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


 


In
consideration of the mutual benefits and obligations set forth herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Fidelity and Client hereby agree as follows:


 


1.       DEFINITIONS


 


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


 


1.1                         “AAA”
means the American Arbitration Association.


 


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


 


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


 


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


 










*** Confidential
material redacted and submitted separately to the Commission


 


1





















 


1.5        “Basic
Professional Services” means initial environmental set up, rule configuration
and basic Installation, implementation, consultation and training in connection
with the Products and Services.


 


1.6        “Client’s
Customer” means a third party which has a contractual relationship with
Client whereby Client performs Subservicing for such third party.


 


1.7        “Client
Confidential Information” means all information of a non-public nature
disclosed by Client to Fidelity during the term of this Agreement.


 


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


 


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


 


1.10      “Defect
Related” means a deficiency or a problem directly related to a deficiency
in the following programs or equipment, whereby such program or equipment does
not perform as designed, tested, and documented in the required environment: (a) Passport,
Director software programs (Fidelity generated code); (b) Passport or
Director server hardware at Fidelity’s facilities; (c) Fidelity owned
network components (lines, routers, modems); or (d) Fidelity defined
configuration settings or parameters.


 


1.11      “Dependent
Addendum” means an Addendum which has, as a prerequisite for and/or
condition of, the continuation of its force and effect, any other Addendum
hereunder for Fidelity Products and Services as specifically required in the
applicable Dependent Addendum.


 


1.12      “Derivative
Work(s)” means a copyrightable creation borne of and based on any pre-existing
computer code, programs, system, report, Documentation, or any other existing
item owned or developed by a party.


 


1.13      “Director” means
a browser-enabled, thin client product consisting of a series of computer
workstation and server based programs delivered through the Portal that has
been developed or licensed by Fidelity to create a graphical extension to the
MSP System and provide a common platform for distributed systems integration
and directed workflow.


 


1.14      “Dispute
Notice” shall have the meaning set forth in Section 18.3 (Binding
Arbitration) hereof.


 










*** Confidential material
redacted and submitted separately to the Commission


 


2





















 


1.15      “Disputing
Party” shall have the meaning set forth in Section 18.3 (Binding
Arbitration) hereof.


 


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


 


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


 


1.18      “FDIC” means
the Federal Deposit Insurance Corporation.


 


1.19      “Fidelity Confidential
Information” means any and all Products and Services including the
Documentation, the Software, any nonpublic information which pertains to
Fidelity’s processes or business operations, and any other information which
Fidelity identifies to Client as confidential or proprietary, which are the
sole and exclusive property of Fidelity or are licensed by Fidelity from third
parties and constitute the valuable, proprietary products and trade secrets of
Fidelity or such third parties, as applicable, embodying substantial creative
efforts, ideas and expressions and are copyrighted under United States law and
treaty provision.


 


1.20      “Fidelity
Optional Processing and Support Services Rates Schedule” means that certain
Schedule attached hereto as Exhibit A.


 


1.21      “FM Cycle”
means a nightly batch cycle within the MSP System resulting from end of day and
go book transactions, as defined in the Documentation.  The FM Cycle serves as a driver module that
calls other programs to perform various functions, which may include but are
not limited to, processing data, performing calculations, and printing reports.


 


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


 


1.23      “Host” means
any computer(s) utilized by Fidelity as a host provider of system functionality
for Products and Services.


 


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


 


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


 










*** Confidential material
redacted and submitted separately to the Commission


 


3





















 


1.26      “MSP” means
Fidelity’s mortgage servicing package.


 


1.27      “MSP System” means
Fidelity’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” means
the Office of Thrift Supervision.


 


1.30                  “Passport”
means a browser-enabled, thin client product consisting of a series of
computer workstation and server based programs delivered through the Portal
that have been developed or licensed by Fidelity to serve as a repository of
data designed to enhance Fidelity’s client’s business analysis and decision
productivity.


 


1.31                  “Paternal
Addendum” means an Addendum which is a prerequisite for the existence and
continuation of any other Addendum hereof.


 


1.32      “Portal” means
Fidelity’s browser-enabled technology to support the accessibility and delivery
of various Products and Services.


 


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


 


1.34      “Principal
Balance Loan(s)” means i) any loan on the MSP System which has an
outstanding balance showing with an active loan status; ii) any equity line of
credit loan which has a principal balance; iii) any equity line of credit loan
which has a zero balance at the end of a billing cycle due to advances and
payments being received which result in a zero balance; or iv) any equity line
of credit loan which has a zero balance because no drafts have been made
against 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 limited
to, escrow, customer service, investor accounting, and default functions
utilizing the MSP System to input, update, and track loan data by executing a
minimum of nineteen (19) FM Cycles per month.


 


1.36      “Products and
Services” means individually or collectively, the hardware, software, communications,
systems, and services provided by Fidelity and made available to Client
hereunder.


 


1.37      “Releases” means
maintenance releases of the software components of particular Products and
Services, other than MSP, which do not contain additional functionality.


 










*** Confidential material
redacted and submitted separately to the Commission


 


4





















 


1.38      “Schedule” means
a supplemental statement of details appended to an Addendum issued pursuant to
this Agreement.  Schedules may include
but are not limited to, information concerning the number of authorized User
Access Rights for Products and Services, costs and/or fees associated with
Products and Services, Authorized Locations, effective dates, and anniversary
dates.


 


1.39      “Seat
License(s)” means an individual workstation version of a specified Product
license accessible through a single user sign on ID at an Authorized Location
pursuant to the terms of this Agreement.


 


1.40      “Service
Bureau Processing” means the process by which Client provides data
processing services to a third party and grants to such third party and its
employees use or access (beyond inquiry only access) to all or any part of the
MSP System or any or all of the Products and Services provided hereunder for
the purpose of performing loan servicing functions and related mortgage loan
activities.


 


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


 


1.42      “Software” means
the series of computer programs developed by Fidelity and currently employed to
perform electronic data processing services for its clients.


 


1.43      “SOW” means
statements of work entered into by and between Fidelity and Client in
connection with SOW Services.


 


1.44      “SOW Services”
means services which may include but are not limited to, consulting, custom
programming, data conversion, IP installation, project management, product
implementation, program modifications, and training, that are listed in one or
more SOW(s) executed by Client and Fidelity, which SOW(s) are incorporated into
and form a part of this Agreement.


 


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


 


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


 


1.47      “Support” means
Fidelity provided standard support consisting of telephone or email support for
issues pertaining to the functionality of the Products and Services as they
relate to the intended design including all Defect Related issues.


 










*** Confidential material
redacted and submitted separately to the Commission


 


5





















 


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


 


1.49      “Third Party
Review” means the annual Statement on Auditing Standards No. 70 review
of Fidelity’s internal procedures and report prepared by its Certified Public
Accountants.


 


1.50      “Transferred
Third Party Software” means any third party software for which Fidelity has
transferred to Client the applicable licenses and support.


 


1.51      “User Access
Right” means a limited right to access and use Products and Services
through a single user sign on ID at an Authorized Location pursuant to the
terms of this Agreement.


 


1.52      “Versions” means
updates to the software components of particular Products and Services, other
than MSP containing additional functionality.


 


2.                    TERMS AND CONDITIONS FOR PRODUCTS AND SERVICES


 


2.1                         General
Terms and Conditions for Products and Services.  This Agreement sets forth the terms and
conditions for the provisions by Fidelity to Client and Client Affiliates of
the Products and Services during the Term, as more fully described in the
Addenda attached hereto.  Fidelity will
provide the Products and Services on its own and/or through one or more
Fidelity Affiliates and/or subcontractors.


 


2.2                         Addenda.  Each Addendum hereto is incorporated into
and forms a part of this Agreement.  All
applicable terms, conditions, responsibilities and delivery schedules which are
unique to particular Products or Services (as opposed to those which apply
generally to all Products and Services and which are set forth elsewhere in
this Agreement and in the other exhibits attached hereto) are identified in the
Addenda.  The applicable Products and
Services specific terms, conditions, responsibilities and delivery schedules
shall govern the provision of such Products and Services.  Any new terms, conditions, responsibilities
or delivery schedules which may be specifically applicable to particular
Products 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 this
Agreement as an amendment.  Such action
shall not constitute a modification or change of any provision of the Agreement
or of any other provision of any other Addendum, unless expressly stated in
such written agreement.  Unless otherwise
agreed to in writing by the parties hereunder, the Products and Services to be
rendered by Fidelity to Client are limited to those Products and Services which
are described in the Agreement and the Addenda. 



 


3.                    TERM OF AGREEMENT


 


3.1                         Original
Term.  This Agreement shall be
effective 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’s
loans on Fidelity’s MSP System (the “Original Term”).  Fidelity and


 










*** Confidential material
redacted and submitted separately to the Commission


 


6





















 


Client
agree to promptly confirm to each other in writing the date on which conversion
was completed and production commenced on the MSP System to clarify the
Original Term.


