THIRD AMENDED AND RESTATED SERVICES AGREEMENT
Exhibit 10.1
THIRD AMENDED AND RESTATED
This THIRD AMENDED AND RESTATED SERVICES AGREEMENT is entered into as of January 1, 2009 (“Effective Date”), (this “Agreement”), between THE FIRST AMERICAN CORPORATION, a California corporation (“First
American”), and FIRST ADVANTAGE CORPORATION, a Delaware corporation (the “Company”; First American and the Company are each referred to herein as a “Party” and collectively, as the “Parties”).
W I T N E S S E T H:
WHEREAS, the Parties are parties to that certain Second Amended and Restated Services Agreement, dated as of September, 2005 (the “Second Amended Services Agreement”), which amended and restated that certain Amended and Restated Services Agreement dated January
1, 2004, (the “Amended Services Agreement”), which amended and restated that certain Services Agreement dated as of June 5, 2003, by and among the Parties;
WHEREAS, the Parties believe it is in their respective best interests to amend and restate the Amended Services Agreement as provided in this Agreement;
WHEREAS, the Second Amended Services Agreement and Amended Services Agreement require that a majority of the Audit Committee (as defined below) resolve to amend the Second Amended Services Agreement and the Amended Services Agreement;
WHEREAS, the Audit Committee has unanimously resolved to authorize this Agreement.
NOW, THEREFORE, in consideration of these premises and the terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, First American and the Company agree as follows:
ARTICLE I.
DEFINITIONS AND CONSTRUCTION
1.1. Definitions. Capitalized terms used herein but not defined herein shall have the meanings assigned to them in the Merger Agreement. For purposes of this
Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural terms defined):
“Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person; provided that, for the purposes of
this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise; provided, further,
that, for the purposes of this definition, the Company and its Subsidiaries shall not be deemed to be Affiliates of First American; provided, further, that, for the purposes of this definition, First American and its Affiliates (excluding the Company and its Subsidiaries) shall not be deemed to be Affiliates of the Company.
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“Audit Committee” shall mean, on any date of determination, the Company’s duly appointed Audit Committee.
“Bundled Reports Fee” shall have the meaning provided in Section 3.1(c) hereof.
“Business Services” shall mean those services described in Column A of Schedule I, which services exclude, for the avoidance of doubt, any services provided outside of the United States of America
and Puerto Rico or by First Indian Corporation or the First Indian division of the Information Services Group of First American.
“Business Services Fee” shall mean, with respect to each of the Business Services set forth in Column A of Schedule I, the fees or the method of determining the fees set forth opposite such Business
Services in Column B of Schedule I.
“Company” shall have the meaning provided in the introductory paragraph.
“Company Common Stock” shall have the meaning provided in the Standstill Agreement.
“Company Members” shall have the meaning provided in Section 2.4(c) hereof.
“Company Services” shall have the meaning provided in Section 2.2(a) hereof.
“Communications Hub” shall have the meaning provided in Section 2.4(f) hereof.
“Confidential Company Information” shall mean any information derived by the First American Entities in connection with the provision of Business Services, except such information which (a) was previously known by First American or its Affiliates and not considered
confidential, and/or (b) is or becomes generally available to the public other than as a result of disclosure by First American, its Affiliates or their directors, officers, employees, agents or representatives, and/or (c) is or becomes available to First American or its Affiliates on a non-confidential basis from a source other than the Company and its Subsidiaries.
“Confidential FAF Information” shall mean any information derived by the Company or its Affiliates from any of the First American Entities in connection with the provision of Company Services, except such information which (a) was previously known by the Company
and not considered confidential, and/or (b) is or becomes generally available to the public other than as a result of disclosure by the Company or its Affiliates or their directors, officers, employees, agents or representatives, and/or (c) is or becomes available to the Company or its Affiliates on a non-confidential basis from a source other than First American or its Affiliates.
“Control” means, with respect to any Person, the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“Cure Period” shall have the meaning provided in Section 2.4(a)(ii) hereof.
“Entity” shall mean any Person that is not a natural Person.
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“FAF Members” shall have the meaning provided in Section 2.4(c) hereof.
