EXHIBIT 10.35
TRANSITIONAL COST SHARING AGREEMENT
This TRANSITIONAL COST SHARING AGREEMENT ("Agreement") made effective as of the
14th day of April, 2005, by and among FIS Management Services, LLC, a Delaware
limited liability company ("FIS Management"); Lender's Service Title Agency,
Inc., an Ohio corporation ("LSI Ohio"); LSI Alabama, LLC, an Alabama limited
liability company ("LSI Alabama"); LSI Maryland, Inc., a Maryland corporation
("LSI Maryland"); LSI Title Agency, Inc., an Illinois corporation ("LSI
Illinois"); LSI Title Company, a California corporation ("LSI California"); LSI
Title Company of Oregon, LLC, an Oregon limited liability company ("LSI
Oregon"); and Chicago Title Insurance Company, a Missouri-domiciled title
insurance company ("CTI"). FIS Management, LSI Ohio, LSI Alabama, LSI Maryland,
LSI Illinois, LSI California and LSI Oregon are collectively the "LSI
Companies", and each LSI Company, together with CTI is a "Party" and
collectively, the "Parties".
WHEREAS, each of the LSI Companies is owned directly or indirectly by Fidelity
National Information Services, Inc., a Delaware corporation ("FNIS"); and
WHEREAS, CTI and FNIS are direct or indirect subsidiaries of Fidelity National
Financial, Inc. ("FNF"); and
WHEREAS, FIS Management provides employee services to the LSI Companies; and
WHEREAS, one of the businesses of FNIS is the Lender's Services, or LSI,
business; and
WHEREAS, the LSI business provides appraisal, title and closing services to
residential mortgage originators and provides automated loan servicing; and
WHEREAS, LSI California, LSI Alabama, LSI Ohio, LSI Illinois, and LSI Oregon
have each entered into an Issuing Agency Contract with CTI relating to the LSI
business; and
WHEREAS, pursuant to a dividend approved by the Missouri Department of
Insurance, CTI began transitioning the LSI business to the LSI Companies on
October 31, 2004; and
WHEREAS, the transition of the LSI business to the LSI Companies is not
occurring as quickly as anticipated in certain jurisdictions; and
WHEREAS, the LSI Companies desire that CTI continue to operate certain aspects
of the LSI business on a direct basis in those jurisdictions in which the LSI
Companies are not licensed or otherwise able to operate until such time as the
LSI Companies become licensed or otherwise able to operate in those
jurisdictions; and
WHEREAS, each Party participates in the operations of the LSI business to some
extent and desires to cooperate in the sharing of certain costs associated with
the LSI business, and desires further to share in the use of certain property,
equipment, and facilities associated with the LSI business (collectively,
"facilities"); and
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WHEREAS, the Parties contemplate that such an arrangement will achieve certain
operating economies, and improve services to their mutual benefit; and
WHEREAS, the Parties wish to assure that all sharing of costs and the use of
facilities incurred hereunder are reasonable, and in accordance with the
requirements of the Missouri Department of Insurance, and to the extent
practical, reflect actual costs and are arrived at in a fair and equitable
manner.
NOW, THEREFORE, in consideration of the promises and of the mutual covenants
herein contained, and intending to be legally bound hereby, the Parties agree as
follows:
1. SHARING OF COSTS AND USE OF FACILITIES The Parties agree to share the costs
of the employees performing services in connection with the LSI business. FIS
Management will provide employees to perform the services. Compensation paid to
FIS Management for such employees' services shall be on a cost basis and will be
no greater than what each Party would expend in providing such services for
itself.
The Parties also agree to share facilities needed in connection with the LSI
business, including but not limited to, data processing, equipment, business
property, whether owned or leased, and communication equipment.
Each Party's division of costs for the employees and facilities needed in
connection with the LSI business will be determined on a monthly calendar basis
as follows: the premiums for the LSI business of each of the Parties who are
underwriters, underwritten title companies and agents are aggregated, and the
percentage of the total is calculated for each company. The costs are then
allocated to each Party based on those percentages. The allocation of costs
shall be consistent with the provisions of any law or regulation that may apply.
CTI will provide escrow services and underwrite the LSI title insurance business
on a direct basis pursuant to this Agreement only in those jurisdictions, as set
forth on Schedule A attached hereto as amended from time to time by the LSI
Companies, in which the LSI Companies cannot otherwise conduct the LSI business.
Nothing contained herein shall alter the rights, duties, or responsibilities of
the LSI Companies under their respective Issuing Agency Contracts with CTI in
any jurisdiction not listed for "title" in Schedule A.
2. REPORTS AND PAYMENT Within thirty (30) days after the end of each month, each
Party will submit to LSI California a written statement reflecting the total
costs subject to this Agreement that were incurred by such Party in the
preceding month, including costs not included in any previous statement. LSI
California will review such written statements and make the necessary cost
allocations to each Party based on the method set forth in Paragraph I of this
Agreement. Reports shall be furnished monthly by LSI California to each Party;
and each Party will remit what it owes within fifteen (15) days of receipt of
the report.