 


3.2                         Extended
Term.  In the event Client and
Fidelity fail to execute a renewal of this Agreement at least sixty (60) days
prior to the expiration of the Original Term, this Agreement shall
automatically renew for an additional one (1) year extended term (the “Extended
Term”) 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 the
percent increase in the CPI-U Index between the annual averages of the most
recently published twelve (12) month period and the immediately preceding
twelve (12) month period, provided, however, in no event shall the percentage
increase be less than three percent (3%) or greater than seven percent (7%).  Unless agreed by Client and Fidelity to the
contrary, 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 for
which Client has executed an Addendum shall be set forth in the applicable
Addendum or a Schedule attached thereto. 
Client shall pay Fidelity for SOW Services according to a schedule contained
in the applicable SOW or, if no schedule is provided, monthly as SOW
Services are performed and invoiced by Fidelity.  In addition, from time to time, Client may
elect 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 other
optional or usage based services will be billed to Client in accordance with
Fidelity’ Optional Processing and Support Services Billing Rates Schedule, a
copy of which has been provided to Client. 
Fidelity’s Optional Processing and Support Services Billing Rates Schedule may
be modified upon thirty (30) days written notice to Client.


 


4.2                         Invoicing
and Payment.  All fees due
hereunder shall be paid in U.S. Dollars and shall be due to Fidelity within
thirty (30) days of the date of the invoice. 
Client shall pay an interest charge equal to the lesser of the prime
rate (as published in the Wall Street Journal) plus two percent (2%) per annum
or the highest rate allowed by law payable per month, or portion thereof, on
the unpaid balance of any amounts which are not paid in full when due
(including any amount under dispute as discussed below); provided however, that
in no event shall such interest charges exceed the maximum interest rate
allowed by law.  All payments due to
Fidelity hereunder shall, unless otherwise indicated, be mailed to Fidelity at
its 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 the
dispute.  Such disputed amounts shall
then be subject to the Informal Dispute Resolution provisions of Section 18.1.  All non-disputed items within the same
invoice remain due and payable as stated above.


 


4.3                         Taxes.  All charges and fees to be paid by Client
under this Agreement are exclusive of any applicable withholding, sales, use,
value added, excise, services or other tax which may be assessed on the
provision 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,


 










*** Confidential material
redacted and submitted separately to the Commission


 


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services or other tax is
assessed on the provision of any Products and Services provided to Client under
this Agreement, Client will pay directly, reimburse or indemnify Fidelity for
such taxes as well as any applicable interest, penalties and other Fidelity
fees and expenses.  Client shall, upon
request by Fidelity, pay the same either to Fidelity or to the appropriate
taxing authority at any time during or after the termination of this Agreement.  The parties will cooperate with each other in
determining the extent to which any tax is due and owing under the
circumstances, and shall provide and make available to each other any
withholding tax certificates, and other exemption certificates or information
reasonably requested by either party.


 


5.       OWNERSHIP,
CONFIDENTIALITY AND NON-DISCLOSURE


 


5.1                         Fidelity
Confidential Information.  Client
acknowledges that the Fidelity Confidential Information is the sole and
exclusive property of Fidelity.  Any
writing or work of authorship, regardless of medium, created or developed by
Fidelity, Client or any third party in connection with the Products and
Services under this Agreement and any contribution by Client or its employees
to the enhancement or modification of the Products and Services provided
hereunder, including all copyright interests therein, shall be not be
considered “works for hire”, but
shall be owned solely and exclusively by Fidelity.  To the extent that any such works may be
considered works for hire under applicable law, Client agrees to assign and,
upon their creation, automatically assigns to Fidelity the ownership of all
copyright interests therein including, but not limited to, all software,
information, Internet Services, programs and documentation without the
necessity of any further consideration to Client.


 


5.1.1  Limited Use and Access.  To the extent any of the
Products and Services hereunder require rights to access and use, and the
parties have executed the appropriate Addendum or SOW associated with such
Products and Services, Client is hereby granted a nontransferable,
non-assignable, nonexclusive right to access and use such Products and Services
for 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 the
applicable Addendum.  A right to access
and use Products and Services does not grant or assign to Client any legal or
equitable title or other right in Products and Services or any modifications of
such Products and Services.  Client will
utilize Fidelity Confidential Information only for data owned by Client, or
data to which servicing rights, as applicable, are owned by Client.  Client shall not provide, for profit or
otherwise, access to the Fidelity Confidential Information or any component
thereof to any Competitor.  Client will
observe confidentiality regarding the Fidelity Confidential Information
including, without limitation, agreeing not to disclose or otherwise permit any
other person or entity access to, in any manner, the Fidelity Confidential
Information, except that such disclosure or access shall, subject to the
following provisions and the provisions of Section 5.1.2, be permitted to
an employee of Client requiring such access in the course of employment, to a
regulatory agency, or to Client’s Customer (provided Client’s Customer is not a
Competitor of Fidelity) or as required by a court of competent jurisdiction.
Client must ensure that all such employees and Client’s Customers comply with
the confidentiality provisions of this Agreement contained herein.  Client may not make any copies, or similar
versions of the Fidelity Confidential Information without the prior written
consent of Fidelity.  Except as provided
for in this Agreement, the Fidelity


 










*** Confidential material
redacted and submitted separately to the Commission


 


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Confidential Information
may not be subleased, sublicensed, franchised, sold, offered for sale,
outsourced, used to operate as a service bureau, encumbered or otherwise
disposed of by Client, either voluntarily or by operation of law, without the
prior written consent of Fidelity.


 


5.1.2  Subservicing.  Client may perform Subservicing; provided,
however: a) Client hereby represents and warrants that access by Client’s
Customers to Fidelity’s Confidential Information, the MSP System, Software
and/or the Products and Services will be limited to inquiry-only; b) Client
agrees that Client remains responsible for and shall pay to Fidelity all fees
and charges arising from, associated with or incurred as a result of
Subservicing; (c) Client’s Customers may not utilize any support provided
hereunder including, but not limited to, telephone assistance from PowerCell; (d) Client
will include in any agreements with Client’s Customers for Subservicing
limitation of liability, indemnity and confidentiality provisions substantially
the same as those set forth herein; (e) Fidelity’s liability for actual
direct damages incurred by Client for claims related to Subservicing shall be,
in addition to the provisions of Section 12 below, further limited to the
lesser of the amount of the actual direct monetary loss suffered by Client or
the amount paid to Fidelity for such loans which are the subject of Subservicing
based upon the lowest per loan price charged to Client over the six (6) months
preceding the date of the claim; and (f) Client’s Customers shall not be
third 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 Information
to operate as a service bureau, or translate, reverse assemble, reverse
engineer, reverse compile, disassemble or analyze or otherwise examine for
purposes of reverse engineering the Software or any other Fidelity Confidential
Information provided hereunder. Client acknowledges that any modification,
adaptation, translation, or derivative work by Fidelity (or by Client in
violation of this provision) and based on the Fidelity Confidential Information
shall be trade secrets and are the exclusive, confidential, and proprietary
property of Fidelity, and Client hereby transfers and assigns any and all
rights in and to any such modification, adaptation, translation, or derivative
work to Fidelity, including any copyrights thereto.  Client acknowledges that Fidelity’s licensors
shall be third party beneficiaries for the purpose of protecting their
respective property provided under this Agreement.  Client shall provide prompt written notice to
Fidelity if Client knows of, or suspects, any such unauthorized access to, or
use of the Fidelity Confidential Information. 
Client agrees not to remove any copyright, trademark or other
intellectual property notices or property tags from the Fidelity Confidential
Information.


 


5.1.4  Termination of Access.  Upon termination of this Agreement, and
expiration of any post termination assistance period, or any Addendum or SOW
hereto, Client’s access to the respective Fidelity Confidential Information
shall end immediately and Client agrees to return such Fidelity Confidential
Information 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 writing
that it has returned or destroyed the Fidelity Confidential Information.


 










*** Confidential material
redacted and submitted separately to the Commission


 


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5.2                         Client
Confidential Information.  All Client
Confidential Information shall be used by Fidelity for the purposes of
administering and otherwise implementing the terms of this Agreement and protected
by Fidelity in accordance with the terms of this Section.  Client’s Confidential Information shall also
include all “non-public personal information” as defined in Title V of the GLB
Act, as the same may be amended from time to time, that Fidelity received from
or 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 being
stored or processed by Fidelity is and shall remain the property of Client and
will take all such reasonable measures as may be necessary to protect the
confidentiality of Client Confidential Information which comes into Fidelity’
possession, if any.  Fidelity further
agrees to observe confidentiality regarding the Client Confidential Information,
including without limitation agreeing not to disclose or otherwise permit any
other person or entity access to, in any manner, Client Confidential
Information or any part thereof without Client’s prior written consent, except
that such disclosure or access shall be permitted to an employee of Fidelity
requiring such access in the course of employment.  Fidelity shall not disclose or use Client
Confidential Information for any purposes other than to carry out the purposes
for which Client disclosed the data to Fidelity, or as permitted by this
Agreement.  Notwithstanding the
foregoing, Client consents to the use by Fidelity of statistical data generated
by Client Confidential Information provided that such use shall not result in
the disclosure of Client Confidential Information which will directly or
indirectly identify Client or any specific individual.  At the request of Client, and upon payment to
Fidelity of all monies due under the terms of this Agreement, Fidelity shall
transfer any Client Confidential Information held by Fidelity to Client.


 


5.3                         Security
Standards.  To the extent
Fidelity is in possession of any Client Confidential Information in its
provision of a Product or Service hereunder, Fidelity has implemented certain
security measures with respect to such Product or Service designed to safeguard
Client’s Confidential Information. 
Fidelity will use commercially reasonable efforts to adhere to such
additional security measures requested by Client with respect to Client’s Confidential
Information as may be reasonably requested by Client.  Client will reimburse Fidelity if
implementation of and/or adherence to such additional security measures
increases Fidelity’s costs of operation.


