EXHIBIT 10.13
NOVATION
BACK PLANT REPOSITORY ACCESS AGREEMENT
This Back Plant Repository Access Agreement (this "Agreement"), effective as of
________________, 2005 (the "Effective Date"), between FIDELITY NATIONAL TITLE
GROUP, INC., a Delaware corporation with its principal place of business at 000
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 ("FNT"), for itself on behalf of its
direct and indirect subsidiaries; and FIDELITY NATIONAL INFORMATION SERVICES,
INC., a Delaware corporation with its principal place of business at 000
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 ("FIS"), for itself on behalf of those
of its direct and indirect subsidiaries as are listed on Exhibit A hereto (each
a "Customer" and collectively, the "Customers"). FNT and FIS shall hereinafter
be referred to as a "Party" and collectively, as the "Parties."
WITNESSETH:
WHEREAS, FNT and its subsidiaries own and maintain a collection
(collectively hereinafter referred to as the "Back Plants") of non-electronic
records, indexes and data, and copies of documents, affecting or purporting to
affect title to real property and other material which are recorded or filed in
the offices of various county recorders and county clerks in the states
indicated on Exhibit B; and
WHEREAS, the Customers wish to have access, and FNT is willing to provide
such access, to the Back Plants, subject to the terms and conditions set forth
herein; and
WHEREAS, FIS previously entered into a Back Plant Repository Agreement
dated March 4, 2005 (the "FNF Agreement") with Fidelity National Financial,
Inc., a Delaware corporation ("FNF"), as the parent company of FNT and its
subsidiaries, for access to the Back Plants by the Customers; 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 Back Plants, as more
particularly described herein;
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. CERTAIN DEFINITIONS.
A "Back Plant" or collectively, the "Back Plants" has the meaning set forth
above.
1
A "Customer" means each of FIS and each user identified on Exhibit A hereto so
long as such user is a direct or indirect subsidiary of FIS; it being understood
that, upon 30 days' prior written notice, FIS may from time to time amend
Exhibit A to add one or more of its other direct or indirect subsidiaries of FIS
and such added subsidiary shall become a "Customer" hereunder effective as of
the 30th day after such prior notice is delivered to FNT.
A "Customer Back Plant Retrieval" means any instance when a Back Plant is
accessed by a Customer for viewing, data retrieval and/or copying, which may
include the physical retrieval of microfiche, microfilm, index cards, paper
documents or other media containing information within the Back Plant Documents
as well as the copying thereof.
A "FNT Back Plant Retrieval" means any instance when a Back Plant is accessed by
representatives of FNT or any of its subsidiaries based upon a request by
Customer for data retrieval and/or copying, which may include the physical
retrieval of microfiche, microfilm, index cards, paper documents or other media
containing information within the Back Plant Documents as well as the copying
and forwarding thereof.
An "Issuing Agency Agreement" is an agreement pursuant to which an entity is
designated as a title agent, authorized to write title business for a principal.
2. ACCESS.
(a) Access. FNT hereby grants to each Customer non-exclusive access to the
Back Plants of FNT and its subsidiaries in the states indicated on Exhibit B,
subject to the provisions hereof. It is understood and agreed that, during the
first year of this Agreement, FNT shall provide access availability to the Back
Plant Repositories in a nature and quality reasonably comparable to the access
availability provided by FNT on or about the date of this Agreement.
(b) Format. The data and materials included in the Back Plant Repositories
are generally maintained in non-electronic physical (i.e., "hard copy") formats
or older media systems (such as microfiche). FNT will maintain the Back Plant
Repositories in the same or similar format as is used as of the date of this
Agreement, as modified or updated as determined from time to time by FNT. FNT
reserves the right to modify any such format or medium, or update or replace the
format or medium, from time to time, subject to the reasonable notification
contemporaneous with the implementation of the modification or update.
