EXHIBIT 10.32
ISSUING AGENCY CONTRACT
This Issuing Agency Contract ("Contract") is made and entered into this 28th of
September 2004, by and between Fidelity National Title Insurance Company, a
California corporation ("Principal") and Lender's Service Title Agency, Inc., an
Ohio corporation ("Agent").
In consideration of the promises and the mutual covenants herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Principal and Agent agree as follows:
1. APPOINTMENT OF AGENT. Principal hereby appoints Agent as a policy issuing
agent of Principal for the sole purpose of issuing title insurance
commitments, policies, endorsements and other title assurances approved by
Principal and by all required regulatory agencies, now in existence or
hereafter developed, relating to real property located in all counties of
the states listed on EXHIBIT A attached hereto ("geographic area") in
accordance with the terms of this Contract; provided, however, that Agent
will immediately cease and refrain from issuing any policies of Principal
in any portion of the geographic area in which Principal informs Agent that
Principal had, on the date indicated above, an exclusive agency agreement
with another agent or agency. During the term of this Contract, pertaining
to the geographic area:
A. Agent shall issue title insurance commitments, policies and
endorsements of Principal and any other title insurance company;
B. Principal or its affiliates and subsidiaries shall have, and do
retain, the right to appoint other agents; and
C. Principal and its affiliates or subsidiaries shall have, and do
retain, the right to service directly any customer, and Principal or
its affiliates or subsidiaries may, without limitation, do any of the
following:
(i) issue directly, from any of its offices, or from any location
nationwide, commitments, policies, endorsements, or any other
title assurance or evidence, search or real estate information
product, or any other product whatsoever, now in existence or
hereafter developed (all of the foregoing are hereafter
collectively referred to as "Information"); or
(ii) purchase or otherwise obtain from any source any search data or
Information.
2. CONTRACT TERM. The term of this Contract shall be ten (10) years,
commencing on October 1, 2004; provided however that Agent shall not issue
any title insurance commitments, policies and endorsements of Principal in
any county or state in the geographic area until Agent is duly licensed to
do so by the applicable regulatory body in such state or permitted to do so
by applicable law or regulation of such state. At any time after the
initial five (5) years of this Contract, either party may give written
notice to the other of its election to terminate this Contract with such
termination to take effect at least five (5) years after delivery of the
written notice. The term of this Contract shall be
automatically extended beyond the initial ten (10) year term until (i)
written notice is provided by either party and (ii) the term of the notice
(which shall not be less than five (5) years) has expired. Notwithstanding
the foregoing, either party hereto may terminate this Contract pursuant to
Paragraph 9 hereof, and the terms of this Contract shall be open for
renegotiation every three years on written notice of one party to the
other.
3. DUTIES OF PRINCIPAL. Principal shall:
A. Furnish Agent forms of commitments, policies, endorsements and other
forms required for transacting Agent's title insurance business.
B. Furnish Agent guidelines and instructions for transacting Agent's
title insurance business.
C. Resolve all risk assumption questions submitted by Agent.
D. Arrange for reinsurance where required, to the extent such reinsurance
is available.
4. DUTIES OF AGENT. Agent shall:
A. Receive and process applications for title insurance in a timely,
prudent and ethical manner with due regard to recognized title
insurance underwriting practices and in accordance with Principal's
bulletins, manuals and other instructions of Principal.
B. Base each policy issued on behalf of Principal upon a determination of
insurability of title that includes
(i) a search from earliest public records or in accordance with
Principal's written instructions; and
(ii) an examination of all documents affecting title to the subject
property.
C. Supply, at Agent's expense, office space and qualified personnel for
conducting business pursuant to this Contract by the date of execution
of this Contract.