 


5.4                         Confidentiality
of this Agreement.  Client and
Fidelity agree that the terms and conditions of this Agreement and the related
negotiations between Client and Fidelity with respect to this Agreement shall
be treated as confidential pursuant to this Section 5.  The parties also acknowledge that this
Agreement contains confidential information and agree to limit distribution of
this Agreement to those individuals with a need to know the contents of this
Agreement.  In no event may this
Agreement be reproduced or copies shown to any third parties (exclusive of
contractors, subcontractors and agents who have a need for it) without the prior
written consent of the other party, except as may be necessary by reason of
legal, accounting, tax or regulatory requirements, in which event Client and
Fidelity agree to exercise reasonable diligence in limiting such disclosure to
the minimum necessary under the particular circumstances.  The parties further agree to seek commercial
confidential status for this Agreement with any regulatory commission with
which this Agreement must be filed, to the extent such a designation can be
secured.


 










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redacted and submitted separately to the Commission


 


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In
addition, each party agrees to give notice to the other party of any demands to
disclose or provide the confidential information received from the other or any
third party under lawful process prior to disclosing or furnishing confidential
information, and agrees to cooperate in seeking reasonable protective
arrangements requested by the other party.


 


5.5                         Exceptions
to Confidentiality. The obligations of this Section 5 shall not
apply to any information, whether Fidelity Confidential Information, Client
Confidential Information or otherwise, which:


 


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


b)    is
developed by the recipient hereunder independently of any confidential
information of the disclosing party hereunder or was in the recipient’s lawful
possession at the time of disclosure hereunder as shown by written records; or


c)     is disclosed to the recipient without
obligation of confidentiality by a third party with the right to do so; or


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


 


5.6                         Intellectual
Property Notices.  Client agrees
not to remove any copyright, trademark or other intellectual property notices
or property tags from Products and Services provided hereunder.  Copyright notices for Internet Services
provided hereunder may contain a hyperlink to Fidelity’ web site.


 


6.       HARDWARE, SOFTWARE, COMMUNICATIONS AND BASIC
PROFESSIONAL SERVICES


 


6.1        Client
Hardware, Software and Communications. 
Client shall be responsible, at its own expense, for providing all Third
Party Products, including but not limited to, Third Party Products which are
utilized as a part of Client’s operating and/or network environment, as
identified by Fidelity in the specific Addenda as being required to access or
effectively utilize the Products and Services provided thereunder.  Fidelity will make available to Client the
specification requirements for Client’s Third Party Products to be compatible
with the Products and Services and Client assumes total responsibility for
ensuring such compatibility. Fidelity will provide Client with notice of any
upgrades to Client’s hardware or software required to accommodate new Versions,
Releases, or changes in any Products and Services.  Client shall comply with such upgrade
requirements within ninety (90) days from such notice.  Client shall be


 










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redacted and submitted separately to the Commission


 


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responsible
for providing maintenance and paying for any required upgrades on all Client
owned, leased or licensed hardware and software. In addition, Client shall be
responsible for continued maintenance, support and timely installation of
enhancements and upgrades to the Transferred Third Party Software as deemed
necessary by Fidelity to ensure compatibility with and provide optimum
functionality of the Products and Services. 
Client shall also be responsible for providing the communications and
LAN interfaces to Client’s network required to support the use and functions of
the Products and Services as specifically identified in any applicable SOW, as
well as any hardware, software and communications upgrades necessary for
increased performance based on additional user requirements.  Any problems or claims with these Third Party
Products or Transferred Third Party Software shall be the responsibility of the
manufacturer of such products, and Client shall seek recourse only against such
manufacturer.


 


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


 


6.3                         Communication
Devices.  Communication devices
shall 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 such
devices located in Client’s office(s). Should Client desire to terminate the
communication devices, Client shall give Fidelity not less than ninety (90)
days notice.  Fidelity shall charge
Client and Client shall pay for the communication devices located at Client’s
site upon receipt of termination notice by one party to the other, or upon
immediate termination by Fidelity pursuant to the terms of this Agreement.  Upon termination, and satisfaction of all
contractual obligations by Client under this Agreement, Fidelity will refund to
Client the amount paid for the communication devices provided Client has
returned the devices to Fidelity in good working condition, excepting normal
wear and tear.


 


6.4                         Basic
Professional Services.  In order
for Client to obtain access to certain Products and Services, Client shall
contract with Fidelity for Basic Professional Services.  Such Basic Professional Services relate to
use of the applicable Product and Service in conjunction with the components of
the MSP System which are certified for use with the applicable Product and
Service as of the date such Basic Professional Services are required.  Basic Professional Services and the
associated fees shall be set forth in and further identified in one or more SOW
to be mutually developed by the parties.


 










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7.       PROGRAM
MODIFICATIONS


 


Client
may request modifications to the report contents or Software by submitting to
Fidelity a program modification request form defining the desired change.  Upon receipt of a program modification
request from Client, Fidelity will respond to Client with a feasibility study
within thirty (30) days.  The feasibility
study will contain a high level cost and resources estimate broken down by development
methodology phases.  Upon Client’s
approval of the feasibility estimates, Fidelity and Client shall work in good
faith to mutually agree on a SOW fully describing the final product and the
final fixed price.  The SOW will include
the cost of the programming definition, programming, testing, installation and
documentation.


 


8.                    ISSUANCE OF
VERSIONS AND RELEASES


 


8.1                         Designation
of Versions and Releases.  Updates
to the software component of Products and Services, other than MSP, will be
stated as Versions or Releases and will be identified by numeric
designations.  Upon receiving access to the
software components of particular Products and Services, the level of such
software will be designated numerically where the first number identifies the
Version level and the second number identifies the Release level of that
Version.


 


Example:  Version 4.2 designates Version 4 with Release
2.


 


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


 


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


 


8.4                         Support of Versions and
Releases.  Client acknowledges
that as new Versions and/or Releases are made available, Fidelity will grant
access to and support only the most recent Version and Release.


 


9.       SUPPORT


 


9.1                         Support.  In accordance with the specifications set
forth in the Documentation, Fidelity will provide Support.  PowerCell will take support requests on a
wide range of problem situations, capturing descriptive data, and offering
resolution assistance for routine problems. 
PowerCell, will also serve as the escalation point for problems relating
to sublicensed third party software provided as part of a Product or Service.


 










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9.2                         Issue
Management.  Fidelity, via
PowerCell, shall respond to Client within the following timeframes on reported
issues:


 


9.2.1           Severity
Level 1 Issues.  Severity Level 1
issues are high impact problems reported by Client where a critical system or
major component is down or unavailable with no workaround available.  Fidelity will acknowledge receipt of Severity
Level 1 issues within four (4) hours after being reported to or detected
by 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, in
any event, no less frequently than every four (4) hours.


 


9.2.2           Severity
Level 2 Issues.  Severity Level 2
issues are moderate to high impact problems that must be resolved; however a
workaround is available until resolution is achieved.  Fidelity will acknowledge receipt of Severity
Level 2 issues within eight (8) business hours after being reported to or
detected 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, in
any event, no less frequently than every eight (8) business hours.


 


10.    DEFAULT


 


In the event either
party: (a) defaults under the terms of this Agreement which causes a
material and adverse effect on the non-defaulting party, and fails to cure the
default within thirty (30) days after written notice of such default; or (b) files
a voluntary petition under any bankruptcy law, becomes insolvent, makes an
assignment for the benefit of its creditors, or has involuntary bankruptcy proceedings
commenced against it or a receiver appointed for all or substantially all of
its assets and such involuntary petition and receiver are not dismissed within
ninety (90) days of the filing or appointment, the non-defaulting party may
then immediately terminate the Addendum(s) relating to the default and pursue
subject to Section 12 (Limitation of Liability), any and all other rights
in law or equity that the non-defaulting party may have, including but not
limited to, invoking the provisions of Section 18 (Conflict Resolution).


 


11.    TERMINATION


 


11.1                  Termination
for Convenience.  Client may
terminate this Agreement, or any Addendum hereto, without cause by providing
one-hundred eighty (180) days prior written notice to Fidelity. In the event
such early termination by Client includes termination of the MSP Addendum,
whether the required notice is provided or not, Client shall, in addition to
all other monies due and payable to Fidelity, pay as liquidated damages a
contract commitment amount which shall be calculated as follows: a) the Minimum
Monthly Principal Balance Loan Billing Requirement as of the date of
termination shall be multiplied by the then applicable monthly rate per loan to
determine the monthly minimum Basic Processing Charges; and b) the monthly
minimum Basic Processing Charges shall then be multiplied by the number of
months remaining in the Original Term or then current Extended Term after the
date of termination.  The contract
commitment amount can be summarized as follows:


 










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(Minimum
Monthly Principal Balance Loan Billing Volume Requirement on the date of
termination * monthly rate per loan on the date of termination) * months
remaining in Original or Extended Term after termination date.


 


The parties acknowledge
and agree that damages resulting from a claim under this section are not
readily ascertainable at this time, and the above amount of liquidated damages
are reasonable under the circumstances.


 


11.2      Reconfiguration
of Client’s Network.  Upon
termination of this Agreement, or any Addendum or SOW hereunder, Client shall
pay all costs, including but not necessarily limited to, charges resulting from
required reconfiguration of Client’s network for any reason and at any time,
any applicable data center charges, travel, living, and out of pocket expenses
of Fidelity employees incurred with the deinstallation of any applicable
Products and Services.  All monies owing
under this Agreement shall be paid in full prior to any obligation by Fidelity
to assist Client with the reconfiguration of Client’s network.