(c) Security. In connection with a Customer Back Plant Retrieval
hereunder, FNT may establish security systems, key cards, locks and keys and
other means for securing each of the Back Plants. In such event, a Customer
shall be responsible for (i) maintaining securely the codes, passwords, keys or
other means of access to each Back Plant. In the event of a security breach or
unauthorized access to any Back Plant discovered by a Customer, such Customer
agrees to contact FNT immediately upon discovering such a breach. If the breach
or unauthorized access is caused by, or is the result of security lapses on the
part of, a Customer, such Customer shall be responsible for the results of (and
any costs incurred as a result of) any such unauthorized access until notice of
such a security breach is given to FNT unless the Customer can demonstrate that
it took commercially reasonable precautions to secure and safe-keep its access
to the Back Plant. FNT reserves the right to check the security of Customer
2
access from time to time and if FNT finds that Customer access is unsecure or
could become unsecure, FNT shall immediately notify Customer(s) and work with
Customer(s) to implement an appropriate security access procedure. Each Customer
agrees to not (i) attempt to bypass any security mechanisms in place for any
Back Plant, or (ii) use any FNT system or service to attempt to bypass any
security mechanisms in place on any other FNT system, including, but not limited
to, attempting to access a system that such Customer knows or reasonably should
know it is not authorized to access in the manner or to the extent attempted.
FNT or any applicable Subsidiary may refuse Back Plant access to a
representative of FIS or any Customer for reasonable cause including, without
limitation, use of the Back Plant for purposes not covered by the Agreement,
destroying or vandalizing records, or abuse of personnel or facilities of FNT or
its subsidiaries.
3. FEES AND PAYMENT
There shall be no fees payable by FIS to FNT for any Customer Back Plant
Retrieval or FNT Back Plant Retrieval by the Customers; provided, however, that
FIS shall pay, or reimburse FNT for the payment of, all out of pocket charges,
costs or expenses that FNT may incur in connection with granting the access to
the FNT Back Plants as contemplated hereby or performing its obligations under
Section 2, including assisting in any Customer Back Plant Retrieval or FNT Back
Plant Retrieval, such as fees payable to local land recording offices or other
search services, and reproduction and transmittal and shipping costs; and
provided, further that FIS shall pay, or reimburse FNT for the payment of, all
sales, use, personal property or other similar taxes or any government charges
imposed on the transactions hereunder, exclusive of corporate income or
franchise taxes based on FNT's net income. All such payments and reimbursements
shall be paid by FIS promptly upon demand from FNT.
4. TERM AND TERMINATION
(a) Term. Unless sooner terminated in accordance with the provisions
hereof, this Agreement shall continue in effect. Subject to Section 5(c), the
obligations under this Agreement may be terminated by any of the following means
(each a "Termination Event"):
(i) at any time by mutual agreement of the parties hereto, in
which event the obligations under this Agreement shall
terminate as of the date specified by the parties;
(ii) at any time by FNT, if FIS or the Customers breach any
material warranty or fails to perform any material obligation
hereunder, and such breach is not remedied within 30 days
after written notice thereof to FIS that is in default, in
which event the obligations under this Agreement shall
terminate on the 20th business day following the expiration of
such 30-day cure period; provided that if the breach or
default is of a nature that it cannot reasonably be cured
within a 30-day period and FIS is actively pursuing a cure in
good faith, then no default shall be deemed to have occurred
so long as the default is cured as promptly as reasonably
possible
3
and in any event prior to the first anniversary of the
occurrence of such default;
(iii) at any time by FIS, if FNT breaches any material warranty or
fails to perform any material obligation owing hereunder, and
such breach is not remedied within 30 days after written
notice thereof to FNT, in which event the obligations under
this Agreement shall terminate on the 20th business day
following the expiration of such 30-day cure period; provided
that if the breach or default is of a nature that it cannot
reasonably be cured within a 30-day period and FNT is actively
pursuing a cure in good faith, then no default shall be deemed
to have occurred so long as the default is cured as promptly
as reasonably possible and in any event prior to the first
anniversary of the occurrence of such default;
(iv) at any time by FNT, if FIS shall admit in writing its
inability to, or be generally unable to, pay its debts as such
debts become due, or shall (1) apply for or consent to the
appointment of, or the taking of possession by, a receiver,
