EXHIBIT 99.5
Execution Version
TELECOMMUNICATIONS SERVICES AGREEMENT
This Telecommunications Services Agreement ("Agreement") is made as of
October 23, 2006 by and between FIDELITY INFORMATION SERVICES, INC., an Arkansas
corporation ("FIServices") and a subsidiary of FIDELITY NATIONAL INFORMATION
SERVICES, INC. (together with its subsidiaries, affiliates, successors and
assigns, collectively "FIS"), and FIDELITY NATIONAL TITLE GROUP, INC., a
Delaware corporation that, after the consummation of the Transactions (as
hereinafter defined), will be known as "Fidelity National Financial, Inc."
(together with its subsidiaries, affiliates, successors and assigns,
collectively "FNF"). FNF and FIServices are herein referred to individual as a
"Party" and, collectively, the "Parties".
WHEREAS, FIServices, as Landlord, and FNF, as Tenant, have entered into
that certain Amended and Restated Lease Agreement dated as of October 23, 2006
(the "Lease"), pursuant to which FNF leases from FIServices office space and
other appurtenants thereto, located on the Fidelity National Financial corporate
campus located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in the city of Jacksonville, county of
▇▇▇▇▇, state of Florida (the "Fidelity Campus"); and
WHEREAS, FNF, as Sublandlord, and FIS, as Subtenant, have entered into that
certain Amended and Restated SubLease Agreement dated as of October 23, 2006
(the "SubLease"), pursuant to which FIS subleases from FNF office space and
other appurtenants thereto, located in a building on the Fidelity Campus known
as "Building V"; and
WHEREAS, FIServices is responsible for all telecommunications services and
equipment for the Fidelity Campus, including those for Building V;
WHEREAS, in connection with the consummation of the transactions (the
"Transactions") contemplated by that certain Securities Exchange and
Distribution Agreement dated as of June 25, 2006, as amended and restated as of
September 18, 2006 (as so amended and restated, the "Distribution Agreement"),
between Fidelity National Financial, Inc., a Delaware corporation ("Old FNF"),
and FNF, and the consummation of the transactions contemplated by that certain
the Agreement and Plan of Merger dated as of June 25, 2006 as previously amended
and as amended and restated as of September 18, 2006 (as so amended and
restated, the "FIS Merger Agreement"), between Old FNF and FIS, the Parties wish
to set forth their agreement with regard to the telecommunication services and
equipment at the Campus; and
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties, intending to be
legally bound hereby, agree as follows:
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1. Services and Equipment Provided. So long as this Agreement is in effect,
FIServices hereby agrees to provide to FNF the following telecommunication
services and equipment at the Campus, including Building V:
a) Supply of all Handsets,
b) Voicemail,
c) Maintenance of Computer Servers that Route Tenant's Telephone Calls
("Public Branch Exchange" or "PBX" Units),
d) Call accounting program and maintenance, and
e) Supply all cabling infrastructure.
The following services are specifically excluded:
i) Move/add/change requests, and
ii) Project work related to new PBX's.
2. Payment for Pro Rata Sharing of Costs. FNF hereby agrees to pay to
FIServices FNF's respective share of the telecommunications services listed
above incurred by FIServices at the Campus. The costs to be allocated to FNF
will be proportionate to FNF's utilization of the telecommunications systems,
including long distance telephone charges, and shall be allocated on an employee
headcount basis, taking into account the aggregate number of FNF employees as
compared to the aggregate number of persons (including without limitation FIS
employees) with telecommunication services at the Campus.