 


11.3      Effect
of Termination on Addenda.  The termination of an Addendum pursuant to
this Section shall have no effect on any other Addendum that may be in
force and effect as part of this Agreement except to the extent that the terminated
Addendum is a Paternal Addendum.  In the
event that a Paternal Addendum is terminated pursuant to this Section, Fidelity
may, at its sole discretion, terminate any applicable Dependent Addendum.  Termination of a Dependent Addendum by
Fidelity will not relieve Client of any obligations, financial or otherwise
with respect to the Dependent Addendum. 
Obligations of confidentiality, indemnification, as well as any other
provisions intended to survive termination of this Agreement or any Addendum hereto,
shall upon termination of this Agreement or any Addendum hereto, continue in
full force and effect and shall be binding upon Client and Fidelity following
such termination.


 


12.    LIMITATION OF
LIABILITY


 


12.1                  DIRECT
DAMAGES.  EACH PARTY’S LIABILITY
ON ANY CLAIM OR LOSS ARISING OUT OF, OR CONNECTED WITH THIS AGREEMENT SHALL BE
LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY THE NONDEFAULTING PARTY,
PROVIDED THAT IN EACH SUCH INSTANCE, SUCH LIABILITY SHALL NOT EXCEED THE LESSER
OF (1) THE AMOUNT OF THE ACTUAL DIRECT MONETARY LOSS SUFFERED BY THE
NONDEFAULTING PARTY OR (2) THE AMOUNT PAID TO FIDELITY BY CLIENT OVER THE
SIX (6) MONTHS PRECEDING THE DATE OF THE CLAIM.  NEITHER PARTY’S AGGREGATE LIABILITY UNDER
THIS AGREEMENT SHALL, IN ANY EVENT, EXCEED THE TOTAL FEES PAID BY CLIENT TO
FIDELITY FOR THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM.  THE LIMITATIONS OF LIABILITY SET FORTH IN THIS
SECTION SHALL NOT APPLY TO:  (A) INDEMNITY
OBLIGATIONS SET FORTH IN SECTION 13 OF THIS AGREEMENT; OR (B) CLAIMS
FOR BREACH OF CONFIDENTIALITY AND NONDISCLOSURE SET FORTH IN SECTION 5 OF
THIS AGREEMENT.


 










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12.2                  UNAUTHORIZED
MODIFICATION OR USE OF SOFTWARE.  FIDELITY
SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR EXPENSES RESULTING FROM THE
MODIFICATION OR ALTERATION OF THE SOFTWARE OR SYSTEMS BY CLIENT, OR THE
UNAUTHORIZED USE OF THE SOFTWARE OR SYSTEMS, OR FROM THE UNINTENDED AND
UNFORESEEN RESULTS OBTAINED BY CLIENT RESULTING FROM SUCH USE.


 


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


 


12.4                  SCREEN
SCRAPING OR SIMILAR TECHNOLOGY.  EXCEPT WHERE AUTHORIZED BY FIDELITY IN
WRITING, FIDELITY SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY
DAMAGES OR EXPENSES ARISING FROM THE USE OF SCREEN SCRAPING OR SIMILAR
TECHNOLOGY BY CLIENT OR ANY THIRD PARTY, INCLUDING DATA AGGREGATORS, IN CONNECTION
WITH THE PRODUCTS AND SERVICES HEREUNDER, OR THE UNINTENDED AND UNFORESEEN
RESULTS OBTAINED FROM THE USE OF SUCH TECHNOLOGY.


 


13.    INDEMNIFICATION


 


13.1                  Personal
Injury and Property Damage.  Each
party agrees to indemnify, defend and hold harmless the other and its
Affiliates 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’s
fees) arising from or in connection with the damage, loss (including, without
limitation, theft) or destruction of any real property or tangible personal
property of any person or injury or death to any persons resulting from the
actions or inactions of any employee, agent or subcontractor of the
indemnifying party insofar as such damage arises out of or in the course of
fulfilling its obligations under this Agreement and to the extent such damage
is due to any negligence, misconduct, breach of statutory duty, or failure of
the indemnifying party, its employees, agents or subcontractors to exercise
their duties hereunder.  The foregoing
represents the sole and exclusive remedy of each party with regard to the
matter described in this Section 13.1.


 


13.2                  Infringement
of Fidelity Software.  Fidelity
agrees to defend at its own expense, any claim or action brought by any third
party 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 other
intellectual property right (including, but not limited to, misappropriation of
trade secrets) based upon the Software or the Products and Services furnished
hereunder.  Fidelity further agrees to
indemnify and hold each 


 










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Indemnified Person
harmless from and against any and all liabilities, losses, costs, direct
damages, and expenses (including, without limitation, reasonable attorneys’
fees) associated with any such claim or action incurred by such Indemnified
Person.  Fidelity shall have the sole
right to conduct and control the defense of any such claim or action and all
negotiations for its settlement or compromise, unless otherwise mutually agreed
to in writing between the parties hereto; provided, however, that no settlement
or compromise may include any acknowledgement or admission of liability by, or
the entry of any judgment against, such Indemnified Person without such
Indemnified Person’s consent, which consent shall not be unreasonably delayed,
conditioned or withheld.  Fidelity agrees
to give Client, and Client agrees to give Fidelity, as appropriate, prompt
written notice of any written threat, warning or notice of any such claim or
action against Fidelity or Client, as appropriate, or any other user or any
supplier of components of the Software covered hereunder, which could have an
adverse impact on Client’s use of same, provided Fidelity or Client, as
appropriate, knows of such claim or action. 
If in any such suit so defended, all or any part of the Software (or any
component thereof) is held to constitute an infringement or violation of any
other party’s intellectual property rights and is enjoined, or if in respect of
any claim of infringement, Fidelity deems it advisable to do so, Fidelity shall
at its sole option take one or more of the following actions at no additional
cost to Client: (a) procure the right to continue the use of the same
without material interruption for Client; (b) replace the same with
non-infringing software that meets the same specifications as the infringing
software; or (c) modify said Fidelity Software so as to be non-infringing,
provided that the Software as modified meets the same specifications as the
infringing software.  The foregoing
represents the sole and exclusive remedy of Client with regard to any of the
above infringements or alleged infringements.


 


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


 


14.    PERIODIC REPORTS


 


Fidelity, annually, will
provide to Client (and to the District Director of the OTS or OCC, as
applicable) at no charge one (1) copy, in such media as Fidelity shall
determine 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, Fidelity
National Financial (“FNF”).  As a
publicly-traded company, FNF discloses its financial information pursuant to
United States securities laws and regulations. 
That financial information includes the financial statement segment
reporting of Fidelity.  A copy of FNF’s
financial information is available at www.FNF.com or through the Securities and
Exchange Commission’s EDGAR website.  If
at any time in the future, Fidelity’s financial segment information is no
longer publicly available, Fidelity agrees to provide Client with such
information.


 










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15.    TIME OF PERFORMANCE AND INCREASED COSTS


 


Fidelity’s time of
performance with respect to Products and Services performed under this
Agreement shall be extended, to the extent reasonably necessary, in the event
that (a) Client fails to submit data or materials in the prescribed form
or in accordance with the requirements of this Agreement; (b) Client fails
to perform on a timely basis or provide adequate resources to perform the
tasks, functions or other responsibilities of Client described in this
Agreement, or any applicable Addendum or SOW hereunder; (c) there occurs a
Force Majeure condition as contemplated in Section 23 which prevents
timely performance; (d) Client or any governmental agency authorized to
regulated or supervise Client makes any special request which affects Fidelity’
normal performance schedule; (e) Client changes its priorities in a manner
that adversely impacts the performance of the Products and Services; or (f) any
Client software does not perform in accordance with its specifications and, in
each case, the same is necessary for Fidelity’ performance hereunder.  In addition, if any of the above events
occur, and such event will result in an increased cost to Fidelity for
providing the affected Products and Services, Fidelity shall so advise Client
and Client may either pay any and all of such increased costs to Fidelity or
relieve Fidelity of its responsibilities hereunder.


 


16.    ASSIGNMENT


 


Neither this Agreement,
nor any rights, duties, or obligations of Client hereunder may be assigned or
delegated in whole or in part by Client, whether by operation of law or
otherwise, without the prior written consent of Fidelity, which consent shall
not be unreasonably withheld. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and
permitted assigns.  Except where
otherwise expressly agreed upon in writing by Client and Fidelity, no
assignment or delegation, in whole or in part, shall release Client from any of
its obligations pursuant to this Agreement. 
Neither the terms of this Agreement nor any performance hereunder shall
be construed to create any rights in any person other than the parties to this
Agreement.


 


17.             INSURANCE


 


Fidelity will maintain
substantially the same insurance and insurance coverage as set forth below
throughout 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 will
notify each other within a commercially reasonable timeframe and as promptly as
possible regarding any conflicts arising out of this Agreement or in the
interpretation of the provisions of this Agreement, or any dispute as to
whether or not an event of default has occurred.  Fidelity and Client will attempt to resolve
all such conflicts as promptly as possible and in good faith before initiating
any causes of action arising out of this Agreement.


