EXHIBIT 10.2
CORPORATE SERVICES AGREEMENT
This Corporate Services Agreement (this "Agreement") is effective as
of _____________, 2005 (the "Effective Date"), by and between FIDELITY
NATIONAL TITLE GROUP, INC., a Delaware corporation ("FNT" or "PROVIDING
PARTY"), and FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation
("FNF" or "RECEIVING PARTY"). FNT and FNF shall be referred to together in
this Agreement as the "Parties" and individually as a "Party."
WHEREAS, FNF has undertaken a strategic restructuring plan, pursuant
to which FNT has been formed and will be the holding company for all of
FNF's title insurance subsidiaries and operations; and
WHEREAS, in conjunction with this restructuring plan, the Parties have
entered into a Separation Agreement dated as of _____________, 2005 (the
"Separation Agreement"); and
WHEREAS, in conjunction with the Separation Agreement, the Parties
wish to enter into this Agreement;
NOW THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereto agree as follows:
ARTICLE I
CORPORATE SERVICES
1.1 Corporate Services. This Agreement sets forth the terms and
conditions for the provision by PROVIDING PARTY to RECEIVING PARTY of
various corporate services and products, as more fully described below and
in Schedule 1.1(a) attached hereto (the Scheduled Services, the Omitted
Services, the Resumed Services and Special Projects (as defined below),
collectively, the "Corporate Services").
(a) PROVIDING PARTY, through its Subsidiaries (as defined below)
and their respective employees, agents or contractors, shall provide or cause to
be provided to RECEIVING PARTY and its Subsidiaries all services set forth on
Schedule 1.1(a) (the "Scheduled Services") on and after the Effective Date (with
such services to be provided to the RECEIVING PARTY's Subsidiaries as they
become Subsidiaries of RECEIVING PARTY, subject to the exception in clause (ii)
of Section 1.2(a)). RECEIVING PARTY shall pay fees to PROVIDING PARTY for
providing the Scheduled Services or causing the Scheduled Services to be
provided as set forth in Schedule 1.1(a). For purposes of this Agreement,
"Subsidiary" means, with respect to any Party, any corporation or other legal
entity of which such Party controls or owns, directly or indirectly, more than
fifty percent (50%) of the stock or other equity interest entitled to vote on
the election of the members to the board of directors or similar governing body,
provided, however, that when and with respect to the RECEIVING PARTY,
"Subsidiary" shall not include Fidelity National Information
1
Services, Inc. or any of its Subsidiaries and shall not include PROVIDING PARTY
or its Subsidiaries.
(b) PROVIDING PARTY, through its Subsidiaries and their
respective employees, agents or contractors, shall provide or cause to be
provided to RECEIVING PARTY and its Subsidiaries all services that PROVIDING
PARTY was performing for RECEIVING PARTY and its Subsidiaries as of the
Effective Date that pertain to and are a part of Scheduled Services under
Section 1.1(a) (with such services to be provided to the RECEIVING PARTY's
Subsidiaries as they become Subsidiaries of RECEIVING PARTY, subject to the
exception in clause (ii) of Section 1.2(a)), which are not expressly included in
the list of Scheduled Services in Schedule 1.1(a), but are required to conduct
the business of RECEIVING PARTY and its Subsidiaries (the "Omitted Services"),
unless RECEIVING PARTY consents in writing to the termination of such services.
Such Omitted Services shall be added to Schedule 1.1(a) and thereby become
Scheduled Services, as soon as reasonably practicable after the Effective Date
by the Parties. In the event that RECEIVING PARTY or its Subsidiaries had been
allocated charges or otherwise paid PROVIDING PARTY or its Subsidiaries for such
Omitted Services immediately prior to the Effective Date, RECEIVING PARTY shall
pay to PROVIDING PARTY for providing the Omitted Services or causing the Omitted
Services to be provided hereunder fees equal to the actual fees paid for such
Omitted Services immediately preceding the Effective Date; provided, that
payment of such fees by the RECEIVING PARTY for the Omitted Services provided
hereunder shall be retroactive to the first day of the calendar quarter in which
either Party identifies such services as Omitted Services, but in no event shall
RECEIVING PARTY be required to pay for any Omitted Services provided hereunder
by the PROVIDING PARTY or its Subsidiaries prior to the Effective Date. In the
event that RECEIVING PARTY or its Subsidiaries had not been allocated charges or
otherwise paid PROVIDING PARTY or its Subsidiaries for such Omitted Services
immediately prior to the Effective Date, the Parties shall negotiate in good
faith a fee to be based on the cost of providing such Omitted Services, which
shall in no event be less than the Default Fee (as defined below); provided,
that payment of such fees by the RECEIVING PARTY for the Omitted Services
provided hereunder by the RECEIVING PARTY shall be retroactive to the first day
of the calendar quarter in which either the Party identifies such services as
Omitted Services, but in no event shall RECEIVING PARTY be required to pay for
any such Omitted Services provided hereunder by the PROVIDING PARTY or its
Subsidiaries prior to the Effective Date. The "Default Fee" means an amount
equal to one hundred fifty percent (150%) of the salary of each full-time
employee, on an hourly basis, who provides the applicable Corporate Service or
Transition Assistance (as defined in Section 2.3).
(c) At RECEIVING PARTY's written request, PROVIDING PARTY,
through its Subsidiaries and their respective employees, agents or contractors,
shall use commercially reasonable efforts to provide or cause to be provided to
RECEIVING PARTY and its Subsidiaries any Scheduled Service that has been
terminated at RECEIVING PARTY's request pursuant to Section 2.2 (the "Resumed
Services"); provided, that PROVIDING PARTY shall have no obligation to provide a
Resumed Service if providing such Resumed Service will have a material adverse
impact on the other Corporate Services. Schedule 1.1(a) shall from time to time
be amended to reflect the resumption of a Resumed Service and the Resumed
Service shall be set forth thereon as a Scheduled Service.
2
(d) At RECEIVING PARTY's written request, PROVIDING PARTY,
through its Subsidiaries and their respective employees, agents or contractors,
shall use commercially reasonable efforts to provide additional corporate
services that are not described in the Schedule 1.1(a) and that are neither
Omitted Services nor Resumed Services ("Special Projects"). RECEIVING PARTY
shall submit a written request to PROVIDING PARTY specifying the nature of the
Special Project and requesting an estimate of the costs applicable for such
Special Project and the expected time frame for completion. PROVIDING PARTY
shall respond promptly to such written request, but in no event later than
twenty (20) days, with a written estimate of the cost of providing such Special
Project and the expected time frame for completion (the "Cost Estimate"). If
RECEIVING PARTY provides written approval of the Cost Estimate within ten (10)
days after PROVIDING PARTY delivers the Cost Estimate, then within a
commercially reasonable time after receipt of RECEIVING PARTY's written request,
PROVIDING PARTY shall begin providing the Special Project; provided, that
PROVIDING PARTY shall have no obligation to provide a Special Project where, in
its reasonable discretion and prior to providing the Cost Estimate, it has
determined and notified RECEIVING PARTY in writing that (i) it would not be
feasible to provide such Special Project, given reasonable priority to other
demands on its resources and capacity both under this Agreement or otherwise or
(ii) it lacks the experience or qualifications to provide such Special Project.
