**Exhibit 10.40**

 

CONFIDENTIAL TREATMENT REQUESTED—REDACTED COPY

CONFIDENTIAL TREATMENT REQUESTED:  INFORMATION FOR WHICH CONFIDENTIAL TREATMENT

HAS BEEN REQUESTED IS OMITTED AND NOTED WITH “***.”  AN UNREDACTED VERSION OF THIS

DOCUMENT HAS BEEN SUBMITTED SEPARATELY TO THESECURITIES AND EXCHANGE COMMISSION.

 

# ****

# **MASTER AGREEMENT**

**BETWEEN**

**FIDELITY INFORMATION SERVICES, INC.**

**AND**

**AMERICAN MORTGAGE NETWORK, INC.**

 

Agreement No.: 264-05M

 

**GENERAL TERMS AND CONDITIONS**

 

This Agreement is enteredinto as of May 10, 2005 (“Effective Date”), by and between **Fidelity Information Services, Inc.**, located at 601Riverside Avenue, Jacksonville, Florida 32204 (“Fidelity”) and **American Mortgage Network, Inc.,** located at 10421Wateridge Circle, Suite 250, San Diego, California 92121 (“Client”).

 

Inconsideration of the mutual benefits and obligations set forth herein and othergood and valuable consideration, the receipt and sufficiency of which is herebyacknowledged, Fidelity and Client hereby agree as follows:

 

**1.       DEFINITIONS**

 

For purposes of this Agreement, the followingterms shall have the definitions set forth below:

 

**1.1****                         “AAA”**means the American Arbitration Association.

 

**1.2****        “Addendum”**meansan attachment to this Agreement identified as an addendum and containing termsand conditions which are unique to a particular Product or Service.

 

**1.3****        “Affiliate”**meansan entity which controls, is controlled by, or is under common control with, aparty to this Agreement, as represented by ownership of a majority-in-interestof the voting stock (or other similar ownership interest if not represented bystock) of another entity.

 

**1.4****        “AuthorizedLocation(s)”** means the physical location(s), as identified in theapplicable Addenda or Schedules, at which licenses and Access Rights toProducts and Services are granted pursuant to the terms of this Agreement.

 

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**1.5****        “BasicProfessional Services”** means initial environmental set up, rule configurationand basic Installation, implementation, consultation and training in connectionwith the Products and Services.

 

**1.6****        “Client’sCustomer”**means a third party which has a contractual relationship withClient whereby Client performs Subservicing for such third party.

 

**1.7****        “ClientConfidential Information”**means all information of a non-public naturedisclosed by Client to Fidelity during the term of this Agreement.

 

**1.8****        “Competitor”**means any person, firm or corporation engaged in the business ofdeveloping, marketing or licensing software products or services which are incompetition with the software Products and Services provided by Fidelity, orFidelity’s parent, Affiliates or Subsidiaries.

 

**1.9****        “CPI-U Index”**means the****U.S. Department of Labor, Bureauof Labor Statistics, Consumer Price Index, U.S. City Average, Non-SeasonallyAdjusted, for all Urban Consumers, All Items (‘82-’84 = 100).

 

**1.10****      “DefectRelated”** means a deficiency or a problem directly related to a deficiencyin the following programs or equipment, whereby such program or equipment doesnot perform as designed, tested, and documented in the required environment: (a) Passport,Director software programs (Fidelity generated code); (b) Passport orDirector server hardware at Fidelity’s facilities; (c) Fidelity ownednetwork components (lines, routers, modems); or (d) Fidelity definedconfiguration settings or parameters.

 

**1.11****      “DependentAddendum”**means an Addendum which has, as a prerequisite for and/orcondition of, the continuation of its force and effect, any other Addendumhereunder for Fidelity Products and Services as specifically required in theapplicable Dependent Addendum.

 

**1.12****      “DerivativeWork(s)”** means a copyrightable creation borne of and based on any pre-existingcomputer code, programs, system, report, Documentation, or any other existingitem owned or developed by a party.

 

**1.13****      “Director”**meansa browser-enabled, thin client product consisting of a series of computerworkstation and server based programs delivered through the Portal that hasbeen developed or licensed by Fidelity to create a graphical extension to theMSP System and provide a common platform for distributed systems integrationand directed workflow.

 

**1.14****      “DisputeNotice”**shall have the meaning set forth in Section 18.3 (BindingArbitration) hereof.

 

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**1.15****      “DisputingParty”**shall have the meaning set forth in Section 18.3 (BindingArbitration) hereof.

 

**1.16****      “Documentation”**means user guides and manuals, handbooks, training materials and all otherprinted or electronic materials relating to or describing the use of theProducts and Services.

 

**1.17****      “Extended Term”**shall have the meaning set forth in Section 3.2 (Extended Term)hereof.

 

**1.18****      “FDIC”**meansthe Federal Deposit Insurance Corporation.

 

**1.19****      “Fidelity ConfidentialInformation”**means any and all Products and Services including theDocumentation, the Software, any nonpublic information which pertains toFidelity’s processes or business operations, and any other information whichFidelity identifies to Client as confidential or proprietary, which are thesole and exclusive property of Fidelity or are licensed by Fidelity from thirdparties and constitute the valuable, proprietary products and trade secrets ofFidelity or such third parties, as applicable, embodying substantial creativeefforts, ideas and expressions and are copyrighted under United States law andtreaty provision.

 

**1.20****      “FidelityOptional Processing and Support Services Rates Schedule”** means that certainSchedule attached hereto as Exhibit A.

 

**1.21****      “FM Cycle”**means a nightly batch cycle within the MSP System resulting from end of day andgo book transactions, as defined in the Documentation.  The FM Cycle serves as a driver module thatcalls other programs to perform various functions, which may include but arenot limited to, processing data, performing calculations, and printing reports.

 

**1.22****      “GLB Act”**meansthe Gramm-Leach-Bliley Act (15 U.S.C. Section 6801, et seq.) and theimplementing regulations thereunder.

 

**1.23****      “Host”**meansany computer(s) utilized by Fidelity as a host provider of system functionalityfor Products and Services.

 

**1.24****      “Installation”**means Fidelity’s activities or processes necessary to make the applicableProducts and Services available for access or use by Client.  Installation may include but is not limitedto, setting up Fidelity’s requisite hardware, software, andcommunications.  Installation does notinclude activities or processes that are the responsibility of Client which maybe necessary for access or use of the Products and Services.

 

**1.25****      “InternetService(s)”** means Internet and intranet based programs developed byFidelity as well as the development, hosting, maintenance of and/orcustomization of web sites on the Internet by Fidelity.

 

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**1.26****      “MSP”**meansFidelity’s mortgage servicing package.

 

**1.27****      “MSP System”**meansFidelity’s mortgage servicing package system consisting of the Software,NavigatorTM and Fidelity RLS Training Fundamentals.

 

**1.28****      “Original Term”**shall have the meaning set forth in Section 3.1 (Original Term)hereof.

 

**1.29****      “OTS”**meansthe Office of Thrift Supervision.

 

**1.30****                  “Passport”**means a browser-enabled, thin client product consisting of a series ofcomputer workstation and server based programs delivered through the Portalthat have been developed or licensed by Fidelity to serve as a repository ofdata designed to enhance Fidelity’s client’s business analysis and decisionproductivity.

 

**1.31****                  “PaternalAddendum”**means an Addendum which is a prerequisite for the existence andcontinuation of any other Addendum hereof.

 

**1.32****      “Portal”**meansFidelity’s browser-enabled technology to support the accessibility and deliveryof various Products and Services.

 

**1.33****      “PowerCell”**meansFidelity’s customer service support group that provides operational,application and technical support for Fidelity’s clients.

 

**1.34****      “PrincipalBalance Loan(s)”**means i) any loan on the MSP System which has anoutstanding balance showing with an active loan status; ii) any equity line ofcredit loan which has a principal balance; iii) any equity line of credit loanwhich has a zero balance at the end of a billing cycle due to advances andpayments being received which result in a zero balance; or iv) any equity lineof credit loan which has a zero balance because no drafts have been madeagainst such loan, but it is shown as an active loan on the MSP System.

 

**1.35****      “Process” or “Processing”**means performance of loan servicing activities including, but not limitedto, escrow, customer service, investor accounting, and default functionsutilizing the MSP System to input, update, and track loan data by executing aminimum of nineteen (19) FM Cycles per month.

 

**1.36****      “Products andServices”**means individually or collectively, the hardware, software, communications,systems, and services provided by Fidelity and made available to Clienthereunder.

 

**1.37****      “Releases”**meansmaintenance releases of the software components of particular Products andServices, other than MSP, which do not contain additional functionality.

 

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**1.38****      “Schedule”**meansa supplemental statement of details appended to an Addendum issued pursuant tothis Agreement.  Schedules may includebut are not limited to, information concerning the number of authorized UserAccess Rights for Products and Services, costs and/or fees associated withProducts and Services, Authorized Locations, effective dates, and anniversarydates.

 

**1.39****      “SeatLicense(s)”** means an individual workstation version of a specified Productlicense accessible through a single user sign on ID at an Authorized Locationpursuant to the terms of this Agreement.

 

**1.40****      “ServiceBureau Processing”**means the process by which Client provides dataprocessing services to a third party and grants to such third party and itsemployees use or access (beyond inquiry only access) to all or any part of theMSP System or any or all of the Products and Services provided hereunder forthe purpose of performing loan servicing functions and related mortgage loanactivities.

 

**1.41****      “SLA”**shall mean the service level agreement attached hereto as Exhibit B.

 

**1.42****      “Software”**meansthe series of computer programs developed by Fidelity and currently employed toperform electronic data processing services for its clients.

 

**1.43****      “SOW”**meansstatements of work entered into by and between Fidelity and Client inconnection with SOW Services.

 

**1.44****      “SOW Services”**means services which may include but are not limited to, consulting, customprogramming, data conversion, IP installation, project management, productimplementation, program modifications, and training, that are listed in one ormore SOW(s) executed by Client and Fidelity, which SOW(s) are incorporated intoand form a part of this Agreement.

 

**1.45****      “Subservicing”**means the process by which Client and its employees perform loan servicingfunctions or mortgage loan activities for or on behalf of a third party whoowns the servicing rights to the loans or the loan portfolio, and such thirdparty has either inquiry-only access or no access to any part of the MSP Systemor the Products and Services provided hereunder.

 

**1.46****      “Subsidiary”**meansan entity which is controlled by a party to this Agreement, as represented byownership of a majority-in-interest of the voting stock (or other similarownership interest if not represented by stock) by such party.

 

**1.47****      “Support”**meansFidelity provided standard support consisting of telephone or email support forissues pertaining to the functionality of the Products and Services as theyrelate to the intended design including all Defect Related issues.

 

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**1.48****      “Third PartyProduct(s)”**means all hardware, software, and communications devices andservices designated and/or required for support of the Products and Services.

 

**1.49****      “Third PartyReview”**means the annual Statement on Auditing Standards No. 70 reviewof Fidelity’s internal procedures and report prepared by its Certified PublicAccountants.

 

**1.50****      “TransferredThird Party Software”**means any third party software for which Fidelity hastransferred to Client the applicable licenses and support.

 

**1.51****      “User AccessRight”**means a limited right to access and use Products and Servicesthrough a single user sign on ID at an Authorized Location pursuant to theterms of this Agreement.

 

**1.52****      “Versions”**meansupdates to the software components of particular Products and Services, otherthan MSP containing additional functionality.

 

**2.****                   ****TERMS AND CONDITIONS FOR PRODUCTS AND SERVICES**

 

**2.1****                         GeneralTerms and Conditions for Products and Services. **This Agreement sets forth the terms andconditions for the provisions by Fidelity to Client and Client Affiliates ofthe Products and Services during the Term, as more fully described in theAddenda attached hereto.  Fidelity willprovide the Products and Services on its own and/or through one or moreFidelity Affiliates and/or subcontractors.

 

**2.2****                         Addenda. **Each Addendum hereto is incorporated intoand forms a part of this Agreement.  Allapplicable terms, conditions, responsibilities and delivery schedules which areunique to particular Products or Services (as opposed to those which applygenerally to all Products and Services and which are set forth elsewhere inthis Agreement and in the other exhibits attached hereto) are identified in theAddenda.  The applicable Products andServices specific terms, conditions, responsibilities and delivery schedulesshall govern the provision of such Products and Services.  Any new terms, conditions, responsibilitiesor delivery schedules which may be specifically applicable to particularProducts and Services, as they are negotiated through the course of business,shall be set forth in writing and executed by the parties and added to thisAgreement as an amendment.  Such actionshall not constitute a modification or change of any provision of the Agreementor of any other provision of any other Addendum, unless expressly stated insuch written agreement.  Unless otherwiseagreed to in writing by the parties hereunder, the Products and Services to berendered by Fidelity to Client are limited to those Products and Services whichare described in the Agreement and the Addenda. 

 

**3.****                   ****TERM OF AGREEMENT**

 

**3.1****                         OriginalTerm. **This Agreement shall beeffective on the Effective Date and continue in full force and effect for sixty(60) full calendar months from the commencement of the Processing of Client’sloans on Fidelity’s MSP System (the “Original Term”).  Fidelity and

 

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Clientagree to promptly confirm to each other in writing the date on which conversionwas completed and production commenced on the MSP System to clarify theOriginal Term.

 

**3.2****                         ExtendedTerm.**  In the event Client andFidelity fail to execute a renewal of this Agreement at least sixty (60) daysprior to the expiration of the Original Term, this Agreement shallautomatically renew for an additional one (1) year extended term (the “ExtendedTerm”) on the same terms and conditions as the Original Term; provided, however,fees for such Extended Term shall be increased by an amount not to exceed thepercent increase in the CPI-U Index between the annual averages of the mostrecently published twelve (12) month period and the immediately precedingtwelve (12) month period, provided, however, in no event shall the percentageincrease be less than three percent (3%) or greater than seven percent (7%).  Unless agreed by Client and Fidelity to thecontrary, this Agreement shall terminate at the end of such Extended Term.

