EXHIBIT 10.9
ASSIGNMENT, ASSUMPTION AND NOVATION AGREEMENT
This ASSIGNMENT, ASSUMPTION AND NOVATION AGREEMENT (this
"Agreement"), dated as of _______________, 2005 by and between FIDELITY NATIONAL
FINANCIAL, INC., a Delaware corporation ("FNF"), and FIDELITY NATIONAL TITLE
GROUP, INC., a Delaware corporation ("FNT").
WHEREAS, in connection with its business operations, FNF has
heretofore entered into (i) that certain CORPORATE SERVICES AGREEMENT dated as
of March 4, 2005 (the "CSA") with Fidelity National Information Services, Inc.,
a Delaware corporation ("FIS"), (ii) that certain REVERSE CORPORATE SERVICES
AGREEMENT dated as of March 4, 2005 (the "RCSA") with FIS, (iii) that certain
MASTER SERVICES AGREEMENT dated as of January 1, 2005 (the "MSA") with Fidelity
Information Services, Inc., an Arkansas corporation and a wholly-owned
subsidiary of FIS, (iv) that certain BACK PLANT REPOSITORY ACCESS AGREEMENT
dated March 4, 2005 (the "BPA") with FIS, (v) that certain FNF STARTERS
REPOSITORY ACCESS AGREEMENT dated March 4, 2005 (the "SRA") with FIS, (vi) that
certain LICENSE AND SERVICES AGREEMENT dated as of March 4, 2005 (the "LSA")
with FIS, (vii) that certain LEASE AGREEMENT dated as of January 1, 2005 (the
"Lease") with Fidelity Information Services, Inc., an Arkansas corporation and a
wholly-owned subsidiary of FIS, and (viii) that certain SOFTPRO SOFTWARE LICENSE
AGREEMENT dated as of March 4, 2005 (the "SoftPro License"; and together with
the CSA, the RCSA, the MSA, the BPA, the SRA, the LSA and the Lease,
collectively, the "Assigned Agreements") between FNIS SoftPro, a division of
Fidelity National Information Solutions, Inc., a wholly-owned subsidiary of FIS;
and
WHEREAS, in connection with a strategic restructuring plan, FNF has
formed FNT to serve as the holding company for FNF's title insurance operations
and related businesses; and
WHEREAS, as part of the strategic restructuring plan, subject to and
upon the terms set forth herein, FNF now desires to transfer, assign and convey
to FNT, and FNT desires to accept and assume from FNF, all of FNF's right, title
and interest in and to each of the Assigned Agreements, including the assumption
of all of FNF's obligations and liabilities in connection with each of the
Assigned Agreements;
NOW, THEREFORE, in consideration of the foregoing and the 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, intending to be legally bound hereby, agree as follows:
1. Transfer and Assignment. Effective as of the date hereof, and on
the terms and subject to the conditions set forth herein, FNF does hereby
transfer, assign and convey to FNT all of FNF's right, title and interest in and
to each of the Assigned Agreements.
2. Acceptance and Assumption. Effective as of the date hereof, and
on the terms
and subject to the conditions set forth herein, FNT does hereby accept and
assume all of FNF's right, title and interest in and to each of the Assigned
Agreements and all of FNF's responsibilities, obligations and liabilities in
connection with each of the Assigned Agreements.
3. Novation of Assigned Agreements. Upon the effectiveness of this
Agreement, FNT will also enter into a novation of each of the Assigned
Agreements, whereby FNT will contractually undertake to perform all of the
rights and obligations under each of the Assigned Agreements, and the rights and
obligations of FNF under each of the Assigned Agreements will thereby be deemed
to have been fully extinguished. Notwithstanding the foregoing, FNF acknowledges
that it is obligated to comply with certain post-termination obligations as
expressly set forth in the Assigned Agreements, such as those relating to
maintaining confidentiality, and FNF hereby agrees to abide by all such
applicable provisions.
4. Instruments of Transfer and Notice to Parties. Each of FNF and
FNT agrees that it shall (a) file with the relevant governmental or other
entities such assignment documents as may be necessary to reflect in the books
and records of such governmental or other entities this assignment and
assumption of each of the Assigned Agreements and (b) provide written notice of
such assignment, acceptance and assumption (and, to the extent required by
applicable law and/or the terms of any Assigned Agreement, take all actions
necessary to obtain any necessary consents and/or provide any other notices or
documentation reflecting such assignment, acceptance and assumption) to all
parties to each of the Assigned Agreements.