1.2 Provision of Corporate Services; Excused Performance. To the
extent commercially reasonable, the Parties will work together and begin
the process of migrating the Corporate Services from PROVIDING PARTY to
RECEIVING PARTY, one or more of its Subsidiaries or a third party (at
RECEIVING PARTY's direction) such that the completion of the migration of
the Corporate Services from PROVIDING PARTY to RECEIVING PARTY, one or more
of its Subsidiaries or a third party, as the case may be, shall occur prior
to the end of the Term. PROVIDING PARTY shall provide or cause to be
provided each of the Corporate Services through the expiration of the Term,
except (i) as automatically modified by earlier termination of a Corporate
Service by RECEIVING PARTY in accordance with this Agreement, (ii) for
Corporate Services to or for the benefit of any entity which ceases to be a
Subsidiary of RECEIVING PARTY prior to the end of the Term, or (iii) as
otherwise agreed to by the Parties in writing.
1.3 Third Party Vendors; Consents.
(a) PROVIDING PARTY shall use its commercially reasonable efforts
to keep and maintain in effect its relationships with its vendors that are
integral to the provision of the Corporate Services. PROVIDING PARTY shall use
commercially reasonable efforts to procure any waivers, permits, consents or
sublicenses required by third party licensors, vendors or service providers
under existing agreements with such third parties in order to provide any
Corporate Services hereunder ("Third Party Consents"). In the event that
PROVIDING PARTY is unable to procure such Third Party Consents on commercially
reasonable terms, PROVIDING PARTY agrees to so notify RECEIVING PARTY, and to
assist RECEIVING PARTY with the transition to another vendor. If, after the
Effective Date, any one or more vendors (i) terminates its contractual
relationship with PROVIDING PARTY or ceases to provide the products or services
associated with the Corporate Services or (ii) notifies PROVIDING PARTY of its
desire or plan to terminate its contractual relationship with PROVIDING PARTY or
(iii) ceases providing the products or services associated with the Corporate
Services, then, in either case, PROVIDING PARTY agrees to so notify
3
RECEIVING PARTY, and to assist RECEIVING PARTY with the transition to another
vendor so that RECEIVING PARTY may continue to receive similar products and
services.
(b) PROVIDING PARTY shall not be required to transfer or assign
to RECEIVING PARTY any third party software licenses or any hardware owned by
PROVIDING PARTY or its Subsidiaries in connection with the provision of the
Corporate Services or at the conclusion of the Term.
1.4 Dispute Resolution.
(a) Amicable Resolution. PROVIDING PARTY and RECEIVING PARTY
mutually desire that friendly collaboration will continue between them.
Accordingly, they will try to resolve in an amicable manner all disagreements
and misunderstandings connected with their respective rights and obligations
under this Agreement, including any amendments hereto. In furtherance thereof,
in the event of any dispute or disagreement (a "Dispute") between PROVIDING
PARTY and RECEIVING PARTY in connection with this Agreement (including, without
limitation, the standards of performance, delay of performance or
non-performance of obligations, or payment or non-payment of fees hereunder),
then the Dispute, upon written request of either Party, will be referred for
resolution to the president (or similar position) of the division implicated by
the matter for each of PROVIDING PARTY and RECEIVING PARTY, which presidents
will have fifteen (15) days to resolve such Dispute. If the presidents of the
relevant divisions for each of PROVIDING PARTY and RECEIVING PARTY do not agree
to a resolution of such Dispute within fifteen (15) days after the reference of
the matter to them, such presidents of the relevant divisions will refer such
matter to the president of each of PROVIDING PARTY and RECEIVING PARTY for final
resolution. Notwithstanding anything to the contrary in this Section 1.4, any
amendment to the terms of this Agreement may only be effected in accordance with
Section 11.10.
(b) Arbitration. In the event that the Dispute is not resolved in
a friendly manner as set forth in Section 1.4(a), either Party involved in the
Dispute may submit the dispute to binding arbitration pursuant to this Section
1.4(b). All Disputes submitted to arbitration pursuant to this Section 1.4(b)
shall be resolved in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, unless the Parties involved mutually agree to
utilize an alternate set of rules, in which event all references herein to the
American Arbitration Association shall be deemed modified accordingly. Expedited
rules shall apply regardless of the amount at issue. Arbitration proceedings
hereunder may be initiated by either Party making a written request to the
American Arbitration Association, together with any appropriate filing fee, at
the office of the American Arbitration Association in Orlando, Florida. All
arbitration proceedings shall be held in the city of Jacksonville, Florida in a
location to be specified by the arbitrators (or any place agreed to by the
Parties and the arbitrators). The arbitration shall be by a single qualified
arbitrator experienced in the matters at issue, such arbitrator to be mutually
agreed upon by PROVIDING PARTY and RECEIVING PARTY. If PROVIDING PARTY and
RECEIVING PARTY fail to agree on an arbitrator within thirty (30) days after
notice of commencement of arbitration, the American Arbitration Association
shall, upon the request of any Party to the Dispute, appoint the arbitrator. Any
order or determination of the arbitral tribunal shall be final and binding upon
the Parties to the arbitration as to matters submitted and may be enforced by
any Party to the Dispute in any court having jurisdiction over the subject
matter or over any of the Parties. All costs and expenses incurred in connection
with any such arbitration proceeding (including reasonable
4
attorneys' fees) shall be borne by the Party incurring such costs. The use of
any alternative dispute resolution procedures hereunder will not be construed
under the doctrines of laches, waiver or estoppel to affect adversely the rights
of either Party.
(c) Non-Exclusive Remedy. Nothing in this Section 1.4 will
prevent either PROVIDING PARTY or RECEIVING PARTY from immediately seeking
injunctive or interim relief in the event (i) of any actual or threatened breach
of any of the provisions of Article VIII or (ii) that the Dispute relates to, or
involves a claim of, actual or threatened infringement of intellectual property.
All such actions for injunctive or interim relief shall be brought in a court of
competent jurisdiction in accordance with Section 11.6. Such remedy shall not be
deemed to be the exclusive remedy for breach of this Agreement, and further
remedies may be pursued in accordance with Section 1.4(a) and Section 1.4(b)
above.
(d) Commencement of Dispute Resolution Procedure. Notwithstanding
anything to the contrary in this Agreement, PROVIDING PARTY and RECEIVING PARTY,
but none of their respective Subsidiaries, are entitled to commence a dispute
resolution procedure under this Agreement, whether pursuant to Article XI, this
Section 1.4 or otherwise, and each Party will cause its respective affiliates
not to commence any dispute resolution procedure other than through such Party
as provided in this Section 1.4(d).
(e) Compensation. RECEIVING PARTY shall continue to make all
payments due and owing under Article III for Corporate Services not the subject
of a Dispute and shall not off-set such fees by the amount of fees for Corporate
Services that are the subject of the Dispute.
1.5 Standard of Services.
(a) PROVIDING PARTY shall perform the Corporate Services for
RECEIVING PARTY in a professional and competent manner, using standards of
performance consistent with its performance of such services for itself.
(b) During the Term, PROVIDING PARTY shall maintain a disaster
recovery program for the Corporate Services substantially consistent with the
disaster recovery program in place for such Corporate Services as of the
Effective Date. For the avoidance of doubt, the disaster recovery program
maintained by PROVIDING PARTY will not include a business continuity program.