 

**4.****      ****PRICING, INVOICING AND PAYMENT**

 

**4.1****                         Pricing.**  All pricing for Products and Services forwhich Client has executed an Addendum shall be set forth in the applicableAddendum or a Schedule attached thereto. Client shall pay Fidelity for SOW Services according to a schedule containedin the applicable SOW or, if no schedule is provided, monthly as SOWServices are performed and invoiced by Fidelity.  In addition, from time to time, Client mayelect to use miscellaneous products and services such as, but not limited to,data entry, printing, microfiche, special computer usage for Easytrieve,consulting, etc.  These and otheroptional or usage based services will be billed to Client in accordance withFidelity’ Optional Processing and Support Services Billing Rates Schedule, acopy of which has been provided to Client. Fidelity’s Optional Processing and Support Services Billing Rates Schedule maybe modified upon thirty (30) days written notice to Client.

 

**4.2****                         Invoicingand Payment.**  All fees duehereunder shall be paid in U.S. Dollars and shall be due to Fidelity withinthirty (30) days of the date of the invoice. Client shall pay an interest charge equal to the lesser of the primerate (as published in the Wall Street Journal) plus two percent (2%) per annumor the highest rate allowed by law payable per month, or portion thereof, onthe unpaid balance of any amounts which are not paid in full when due(including any amount under dispute as discussed below); provided however, thatin no event shall such interest charges exceed the maximum interest rateallowed by law.  All payments due toFidelity hereunder shall, unless otherwise indicated, be mailed to Fidelity atits address listed in the preamble of this Agreement.  In the event Client disputes any amounts due,Client shall provide written notice of the amount of, and the reason for thedispute.  Such disputed amounts shallthen be subject to the Informal Dispute Resolution provisions of Section 18.1.  All non-disputed items within the sameinvoice remain due and payable as stated above.

 

**4.3****                         Taxes.**  All charges and fees to be paid by Clientunder this Agreement are exclusive of any applicable withholding, sales, use,value added, excise, services or other tax which may be assessed on theprovision of the Products and Services, excluding taxes based on Fidelity’income which shall be paid by Fidelity. In the event that a sales, use, value added, excise,

 

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services or other tax isassessed on the provision of any Products and Services provided to Client underthis Agreement, Client will pay directly, reimburse or indemnify Fidelity forsuch taxes as well as any applicable interest, penalties and other Fidelityfees and expenses.  Client shall, uponrequest by Fidelity, pay the same either to Fidelity or to the appropriatetaxing authority at any time during or after the termination of this Agreement.  The parties will cooperate with each other indetermining the extent to which any tax is due and owing under thecircumstances, and shall provide and make available to each other anywithholding tax certificates, and other exemption certificates or informationreasonably requested by either party.

 

**5.**       **OWNERSHIP,CONFIDENTIALITY AND NON-DISCLOSURE**

 

**5.1****                         FidelityConfidential Information.**  Clientacknowledges that the Fidelity Confidential Information is the sole andexclusive property of Fidelity.  Anywriting or work of authorship, regardless of medium, created or developed byFidelity, Client or any third party in connection with the Products andServices under this Agreement and any contribution by Client or its employeesto the enhancement or modification of the Products and Services providedhereunder, including all copyright interests therein, shall be not beconsidered “works****for hire”,****butshall be owned solely and exclusively by Fidelity.  To the extent that any such works may beconsidered works for hire under applicable law, Client agrees to assign and,upon their creation, automatically assigns to Fidelity the ownership of allcopyright interests therein including, but not limited to, all software,information, Internet Services, programs and documentation without thenecessity of any further consideration to Client.

 

**5.1.1  Limited Use and Access. **To the extent any of theProducts and Services hereunder require rights to access and use, and theparties have executed the appropriate Addendum or SOW associated with suchProducts and Services, Client is hereby granted a nontransferable,non-assignable, nonexclusive right to access and use such Products and Servicesfor a term as stated in the applicable Addendum, in object code format only,for its sole use and benefit and for the sole purpose as stated in theapplicable Addendum.  A right to accessand use Products and Services does not grant or assign to Client any legal orequitable title or other right in Products and Services or any modifications ofsuch Products and Services.  Client willutilize Fidelity Confidential Information only for data owned by Client, ordata to which servicing rights, as applicable, are owned by Client.  Client shall not provide, for profit orotherwise, access to the Fidelity Confidential Information or any componentthereof to any Competitor.  Client willobserve confidentiality regarding the Fidelity Confidential Informationincluding, without limitation, agreeing not to disclose or otherwise permit anyother person or entity access to, in any manner, the Fidelity ConfidentialInformation, except that such disclosure or access shall, subject to thefollowing provisions and the provisions of Section 5.1.2, be permitted toan employee of Client requiring such access in the course of employment, to aregulatory agency, or to Client’s Customer (provided Client’s Customer is not aCompetitor of Fidelity) or as required by a court of competent jurisdiction.Client must ensure that all such employees and Client’s Customers comply withthe confidentiality provisions of this Agreement contained herein.  Client may not make any copies, or similarversions of the Fidelity Confidential Information without the prior writtenconsent of Fidelity.  Except as providedfor in this Agreement, the Fidelity

 

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Confidential Informationmay not be subleased, sublicensed, franchised, sold, offered for sale,outsourced, used to operate as a service bureau, encumbered or otherwisedisposed of by Client, either voluntarily or by operation of law, without theprior written consent of Fidelity.

 

**5.1.2  Subservicing.**  Client may perform Subservicing; provided,however: a) Client hereby represents and warrants that access by Client’sCustomers to Fidelity’s Confidential Information, the MSP System, Softwareand/or the Products and Services will be limited to inquiry-only; b) Clientagrees that Client remains responsible for and shall pay to Fidelity all feesand charges arising from, associated with or incurred as a result ofSubservicing; (c) Client’s Customers may not utilize any support providedhereunder including, but not limited to, telephone assistance from PowerCell; (d) Clientwill include in any agreements with Client’s Customers for Subservicinglimitation of liability, indemnity and confidentiality provisions substantiallythe same as those set forth herein; (e) Fidelity’s liability for actualdirect damages incurred by Client for claims related to Subservicing shall be,in addition to the provisions of Section 12 below, further limited to thelesser of the amount of the actual direct monetary loss suffered by Client orthe amount paid to Fidelity for such loans which are the subject of Subservicingbased upon the lowest per loan price charged to Client over the six (6) monthspreceding the date of the claim; and (f) Client’s Customers shall not bethird party beneficiaries of this Agreement.

 

**5.1.3  Modifications and Derivative Works.**  Client shall not change, alter or modify,create derivative works, outsource, use the Fidelity Confidential Informationto operate as a service bureau, or translate, reverse assemble, reverseengineer, reverse compile, disassemble or analyze or otherwise examine forpurposes of reverse engineering the Software or any other Fidelity ConfidentialInformation provided hereunder. Client acknowledges that any modification,adaptation, translation, or derivative work by Fidelity (or by Client inviolation of this provision) and based on the Fidelity Confidential Informationshall be trade secrets and are the exclusive, confidential, and proprietaryproperty of Fidelity, and Client hereby transfers and assigns any and allrights in and to any such modification, adaptation, translation, or derivativework to Fidelity, including any copyrights thereto.  Client acknowledges that Fidelity’s licensorsshall be third party beneficiaries for the purpose of protecting theirrespective property provided under this Agreement.  Client shall provide prompt written notice toFidelity if Client knows of, or suspects, any such unauthorized access to, oruse of the Fidelity Confidential Information. Client agrees not to remove any copyright, trademark or otherintellectual property notices or property tags from the Fidelity ConfidentialInformation.

 

**5.1.4  Termination of Access.**  Upon termination of this Agreement, andexpiration of any post termination assistance period, or any Addendum or SOWhereto, Client’s access to the respective Fidelity Confidential Informationshall end immediately and Client agrees to return such Fidelity ConfidentialInformation in its possession, to destroy any and all copies made by Client,its employees and/or Client’s Customers, and to certify to Fidelity in writingthat it has returned or destroyed the Fidelity Confidential Information.

 

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**5.2****                         ClientConfidential Information.**  All ClientConfidential Information shall be used by Fidelity for the purposes ofadministering and otherwise implementing the terms of this Agreement and protectedby Fidelity in accordance with the terms of this Section.  Client’s Confidential Information shall alsoinclude all “non-public personal information” as defined in Title V of the GLBAct, as the same may be amended from time to time, that Fidelity received fromor at the direction of Client and that concerns any of Client’s “customers”and/or “consumers” (as defined in the GLB Act). Fidelity acknowledges that any Client Confidential Information beingstored or processed by Fidelity is and shall remain the property of Client andwill take all such reasonable measures as may be necessary to protect theconfidentiality of Client Confidential Information which comes into Fidelity’possession, if any.  Fidelity furtheragrees to observe confidentiality regarding the Client Confidential Information,including without limitation agreeing not to disclose or otherwise permit anyother person or entity access to, in any manner, Client ConfidentialInformation or any part thereof without Client’s prior written consent, exceptthat such disclosure or access shall be permitted to an employee of Fidelityrequiring such access in the course of employment.  Fidelity shall not disclose or use ClientConfidential Information for any purposes other than to carry out the purposesfor which Client disclosed the data to Fidelity, or as permitted by thisAgreement.  Notwithstanding theforegoing, Client consents to the use by Fidelity of statistical data generatedby Client Confidential Information provided that such use shall not result inthe disclosure of Client Confidential Information which will directly orindirectly identify Client or any specific individual.  At the request of Client, and upon payment toFidelity of all monies due under the terms of this Agreement, Fidelity shalltransfer any Client Confidential Information held by Fidelity to Client.

 

**5.3****                         SecurityStandards. **To the extentFidelity is in possession of any Client Confidential Information in itsprovision of a Product or Service hereunder, Fidelity has implemented certainsecurity measures with respect to such Product or Service designed to safeguardClient’s Confidential Information. Fidelity will use commercially reasonable efforts to adhere to suchadditional security measures requested by Client with respect to Client’s ConfidentialInformation as may be reasonably requested by Client.  Client will reimburse Fidelity ifimplementation of and/or adherence to such additional security measuresincreases Fidelity’s costs of operation.

 

**5.4****                         Confidentialityof this Agreement.**  Client andFidelity agree that the terms and conditions of this Agreement and the relatednegotiations between Client and Fidelity with respect to this Agreement shallbe treated as confidential pursuant to this Section 5.  The parties also acknowledge that thisAgreement contains confidential information and agree to limit distribution ofthis Agreement to those individuals with a need to know the contents of thisAgreement.  In no event may thisAgreement be reproduced or copies shown to any third parties (exclusive ofcontractors, subcontractors and agents who have a need for it) without the priorwritten consent of the other party, except as may be necessary by reason oflegal, accounting, tax or regulatory requirements, in which event Client andFidelity agree to exercise reasonable diligence in limiting such disclosure tothe minimum necessary under the particular circumstances.  The parties further agree to seek commercialconfidential status for this Agreement with any regulatory commission withwhich this Agreement must be filed, to the extent such a designation can besecured.

 

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Inaddition, each party agrees to give notice to the other party of any demands todisclose or provide the confidential information received from the other or anythird party under lawful process prior to disclosing or furnishing confidentialinformation, and agrees to cooperate in seeking reasonable protectivearrangements requested by the other party.

 

**5.5****                         Exceptionsto Confidentiality.** The obligations of this Section 5 shall notapply to any information, whether Fidelity Confidential Information, ClientConfidential Information or otherwise, which:

 

a)     isin the public domain at the time of disclosure, or thereafter enters the publicdomain through no act or omission by the recipient hereunder or its agents,employees or subcontractors; or

b)    isdeveloped by the recipient hereunder independently of any confidentialinformation of the disclosing party hereunder or was in the recipient’s lawfulpossession at the time of disclosure hereunder as shown by written records; or

c)     is disclosed to the recipient withoutobligation of confidentiality by a third party with the right to do so; or

d)    is disclosed: (i) pursuantto a requirement or official request of a governmental agency, a court oradministrative subpoena or order, or any applicable legislative or regulatoryrequirement; (ii) in defense of any claim or cause of action assertedagainst such party or any of its Affiliates, Subsidiaries, officers, directors,employees or agents; (iii) as otherwise permitted by the GLB Act; (iv) asrequired by law or national stock exchange rule; or (v) as otherwisepermitted under this Agreement.

 

**5.6****                         IntellectualProperty Notices.**  Client agreesnot to remove any copyright, trademark or other intellectual property noticesor property tags from Products and Services provided hereunder.  Copyright notices for Internet Servicesprovided hereunder may contain a hyperlink to Fidelity’ web site.

 

**6.****      ****HARDWARE, SOFTWARE, COMMUNICATIONS AND BASICPROFESSIONAL SERVICES**

 

**6.1****        ClientHardware, Software and Communications.** Client shall be responsible, at its own expense, for providing all ThirdParty Products, including but not limited to, Third Party Products which areutilized as a part of Client’s operating and/or network environment, asidentified by Fidelity in the specific Addenda as being required to access oreffectively utilize the Products and Services provided thereunder.  Fidelity will make available to Client thespecification requirements for Client’s Third Party Products to be compatiblewith the Products and Services and Client assumes total responsibility forensuring such compatibility. Fidelity will provide Client with notice of anyupgrades to Client’s hardware or software required to accommodate new Versions,Releases, or changes in any Products and Services.  Client shall comply with such upgraderequirements within ninety (90) days from such notice.  Client shall be

 

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responsiblefor providing maintenance and paying for any required upgrades on all Clientowned, leased or licensed hardware and software. In addition, Client shall beresponsible for continued maintenance, support and timely installation ofenhancements and upgrades to the Transferred Third Party Software as deemednecessary by Fidelity to ensure compatibility with and provide optimumfunctionality of the Products and Services. Client shall also be responsible for providing the communications andLAN interfaces to Client’s network required to support the use and functions ofthe Products and Services as specifically identified in any applicable SOW, aswell as any hardware, software and communications upgrades necessary forincreased performance based on additional user requirements.  Any problems or claims with these Third PartyProducts or Transferred Third Party Software shall be the responsibility of themanufacturer of such products, and Client shall seek recourse only against suchmanufacturer.