custodian, trustee, examiner or liquidator of itself or of all
or a substantial part of its property or assets, (2) make a
general assignment for the benefit of its creditors, (3)
commence a voluntary case under the federal Bankruptcy Code,
(4) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization,
liquidation, dissolution, arrangement or winding-up, or
composition or readjustment of debts, (5) fail to controvert
in a timely and appropriate manner, or acquiesce in writing
to, any petition filed against it in an involuntary case under
the Bankruptcy Code or (6) take any company action for the
purpose of effecting any of the foregoing, in which event the
obligations under this Agreement shall terminate immediately;
(v) at any time by FIS, if FNT shall admit in writing its
inability to, or be generally unable to, pay its debts as such
debts become due, or shall (1) apply for or consent to the
appointment of, or the taking of possession by, a receiver,
custodian, trustee, examiner or liquidator of itself or of all
or a substantial part of its property or assets, (2) make a
general assignment for the benefit of its creditors, (3)
commence a voluntary case under the federal Bankruptcy Code,
(4) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization,
liquidation, dissolution, arrangement or winding-up, or
composition or readjustment of debts, (5) fail to controvert
in a timely and appropriate manner, or acquiesce in writing
to, any petition filed against it in an involuntary case under
the Bankruptcy Code or (6) take any company action for the
purpose of effecting any of the foregoing, in which event the
obligations under this Agreement shall terminate immediately;
(vi) (vi) by FNT, upon 5 years' prior written notice to FIS given
at any time on or after the 5th anniversary of the Effective
Date;
4
(vii) by FIS, upon 5 years' prior written notice to FNT given at any
time on or after the 5th anniversary of the Effective Date;
(viii) at any time by FNT if there has been a change in control of
FIS; it being understood, that for purposes of this provision,
"change of control" means a reorganization, merger, share (or
LLC ownership interest) exchange or consolidation, or sale or
other disposition of more than 50% of the LLC ownership
interests in, or all or substantially all of the assets or
business of, FIS, other than a transaction in which no person
or entity will have beneficial ownership, directly or
indirectly, of 50% or more of the ownership interests of FIS
or of the power to vote in the election of directors; or
(ix) upon 6 months prior written notice by FNT to FIS if there has
been a change in control of FNT; it being understood, that for
purposes of this provision, "change of control" means a
reorganization, merger, share exchange or consolidation, or
sale or other disposition of more than 50% of the voting
capital stock in, or all or substantially all of the assets or
business of, FNT, other than a transaction in which no person
or entity will have beneficial ownership, directly or
indirectly, of 50% or more of the voting capital stock of FNT
or of the power to vote the election of directors.
(b) Termination. Notwithstanding the above termination, in the event of a
Termination Event pursuant to subparagraphs (iii), (vi), (viii) or (ix),
Customers shall continue to receive access to the Back Plants until such time as
they have found a reasonably acceptable alternative to obtain the same or
substantially similar benefit, but in no event longer than ninety (90) days
after the later of (x) the date on which the Termination Event occurs or (y) the
date on which the termination is effective (after giving effect to all notice
periods, waiting periods and grace periods expressly provided for herein), it
being understood that during such period (i) FIS shall continue to pay for, or
reimburse FNT its payment of, out of pocket costs and government charges in
accordance with Section 3, and (ii) FIS will attempt to obtain an alternative
means as quickly as reasonably possible.
5. OWNERSHIP AND USE
(a) Ownership. All data, information, images and other materials contained
in the Back Plants and all documentation relating thereto are and shall remain
the property of FNT. FIS agrees to treat and agrees to cause each Customer to
treat all proprietary information of FNT as confidential and agrees to make it
available solely to itself, the Customers, their employees or authorized
representatives who have a need to know. Each Party further agrees not to make
copies of the other Party's confidential information or the confidential
information of Customers, and not to obscure or remove any notice of proprietary
rights or confidentiality thereon. Upon termination of this Agreement, each
Party shall return all confidential information of the other Party, and in the
case of FNT, the confidential information of Customers, provided to it pursuant
hereto. FNT warrants that it is the owner of, or has full right to provide
access to each Customer
5
to, all of the records and data contained in the Back Plants and documentation
relating thereto on the terms herein.