 


18.1.2         Escrow
Account. 
If any dispute remains
unresolved for any reason after thirty (30) days following the initial written
request for informal dispute resolution, or such other period of time as
mutually agreed to in writing, then following such period, with respect to
monetary disputes submitted to informal dispute resolution, Client shall place such
disputed payment amount into an independent third party interest bearing escrow
account within two (2) business days and then the parties may continue informal
dispute resolution efforts.  The
prevailing party (at either informal dispute resolution efforts or binding
arbitration) shall be entitled to the interest accrued on the monies placed in
escrow 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 or
dispute that has not been satisfactorily resolved following the notice and
resolution process described in Section 18.1.  To this end, each party agrees to escalate
any and all unresolved disputes or claims in accordance with Section 18.2
before taking further action.


 


18.2.2         Escalation of Unresolved Disputes.  If the negotiations conducted pursuant to Section 18.1 do not lead
to resolution of the underlying dispute or claim to the satisfaction of a party
involved in such negotiations, then either party may notify the other in
writing that he/she desires to elevate the dispute or claim to the President of
the mortgage division of Fidelity and the Chief Information Officer of Client
for resolution.  Upon receipt by the
other party of such written notice, the dispute or claim shall be so elevated
and the President of Fidelity, Inc. and the Chief Information Officer of
Client shall negotiate in good faith and each use its reasonable best efforts
to resolve such dispute or claim.  The
location, format, frequency, duration and conclusion of these elevated discussions
shall be left to the discretion of the representatives involved.  Upon agreement, the representatives may
utilize other alternative dispute resolution procedures to assist in the
negotiations.  Discussions and
correspondence among the representatives for purposes of these negotiations shall
be treated as confidential information developed for purposes of settlement,
exempt from discovery and production, which shall not be admissible in
subsequent proceedings between the parties. 
Documents identified in or provided with such communications, which are
not prepared for purposes of the negotiations, are not so exempted and may, if
otherwise admissible, be admitted in evidence in such subsequent proceeding.


 


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


 


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


 


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


 










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


 


18.3.3  Replacement of Arbitrator.  Should the arbitrator refuse or be unable to
proceed 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 the
parties, if any, or if there are no remaining proposed arbitrators who have not
been rejected, by repeating the process of selection described in Section 18.3.1
above.  If an arbitrator is replaced
pursuant to this Section 18.3.3, then a rehearing shall take place in
accordance with the provisions of this Section 18.3 and the rules of
AAA.


 


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


 


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


 


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


 


18.4                  Injunctive
Relief.  Notwithstanding the preceding dispute resolution procedures, if Fidelity or
Client makes a good faith determination that a breach of the terms of this
Agreement by the other party is such that the damages to such party resulting therefrom
will be so immediate or severe and incapable of adequate redress after the fact,
such party may seek a temporary restraining order and/or other immediate
injunctive relief.  If a party making
such a determination


 










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


 


19.             USE
OF NAME OR LOGO


 


Neither party may use the
name or logo of the other party for advertising, solicitation, promotion, or
press releases without the prior written consent of the other, which consent
will not be unreasonably withheld.  Notwithstanding
the preceding sentence, the Client agrees that Fidelity may publish a press
release 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 release
and Client will review and provide comments, if any, within two (2) business
days.  In the absence of any comments or
following incorporation of Client’s comments, Fidelity may publish such press release.  Nothing herein will prohibit either party
from issuing or causing the publication of any public announcement to the
extent that such action is required by applicable law or the rules of any
generally recognized stock exchange applicable to such party or its Affiliates,
in which case the party wishing to make such disclosure will, if practicable
under the circumstances, notify the other party of the proposed time of
issuance of such public announcement and consult with and allow the other party
reasonable time to comment.


 


20.    DISASTER RECOVERY


 


20.1                  Disaster Recovery Plan.  Fidelity will provide disaster recovery
services for its batch and online processing obligations to Client at a
dedicated facility which is equipped to handle Fidelity’s data center
processing in the event disaster recovery is needed.  Provided that Client is utilizing the
Fidelity telecommunication network, Fidelity agrees to provide data
communication access to the disaster recovery facility, including the necessary
communication devices (multiplexors, modems, channel extenders, etc.) to
facilitate such communication; otherwise, Client shall be responsible for
providing, 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 disaster
recovery, which are substantially equivalent to those, which are currently in
effect.


 


20.2                  Recovery Time.  Client acknowledges that disaster
recovery arrangements are designed to deal with circumstances, which are
expected to cause a substantial portion of the capabilities at Fidelity’s data
center 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 manner
necessary to ensure the restoration of batch and on-line processing service to
Client within seventy-two (72) hours of service interruption.


 


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


 










*** Confidential material
redacted and submitted separately to the Commission


 


22





















 


20.4                  Storage
Of Data Files.  Fidelity will
provide off-site storage for Client’s data files so that they can be
reconstructed in the event of loss or destruction of Client’s processing files
at Fidelity’s data center.  Such off-site
storage will be in accordance with the guidelines set forth in Fidelity’s Third
Party Review.


 


21.    REPRESENTATIONS AND WARRANTIES


 


21.1                  Client’s
Representations and Warranties.  Client
represents and warrants that:


 


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


 


(b) Client
has all requisite power and authority to execute, deliver and perform its obligations
under this Agreement and the same have been duly authorized by all necessary
actions of Client; and


 


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


 


21.2                  Fidelity’s
Representations and Warranties.  Fidelity
represents and warrants to Client that:


 


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


 


(b) Fidelity
has all requisite power and authority to execute, deliver and perform its obligations
under this Agreement and the same have been duly authorized by all necessary
actions of Fidelity;


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


 


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


 


(e) to
the best of its knowledge, the Software substantially conforms, in all material
respects, to the specifications set forth in the Documentation provided that
the Software is used by Client in accordance with the provisions of this
Agreement and any applicable Documentation.


 










*** Confidential material
redacted and submitted separately to the Commission


 


23





















 


21.3                  DISCLAIMER
OF WARRANTIES.  EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE HEREIN, FIDELITY
AND ITS LICENSORS MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO
THE PRODUCTS AND SERVICES, SOFTWARE AND SYSTEMS, INCLUDING BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY, OWNERSHIP OR FITNESS FOR A
PARTICULAR PURPOSE, AND SUCH IMPLIED WARRANTIES ARE HEREBY EXPRESSLY AND
SPECIFICALLY DISCLAIMED.  CLIENT ASSUMES
TOTAL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE AND SYSTEMS TO ACHIEVE
CLIENT’S INTENDED RESULTS, AND FOR THE USE AND RESULTS OBTAINED FROM THE
SOFTWARE AND/OR SERVICES.  FIDELITY DOES
NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE AND SYSTEMS WILL MEET
CLIENT’S REQUIREMENTS.


 


22.             NON-SOLICITATION OF EMPLOYEES


 


Neither
Client nor Fidelity will solicit the services of any employee of the other
party for the duration of this Agreement Term without first obtaining the
written consent of the other party. 
Notwithstanding the foregoing, Client and Fidelity understand and agree
that the following shall not constitute solicitation under this Section: (a) employment
solicitations directed to the general public at large, including without
limitation newspaper, radio, internet and television advertisements, and (b) an
employment solicitation directed by a party to an employee of the other party,
and any related communications, that occurs after a communication regarding
employment that was initiated by the employee.


 


23.    FORCE MAJEURE


 


Neither
Fidelity nor Client shall be responsible to the other for delays and/or
failures in performance resulting from acts beyond their control.  Such acts shall include but not be limited to
acts of God, strikes, lockouts, riots, acts of war, acts of terrorism, epidemics,
governmental regulations superimposed after the fact, fire, communication line
failures, power failures, earthquakes, or other disasters.  Notwithstanding the foregoing, takeovers
(hostile or otherwise), mergers, or acquisitions shall not be deemed force
majeure events.  In the event the ability
of either party to perform its obligations under this Agreement is prevented by
a Force Majeure event, passage of any law or any other similar force beyond the
control of that party for a period of more than thirty (30) days, then either
party may terminate this Agreement or any portion of this Agreement upon
written notice to the other party. In the event the affected party elects not
to terminate this Agreement, Client and Fidelity will negotiate a proration of
monthly charges based on the affected Products and Services and the period of
time by which performance was prevented.


 










*** Confidential material
redacted and submitted separately to the Commission


 


24





















 


24.    MODIFICATION OF AGREEMENT


 


Neither
this Agreement, nor any Addenda or SOWs hereunder may be modified or amended
except by a written document signed by the party against whom enforcement is
sought.


 


25.    WAIVER


 


The
waiver of a breach of, or a default under, any term or condition of this
Agreement shall not be construed as a continuing waiver of any such term or
condition, nor shall a waiver of a breach of, or a default under, any term or
condition be construed as a waiver of any breach or default under any other
term or condition, or in any manner affect any other term or condition hereof.


 


26.    INDEPENDENT
CONTRACTOR


 


Fidelity is an
independent contractor, which has the sole right to supervise, manage, control
and direct its performance of services. The performance of activities by either
party under this Agreement shall not constitute either a joint venture or
partnership of the parties. This Agreement shall not be construed to limit in
any way the rights of the parties to pursue, independently and in accordance
with their respective management policies, any aspects of their respective
businesses and operations.


 


27.    SEVERABILITY OF
PROVISIONS


 


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


 


28.    SURVIVAL OF
REPRESENTATIONS 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 services
to be delivered hereunder, the payment of any fees or other charges hereunder,
and the termination of this Agreement for any reason.