 

**6.2****                         FidelityHardware, Software and Communications.** In the event that Fidelity owned or licensed hardware, software, orcommunications, including application servers, are located at Client’s site,Client shall prepare, or have prepared, the necessary facilities to house thehardware, software, or communications devices and services, and take allreasonable steps necessary to provide for their physical security.  Client shall reasonably cooperate withFidelity in the coordination and scheduling of installation, maintenance, andupon termination, deinstallation of hardware, software, or communicationsdevices and services.  Fidelity reservesthe right in its sole discretion to relocate or replace the hardware, software,or communication devices and services at any time upon reasonable notice toClient.  Client understands that Fidelity servers are for Fidelity use only andshall not install any Client owned or licensed software on the Fidelityserver(s).  Fidelity reserves the rightto remove any hardware, software, files or data on any Fidelity server.  Client further agrees not to use, access orattempt to perform maintenance on any Fidelity server(s), for any reason unlessauthorized in advance by Fidelity.

 

**6.3****                         CommunicationDevices.**  Communication devicesshall be specified and ordered by Fidelity. Such devices will be leased in Fidelity’ name or owned by Fidelity.  Fidelity, in turn, will bill Client for suchdevices located in Client’s office(s). Should Client desire to terminate thecommunication devices, Client shall give Fidelity not less than ninety (90)days notice.  Fidelity shall chargeClient and Client shall pay for the communication devices located at Client’ssite upon receipt of termination notice by one party to the other, or uponimmediate termination by Fidelity pursuant to the terms of this Agreement.  Upon termination, and satisfaction of allcontractual obligations by Client under this Agreement, Fidelity will refund toClient the amount paid for the communication devices provided Client hasreturned the devices to Fidelity in good working condition, excepting normalwear and tear.

 

**6.4****                         BasicProfessional Services.**  In orderfor Client to obtain access to certain Products and Services, Client shallcontract with Fidelity for Basic Professional Services.  Such Basic Professional Services relate touse of the applicable Product and Service in conjunction with the components ofthe MSP System which are certified for use with the applicable Product andService as of the date such Basic Professional Services are required.  Basic Professional Services and theassociated fees shall be set forth in and further identified in one or more SOWto be mutually developed by the parties.

 

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**7.       PROGRAMMODIFICATIONS**

 

Clientmay request modifications to the report contents or Software by submitting toFidelity a program modification request form defining the desired change.  Upon receipt of a program modificationrequest from Client, Fidelity will respond to Client with a feasibility studywithin thirty (30) days.  The feasibilitystudy will contain a high level cost and resources estimate broken down by developmentmethodology phases.  Upon Client’sapproval of the feasibility estimates, Fidelity and Client shall work in goodfaith to mutually agree on a SOW fully describing the final product and thefinal fixed price.  The SOW will includethe cost of the programming definition, programming, testing, installation anddocumentation.

 

**8.****                    ISSUANCE OFVERSIONS AND RELEASES**

 

**8.1****                         Designationof Versions and Releases. **Updatesto the software component of Products and Services, other than MSP, will bestated as Versions or Releases and will be identified by numericdesignations.  Upon receiving access to thesoftware components of particular Products and Services, the level of suchsoftware will be designated numerically where the first number identifies theVersion level and the second number identifies the Release level of thatVersion.

 

**Example:**  Version 4.2 designates Version 4 with Release2.

 

**8.2****                         Versions. **Fidelity may, from time to time and inits sole discretion (and by means or media determined solely by Fidelity) issueand install subsequent Versions. Additional fees may be due in connection with subsequent Versions whichembody substantial additional functionality.

 

**8.3**                         **Releases. **Fidelity may, from time to time and inits sole discretion (and by means or media determined solely by Fidelity),issue and install Releases to the existing supported Version of a particularProduct of Service as part of the right of access conveyed to Client.

 

**8.4*****                        *Support of Versions andReleases. **Client acknowledgesthat as new Versions and/or Releases are made available, Fidelity will grantaccess to and support only the most recent Version and Release.

 

**9.****       SUPPORT**

 

**9.1****                         Support.**  In accordance with the specifications setforth in the Documentation, Fidelity will provide Support.  PowerCell will take support requests on awide range of problem situations, capturing descriptive data, and offeringresolution assistance for routine problems. PowerCell, will also serve as the escalation point for problems relatingto sublicensed third party software provided as part of a Product or Service.

 

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**9.2**                         **IssueManagement.**  Fidelity, viaPowerCell, shall respond to Client within the following timeframes on reportedissues:

 

**9.2.1****           SeverityLevel 1 Issues.**  Severity Level 1issues are high impact problems reported by Client where a critical system ormajor component is down or unavailable with no workaround available.  Fidelity will acknowledge receipt of SeverityLevel 1 issues within four (4) hours after being reported to or detectedby Fidelity, whichever is earlier. Fidelity will provide updates to Client on Severity Level 1 issues,either by telephone or electronic mail, at mutually agreed upon times and, inany event, no less frequently than every four (4) hours.

 

**9.2.2****           SeverityLevel 2 Issues.**  Severity Level 2issues are moderate to high impact problems that must be resolved; however aworkaround is available until resolution is achieved.  Fidelity will acknowledge receipt of SeverityLevel 2 issues within eight (8) business hours after being reported to ordetected by Fidelity, whichever is earlier. Fidelity will provide updates to Client on Severity Level 2 issues,either by telephone or electronic mail, at mutually agreed upon times and, inany event, no less frequently than every eight (8) business hours.

 

**10.****    DEFAULT**

 

In the event eitherparty: (a) defaults under the terms of this Agreement which causes amaterial and adverse effect on the non-defaulting party, and fails to cure thedefault within thirty (30) days after written notice of such default; or (b) filesa voluntary petition under any bankruptcy law, becomes insolvent, makes anassignment for the benefit of its creditors, or has involuntary bankruptcy proceedingscommenced against it or a receiver appointed for all or substantially all ofits assets and such involuntary petition and receiver are not dismissed withinninety (90) days of the filing or appointment, the non-defaulting party maythen immediately terminate the Addendum(s) relating to the default and pursuesubject to Section 12 (Limitation of Liability), any and all other rightsin law or equity that the non-defaulting party may have, including but notlimited to, invoking the provisions of Section 18 (Conflict Resolution).

 

**11.****    TERMINATION**

 

**11.1****                  Terminationfor Convenience. **Client mayterminate this Agreement, or any Addendum hereto, without cause by providingone-hundred eighty (180) days prior written notice to Fidelity. In the eventsuch early termination by Client includes termination of the MSP Addendum,whether the required notice is provided or not, Client shall, in addition toall other monies due and payable to Fidelity, pay as liquidated damages acontract commitment amount which shall be calculated as follows: a) the MinimumMonthly Principal Balance Loan Billing Requirement as of the date oftermination shall be multiplied by the then applicable monthly rate per loan todetermine the monthly minimum Basic Processing Charges; and b) the monthlyminimum Basic Processing Charges shall then be multiplied by the number ofmonths remaining in the Original Term or then current Extended Term after thedate of termination.  The contractcommitment amount can be summarized as follows:

 

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(MinimumMonthly Principal Balance Loan Billing Volume Requirement on the date oftermination * monthly rate per loan on the date of termination) * monthsremaining in Original or Extended Term after termination date.

 

The parties acknowledgeand agree that damages resulting from a claim under this section are notreadily ascertainable at this time, and the above amount of liquidated damagesare reasonable under the circumstances.

 

**11.2      Reconfigurationof Client’s Network. **Upontermination of this Agreement, or any Addendum or SOW hereunder, Client shallpay all costs, including but not necessarily limited to, charges resulting fromrequired reconfiguration of Client’s network for any reason and at any time,any applicable data center charges, travel, living, and out of pocket expensesof Fidelity employees incurred with the deinstallation of any applicableProducts and Services.  All monies owingunder this Agreement shall be paid in full prior to any obligation by Fidelityto assist Client with the reconfiguration of Client’s network.

 

**11.3      Effectof Termination on Addenda.**  The termination of an Addendum pursuant tothis Section shall have no effect on any other Addendum that may be inforce and effect as part of this Agreement except to the extent that the terminatedAddendum is a Paternal Addendum.  In theevent that a Paternal Addendum is terminated pursuant to this Section, Fidelitymay, at its sole discretion, terminate any applicable Dependent Addendum.  Termination of a Dependent Addendum byFidelity will not relieve Client of any obligations, financial or otherwisewith respect to the Dependent Addendum. Obligations of confidentiality, indemnification, as well as any otherprovisions intended to survive termination of this Agreement or any Addendum hereto,shall upon termination of this Agreement or any Addendum hereto, continue infull force and effect and shall be binding upon Client and Fidelity followingsuch termination.

 

**12.****    LIMITATION OFLIABILITY**

 

**12.1****                  DIRECTDAMAGES. **EACH PARTY’S LIABILITYON ANY CLAIM OR LOSS ARISING OUT OF, OR CONNECTED WITH THIS AGREEMENT SHALL BELIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY THE NONDEFAULTING PARTY,PROVIDED THAT IN EACH SUCH INSTANCE, SUCH LIABILITY SHALL NOT EXCEED THE LESSEROF (1) THE AMOUNT OF THE ACTUAL DIRECT MONETARY LOSS SUFFERED BY THENONDEFAULTING PARTY OR (2) THE AMOUNT PAID TO FIDELITY BY CLIENT OVER THESIX (6) MONTHS PRECEDING THE DATE OF THE CLAIM.  NEITHER PARTY’S AGGREGATE LIABILITY UNDERTHIS AGREEMENT SHALL, IN ANY EVENT, EXCEED THE TOTAL FEES PAID BY CLIENT TOFIDELITY FOR THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM.  THE LIMITATIONS OF LIABILITY SET FORTH IN THISSECTION SHALL NOT APPLY TO:  (A) INDEMNITYOBLIGATIONS SET FORTH IN SECTION 13 OF THIS AGREEMENT; OR (B) CLAIMSFOR BREACH OF CONFIDENTIALITY AND NONDISCLOSURE SET FORTH IN SECTION 5 OFTHIS AGREEMENT.

 

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**12.2****                  UNAUTHORIZEDMODIFICATION OR USE OF SOFTWARE. **FIDELITYSHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR EXPENSES RESULTING FROM THEMODIFICATION OR ALTERATION OF THE SOFTWARE OR SYSTEMS BY CLIENT, OR THEUNAUTHORIZED USE OF THE SOFTWARE OR SYSTEMS, OR FROM THE UNINTENDED ANDUNFORESEEN RESULTS OBTAINED BY CLIENT RESULTING FROM SUCH USE.

 

**12.3****                  INDIRECT,SPECIAL, CONSEQUENTIAL OR THIRD PARTY DAMAGES.** IN NO EVENT WILL EITHERPARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR THIRDPARTY DAMAGES OF ANY KIND INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOSS OFGOODWILL OR BUSINESS INTERRUPTION, ARISING OUT OF THIS AGREEMENT OR THE USE OFANY EQUIPMENT, SOFTWARE, DOCUMENTATION OR SERVICE PROVIDED UNDER THISAGREEMENT.

 

**12.4****                  SCREENSCRAPING OR SIMILAR TECHNOLOGY.**EXCEPT WHERE AUTHORIZED BY FIDELITY INWRITING, FIDELITY SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANYDAMAGES OR EXPENSES ARISING FROM THE USE OF SCREEN SCRAPING OR SIMILARTECHNOLOGY BY CLIENT OR ANY THIRD PARTY, INCLUDING DATA AGGREGATORS, IN CONNECTIONWITH THE PRODUCTS AND SERVICES HEREUNDER, OR THE UNINTENDED AND UNFORESEENRESULTS OBTAINED FROM THE USE OF SUCH TECHNOLOGY.

 

**13.****    INDEMNIFICATION**

 

**13.1****                  PersonalInjury and Property Damage.**  Eachparty agrees to indemnify, defend and hold harmless the other and itsAffiliates and its and their officers, directors, employees, advisors,representatives and agents from and against any and all liabilities, losses,costs, damages and expenses (including, without limitation, reasonable attorney’sfees) arising from or in connection with the damage, loss (including, withoutlimitation, theft) or destruction of any real property or tangible personalproperty of any person or injury or death to any persons resulting from theactions or inactions of any employee, agent or subcontractor of theindemnifying party insofar as such damage arises out of or in the course offulfilling its obligations under this Agreement and to the extent such damageis due to any negligence, misconduct, breach of statutory duty, or failure ofthe indemnifying party, its employees, agents or subcontractors to exercisetheir duties hereunder.  The foregoingrepresents the sole and exclusive remedy of each party with regard to thematter described in this Section 13.1.

 

**13.2****                  Infringementof Fidelity Software.**  Fidelityagrees to defend at its own expense, any claim or action brought by any thirdparty against Client or its Affiliates or any of its or their officers,directors, employees, advisors, representatives or agent (each an “Indemnified Person”)for actual or alleged infringement of any patent, copyright or otherintellectual property right (including, but not limited to, misappropriation oftrade secrets) based upon the Software or the Products and Services furnishedhereunder.  Fidelity further agrees toindemnify and hold each 

 

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Indemnified Personharmless from and against any and all liabilities, losses, costs, directdamages, and expenses (including, without limitation, reasonable attorneys’fees) associated with any such claim or action incurred by such IndemnifiedPerson.  Fidelity shall have the soleright to conduct and control the defense of any such claim or action and allnegotiations for its settlement or compromise, unless otherwise mutually agreedto in writing between the parties hereto; provided, however, that no settlementor compromise may include any acknowledgement or admission of liability by, orthe entry of any judgment against, such Indemnified Person without suchIndemnified Person’s consent, which consent shall not be unreasonably delayed,conditioned or withheld.  Fidelity agreesto give Client, and Client agrees to give Fidelity, as appropriate, promptwritten notice of any written threat, warning or notice of any such claim oraction against Fidelity or Client, as appropriate, or any other user or anysupplier of components of the Software covered hereunder, which could have anadverse impact on Client’s use of same, provided Fidelity or Client, asappropriate, knows of such claim or action. If in any such suit so defended, all or any part of the Software (or anycomponent thereof) is held to constitute an infringement or violation of anyother party’s intellectual property rights and is enjoined, or if in respect ofany claim of infringement, Fidelity deems it advisable to do so, Fidelity shallat its sole option take one or more of the following actions at no additionalcost to Client: (a) procure the right to continue the use of the samewithout material interruption for Client; (b) replace the same withnon-infringing software that meets the same specifications as the infringingsoftware; or (c) modify said Fidelity Software so as to be non-infringing,provided that the Software as modified meets the same specifications as theinfringing software.  The foregoingrepresents the sole and exclusive remedy of Client with regard to any of theabove infringements or alleged infringements.