D. Prepare, preserve and maintain in Agent's possession a separate file
for each application for title insurance containing all documents upon
which Agent relied to make its determination of insurability,
including, but not limited to: affidavits, maps, plats, lien waivers,
surveys, title reports, searches, examinations, and work sheets,
together with a copy of each commitment, policy, endorsement and other
title assurance issued as well as closing statements, disbursement
worksheets, copies of all checks disbursed and receipted, deposit
slips, escrow agreements and any other instruments or documents
executed or created at Closing. Pertaining to Agents files:
(i) Title thereto shall remain with Agent. Upon termination of this
Contract, Agent shall allow Principal to copy, at Principal's
cost and expense, Agent's files. Agent hereby grants to Principal
the right to enter upon the premises of Agent or other locations
where such files are maintained, during business hours, for
purposes of recovering possession thereof;
(ii) In the event Agent ceases to engage in the title insurance
business, title to such files shall vest in Principal, and Agent
shall deliver said files to Principal immediately upon
termination of this Contract. Agent hereby grants to Principal
the right to enter upon the premises of Agent or other locations
where such said files are maintained, during business hours, for
purposes of recovering possession thereof; and
(iii) In the event Agent sells, transfers or conveys its title
insurance operations or any interest therein to a third party,
Principal shall have the right to copy such files, and the right
to copy shall survive any sale, transfer or encumbrance of
Agent's title insurance operations or an interest therein. Agent
hereby grants to Principal the right to enter upon the premises
of Agent or other locations where said title files are
maintained, during business hours, for purposes of making a
reproduction thereof.
E. Report to Principal, as hereafter set forth, by sending to Principal
any one of the following:
(i) a copy of each policy, endorsement and other title assurance
issued by Agent; or
(ii) a voucher containing information regarding each policy,
endorsement and other title assurance issued by Agent, as
instructed by Principal; or
(iii) information regarding each policy, endorsement and other title
assurance issued by Agent, in magnetic or electronic format, as
instructed by Principal.
F. Maintain a policy register in a form approved by Principal showing the
disposition of all policies and other pre-numbered forms furnished by
Principal. Upon request by Principal, Agent shall furnish a statement
accounting for all such forms and shall return all spoiled, obsolete
or canceled policies and forms to Principal. Agent shall safely
maintain and store all forms furnished by Principal and hereby assumes
liability for loss or damage suffered by Principal by reason of
Agent's wrongful or negligent use or storage of such forms.
G. Provide Principal annually copies of annual financial statements of
the agency and an updated Information Affidavit, such financial
statements to be kept confidential by Principal.
H. Perform such services and render such assistance as Principal may
reasonably request in connection with any claim or litigation arising
from a commitment,
policy, endorsement or other title assurance issued by Agent or by
Principal on behalf of Agent or on account of any conduct of Agent,
whether such claim or litigation is instituted during the term of this
Contract or following termination thereof. In addition, Agent shall
promptly forward to Principal:
(i) all documents received by Agent in which Principal is a party to
judicial proceedings;
(ii) all written complaints or inquiries made to any regulatory agency
regarding transactions involving title insurance policies,
endorsements, commitments or other title assurances of Principal;
(iii) any information alleging a claim involving a policy, commitment,
endorsement or other title assurance of Principal or a
transaction for which Principal may be liable; and
(iv) all original documentation and work papers associated with the
transaction or conduct giving rise to any claim or complaint.
I. In those instances where Agent closes real estate transactions and
receives and disburses funds of others, Agent shall
(a) maintain said funds safely in accounts fully insured by an agency
of the Federal Government and in accordance with applicable state
laws;
(b) maintain separate from Agent's personal or operating accounts all
funds received by Agent from any source in connection with
transaction(s) in which Principal's title insurance is involved;
(c) disburse such funds only for the purposes for which they were
entrusted;
(d) maintain an escrow ledger for each title insurance order
involving fiduciary funds, which ledger shall separately reflect
the escrow activity for each order;
(e) maintain a control account showing total fiduciary liability for
each escrow bank account; and
(f) reconcile monthly the control account and ledger records to the
monthly bank statement.
J. Comply with all applicable laws and regulations relating to the
conduct of Agent's business.
K. Comply with all bulletins, manuals and other instructions furnished to
Agent in writing, by facsimile or other electronic transmission by
Principal. If any reasonable doubt exists with regard to the
insurability or marketability of title or as to whether a particular
risk is extra-ordinary or extra-hazardous, Agent shall
contact Principal or Principal's designated underwriting counsel for
guidance and approval.
