rent so changes, calculated on the basis of the aggregate rentable square
footage, which is currently 259,568 square feet. The Management Fee shall be payable in arrears
and paid in monthly installments, initially in the amount of $361,015.83, payable on the fifteenth
(15th) day of each calendar month at such place as FNF may direct, as and to the extent
collected from Tenant’s monthly installments of Rent, Base Rent or Additional Rental. The
Management Fee is intended fully to compensate the Manager for the services provided under this
Agreement.
6.2. Monthly Statements. Within 30 days after the end of each calendar month, the
Manager shall prepare and deliver to FNF a monthly summary statement (each a “Monthly Property
Management Cost Summary Statement”) setting forth all of the costs owing by FNF to the Manager.
7. Expenses.
7.1. Expense of FNF. All payments made or expenses incurred by the Manager in the
performance of the services hereunder shall be paid or reimbursed by FNF, as more fully described
in Schedule A.
7.2. Payment by the Manager. The Manager shall make all payments required of FNF
under Section 2.2.(b) of this Agreement, and all payments for real property taxes, repairs
and maintenance costs incurred and equipment and supply purchases made in accordance with this
Agreement, and under contracts existing prior to the effective date of this Agreement or approved
or authorized pursuant to this Agreement, but only if such payments will not cause the annual
expenditure to exceed the approved budget (as set forth in the Annual Management Plan) by 5% or
more, in which event Manager shall not make such payment without FNF’s prior consent;
provided, however, that the Manager shall notify FNF of any annual expenditure
which exceeds the approved budget for such line item prior to making any such expenditure.
However, in the case of casualty, breakdown in machinery or other similar emergency, the Manager
may make payments for repairs, maintenance, equipment or supplies in excess of such authorization
amounts if, in the reasonable opinion of the Manager, emergency action prior to written approval is
necessary to prevent additional damage or a greater total expenditure, to protect the Property from
damage or to prevent a default on the part of FNF under the Master Lease Agreement or the Subleases
or under a mortgage affecting the Property.
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7.3. Source of Payment. Any authorized payments made by the Manager on behalf of FNF
shall be made out of such funds as the Manager may from time to time hold for the account of FNF or
as may be provided by FNF. FNF shall maintain in the bank account or accounts maintained by the
Manager pursuant to this Agreement an amount sufficient to enable the Manager to perform its duties
hereunder, and the Manager shall notify FNF, in advance, of any foreseeable deficiency of the funds
in such accounts. If the Manager shall voluntarily advance for FNF’s account any amount for the
payment of any authorized expenses, FNF shall, upon notice from the Manager, promptly reimburse the
Manager therefor, without interest.
8. Limitation of Liability
8.1. 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 FNF TO THE MANAGER DURING THE ONE
(1) YEAR PERIOD PRECEDING THE 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 OR AFFILIATE OF A PARTY HERETO.
8.2. 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 SECTION 9 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 OR AFFILIATE OF THE INDEMNIFIED PARTY 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 SECTION 8.
9. Indemnification.
9.1. Indemnification Obligations. Subject to Section 8, FNF will indemnify,
defend and hold harmless the Manager (and its Subsidiaries), 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
“Manager Indemnified Parties”) from and against any and all Damages (as defined below) incurred or
suffered by the Manager Indemnified Parties arising or resulting from the provision of services
hereunder, which Damages shall be reduced to the extent of:
(i) Damages caused or contributed to by the Manager’s negligence, willful misconduct or
violation or law; or
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(ii) Damages caused or contributed to by a breach of this Agreement by the Manager.
“Damages” means, subject to Section 8 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).
9.2. Limitation of Indemnification Liability. Except as set forth in this Section
9.2, the Manager will have no liability to FNF for or in connection with any of the services
rendered hereunder or for any actions or omissions of the Manager in connection with the provision
of any services hereunder. Subject to the provisions hereof and subject to Section 8, the
Manager will indemnify, defend and hold harmless FNF, each Subsidiary and Affiliate of FNF, each of
their respective past and present Representatives, and each of their respective successors and
assigns (collectively, the “FNF Indemnified Parties”) from and against any and all Damages incurred
or suffered by the FNF Indemnified Parties arising or resulting from either of the following:
(i) any claim that the Manager’s use of the software or other intellectual property used to
provide the services, or any results and proceeds of such services, 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 FNF without the Manager’s authorization or participation, or
(ii) the Manager’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) and (ii) above, the amount
of Damages incurred or sustained by FNF shall be reduced to the extent such Damages shall have been
caused or contributed to by any action or omission of FNF in amounts equal to FNF’s equitable share
of such Damages, determined in accordance with its relative culpability for such Damages or the
relative fault of FNF or its Subsidiaries.