5. Representations of the Parties. Each of FNT and FNF represents
and warrants to the other that (i) it is duly organized, validly existing and in
good standing under the laws of its state of incorporation, (ii) it has all
requisite corporate power and authority to enter into, execute and deliver this
Agreement and to carry out its obligations hereunder and to consummate the
transactions contemplated hereby, and (iii) this Agreement constitutes its
legal, valid and binding obligation, enforceable against it in accordance with
its terms. Further, FNF represents and warrants that, as of the date hereof, it
has fully performed all of its obligations that are due and owing under each of
the Assigned Agreements and, to the extent that any services or products have
been received, but not paid in full, by FNF under any of the Assigned Agreements
as of the date hereof, FNF shall remain obligated to make such payments in a
timely manner in accordance with the terms of the applicable Assigned
Agreement(s).
6. Further Assurances. From time to time at or after the effective
date of this Agreement, each of the parties to this Agreement shall cooperate
and use its reasonable efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, all things necessary, proper or advisable under
applicable laws (and/or under the terms of the Assigned Agreements) to
consummate and make effective the transactions contemplated hereby.
7. Successors and Assigns. This Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
8. Governing Law; Jurisdiction. This Agreement shall be governed by,
enforced under and construed in accordance with the laws of the State of New
York.
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9. Amendments. This Agreement may be changed, modified or terminated
only by an instrument in writing signed by each of the parties hereto.
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10. Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be signed by their respective officers thereunto duly authorized as of the date
first written above.
FIDELITY NATIONAL FINANCIAL, INC.
By
____________________________________
Name:
Title:
FIDELITY NATIONAL TITLE GROUP, INC.
By
____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
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CONSENT
BY
FIDELITY NATIONAL INFORMATION SERVICES, INC.
AND
FIDELITY INFORMATION SERVICES, INC.
TO THE
ASSIGNMENT, ASSUMPTION AND NOVATION AGREEMENT
The undersigned does hereby consent to:
(a) the assignment by FIDELITY NATIONAL FINANCIAL, INC. ("FNF") to FIDELITY
NATIONAL TITLE GROUP, INC. ("FNT") of all of FNF's right, title, and
interest in and to (i) the Corporate Services Agreement dated as of March
4, 2005 (the "CSA") between FNF and Fidelity National Information
Services, Inc., a Delaware corporation ("FIS"), (ii) the Reverse Corporate
Services Agreement dated as of March 4, 2005 (the "RCSA") between FNF and
FIS, (iii) the Master Services Agreement dated as of January 1, 2005 (the
"MSA") between FNF and Fidelity Information Services, Inc., an Arkansas
corporation and a wholly-owned subsidiary of FIS, (iv) the Back Plant
Repository Access Agreement dated March 4, 2005 (the "BPA") between FNF
and FIS, (v) the FNF Starters Repository Access Agreement dated ▇▇▇▇▇ ▇,
▇▇▇▇ (▇▇▇ "▇▇▇ ") between FNF and FIS, (vi) the License and Services
Agreement dated as of March 4, 2005 (the "LSA") with FIS, (vii) the Lease
Agreement dated as of January 1, 2005 (the "Lease") between FNF and
Fidelity Information Services, Inc., an Arkansas corporation and a
wholly-owned subsidiary of FIS, and (viii) the SoftPro Software License
Agreement dated as of March 4, 2005 (the "SoftPro License"; and together
with the CSA, the RCSA, the MSA, the BPA, the SRA, the LSA, and the Lease,
collectively, the "Assigned Agreements") between FNF and FNIS SoftPro, a
division of Fidelity National Information Solutions, Inc., a wholly-owned
subsidiary of FIS;
(b) the assumption by FNT of all of FNF's responsibilities, obligations and
liabilities under each of the Assigned Agreements, and the extinguishment
of all of FNF's responsibilities, obligations and liabilities thereunder;
and
(c) a novation of each of the Assigned Agreements, pursuant to agreements to
be entered into between FNT and each of the undersigned, as applicable.
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Effective as of the date hereof, the undersigned hereby agrees (i) to look
solely to FNT for the fulfillment of all obligations under, and the satisfaction
of all liabilities arising out of, any and all of the Assigned Agreements, and
(ii) to execute the novation of each of the Assigned Agreements. The undersigned
acknowledges that pursuant to the novations, FNT shall be the contracting party
for all obligations arising under the Assigned Agreements and shall be entitled
to all benefits thereof, including the receipt of any payments that may become
due thereunder.
FIDELITY NATIONAL INFORMATION SERVICES, INC.,
a Delaware corporation
By
____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
FIDELITY INFORMATION SERVICES, INC.,
an Arkansas corporation
By
____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
FIDELITY NATIONAL INFORMATION SOLUTIONS, INC.,
a Delaware corporation
By
____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
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