L. The parties hereto acknowledge that Agent is not an agent of Principal
for purposes of conducting a Closing, as defined in Paragraph 7H
hereof; however, because Principal may be subject to allegations of
liability for acts of Agent with regard to Agent's settlement or
escrow business, Agent shall cooperate with Principal in the
performance of audits of Agent's escrow records, accounts and
procedures. In addition, Agent agrees to provide to Principal, within
thirty (30) days following receipt, a copy of any audit conducted by
any accounting firm with respect to Agent's escrow records, accounts
or procedures.
M. Timely furnish the insured with a title insurance policy and other
title assurances Agent is obligated to issue.
N. Maintain in confidence the terms and conditions of this Contract.
O. Neither Agent nor any affiliate shall pay any commission for the
solicitation or negotiation of any services constituting the business
of title insurance, other than the payment of commissions, incentive
compensation, or bonuses with respect to full-time salaried employees
based on any such employees' level of production of any services
constituting the business of title insurance. If Agent or, where
applicable, its affiliates makes any such payments to full-time
salaried employees, Agent or affiliate shall maintain adequate records
detailing the conditions to receipt of any commission, incentive
compensation, or bonus, the recipient thereof, and the amount paid. No
employee of Agent shall, directly or indirectly, pay or offer to pay,
either directly or indirectly, any part of his or her compensation to
any person or entity defined in California Insurance Code section
12404, as an inducement for or as compensation for any title insurance
business or any escrow or other title business.
5. RATES AND REMITTANCES. Agent has been provided with a Schedule of Rates and
Remittances for the geographic area. Agent shall quote, charge, and collect
the Rates set forth therein, as may be amended from time to time by
Principal, and shall report and remit to Principal premiums as set forth
therein.
6. INSURANCE. Agent shall immediately obtain and keep in full force, at
Agent's expense, during the term of this Contract:
(i) Title Insurance Agent's Errors and Omissions Policy with opinion
of title coverage, with an insurance company acceptable to
Principal in a sum of not less than $1,000,000 with, if
reasonably available, a loss payee provision in favor of
Principal; and
(ii) Fidelity Insurance of $1,000,000 covering all officers,
employees, shareholders, partners, members and other principals
of Agent with a loss payee provision in favor of Principal.
Agent will submit a copy of the policies to Principal within 14 days of the
effective date of this Contract, and Agent agrees to furnish Principal
annually with a copy of such policies and any renewals thereof and any
other evidence that Principal may deem necessary to demonstrate compliance
with this provision. Agent hereby assigns to Principal, Principal's legal
representatives and assigns, all sums claims, demands and causes of action
of whatsoever kind, that Agent may have against Agent's Errors and
Omissions insurance company and against Agent's Fidelity insurance company,
in connection with all claims arising out of the actions of Agent, its
employees, agents, independent contractors and subcontractors which fall
within the scope of this Paragraph 6 and the Contract hereof.
7. LIMITATIONS ON AGENT'S AUTHORITY. Agent shall not, without prior written
approval of Principal:
A. Commit Principal to a risk in excess of One Million Five Hundred
Thousand Dollars ($1,500,000.00). This limit shall include not only
the commitment, policy, endorsement and/or other title assurance
immediately being issued, but also risks where
(i) Agent knows or has reason to believe that additional title
insurance will be ordered covering substantially the same real
property; or
(ii) the aggregate liability will exceed the referenced limit, such as
condominium and time share projects (hereafter referred to as the
"Risk Limit").
B. Commit Principal to insure a title involving a risk which, if
disclosed to Principal, would have been determined to be
extra-ordinary or extra-hazardous, or which Agent knew or could have
discovered, through the exercise of reasonable diligence, to have been
based upon a disputed title. The provisions hereunder shall apply
notwithstanding the fact that the dollar amount of the transaction or
the risk is less than the Risk Limit set forth in Paragraph 7A hereof.
C. Alter the printed language of any commitment, policy, endorsement or
other form furnished by Principal, or commit Principal to any
particular interpretation of the terms or provisions thereof or issue
any policy, endorsement or other title assurance which has not been
approved for use by all required state regulatory agencies and by
Principal.
D. Adjust or otherwise settle or attempt to settle any claim for loss for
which Principal may become liable or engage counsel to represent
Principal or the insured.