3. Accounting and Payment. Within 30 days after the end of each calendar
month, FIServices shall prepare and deliver to FNF a monthly summary statement
(each a "Monthly Telecommunications Cost Summary Statement") setting forth all
of the costs owing by FNF to FIServices hereunder. For sake of clarification,
the Parties acknowledge that unless and until the Parties agree otherwise, all
Monthly Telecommunications Summary Statements required hereunder shall be
incorporated into and be a part of the respective Monthly Summary Statement
referred to in the Amended and Restated Corporate Services Agreement dated as of
October __, 2006 (the "CSA") between FNF and FIS, and in the Amended and
Restated Reverse Corporate Services Agreement dated as of October __, 2006 (the
"RCSA") between FIS and FNF. The parties contemplate that (i) one Monthly
Summary Statement will be prepared by FNF with respect to all expenses, costs
and fees attributable or allocable to FIS and its subsidiaries under all
agreements between FNF and/or its subsidiaries, on the one hand, and FIS and/or
its subsidiaries, on the other, incurred during the preceding calendar month,
(ii) one Monthly Summary Statement will be prepared by FIS with respect to all
expenses, costs and fees attributable or allocable to FNF and its subsidiaries
under all agreements between FIS and/or its subsidiaries, on the one hand, and
FNF and/or its subsidiaries, on the other, incurred during the preceding
calendar month, and (iii) FNF (on behalf of itself and its subsidiaries) and FIS
(on behalf of itself and its subsidiaries) will offset the amounts owing, as
shown on the Monthly Summary Statements for the same month, so that the net
amount owing from the applicable party can be determined. The Parties further
contemplate that the net amount owing under the
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Monthly Summary Statements, including without limitation, the net amount owing
with respect to the costs owing under this Agreement, shall be paid in full by
the applicable party within 10 days after presentation of each of the Monthly
Summary Statements for each month, all in accordance with and subject to the
terms and conditions set forth in the CSA and the RCSA.
4. Term and Termination of this Agreement. This Agreement shall remain in
effect for so long as the Lease or the SubLease is in effect, including any
extension or renewal thereof. Without limiting the foregoing, this Agreement may
be terminated at any time with the consent of both Parties. In the event that
this Agreement is terminated at the request of either party, FNF shall
compensate FIServices for the costs, if any, actually incurred by FIServices for
any unamortized telecommunications equipment provided hereunder that was
purchased or otherwise acquired for use by FNF and for which FIServices has no
other use after the termination of this Agreement (it being understood that
FIServices shall use its reasonable best efforts to mitigate any such costs).
5. Confidentiality. Each Party shall keep confidential any and all
information concerning the other Party which it may obtain pursuant to the
activities described in this Agreement, and agrees not to disclose such
information to any person unless authorized to do so by the Party in question.
The provisions of this Section 5 shall not, however, apply to information made
generally available to the public by any Party or by third parties through
lawful channels, or information which is obtained from a third person who
(insofar as is known to the recipient of such information) is lawfully in
possession of such information and not in violation of any contractual, legal or
fiduciary obligation to a Party with respect to such information.
6. Limitation of Liability. EACH PARTY SHALL BE LIABLE TO THE OTHER FOR ALL
DIRECT DAMAGES ARISING OUT OF OR RELATED TO ANY CLAIMS, ACTIONS, LOSSES, COSTS,
DAMAGES AND EXPENSES RELATED TO, IN CONNECTION WITH OR ARISING OUT OF THIS
AGREEMENT. EXCEPT TO THE EXTENT ARISING FROM GROSS NEGLIGENCE, WILLFUL
MISCONDUCT, OR BY REASON OF A BREACH OF WARRANTY, ANY PARTY'S LIABILITY FOR ANY
CLAIM OR CAUSE OF ACTION WHETHER BASED IN CONTRACT, TORT OR OTHERWISE WHICH
ARISES UNDER OR IS RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE OTHER
PARTY(S)'S DIRECT OUT-OF-POCKET DAMAGES, ACTUALLY INCURRED. IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER. WITHOUT LIMITING THE FOREGOING,
THE PARTIES AGREE THAT IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY
TO THE OTHER FOR SUCH DAMAGES, WHETHER ARISING IN CONTRACT, TORT, EQUITY,
NEGLIGENCE OR OTHERWISE, EXCEED $100,000.
7. Dispute Resolution
(a) Amicable Resolution. The Parties mutually desire that friendly
collaboration will continue between them. Accordingly, they will try to resolve
in an amicable manner all disagreements and misunderstandings connected with
their respective rights and
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obligations under this Agreement, including any amendments hereto. In
furtherance thereof, in the event of any dispute or disagreement (a "Dispute")
between the Parties in connection with this Agreement, then the Dispute, upon
written request of either Party, will be referred for resolution to the General
Counsels of the Parties, which General Counsels will have ten (10) days to
resolve such Dispute.
(b) Mediation. In the event any Dispute cannot be resolved in a
friendly manner as set forth in Section 7(a), the Parties intend that such
Dispute be resolved by mediation. If the General Counsels of the Parties are
unable to resolve the Dispute as contemplated by Section 7(a), either Party may
demand mediation of the Dispute by written notice to the other in which case the
two Parties will select a single mediator within ten (10) days after the demand.
Neither Party may unreasonably withhold consent to the selection of the
mediator. Each Party will bear its own costs of mediation but both Parties will
share the costs of the mediator equally.