(c) If RECEIVING PARTY provides PROVIDING PARTY with written
notice ("Shortfall Notice") of the occurrence of any Significant Service
Shortfall (as defined below), as determined by RECEIVING PARTY in good faith,
PROVIDING PARTY shall rectify such Significant Service Shortfall as soon as
reasonably possible. For purposes of this Section 1.5(c), a "Significant Service
Shortfall" shall be deemed to have occurred if the timing or quality of
performance of Corporate Services provided by PROVIDING PARTY hereunder falls
below the standard required by Section 1.5(a) hereof; provided that PROVIDING
PARTY's obligations under this Agreement shall be relieved to the extent, and
for the duration of, any force majeure event as set forth in Article V.
1.6 Response Time. PROVIDING PARTY shall respond to and resolve any
problems in connection with the Corporate Services for RECEIVING PARTY
within a
5
commercially reasonable period of time, using response and proposed
resolution times consistent with its response and resolution of such
problems for itself.
1.7 Ownership of Materials; Results and Proceeds. All data and
information submitted to PROVIDING PARTY by RECEIVING PARTY, in connection
with the Corporate Services or the Transition Assistance (as defined in
Section 2.3) (the "RECEIVING PARTY Data"), and all results and proceeds of
the Corporate Services and the Transition Assistance with regard to the
RECEIVING PARTY Data, is and will remain, as between the Parties, the
property of the RECEIVING PARTY. The PROVIDING PARTY shall not and shall
not permit its Subsidiaries to use the RECEIVING PARTY Data for any purpose
other than to provide the Corporate Services or Transition Assistance.
ARTICLE II
TERM AND TRANSITION ASSISTANCE
2.1 Term. The term (the "Term") of this Agreement shall commence as of
the date hereof and shall continue until the date on which the last of the
Scheduled Services under this Agreement is terminated or the date on which
this Agreement is terminated by mutual agreement of the Parties, whichever
is earlier (in either case, the "Termination Date"); provided, however,
that in no event shall the Term:
(a) expire later than the date that is six (6) months after any
event or circumstance causing FNF to own or control, directly or indirectly,
fifty percent (50%) or less of the stock, or other equity interest entitled to
vote on the election of the members to the board of directors or similar
governing body, of FNT, and
(b) continue, with respect to any entity that ceases to be a
Subsidiary of RECEIVING PARTY prior to the end of the Term, from and after the
date that such entity ceases to be a Subsidiary of RECEIVING PARTY.
2.2 Termination.
(a) If RECEIVING PARTY is not able to complete its transition of
the Corporate Services by the Termination Date, then upon written notice
provided to PROVIDING PARTY at least thirty (30) days prior to the Termination
Date, RECEIVING PARTY shall have the right to request and cause PROVIDING PARTY
to provide up to thirty (30) days of additional Corporate Services to RECEIVING
PARTY; provided, that RECEIVING PARTY shall pay for all such additional
Corporate Services.
(b) If RECEIVING PARTY wishes to terminate a Corporate Service
(or a portion thereof) on a date that is earlier than the Termination Date,
RECEIVING PARTY shall provide written notice (the "Termination Notice") to
PROVIDING PARTY of a proposed termination date for such Corporate Service (or
portion thereof), at least ninety (90) days prior to such proposed termination
date. Upon receipt of such notice, PROVIDING PARTY shall promptly provide notice
to RECEIVING PARTY (the "Termination Dispute Notice") in the event that the
PROVIDING PARTY believes in good faith that, notwithstanding the PROVIDING PARTY
using its commercially reasonable efforts, the requested termination will have a
material adverse impact on other Corporate Services and the scope of such
adverse impact. In such event, the Parties will
6
resolve the dispute in accordance with Section 1.4. If PROVIDING PARTY does not
provide the Termination Dispute Notice, based on the standards set forth above,
within ten (10) days of the date on which the Termination Notice was received,
then, effective on the termination date proposed by RECEIVING PARTY in its
Termination Notice, such Corporate Service (or portion thereof) shall be
discontinued (thereafter, a "Discontinued Corporate Service") and deemed deleted
from the Scheduled Services to be provided hereunder and thereafter, this
Agreement shall be of no further force and effect with respect to the
Discontinued Corporate Service (or portion thereof), except as to obligations
accrued prior to the date of discontinuation of such Corporate Service (or
portion thereof). Upon the occurrence of any Discontinued Corporate Service, the
Parties shall promptly update Schedule 1.1(a) to reflect the discontinuation,
and the Corporate Service Fees shall be adjusted in accordance therewith and the
provisions of Article III. Notwithstanding anything to the contrary contained
herein, at any time that employees of PROVIDING PARTY or its Subsidiaries move
to a department within RECEIVING PARTY or its Subsidiaries (an "Employee
Shift"), a proportional portion of the relevant Corporate Service shall be
deemed automatically terminated. If a Corporate Service, or portion thereof, is
terminated as a result of an Employee Shift, then such termination shall take
effect as of the date of the Employee Shift, and the adjustment in Corporate
Service Fees shall also take effect as of the date of the Employee Shift.
(c) If all Corporate Services shall have been terminated under
this Section 2.2 prior to the expiration of the Term, then either Party shall
have the right to terminate this Agreement by giving written notice to the other
Party, which termination shall be effective upon delivery as provided in Section
6.1.
2.3 Transition Assistance. In preparation for the discontinuation of
any Corporate Service provided under this Agreement, PROVIDING PARTY shall,
consistent with its obligations to provide Corporate Services hereunder and
with the cooperation and assistance of RECEIVING PARTY, use commercially
reasonable efforts to provide such knowledge transfer services and to take
such steps as are reasonably required in order to facilitate a smooth and
efficient transition and/or migration of records to the RECEIVING PARTY or
its Subsidiaries (or at RECEIVING PARTY's direction, to a third party) and
responsibilities so as to minimize any disruption of services ("Transition
Assistance"). RECEIVING PARTY shall cooperate with PROVIDING PARTY to allow
PROVIDING PARTY to complete the Transition Assistance as early as is
commercially reasonable to do so. Fees for any Transition Assistance shall
be determined in accordance with the calculation formula and methods
applicable to the Scheduled Services that are most similar in nature to the
Transition Assistance being so provided, as set forth on the applicable
section of Schedule 1.1(a).
2.4 Return of Materials. As a Corporate Service or Transition
Assistance is terminated, each Party will return all materials and property
owned by the other Party, including, without limitation, all RECEIVING
PARTY Data, if any, and materials and property of a proprietary nature
involving a Party or its Subsidiaries relevant to the provision or receipt
of that Corporate Service or Transition Assistance and no longer needed
regarding the performance of other Corporate Services or other Transition
Assistance under this Agreement, and will do so (and will cause its
Subsidiaries to do so) within thirty (30) days after the applicable
termination. Upon the end of the Term, each Party will return all material
and property of a proprietary nature involving the other Party or its
Subsidiaries, in its possession or control (or the possession or control of
an affiliate) within thirty (30) days after the end of the Term. In
addition, upon
7
RECEIVING PARTY's request, PROVIDING PARTY agrees to provide to RECEIVING
PARTY copies of RECEIVING PARTY's Data, files and records on magnetic
media, or such other media as the Parties shall agree upon, to the extent
practicable. PROVIDING PARTY may retain archival copies of RECEIVING
PARTY's Data, files and records.
ARTICLE III
COMPENSATION AND PAYMENT ARRANGEMENTS FOR CORPORATE
SERVICES AND CORPORATE MARKS
3.1 Compensation for Corporate Services.
(a) In accordance with the payment terms described in Section 3.2
below, RECEIVING PARTY agrees to timely pay PROVIDING PARTY, as compensation for
the Corporate Services provided hereunder, all fees as contemplated in Section
1.1 (the "Corporate Service Fees") and in Section 2.3 (the "Transition
Assistance Fees").