E. Accept service of process on Principal. Agent shall immediately notify
Principal of any attempted service of process upon Agent for
Principal. Agent shall also immediately notify Principal of any matter
that is or may become a claim against Principal of which Agent has
knowledge.
F. Incur bills or debts chargeable to Principal.
G. Commit Principal to a risk with respect to a transaction in which
Agent, a member of Agent's immediate family, a partner, member or
shareholder of Agent or a member of the immediate family of a partner,
member or shareholder of Agent has or will have a legal or an
equitable interest.
H. Handle escrow funds or conduct a Closing, as hereafter defined, of a
transaction in which Agent, a member of Agent's immediate family, a
partner, member or shareholder of Agent or a member of the immediate
family of a partner, member or shareholder of Agent has or will have a
legal or an equitable interest. The term "Closing" as used in this
Contract shall mean: the handling and disbursement of settlement funds
or the providing of settlement services.
I. Insure or commit to insure any property for an amount other than the
fair market value of the estate or interest to be insured or the
amount of the mortgage or portion thereof and other indebtedness
secured thereby to be insured.
J. Neither Agent nor any Affiliated Attorney of Agent will represent any
insured as against the interests of Principal. The term "Affiliated
Attorney" as used herein shall mean any attorney who is an employee,
associate, member, shareholder, or partner of Agent or any law firm
that owns any legal or beneficial interest in Agent.
8. LIABILITY OF AGENT. Agent shall be liable to and agrees to indemnify and to
save harmless Principal for all attorneys' fees, court costs,
administrative and other expenses and loss or aggregate of losses resulting
from any one or more of the following:
A. Errors or omissions in any commitment, policy, endorsement or other
title assurance which were disclosed by the application, by the
abstracting, examination or other work papers or which were known to
Agent or which, in the exercise of due diligence, should have been
known to Agent;
B. Errors and/or omissions in any commitment, policy, endorsement or
other title assurance caused by the abstracting or examination of
title by Agent, Agent's employees, Agent's subcontractors or Agent's
independent contractors;
C. Failure of any title insurance commitment, policy, endorsement or
other title assurance to correctly reflect the status of title, the
description of the insured real property or the vesting of title;
D. Failure of Agent, its officers and employees to comply with the terms
of this Contract or with the guidelines, regulations or instructions
given to Agent by Principal;
E. Any improper Closing or attempted Closing by Agent, Agent's employees,
Agent's subcontractors or Agent's independent contractors, including
but not limited to:
(i) loss or misapplication of customer funds, documents, or any other
thing of value entrusted to Agent in any custodial or fiduciary
capacity resulting in loss to Principal;
(ii) failure to disburse properly or close in accordance with escrow
and/or closing instructions;
(iii) misappropriation of escrow or closing funds by Agent, its
officers, subcontractors or employees;
(iv) any loss pursuant to an Insured Closing Letter issued by
Principal on behalf of Agent; or
(v) failure to disburse immediately available funds.
F. Issuance of a commitment, policy, endorsement or other title assurance
insuring an extra-ordinary risk, extra-hazardous risk, or a risk Agent
knew or should have know to be based upon a disputed title, not
approved by Principal in advance of the issuance by Agent of documents
committing Principal to insure.
G. Any act or failure to act by Agent or its employees, officers, agents,
independent contractors or subcontractors which results in allegations
of liability with respect to Principal or which results in Principal
being liable for punitive, contractual or extra-contractual damages.
H. Assessment of a fine against Principal by the State Department of
Insurance or the entity which supervises title insurance as a result
of Agents violation of any regulations of the State Department of
Insurance or State laws or regulations applicable to title insurance.
I. Failure of Agent to timely furnish insured with a title policy which
Agent is obligated to issue.
Agent agrees to immediately notify its fidelity bond carrier or errors and
omissions insurance carrier of any claim for which Agent may be liable to
Principal.