(b) Customer Use of Back Plant and Back Plant Information. Access to the
Back Plants hereunder, and the records and data in the Back Plants made
available to any Customer under this Agreement, are to be used by such Customer
solely in accordance with the terms hereof. Each Customer shall use records and
data in the Back Plants only for the purpose of issuing title insurance and
other products in its ordinary course of business. Each Customer shall make no
further distribution, by sale, lease or otherwise, of any access to records and
data in the Back Plants, nor enable any third party to access or to make use of
any such records or data in the Back Plants provided to, or accessible by,
Customer under this Agreement except in accordance with Customer's ordinary
course of business. FNT shall make no distribution, by sale, lease or otherwise,
of Customer confidential information, if any, nor enable any third party to
access or to make use of any such Customer confidential information provided to,
or accessible by, FNT under this Agreement except in accordance with FNT's
ordinary course of business.
(c) Closing or Sale of Back Plants. Nothing contained in this Agreement
shall obligate FNT to maintain any Back Plant for any length of time. Without
limiting the foregoing, the parties agree as follows:
(i) in the event that FNT (or its applicable subsidiary) has
determined (for reasons unrelated to the Back Plants and this
Agreement) to close an office of FNT (or its subsidiary) that
has a Back Plant located on the premises thereof or as part of
such office, and as part of such closing the related Back
Plant will also be closed and no longer available, then, to
the extent reasonably possible without incurring significant
additional expenditures, the parties will work together to
cause FIS and the Customers to obtain access to another FNT
Back Plant that can provide substantially similar information
to that available under the closing Back Plant Repository.
(ii) in the event that FNT (or its applicable subsidiary) has
determined (for reasons unrelated to the Back Plants and this
Agreement) to close an office of FNT (or its subsidiary) that
has a Back Plant located on the premises thereof or as part of
such office, and that it is either (1) not possible, without
incurring significant additional expenditures for FIS and the
Customers, to obtain access to another FNT Back Plant that can
provide substantially similar information to that available
under the closing Back Plant or (2) not available from FNT (or
any of its applicable subsidiaries), then at the time of the
closure of such office, FNT shall allow FIS (or its designee)
to physically transfer such Back Plant to a location of FIS or
a Customer. During the time such Back Plant is maintained on
the premises FIS or a Customer (a) no Access Fees shall be due
or payable for retrievals therefrom; and (b) FIS or a Customer
shall maintain such Back Plant in the condition existing at
the time of the physical transfer. Upon six (6) months written
notice, FNT may obtain, at FNT's sole cost and expense, the
physical return of such Back Plant and thereafter for any
remaining
6
term of this Agreement, shall be entitled to any applicable
Access Fees hereunder.
(iii) in the event that FNT (or its applicable subsidiary) has
determined to sell an office of FNT (or its subsidiary) that
has a Back Plant located on the premises thereof or as part of
such office, then prior to the consummation of such sale, FIS
(or its Customer designee) shall be entitled, at its sole cost
and expense, to receive from FNT a true, correct and complete
copy of the Back Plant being so sold; provided, however, that
FIS hereby agrees that it shall not sell, transfer or
otherwise dispose of such Back Plant for a period of two years
following the date on which the copy was received (other than
transfers to wholly-owned subsidiaries of FIS).
(d) Nonexclusive Use. The Parties recognize that FNT shall continue to use
the Back Plants in the usual and ordinary course of business and may furnish
access to Back Plants, including the same Back Plants, to other customers.
(e) Advertisement of Use or Ownership. During the term of this Agreement,
none of the Customers shall publicize that such Customer owns, possesses or
controls any Back Plants or has any interest therein except such rights as are
specifically granted to Customer by this Agreement.
(f) Due Care. Each Customer agrees to exercise due care in accessing the
Back Plants hereunder so as to prevent the alteration or destruction of records
or data therein. Each Customer agrees that it shall be liable to FNT (or, if
applicable, its providers) for loss or damage related to such alteration or
destruction arising out of (i) a failure to exercise due care or (ii) an
intentional, dishonest or fraudulent act of an employee of Customer.
(g) Remedy. In the event that a Customer makes any unauthorized copy or
copies of records or data in any Back Plant, or FNT ceases to provide access to
the Back Plants or the records and data in the Back Plants in accordance with
this Agreement, the Parties acknowledge and agree that: (A) remedies at law will
not adequately compensate FNT or FIS, as the case may be; (B) FNT or FIS, as the
case may be, may suffer irreparable harm; and (C) FNT or FIS, as the case may
be, shall be entitled, not only to its damages, but also to seek injunctive
relief, without the necessity of posting bond.