(b) Without limiting the foregoing, the parties acknowledge that
RECEIVING PARTY is also obligated to pay, or reimburse PROVIDING PARTY for its
payment of, all Out of Pocket Costs (as defined below); provided, however, that
the incurrence of any liability by RECEIVING PARTY or any of its Subsidiaries
for any New Out of Pocket Cost (as defined below) that requires the payment by
RECEIVING PARTY or one of its Subsidiaries of more than $50,000, on an
annualized basis, shall require the prior written approval of a full-time
employee of RECEIVING PARTY or one of its Subsidiaries. For purposes hereof, the
term "Out of Pocket Costs" means all fees, costs or other expenses payable by
RECEIVING PARTY or its Subsidiaries to third parties that are not affiliates of
PROVIDING PARTY in connection with Services provided hereunder; and the term
"New Out of Pocket Cost" means any Out of Pocket Cost incurred after the
Effective Date that is not a continuation of services provided to FNF or one of
its Subsidiaries in the ordinary course of business consistent with past
practices and for which FNF had paid or reimbursed a portion thereof prior to
the Effective Date.
3.2 Payment Terms. The PROVIDING PARTY shall invoice the RECEIVING
PARTY on a monthly basis in arrears for Corporate Service Fees plus
Transition Assistance Fees, as calculated in accordance with Section 3.1
and Schedule 1.1(a). In addition, the PROVIDING PARTY shall promptly notify
the RECEIVING PARTY, no more frequently than monthly, of the aggregate
amount of Out of Pocket Costs to be reimbursed or paid. The RECEIVING PARTY
shall pay by electronic funds transfer or other method satisfactory to
PROVIDING PARTY and RECEIVING PARTY, in full, the monthly amount so
invoiced and the Out of Pocket Costs incurred, within thirty (30) days
after the date on which the PROVIDING PARTY's monthly invoice or
notification of Out of Pocket Costs, as the case may be, was received. All
invoices shall include, without limitation, the category of applicable
Corporate Service or Transition Assistance Service (as the case may be), a
brief description of the Out of Pocket Costs (if applicable), the billing
period, and such other information as RECEIVING PARTY may reasonably
request. Should RECEIVING PARTY dispute any portion of the amount due on
any invoice or require any adjustment to an invoiced amount, or dispute any
Out of Pocket Costs for which it received notification, then RECEIVING
PARTY shall notify PROVIDING PARTY in writing of the nature and basis of
the dispute and/or adjustment as soon as reasonably possible using, if
necessary, the dispute resolution procedures
8
set forth in Section 1.4. The Parties shall use their reasonable best
efforts to resolve the dispute prior to the payment due date.
3.3 Audit Rights. Upon reasonable advance notice from RECEIVING PARTY,
PROVIDING PARTY shall permit RECEIVING PARTY to perform annual audits of
PROVIDING PARTY's records only with respect to amounts invoiced and
Out-of-Pocket Costs invoiced pursuant to this Article III. Such audits
shall be conducted during PROVIDING PARTY's regular office hours and
without disruption to PROVIDING PARTY's business operations and shall be
performed at RECEIVING PARTY's sole expense.
ARTICLE IV
LIMITATION OF LIABILITY
4.1 LIMITATION OF LIABILITY. THE LIABILITY OF EITHER PARTY FOR A CLAIM
ASSERTED BY THE OTHER PARTY BASED ON BREACH OF ANY COVENANT, AGREEMENT OR
UNDERTAKING REQUIRED BY THIS AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATE,
THE FEES PAYABLE BY RECEIVING PARTY TO PROVIDING PARTY DURING THE ONE (1)
YEAR PERIOD PRECEDING THE BREACH FOR THE PARTICULAR CORPORATE SERVICE
AFFECTED BY SUCH BREACH UNDER THIS AGREEMENT; PROVIDED THAT SUCH LIMITATION
SHALL NOT APPLY IN RESPECT OF ANY CLAIMS BASED ON A PARTY'S (i) GROSS
NEGLIGENCE, (ii) WILLFUL MISCONDUCT, (iii) IMPROPER USE OR DISCLOSURE OF
CUSTOMER INFORMATION, (iv) VIOLATIONS OF LAW, OR (v) INFRINGEMENT OF THE
INTELLECTUAL PROPERTY RIGHTS OF A PERSON OR ENTITY WHO IS NOT A PARTY
HERETO OR THE SUBSIDIARY OF A PARTY HERETO.
4.2 DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY
INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGE OF ANY KIND
WHATSOEVER; PROVIDED, HOWEVER, THAT TO THE EXTENT AN INDEMNIFIED PARTY
UNDER ARTICLE X IS REQUIRED TO PAY ANY SPECIAL, INCIDENTAL, INDIRECT,
COLLATERAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS TO A PERSON
OR ENTITY WHO IS NOT A PARTY OR A SUBSIDIARY OF THE INDEMNIFIED PARTY IN
CONNECTION WITH A THIRD PARTY CLAIM, SUCH DAMAGES WILL CONSTITUTE DIRECT
DAMAGES AND WILL NOT BE SUBJECT TO THE LIMITATION SET FORTH IN THIS ARTICLE
IV.
ARTICLE V
FORCE MAJEURE
Neither Party shall be held liable for any delay or failure in
performance of any part of this Agreement from any cause beyond its
reasonable control and without its fault or negligence, including, but not
limited to, acts of God, acts of civil or military authority, embargoes,
epidemics, war, terrorist acts, riots, insurrections, fires, explosions,
earthquakes, hurricanes, tornadoes, nuclear accidents, floods, strikes,
terrorism and power blackouts. Upon the occurrence of a condition described
in this Article, the Party whose performance is prevented shall give
written notice to the other Party, and the Parties shall promptly confer,
in good faith, to
9
agree upon equitable, reasonable action to minimize the impact, on both
Parties, of such conditions.
ARTICLE VI
NOTICES AND DEMANDS
6.1 Notices. Except as otherwise provided under this Agreement
(including Schedule 1.1(a)), all notices, demands or requests which may be
given by any Party to the other Party shall be in writing and shall be
deemed to have been duly given on the date delivered in person, or sent via
telefax, or on the next business day if sent by overnight courier, or on
the date of the third business day after deposit, postage prepaid, in the
United States Mail via Certified Mail return receipt requested, and
addressed as set forth below:
If to RECEIVING PARTY, to:
Fidelity National Financial, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
If to PROVIDING PARTY, to:
Fidelity National Title Group, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
The address to which such notices, demands, requests, elections or other
communications are to be given by either Party may be changed by written
notice given by such Party to the other Party pursuant to Section 6.1 and
this Section 6.2.
ARTICLE VII
REMEDIES
7.1 Remedies Upon Material Breach. In the event of material breach of
any provision of this Agreement by a Party, the non-defaulting Party shall
give the defaulting Party written notice, and:
(a) If such breach is for RECEIVING PARTY's non-payment of an
amount that is not in dispute, the defaulting Party shall cure the breach within
thirty (30) calendar days of such notice. If the defaulting Party does not cure
such breach by such date, then the defaulting Party shall pay the non-defaulting
Party the undisputed amount, any interest that has accrued hereunder through the
expiration of the cure period plus an additional amount of interest equal to
four percent (4%) per annum above the "prime rate" as announced in the most
recent edition of the Wall Street Journal. The Parties agree that this rate of
interest constitutes reasonable liquidated damages and not an unenforceable
penalty.