9. TERMINATION OF ISSUING AGENCY CONTRACT. Notwithstanding anything the
contrary herein, this Contract may be terminated in the event any one of
the following events of default should occur:
A. Agent fails to report policies or remit premiums in accordance with
the provisions hereof said default continues for the applicable cure
period;
B. Agent materially deviates from the guidelines, instructions or escrow
accounting standards of Principal furnished to Agent;
C. Either party hereto fails to perform any of the other material
provisions, covenants or conditions of this Contract on its part to be
performed;
D. A petition under the United States Bankruptcy Code is filed by or
against either party hereto;
E. A supervisor, conservator or receiver is appointed for either party
hereto or for substantially all of the assets of said party;
F. Agent ceases to engage in the abstract and title insurance agency
business or Agent's license to engage in the abstract and title
insurance business is revoked or suspended;
G. There is a change in the senior management of Agent, and Agent fails
to secure prior written approval of Principal;
H. There is a change of more than 50% of the ownership of the Agent, and
Agent fails to secure prior written approval of Principal;
I. The loss ratio during any calendar year, as herein defined, arising
from policies issued by Agent, equals or exceeds fifty percent (50%);
or
J. Agent, or any of its partners, shareholders, members or principals is
convicted of a felony offense, is disbarred or is suspended from the
practice of law or is determined by administrative proceedings or
otherwise to have acted in violation of state or federal laws
governing title insurance or activities related thereto.
Upon the occurrence of an event of default, the non-defaulting party may
terminate this Contract, upon the expiration of thirty (30) days from the
date of written notice of default to the defaulting party and the
defaulting party's failure to cure. Notwithstanding the foregoing, upon the
occurrence of an event of default as described in Paragraph 9D or 9E, this
Contract shall automatically terminate without notice. Upon the occurrence
of an event of default as described in Paragraph 9B, 9F or 11, this
Contract may be terminated by Principal immediately upon delivery of
written notice to Agent.
Upon expiration or termination of this Contract, Agent shall immediately
furnish to Principal a true, correct and complete accounting of all
remittances due hereunder, all orders involving Principal's title
assurances which have not closed, all orders involving Principal's title
assurances which have closed but for which no policy has been issued and
all commitments, policies, endorsements and other title assurances of
Principal which have been issued but not reported to Principal. Agent shall
also provide Principal access to all forms and all files relating to
commitments, policies and other title assurances of Principal. Agent shall
promptly make an accounting of and deliver to Principal all unused title
insurance forms, manuals, advertising, promotional materials, other
supplies exhibiting Principal's name or any variation thereof and all other
supplies furnished by Principal to Agent, except those which Principal
authorizes Agent to retain for purposes of completing pending transactions.
If Principal terminates this Contract as provided for herein, Principal
shall at the same time give notice of the termination to the California
Insurance Commissioner.
10. EXAMINATION OF RECORDS. Agent agrees to provide to Principal access for
examination purposes at any reasonable time or times to all files, books
and accounts and other records of Agent relating to the business carried on
hereunder and relating to the Closing of transactions involving a
commitment to issue Principal's title assurances. Such right of examination
may also be exercised after termination of this Contract.
11. SHORTAGE OF FUNDS. In the event a shortage is revealed or discovered in
Agent's accounts of funds entrusted to Agent by others or in the
remittances due Principal hereunder, then Principal may declare immediately
due and payable any debts owed by Agent, including any funds for which
Principal may be responsible or have a liability therefor. On demand by
Principal, Agent shall immediately make good the shortage.
12. ADVERTISING. Agent agrees that it will not use the tradename, trade xxxx or
any variation thereof of Principal or any of its subsidiaries or affiliated
entities on any of its advertising without the prior written approval of
Principal.
13. CLAIMS. If a policy claim is made to Agent, if Agent receives notice of a
potential claim, or if Agent receives notice of litigation which may result
in a claim, Agent shall, immediately, by facsimile transmission or
overnight mail, give notice of same to Principal and shall lend all
reasonable assistance, without charge to Principal, in investigating,
adjusting or contesting said claim. Agent is not authorized to act as or to
provide counsel in connection with said claim; however, Principal may seek
Agent's assistance in the selection of counsel.
14. NOTICES. Except as otherwise specifically set forth in this Contract, all
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered by hand
or when mailed first class postage prepaid, certified or registered mail,
return receipt requested:
If to Principal, to: Fidelity National Title Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn.: Agency Department
If to Agent, to: Lender's Services Title Agency, Inc.