9.3. Indemnification Procedures.
(a) Claim Notice. A Party that seeks indemnity under this Section 9 (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.
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(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 11.
(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 9.3(b)(ii) hereof, the Parties will begin the process to
resolve the matter in accordance with the dispute resolution provisions of Section 11.
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 or Affiliate of a Party
hereto of any claim or the commencement of any action (a “Third-Party Claim”) with respect to which
the Indemnifying Party may be obligated to provide indemnification under this Section 9,
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
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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.
10. Term and Termination.
10.1. Term. The term of this Agreement commenced on the date hereof, and shall
continue through June 30. 2011, and for successive periods of one year thereafter, unless
terminated pursuant to Sections 10.2 or 10.3 of this Agreement.
10.2. Termination by FNF.
(a) For Cause. FNF may terminate this Agreement, upon receipt by the Manager of 30
days’ prior written notice of FNF’s election to do so, if:
(i) in FNF’s reasonable judgment, the Manager has not managed the Property in
accordance with the provisions of Sections 2.1 and 2.2 above, or has otherwise
defaulted in the performance of its obligations hereunder, and has not remedied or cured the
facts giving rise to FNF’s right to terminate under this subsection within thirty days after
receipt of written notice from FNF specifying such facts;
(ii) a receiver, liquidator or trustee of the Manager shall be appointed by court
order, or a petition to liquidate or reorganize the Manager shall be filed against the
Manager under any bankruptcy, reorganization or insolvency law and such order or petition is
not vacated or dismissed within 60 days, or the Manager shall file a petition in bankruptcy
or request a reorganization under any provision of the bankruptcy, reorganization or
insolvency laws, or if the Manager shall make an assignment for the benefit of its
creditors, or if the Manager is adjudicated a bankrupt;
(iii) there is any damage or destruction to the Property and FNF elects not to rebuild
or restore the Property, or there is a taking by condemnation, or similar proceeding, of a
substantial portion of the Property; or
(iv) FNF shall, at any time, sell or otherwise transfer all or any portion of its
interest in the Property.
(b) Without Cause. Upon 90 days’ prior written notice to the Manager, FNF may
terminate this Agreement at any time, in its sole discretion, without cause of any kind.
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10.3. Termination by the Manager.
(a) For Cause. The Manager may terminate this Agreement, by 60 days’ prior written
notice to FNF, if FNF has defaulted in its obligations hereunder, and has not cured such default
within 30 days after receipt of written notice from the Manager specifying such default.
(b) Without Cause. Upon 90 days’ prior written notice to FNF, the Manager may
terminate this Agreement at any time, in its sole discretion, without cause of any kind.
10.4. Manager’s Obligations after Termination. Upon the expiration or termination of
this Agreement pursuant to Section 10.2 or 10.3, the Manager shall:
(a) deliver to FNF, or to such other person or persons designated by FNF, copies of all
dedicated books and records of the Property and all funds in the possession of the Manager
belonging to FNF or received by the Manager pursuant to the terms of this Agreement;
(b) deliver to FNF any and all funds of FNF on hand or in any bank account, including all
security deposits of tenants, if not previously delivered to FNF, less any unpaid compensation due
to the Manager pursuant to this Agreement, and less any other reimbursements due to the Manager
under this Agreement;
(c) deliver to FNF, as received, any funds due to FNF under this Agreement but received after
such termination;
(d) deliver to FNF all materials, supplies, keys, contracts, documents, plans, specifications,
promotional materials and other materials dedicated to the Property; and
(e) assign, transfer or convey to such person or persons all service contracts and personal
property dedicated to or used exclusively in the operation and maintenance of the Property, except
any personal property which was paid for and is owned by the Manager. The Manager shall, at its
cost and expense, remove all signs that it may have placed at the Property indicating that it is
the Manager of the Property and repair and restore any damage resulting therefrom. The Manager
shall also, for a period of 90 days after such expiration or termination, make itself available to
consult with and advise FNF, or such other person or persons designated by FNF, regarding the
operation and maintenance of the Property.
The Manager shall be reimbursed for all actual costs and out of pocket expenses incurred by it in
connection with any such termination and the transition to a new manager for the Property, provided
that the Manager shall use its reasonable commercial efforts to mitigate such costs and expenses.