10
(b) If such breach is for any other material failure to perform
in accordance with this Agreement, the defaulting Party shall cure such breach
within thirty (30) calendar days of the date of such notice. If the defaulting
Party does not cure such breach within such period, then the defaulting Party
shall pay the non-defaulting Party all of the non-defaulting Party's actual
damages, subject to Article IV above.
7.2 Survival Upon Expiration or Termination. The provisions of Section
1.4 (Dispute Resolution), Section 2.4 (Return of Materials), Article IV
(Limitation of Liability), Article VI (Notices and Demands), this Section
7.2, Article VIII (Confidentiality), Article X (Indemnification) and
Article XI (Miscellaneous) shall survive the termination or expiration of
this Agreement unless otherwise agreed to in writing by both Parties.
ARTICLE VIII
CONFIDENTIALITY
8.1 Confidential Information. Each Party shall use at least the same
standard of care in the protection of Confidential Information of the other
Party as it uses to protect its own confidential or proprietary
information; provided that such Confidential Information shall be protected
in at least a reasonable manner. For purposes of this Agreement,
"Confidential Information" includes all confidential or proprietary
information and documentation of either Party, including the terms of this
Agreement, including with respect to each Party, all of its software, data,
financial information all reports, exhibits and other documentation
prepared by any of its Subsidiaries or affiliates. Each Party shall use the
Confidential Information of the other Party only in connection with the
purposes of this Agreement and shall make such Confidential Information
available only to its employees, subcontractors, or agents having a "need
to know" with respect to such purpose. Each Party shall advise its
respective employees, subcontractors, and agents of such Party's
obligations under this Agreement. The obligations in this Section 8.1 will
not restrict disclosure by a Party pursuant to applicable law, or by order
or request of any court or government agency; provided, that prior to such
disclosure the receiving Party shall (a) immediately give notice to the
disclosing Party, (b) cooperate with the disclosing Party in challenging
the right to such access and (c) only provide such information as is
required by law, such order or a final, non-appealable ruling of a court of
proper jurisdiction Confidential Information of a Party will not be
afforded the protection of this Article VIII if such Confidential
Information was (A) developed by the other Party independently as shown by
its written business records regularly kept, (B) rightfully obtained by the
other Party without restriction from a third party, (C) publicly available
other than through the fault or negligence of the other Party or (D)
released by the disclosing Party without restriction to anyone.
8.2 Work Product Privilege. RECEIVING PARTY represents and PROVIDING
PARTY acknowledges that, in the course of providing Corporate Services
pursuant to this Agreement, PROVIDING PARTY may have access to (a)
documents, data, databases or communications that are subject to attorney
client privilege and/or (b) privileged work product prepared by or on
behalf of the affiliates of RECEIVING PARTY in anticipation of litigation
with third parties (collectively, the "Privileged Work Product") and
RECEIVING PARTY represents and PROVIDING PARTY understands that all
Privileged Work Product is protected from disclosure by Rule 26 of the
Federal Rules of Civil Procedure and the equivalent rules and regulations
under the law chosen to govern the construction of this Agreement.
RECEIVING
11
PARTY represents and PROVIDING PARTY understands the importance of
maintaining the strict confidentiality of the Privileged Work Product to
protect the attorney client privilege, work product doctrine and other
privileges and rights associated with such Privileged Work Product pursuant
to such Rule 26 and the equivalent rules and regulations under the law
chosen to govern the construction of this Agreement. After PROVIDING PARTY
is notified or otherwise becomes aware that documents, data, database, or
communications are Privileged Work Product, only PROVIDING PARTY personnel
for whom such access is necessary for the purposes of providing Services to
RECEIVING PARTY as provided in this Agreement shall have access to such
Privileged Work Product. Should PROVIDING PARTY ever be notified of any
judicial or other proceeding seeking to obtain access to Privileged Work
Product, PROVIDING PARTY shall (A) immediately give notice to RECEIVING
PARTY, (B) cooperate with RECEIVING PARTY in challenging the right to such
access and (C) only provide such information as is required by a final,
non-appealable ruling of a court of proper jurisdiction. RECEIVING PARTY
shall pay all of the cost incurred by PROVIDING PARTY in complying with the
immediately preceding sentence. RECEIVING PARTY has the right and duty to
represent PROVIDING PARTY in such resistance or to select and compensate
counsel to so represent PROVIDING PARTY or to reimburse PROVIDING PARTY for
reasonable attorneys' fees and expenses as such fees and expenses are
incurred in resisting such access. If PROVIDING PARTY is ultimately
required, pursuant to an order of a court of competent jurisdiction, to
produce documents, disclose data, or otherwise act in contravention of the
confidentiality obligations imposed in this Article VIII, or otherwise with
respect to maintaining the confidentiality, proprietary nature, and secrecy
of Privileged Work Product, PROVIDING PARTY is not liable for breach of
such obligation to the extent such liability does not result from failure
of PROVIDING PARTY to abide by the terms of this Article VIII. All
Privileged Work Product is the property of RECEIVING PARTY and will be
deemed Confidential Information, except as specifically authorized in this
Agreement or as shall be required by law.
8.3 Unauthorized Acts. Each Party shall (a) notify the other Party
promptly of any unauthorized possession, use, or knowledge of any
Confidential Information by any person which shall become known to it, any
attempt by any person to gain possession of Confidential Information
without authorization or any attempt to use or acquire knowledge of any
Confidential Information without authorization (collectively, "Unauthorized
Access"), (b) promptly furnish to the other Party full details of the
Unauthorized Access and use reasonable efforts to assist the other Party in
investigating or preventing the reoccurrence of any Unauthorized Access,
(c) cooperate with the other Party in any litigation and investigation
against third parties deemed necessary by such Party to protect its
proprietary rights, and (d) use commercially reasonable efforts to prevent
a reoccurrence of any such Unauthorized Access.
8.4 Publicity. Except as required by law or national stock exchange
rule or as allowed by any Ancillary Agreement, neither Party shall issue
any press release, distribute any advertising, or make any public
announcement or disclosure (a) identifying the other Party by name,
trademark or otherwise or (b) concerning this Agreement without the other
Party's prior written consent. Notwithstanding the foregoing sentence, in
the event either Party is required to issue a press release relating to
this Agreement or any of the transactions contemplated by this Agreement,
or by the laws or regulations of any governmental authority, agency or
self-regulatory agency, such Party shall (A) give notice and a copy of the
proposed press release to the other Party as far in advance as reasonably
possible, but in any event not less than five (5)
12
days prior to publication of such press release and (B) make any changes to
such press release reasonably requested by the other Party. In addition,
RECEIVING PARTY may communicate the existence of the business relationship
contemplated by the terms of this Agreement internally within PROVIDING
PARTY's organization and orally and in writing communicate PROVIDING
PARTY's identity as a reference with potential and existing customers.
8.5 Data Privacy. (a) Where, in connection with this Agreement,
PROVIDING PARTY processes or stores information about a living individual
that is held in automatically processable form (for example in a
computerized database) or in a structured manual filing system ("Personal
Data"), on behalf of any Subsidiaries of RECEIVING PARTY or their clients,
then PROVIDING PARTY shall implement appropriate measures to protect those
personal data against accidental or unlawful destruction or accidental
loss, alteration, unauthorized disclosure or access and shall use such data
solely for purposes of carrying out its obligations under this Agreement.