000 X. Xxxxx Xx., 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
or to such other address or addresses as each of the parties may
communicate in writing to the other.
15. NON-WAIVER BY PRINCIPAL. The failure of Principal to enforce strictly the
performance by Agent of any provision of this Contract or to exercise any
right or remedy following from Agent's breach of any condition herein or
the acceptance by Principal of any payment, remittance or other performance
during Agent's failure to perform or during Agent's breach shall not be
deemed a waiver by Principal of its rights under this Contract as written
and shall not be construed to be an amendment or modification of this
Contract as written.
16. ENTIRE AGREEMENT; PRIOR AGREEMENTS. This Contract sets forth the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof. No terms, conditions, or warranties, other than
those contained herein, and no amendments or modifications hereto shall be
valid unless made in writing and signed by the parties hereto. This
Contract supersedes all prior understandings of any kind, whether written
or oral, with respect to the Contract and the subject matter hereof.
17. ASSIGNMENT; BINDING EFFECT. This Contract is not assignable by Agent except
upon written consent of Principal, and in any event shall be subject to the
prior approval of the California Department of Insurance so long as Agent
and Principal are "affiliates" as defined in section 1215 of the California
Insurance Code. This Contract is, however, binding on and inures to the
benefit of any corporate successor, parent corporation, affiliate or wholly
owned subsidiary of Principal. The duties and obligations of Agent and any
signatory or guarantor hereunder shall survive any merger, consolidation,
dissolution or change in ownership or structure of Agent.
18. EXCLUSIVITY. Agent shall have no authority and will not undertake to,
without the prior written consent of Principal, serve as a policy issuing
agent for, or issue title insurance commitments, policies, endorsements or
other title assurances relating to real property located in the geographic
area on behalf of, any person or entity, other than Principal, Chicago
Title Insurance Company, National Title Insurance of New York, Inc., or any
other title insurance underwriter within the Fidelity National Financial,
Inc. holding company system.
19. INVALID PROVISIONS. If any provision of this Contract or the other
documents contemplated hereby is held to be illegal, invalid, or
unenforceable under present or future laws, such provisions shall be fully
severable; the appropriate documents shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part
hereof or thereto; and the remaining provisions hereof or thereof shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision. There shall be added automatically as
a part hereof or thereto a provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and still be legal,
valid and binding.
20. GOVERNING LAW. This Contract shall be governed by and construed in
accordance with the laws of the State of California.
21. ATTORNEY'S FEES; COSTS; VENUE. If a legal action or other proceedings are
brought for the enforcement of this Contract, or because of any alleged
dispute, breach, default or misrepresentation in connection with any of the
provisions of this Contract, the prevailing party shall be entitled to
recover reasonable attorneys' fees, administrative costs and other costs
incurred in that action or proceeding in addition to any other relief to
which it may be entitled. In addition, in the event of a material breach by
Agent, Principal shall be entitled to recover all costs and loss associated
with resolving the matter giving rise to said material breach. Venue for
any such proceeding shall be a location of Principal's choice.
22. OTHER AGREEMENTS VOID. It is expressly understood and agreed by and between
the parties hereto that this Contract sets forth all the promises,
agreements, conditions and understandings between Principal and Agent with
respect to this Contract and the subject matter hereof. Pertaining to such
Contract, there are no promises, agreements, conditions or understandings,
either oral or written, between them other than as are herein set forth.
23. CONTRACT. The terms and conditions of this Contract shall apply only to
Principal named herein and shall not apply to any company now or hereafter
affiliated with Principal or with Principal's affiliate Chicago Title and
Trust Company.
24. SIGNATURES IN COUNTERPART. This Contract and any amendments or attachments
thereto may be executed in one or more counterparts, each of which shall be
construed together to form one contract.
IN WITNESS WHEREOF, this Contract is executed this 28th day of September 2004.