 


29.    NOTICES


 


Whenever
the giving of a written notice by Fidelity or Client is required by this
Agreement, such notice shall be given personally or sent by certified mail or
overnight courier, postage prepaid, addressed to the other party in care of a
designated 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 advance
in writing to the other, and shall be deemed to have been given on the date of
receipt by the other.  Written notice may
also be made by facsimile or electronic mail provided that within a reasonable
amount of time subsequent to transmitting the facsimile or electronic mail 


 










*** Confidential material
redacted and submitted separately to the Commission


 


25





















 


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


 


30.             FURTHER
ASSURANCES


 


The
parties shall perform all acts and execute all supplementary instruments or
documents which may be necessary to carry out the intent of this Agreement.


 


31.             ORDER
OF PRECEDENCE


 


The general terms and
conditions 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 with
other provisions in the Agreement, the order of precedence of the documents is
as 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.             GOVERNING
LAW


 


This
Agreement shall be considered as entered into in the State of Florida and shall
be governed by and construed in accordance with the laws of the State of
Florida.


 


33.    COUNTERPARTS


 


This Agreement may be
executed in one or more counterparts, each of which is deemed an original, but
all of which together constitute one agreement.


 


34.    ENTIRE AGREEMENT


 


This
Agreement constitutes the complete understanding of Fidelity and Client, supercedes
any prior oral or written communications, supercedes any requests for
proposals, terms sheets or letters of intent, and no representation other than
is contained herein or in any agreement referred to herein shall be binding on
either party.  No alteration,
modification, or waiver of any provision hereof shall be valid unless in
writing and signed by the parties hereto.


 


35.             PERFORMANCE
AUDITS


 


Fidelity will cooperate
fully with Client or its auditors, internal or external, upon reasonable prior
notice, for the purpose of inspecting, examining, and auditing the performance
of the Services to be rendered by Fidelity to Client hereunder (with the
exception of any records, information or procedures which are of a confidential
nature with a third party or are addressed in Fidelity’s


 










*** Confidential material
redacted and submitted separately to the Commission


 


26





















 


Third Party Review);
provided, however, that any such inspection, examination and/or audit shall
take place only during normal business hours and in a manner that will not
disturb the ordinary transaction of Fidelity’s business.  Fidelity reserves the right to charge Client
on a time and materials basis for any services reasonably required to be
performed by Fidelity in connection therewith. 
Performance audits shall not be scheduled to occur during the fourth
quarter of any calendar year.  Client
shall limit any performance audits to a reasonable duration and limit the
number of performance audits performed to one (1) per calendar year.  Client and its representatives may be
required to sign Fidelity’s nondisclosure and confidentiality agreement in
advance of performing any audits.  Client
will provide, and instruct its auditors, internal and external, to provide
Fidelity with a copy of that portion of each written report containing comments
concerning Fidelity or the Services performed by Fidelity pursuant to this
Agreement.  In no event may any
representative of client or auditor be a Competitor.


 


36.             COVENANT
OF GOOD FAITH


 


Each
party, in its respective dealings with the other party under or in connection
with 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”

  	
   

  



 










*** Confidential material
redacted and submitted separately to the Commission


 


27





















 


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 EXCHANGE COMMISSION.


 





 


ADDENDUM 1


TO


MASTER AGREEMENT NO. 264-05M


BETWEEN


FIDELITY INFORMATION SERVICES,
INC.


AND


AMERICAN MORTGAGE NETWORK, INC.


FOR


MORTGAGE SERVICING PACKAGE WITH
ONLINE SERVICES


 


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


 


1.                    DEFINITIONS


 


The
definitions 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 the
definitions set forth below:


 


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


 


1.2        “Fidelity RLS Training Fundamentals” shall mean Fidelity’s overview, disk and
computer based training products designed to support Client’s in-house training
efforts with respect to the MSP System, including such updates, enhancements
and 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 library
product.


 


1.5        “OEM” shall
mean original
equipment manufacturer.


 


1.6        “Online Services” or “Online System(s)” shall mean online access from
terminals located in Client’s office(s) through the CICS telecommunication
facility 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.


 










*** Confidential material redacted and submitted separately to the
Commission


 





















 


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


 


2.                    TERM


 


The
term of this Addendum shall run simultaneously with the Original Term and
Extended Term, if applicable, of the Agreement.


 


3.                    MSP REMOTE PROCESSING CHARGES AND
SERVICES


 


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


 




	
  2005 Monthly Basic
  Processing Charges Per Principal Balance Loan

  	
   

  	
  ***

  	
   

  






 


The
above charges cover regular daily (five (5) days per week), monthly and
normal year-end Processing cycles.  In
addition, in no event shall Client shall Process less than the Minimum Monthly
Principal Balance Loan Processing Volume Requirement set forth in the table
below:


 




	
  Minimum Monthly Principal
  Balance Loan Billing Volume Requirement

  	
   

  	
  ***

  	
   

  
	
  Minimum Monthly Principal
  Balance Loan Processing Volume Requirement

  	
   

  	
  ***

  	
   

  






 


Notwithstanding
the foregoing, Fidelity understands and agrees that Client is entering into the
Agreement to initially Process less than the Minimum Monthly Principal Balance
Loan Processing Volume Requirement set forth above.  As a result, the Minimum Monthly Principal
Balance Loan Processing Volume Requirement shall not apply to Client until
Client actually Processes that minimum number of loans on the MSP System in one
month.  Once Client Processes loans
greater than or equal to the Minimum Monthly Principal Balance Loan Processing
Volume Requirement in any month, the Minimum Monthly Principal Balance Loan
Processing Volume Requirement shall apply and Client shall be obligated to
Process at least that number of loans each month thereafter.


 


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


 


a)              MSP
telephone support, enhancement videos (if applicable), and all shared standard
MSP enhancements added to the MSP System during the Original Term or any
Extended Term of this Addendum;


 










***
Confidential material redacted and submitted separately to the Commission


 


2





















 


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


 


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


 


d)              up
to *** standard Online LetterWriter letters (“OLLW”), as measured utilizing
industry standard measurement tools, per each *** Principal Balance Loans per
month (the “Allowable OLLW”).  Additional
standard OLLW letters produced above the Allowable OLLW and all ARM OLLW
letters will be billable at the rate of *** each until Client’s portfolio reaches
*** Principal Balance Loans.  Once Client’s
portfolio exceeds *** Principal Balance Loans, all OLLW letters above the
Allowable OLLW and all ARM OLLW letters will be billable at the non-plan rates
as set forth in the Fidelity Optional Processing and Support Services Rates
Schedule;


 


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


 


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


 


g)             Fidelity
RLS Training Fundamentals and access to Fidelity’s computer based training
products (non-classroom) in pre-defined quantities based on Client’s loan
count;


 


h)             the functionality provided by the following
enhancements (and any implementation or installation charges in connection with
such 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

  	
   

  



 










***
Confidential material redacted and submitted separately to the Commission


 


3





















 


i)                tape rental for in-house backup;


 


j)                Dexport
charges; and


 


k)            extended system availability (bronze plan)
with read only access to a limited number of screens and/or modules (currently
ISA0, 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 terms
of the SLA:


 


i)                Monday
through 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 and
the available hours set forth above are subject to change from time to time at
Fidelity’s sole discretion.


 


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


 










***
Confidential material redacted and submitted separately to the Commission


 


4





















 


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


 


m)          If Client elects to use FTP protocol for
daily output reports to be delivered through Fidelity’s InterChange product and
executes a Fidelity InterChange agreement in form and substance acceptable to
Fidelity, Client will receive up to *** files per month.  Electronic data interchange transmissions in
excess of *** files per month will be billed in accordance with the Fidelity
Optional Processing and Support Services Rates Schedule; provided, however,
electronic data interchange translated transmissions to or from a government
sponsored entity, regulatory agency or insurance carrier (to the extent such
insurance carrier is a business partner with Fidelity) will be provided at no
additional cost to Client.


 


n)             When generally made available to Fidelity’s
other clients, Client will be provided access to Fidelity’s new collection
workstation, subject to payment by Client of any applicable implementation
fees.


 


3.3        Adjustments of Basic Processing
Charges and Minimum Billing and Processing Requirements.  The Basic Processing Charges, Minimum
Monthly Principal Balance Loan Billing Volume Requirement and Minimum Monthly
Principal Balance Loan Processing Volume Requirement set forth in Section 3.1
above shall remain in effect for the first year of the Original Term.  In the event the Addendum 1 Effective Date is
other than January 1, for price adjustment purposes only, the first year
of the term shall be deemed to be the period from the commencement of the term
through and including the immediately succeeding December 31.  During the second and subsequent years of the
Original Term, Fidelity reserves the right upon thirty (30) days written notice
to Client, to adjust the Basic Processing Charges, Minimum Monthly Principal
Balance Loan Billing Volume Requirement and Minimum Monthly Principal Balance
Loan Processing Volume Requirement.  Such
adjustment to the Basic Processing Charges shall not exceed the percent
increase in the CPI-U Index between the annual averages of the most recently
published twelve (12) month period and the immediately preceding twelve (12)
month period, provided, however, in no event shall the percentage increase be
less than ***.  For purposes of
forecasting, documentation preparation, and advance notification requirements,
the “most recently published” period shall be deemed to be the latest available
published period at the time Fidelity begins its price adjustment process for
the upcoming year.  In no event shall the
Minimum Monthly Principal Balance Loan Billing Volume Requirement or Minimum
Monthly Principal Balance Loan Processing Volume Requirement be adjusted below
the levels set forth above.