(b) RECEIVING PARTY may instruct PROVIDING PARTY, where PROVIDING
PARTY processes Personal Data on behalf of Subsidiaries of RECEIVING PARTY, to
take such steps to preserve data privacy in the processing of those Personal
Data as are reasonably necessary for the performance of this Agreement.
(c) Subsidiaries of RECEIVING PARTY may, in connection with this
Agreement, collect Personal Data in relation to PROVIDING PARTY and PROVIDING
PARTY's employees, directors and other officers involved in providing Corporate
Services hereunder. Such Personal Data may be collected from PROVIDING PARTY,
its employees, its directors, its officers, or from other (for example,
published) sources; and some limited personal data may be collected indirectly
at RECEIVING PARTY's (or Subsidiaries of RECEIVING PARTY's) locations from
monitoring devices or by other means (e.g., telephone logs, closed circuit TV
and door entry systems). Nothing in this Section 8.5(c) obligates PROVIDING
PARTY or PROVIDING PARTY's employees, directors or other officers to provide
Personal Data requested by RECEIVING PARTY. The Subsidiaries of RECEIVING PARTY
may use and disclose any such data disclosed by PROVIDING PARTY solely for
purposes connected with this Agreement and for the relevant purposes specified
in the data privacy policy of the Subsidiary of RECEIVING PARTY (a copy of which
is available on request.) RECEIVING PARTY will maintain the same level of
protection for Personal Data collected from PROVIDING PARTY (and PROVIDING
PARTY's employees, directors and officers, as appropriate) as RECEIVING PARTY
maintains with its own Personal Data, and will implement appropriate
administrative, physical and technical measures to protect the personal data
collected from PROVIDING PARTY and PROVIDING PARTY's employees, directors and
other officers against accidental or unlawful destruction or accidental loss,
alternation, unauthorized disclosure or access.
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS
EXCEPT FOR THE REPRESENTATIONS, WARRANTIES AND COVENANTS EXPRESSLY MADE
IN THIS AGREEMENT, PROVIDING PARTY HAS NOT MADE AND DOES NOT HEREBY MAKE ANY
EXPRESS OR IMPLIED REPRESENTATIONS,
13
WARRANTIES OR COVENANTS, STATUTORY OR OTHERWISE, OF ANY NATURE, INCLUDING WITH
RESPECT TO THE WARRANTIES OF MERCHANTABILITY, QUALITY, QUANTITY, SUITABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE OR THE RESULTS OBTAINED OF THE CONTINUING
BUSINESS. ALL OTHER REPRESENTATIONS, WARRANTIES, AND COVENANTS, EXPRESS OR
IMPLIED, STATUTORY, COMMON LAW OR OTHERWISE, OF ANY NATURE, INCLUDING WITH
RESPECT TO THE WARRANTIES OF MERCHANTABILITY, QUALITY, QUANTITY, SUITABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE OR THE RESULTS OBTAINED OF THE CONTINUING
BUSINESS ARE HEREBY DISCLAIMED BY PROVIDING PARTY.
ARTICLE X
INDEMNIFICATION
10.1 Indemnification.
(a) Subject to Article IV, RECEIVING PARTY will indemnify, defend
and hold harmless PROVIDING PARTY, each Subsidiary of PROVIDING PARTY, each of
their respective past and present directors, officers, employees, agents,
consultants, advisors, accountants and attorneys ("Representatives"), and each
of their respective successors and assigns (collectively, the "PROVIDING PARTY
Indemnified Parties") from and against any and all Damages (as defined below)
incurred or suffered by the PROVIDING PARTY Indemnified Parties arising or
resulting from the provision of Corporate Services hereunder, which Damages
shall be reduced to the extent of:
(i) Damages caused or contributed to by PROVIDING PARTY's
negligence, willful misconduct or violation or law; or
(ii) Damages caused or contributed to by a breach of this
Agreement by PROVIDING PARTY.
"Damages" means, subject to Article IV hereof, all losses, claims, demands,
damages, liabilities, judgments, dues, penalties, assessments, fines
(civil, criminal or administrative), costs, liens, forfeitures,
settlements, fees or expenses (including reasonable attorneys' fees and
expenses and any other expenses reasonably incurred in connection with
investigating, prosecuting or defending a claim or Action).
(b) Except as set forth in this Section 10.1(b), PROVIDING PARTY
will have no liability to RECEIVING PARTY for or in connection with any of the
Corporate Services rendered hereunder or for any actions or omissions of
PROVIDING PARTY in connection with the provision of any Corporate Services
hereunder. Subject to the provisions hereof and subject to Article IV, PROVIDING
PARTY will indemnify, defend and hold harmless RECEIVING PARTY, each Subsidiary
of RECEIVING PARTY, each of their respective past and present Representatives,
and each of their respective successors and assigns (collectively, the
"RECEIVING PARTY Indemnified Parties") from and against any and all Damages
incurred or suffered by the RECEIVING PARTY Indemnified Parties arising or
resulting from either of the following:
14
(i) any claim that PROVIDING PARTY's use of the software or other
intellectual property used to provide the Corporate Services or
Transition Assistance, or any results and proceeds of such Corporate
Services or Transition Assistance, infringes, misappropriates or
otherwise violates any United States patent, copyright, trademark,
trade secret or other intellectual property rights; provided, that
such intellectual property indemnity shall not apply to the extent
that any such claim arises out of any modification to such software or
other intellectual property made by RECEIVING PARTY without PROVIDING
PARTY's authorization or participation, or
(ii) PROVIDING PARTY's gross negligence, willful misconduct,
improper use or disclosure of customer information or violations of
law;
provided, that in each of the cases described in subclauses (i) through
(ii) above, the amount of Damages incurred or sustained by RECEIVING PARTY
shall be reduced to the extent such Damages shall have been caused or
contributed to by any action or omission of RECEIVING PARTY in amounts
equal to RECEIVING PARTY's equitable share of such Damages determined in
accordance with its relative culpability for such Damages or the relative
fault of RECEIVING PARTY or its Subsidiaries.
10.2 Indemnification Procedures.
(a) Claim Notice. A Party that seeks indemnity under this Article
X (an "Indemnified Party") will give written notice (a "Claim Notice") to the
Party from whom indemnification is sought (an "Indemnifying Party"), whether the
Damages sought arise from matters solely between the Parties or from Third Party
Claims. The Claim Notice must contain (i) a description and, if known, estimated
amount (the "Claimed Amount") of any Damages incurred or reasonably expected to
be incurred by the Indemnified Party, (ii) a reasonable explanation of the basis
for the Claim Notice to the extent of facts then known by the Indemnified Party,
and (iii) a demand for payment of those Damages. No delay or deficiency on the
part of the Indemnified Party in so notifying the Indemnifying Party will
relieve the Indemnifying Party of any liability for Damages or obligation
hereunder except to the extent of any Damages caused by or arising out of such
failure.
(b) Response to Notice of Claim. Within thirty (30) days after
delivery of a Claim Notice, the Indemnifying Party will deliver to the
Indemnified Party a written response in which the Indemnifying Party will
either: (i) agree that the Indemnified Party is entitled to receive all of the
Claimed Amount and, in which case, the Indemnifying Party will pay the Claimed
Amount in accordance with a payment and distribution method reasonably
acceptable to the Indemnified Party; or (ii) dispute that the Indemnified Party
is entitled to receive all or any portion of the Claimed Amount, in which case,
the Parties will resort to the dispute resolution procedures set forth in
Section 1.4.
