MASTER ACCOUNTING AND BILLING AGREEMENT
EXHIBIT 99.5
Execution Version
This Master Accounting and Billing Agreement (“Agreement”) is made as of October 23, 2006 by
and between Fidelity National Title Group, Inc., a Delaware corporation that, after the
consummation of the Transactions (as hereinafter defined), will be known as “Fidelity National
Financial, Inc.” (together with its subsidiaries, “FNF”), and Fidelity National Information
Services, Inc., a Georgia corporation (together with its subsidiaries, “FIS”). FNF and FIS are
herein referred to individual as a “Party” and, collectively, the “Parties”.
WHEREAS, the Parties and/or their subsidiaries have previously entered, contemporaneously
herewith will enter, and hereafter may enter, into various agreements with each other relating to
services, licenses, and other matters, including but not limited to corporate services agreements,
a master information technology agreement, software use, software development and intellectual
property licenses, a title plant maintenance agreement, starters and back plant repository
agreements, a lease and sublease, a telecommunications services agreement, a property management
agreement, an aircraft cost sharing agreement, and various cost sharing agreements (together with
all other agreements between FNF and/or its subsidiaries, on the one hand, and FIS and/or its
subsidiaries, on the other, that the Parties may hereafter enter into, each a “Intercompany
Agreement” and collectively, the “Intercompany Agreements”); and
WHEREAS, in connection with the consummation of the transactions (the “Transactions”)
contemplated by that certain Securities Exchange and Distribution Agreement dated as of June 25,
2006, as amended and restated as of September 18, 2006 (as so amended and restated, the
“Distribution Agreement”), between Fidelity National Financial, Inc., a Delaware corporation (“Old
FNF”) and FNF, and the consummation of the transactions contemplated by that certain Agreement and
Plan of Merger dated as of June 25, 2006 as previously amended and as amended and restated as of
September 18, 2006 (as so amended and restated, the “FIS Merger Agreement”), between Old FNF and
FIS (pursuant to which Old FNF will merge with and into FIS), the Parties wish to set forth their
agreement with regard to the process and procedures to be followed for billing of amounts owing
between them from time to time;
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. Monthly Summary Statement for all Costs and Amounts Owing.
(a) The Parties acknowledge it is their express intention to utilize one master accounting and
billing procedure for all amounts that may be owing between them from time to time pursuant to any
and all Intercompany Agreements. Until otherwise mutually agreed by the Parties, the Parties
contemplate that the accounting and billing procedure applicable to the billing, invoicing and
accounting for all amounts that may be owing or may become owing
between them pursuant to any and all Intercompany Agreements shall be as set forth on
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Schedule I hereto, or such revised version of Schedule I as may be agreed between
the Parties from time to time.
(b) Inclusion or Exclusion of Particular Intercompany Agreements in the Monthly Summary
Statement. It is the Parties express intention that the Monthly Summary Statement include the
costs, expenses and obligations owing between the Parties under any and all Intercompany
Agreements, as well as any other obligation owing between the Parties mutually designated by the
Parties to be included on the Monthly Statement. However, at any time, upon the request of either
Party, one or more particular Intercompany Agreement or other obligations may be excluded from the
Monthly Summary Statement, for so long as the requesting Party shall desire. At any time and from
time to time either Party may also request that one or more particular Intercompany Agreement or
other obligations may be added to the Monthly Summary Statement and the other Party shall not
unreasonably withhold its agreement to such request.
2. Term and Termination of this Agreement. This Agreement shall continue so long as any
Intercompany Agreement remains in effect, unless otherwise terminated by the Parties pursuant
hereto. This Agreement may be terminated at any time by either Party, upon not less than 60 days’
prior written notice.
3. Confidentiality. Each Party shall keep confidential any and all information concerning the
other Party which it may obtain pursuant to the activities described in this Agreement, and agrees
not to disclose such information to any person unless authorized to do so by the Party in question.
The provisions of this Section 3 shall not, however, apply to information made generally
available to the public by any Party or by third parties through lawful channels, or information
which is obtained from a third person who (insofar as is known to the recipient of such
information) is lawfully in possession of such information and not in violation of any contractual,
legal or fiduciary obligation to a Party with respect to such information.
4. Miscellaneous.
(a) 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.
(b) Counterparts. This Agreement may be executed in one or more counterparts, which
together shall constitute one and the same instrument.