 

**13.3****                  Subservicing. **Client agrees to indemnify, defend andhold Fidelity harmless from and against any and all liabilities, losses, costs,damages, and expenses (including, without limitation, reasonable attorney’sfees) arising from or in connection with: (a) any breach of the confidentiality provisions of this Agreementby any of Client’s Customers; or (b) misuse or unauthorized use by any ofClient’s Customers of the Software, Fidelity Confidential Information or anyProduct or Service provided in connection with this Agreement.

 

**14.****    PERIODIC REPORTS**

 

Fidelity, annually, willprovide to Client (and to the District Director of the OTS or OCC, asapplicable) at no charge one (1) copy, in such media as Fidelity shalldetermine it its sole discretion, of the Third Party Review.

 

As of the Effective Date,Fidelity is a wholly owned subsidiary of a public-traded company, FidelityNational Financial (“FNF”).  As apublicly-traded company, FNF discloses its financial information pursuant toUnited States securities laws and regulations. That financial information includes the financial statement segmentreporting of Fidelity.  A copy of FNF’sfinancial information is available at www.FNF.com or through the Securities andExchange Commission’s EDGAR website.  Ifat any time in the future, Fidelity’s financial segment information is nolonger publicly available, Fidelity agrees to provide Client with suchinformation.

 

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**15.****   ****TIME OF PERFORMANCE AND INCREASED COSTS**

 

Fidelity’s time ofperformance with respect to Products and Services performed under thisAgreement shall be extended, to the extent reasonably necessary, in the eventthat (a) Client fails to submit data or materials in the prescribed formor in accordance with the requirements of this Agreement; (b) Client failsto perform on a timely basis or provide adequate resources to perform thetasks, functions or other responsibilities of Client described in thisAgreement, or any applicable Addendum or SOW hereunder; (c) there occurs aForce Majeure condition as contemplated in Section 23 which preventstimely performance; (d) Client or any governmental agency authorized toregulated or supervise Client makes any special request which affects Fidelity’normal performance schedule; (e) Client changes its priorities in a mannerthat adversely impacts the performance of the Products and Services; or (f) anyClient software does not perform in accordance with its specifications and, ineach case, the same is necessary for Fidelity’ performance hereunder.  In addition, if any of the above eventsoccur, and such event will result in an increased cost to Fidelity forproviding the affected Products and Services, Fidelity shall so advise Clientand Client may either pay any and all of such increased costs to Fidelity orrelieve Fidelity of its responsibilities hereunder.

 

**16.****   ****ASSIGNMENT**

 

Neither this Agreement,nor any rights, duties, or obligations of Client hereunder may be assigned ordelegated in whole or in part by Client, whether by operation of law orotherwise, without the prior written consent of Fidelity, which consent shallnot be unreasonably withheld. This Agreement shall inure to the benefit of andbe binding upon the parties hereto and their respective successors andpermitted assigns.  Except whereotherwise expressly agreed upon in writing by Client and Fidelity, noassignment or delegation, in whole or in part, shall release Client from any ofits obligations pursuant to this Agreement. Neither the terms of this Agreement nor any performance hereunder shallbe construed to create any rights in any person other than the parties to thisAgreement.

 

**17.****            ****INSURANCE**

 

Fidelity will maintainsubstantially the same insurance and insurance coverage as set forth belowthroughout the term of this Agreement:

 
| **Type of Coverage**          | ** ** | **Limit**                                                | ** ** | **Minimum  Insurer****Bests Rating** |
|-------------------------------|------------|----------------------------------------------------------|------------|--------------------------------------|
| Commercial  General Liability |       | $1,000,000 each  occurrence  $2,000,000 Annual Aggregate |       | A - VIII                             |

 

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| Property Insurance                    |   | $100,000,000 Direct Damage & Business  Interruption $5mm Accounts Receivable  $5mm Service Interruption  $1mm Transit & Fine Arts Various Other Sublimits |   | A - VIII |
|---------------------------------------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|----------|
|                                  |   |                                                                                                                                                                        |   |     |
| Workers’  Compensation           |   | Coverage A -  statutory Coverage B -  $1,000,000 each accident  $1,000,000 each employee-disease  $1,000,000 policy limit - disease                                         |   | A - VIII |
|                                  |   |                                                                                                                                                                        |   |     |
| Data Processors  Errors and Omissions |   | $10,000,000  Occurrence/Aggregate                                                                                                                                           |   | A - VIII |
|                                  |   |                                                                                                                                                                        |   |     |
| Umbrella                              |   | $25,000,000                                                                                                                                                                 |   | A - VIII |

 

**18.****   ****CONFLICT RESOLUTION**

 

**18.1****       ****Informal Dispute Resolution.**

 

**18.1.1****Notices.** Fidelity and Client willnotify each other within a commercially reasonable timeframe and as promptly aspossible regarding any conflicts arising out of this Agreement or in theinterpretation of the provisions of this Agreement, or any dispute as towhether or not an event of default has occurred.  Fidelity and Client will attempt to resolveall such conflicts as promptly as possible and in good faith before initiatingany causes of action arising out of this Agreement.

 

**18.1.2****        ****EscrowAccount.**** **If any dispute remainsunresolved for any reason after thirty (30) days following the initial writtenrequest for informal dispute resolution, or such other period of time asmutually agreed to in writing, then following such period, with respect tomonetary disputes submitted to informal dispute resolution, Client shall place suchdisputed payment amount into an independent third party interest bearing escrowaccount within two (2) business days and then the parties may continue informaldispute resolution efforts.  Theprevailing party (at either informal dispute resolution efforts or bindingarbitration) shall be entitled to the interest accrued on the monies placed inescrow pursuant to this Section, for each such disputed payment amount.

 

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## ***18.2***     Escalation Procedures.

 

**18.2.1**         Good Faith Efforts.  Each of the parties agrees to negotiate, in good faith, any claim ordispute that has not been satisfactorily resolved following the notice andresolution process described in Section 18.1.  To this end, each party agrees to escalateany and all unresolved disputes or claims in accordance with Section 18.2before taking further action.

** **

**18.2.2**         Escalation of Unresolved Disputes.  If the negotiations conducted pursuant to Section 18.1 do not leadto resolution of the underlying dispute or claim to the satisfaction of a partyinvolved in such negotiations, then either party may notify the other inwriting that he/she desires to elevate the dispute or claim to the President ofthe mortgage division of Fidelity and the Chief Information Officer of Clientfor resolution.  Upon receipt by theother party of such written notice, the dispute or claim shall be so elevatedand the President of Fidelity, Inc. and the Chief Information Officer ofClient shall negotiate in good faith and each use its reasonable best effortsto resolve such dispute or claim.  Thelocation, format, frequency, duration and conclusion of these elevated discussionsshall be left to the discretion of the representatives involved.  Upon agreement, the representatives mayutilize other alternative dispute resolution procedures to assist in thenegotiations.  Discussions andcorrespondence among the representatives for purposes of these negotiations shallbe treated as confidential information developed for purposes of settlement,exempt from discovery and production, which shall not be admissible insubsequent proceedings between the parties. Documents identified in or provided with such communications, which arenot prepared for purposes of the negotiations, are not so exempted and may, ifotherwise admissible, be admitted in evidence in such subsequent proceeding.

** **

**18.3****                  BindingArbitration. **Fidelity and Clientstipulate and agree that if they are unable to resolve any controversy arisingunder this Agreement following diligent and good faith attempts to resolve suchcontroversy under the informal dispute resolution process outlined in Sections 18.1and 18.2, then such controversy, and any ancillary claims not so resolved andnot so subject, shall be submitted to binding arbitration at the election ofeither party (the “Disputing Party”) pursuant to the following conditions:

 

**18.3.1  Selection of Arbitrator.**  The Disputing Party shall notify the AAA andthe other party in writing describing in reasonable detail the nature of thedispute (the “Dispute Notice”), and shall request that AAA furnish to theparties a list of five (5) possible arbitrators who shall be licensed topractice law in the United States and shall have at least five (5) yearsof experience in data processing matters. Each party shall have fifteen (15) days to reject two (2) of theproposed arbitrators.  If one (1) individualhas not been so rejected, he or she shall serve as arbitrator; if two (2) ormore individuals have not been so rejected, AAA shall select the arbitratorfrom those individuals.

 

**18.3.2  Conduct of Arbitration.** Arbitration will be conducted by thearbitrator selected pursuant to Section 18.3.1 with respect to the disputedescribed in the Dispute Notice and any other disputes related to thisAgreement between the parties to this Agreement (i)

 

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pendingat the inception of such arbitration and not otherwise being arbitrated underthis Section 18.3; or (ii) arising during the pendency of sucharbitration in accordance with the rules of AAA, except as specificallyprovided otherwise in this Section 18.3. The arbitrator will allow reasonable discovery in the forms permitted bythe Federal Rules of Civil Procedure, to the extent consistent with thepurpose of the arbitration.  Thearbitrator will have no power or authority, under the rules of AAA orotherwise, to amend or disregard any provision of this Section 18.3.  The arbitration hearing shall be limited tonot more than five (5) days, with each of Client and Fidelity beingallocated one-half of the time for the presentation of its case.  Unless otherwise agreed to by the parties, anarbitration hearing shall be conducted on consecutive business days.

 

**18.3.3  Replacement of Arbitrator.**  Should the arbitrator refuse or be unable toproceed with arbitration proceedings as called for by this Section 18.3,such arbitrator shall be replaced by an arbitrator selected from the other four(4) arbitrators originally proposed by AAA and not rejected by theparties, if any, or if there are no remaining proposed arbitrators who have notbeen rejected, by repeating the process of selection described in Section 18.3.1above.  If an arbitrator is replacedpursuant to this Section 18.3.3, then a rehearing shall take place inaccordance with the provisions of this Section 18.3 and the rules ofAAA.

 

**18.3.4  Findings and Conclusions.**  The arbitrator rendering judgment upondisputes between parties to this Agreement as provided in this Section 18shall, after reaching judgment and award, prepare and distribute to the partiesa writing describing the findings of fact and conclusions of law relevant tosuch judgment and award and containing an opinion setting forth the reasons forthe giving or denial of any award.  Thearbitrator, at its discretion, may include an award of reasonable attorney’sfees for the prevailing party in its final judgment and award.

 

**18.3.5  Place of Arbitration Hearings.**  Arbitration hearings contemplated by Section 18.3.2shall be held in Jacksonville, Florida. If Fidelity and Client agree, arbitration hearings may be held inanother location.

 

**18.3.6  Time is of the Essence.**  The arbitrator is instructed that time is ofthe essence in the arbitration proceeding, and that the arbitrator shall havethe right and authority to issue monetary sanctions against either of theparties if, upon a showing of good cause, the party is unreasonably delayingthe proceeding.  The arbitrator shallrender his or her judgment or award within fifteen (15) days following theconclusion of the arbitration proceeding. Recognizing the express desire of the parties for an expeditious meansof dispute resolution, the arbitrator shall limit or allow the parties toexpand the scope of discovery as may be reasonable under the circumstances.

 

**18.4****                  InjunctiveRelief. **Notwithstanding****the preceding dispute resolution procedures, if Fidelity orClient makes a good faith determination that a breach of the terms of thisAgreement by the other party is such that the damages to such party resulting therefromwill be so immediate or severe and incapable of adequate redress after the fact,such party may seek a temporary restraining order and/or other immediateinjunctive relief.  If a party makingsuch a determination

 

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filesa pleading with a court seeking such temporary restraining order or immediateinjunctive relief and such pleading is successfully challenged by the otherparty to this Agreement, the party filing such pleading seeking a temporaryrestraining order or immediate injunctive relief shall pay all of the costs andattorneys’ fees of the party successfully challenging such pleading.

 

**19.****             USEOF NAME OR LOGO**

 

Neither party may use thename or logo of the other party for advertising, solicitation, promotion, orpress releases without the prior written consent of the other, which consentwill not be unreasonably withheld.  Notwithstandingthe preceding sentence, the Client agrees that Fidelity may publish a pressrelease announcing the initial relationship between the parties within fifteen(15) days of the Effective Date. Fidelity shall give Client notice of any contents of such press releaseand Client will review and provide comments, if any, within two (2) businessdays.  In the absence of any comments orfollowing incorporation of Client’s comments, Fidelity may publish such press release.  Nothing herein will prohibit either partyfrom issuing or causing the publication of any public announcement to theextent that such action is required by applicable law or the rules of anygenerally recognized stock exchange applicable to such party or its Affiliates,in which case the party wishing to make such disclosure will, if practicableunder the circumstances, notify the other party of the proposed time ofissuance of such public announcement and consult with and allow the other partyreasonable time to comment.

 

**20.****   ****DISASTER RECOVERY**

 

**20.1**                  **Disaster Recovery Plan. **Fidelity will provide disaster recoveryservices for its batch and online processing obligations to Client at adedicated facility which is equipped to handle Fidelity’s data centerprocessing in the event disaster recovery is needed.  Provided that Client is utilizing theFidelity telecommunication network, Fidelity agrees to provide datacommunication access to the disaster recovery facility, including the necessarycommunication devices (multiplexors, modems, channel extenders, etc.) tofacilitate such communication; otherwise, Client shall be responsible forproviding, and paying for, the necessary communication lines and devices.  Throughout the term of this Agreement,Fidelity will maintain in effect contracts and/or arrangements for disasterrecovery, which are substantially equivalent to those, which are currently ineffect.