“FAOS Services” shall mean those services described in Schedule II.
“FAOS Services Fee” shall mean the actual cost to First Advantage Offshore Services Private Limited (f/k/a ZappApp India Private Limited) (“FAOS”) of providing the FAOS Services.
“FARES” shall mean First American Real Estate Solutions LLC, a California limited liability company and Subsidiary of First American.
“First American” shall have the meaning provided in the introductory paragraph.
“First American Entity” and “First American Entities” shall mean one or more, as applicable, of First American and any Affiliate of First American.
“Merged Reports” shall have the meaning provided in Section 2.4(a)(i) hereof.
“Merger Agreement” means that certain Agreement and Plan of Merger, dated as of December 13, 2002, to which First American, US SEARCH, the Company and Stockholm Seven Merger Corp., a Delaware corporation, are parties.
“Mortgage Consumer Reports and Services” shall have the meaning provided in Section 2.4(a)(i) hereof.
“Mortgage Consumer Reports Fees” shall have the meaning provided in Section 3.1(c) hereof.
“Mortgage Customers” shall have the meaning provided in Section 2.4(a)(i) hereof.
“Mortgage Marketing Services” shall have the meaning provided in Section 2.4(b) hereof.
“Mortgage Services” shall have the meaning provided in Section 2.4(a)(i) hereof.
“Non-Bundled Reports Fee” shall have the meaning provided in Section 3.1(c) hereof.
“Notice of Deficiency” shall have the meaning provided in Section 2.4(a)(ii) hereof.
“Operating Committee” shall have the meaning provided in Section 2.4(c) hereof.
“Party” and “Parties” shall have the meaning provided in the introductory paragraph.
“Person” shall mean and include a partnership, a joint venture, a corporation, a limited liability company, a limited liability partnership, an incorporated organization, a group and a government or other department, agency or political subdivision thereof.
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“Requisite Service Levels” shall have the meaning provided in Section 2.4(a)(ii) hereof.
“Standstill Agreement” shall mean the Standstill Agreement, dated as of June 5, 2003, between First American and the Company.
“Subsidiary” and “Subsidiaries” shall mean, with respect to any Person, (a) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting
power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person and/or one or more Subsidiaries of such Person and (b) any Entity (other than a corporation) in which such Person and/or one more Subsidiaries of such Person has more than a 50% equity interest at the time or otherwise controls the management
and affairs of such Entity (including the power to veto any material act or decision).
“Term” shall have the meaning provided in Section 4.1 hereof.
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1.2. |
Principles of Construction. |
(a) The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
(b) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but
excluding”; and the word “through” means “to and including.”
(c) The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, unless already expressly followed by such phrase or the phrase “but
not limited to”.
(d) Article and Section headings and captions used herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
(e) All words importing any gender shall be deemed to include the other gender and the neuter.
(f) In the event that the final day of any time period provided herein does not fall on a business day, such time period shall be extended such that the final day of such period shall fall on the next business day thereafter.
(g) Unless otherwise specified, references to agreements and other contractual instruments shall be deemed to include all subsequent amendments, modifications and supplements thereto.
(h) Each Party has reviewed and commented upon this Agreement and, therefore, any rule of construction requiring that any ambiguity be resolved against the drafting party shall not be employed in the interpretation of this Agreement.
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ARTICLE II.
SERVICES
2.1. Business Services. During the applicable Term, First American shall, or shall cause one or more of the other First American Entities to, provide the Company
and/or its Affiliates with the Business Services. First American shall, and shall cause the First American Entities to, allocate resources with regard to the Business Services in a manner that is consistent with the allocation of such resources, as of the Effective Date of this Amendment, by First American and/or the First American Entities to the Company or its Affiliates.
2.2. Company Services.
(a) During the applicable Term, the Company shall, and shall cause its Affiliates to, provide First American and/or its Affiliates with products and services offered by or through the Company or its Affiliates from time to time (collectively
(but excluding the FAOS Services and the Mortgage Services), the “Company Services”) at rates and on terms no less favorable than those generally offered by the Company and its Affiliates to third parties. In the event that any such products and services are provided pursuant to a written agreement entered into by the Parties, the terms of any such agreement shall govern such products and services, notwithstanding anything
to the contrary herein.
