FIRST AMENDMENT TO SERVICES AGREEMENT
Exhibit 10.2
THIS FIRST AMENDMENT (this “Amendment”) to that certain Services Agreement, dated as
of October 1, 2009 (the “Agreement”), by and among (i) American Processing Company, LLC, a
Michigan limited liability company (d/b/a NDeX) (the “Default Specialist”), (ii) Xxxxx X.
Xxxxxxxxxx, P.A., a Florida professional association d/b/a “Xxxxxxxxxx Law” (the “Firm”),
and (iii) Xxxxx X. Xxxxxxxxxx, an individual (the “Restricted Party”), is made and entered
into to be effective for all purposes as of July 12, 2010 among each of the Default Specialist, the
Firm and the Restricted Party.
RECITAL
Each of the Default Specialist, the Firm and the Restricted Party now desire to amend the
Agreement as set forth below;
In consideration of the mutual promises, covenants and agreements contained herein, the
sufficiency of which is hereby agreed to and acknowledged, the parties hereto agree to amend the
Agreement as follows:
AGREEMENTS
1. Amendments.
1.1 Preamble. The first sentence of the Preamble of the Agreement is hereby deleted
in its entirety and replaced with the following:
This Services Agreement (this “Agreement”), dated as of October 1, 2009 (the
“Effective Date”), is by and between American Processing Company, LLC, a Michigan
limited liability company (d/b/a NDeX) (the “Default Specialist”), Xxxxx X.
Xxxxxxxxxx, P.A., a Florida professional association d/b/a “Xxxxxxxxxx Law” (the
“Firm”), and Xxxxx X. Xxxxxxxxxx (the “Restricted Party”).
1.2 New Definitions. The following definitions are hereby added to Section 1.1 of the
Agreement in their applicable alphabetical order:
“Competing Publisher” has the meaning set forth in Section 4.9 of this
Agreement.
“Xxxxx” shall mean The Xxxxx Company, a Delaware corporation (f/k/a Xxxxx Media
Company).
“New Law Firm” has the meaning set forth in Section 4.7 of this Agreement.
“New Services Agreement” has the meaning set forth in Section 4.8 of this
Agreement.
“New Territory” has the meaning set forth in Section 4.8 of this Agreement.
“Non-Compete Territory” has the meaning set forth in Section 8.1(a) of this
Agreement.
“Posting or Publication Services” has the meaning set forth in Section 4.9 of
this Agreement.
“Practices” has the meaning set forth in Section 4.8 of this Agreement.
“Subject Client” has the meaning set forth in Section 4.9 of this Agreement.
1.3 Definition of “Territory”. The definition of “Territory” in Section 1.1 is hereby
deleted in its entirety and replaced with the following:
“Territory” shall mean the State of Florida.
1.4 Section 4.7. The following is hereby added to the Agreement as Section 4.7:
4.7 Covenant to Enter Into New Services Agreements. Upon the request of the
Default Specialist during the Restricted Period, each of the Firm and the Restricted Party
covenants and agrees, both on behalf of themselves, respectively, and any other law firm
affiliated with either the Firm or the Restricted Party (any such law firm, a “New Law
Firm”), that, if the Firm, the Restricted Party or any New Law Firm opens an office or
otherwise does business at any time whether within or outside of the Non-Compete Territory,
the Firm, the Restricted Party or any New Law Firm shall promptly enter into a services
agreement with the Default Specialist or one or more of its Affiliates in substantially the
form as this Agreement (any such new services agreement, a “New Services
Agreement”), but solely with respect to the Firm’s, the Restricted Party’s or any New
Law Firm’s conduct of the Business. The Default Specialist, on the one hand, and the Firm
and the Restricted Party (each on behalf of any New Law Firm), on the other hand, each
acknowledge and agree that the per file fee charged by the Default Specialist for each type
of file referred by such New Law Firm to the Default Specialist for processing shall be
established at the lower of (i) the per file fee that the Default Specialist charges other
applicable competing law firms for similar processing services for files in the applicable
territory (the “New Territory”) and (ii) one hundred and twenty percent (120%) of
the Default Specialist’s aggregate direct and indirect costs for providing such processing
services; provided, however, that if, at the time prior to any such New
Services Agreement being entered into between the Default Specialist and such New Law Firm,
the Default Specialist is not then currently providing processing services in the New
Territory, then only clause (ii) above shall be used for establishing the applicable file
fees in such New Services Agreement.