 

**20.2**                  **Recovery Time. **Client acknowledges that disasterrecovery arrangements are designed to deal with circumstances, which areexpected to cause a substantial portion of the capabilities at Fidelity’s datacenter to be unavailable for a period exceeding seventy-two (72) hours.  Should such an event or situation occur,Fidelity shall execute its disaster recovery plan in a timeframe and mannernecessary to ensure the restoration of batch and on-line processing service toClient within seventy-two (72) hours of service interruption.

 

**20.3**                  **Testing. **Fidelity will test its disaster recoverycapabilities at least once per calendar year. Client is allowed to participate in the disaster recovery test whendeemed appropriate by Fidelity.

 

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**20.4****                  StorageOf Data Files. **Fidelity willprovide off-site storage for Client’s data files so that they can bereconstructed in the event of loss or destruction of Client’s processing filesat Fidelity’s data center.  Such off-sitestorage will be in accordance with the guidelines set forth in Fidelity’s ThirdParty Review.

 

**21.****   ****REPRESENTATIONS AND WARRANTIES**

 

**21.1****                  Client’sRepresentations and Warranties.**  Clientrepresents and warrants that:

 

(a) Clientis a validly formed and existing entity and in good standing under the laws ofthe state of its formation;

 

(b) Clienthas all requisite power and authority to execute, deliver and perform its obligationsunder this Agreement and the same have been duly authorized by all necessaryactions of Client; and

 

 (c) Client’s execution and performance ofthis Agreement will not constitute: (i) a violation of any judgment, orderor decree; (ii) a default under any material contract by which it or theyare bound; or (iii) an event that would, with notice and/or lapse of time,constitute such a default.

 

**21.2****                  Fidelity’sRepresentations and Warranties. **Fidelityrepresents and warrants to Client that:

 

(a) Fidelityis a validly formed and existing entity and in good standing under the laws ofthe state of its formation;

 

(b) Fidelityhas all requisite power and authority to execute, deliver and perform its obligationsunder this Agreement and the same have been duly authorized by all necessaryactions of Fidelity;

 (c) Fidelity’s execution and performanceof this Agreement will not constitute: (i) a violation of any judgment,order or decree; (ii) a default under any material contract by which it orthey are bound; or (iii) an event that would, with notice and/or lapse of time,constitute such a default;

 

(d) Fidelityowns, is the authorized licensee of, or has the right to transfer to Client,the Software provided hereunder; Fidelity has the legal right to provide accessto or license the Software to Client pursuant to this Agreement; and

 

(e) tothe best of its knowledge, the Software substantially conforms, in all materialrespects, to the specifications set forth in the Documentation provided thatthe Software is used by Client in accordance with the provisions of thisAgreement and any applicable Documentation.

 

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**21.3****                  DISCLAIMEROF WARRANTIES.**EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE HEREIN, FIDELITYAND ITS LICENSORS MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TOTHE PRODUCTS AND SERVICES, SOFTWARE AND SYSTEMS, INCLUDING BUT NOT LIMITED TO,THE IMPLIED WARRANTIES OF MERCHANTABILITY, OWNERSHIP OR FITNESS FOR APARTICULAR PURPOSE, AND SUCH IMPLIED WARRANTIES ARE HEREBY EXPRESSLY ANDSPECIFICALLY DISCLAIMED.  CLIENT ASSUMESTOTAL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE AND SYSTEMS TO ACHIEVECLIENT’S INTENDED RESULTS, AND FOR THE USE AND RESULTS OBTAINED FROM THESOFTWARE AND/OR SERVICES.  FIDELITY DOESNOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE AND SYSTEMS WILL MEETCLIENT’S REQUIREMENTS.

 

**22.****            ****NON-SOLICITATION OF EMPLOYEES**

 

NeitherClient nor Fidelity will solicit the services of any employee of the otherparty for the duration of this Agreement Term without first obtaining thewritten consent of the other party. Notwithstanding the foregoing, Client and Fidelity understand and agreethat the following shall not constitute solicitation under this Section: (a) employmentsolicitations directed to the general public at large, including withoutlimitation newspaper, radio, internet and television advertisements, and (b) anemployment solicitation directed by a party to an employee of the other party,and any related communications, that occurs after a communication regardingemployment that was initiated by the employee.

 

**23.****   ****FORCE MAJEURE**

 

NeitherFidelity nor Client shall be responsible to the other for delays and/orfailures in performance resulting from acts beyond their control.  Such acts shall include but not be limited toacts of God, strikes, lockouts, riots, acts of war, acts of terrorism, epidemics,governmental regulations superimposed after the fact, fire, communication linefailures, power failures, earthquakes, or other disasters.  Notwithstanding the foregoing, takeovers(hostile or otherwise), mergers, or acquisitions shall not be deemed forcemajeure events.  In the event the abilityof either party to perform its obligations under this Agreement is prevented bya Force Majeure event, passage of any law or any other similar force beyond thecontrol of that party for a period of more than thirty (30) days, then eitherparty may terminate this Agreement or any portion of this Agreement uponwritten notice to the other party. In the event the affected party elects notto terminate this Agreement, Client and Fidelity will negotiate a proration ofmonthly charges based on the affected Products and Services and the period oftime by which performance was prevented.

 

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**24.****    MODIFICATION OF AGREEMENT**

 

Neitherthis Agreement, nor any Addenda or SOWs hereunder may be modified or amendedexcept by a written document signed by the party against whom enforcement issought.

 

**25.****    WAIVER**

 

Thewaiver of a breach of, or a default under, any term or condition of thisAgreement shall not be construed as a continuing waiver of any such term orcondition, nor shall a waiver of a breach of, or a default under, any term orcondition be construed as a waiver of any breach or default under any otherterm or condition, or in any manner affect any other term or condition hereof.

 

**26.****    INDEPENDENTCONTRACTOR**

 

Fidelity is anindependent contractor, which has the sole right to supervise, manage, controland direct its performance of services. The performance of activities by eitherparty under this Agreement shall not constitute either a joint venture orpartnership of the parties. This Agreement shall not be construed to limit inany way the rights of the parties to pursue, independently and in accordancewith their respective management policies, any aspects of their respectivebusinesses and operations.

 

**27.****    SEVERABILITY OFPROVISIONS**

 

The provisions of this Agreement are severable,and if any provision is hereafter declared invalid or unenforceable by anycourt of competent jurisdiction, such determination shall not affect thevalidity of any other provision hereof.

 

**28.****    SURVIVAL OFREPRESENTATIONS AND WARRANTIES**

 

The terms, provisions,representations, warranties and covenants contained in Sections 5 (Ownership,Confidentiality and Non-Disclosure), 12 (Limitation of Liability) and 13 (Indemnification)of this Agreement shall survive the delivery and acceptance of those servicesto be delivered hereunder, the payment of any fees or other charges hereunder,and the termination of this Agreement for any reason.

 

**29.****    NOTICES**

 

Wheneverthe giving of a written notice by Fidelity or Client is required by thisAgreement, such notice shall be given personally or sent by certified mail orovernight courier, postage prepaid, addressed to the other party in care of adesignated officer and at the address listed in the preamble of this Agreement,or at such other address as may be specified by Fidelity or Client in advancein writing to the other, and shall be deemed to have been given on the date ofreceipt by the other.  Written notice mayalso be made by facsimile or electronic mail provided that within a reasonableamount of time subsequent to transmitting the facsimile or electronic mail 

 

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notification,an original written notice is delivered personally or sent by certified mail orovernight courier, postage prepaid, addressed to the other party in care of adesignated officer and at the address showing in the preamble of thisAgreement, or at such other address as may be specified by Fidelity or Clientin advance in writing to the other.

 

**30.****             FURTHERASSURANCES**

 

Theparties shall perform all acts and execute all supplementary instruments ordocuments which may be necessary to carry out the intent of this Agreement.

 

**31.****             ORDEROF PRECEDENCE**

 

The general terms andconditions set forth in this Agreement shall apply to all Addenda, Schedules,SOWs and any other documents attached hereto. To the extent any of the provisions are found to be in conflict withother provisions in the Agreement, the order of precedence of the documents isas follows: the provisions of the Schedules shall take precedence respectively,followed by each Addendum, then this Agreement’s General Terms and Conditions,and then any applicable SOW respectively.

 

**32.****             GOVERNINGLAW**

 

ThisAgreement shall be considered as entered into in the State of Florida and shallbe governed by and construed in accordance with the laws of the State ofFlorida.

 

**33.****    COUNTERPARTS**

 

This Agreement may beexecuted in one or more counterparts, each of which is deemed an original, butall of which together constitute one agreement.

 

**34.****    ENTIRE AGREEMENT**

 

ThisAgreement constitutes the complete understanding of Fidelity and Client, supercedesany prior oral or written communications, supercedes any requests forproposals, terms sheets or letters of intent, and no representation other thanis contained herein or in any agreement referred to herein shall be binding oneither party.  No alteration,modification, or waiver of any provision hereof shall be valid unless inwriting and signed by the parties hereto.

 

**35.****             PERFORMANCEAUDITS**

 

Fidelity will cooperatefully with Client or its auditors, internal or external, upon reasonable priornotice, for the purpose of inspecting, examining, and auditing the performanceof the Services to be rendered by Fidelity to Client hereunder (with theexception of any records, information or procedures which are of a confidentialnature with a third party or are addressed in Fidelity’s

 

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Third Party Review);provided, however, that any such inspection, examination and/or audit shalltake place only during normal business hours and in a manner that will notdisturb the ordinary transaction of Fidelity’s business.  Fidelity reserves the right to charge Clienton a time and materials basis for any services reasonably required to beperformed by Fidelity in connection therewith. Performance audits shall not be scheduled to occur during the fourthquarter of any calendar year.  Clientshall limit any performance audits to a reasonable duration and limit thenumber of performance audits performed to one (1) per calendar year.  Client and its representatives may berequired to sign Fidelity’s nondisclosure and confidentiality agreement inadvance of performing any audits.  Clientwill provide, and instruct its auditors, internal and external, to provideFidelity with a copy of that portion of each written report containing commentsconcerning Fidelity or the Services performed by Fidelity pursuant to thisAgreement.  In no event may anyrepresentative of client or auditor be a Competitor.

 

**36.****             COVENANTOF GOOD FAITH**

 

Eachparty, in its respective dealings with the other party under or in connectionwith this Agreement, shall act in good faith.

 

 
| **AMERICAN  MORTGAGE NETWORK,** | ** ** | **FIDELITY  INFORMATION SERVICES,** | ** ** |
|---------------------------------|------------|-------------------------------------|------------|
| **INC.**                        | ** ** | **INC.**                            | ** ** |
| ** **                      | ** ** | ** **                          | ** ** |
| By:                             |       | By:                                 |       |
|                            |       |                                |       |
| Its                             |       | Its                                 |       |
|                            |       |                                |       |
|                            |       |                                |       |
| Printed Name                    |       | Printed Name                        |       |
|                            |       |                                |       |
|                            |       |                                |       |
| Date                            |       | Date                                |       |
| “CLIENT”              |       | “FIDELITY”                |       |

 

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CONFIDENTIAL TREATMENTREQUESTED—REDACTED COPY

CONFIDENTIAL TREATMENTREQUESTED:  INFORMATION FOR WHICHCONFIDENTIAL TREATMENT

HAS BEEN REQUESTED IS OMITTEDAND NOTED WITH “***.”  AN UNREDACTEDVERSION OF THIS

DOCUMENT HAS BEEN SUBMITTEDSEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION.

 

 

**ADDENDUM 1**

**TO**

**MASTER AGREEMENT NO. 264-05M**

**BETWEEN**

**FIDELITY INFORMATION SERVICES,INC.**

**AND**

**AMERICAN MORTGAGE NETWORK, INC.**

**FOR**

**MORTGAGE SERVICING PACKAGE WITHONLINE SERVICES**

 

ThisAddendum 1 (“Addendum”) to the above referenced Master Agreement (the “Agreement”)is entered into as of May 10, 2005 (“Addendum 1 Effective Date”), by andbetween **Fidelity Information Services, Inc.**(“Fidelity”) and **American Mortgage Network, Inc.**(“Client”).

 

**1.****                   ****DEFINITIONS**

 

Thedefinitions set forth in the Agreement, or any Addendum or Exhibit thereto,are incorporated herein by reference as if fully stated herein.  The following additional terms shall have thedefinitions set forth below:

 

**1.1        “Daily Currency Information”**shall mean Client’s loan information, whichis available to Passport and current as of the previous processing cycle.

 

**1.2        “Fidelity RLS Training Fundamentals”**shall mean Fidelity’s overview, disk andcomputer based training products designed to support Client’s in-house trainingefforts with respect to the MSP System, including such updates, enhancementsand modifications as Fidelity deems necessary.

 

**1.3        “Month-end File”**shall **mean** a file containing Time Series Information**.**

 

**1.4        “NavigatorTM”**shall mean Fidelity’s electronic reference and procedural libraryproduct.

 

**1.5        “OEM”**shallmean**original**equipment manufacturer.

 

**1.6        “Online Services”**or **“Online System(s)”**shall mean****online access fromterminals located in Client’s office(s) through the CICS telecommunicationfacility to information contained in Client’s mortgage master, ****history, and certain utility files.

 

**1.7        “Regular File”**shall mean a file containing Daily Currency **Information**.

 

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**1.8        “Time Series Information”**shall mean a limited number of snapshots ofClient’s loan information, each as of a specific month-end period.

 

**2.****                   ****TERM**

 

Theterm of this Addendum shall run simultaneously with the Original Term andExtended Term, if applicable, of the Agreement.