(c) Successors, Assigns and Affiliates. This Agreement shall be binding upon, and
shall inure to the benefit of, the Parties hereto and their respective successors, assigns and
affiliates. This Agreement may not be assigned by any Party without the prior consent of the other
Parties.
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(d) 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.
(e) 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.
(f) Amendments. This Agreement may be amended only by an instrument in writing agreed
to by each of the Parties hereto.
(g) Effect and Effectiveness. This Agreement shall become effective as of the date
first above written. Nothing in this Agreement is intended to amend any substantive provision of
any Intercompany Agreement, and it is the express intention of the Parties that this Agreement be
interpreted solely as the Parties’ mutual desire and understanding with respect to the procedural
accounting and billing aspects applicable to each of the Intercompany Agreements. To the extent
that the provisions of this Agreement would interfere or conflict with the substantive provisions
of any particular Intercompany Agreement, the provisions of the particular Intercompany Agreement
shall prevail. Furthermore, to the extent that the nature of the provisions of any particular
Intercompany Agreement require that this Agreement’s provisions not be respected or applicable
thereto, then this Agreement shall not apply to that particular Intercompany Agreement, but shall
continue to apply to all other Intercompany Agreement, except to the extent otherwise agreed by the
Parties.
[signature page to follow]
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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 TITLE GROUP, INC. | ||||||||
| By | /s/ Xxxxxxx X. Xxxx | |||||||
| Xxxxxxx X. Xxxx | ||||||||
| Executive Vice President and Chief Financial Officer | ||||||||
| Address: | 000 Xxxxxxxxx Xxxxxx | |||||||
| Xxxxxxxxxxxx, Xxxxxxx 00000 | ||||||||
| Attention: General Counsel | ||||||||
| FIDELITY NATIONAL INFORMATION SERVICES, INC. | ||||||||
| By | /s/ Xxxxxxx X. Xxxxxxxx | |||||||
| Xxxxxxx X. Xxxxxxxx | ||||||||
| Executive Vice President — Legal | ||||||||
| Address: | 000 Xxxxxxxxx Xxxxxx | |||||||
| Xxxxxxxxxxxx, Xxxxxxx 00000 | ||||||||
| Attention: General Counsel | ||||||||
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SCHEDULE I
effective as of October 23, 2006
Unless otherwise mutually agreed by the Parties, the Parties agree that the accounting and billing
procedure applicable to the billing, invoicing and accounting for all amounts that may be owing
between them pursuant to any and all Intercompany Agreements shall be as set forth
(a) Monthly Summary Statements. Subject to the provisions of Paragraphs (b) below,
within 30 days after the end of each calendar month, (i) FNF shall prepare and deliver to the FIS
chief accounting officer (or his/her designee) a monthly summary statement (each a “Monthly Summary
Statement”) setting forth all expenses, costs and fees incurred during the preceding calendar
month, attributable or allocable to FIS and its subsidiaries, or otherwise owing by FIS to FNF,
under all Intercompany Agreements, as well as all other agreements between designated to be
included by the Parties and (ii) FIS shall prepare and deliver to the FNF chief accounting officer
(or his/her designee) a Monthly Summary Statement setting forth all expenses, costs and fees
incurred during the preceding calendar month, attributable or allocable to FNF and its
subsidiaries, or otherwise owing by FNF to FIS, under all Intercompany Agreements, as well as all
other agreements between designated to be included by the Parties. The specific form of the
Monthly Summary Statement shall be as agreed to between the parties from time to time, acting with
commercial reasonableness.
Upon receipt of a Monthly Summary Statement, each of FNF (on behalf of itself and its subsidiaries)
and FIS (on behalf of itself and its subsidiaries) will review the applicable Monthly Summary
Statements and offset the amounts owing, as shown on their respective Monthly Summary Statements
for the same month, so that the net amount owing from the applicable Party can be determined (in
any case, the “Monthly Net Amount”). The determination of the Monthly Net Amount owing each month
shall be made by FNF within two (2) Business Days of delivery of the Monthly Summary Statements
from each of FNF and FIS, and FNF shall provide FIS with a written statement of the Monthly Net
Amount (the “Monthly Net Amount Statement”).