(c) Contested Claims. In the event that the Indemnifying Party
disputes the Claimed Amount, as soon as practicable but in no event later than
ten (10) days after the receipt of the notice referenced in Section 10.2(b)(ii)
hereof, the Parties will begin the process to resolve the matter in accordance
with the dispute resolution provisions of Section 1.4 hereof. Upon ultimate
resolution
15
thereof, the Parties will take such actions as are reasonably necessary to
comply with such agreement or instructions.
(d) Third Party Claims.
(i) In the event that the Indemnified Party receives notice
or otherwise learns of the assertion by a person or entity who is
not a Party hereto or a Subsidiary of a Party hereto 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 Article X, the Indemnified
Party will give written notification to the Indemnifying Party of
the Third-Party Claim. Such notification will be given within
fifteen (15) days after receipt by the Indemnified Party of
notice of such Third-Party Claim, will be accompanied by
reasonable supporting documentation submitted by such third party
(to the extent then in the possession of the Indemnified Party)
and will describe in reasonable detail (to the extent known by
the Indemnified Party) the facts constituting the basis for such
Third-Party Claim and the amount of the claimed Damages;
provided, however, that no delay or deficiency on the part of the
Indemnified Party in so notifying the Indemnifying Party will
relieve the Indemnifying Party of any liability for Damages or
obligation hereunder except to the extent of any Damages caused
by or arising out of such failure. Within twenty (20) days after
delivery of such notification, the Indemnifying Party may, upon
written notice thereof to the Indemnified Party, assume control
of the defense of such Third-Party Claim with counsel reasonably
satisfactory to the Indemnified Party. During any period in which
the Indemnifying Party has not so assumed control of such
defense, the Indemnified Party will control such defense.
(ii) The Party not controlling such defense (the
"Non-controlling Party") may participate therein at its own
expense.
(iii) The Party controlling such defense (the "Controlling
Party") will keep the Non-controlling Party reasonably advised of
the status of such Third-Party Claim and the defense thereof and
will consider in good faith recommendations made by the
Non-controlling Party with respect thereto. The Non-controlling
Party will furnish the Controlling Party with such Information as
it may have with respect to such Third-Party Claim (including
copies of any summons, complaint or other pleading which may have
been served on such Party and any written claim, demand, invoice,
billing or other document evidencing or asserting the same) and
will otherwise cooperate with and assist the Controlling Party in
the defense of such Third-Party Claim.
(iv) The Indemnifying Party will not agree to any settlement
of, or the entry of any judgment arising from, any such
Third-Party Claim without the prior written consent of the
Indemnified Party, which consent will not be unreasonably
withheld or delayed; provided, however, that the consent of the
Indemnified Party will not be required if (A) the Indemnifying
Party agrees in writing to pay any amounts payable pursuant to
such settlement or judgment, and (B) such settlement
16
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.
ARTICLE XI
MISCELLANEOUS
11.1 Relationship of the Parties. The Parties declare and agree that each
Party is engaged in a business that is independent from that of the other Party
and each Party shall perform its obligations as an independent contractor. It is
expressly understood and agreed that RECEIVING PARTY and PROVIDING PARTY are not
partners, and nothing contained herein is intended to create an agency
relationship or a partnership or joint venture with respect to the Corporate
Services. Neither Party is an agent of the other and neither Party has any
authority to represent or bind the other Party as to any matters, except as
authorized herein or in writing by such other Party from time to time.
11.2 Employees. (a) PROVIDING PARTY shall be solely responsible for payment
of compensation to its employees and, as between the Parties, for its
Subsidiaries' employees and for any injury to them in the course of their
employment. PROVIDING PARTY shall assume full responsibility for payment of all
federal, state and local taxes or contributions imposed or required under
unemployment insurance, social security and income tax laws with respect to such
persons.
(b) RECEIVING PARTY shall be solely responsible for payment of
compensation to its employees and, as between the Parties, for its Subsidiaries'
employees and for any injury to them in the course of their employment.
RECEIVING PARTY shall assume full responsibility for payment of all federal,
state and local taxes or contributions imposed or required under unemployment
insurance, social security and income tax laws with respect to such persons.
11.3 Assignment. Neither Party may, in connection with a sale of an asset
to which one or more of the Corporate Services relate, assign, transfer or
convey any right, obligation or duty, in whole or in part, or of any other
interest under this Agreement relating to such Corporate Services without the
prior written consent of the other Party. All obligations and duties of a Party
under this Agreement shall be binding on all successors in interest and
permitted assigns of such Party. Each Party may use its Subsidiaries or
subcontractors to perform the Corporate Services; provided that such use shall
not relieve such assigning Party of liability for its responsibilities and
obligations.
11.4 Severability. In the event that any one or more of the provisions
contained herein shall for any reason be held to be unenforceable in any respect
under law, such unenforceability shall not affect any other provision of this
Agreement, and this Agreement shall be construed as if such unenforceable
provision or provisions had never been contained herein.
17
11.5 Third Party Beneficiaries. The provisions of this Agreement are for
the benefit of the Parties and their affiliates and not for any other person.
However, should any third party institute proceedings, this Agreement shall not
provide any such person with any remedy, claim, liability, reimbursement, cause
of action, or other right.
11.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without giving effect to such
State's laws and principles regarding the conflict of laws. Subject to Section
1.4, if any Dispute arises out of or in connection with this Agreement, except
as expressly contemplated by another provision of this Agreement, the Parties
irrevocably (a) consent and submit to the exclusive jurisdiction of federal and
state courts located in Jacksonville, Florida, (b) waive any objection to that
choice of forum based on venue or to the effect that the forum is not convenient
and (c) WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO TRIAL OR
ADJUDICATION BY JURY.
11.7 Executed in Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same document.
11.8 Construction. The headings and numbering of articles, sections and
paragraphs in this Agreement are for convenience only and shall not be construed
to define or limit any of the terms or affect the scope, meaning, or
interpretation of this Agreement or the particular Article or Section to which
they relate. This Agreement and the provisions contained herein shall not be
construed or interpreted for or against any Party because that Party drafted or
caused its legal representative to draft any of its provisions.
11.9 Entire Agreement. This Agreement, including all attachments,
constitutes the entire Agreement between the Parties with respect to the subject
matter hereof, and supersedes all prior oral or written agreements,
representations, statements, negotiations, understandings, proposals and
undertakings, with respect to the subject matter hereof.
11.10 Amendments and Waivers. The Parties may amend this Agreement only by
a written agreement signed by each Party and that identifies itself as an
amendment to this Agreement. No waiver of any provisions of this Agreement and
no consent to any default under this Agreement shall be effective unless the
same shall be in writing and signed by or on behalf of the Party against whom
such waiver or consent is claimed. No course of dealing or failure of any Party
to strictly enforce any term, right or condition of this Agreement shall be
construed as a waiver of such term, right or condition. Waiver by either Party
of any default by the other Party shall not be deemed a waiver of any other
default.