1.5 Section 4.8. The following is hereby added to the Agreement as Section 4.8:
4.8 Covenant to Refer Files. To the extent not otherwise subject to the
provisions of Section 4.7 hereof, during the Restricted Period, each of the Firm and
the Restricted Party covenants and agrees, both on behalf of themselves, respectively, any
of their respective affiliates and any New Law Firm, to promptly refer to (i) the Default
Specialist or its applicable Affiliate whether within or outside of the Non-Compete
Territory or (ii) upon the request of the Default Specialist, the relevant law firm
affiliated with the Default Specialist or its applicable Affiliate if within the Non-Compete
Territory (with the exception of the State of Florida), all files (including, but not
limited to, those types of files described in Section 3.1(a) hereof or the
applicable section of any New Services Agreement) with respect to which the Firm, the
Restricted Party, any of their respective affiliates or any New Law Firm (x) receive from
any Person (including, but not limited to, any Agency, any Investor or any Client) or (y)
otherwise have the ability to influence or direct the referral of such files, in each case
for processing in conjunction with the residential (but not commercial) foreclosure,
residential eviction, residential bankruptcy and litigation (with respect to any of the
foregoing) law or trustee practices of the Firm, the Restricted Party, any of their
respective affiliates or any New Law Firm (collectively, the “Practices”).
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1.6 Section 4.9. The following is hereby added to the Agreement as Section 4.9:
4.9 Covenant to Use Xxxxx’x Posting and Publication Services. During the
Restricted Period, each of the Firm and the Restricted Party covenants and agrees, both on
behalf of themselves, respectively, any of their respective affiliates and any New Law Firm,
to exclusively use Xxxxx or one or more of Xxxxx’x Affiliates for the publication or posting
of all foreclosure, public or other legal notices required or desired to be published or
posted (whether in a legal or other newspaper or on an Internet web site) in conjunction
with the Practices of the Firm, the Restricted Party, any of their respective affiliates or
any New Law Firm or on behalf of any client of the Firm, the Restricted Party, any of their
respective affiliates or any New Law Firm whether within or outside of the Non-Compete
Territory; provided, however, that none of the Firm, the Restricted Party,
any of their respective affiliates or any New Law Firm shall be required to comply with this
Section 4.9 for so long as none of Xxxxx or any of its Affiliates offer posting or
publication services (collectively, the “Posting or Publication Services”) for the
relevant geographic area in which the Firm, the Restricted Party, any of their respective
affiliates or any New Law Firm requires the publication or posting of any foreclosure,
public or other legal notices in conjunction with the relevant Practice(s) of the Firm, the
Restricted Party, any of their respective affiliates or any applicable New Law Firm, as the
case may be, in such relevant geographic area; provided, further,
however, that each of the Firm and the Restricted Party covenants and agrees, both
on behalf of themselves, respectively, any of their respective affiliates and any New Law
Firm, to (1) provide not less than ten (10) days prior written notice to Xxxxx prior to
using any Person other than Xxxxx or an Affiliate of Xxxxx (any such other Person, a
“Competing Publisher”) for the publication or posting of any foreclosure, public or
other legal notices (whether in a legal or other newspaper or on an Internet web site) in
conjunction with any Practice(s) of the Firm, the Restricted Party, any of their respective
affiliates or any New Law Firm whether within or outside the Non-Compete Territory, which
such notice shall include (x) the name of such Competing Publisher, (y) the applicable
geographic area in which the Posting or Publication Services of such Competing Publisher are
proposed to be used and (z) a description of the particular Posting or Publication Services
of such Competing Publisher which are proposed to be used by the Firm, the Restricted Party,
any of their respective affiliates or the applicable New Law Firm, as the case may be; and
(2) enter into any contract or other agreement with any Competing Publisher for any Posting
or Publication Services which cannot be terminated without penalty by the Firm, the
Restricted Party, any of their respective affiliates or the applicable New Law Firm on less
than thirty (30) days prior written notice by the Firm, the Restricted Party, any of their
respective affiliates or the applicable New Law Firm, as the case may be. Notwithstanding
anything to the contrary in this Section 4.9, none of the Firm, the Restricted Party
or any New Law Firm shall be bound by the provisions of this Section 4.9 with
respect to any given particular matter solely to the extent that (A) the Client or any other
Person who receives Legal Services from the Restricted Party or the applicable New Law Firm
for such matter (in either case, a “Subject Client”) requests (without any
encouragement by or on the advice of the Firm, the Restricted Party or the applicable New
Law Firm) in writing that the Firm, the Restricted Party or the applicable New Law Firm, as
the case may be, use the Posting or Publication Services of a Competing Publisher for such
matter; provided, however, that (i) each of the Firm, the Restricted Party
and any New Law Firm shall use their respective commercially reasonable efforts to encourage
such Subject Client to use the Posting or Publication Services of Xxxxx or one or more of
its Affiliates for such legal matter and (ii) each of the Firm and the Restricted Party
covenants and agrees, both on behalf of themselves, respectively, and any New Law Firm,
acknowledge and agree that for purposes of this clause (A) neither Lender Processing
Services, Inc. nor any of its Affiliates shall be considered to be a client of the Firm, the
Restricted Party or any New Law Firm, (B) any of the Firm, the Restricted Party or any New
Law Firm determine, in good faith, that there is
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an Applicable Law which requires that the
Firm, the Restricted Party or any New Law Firm, as the case may be, to use the Posting or Publication
Services of a Competing Publisher for such matter on behalf of such Subject Client;
provided, however, that the Firm, the Restricted Party or any New Law Firm,
as the case may be, shall promptly provide Xxxxx with a written opinion of counsel to such
effect, or (C) the Firm, the Restricted Party or any New Law Firm receive a written
directive from a Governmental Body having jurisdiction over the Firm, the Restricted Party
or any New Law Firm, as the case may be, to the effect that the Firm, the Restricted Party
or any New Law Firm, as the case may be, must use the Posting or Publication Services of a
Competing Publisher for such matter on behalf of such Subject Client; provided,
however, that the Firm, the Restricted Party or the applicable New Law Firm shall
promptly provide Xxxxx with a written copy of any such written directive.