 

**3.****                   ****MSP REMOTE PROCESSING CHARGES ANDSERVICES**

 

**3.1        Basic Processing Charges.**  Inconsideration for Processing data and Client’s use of the MSP System, Clientshall be charged and shall pay to Fidelity Basic Processing Charges per monthequal to the monthly rate per loan set forth in the following table times thenumber of loans processed on the MSP System for that month, but in no eventless than the Minimum Monthly **Principal**Balance Loan Billing Volume Requirement set forth below:

 

| 2005 Monthly Basic  Processing Charges Per Principal Balance Loan |   | *** |   |
|-------------------------------------------------------------------|--------|-----|--------|

 

Theabove charges cover regular daily (five (5) days per week), monthly andnormal year-end Processing cycles.  Inaddition, in no event shall Client shall Process less than the Minimum MonthlyPrincipal Balance Loan Processing Volume Requirement set forth in the tablebelow:

 

| Minimum Monthly Principal  Balance Loan Billing Volume Requirement    |   | *** |   |
|-----------------------------------------------------------------------|--------|-----|--------|
| Minimum Monthly Principal  Balance Loan Processing Volume Requirement |   | *** |   |

 

Notwithstandingthe foregoing, Fidelity understands and agrees that Client is entering into theAgreement to initially Process less than the Minimum Monthly Principal BalanceLoan Processing Volume Requirement set forth above.  As a result, the Minimum Monthly PrincipalBalance Loan Processing Volume Requirement shall not apply to Client untilClient actually Processes that minimum number of loans on the MSP System in onemonth.  Once Client Processes loansgreater than or equal to the Minimum Monthly Principal Balance Loan ProcessingVolume Requirement in any month, the Minimum Monthly Principal Balance LoanProcessing Volume Requirement shall apply and Client shall be obligated toProcess at least that number of loans each month thereafter.

 

**3.2       **Forthe fees described above, in addition to Processing, Client shall be entitledto use the Products and Services listed below:

 

**a)**              MSPtelephone support, enhancement videos (if applicable), and all shared standardMSP enhancements added to the MSP System during the Original Term or anyExtended Term of this Addendum;

 

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**b)****             **Director monthly per loan fee, subject to theallowances set forth in Section 7.1 (“Director User Access Rights”)hereof;

 

**c)****             **Passport monthly per loan fee, subject to theallowances set forth in Section 6.1 (“Passport Fees and Allowances”);

 

**d)**              upto *** standard Online LetterWriter letters (“OLLW”), as measured utilizingindustry standard measurement tools, per each *** Principal Balance Loans permonth (the “Allowable OLLW”).  Additionalstandard OLLW letters produced above the Allowable OLLW and all ARM OLLWletters will be billable at the rate of *** each until Client’s portfolio reaches*** Principal Balance Loans.  Once Client’sportfolio exceeds *** Principal Balance Loans, all OLLW letters above theAllowable OLLW and all ARM OLLW letters will be billable at the non-plan ratesas set forth in the Fidelity Optional Processing and Support Services RatesSchedule;

 

**e)**              upto *** online transactions, as measured utilizing industry standard measurementtools, per principal balance loan per month (the “Allowable CICS”).  For example, if Client has a processingportfolio of 10,000 principal balance loans, the above fees cover up to *** onlinetransactions per month.  Fidelity shallhave the right to bill Client and Client agrees to pay a fee for the number oftransactions over and above the Allowable CICS at the rate of *** each;provided, however, during the first six (6) months after Client processesits first loan on the MSP System, Client shall not be charged any fees forexcess CICS transactions;

 

**f)**                one(1) copy per month of NavigatorTM;

 

**g)**             FidelityRLS Training Fundamentals and access to Fidelity’s computer based trainingproducts (non-classroom) in pre-defined quantities based on Client’s loancount;

 

**h)****            **the functionality provided by the followingenhancements (and any implementation or installation charges in connection withsuch enhancements) are included upon written request by Client:

 
| **Enhancement  Title/Description**         | ** ** | **IP#(s)**                                                     | ** ** |
|--------------------------------------------|------------|----------------------------------------------------------------|------------|
|                                       |       |                                                           |       |
| Monthly Billing                            |       | 778, 947, 1395 & 1639                                 |       |
| Daily Interest Accrual                     |       | 1443                                                           |       |
| Credit Risk                                |       | 1410                                                           |       |
| Auto Process Stop for PIF Trans            |       | 1308                                                           |       |
| Additional User Fields USR2-4              |       | 1336, 1602 & 1700                                     |       |
| Tax Bureau:                                |       |                                                           |       |
| TransAmerica                               |       | 0724, 0941, 1267, 1503, 1607, 1622, 1623, 1624 & 1819 |       |
| Lereta                                     |       | 1231                                                           |       |
| CRM                                        |       | 1355                                                           |       |
| Fidelity                                   |       | 1407                                                           |       |
| First American                             |       | 0935, 1050, 1061 & 1501                               |       |
| Prime First – Interest Only Loans ARM |       | 1416                                                           |       |
| Interest Only on Fixed Rate Loans          |       | 1830                                                           |       |
| Salomon Brothers Portfolio Analysis Tape   |       | 1298                                                           |       |
| ELOCS                                      |       | 1423                                                           |       |

 

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**i)****               **tape rental for in-house backup;

 

**j)**                Dexportcharges; and

 

**k)****           **extended system availability (bronze plan)with read only access to a limited number of screens and/or modules (currentlyISA0, ISA1, ISA2, ISH5, LSCH, NC04, NC07, PAY1, PAY2, PAY3, PAY4, P190, P309,VRKB, VRU1, VRU4, and VRU5) for the times specified below, subject to the termsof the SLA:

 

**i)**                Mondaythrough Friday:  8:00 p.m. PT (11:00 p.m.ET) until 5:00 a.m. PT (8:00 a.m. ET) the following morning;

**ii)**  Saturday: 3:00 p.m. PT (6:00 p.m. ET) until 3:00 a.m. PT (6:00 a.m.ET) Sunday morning; and

**iii)** Sunday: 9:00 a.m. PT (12:00 p.m. ET) until 5:00 a.m. PT (8:00 a.m.ET) Monday morning.

 

Extended access to any screens and/or modules andthe available hours set forth above are subject to change from time to time atFidelity’s sole discretion.

 

**l)**                Loanswhich have been paid-in-full, foreclosed, or transferred to a non-affiliated company,and are therefore inactive zero balance loans up to the Minimum MonthlyPrincipal Balance Loans Billing Volume Requirement set forth above.  Inactive zero balance loans above the numberincluded in the Basic Processing Charges will be billed to Client at the rateof *** pre loan until Client’s portfolio reaches *** Principal Balance Loans.  Once Client’s

 

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portfolio exceeds *** Principal Balance Loans, allinactive zero balance loans above the number included in the Basic ProcessingCharges will be billed to Client in accordance with the rates set forth in theFidelity Optional Processing and Support Service Rates Schedule.  This charge is to cover regular daily (five (5) daysper week), monthly and normal year-end processing, but does not include theinactive loan fees for Passport.

 

**m)****         **If Client elects to use FTP protocol fordaily output reports to be delivered through Fidelity’s InterChange product andexecutes a Fidelity InterChange agreement in form and substance acceptable toFidelity, Client will receive up to *** files per month.  Electronic data interchange transmissions inexcess of *** files per month will be billed in accordance with the FidelityOptional Processing and Support Services Rates Schedule; provided, however,electronic data interchange translated transmissions to or from a governmentsponsored entity, regulatory agency or insurance carrier (to the extent suchinsurance carrier is a business partner with Fidelity) will be provided at noadditional cost to Client.

 

**n)****            **When generally made available to Fidelity’sother clients, Client will be provided access to Fidelity’s new collectionworkstation, subject to payment by Client of any applicable implementationfees.

 

**3.3        Adjustments of Basic ProcessingCharges and Minimum Billing and Processing Requirements.**The Basic Processing Charges, MinimumMonthly Principal Balance Loan Billing Volume Requirement and Minimum MonthlyPrincipal Balance Loan Processing Volume Requirement set forth in Section 3.1above shall remain in effect for the first year of the Original Term.  In the event the Addendum 1 Effective Date isother than January 1, for price adjustment purposes only, the first yearof the term shall be deemed to be the period from the commencement of the termthrough and including the immediately succeeding December 31.  During the second and subsequent years of theOriginal Term, Fidelity reserves the right upon thirty (30) days written noticeto Client, to adjust the Basic Processing Charges, Minimum Monthly PrincipalBalance Loan Billing Volume Requirement and Minimum Monthly Principal BalanceLoan Processing Volume Requirement.  Suchadjustment to the Basic Processing Charges shall not exceed the percentincrease in the CPI-U Index between the annual averages of the most recentlypublished twelve (12) month period and the immediately preceding twelve (12)month period, provided, however, in no event shall the percentage increase beless than ***.  For purposes offorecasting, documentation preparation, and advance notification requirements,the “most recently published” period shall be deemed to be the latest availablepublished period at the time Fidelity begins its price adjustment process forthe upcoming year.  In no event shall theMinimum Monthly Principal Balance Loan Billing Volume Requirement or MinimumMonthly Principal Balance Loan Processing Volume Requirement be adjusted belowthe levels set forth above.

 

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**4.****                   ****INPUT/OUTPUT SERVICES**

 

**4.1        Input. **Client shall perform the data entry requirementsfrom items of original entry (which items remain in the possession of Client).Client shall create the input data and Client and/or Client’sagent will transmit the input data required by each System, as defined in theDocumentation, to Fidelity’s computer facilities in Jacksonville viaa mutually agreed upon method of data transmission. Input data is to bereceived by Fidelity each business day, or other processing frequency asrequired, at 8:00 p.m. PT (11:00 p.m. ET).  Clientshall be responsible for verification of the data transmitted and for therelease of the data to Fidelity for processing.

 

**4.2        Output.**  Fidelitywill process the data using the Software and will have the output available toallow the Client to begin to print the output data at Client’slocation at a mutually agreed upon time. Fidelity will use its commerciallyreasonable efforts to complete the processing and transmission of Client’sdata on schedule, provided Client has transmitted and released its input inaccordance with Section 4.1 (“Input”) of this Addendum.

 

**4.3        Rejected Transactions and System Balancing.** Client shall correct and resubmit all transactions rejected by theSoftware and Client shall be responsible for reconciling and adjustingdifferences in batch control totals which result from rejected transactionsand/or erroneous control totals. Client is responsible for the system balancingon a daily basis.

 

**4.4        Reasonable Care.** Client agrees to exercise reasonable care in the use of each service. “Reasonablecare” includes, but is not limited to, scheduling certain reports and producinglarge volumes of output data only on selected days. Certain reports identifiedin the Documentation have been blocked in the Software from being producedduring peak cycles.   For example,restrictions may be placed on certain reports and large volume output duringmonth end, mid-month and year end processing cycles.

 

# **5.**                    ONLINE SERVICES

 

Fora complete description of the On-line Services provided by Fidelity, and theiravailability, reference is made to the SLA attached to the Master Agreement.

 

# **6.**                    PASSPORT

 

**6.1        Passport Fees and Allowances. **In exchange for the payment of the Basic Processing Charges, Clientshall be entitled to access to Passport, a specific allowance of CPU usage timeper principal balance loan as set forth in the table in Section 6.1.5below, storage of a rolling thirteen (13) months of Time Series Informationand access to Scorecard Phase II.

 

**6.1.1 Inactive Loan Fee. **Client shall pay Fidelity a monthly inactiveloan fee as set forth in the table below for each inactive or zero balance loanavailable to Passport.

 

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**6.1.2 Available Files. **Fidelity shall make the Regular File and theMonth-end File available in Passport. CPU usage against the Regular File shall be tracked independently fromthe CPU usage against the Month-end File.

 

**a)****    **Client’s monthly CPU usage against theMonth-end File shall be counted after Client’s monthly CPU usage allowance andClient shall pay a Regular File Excess Usage Fee at Fidelity’s then currentrates for excess usage.

 

**b)****    **Client’s monthly CPU usage against theMonth-end File shall be counted after Client’s monthly Regular File CPU usagein calculating Client’s total CPU usage against both files for purposes ofdetermining if Client’s total monthly CPU usage has exceeded the allowableamount.  Client shall pay a Month-endFile Excess Usage Fee at Fidelity’s then current rates for excess usage for anyCPU usage against the Month-end File which, when combined with Client’s CPU usageagainst the Regular File, results in total CPU usage in excess of the allowableamount.

 

**6.1.3 Excess Storage Fees. **Based uponClient’s principal balance loan volume, Client shall pay to Fidelity an excessstorage fee as set forth in the table below for each month of retention of TimeSeries Information in excess of the allowable number of months.

 

**6.1.4 CPU Usage.**

 

**a)****             **Client’s monthly CPU usage against theRegular File shall be counted first towards Client’s monthly CPU usageallowance and Client shall pay a Regular File Excess Usage Fee as set forth in Section 6.1.5for any CPU usage against the Regular File which results in CPU usage in excessof the allowable amount.

 

**b)****             **Client’s monthly CPU usage against theMonth-end File shall be counted after Client’s monthly Regular File CPU usagein calculating Client’s total CPU usage against both files for purposes ofdetermining if Client’s total monthly CPU usage has exceeded the allowableamount.  Client shall pay a Month-endFile Excess Usage Fee as set forth in Section 6.1.5 for any CPU usageagainst the Month-end File which when combined with Client’s CPU usage againstthe Regular File, results in total CPU usage in excess of the allowable amount.

 

**c)****             **CPU usage allowances are subject toadjustment by Fidelity from time to time based upon improvements in CPUperformance in order to maintain the same relative CPU usage allowance.  For example, if Fidelity upgrades the CPU orotherwise improves the CPU processing speed, then the CPU usage allowancedescribed herein may be proportionately adjusted downward to reflect such

 

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improvement. Fidelity will provide written notice to Client of any adjustments to theCPU usage allowance.

 

**6.1.5  Additional MonthlyAllowances and Fees. **

 
| CPU Usage  Allowance (allowable seconds per loan)                                                               |   | *** |   |
|-----------------------------------------------------------------------------------------------------------------|--------|-----|--------|
| Excess Usage  Fees – Regular (per CPU second)                                                              |   | *** |   |
| Excess Storage  Fees (per principal balance loan per additional month of Time  Series data over 13 months) |   | *** |   |
| Inactive Loans                                                                                                  |   | *** |   |

 

**7.  DIRECTOR**

 

**7.1        Director User Access Rights. **The Basic Processing Charges include the right of access to Director.  The Basic Processing Charges entitle Clientto an initial allocation of twenty (20) Director User Access Rights andthereafter one (1) full usage standard Director User Access Right per fivehundred (500) Principal Balance Loans.  Inthe event Client requires more User Access Rights than the allowance set forthabove, Client may request such additional User Access Rights subject to thepayment of the then current additional fees. Client is authorized to utilize the Director User Access Rights only atthe following location(s):                           .