(b) During the applicable Term, the Company shall, and shall cause its Affiliates to, provide First American and/or its Affiliates with the FAOS Services. The Company shall, and shall cause its Affiliates to, allocate resources
with regard to the FAOS Services in a manner that is consistent with the allocation of such resources by the Company and its Affiliates.
2.3. Additional First American Services. During the applicable Term, First American may, and may cause the other First American Entities to, offer to provide
the Company and/or its Affiliates, and the Company and/or its Affiliates may purchase, products and services offered by or through the First American Entities from time to time during the applicable Term in the ordinary course of business at rates and on terms then offered by the First American Entities to comparable third parties. Nothing in this Agreement shall change or affect the terms and conditions of any agreement or understanding listed on Schedules 4.9, 4.10, 4.20 and 4.27 to the Merger Agreement. The
Company and/or its Affiliates on the one hand, and any First American Entity on the other hand, may renew any such agreement or understanding on terms substantially similar to those in such agreements or understanding.
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2.4. Mortgage Services.
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(a) |
Mortgage Consumer Reports and Services. |
(i) During the applicable Term, the Company shall, and shall cause its applicable Affiliates to allow First American and its Affiliates to market merged, multiple-source or single-source credit reports created by accessing one or more
of the national credit database repositories and other information sources, which credit reports shall include basic, partial and fully verified Instant Merge Reports (including Merge Plus Reports and Residential Mortgage Consumer Reports and Services), Instant Merge Reports (such three-bureau merged credit reports, together with other three-bureau merged credit reports, the “Merged Reports”), other credit and other consumer reports
incorporating credit scores, fraud check products, verification services, products which list creditor addresses and phone numbers, and other related information and enhancements that the Company and/or its Affiliates may offer from time to time (collectively, “Mortgage Consumer Reports and Services”), to national and strategic customers, including mortgage lenders, mortgage servicers, mortgage brokers, underwriters, and other users
of information in the mortgage lending process and their respective customers (collectively, “Mortgage Customers”). It is understood, acknowledged, and agreed by the Parties that such Mortgage Customers must have a direct, written agreement with Company or its applicable Affiliates prior to being able to order, access and receive Mortgage Consumer Reports and Services. The provision of Mortgage Consumer Reports
and Services by the Company and its Affiliates to Mortgage Customers through the marketing efforts of First American and its Affiliates is referred to herein as the “Mortgage Services”. Mortgage Services includes the following types of sales and marketing services: (i) relationship development by serving as a central point of contact for corporate and executive communications; (ii) account sales team leadership; (iii) developing
and executing account business planning by leveraging appropriate products and services of First American and the Company to best fit the clients’ needs; (iv) account business development; and (v) managing the account scorecard for the purposes of measuring and improving overall client relationships.
(ii) During the applicable Term, in providing Mortgage Services hereunder, the Company shall, and shall cause its Affiliates to, meet certain baseline performance metrics, as set forth in the following table (the “Requisite
Service Levels”):
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Metrics
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Service Level | |
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1. |
Hours of system (DataHQ) availability |
Monday –Friday: 4:00 AM – 11:00 PM (Pacific Time)
Saturday: 5:00 AM – 10:00 PM (Pacific Time)
Sunday: 7:00 AM – 11:00 PM (Pacific Time)
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2. |
System (DataHQ) uptime |
99.5%
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3. |
Turn time for Instant Merge Reports |
95% of transactions in under 20 seconds, or such other better service level required from time to time by Xxxxxx Xxx
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4. |
Customer service metrics for developed mortgage reports |
Merge Plus: 24 hours
Residential Mortgage
Credit Report (RMCR): 48 hours
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5. |
Average speed of answer (ASA) |
80% or greater of calls to be answered within 30 seconds |
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6. |
Abandonment rate |
Less than 5%
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7. |
Consumer disputes |
To be handled per Federal requirements for service time in accordance with the Fair Credit Report Act, the Fair and Accurate Credit Transactions Act and other applicable law |
In the event that the Company or its Affiliates does not meet the Requisite Service Levels at any time during the applicable Term, First American shall provide the Company with a written notice of deficiency (each, a “Notice of Deficiency”). Following
receipt of a Notice of Deficiency, the Company shall, and shall cause its Affiliates to, (i) provide within ten (10) business days of receipt of such Notice of Deficiency to First American a written plan to cure the deficiency identified therein, which plan shall be subject to revision as First American may reasonably request within five (5) days of receipt thereof, and (ii) cure the deficiency identified in such Notice of Deficiency in accordance with the foregoing written plan within thirty (30) calendar days
from receipt of the Notice of Deficiency (such thirty (30) day period, the “Cure Period”). The Company shall be solely responsible for the implementation of remedial actions (including any and all fees, costs and expenses incurred in connection therewith) to cure all deficiencies noted in any Notice of Deficiency. If the Company does not cure or cause to be cured any deficiency identified in any Notice
of Deficiency within the applicable Cure Period, First American shall have the right (but not the obligation) to assume control of the implementation of remedial action to cure such deficiency (including hiring third party service providers), and the Company shall promptly reimburse First American for any fees, costs and expenses incurred in connection therewith.