1.7 Section 8.1(a). The first sentence of Section 8.1(a) of the Agreement is hereby
deleted in its entirety and replaced with the following:
(a) Non-Compete. During the term of this Agreement (including any extensions or
renewals thereof), and for a period of two (2) years following termination of this Agreement
(the “Restricted Period”), none of the Firm, the Restricted Party or any of their
respective Affiliates shall directly or indirectly, without the prior written consent of the
Default Specialist, purchase, join, control, invest in, organize, start or form, or contract
with, any business or Person that will provide Mortgage Default Services anywhere in the
States of Alabama, Arizona, California, Florida, Georgia, Indiana, Michigan, Minnesota,
Nevada and Texas (the “Non-Compete Territory”).
1.8 Section 8.2. Section 8.2 of the Agreement is hereby deleted in its entirety and
replaced with the following:
8.2 Blue-Pencil. If any court of competent jurisdiction or any other
Governmental Body shall at any time deem the term of any particular restrictive covenant
contained in Section 8.1 too lengthy or the Non-Compete Territory too extensive, the
other provisions of this Article VIII shall nevertheless stand, and the Restricted
Period and/or the Non-Compete Territory shall be reduced to such duration or size as such
court or Governmental Body shall determine to be permissible.
2. Reference to and Effect on the Agreement.
2.1 Each reference in the Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or
words of like import shall mean and be a reference to the Agreement as amended hereby.
2.2 Except as specifically amended above, the Agreement shall remain in full force and effect
and is hereby ratified and confirmed.
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3. Miscellaneous.
3.1 This Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same instrument. This
Amendment will become effective after (i) a counterpart to this Amendment has been executed and
delivered by the Default Specialist, the Firm and the Restricted Party, (ii) a counterpart to that
certain First Amendment to Asset Purchase Agreement, dated as of the date of this Amendment, by and
among the Default Specialist, Xxxxx, the Restricted Party, the Firm, The Xxxxxxxxxx Firm, P.C., a
Georgia professional corporation (“Xxxxxxxxxx Georgia”) and Xxxxxxxxxx Title, Inc. has been
executed and delivered by each of foregoing
parties, (iii) a counterpart to that certain First Amendment to Employment Agreement, dated as
of the date of this Amendment, by and among the Default Specialist and the Restricted Party has
been executed and delivered by each of the Default Specialist and the Restricted Party and (iv) a
counterpart to that certain First Amendment to Services Agreement, dated as of the date of this
Amendment, by and among the Default Specialist, the Restricted Party and Xxxxxxxxxx Georgia has
been executed and delivered by each of the Default Specialist, the Restricted Party and Xxxxxxxxxx
Georgia. This Amendment, and any amendments hereto, to the extent signed and delivered by means of
a facsimile machine or other electronic transmission (including transmission in portable document
format by electronic mail), shall be treated in all manner and respects and for all purposes as an
original agreement and shall be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person. At the request of any party hereto, each
other party hereto or thereto shall re-execute original forms thereof and deliver them to all other
parties, except that the failure of any party to comply with such a request shall not render this
Amendment, and any amendments hereto, invalid or unenforceable. No party hereto or to any such
other agreement or instrument shall raise the use of a facsimile machine or other electronic
transmission to deliver a signature, or the fact that any signature was transmitted or communicated
through the use of a facsimile machine or other electronic transmission, as a defense to the
formation or enforceability of a contract and each such party forever waives any such defense.
3.2 Section headings in this Amendment are included herein for convenience of reference only
and shall not constitute a part of this Amendment for any other purpose.
3.3 The language used in this Amendment will be deemed to be the language chosen by the
parties to express their mutual intent, and no rules of strict construction will be applied against
any party.
3.4 If and to the extent there are any inconsistencies between the Agreement and this
Amendment, the terms of this Amendment shall control.
3.5 This Amendment shall be governed by and construed in accordance with the laws of the State
of Delaware without regard to its conflict of laws doctrines.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first
hereinabove written.
| AMERICAN PROCESSING COMPANY, LLC |
||||
| By: | / Xxxxx X. Xxxxxx / | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| XXXXX X. XXXXXXXXXX, P.A. |
||||
| By: | / Xxxxx Xxxxxxxxxx / | |||
| Name: | Xxxxx Xxxxxxxxxx | |||
| Title: | President | |||
| / Xxxxx Xxxxxxxxxx / | ||||
| Xxxxx X. Xxxxxxxxxx, individually | ||||