 

**7.2        Access Verification Rights. **Client agrees to permit representatives of Fidelity or its licensors toinspect, during Client’s normal business hours, any Authorized Location(s) orany other locations under the control of Client for which Fidelity or itslicensors have reasonable cause to believe Director or any third partycomponent of Director is being accessed or used.  Upon request, Client shall provide writtencertification to Fidelity of the number of User Access Rights at eachAuthorized Location or other location where Director is used or otherwiseaccessed or used by Client.  Client alsoacknowledges and agrees that Fidelity may be obligated under its agreementswith third party software licensors, for software components which are part ofor associated with the use of Director, to allow such licensors the right toaudit Fidelity’s records for access and distribution verification.  Such records may include, but not be limitedto, the names, addresses, contact names and phone numbers of the Fidelity’sclients who have User Access Rights to Director.  Client consents to Fidelity’s compliance withsuch obligations and agrees to cooperate with Fidelity or its licensorsregarding such audit efforts.

 

**7.3        Access Violations. **Client isauthorized to access Director only in the manner of use for which User AccessRights have been authorized hereunder. If it is determined that Client is accessing Director at locations otherthan Authorized Locations, Fidelity may, in accordance with the terminationprovisions of the Agreement, and at Fidelity’s sole option, terminate thisAddendum, terminate any and all User Access Rights that have been authorizedunder this

 

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Addendum in addition to any unauthorizedaccess, or require Client to execute a modification agreement for suchadditional User Access Rights.

 

**8.****                   ****TRANSMISSION SERVICE &TERMINAL EQUIPMENT**

** **

**8.1        Transmission Service.**  Clientwill pay all costs for installation/deinstallation and for the datatransmission service between Client’s service center and Fidelity’s site. Fidelityshall specify and order the type of transmission service required and will billClient for those transmission services in accordance with the fees set forth inthe Fidelity Optional Processing and Support Service Rates schedule, a copy ofwhich has been delivered to Client.  Inthe event Client relocates its service center, Client shall be responsible forthe cost of deinstallation at Client’s old site and for reinstallation of suchtransmission service at Client’s new site. Should Client desire to terminatethe data transmission service, Client shall give Fidelity not less than ninety(90) days prior written notice. Client shall be responsible for anydeconversion costs of such transmission service at the time of termination ofsuch service.

 

**8.2        Communication Devices.**  Thecommunication devices (satellite, terrestrial, or frame relay) shall bespecified and ordered by Fidelity. Such devices will be leased in Fidelity’sname or owned by Fidelity. Fidelity, in turn, will bill Client for such deviceslocated in Client’s office(s). Should Client desire to terminate the communicationdevices, Client shall give Fidelity not less than ninety (90) days priorwritten notice.

 

**8.3         Terminal andPrinting Equipment.**  Fidelity will specify the type of terminal andprinting equipment to be used by Client. Client may use its most cost effectiveor efficient method for acquiring the equipment specified by Fidelity.  At Client’s option, Fidelity, as an OEMdealer, may sell or lease the terminal and printing equipment to Client. Insuch case, Fidelity and Client will execute the applicable agreement for eitherthe purchase or lease of such equipment.

 

**8.4        Hardware and Software Requirements for NavigatorTM.** Client’s ability to access NavigatorTM is contingent upon the use ofcertain hardware and software.  Fidelitywill specify the type of hardware and software required for Client’s use ofNavigatorTM. Client may use its most cost effective or efficient method foracquiring the equipment specified by Fidelity. Fidelity, as an OEM dealer, may sell or lease the hardware or softwareto Client. In such case, Fidelity and Client will execute the applicable agreementfor either the purchase or lease of such hardware or software.  Client shall have the sole responsibility foradequate protection and back-up of its data used in connection with NavigatorTM,including but not limited to utilization of the appropriate virus detectionsoftware upon receipt of the initial release and each monthly update ofNavigatorTM prior to use.

 

**8.5        Transmission Problems.** Fidelityshall use commercially reasonable efforts in isolating data transmissionproblems and obtaining service from the terminal hardware vendors and/orcommunication carriers.   In situationswhere data transmission is rendered impossible by virtue

 

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of equipment failure atFidelity’s site, Fidelity agrees to provide such data, via a medium to beagreed to between Fidelity and Client, at its expense.  In the event the inability to transmit iscaused by a failure of the communication carrier, the cost to provide such datawill be borne equally by Fidelity and Client. In the event of equipment failure at Client’s site, Client shall pay allcosts associated with such data transfer.

 

**9.       STANDARD ENHANCEMENTS**

 

Fidelity may, using commercially reasonableefforts and based on changes to government regulations, tax laws, mortgageindustry and mortgage agencies’ needs, as well as other reasons which Fidelitymay deem necessary, issue standard enhancements to the MSP System.  Unless otherwise specified in the applicableAddenda or SOW, such standard enhancements are included as part of the fees setforth herein.

 

**10.    SECURITY**

 

TheMSP System provides Client with built-in security through initial access andthrough submenus. Client is responsible for the initial setup of securitylevels and security codes as well as for the ongoing maintenance of securitycodes and security levels within the MSP System. Client agrees at the time thisAddendum is executed to identify in writing to Fidelity the person who isresponsible for the initiation and maintenance of the security controls withinthe MSP System.

 

**11.    PROCESSING REMEDIES**

 

**11.1      REPROCESSING DATA. **FIDELITY’SSOLE OBLIGATION IN THE EVENT OF NEGLIGENCE OR ERROR BY FIDELITY IN THEPERFORMANCE OR NON-PERFORMANCE OF ITS DUTIES HEREUNDER SHALL BE LIMITED TOREPROCESSING THE DATA FOR CLIENT. FIDELITY’S OBLIGATION HEREIN IS CONTINGENTUPON CLIENT NOTIFYING FIDELITY WITHIN TWO (2) BUSINESS DAYS OR TWO (2) PROCESSINGCYCLES AFTER THE RECEIPT OF ERRONEOUS DATA.

 

**11.2      NAVIGATORTM. **TO THE EXTENTCLIENT RECEIVES NAVIGATORTM UNDER THIS AGREEMENT, FIDELITY’S SOLE OBLIGATION INTHE EVENT OF NEGLIGENCE OR ERROR BY FIDELITY IN THE PERFORMANCE OR NON-PERFORMANCEOF ITS DUTIES WITH RESPECT TO NAVIGATORTM SHALL BE LIMITED TO REPLACINGNAVIGATORTM FOR THE REMAINING TERM OF THE MSP ADDENDUM.

 

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CONFIDENTIAL TREATMENT REQUESTED—REDACTED COPY

CONFIDENTIAL TREATMENT REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT

HAS BEEN REQUESTED IS OMITTED AND NOTED WITH “***.”  AN UNREDACTED VERSION OF THIS

DOCUMENT HAS BEEN SUBMITTED SEPARATELY TO THE SECURITIES AND EXCHANGECOMMISSION.

 

 

**ADDENDUM 2**

**TO**

**MASTER AGREEMENT NO. 264-05M**

**BETWEEN**

**FIDELITY INFORMATION SERVICES, INC.**

**AND**

**AMERICAN MORTGAGE NETWORK, INC.**

**FOR**

**CPI LASERCHECK SYSTEM**

 

This Addendum 2 (“Addendum”) is entered into asof May 10, 2005 (“Addendum 2 Effective Date”), by and between **Fidelity Information Services, Inc.** (“Fidelity”) and **American Mortgage Network, Inc.**(“Client”).

 

**1.****                    DEFINITIONS.**

 

**1.1       **Thedefinitions set forth in the Agreement or any addendum or exhibit thereto, areincorporated herein by this reference as if fully stated herein.

 

**1.2        “CPILaserCheck Software”** means the Version of the softwareexisting on the Effective Date of this Addendum which has been developed and isowned solely by Fidelity and has been incorporated into the CPI LaserCheckSystem

 

**1.3        “CPILaserCheck System”** means the CPI LaserCheck Software,hardware unit(s) and any associated software described on any Schedule attachedhereto.

 

**1.4        “TargetShipping Date”** means a date to be determined by Fidelitywhich will be within thirty (30) days after the later of the Addendum 2Effective Date or the date this Addendum is fully executed.

 

**2.****                    PURCHASE.**

 

**2.1        PurchasePrice. **Fidelityagrees to sell to Client, and Client agrees to purchase from Fidelity, thehardware components of the CPI LaserCheck System(s).  Fidelity hereby grants to Client and Clientaccepts a nontransferable and non exclusive right to access and use the CPILaserCheck Software.  Pricing for the CPILaserCheck System is set forth on Schedule 1 attached hereto.  Payments shall be made in accordance with theterms of the Agreement.

 

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**2.2        Client’sBusiness Use.** Client represents and warrants that it isacquiring the CPI LaserCheck System for its own business use and purpose,without any intention to re-sell or transfer the CPI LaserCheck System to anythird party.

 

**2.3        Security Interest.** Fidelity reserves a security interest in the CPI LaserCheck System andall components, replacements, and proceeds thereof to secure payment of Client’sobligations to Fidelity.  Such security interest will be retained andtitle to the hardware components of the CPI LaserCheck System will not pass toClient until Client’s payment obligation for the purchase price is paid infull.  Client agrees that Fidelity willhave the right to file financing statements pursuant to the Uniform CommercialCode or other applicable law to evidence or perfect such security interest, andClient agrees to join with Fidelity in executing such financing statements, ifrequested.

 

**3.       TERM.**

 

The term of this Addendum shall be from the Addendum 2 Effective Datethrough the later of: (a) receipt by Fidelity of the final payment due forthe CPI LaserCheck System; or (b) the date of termination of the softwaresupport and printer maintenance described below; or (c) termination of theaccess rights granted herein.

 

**4.****                   ****SOFTWARE SUPPORT AND HARDWAREMAINTENANCE.**

 

**4.1        Software Support.** Client shall pay to Fidelity a monthlysupport fee, as shown on Schedule 1 attached to this Addendum, forwhich Fidelity, either directly or through a subcontractor or agent, shallprovide the following:  a) telephonetechnical support and problem reporting for CPI LaserCheck Software between thehours of 8:00 a.m. and 6:00 p.m. Eastern Time (ET) via PowerCell; b)software maintenance including new Releases of the CPI LaserCheck Software asthey are made available by Fidelity at no additional charge, provided however,that Fidelity shall only support the most current Release and the immediatelypreceding Release.

 

**4.2        Hardware Maintenance.** Client shall pay to Fidelity an annual hardware maintenance fee as shownon Schedule 1 attached to this Addendum, for which Fidelity, eitherdirectly or through a subcontractor or agent, shall provide printermaintenance.  The annual hardwaremaintenance fee specifically excludes replacement of any hardware which cannotbe reasonably repaired, is obsolete where parts are no longer available fromthe hardware manufacturer or where the hardware manufacturer no longer provides maintenance support servicesfor the hardware.  Fidelity or its agentshall make commercially reasonable efforts to diagnose a reported problem and,if necessary, dispatch a technician to the Client’s location to resolve suchproblem. Client shall be responsible for maintaining any third party hardwareand software not provided by Fidelity, including but not limited to, maintaininglicenses and supported versions of the software, and obtaining and installingthe appropriate upgrades,

 

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modifications, enhancements,and releases made available by the third party software or hardwaremanufacturer to ensure compatibility with and the functionality of the CPILaserCheck System.  Client acknowledgesthat magnetic ink character recognition (“MICR”) printers are required tooperate the CPI LaserCheck System and that Fidelity has provided Client with alist of acceptable MICR printers, current as of the Effective Date of thisAddendum.  Fidelity may update such listfrom time to time.  Client may requestFidelity to test other printers for compatibility with the CPI LaserCheckSystem, but such testing shall be performed, at Client’s expense, pursuant to aseparate SOW and at Fidelity’s then current rates for time and materials.  Fidelity shall have no liability orobligation with respect to failure of the CPI LaserCheck System to functionproperly if such failure is caused by Client, Client’s environment or theconsumables, such as toner, used by Client.

 

**4.3        Termination of Support and Maintenance.** Client may terminate the software support and/or printer maintenance forthe CPI LaserCheck System by providing thirty (30) days advance written noticeto Fidelity.  Fidelity, in such event,shall not be obligated to refund any support or maintenance fees paid by Client.  Fidelity may terminate the software supportand/or printer maintenance by providing sixty (60) days advance written noticeto Client and Fidelity shall refund the prorata portion of any prepaid supportand/or hardware maintenance fees.

 

**4.4        New Versions.**  New or subsequent Versions ofthe CPI LaserCheck Software, if any, will be made available only upon paymentby Client of a new user access fee at the then current rates.

 

**4.5        Price Adjustments.** Fidelity reserves the right, once annually (or more frequently if suchadjustment relates to the pass through of increases by Fidelity’s third partyvendors) and upon forty five (45) days prior written notice to Client, to adjust the monthly software supportfee and annual printer maintenance fee.

 

**5.****                   ****DELIVERY AND RISK OF LOSS****.**

 

**5.1        Delivery.**  The CPI LaserCheck System shallbe packed, prepared for shipment and shipped by Fidelity or its agent, F.O.B.Fidelity’s or agent’s site on the Target Shipping Date.

 

**5.2        Risk of Loss.**  Fidelity will bear the risk ofloss until the commencement of loading of the CPI LaserCheck System on thetransportation vehicle.  From that time,all risk of loss shall be borne by Client. Fidelity or its agent will arrange for replacement value transitinsurance coverage on the CPI LaserCheck System at Client’s expense from thetime the CPI LaserCheck System is shipped from Fidelity’s or agent’s site untildelivery at Client’s site.  Alltransportation, insurance and subsequent installation costs, if any, shall bepaid by Client.