6. WARRANTY EXCLUSION; DISCLAIMERS; LIMITATION OF LIABILITY
(a) WARRANTY EXCLUSION. ACCESS TO THE BACK PLANTS AND ALL INFORMATION
OBTAINED THROUGH THEM, WHETHER GENERATED BY FNT OR A PROVIDER, ARE LICENSED TO
EACH CUSTOMER "AS IS". FNT ASSUMES NO DUTY TO CONTINUE TO AUGMENT, CORRECT OR
REMOVE ANY INACCURATE INFORMATION OR NOTIFY CUSTOMERS OF ERRORS IN THE BACK
PLANTS. EACH CUSTOMER ASSUMES FULL RESPONSIBILITY FOR THE TANGIBLE AND BUSINESS
RESULTS OF USE AND/OR RELIANCE UPON THE BACK PLANTS AND ANY OTHER FNT PROPERTY.
NEITHER FNT NOR ITS PROVIDERS MAKE ANY IMPLIED WARRANTY OR REPRESENTATION,
INCLUDING WARRANTIES OF
7
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF
BACK PLANTS, OR ANY OTHER FNT PROPERTY MADE AVAILABLE TO ANY CUSTOMER.
(b) DISCLAIMER OF LIABILITIES. EACH PARTY AGREES THAT IN NO EVENT SHALL
THE OTHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES,
EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NEITHER FNT NOR ANY PROVIDER ASSUMES LIABILITY, AND SHALL NOT BE HELD LIABLE, TO
ANY CUSTOMER OR TO ANY CUSTOMER'S CUSTOMERS OR INSUREDS, OR TO ANY OTHER PERSON,
WHO MAY RELY UPON ANY TITLE POLICY, BINDER, GUARANTEE, ENDORSEMENT OR OTHER
TITLE ASSURANCE, OR ANY BACK PLANTS OR OTHER FNT PROPERTY PROVIDED OR ACCESSED
HEREUNDER (INCLUDING BY REASON OF ERROR OR OMISSION IN ANY INFORMATION OR
RESULTING FROM THE USE OF ANY FNT PROPERTY).
7. INDEMNITY
FIS shall indemnify and cause each Customer to indemnify and hold FNT harmless
from claims, liability, loss, damage or expense of whatever nature, including
attorney's fees, arising as a result of any claims by third parties alleging or
founded in any manner on any errors or omissions in the records or data
contained in the Back Plants. If such a claim is asserted, FNT shall promptly
notify FIS and the applicable Customer and, in the event of such notification,
FIS and such Customer may elect to defend FNT in any resulting action or
litigation. FIS and such applicable Customer may use for such purpose counsel of
such FIS' or Customer's choosing, approved in writing by FNT, at FIS' or the
Customer's expense. FIS and such Customer shall also have the right, whether or
not any action or litigation results, to compromise or settle any monetary claim
on behalf of FNT, but at the sole cost of FIS or such Customer.
FNT shall indemnify and hold each Customer harmless from claims, liability,
loss, damage or expense of whatever nature, including attorney's fees, arising
as a result of any claims by third parties alleging or founded in any manner on
the warranties contained in Section 5(a). If such a claim is asserted, such
Customer shall promptly notify FNT and, in the event of such notification, FNT
may elect to defend such Customer in any resulting action or litigation. FNT may
use for such purpose counsel of FNT's choosing, approved in writing by such
Customer, at FNT's expense. FNT shall also have the right, whether or not any
action or litigation results, to compromise or settle any monetary claim on
behalf of such Customer, but at the sole cost of FNT.
