Exhibit 10.3
FNF CORPORATE AND TRANSITIONAL SERVICES AGREEMENT
This Corporate and Transitional
Services Agreement (this “Agreement”) is dated as of
July 2, 2008, by and between FIDELITY NATIONAL FINANCIAL,
INC. , a Delaware corporation (“FNF” or
“PROVIDING PARTY”), and LENDER PROCESSING SERVICES,
INC. , a Delaware corporation (“LPS” or
“RECEIVING PARTY”). FNF and LPS shall be referred to
together in this Agreement as the “Parties” and
individually as a “Party.”
WHEREAS, FNF is a party to an Amended
and Restated Corporate Services Agreement dated as of
October 23, 2006 with respect to the provision of certain
corporate services by FNF and its Subsidiaries (as hereinafter
defined) to Fidelity National Information Services, Inc., a Georgia
corporation (“FIS”); and
WHEREAS, in connection with the
separation of FIS and LPS and the consummation of the transactions
(the “Transactions”) contemplated by that certain
Contribution and Distribution Agreement dated as of June 13,
2008 (the “Contribution Agreement”), between FIS and
LPS, the Parties wish to enter into a separate agreement for the
provision of certain services by FNF and its Subsidiaries to LPS
and its Subsidiaries; and
WHEREAS, capitalized terms used
herein and not otherwise defined shall have the meanings ascribed
thereto in the Contribution 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)
Scheduled Services . PROVIDING PARTY, through its
Subsidiaries and Affiliates (each 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 date on which the Distribution
occurs (the “Effective Date”), with such services to be
provided to 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 either Party, any
corporation, partnership, company or other entity of which such
Party controls or owns, directly or indirectly, more than fifty
percent (50%) of the stock or other equity
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interest
entitled to vote on the election of the members to the board of
directors or similar governing body, or otherwise has the power to
elect a majority of the members to the board of directors or
similar governing body; and “Affiliate” means, with
respect to either Party, any corporation, partnership, company, or
other entity that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common
control with, such specified Party. As used herein,
“control” means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and
policies of such entity, whether through ownership of voting
securities or other interests, by contract or otherwise.
(b)
Omitted Services . PROVIDING PARTY, through its Subsidiaries
and Affiliates, 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 on or before
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 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 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
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 PROVIDING PARTY or its Subsidiaries
or Affiliates 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 or Affiliates
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 RECEIVING PARTY for the Omitted
Services provided hereunder by PROVIDING PARTY 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 such Omitted Services
provided hereunder by PROVIDING PARTY or its Subsidiaries or
Affiliates 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)
Resumed Services . At RECEIVING PARTY’s written
request, PROVIDING PARTY, through its Subsidiaries and Affiliates,
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
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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.
(d)
Special Projects . At RECEIVING PARTY’s written
request, PROVIDING PARTY, through its Subsidiaries and Affiliates,
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 .
(a)
Migration of Services . 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 or one or more of its Subsidiaries or Affiliates or to 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 Affiliates 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.
(b)
Performance Excused . All obligations of PROVIDING PARTY
with respect to any one or more individual Corporate Services or
Transition Assistance under this Agreement shall be excused to the
extent and only for so long as a failure by PROVIDING PARTY with
respect thereto is directly attributable to and caused specifically
by a failure by RECEIVING PARTY or any of its Subsidiaries to meet
their obligations (including any performance) under the Master
Information Technology and Development Services Agreement
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dated as
of June 13, 2008 by and between LPS, as the service provider,
and FNF, as service recipient.
1.3 Third Party Vendors;
Consents .
(a)
Third Party Consents . 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 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)
No Transfer of Software . 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 or Affiliates 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 .
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(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 either 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 either Party to the Dispute in any court
having jurisdiction over the subject matter or over either Party.
All costs and expenses incurred in connection with any such
arbitration proceeding (including reasonable attorneys’ fees)
shall be borne by the Party incurring such costs. The use of any
alternative dispute resolution procedures hereunder will not be
construed under the doctrines of laches, waiver or estoppel to
affect adversely the rights of either Party.
(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 or Affiliates, are entitled to commence a dispute
resolution procedure under this Agreement, whether pursuant to 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.
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1.5 Standard of Services
.
(a)
General Standard . 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)
Disaster Recovery . 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)
Shortfall in Services . 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 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 RECEIVING
PARTY. PROVIDING PARTY shall not and shall not permit its
Subsidiaries or Affiliates to use 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 earliest of:
(i) the date on which the last of the
Scheduled Services under this Agreement is terminated,
(ii) the date on which this Agreement
is terminated by mutual agreement of the Parties, or
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(iii) the second anniversary of the
date of this Agreement,
whichever is earlier (in any case, the “Termination
Date”); provided , however , that, with respect
to any entity that ceases to be a Subsidiary of RECEIVING PARTY
prior to the Termination Date, the Term with respect to such entity
shall terminate effective as of the date that such entity ceases to
be a Subsidiary of RECEIVING PARTY.
2.2 Termination .
(a)
30 Day Extension . 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)
Early Termination . 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
PROVIDING PARTY believes in good faith that, notwithstanding
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 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 or Affiliates move
to a department within RECEIVING PARTY or its Subsidiaries or
Affiliates (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)
Termination of All Services . 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
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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 RECEIVING PARTY or its Subsidiaries or Affiliates (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 or Affiliates 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 and Affiliates to do
so) within thirty (30) days after the applicable termination.
Upon the end of the Term, each Party will return al
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