 










***
Confidential material redacted and submitted separately to the Commission


 


5





















 


4.                    INPUT/OUTPUT SERVICES


 


4.1        Input.  Client shall perform the data entry requirements
from items of original entry (which items remain in the possession of Client).
Client shall create the input data and Client and/or Client’s
agent will transmit the input data required by each System, as defined in the
Documentation, to Fidelity’s computer facilities in Jacksonville via
a mutually agreed upon method of data transmission. Input data is to be
received by Fidelity each business day, or other processing frequency as
required, at 8:00 p.m. PT (11:00 p.m. ET).  Client
shall be responsible for verification of the data transmitted and for the
release of the data to Fidelity for processing.


 


4.2        Output.  Fidelity
will process the data using the Software and will have the output available to
allow the Client to begin to print the output data at Client’s
location at a mutually agreed upon time. Fidelity will use its commercially
reasonable efforts to complete the processing and transmission of Client’s
data on schedule, provided Client has transmitted and released its input in
accordance with Section 4.1 (“Input”) of this Addendum.


 


4.3        Rejected Transactions and System Balancing. 
Client shall correct and resubmit all transactions rejected by the
Software and Client shall be responsible for reconciling and adjusting
differences in batch control totals which result from rejected transactions
and/or erroneous control totals. Client is responsible for the system balancing
on a daily basis.


 


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


 


5.                    ONLINE SERVICES


 


For
a complete description of the On-line Services provided by Fidelity, and their
availability, 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, Client
shall be entitled to access to Passport, a specific allowance of CPU usage time
per principal balance loan as set forth in the table in Section 6.1.5
below, storage of a rolling thirteen (13) months of Time Series Information
and access to Scorecard Phase II.


 


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


 










***
Confidential material redacted and submitted separately to the Commission


 


6





















 


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


 


a)     Client’s monthly CPU usage against the
Month-end File shall be counted after Client’s monthly CPU usage allowance and
Client shall pay a Regular File Excess Usage Fee at Fidelity’s then current
rates for excess usage.


 


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


 


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


 


6.1.4 CPU Usage.


 


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


 


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


 


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


 










***
Confidential material redacted and submitted separately to the Commission


 


7





















 


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


 


6.1.5  Additional Monthly
Allowances 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 Client
to an initial allocation of twenty (20) Director User Access Rights and
thereafter one (1) full usage standard Director User Access Right per five
hundred (500) Principal Balance Loans.  In
the event Client requires more User Access Rights than the allowance set forth
above, Client may request such additional User Access Rights subject to the
payment of the then current additional fees. 
Client is authorized to utilize the Director User Access Rights only at
the following location(s):                           .


 


7.2        Access Verification Rights.  Client agrees to permit representatives of Fidelity or its licensors to
inspect, during Client’s normal business hours, any Authorized Location(s) or
any other locations under the control of Client for which Fidelity or its
licensors have reasonable cause to believe Director or any third party
component of Director is being accessed or used.  Upon request, Client shall provide written
certification to Fidelity of the number of User Access Rights at each
Authorized Location or other location where Director is used or otherwise
accessed or used by Client.  Client also
acknowledges and agrees that Fidelity may be obligated under its agreements
with third party software licensors, for software components which are part of
or associated with the use of Director, to allow such licensors the right to
audit Fidelity’s records for access and distribution verification.  Such records may include, but not be limited
to, the names, addresses, contact names and phone numbers of the Fidelity’s
clients who have User Access Rights to Director.  Client consents to Fidelity’s compliance with
such obligations and agrees to cooperate with Fidelity or its licensors
regarding such audit efforts.


 


7.3        Access Violations. 
Client is
authorized to access Director only in the manner of use for which User Access
Rights have been authorized hereunder. 
If it is determined that Client is accessing Director at locations other
than Authorized Locations, Fidelity may, in accordance with the termination
provisions of the Agreement, and at Fidelity’s sole option, terminate this
Addendum, terminate any and all User Access Rights that have been authorized
under this


 










***
Confidential material redacted and submitted separately to the Commission


 


8





















 


Addendum in addition to any unauthorized
access, or require Client to execute a modification agreement for such
additional User Access Rights.


 


8.                    TRANSMISSION SERVICE &
TERMINAL EQUIPMENT


 


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


 


8.2        Communication Devices.  The
communication devices (satellite, terrestrial, or frame relay) shall be
specified and ordered by Fidelity. Such devices will be leased in Fidelity’s
name or owned by Fidelity. Fidelity, in turn, will bill Client for such devices
located in Client’s office(s). Should Client desire to terminate the communication
devices, Client shall give Fidelity not less than ninety (90) days prior
written notice.


 


8.3         Terminal and
Printing Equipment.  Fidelity will specify the type of terminal and
printing equipment to be used by Client. Client may use its most cost effective
or efficient method for acquiring the equipment specified by Fidelity.  At Client’s option, Fidelity, as an OEM
dealer, may sell or lease the terminal and printing equipment to Client. In
such case, Fidelity and Client will execute the applicable agreement for either
the 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 of
certain hardware and software.  Fidelity
will specify the type of hardware and software required for Client’s use of
NavigatorTM. Client may use its most cost effective or efficient method for
acquiring the equipment specified by Fidelity. 
Fidelity, as an OEM dealer, may sell or lease the hardware or software
to Client. In such case, Fidelity and Client will execute the applicable agreement
for either the purchase or lease of such hardware or software.  Client shall have the sole responsibility for
adequate protection and back-up of its data used in connection with NavigatorTM,
including but not limited to utilization of the appropriate virus detection
software upon receipt of the initial release and each monthly update of
NavigatorTM prior to use.


 


8.5        Transmission Problems. Fidelity
shall use commercially reasonable efforts in isolating data transmission
problems and obtaining service from the terminal hardware vendors and/or
communication carriers.   In situations
where data transmission is rendered impossible by virtue


 










***
Confidential material redacted and submitted separately to the Commission


 


9





















 


of equipment failure at
Fidelity’s site, Fidelity agrees to provide such data, via a medium to be
agreed to between Fidelity and Client, at its expense.  In the event the inability to transmit is
caused by a failure of the communication carrier, the cost to provide such data
will be borne equally by Fidelity and Client. 
In the event of equipment failure at Client’s site, Client shall pay all
costs associated with such data transfer.


 


9.       STANDARD ENHANCEMENTS


 


Fidelity may, using commercially reasonable
efforts and based on changes to government regulations, tax laws, mortgage
industry and mortgage agencies’ needs, as well as other reasons which Fidelity
may deem necessary, issue standard enhancements to the MSP System.  Unless otherwise specified in the applicable
Addenda or SOW, such standard enhancements are included as part of the fees set
forth herein.


 


10.    SECURITY


 


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


 


11.    PROCESSING REMEDIES


 


11.1      REPROCESSING DATA. 
FIDELITY’S
SOLE OBLIGATION IN THE EVENT OF NEGLIGENCE OR ERROR BY FIDELITY IN THE
PERFORMANCE OR NON-PERFORMANCE OF ITS DUTIES HEREUNDER SHALL BE LIMITED TO
REPROCESSING THE DATA FOR CLIENT. FIDELITY’S OBLIGATION HEREIN IS CONTINGENT
UPON CLIENT NOTIFYING FIDELITY WITHIN TWO (2) BUSINESS DAYS OR TWO (2) PROCESSING
CYCLES AFTER THE RECEIPT OF ERRONEOUS DATA.


 


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


 










***
Confidential material redacted and submitted separately to the Commission


 


10





















 


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 EXCHANGE
COMMISSION.


 





 


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 as
of 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        The
definitions set forth in the Agreement or any addendum or exhibit thereto, are
incorporated herein by this reference as if fully stated herein.


 


1.2        “CPI
LaserCheck Software” means the Version of the software
existing on the Effective Date of this Addendum which has been developed and is
owned solely by Fidelity and has been incorporated into the CPI LaserCheck
System


 


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


 


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


 


2.                    PURCHASE.


 


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


 










*** Confidential material
redacted and submitted separately to the Commission


 


1





















 


2.2        Client’s
Business Use.   Client represents and warrants that it is
acquiring the CPI LaserCheck System for its own business use and purpose,
without any intention to re-sell or transfer the CPI LaserCheck System to any
third party.


 


2.3        Security Interest. 
Fidelity reserves a security interest in the CPI LaserCheck System and
all components, replacements, and proceeds thereof to secure payment of Client’s
obligations to Fidelity.  Such security interest will be retained and
title to the hardware components of the CPI LaserCheck System will not pass to
Client until Client’s payment obligation for the purchase price is paid in
full.  Client agrees that Fidelity will
have the right to file financing statements pursuant to the Uniform Commercial
Code or other applicable law to evidence or perfect such security interest, and
Client agrees to join with Fidelity in executing such financing statements, if
requested.


 


3.       TERM.


 


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


 


4.                    SOFTWARE SUPPORT AND HARDWARE
MAINTENANCE.


 


4.1        Software Support. Client shall pay to Fidelity a monthly
support fee, as shown on Schedule 1 attached to this Addendum, for
which Fidelity, either directly or through a subcontractor or agent, shall
provide the following:  a) telephone
technical support and problem reporting for CPI LaserCheck Software between the
hours 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 as
they are made available by Fidelity at no additional charge, provided however,
that Fidelity shall only support the most current Release and the immediately
preceding Release.