 

**5.3        Rescheduling.**  Client may request a delay ordeferral of the Target Shipping Date of any CPI LaserCheck System, one timeonly, by providing thirty (30) days advance written notice to Fidelity of suchrequest.  If such request is received byFidelity sixty (60) days or more before the Target Shipping Date, Client shallpay a rescheduling charge equal to five percent

 

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*** Confidential materialredacted and submitted separately to the Commission

 

3

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(5%) of the purchase priceof the CPI LaserCheck System so rescheduled. If such request is received byFidelity less than sixty (60) days prior to the Target Shipping Date, Clientshall pay a rescheduling charge equal to ten percent (10%) of the purchaseprice of the CPI LaserCheck System so rescheduled.

 

**5.4        Cancellation.**  If Client requestscancellation, in writing, of an order pursuant to any Schedule 1 tothis Addendum prior to the Target Shipping Date for all or any part of the CPILaserCheck System, Client will pay to Fidelity the cancellation charge setforth below for the CPI LaserCheck System(s) or component(s) so canceled:

 

| **Days Notice Prior  to Target Shipping Date** | ** ** | **% of Purchase Price  Due** | ** ** |
|------------------------------------------------|------------|------------------------------|------------|
| 30 or more                                     |       | 7.5                          | %          |
| 7 to 29                                        |       | 15.0                         | %          |
| 0 to 6                                         |       | 30.0                         | %          |

 

**6.****                   ****INSTALLATION.**

 

**6.1        Installation.**  The CPI LaserCheck System(s)will be deemed to be successfully installed when it is placed into anoperational state in Client’s facility, but is not necessarily placed intoproduction or “live” use by Client.  Inthe event the CPI LaserCheck System fails to function substantially inaccordance with the system documentation following successful installation,Client will cooperate with Fidelity in determining the reasons for such failureand the remedial steps that are necessary. Client will take such actions as may be reasonably necessary, andFidelity will perform such warranty and maintenance obligations as it may havepursuant to this Agreement, to cause the CPI LaserCheck System to functionproperly.  In the event the CPILaserCheck System cannot be successfully installed or fails to continue tofunction properly for twenty (20) consecutive days after successfulinstallation, then either party hereto may terminate this Agreement withrespect to the specific failed CPI LaserCheck System by providing at least ten (10) daysprior written notice to the other party hereto. In the event of such termination due to failure to install or function,provided that such failure is not a result of, or is not attributable to Clientor Client’s equipment, environment or consumables, Fidelity shall beresponsible for the deinstallation, packing and return freight of the CPILaserCheck System to Fidelity’s designated facility.  Otherwise, Client shall be responsible forthe deinstallation, packing and return freight of the applicable CPI LaserCheckSystem.

 

**6.2        Additional Installation Services.**  IfClient desires on site installation assistance, Fidelity will make commerciallyreasonable efforts to provide a technician at Fidelity’s then published dailyrate for such services, plus any travel and lodging expenses as incurredsubject, however, to the availability of Fidelity personnel.  Installation services can also be performedby the maintenance vendor on a time and materials basis.

 

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*** Confidential materialredacted and submitted separately to the Commission

 

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**7.       LIMITATION OF LIABILITY.**

 

**7.1       **IN THE EVENT FIDELITY SHALL MATERIALLY FAILTO PERFORM ITS OBLIGATIONS IN ACCORDANCE WITH THE TERMS OF THIS ADDENDUMAS RENDERED IN THE JUDGMENT AND AWARED BY A COURT OF COMPETENT JURISDICTION,FIDELITY’S LIABILITY ON ANY CLAIM OR LOSS ARISING OUT OF, OR CONNECTED WITHPRODUCTS OF SERVICES FURNISHED HEREUNDER, SHALL IN ALL CASES BE LIMITED SOLELYTO CORRECTION OF NONCONFORMITIES WHICH DO NOT SUBSTANTIALLY CONFORM WITHTHE AGREED DESCRIPTION OF PRODUCTS OR SERVICES. IF FOR ANY REASON FIDELITY IS UNABLE OR FAILS TO CORRECTNONCONFORMITIES, FIDELITY’S LIABILITY FOR DAMAGES FOR SUCH FAILURE, WHETHER INCONTRACT OR TORT (INCLUDING FIDELITY’S OWN NEGLIGENCE), LAW OR EQUITY, SHALLNOT EXCEED THE AMOUNTS PAID BY CLIENT FOR THAT PORTION OF THE PRODUCTS ORSERVICES WHICH FAIL TO CONFORM. NONWITHSTANDING THE FOREGOING, FOR PRODUCTS OR SERVICES OR OTHERWISE,FIDELITY’S LIABILITY SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BYCLIENT, PROVIDED THAT IN EACH SUCH INSTANCE, FIDELITY’S LIABILITY SHALL NOTEXCEED THE LESSER OF I) THE AMOUNT OF THE ACTUAL DIRECT MONETARY LOSS SUFFEREDBY CLIENT OR II) THE AMOUNT PAID TO FIDELITY BY CLIENT FOR THE PRODUCTS ANDSERVICES FOR WHICH THE MATERIAL FAILURE OCCURRED.  FIDELITY’S AGGREGATE LIABILITY SHALL NOT, INANY EVENT, EXCEED THE TOTAL FEES PAID BY CLIENT TO FIDELITY UNDER THISADDENDUM.

 

7.2         FIDELITY SHALL NOT BERESPONSIBLE FOR ANY DAMAGES OR EXPENSES RESULTING FROM THE MODIFICATION,ALTERATION OR THE UNAUTHORIZED USE BY CLIENT, OF THE CPI LASERCHECK SOFTWARE ORCPI LASERCHECK SYSTEMS, OR FROM THE UNINTENDED AND UNFORESEEN RESULTS OBTAINEDBY CLIENT RESULTING FROM SUCH USE.

 

7.3         EVEN TO THE EXTENTCLIENT’S EXCLUSIVE REMEDIES FAIL OF THEIR ESSENTIAL PURPOSES, WHETHER OR NOTFIDELITY HAS BEEN ADVISED IN ADVANCE THAT SUCH DAMAGES MAY BE INCURRED, INNO EVENT WILL FIDELITY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL ORTHIRD PARTY DAMAGES OF ANY KIND INCLUDING, BUT NOT LIMITED TO LOST PROFITS,LOSS OF GOODWILL OR BUSINESS INTERRUPTION, ARISING OUT OF THIS ADDENDUM OR THEUSE OF ANY EQUIPMENT, SOFTWARE, DOCUMENTATION OF SERVICES PROVIDED UNDER THISADDENDUM.

 

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*** Confidential materialredacted and submitted separately to the Commission

 

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CONFIDENTIAL TREATMENT REQUESTED-REDACTED COPY

 

CONFIDENTIAL TREATMENT REQUESTED:  INFORMATION FOR WHICH CONFIDENTIAL TREATMENTHAS BEEN REQUESTED IS OMITTED AND NOTED WITH “***.” AN UNREDACTED VERSION OF THISDOCUMENT HAS BEEN SUBMITTED SEPARATELY TO THE SECURITES AND EXCHANGECOMMISSION.

 
| **CPI LASERCHECK SYSTEM** | **Schedule  1** |
|---------------------------|-----------------|

 

**SCHEDULE 1TOADDENDUM 2CPI LASERCHECK SYSTEM**

 

**To Agreement No.: 264-05MSchedule No.: 01**

 
| **ý  Initial Issue** | **o  Subsequent Issue** | **o Replacement Issue (amends Schedule No. :         )** |
|---------------------------|-------------------------|-------------------------------------------------------------------------------------------------------|

 

**Schedule Effective Date: May 10, 2005**

 

**PURPOSEOF ISSUANCE:  To document Client’s Orderfor the following CPI LaserCheck hardware and software.**

 
| **For  this Schedule 1, Client hereby elects to:** | **o** | **Lease  Equipment** | **ý** | **Purchase  Equipment** |
|----------------------------------------------------|-------|----------------------|------------|-------------------------|

 
| ** **                                             | ** ** | ** ** | ** ** | ** **     | ** ** | ** **   | ** ** | **Monthly**     | ** ** | **Annual**      | ** ** |
|--------------------------------------------------------|------------|------------|------------|----------------|------------|--------------|------------|-----------------|------------|-----------------|------------|
| ** **                                             | ** ** | ** ** | ** ** | **Purchase**   | ** ** | **Extended** | ** ** | **Maintenance** | ** ** | **Hardware**    | ** ** |
| **Description**                                        | ** ** | **Qty**    | ** ** | **Price Each** | ** ** | **Price**    | ** ** | **and Support** | ** ** | **Maintenance** | ** ** |
|                                                   |       |       |       |           |       |         |       |            |       |            |       |
| **A. PC  HARDWARE**                                    |       |       |       |           |       |         |       |            |       |            |       |
| CPI LaserCheck  PC (See F.1 below for configuration)*  |       | 1          | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| S5500 15inch 2T  Monitor US                            |       | 1          | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| Zip 250Mb ATAPI  Int Drive                             |       | 1          | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| Zip 250Mb single  for PC                               |       | 1          | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| PC Anywhere  v11.0                                     |       | 1          | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| Intl USR Fax modem 56K PCI v92                         |       | 1          | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| 6 socket  SurgeMaster w / 4ft cord                     |       | 1          | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| **Total  PC Configuration**                            |       | 7          | ** ** | ** **     | ** ** | *******      | ** ** | *******         | ** ** | *******         | ** ** |
| ** **                                             | ** ** | ** ** | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| **B. CPI  LASERCHECK SYSTEM SOFTWARE**                 | ** ** | ** ** | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| CPI LaserCheck  Application Software Version 2.2 (CPS) |       | 1          | ** ** | ** **     | ** ** | ** **   | ** ** | *******         | ** ** | ** **      | ** ** |
| IP 795                                                 |       | 1          | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| IP 1347  Disbursement Check Voucher Option             |       | 1          | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| **Total  CPI LaserCheck System Software**              |       | 3          | ** ** | ** **     | ** ** | *******      | ** ** | *******         | ** ** | *******         | ** ** |
| ** **                                             | ** ** | ** ** | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| **C. PRINTER  HARDWARE**                               | ** ** | ** ** | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| Kyocera MICR Laser Printer (FS-3718 - 18PPM)           |       | 1          | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | *******         | ** ** |
| 500 Sheet Feeder  with Path Adapter                    |       | 1          | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | *******         | ** ** |
| Parallel Printer  Cable                                |       | 1          | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| MICR toner  cartridge                                  |       | 1          | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| **Total  Printer Hardware**                            |       | 4          | ** ** | ** **     | ** ** | *******      | ** ** | *******         | ** ** | *******         | ** ** |
| ** **                                             | ** ** | ** ** | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| **D.  OPTIONAL EQUIPMENT & SERVICES**              | ** ** | ** ** | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| Cartridge for  Signature/Logo (SC-2)                   |       | 1          | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| Digitizing fee  for company logo                       |       | 1          | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| Digitizing fee  for each signature                     |       | 1          | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| **Total  Optional Equipment & Services**           |       | 3          | ** ** | ** **     | ** ** | ** **   | ** ** | *******         | ** ** | *******         | ** ** |
| ** **                                             | ** ** | ** ** | ** ** | ** **     | ** ** | ** **   | ** ** | ** **      | ** ** | ** **      | ** ** |
| **TOTAL**                                              | ** ** | **17**     | ** ** | ** **     | ** ** | *******      | ******     | *******         | ** ** | *******         | ** ** |

 

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*    A loaner PC will be provided to Client atno charge until version CPI LaserCheck 3.0 is released, at which time, the newversion of CPI LaserCheck will be loaded on a PC of like size and configurationas detailed above and shipped to Client at no extra charge.  Client, at its expense,  will ship the loaner PC back to Fidelity oncenew PC is installed.

 

*** Confidential material redacted and submittedseparately to the Commission

 

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**  Hardware and Software Purchase Price isincluded in the Conversion Statement of Work.

 

**E.  OTHERTERMS AND CONDITIONS**

 

**E.1**    PCConfiguration is as follows:  CPILaserCheck Workstation EVO D530 CMT P4/2.6Ghz, 512Mb, 80Gb CDRW WXPP

 

**E.2**   Depending upon the configuration of Client’sCPI LaserCheck System, connectivity to Fidelity through Client’s EDI connectionmay result in additional charges.  Suchcharges are set forth in the then current Optional Processing and SupportServices Rates schedule.  A copy of thecurrent schedule is attached hereto for reference.

 

**E.3**   Purchase Price does not includeinstallation, tax, insurance or shipping.

 

**E.4**   Installation is charged at an hourly rate of***, with a 1.5 day minimum, plus travel, lodging and out-of-pocket expenses.

 

**E.5**    The required IP 795 and any optional IPsfor the Fidelity LaserCheck System are governed by the terms and conditions ofthe****Master Agreement executedbetween Client and Fidelity.

 

**E.6**    Anannual maintenance contract for the printer(s) set forth in Section C. above,shall be required following the initial one (1) year warranty period.  On-site maintenance and support shall beprovided by Fidelity’s agent, which Client may request through Fidelity’sPowerCell.

 

**E.7**    Target Ship Date is estimated to beapproximately thirty (30) days after Fidelity’s receipt of this executedSchedule 1.

 

**E.8**    Pricingincluded in this Schedule 1 are valid for sixty (60) days from the ScheduleEffective Date.

 

 

This Schedule 1 is incorporated into and made a part of Addendum****2 to Master Agreement #264-05M betweenFidelity and Client.

 

**IN WITNESS WHEREOF**,the parties to the aforementioned Agreement hereby execute this Schedule 1.

 
| **AMERICAN  MORTGAGE NETWORK, INC.** | ** ** | **FIDELITY  INFORMATION SERVICES, INC.** |
|--------------------------------------|------------|------------------------------------------|
|                                 |       |                                     |
| By.                                  |       | By.                                      |
|                                 |       |                                     |   |   |
| Signature                            | Date       |                                     | Signature | Date |
|                                 |       |                                     |
|                                 |       |                                     |   |   |
| Printed or Typed  Name               |       | Printed or Typed  Name                   |
|                                 |       |                                     | As its |   |
| Title                                |       | Title                                    |
| **“Client”**               | ** ** | **“Fidelity”**                 |
|                                      |            |                                          |  |  |  |  |

 

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