8. DISPUTE RESOLUTION
(a) Dispute Resolution. If any Party institutes an action against the
other for breach of this Agreement, either Party may, within sixty (60) days of
service of the complaint in such action upon it, institute arbitration and the
other Party shall cooperate to stay any other proceedings. Any such arbitration
shall be conducted in accordance with the Rules of Commercial Arbitration of the
American Arbitration Association ("AAA"). The arbitration shall be conducted in
Jacksonville, Florida by a single arbitrator knowledgeable about title insurance
8
and contracts. If the Parties have not agreed to a mutually acceptable
arbitrator within thirty (30) days of the date of the notice to arbitrate, the
arbitrator shall be selected by the AAA from its regularly maintained list of
commercial arbitrators familiar with matters similar to the subject of this
Agreement. The arbitrator shall conduct a single hearing for the purpose of
receiving evidence and shall render a decision within thirty (30) days of the
conclusion of the hearing. The Parties shall be entitled to require production
of documents prior to the hearing in accordance with the procedures of the
Federal Rule of Civil Procedure, shall exchange a list of witnesses, and shall
be entitled to conduct up to five (5) depositions in accordance with the
procedures of the Federal Rules of Civil Procedure. The decision of the
arbitrator shall be binding and final. The arbitrator may award only
compensatory damages, and not exemplary or punitive damages. In the event a
Party asserts multiple claims or causes of action, some but not all of which are
subject to arbitration under law, any and all claims subject to arbitration
shall be submitted to arbitration in accordance with this provision.
(b) Attorneys' Fees and Costs. Each Party shall bear its own costs,
expenses and attorneys' fees and shall equally bear the costs of the arbitrator.
(c) Parties to the Dispute. FIS agrees that it alone shall, to the extent
it is legally and reasonably able to do so, institute an action for breach of
this Agreement against FNT on behalf of itself or on behalf of Customers. FIS
shall cause each Customer to agree that FIS shall be the sole entity to
institute an action for breach of this Agreement by FNT.
9. DISASTER OR OTHER INTERRUPTION OF SERVICE
FNT shall not 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, nuclear accidents, floods,
strikes, terrorism and power blackouts. Upon the occurrence of a condition
described in this Article that prevents FNT's performance, FNT shall give
written notice to FIS, 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.
10. COMPETITION
This Agreement shall not operate to deny either Party or the Customers the right
and opportunity to compete with each other, or to compete on an equal basis on
the open market. Nothing contained in this Agreement is to be deemed to make any
Party the agent of the other or to constitute an association, partnership or
joint liability between the Parties. The Parties have no intention or thought to
agree between themselves, or even to confer together, as to underwriting
methods, as to fees or premiums to be charged by them to their customers, or as
to any other processes or practices of either Party except as otherwise stated
or prescribed by any Issuing Agency Agreement entered into between the Parties
or, if applicable, their affiliates.
9
11. COMPLIANCE BY CUSTOMERS
FIS has the authority to cause and shall cause each other Customer to comply
with the terms of this Agreement.
12. MISCELLANEOUS
(a) Interpretation. This Agreement is to be construed under the laws of
the State of Florida. If any one or more of the terms, provisions, promises,
covenants or conditions of this Agreement, or their application to any person,
corporation, other business entity, or circumstance is to any extent adjudged
invalid, unenforceable, void or voidable for any reason by a court of competent
jurisdiction, each and all of the remaining terms, provisions, promises,
covenants and conditions of this Agreement and their application to other
persons, corporations, business entities, or circumstances shall not be affected
and shall be valid and enforceable to the fullest extent permitted by law. This
Agreement shall not be construed against the Party preparing it, but shall be
construed as if both Parties prepared this Agreement. The headings of each
section and paragraph are to assist in reference only and are not to be used in
the interpretation of this Agreement. Nothing contained in this Agreement is to
be deemed to constitute an association, partnership or joint liability between
the Parties.
(b) No Assignment or Transfer. This Agreement cannot be assigned, in whole
or in part, by either Party by operation of law or otherwise, without the prior
written consent of the other Party, which consent shall not be unreasonably
withheld. Any assignment in contravention of this Section shall be void.
(c) Benefit. This Agreement will be binding upon and inure to the benefit
of the Parties hereto and their respective successors and permitted assigns.
This Agreement is solely for the benefit of the Parties hereto and no third
party will have the right or claim to the benefits afforded either Party
hereunder.