AGENT:
Lender's Service Title Agency, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxxx
Senior Vice President and
Assistant Secretary
PRINCIPAL:
Fidelity National Title Insurance Company
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
Senior Vice President
RIDER TO ISSUING AGENCY CONTRACT
This Rider to Issuing Agency Contract (hereinafter referred to as "Rider") is
made by and between Fidelity National Title Insurance Company ("Principal") and
Lender's Service Title Agency, Inc. (" Agent") in order to amend and modify the
terms and provisions of that certain Issuing Agency Contract dated September 28,
2004 and executed contemporaneously herewith (the Issuing Agency Contract and
this Rider are hereinafter collectively referred to as the "Contract").
RATES, REMITTANCES, AND GENERAL LIABILITY LIMITATION
1. Attached hereto is the schedule of rates and remittances or manual for the
area covered by this Contract. Agent shall quote, charge and collect said
rates for each policy issued. Principal reserves the right to amend this
schedule, at its discretion.
2. Principal will quote special rates on request for special or unusual
situations.
3. For extraordinary or extra-hazardous risks and for extensions of policy
coverage, Principal reserves the right to set and determine the charge.
4. For each commitment, policy and endorsement of Principal issued by Agent
pursuant to this Contract, Agent shall report and remit that portion of
premiums collected in each jurisdiction as set forth in Exhibit B. If the
Loss Percentage during any calendar year, as herein defined, arising from
policies issued by Agent, equals or exceeds twenty percent (20%), Agent and
Principal agree to review and adjust, in good faith, the remittance rate
set forth in this paragraph and the general liability limit set forth in
the Paragraph numbered "9" of this Rider. For the purposes of this
paragraph, Loss Percentage shall mean the total losses incurred by
Principal during a calendar year or portion thereof at the inception of
this Agreement (including all costs and attorneys fees paid, net of
recoupment, plus claim-based reserves set during such period) divided by
remittances received pursuant to this paragraph during the same calendar
year or portion thereof at the inception of this Agreement, expressed as a
percentage.
5. For charges made pursuant to Paragraphs numbered "2" and "3" of this Rider,
and orders referred to Agent by Principal, Agent shall remit an amount as
shall be agreed upon between Principal and Agent.
6. Where Principal purchases reinsurance or excess coinsurance, a decision
that rests solely with Principal, the division of the rates as herein
provided shall be computed on the net amount remaining after deducting the
costs thereof. Agent shall remit to Principal the cost of such reinsurance
or coinsurance.
7. All payments required hereunder shall be directed to Principal as hereafter
set forth: Remitted premiums, together with any remittance report or
information required by the Contract, shall be delivered to Principal at
the following address: Fidelity National Title Insurance Company, 000
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx XX 00000, Attn: Agency Accounting no later
than thirty (30) days following the Effective Date, as hereinafter
defined, of the title assurance. The Effective Date of any title assurance
shall be the policy date set forth in Schedule A of the title insurance
policy.
8. Compensation. Principal's compensation shall be the amount required to be
remitted hereunder by Agent. Agent's compensation shall be the rates and
charges herein required to be collected, less the amount remitted to
Principal. It is the Parties' mutual understanding and intent to maintain
an annual weighted average compensation to Principal (and/or its
affiliates) of twelve percent (12%) (or as adjusted pursuant to paragraph 4
of this Rider) of the rates and charges required to be collected by Agent
and its affiliates on a nationwide basis pursuant to all Issuing Agency
Agreements in force between the Parties and/or their respective affiliates.
The Parties hereto agree to assess on an annual basis the aggregate
compensation of Principal and/or its affiliates under all such Issuing
Agency Agreements, and to prospectively adjust the amounts remitted by
Agent under one or more such Agreements in a good faith attempt to maintain
the desired weighted average on a nationwide basis.
9. General Liability Limit of Agent: Subject to the provisions of Paragraph 8,
Agent shall be liable for the first portion of any Loss sustained or
incurred by Principal as a result of the issuance of the Title Assurances
by Agent in the amount set forth on Exhibit B for the jurisdiction
indicated.
Executed this 28th day of September, 2004.
AGENT: PRINCIPAL:
Lender's Service Title Agency, Inc. Fidelity National Title Insurance
Company
By: /s/ Xxxxxx X. Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------- ------------------------------------
Xxxxxx X. Xxxxxxxxxx Xxxxx X. Xxxxxxxx
Senior Vice President Senior Vice President
Assistant Secretary