11.11 Remedies Cumulative. Unless otherwise provided for under this
Agreement, all rights of termination or cancellation, or other remedies set
forth in this Agreement, are cumulative and are not intended to be exclusive of
other remedies to which the injured Party may be entitled by law or equity in
case of any breach or threatened breach by the other Party of any provision in
this Agreement. Unless otherwise provided for under this Agreement, use of one
or more remedies shall not bar use of any other remedy for the purpose of
enforcing any provision of this Agreement.
18
11.12 Taxes. All charges and fees to be paid to PROVIDING PARTY under this
Agreement are exclusive of any applicable taxes required by law to be collected
from the RECEIVING PARTY (including, without limitation, withholding, sales,
use, excise, or services tax, which may be assessed on the provision of
Corporate Services). In the event that a withholding, sales, use, excise, or
services tax is assessed on the provision of any of the Corporate Services under
this Agreement, RECEIVING PARTY will pay directly, reimburse or indemnify
PROVIDING PARTY for such tax, plus any applicable interest and penalties. The
Parties will cooperate with each other in determining the extent to which any
tax is due and owing under the circumstances, and shall provide and make
available to each other any resale certificate, information regarding
out-of-state use of materials, services or sale, and other exemption
certificates or information reasonably requested by either Party.
11.13 Changes in Law. PROVIDING PARTY's obligations to provide Corporate
Services hereunder are to provide such Corporate Services in accordance with
applicable laws as in effect on the date of this Agreement. Each Party reserves
the right to take all actions in order to ensure that the Corporate Services and
Transition Assistance are provided in accordance with any applicable laws.
[signature page to follow]
19
IN WITNESS WHEREOF, the Parties, acting through their authorized
officers, have caused this Agreement to be duly executed and delivered as of the
date first above written.
RECEIVING PARTY:
FIDELITY NATIONAL FINANCIAL, INC.
By
-------------------------------
Name:
Title:
PROVIDING PARTY:
FIDELITY NATIONAL TITLE GROUP, INC.
By
---------------------------------
Xxxxxxx X. Xxxxx
Chief Executive Officer
20
DEFINITIONS AND FORMULAS
FOR PURPOSES OF CALCULATING COST ALLOCATION
For purposes of this Agreement and the Corporate Service Schedules:
"Direct Employee Compensation" of an employee means the aggregate of such
employee's salary, overtime, cash bonus and commission compensation and payroll
taxes attributable thereto.
"Departmental Costs" of a department/cost center means any and all costs
incurred by or allocated to that department/cost center other than Direct
Employee Compensation of the employees in the department/cost center, such as
office furniture and equipment, office space and facilities expenses, repairs &
maintenance expenses, rent and leasehold improvements, utilities,
telecommunications and IT equipment, insurance costs, employee benefits costs
(attributable to RECEIVING PARTY's employees' participation in PROVIDING PARTY's
benefit plans and programs and/or any benefit plans and programs established by
PROVIDING PARTY from time to time), depreciation, amortization, real property
and personal property taxes, advertising and promotional expenses (if any),
postage, courier and shipping expenses, printing, reproduction, stationary, and
office supplies, travel and entertainment expenses, educational, training and
recruiting expenses, professional dues and subscriptions, fees, costs and
expenses incurred in connection with the Services that are included in
Administrative Overhead, and the other similar costs that are generally
characterized as "overhead"', in each case as allocated to the department/cost
center in accordance with PROVIDING PARTY's current overhead cost allocation
policy.
"Servicing Employee" means an employee of PROVIDING PARTY or its Subsidiaries
who provides services to RECEIVING PARTY and its Subsidiaries under this
Agreement.
"Standard Allocation", for purposes of the Services provided under this
Agreement and the Schedules hereto, including the Cost Allocation section of the
Schedules, shall be calculated as follows:
1. Out of Pocket Costs incurred by or on behalf of RECEIVING PARTY or its
Subsidiary(s) are charged directly to it and are not part of the
Services under this Agreement or the payments to be made therefor.
2. The Direct Employee Compensation of the PROVIDING PARTY Servicing
Employees shall be allocated to RECEIVING PARTY based on the
percentage of work time that each such Servicing Employee spends in
providing the applicable Services to RECEIVING PARTY and its
Subsidiaries. These allocations shall be determined as of the Closing
Date, based on data and result of June 2005, and shall be applied to
determine the allocations hereunder on a monthly basis, with each work
time percentage and corresponding Departmental Cost percentage to be
re-examined and updated (if appropriate) at the end of each 6-month
period
21
following the Closing Date, it being understood that any changes in
the allocations must be pre-approved by the Chief Accounting Officer
of FNF.
By way of example, for a Servicing Employee of PROVIDING PARTY who has
an annual salary of $50,000, a cash bonus of $20,000, and payroll
taxes of $10,000 and who spends 40% of his work time on providing
Services under this Agreement, RECEIVING PARTY would be allocated a
Direct Employee Compensation cost of $32,000 calculated as follows:
($50,000 + $20,000 + $10,000) x 40% = $32,000.
3. In addition to the Direct Employee Compensation, Departmental Costs of
each department/cost center of PROVIDING PARTY that has Servicing
Employees shall be allocated to RECEIVING PARTY based on a percentage
reflecting the aggregate regular salaries of all of the Servicing
Employees in that department/cost center, in relation to the aggregate
regular salaries of all employees in the department/cost center,
taking into account the percentage of work time that each Servicing
Employee in the department/cost center spends in providing services to
RECEIVING PARTY and its Subsidiaries hereunder.
By way of example, assume that in a PROVIDING PARTY department/cost
center, there are 20 employees, 5 of whom are Servicing Employees who
each spend 40% of the work time providing services to RECEIVING PARTY
and its Subsidiaries. If the aggregate regular salaries of the 20
employees is $500,000, and the aggregate regular salaries of the 5
Servicing Employees is $300,000, then we determine the portion of the
Departmental Costs that will be allocated to RECEIVING PARTY as
follows:
First, determine the aggregate regular salaries allocable to RECEIVING
PARTY:
$300,000 x 40% = $120,000.
Then, determine the portion of the Departmental Costs to be allocated
to RECEIVING PARTY based on the aggregate regular salaries percentage:
$120,000 / $500,000 = 24%.
In this example, 24% of the Departmental Costs of this department/cost
center will be allocated to RECEIVING PARTY.
4. Except to the extent otherwise expressly provided herein, for any
given 6-month period, all Direct Employee Compensation to be allocated
shall be determined on the basis of the applicable work time
percentages for the immediately preceding 6-month period, except that
the Direct Employee Compensation allocations applicable on the Closing
Date shall be based on the work time percentages applicable for the
calendar month June 2005. At the end of each 6-month period,
22
the work time percentages shall be re-examined and the Direct Employee
Compensation will be re-allocated based on the revised work time
percentages, if any. For any given 6-month, all Departmental Costs to
be allocated shall be determined on the basis of the applicable
aggregate salaries and related percentages for the immediately
preceding 6-month period, except that the aggregate salaries and
related percentages applicable on the Closing Date shall be based on
the work time percentages and aggregate salaries applicable for the
calendar month June 2005.
5. If at any time during the Term of this Agreement RECEIVING PARTY
terminates or discontinues all or any portion of a Corporate Service
prior to the end of the Term or if any Corporate Service (or portion
thereof) automatically terminates, pursuant to Section 2.2(b)
(hereinafter referred to as a "Discontinued Service"), then effective
as of the last day of the calendar month in which such termination or
discontinuation is effective, Corporate Services Fees related to the
Discontinued Service shall no longer be owing under this Agreement.
23