Within ten (10) Business Days of the determination of the Monthly Net Amount, the chief accounting
officers (or their designees) from each of FNF and FIS shall confer together regarding the Monthly
Summary Statements and the Monthly Net Amount then owing. If the chief accounting officers (or
their designees) agree that the Monthly Net Amount is correct, then within ten (10) Business Days
after such conference and agreement, the Party owing the Monthly Net Amount shall cause immediately
available funds to be transferred to or to the order of the other Party, in an amount equal to the
Monthly Net Amount. If the chief accounting officers (or their designees) do not agree that the
Monthly Net Amount is correct, or if either Party shall otherwise dispute any amounts shown on the
applicable Monthly Summary Statement, then as soon as reasonably possible after the determination
of the Monthly Net Amount but not later than
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the tenth (10) Business Day thereafter, the disputing Party shall notify the other Party in writing
of the nature and basis of the dispute and/or the amount of the adjustment requested.
The Parties shall use their reasonable best efforts to resolve the dispute but if the Parties are
unable to resolve the dispute within twenty (20) Business Days after the determination date of the
Net Amount, then the dispute resolution procedures set forth in Paragraph (c) below shall
apply, provided that, in the event of any dispute regarding the amounts owing (and the use
of the dispute resolution process with respect thereto), the Party owing the Monthly Net Amount
shall nevertheless timely pay that portion of the Monthly Net Amount, as shown on the Monthly Net
Amount Statement, that is not in dispute, it being understood that if the amount owing is
later revised, then the excess amount so paid shall be either (i) promptly returned to the Party
making the payment, in immediately available funds or (ii) applied to credit the revised Monthly
Net Amount, as appropriate, and provided, further, that to the extent that any
amount in dispute is not paid within sixty (60) days after the date on which the non-disputing
Party is notified in writing of the dispute, then in addition to its liability for the disputed
amounts, the Party that is ultimately determined to have been incorrect as to the amount so in
dispute shall be liable to the other Party for interest, calculated on the amount in dispute
ultimately determined to be incorrect, at a rate amount equal to one percent (1%) per annum above
the “prime rate” as announced in the “Money Rates” section of the most recent edition of The Wall
Street Journal, which interest rate shall change as and when the “prime rate” changes.
(b) Alternative Accounting and Billing Procedure Applicable at Present. Without limiting
the applicability of the foregoing, the Parties agree that effective as of October 23, 2006 until
otherwise requested by FIS, the following accounting and billing procedures shall apply, as an
alternative to the procedures set forth in Paragraph (a) above:
Only one Monthly Summary Statement (the “Combined Monthly Summary Statement”) will be prepared by
FNF with respect to all expenses, costs and fees attributable or allocable to each of FNF (and its
subsidiaries) and FIS (and its subsidiaries) under all agreements between FNF (and/or any of its
subsidiaries), on the one hand, and FIS (and/or any of its subsidiaries), on the other, incurred
during the preceding calendar month. A copy of the Combined Monthly Summary Statement will be
provided to FIS within 30 calendar days after the end of each calendar month. In addition to
setting forth in detail the monthly amounts owing under each such agreement, the Combined Monthly
Summary Statement will also set forth the calculation of the offsetting amounts owing, so that the
net amount owing from the applicable Party can be determined (the Monthly Net Amount). Within ten
(10) Business Days after receiving the Combined Monthly Summary Statement, the FIS chief accounting
officer (or his/her designee) shall review the Combined Monthly Summary Statement and the Monthly
Net Amount then owing. If the FIS chief accounting officer (or his/her designee) agrees that the
Combined Monthly Summary Statement and the resulting Monthly Net Amount is correct, then within ten
(10) Business Days after FIS’ receipt of the Combined Monthly Summary Statement, FIS shall notify
FNF of its agreement to the Monthly Net Amount and the Party owing the Monthly Net Amount shall
cause immediately available funds to be transferred to (or to the order of) the other Party, in an
amount equal to the Monthly Net Amount. If the FIS chief accounting officers (or his/her designee)
does not agree that the Combined Monthly Summary Statement and the
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resulting Monthly Net Amount is correct, then before the tenth (10) Business Day after receiving
the Combined Monthly Summary Statement, he/she shall notify FNF in writing of the nature and basis
of his/her objections and, if known at the time, the amount of the adjustment(s) requested.