(d) Compliance with Laws and Regulations. FIS agrees to use and agrees to
cause each Customer to use information received from FNT in compliance with all
applicable Federal, State and local laws and regulations, including without
limitation, Fair Credit Reporting Act (U.S.C.A. Title 00, Xxxxxxx 00, Xxxxxxxxxx
XXX), as amended from time to time.
(e) Survival. Following the expiration or termination of this Agreement,
whether by its terms, operation of law or otherwise, all terms, provisions or
conditions required for the interpretation of this Agreement or necessary for
the full observation and performance by each Party hereto of all rights and
obligations arising prior to the date of expiration or termination, shall
survive such expiration or termination.
(f) Entire Agreement. This Agreement constitutes the entire agreement
between the Parties pertaining to the subject matter hereof and supersedes and
integrates all prior and contemporaneous agreements, representations and
understandings of the Parties, oral and written, pertaining to the subject
matter hereof. No waiver of any of the provisions of this Agreement is to be
considered a waiver of any other provision, whether or not similar, nor is any
waiver to constitute a continuing waiver. No waiver shall be binding unless set
forth in a writing
10
executed by the Party making the waiver. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but which together shall constitute one and the same instrument.
(g) Amendments. Except for any deletion of a Customer from Exhibit A
because the Customer is no longer a direct or indirect subsidiary of FIS (which
deletion and the termination of rights under this Agreement as to that Customer
shall be automatic upon the change of ownership of such Customer), no
supplement, modification, or amendment of this Agreement or any Schedules or
Exhibits hereto shall be binding unless executed in writing by the Parties.
Notwithstanding the foregoing, at any time prior to the Sale of FIS or any IPO
(as herein defined), this Agreement may not be amended without the prior written
consent of THL and TPG (as herein defined) if such amendment would affect the
term of this Agreement under Section 4 or FNT's right to terminate this
Agreement pursuant to Section 4, or the rights upon default by FIS or
Customer(s) pursuant to Section 4, or Sections 2, 3, 5, 6 or 7 or Exhibit C, in
each case in any manner materially adverse to FIS Group's consolidated business
activities, taken as a whole, or FIS Group's costs of doing business, viewed on
a consolidated basis, provided that in no event shall any change to the
schedules hereto require such prior written consent unless such change would
materially and adversely affect in any manner FIS Group's consolidated business
activities, taken as a whole, or FIS Group's costs of doing business, viewed on
a consolidated basis, and provided, further, that in no event shall the
amendment provisions set forth in this Section 12(g) be amended or modified
without the consent of THL and TPG. THL and TPG are intended third party
beneficiaries of this Agreement solely with respect to this Section 12(g). For
purposes of this Agreement, (i) "THL" means Xxxxxx X. Xxx Equity Fund V, L.P.
and "TPG" means TPG Partners III, L.P.; and (ii) "Sale of FIS or any IPO" means
any of the following: (A) 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 or the combined voting power of the then outstanding voting
securities of FIS entitled to vote generally in the election of directors;
excluding, however, the following: (I) 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 or (II)
any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by FIS or a member of the FIS Group, or (B) 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.
(h) Schedules. Each of the Schedules, Addenda and Exhibits attached to
this Agreement (initially or by way of amendment) is incorporated herein by
reference as if set forth in full.
[signature page to follow]
11
(i) Notices. All written notices permitted or required to be given under
this Agreement may be personally delivered to the office of the other Party, or
shipped via a nationally recognized overnight courier service, or mailed to the
office of the other Party by Certified United States Mail, or sent by electronic
mail. Each notice shall be addressed to the address set forth under the Party's
signature. Any notice delivered hereunder will be effective on the date
delivered when delivered personally or by overnight courier, or on the third
business day after mailing if mailed by Certified United States Mail, or on the
date delivered when sent by electronic mail. Either Party may, by written notice
to the other via first class mail, change its address for notices.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
FIDELITY NATIONAL TITLE GROUP, INC.
By ___________________________________
Xxxxxxx X. Xxxxx
Chief Executive Officer
Address for Notices:
Fidelity National Title Group, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: President
FIDELITY NATIONAL INFORMATION SERVICES, INC.
By ___________________________________
Xxxxxxx X. Xxxxxxxx
Senior Vice President
Address for Notices:
Fidelity National Information Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
12