3. RECORDS AND DOCUMENTS RELATING TO CHARGES Each Party shall be responsible for
maintaining full and accurate accounting records of the sharing of employees and
facilities pursuant to this Agreement in accordance with any law or regulation
that may apply and such additional information as any other Party may reasonably
request for purposes of its
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internal bookkeeping and accounting operations. Each Party shall make such
accounting records insofar as they pertain to the computation of costs hereunder
available at its principal offices for audit, inspection and copying by the
recipient party or any governmental agency having jurisdiction over such
recipient party during all reasonable business hours. All records generated by
the employees in the performance of their duties under this Agreement in which a
CTI title insurance policy is issued on a direct basis belong to CTI.
4. EFFECTIVE DATE This Agreement shall become effective as of the date first
written above. Other direct or indirect subsidiaries of FNIS engaged in the LSI
business may join this Agreement at a later date, subject to the approval all
parties and subject to approval of the appropriate insurance department, if
necessary, under any applicable insurance holding company act or regulation.
5. TERMINATION AND MODIFICATION This Agreement or any part thereof shall remain
in effect until terminated in whole or in part as follows: (i) by mutual consent
of all of the Parties, in which event the obligations under this Agreement shall
terminate as of the date specified by the Parties; (ii) as to each LSI Company,
upon giving thirty (30) days written notice to the other Parties, in which
event, as to such LSI Company, the obligations under this Agreement shall
terminate immediately upon expiration of the 30 day notice period, provided that
the termination of the obligations under this Agreement as to such LSI Company
shall not affect the effectiveness of this Agreement to the other LSI Companies;
(iii) immediately upon the occurrence of any event which results in National
Title Insurance of New York Inc. becoming a direct or indirect subsidiary of
FNIS; or (iv) as to CTI, immediately at such time as no jurisdiction is listed
on Schedule A. Participation in this Agreement shall end immediately as to a LSI
Company that is no longer affiliated with FNIS. This Agreement shall be subject
to renegotiation at least every three years following the initial effective date
of this Agreement. In the event of termination, each Party shall have the right
to elect to continue to receive data processing services and/or to continue to
utilize data processing facilities and related software for up to one year from
the date of such notice. Upon termination, each Party shall deliver to the other
Parties all books and records that are, or are deemed by this Agreement to be,
the property of such Party and each Party shall provide a final written
statement in accordance with Paragraph 2 of this Agreement.
This Agreement may be amended only by mutual consent in writing signed by each
Party; provided however, that the deletion of a jurisdiction from Schedule A
shall be effective upon written notice from the LSI Companies to CTI. No
amendment of this Agreement, other than the deletion of a jurisdiction from
Schedule A, shall be effective without the prior written approval of the
Missouri Department of Insurance.
6. ASSIGNMENT This Agreement and any rights pursuant hereto shall not be
assignable by any Party hereto, except by operation of law. Nothing in this
Agreement, expressed or implied, is intended to confer on any person other than
the Parties hereto, or their respective legal successors, any rights, remedies,
obligations or liabilities, or to relieve any person other than the Parties
hereto, or their respective legal successors, from any obligations or
liabilities that would otherwise be applicable.
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7. GOVERNING LAW This Agreement is made pursuant to and shall be governed by,
interpreted under, and the rights of the Companies determined in accordance
with, the laws of the State of Missouri notwithstanding the conflicts of laws
provisions thereof.
8. ARBITRATION Any unresolved difference of opinion between the Companies
arising out of or relating to this Agreement, or in the breach thereof, except
as provided in Section 3, shall be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association and the
Expedited Procedures thereof, and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The
arbitration shall take place in the State of California. Arbitrations shall be
governed by the laws of the State of Missouri.
9. NOTICE All notices, statements or requests ("Notice") provided for hereunder
shall be in writing and shall be deemed to have been duly given when delivered
by hand to an officer of the other Party, or after one day when deposited with a
nationally-recognized next-day courier service. All Notices shall be addressed
to the addresses of the Parties as set forth on the signature pages hereof.
10. HEADINGS The headings of the various paragraphs of this Agreement are for
convenience only, and shall be accorded no weight in the construction of this
Agreement.
11. ENTIRE AGREEMENT This Agreement, together with such amendments as may from
time to time be executed in writing by the Parties, constitutes the entire
Agreement between the Parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed
on its behalf by its duly authorized representative as of the date and year
first above written.
FIS Management Services, LLC Lender's Service Title Agency, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President Title: Senior Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Address: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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LSI Alabama, LLC LSI Maryland, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Title: Senior Vice President Title: Senior Vice President
Address: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Address: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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LSI Title Agency, Inc. LSI Title Company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Title: Senior Vice President Title: Senior Vice President
Address: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Address: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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LSI Title Company of Oregon, LLC Chicago Title Insurance Company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President Title: Senior Vice President
Address: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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