The Parties shall use their reasonable best efforts to resolve FIS’ objections, but if the Parties
are unable to resolve their differences within twenty (20) Business Days after FIS’s receipt of the
Combined Monthly Summary Statement, then the dispute resolution procedures set forth in
Paragraph (c) below shall apply, provided that, in the event of any dispute
regarding the amounts owing (and the use of the dispute resolution process with respect thereto),
the Party owing the Monthly Net Amount shall nevertheless timely pay that portion of the Monthly
Net Amount, as shown on the Monthly Net Amount Statement, that is not in dispute, it being
understood that if the amount owing is later revised, then the excess amount so paid shall be
either (i) promptly returned to the Party making the payment, in immediately available funds or
(ii) applied to credit the revised Monthly Net Amount, as appropriate, and provided,
further, that to the extent that any amount in dispute is not paid within sixty (60) days
after the date on which the non-disputing Party is notified in writing of the dispute, then in
addition to its liability for the disputed amounts, the Party that is ultimately determined to have
been incorrect as to the amount so in dispute shall be liable to the other Party for interest,
calculated on the amount in dispute ultimately determined to be incorrect, at a rate amount equal
to one percent (1%) per annum above the “prime rate” as announced in the “Money Rates” section of
the most recent edition of The Wall Street Journal, which interest rate shall change as and when
the “prime rate” changes.
(c) Dispute Resolution.
(i) 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 accounting and
billing procedure (but not relating to the provisions of, or the substance and content of, any
Intercompany Agreement), then the Dispute, upon written request of either Party, will be referred
for resolution to the General Counsels of the Parties, which General Counsels will have ten (10)
days to resolve such Dispute. Without limiting the foregoing, the Parties acknowledge and agree
that the resolution of any dispute relating to the substantive provisions of any particular
Intercompany Agreement shall be governed by the dispute resolution provision of the particular
Intercompany Agreement in question.
(ii) Mediation. In the event any Dispute cannot be resolved in a friendly manner as set
forth in Paragraph (c)(i), the Parties intend that such Dispute be resolved by mediation.
If the General Counsels of the Parties are unable to resolve the Dispute as contemplated by
Paragraph (c)(i), either Party may demand mediation of the Dispute by written notice to the
other in which case the two Parties will select a single mediator within ten (10) days after the
demand. Neither Party may unreasonably withhold consent to the selection of the mediator. Each
Party will bear its own costs of mediation but both Parties will share the costs of the mediator
equally.
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(iii) Arbitration. In the event that the Dispute is not resolved pursuant to Paragraph
(c)(i) or through mediation pursuant to Paragraph (c)(ii), the latter within thirty
(30) days of the submission of the Dispute to mediation, either Party involved in the Dispute may
submit the dispute to binding arbitration pursuant to this Paragraph (c)(iii). All
Disputes submitted to arbitration pursuant to this Paragraph (c)(iii) 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 thirty (30) days after notice of commencement of arbitration, the American
Arbitration Association shall, upon the request of any Party to the dispute or difference, appoint
the arbitrator. Any order or determination of the arbitral tribunal shall be final and binding
upon the Parties to the arbitration as to matters submitted and may be enforced by any Party to the
Dispute in any court having jurisdiction over the subject matter or over any of the Parties. All
costs and expenses incurred in connection with any such arbitration proceeding (including
reasonable attorneys’ fees) shall be borne by the Party incurring such costs. The use of any
alternative dispute resolution procedures hereunder will not be construed under the doctrines of
laches, waiver or estoppel to affect adversely the rights of either Party.
(iv) Non-Exclusive Remedy. Each of the Parties acknowledge and agree that money damages would
not be a sufficient remedy for any breach of this Agreement by either Party or misuse of the
Confidential Information of FNF or FIS, as the case may be. Accordingly, nothing in this
Paragraph (c) will prevent either Party from immediately seeking injunctive or interim
relief in the event of any actual or threatened breach of any confidentiality provisions of this
Agreement. All actions for such 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.
(v) Commencement of Dispute Resolution Procedure. Notwithstanding anything to the contrary in
this Agreement, the Parties, but none of their respective Subsidiaries, are entitled to commence a
dispute resolution procedure under this Agreement, whether pursuant to this Paragraph (c)
or otherwise, and each Party will cause its respective Subsidiaries not to commence any dispute
resolution procedure other than through such Party as provided in this Paragraph (c).
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