 


4.2        Hardware Maintenance. 
Client shall pay to Fidelity an annual hardware maintenance fee as shown
on Schedule 1 attached to this Addendum, for which Fidelity, either
directly or through a subcontractor or agent, shall provide printer
maintenance.  The annual hardware
maintenance fee specifically excludes replacement of any hardware which cannot
be reasonably repaired, is obsolete where parts are no longer available from
the hardware manufacturer or where the hardware manufacturer no longer provides maintenance support services
for the hardware.  Fidelity or its agent
shall make commercially reasonable efforts to diagnose a reported problem and,
if necessary, dispatch a technician to the Client’s location to resolve such
problem. Client shall be responsible for maintaining any third party hardware
and software not provided by Fidelity, including but not limited to, maintaining
licenses and supported versions of the software, and obtaining and installing
the appropriate upgrades,


 










*** Confidential material
redacted and submitted separately to the Commission


 


2





















 


modifications, enhancements,
and releases made available by the third party software or hardware
manufacturer to ensure compatibility with and the functionality of the CPI
LaserCheck System.  Client acknowledges
that magnetic ink character recognition (“MICR”) printers are required to
operate the CPI LaserCheck System and that Fidelity has provided Client with a
list of acceptable MICR printers, current as of the Effective Date of this
Addendum.  Fidelity may update such list
from time to time.  Client may request
Fidelity to test other printers for compatibility with the CPI LaserCheck
System, but such testing shall be performed, at Client’s expense, pursuant to a
separate SOW and at Fidelity’s then current rates for time and materials.  Fidelity shall have no liability or
obligation with respect to failure of the CPI LaserCheck System to function
properly if such failure is caused by Client, Client’s environment or the
consumables, such as toner, used by Client.


 


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


 


4.4        New Versions.  New or subsequent Versions of
the CPI LaserCheck Software, if any, will be made available only upon payment
by 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 such
adjustment relates to the pass through of increases by Fidelity’s third party
vendors) and upon forty five (45) days prior written notice to Client, to adjust the monthly software support
fee and annual printer maintenance fee.


 


5.                    DELIVERY AND RISK OF LOSS.


 


5.1        Delivery.  The CPI LaserCheck System shall
be 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 of
loss until the commencement of loading of the CPI LaserCheck System on the
transportation vehicle.  From that time,
all risk of loss shall be borne by Client. 
Fidelity or its agent will arrange for replacement value transit
insurance coverage on the CPI LaserCheck System at Client’s expense from the
time the CPI LaserCheck System is shipped from Fidelity’s or agent’s site until
delivery at Client’s site.  All
transportation, insurance and subsequent installation costs, if any, shall be
paid by Client.


 


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


 










*** Confidential material
redacted and submitted separately to the Commission


 


3





















 


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


 


5.4        Cancellation.  If Client requests
cancellation, in writing, of an order pursuant to any Schedule 1 to
this Addendum prior to the Target Shipping Date for all or any part of the CPI
LaserCheck System, Client will pay to Fidelity the cancellation charge set
forth 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 an
operational state in Client’s facility, but is not necessarily placed into
production or “live” use by Client.  In
the event the CPI LaserCheck System fails to function substantially in
accordance with the system documentation following successful installation,
Client will cooperate with Fidelity in determining the reasons for such failure
and the remedial steps that are necessary. 
Client will take such actions as may be reasonably necessary, and
Fidelity will perform such warranty and maintenance obligations as it may have
pursuant to this Agreement, to cause the CPI LaserCheck System to function
properly.  In the event the CPI
LaserCheck System cannot be successfully installed or fails to continue to
function properly for twenty (20) consecutive days after successful
installation, then either party hereto may terminate this Agreement with
respect to the specific failed CPI LaserCheck System by providing at least ten (10) days
prior 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 Client
or Client’s equipment, environment or consumables, Fidelity shall be
responsible for the deinstallation, packing and return freight of the CPI
LaserCheck System to Fidelity’s designated facility.  Otherwise, Client shall be responsible for
the deinstallation, packing and return freight of the applicable CPI LaserCheck
System.


 


6.2        Additional Installation Services.  If
Client desires on site installation assistance, Fidelity will make commercially
reasonable efforts to provide a technician at Fidelity’s then published daily
rate for such services, plus any travel and lodging expenses as incurred
subject, however, to the availability of Fidelity personnel.  Installation services can also be performed
by the maintenance vendor on a time and materials basis.


 










*** Confidential material
redacted and submitted separately to the Commission


 


4





















 


7.       LIMITATION OF LIABILITY.


 


7.1        IN THE EVENT FIDELITY SHALL MATERIALLY FAIL
TO PERFORM ITS OBLIGATIONS IN ACCORDANCE WITH THE TERMS OF THIS ADDENDUM
AS 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 WITH
PRODUCTS OF SERVICES FURNISHED HEREUNDER, SHALL IN ALL CASES BE LIMITED SOLELY
TO CORRECTION OF NONCONFORMITIES WHICH DO NOT SUBSTANTIALLY CONFORM WITH
THE AGREED DESCRIPTION OF PRODUCTS OR SERVICES. 
IF FOR ANY REASON FIDELITY IS UNABLE OR FAILS TO CORRECT
NONCONFORMITIES, FIDELITY’S LIABILITY FOR DAMAGES FOR SUCH FAILURE, WHETHER IN
CONTRACT OR TORT (INCLUDING FIDELITY’S OWN NEGLIGENCE), LAW OR EQUITY, SHALL
NOT EXCEED THE AMOUNTS PAID BY CLIENT FOR THAT PORTION OF THE PRODUCTS OR
SERVICES 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 BY
CLIENT, PROVIDED THAT IN EACH SUCH INSTANCE, FIDELITY’S LIABILITY SHALL NOT
EXCEED THE LESSER OF I) THE AMOUNT OF THE ACTUAL DIRECT MONETARY LOSS SUFFERED
BY CLIENT OR II) THE AMOUNT PAID TO FIDELITY BY CLIENT FOR THE PRODUCTS AND
SERVICES FOR WHICH THE MATERIAL FAILURE OCCURRED.  FIDELITY’S AGGREGATE LIABILITY SHALL NOT, IN
ANY EVENT, EXCEED THE TOTAL FEES PAID BY CLIENT TO FIDELITY UNDER THIS
ADDENDUM.


 


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


 


7.3         EVEN TO THE EXTENT
CLIENT’S EXCLUSIVE REMEDIES FAIL OF THEIR ESSENTIAL PURPOSES, WHETHER OR NOT
FIDELITY HAS BEEN ADVISED IN ADVANCE THAT SUCH DAMAGES MAY BE INCURRED, IN
NO EVENT WILL FIDELITY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR
THIRD PARTY DAMAGES OF ANY KIND INCLUDING, BUT NOT LIMITED TO LOST PROFITS,
LOSS OF GOODWILL OR BUSINESS INTERRUPTION, ARISING OUT OF THIS ADDENDUM OR THE
USE OF ANY EQUIPMENT, SOFTWARE, DOCUMENTATION OF SERVICES PROVIDED UNDER THIS
ADDENDUM.


 










*** Confidential material
redacted and submitted separately to the Commission


 


5





















 


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 SECURITES AND EXCHANGE
COMMISSION.


 


	
  CPI LASERCHECK SYSTEM

  	
  Schedule
  1

  



 


SCHEDULE 1

TO

ADDENDUM 2

CPI LASERCHECK SYSTEM


 


To Agreement No.: 264-05M

Schedule No.: 01


 


	
  ý
  Initial Issue

  	
  o
  Subsequent Issue

  	
  o Replacement Issue (amends Schedule No. :         )

  



 


Schedule Effective Date: May 10, 2005


 


PURPOSE
OF ISSUANCE:  To document Client’s Order
for 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

  	
   

  	
   

  	
   

  	
  ***

  	
  **

  	
  ***

  	
   

  	
  ***

  	
   

  



 










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


 


*** Confidential material redacted and submitted
separately to the Commission


 


1





















 


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


 


E.  OTHER
TERMS AND CONDITIONS


 


E.1    PC
Configuration is as follows:  CPI
LaserCheck Workstation EVO D530 CMT P4/2.6Ghz, 
512Mb, 80Gb CDRW WXPP


 


E.2   Depending upon the configuration of Client’s
CPI LaserCheck System, connectivity to Fidelity through Client’s EDI connection
may result in additional charges.  Such
charges are set forth in the then current Optional Processing and Support
Services Rates schedule.  A copy of the
current schedule is attached hereto for reference.


 


E.3   Purchase Price does not include
installation, 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 IPs
for the Fidelity LaserCheck System are governed by the terms and conditions of
the Master Agreement executed
between Client and Fidelity.


 


E.6    An
annual 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 be
provided by Fidelity’s agent, which Client may request through Fidelity’s
PowerCell.


 


E.7    Target Ship Date is estimated to be
approximately thirty (30) days after Fidelity’s receipt of this executed
Schedule 1.


 


E.8    Pricing
included in this Schedule 1 are valid for sixty (60) days from the Schedule
Effective Date.


 


 


This Schedule 1 is incorporated into and made a part of Addendum 2 to Master Agreement #264-05M between
Fidelity 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”

  
							



 










*** Confidential material redacted and submitted
separately to the Commission


 


2