11. Dispute Resolution.
11.1. Amicable Resolution. The Parties 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. In furtherance thereof, in the event of any
dispute or disagreement (a “Dispute”) between the Parties in connection with this Agreement
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(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 Party, which presidents will have
fifteen (15) days to resolve such Dispute. If the presidents of the relevant divisions for each
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 Party for final resolution. Notwithstanding anything to the contrary in this
Section 11, any amendment to the terms of this Agreement may only be effected in accordance
with Section 12.6.
11.2. Arbitration. In the event that the Dispute is not resolved in a friendly manner
as set forth in Section 11.1, either Party involved in the Dispute may submit the dispute
to binding arbitration pursuant to this Section 11.2. All Disputes submitted to
arbitration pursuant to this Section 11.2 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 the Parties. If the Parties 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 either 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 either Party to the
Dispute in any court having jurisdiction over the subject matter or over either Party. 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.
11.3. Non-Exclusive Remedy. Nothing in this Section 11 will prevent either
Party from immediately seeking injunctive or interim relief in the event (i) of any actual or
threatened breach of confidentiality 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. 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 11.1 and Section 11.2 above.
11.4. Commencement of Dispute Resolution Procedure. Notwithstanding anything to the
contrary in this Agreement, the Parties, but none of their respective Subsidiaries or Affiliates,
are entitled to commence a dispute resolution procedure under this Agreement, whether pursuant to
this Section 11 or otherwise, and each Party will cause its respective Affiliates not to
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commence any dispute resolution procedure other than through such Party as provided in this
Section 11.
11.5. Compensation. FNF shall continue to make all payments due and owing under
Section 6 for services not the subject of a Dispute and shall not off-set such fees by the
amount of fees that are the subject of the Dispute.
12. Miscellaneous.
12.1. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the Florida, without regard to the conflicts of laws provisions thereof.
12.2. Counterparts. This Agreement may be executed in one or more counterparts, which
together shall constitute one and the same instrument.
12.3. Successors, Assigns and Affiliates. This Agreement shall be binding upon, and
shall inure to the benefit of, the Parties and their respective successors, assigns and affiliates.
This Agreement is a contract for the personal services of the Manager, and the Manager may not
assign this Agreement without FNF’s prior written approval, which may be withheld in the sole
discretion of FNF.
12.4. Notices. Any notice or other communication to be given or made under this
Agreement (“Notice”) shall be in writing and shall be deemed received (i) when delivered
personally, (ii) when sent by facsimile, if confirmed by overnight courier service delivered the
next day, (iii) on the third business day following the sending thereof by overnight courier
service, or (iv) on the third business day following the sending thereof by registered or certified
mail, return receipt requested. All Notices shall be addressed to the addresses of the Party, or
sent by facsimile to their facsimile numbers, as set forth on the signature pages hereof.
12.5. Entire Agreement. This Agreement contains the entire Agreement among the
Parties with respect to the subject matter hereof, and supersedes all prior agreements and
understandings, oral or written, between the Parties with respect thereto.
12.6. Amendments, Consents and Approvals. This Agreement may be amended only by an
instrument in writing agreed to by each of the Parties hereto. To be effective, consents and
approvals must be in writing.
12.7. No Waiver. The failure of FNF to seek redress for breach, or to insist upon the
strict performance of any covenant, agreement, provision or condition of this Agreement, shall not
constitute a waiver thereof, and FNF shall have all remedies provided herein and by applicable law
with respect to any subsequent act which would have originally constituted a breach.
12.8. No Agency. The Manager is an independent contractor and, as such, shall be
solely responsible for all of its employees, for the supervision of all persons performing services
in connection with the performance of all of FNF’s obligations relating to the maintenance and
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operation of the Property, and for determining the manner and time of performance of all acts
hereunder. Nothing herein contained shall be construed to establish the Manager as an agent of
FNF, or to create a joint venture or partnership between the Manager and FNF.
12.9. Effectiveness. Notwithstanding the date hereof, this Agreement shall become
effective as of the date and time that the Distribution as described in the Contribution and
Distribution Agreement dated as of June ___, 2008 between FNF and LPS, is effective.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on their behalf by
their duly authorized representatives as of the date first set forth above.
| FIDELITY NATIONAL FINANCIAL, INC. |
||||
| By | ||||
| Name: | ||||
| Title: | ||||
| Address: | 000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxxx, Xxxxxxx 00000 Attention: General Counsel |
|||
| LENDER PROCESSSING SERVICES, INC. |
||||
| By | ||||
| Name: | ||||
| Title: | ||||
| Address: | 000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxxx, Xxxxxxx 00000 Attention: General Counsel |
|||
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