(c) Arbitration. In the event that the Dispute is not resolved
pursuant to Section 7(a) or through mediation pursuant to Section 7(b), the
latter within thirty (30) days of the submission of the Dispute to mediation,
either Party involved in the Dispute may submit the dispute to binding
arbitration pursuant to this Section 7(c). All Disputes submitted to arbitration
pursuant to this Section 7(c) shall be resolved in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, unless the
Parties involved mutually agree to utilize an alternate set of rules, in which
event all references herein to the American Arbitration Association shall be
deemed modified accordingly. Expedited rules shall apply regardless of the
amount at issue. Arbitration proceedings hereunder may be initiated by either
Party making a written request to the American Arbitration Association, together
with any appropriate filing fee, at the office of the American Arbitration
Association in Orlando, Florida. All arbitration proceedings shall be held in
the city of Jacksonville, Florida in a location to be specified by the
arbitrators (or any place agreed to by the Parties and the Arbitrators). The
arbitration shall be by a single qualified arbitrator experienced in the matters
at issue, such arbitrator to be mutually agreed upon by the Parties. If the
Parties fail to agree on an arbitrator thirty (30) days after notice of
commencement of arbitration, the American Arbitration Association shall, upon
the request of any Party to the dispute or difference, appoint the arbitrator.
Any order or determination of the arbitral tribunal shall be final and binding
upon the Parties to the arbitration as to matters submitted and may be enforced
by any Party to the Dispute in any court having jurisdiction over the subject
matter or over any of the Parties. All costs and expenses incurred in connection
with any such arbitration proceeding (including reasonable attorneys' fees)
shall be borne by the Party incurring such costs. The use of any alternative
dispute resolution procedures hereunder will not be construed under the
doctrines of laches, waiver or estoppel to affect adversely the rights of either
Party.
(d) Non-Exclusive Remedy. Each of the Parties acknowledge and agree
that money damages would not be a sufficient remedy for any breach of this
Agreement by either Party or misuse of the Confidential Information of FNF or
FIServices, as the case may be. Accordingly, nothing in this Section 7 will
prevent either Party from immediately seeking injunctive or interim relief in
the event of any actual or threatened breach of any confidentiality provisions
of this Agreement. All actions for such injunctive or interim relief shall be
brought in
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a court of competent jurisdiction. Such remedy shall not be deemed to be the
exclusive remedy for breach of this Agreement.
(e) Commencement of Dispute Resolution Procedure. Notwithstanding
anything to the contrary in this Agreement, the Parties, but none of their
respective Subsidiaries, are entitled to commence a dispute resolution procedure
under this Agreement, whether pursuant to this Section 7 or otherwise, and each
Party will cause its respective subsidiaries not to commence any dispute
resolution procedure other than through such Party as provided in this Section
7.
8. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Florida, without regard to the conflicts of laws
provisions thereof.
(b) Counterparts. This Agreement may be executed in one or more
counterparts, which together shall constitute one and the same instrument.
(c) Successors, Assigns and Affiliates. This Agreement shall be binding
upon, and shall inure to the benefit of, the Parties hereto and their respective
successors, assigns and affiliates. This Agreement may not be assigned by any
Party without the prior consent of the other Parties.
(d) Notices. Any notice or other communication to be given or made under
this Agreement ("Notice") shall be in writing and shall be deemed received (i)
when delivered personally, (ii) when sent by facsimile, if confirmed by
overnight courier service delivered the next day, (iii) on the third business
day following the sending thereof by overnight courier service, or (iv) on the
third business day following the sending thereof by registered or certified
mail, return receipt requested. All Notices shall be addressed to the addresses
of the Party, or sent by facsimile to their facsimile numbers, as set forth on
the signature pages hereof.
(e) Entire Agreement. This Agreement contains the entire Agreement among
the Parties with respect to the subject matter hereof, and supersedes all prior
agreements and understandings, oral or written, between the Parties with respect
thereto.
(f) Amendments. This Agreement may be amended only by an instrument in
writing agreed to by each of the Parties hereto.
(g) Effectiveness. Notwithstanding the date hereof, this Agreement shall
become effective as of the date and time that the merger under the Merger
Agreement is effective and the transactions contemplated thereby are
consummated.
[signature page to follow]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
on their behalf by their duly authorized representatives as of the date first
set forth above.
FIDELITY INFORMATION SERVICES, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
FIDELITY NATIONAL TITLE GROUP, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President and
Chief Financial Officer
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
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