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(b) Preferred Marketing Partner. During the applicable Term, the Company appoints and the Company shall cause its applicable Affiliates to appoint First American
and its Affiliates as, and First American hereby accepts for itself and for its Affiliates appointment as, preferred providers of Mortgage Consumer Reports and Services to Mortgage Customers. For purposes of the Fair Credit Reporting Act, as amended, and bureau contractual requirements, Company and its applicable Affiliates must have a direct contractual relationship with the Mortgage Customers; however, where requested by First American,
these contractual relationships will be managed and controlled by First American. In furtherance of the foregoing, First American may be responsible for all sales, marketing, delivery, pricing and collections with regard to the sale of Mortgage Consumer Reports and Services to Mortgage Customers it desires, and First American shall have the right to decide upon and implement strategies to carry out sales, marketing, delivery, pricing and collections with regard to the sale of Mortgage Consumer Reports and Services
to selected Mortgage Customers (the “Mortgage Marketing Services”). The Company shall, and shall cause its Affiliates to, cooperate with First American and its Affiliates in the marketing and sale of Mortgage Consumer Reports and Services to Mortgage Customers and provide reasonable technical assistance to First American and its Affiliates for such purpose, including responding in a timely fashion to service requests that
arise from time to time, training and telephone assistance regarding the Company’s or its Affiliates service options, delivery systems, service practices, software installation and use, systems interface, and other applicable policies and procedures. The Company shall manage and engage in its own sales, marketing, delivery, pricing and collections activities with respect to Mortgage Customers provided such activities are not in conflict with the Mortgage Marketing Services provided by First American
and any of its Affiliates. The Operating Committee will resolve any disputes or potential conflicts that may arise as a result of the Company performing its own activities pursuant to this section 2.4 (b).
(c) Operating Committee. The Parties shall collectively appoint four (4) individuals to serve on a committee (the “Operating
Committee”) which shall be responsible for managing the provision of the Mortgage Services, except where the management thereof has been given to a Party hereunder, in the following manner: (i) First American shall be entitled to appoint two (2) members (the “FAF Members”) and (ii) the Company shall be entitled to appoint two (2) members (the “Company
Members”). The Party that appoints a member of the Operating Committee may remove such member at any time, with or without cause, and such Party shall have the authority to name a replacement member to the Operating Committee.
(d) Allocation of Project Resources. The Company shall, and shall cause its Affiliates to, allocate information technology and project resources with regard to
Mortgage Services in a manner that is consistent with the allocation of such resources by First American’s CREDCO Division as of the Effective Date of this Amendment and that equals or exceeds the allocation of such resources to other businesses of the Company and its Affiliates, and the Company shall not, and shall not permit its Affiliates to, discriminate against the provision of Mortgage Services in the allocation of information technology and project resources when measured against the allocation of
such resources to other businesses of the Company and its Affiliates. In addition, the Company recognizes that Mortgage Consumer Reports and Services prepared for certain Mortgage Customers that have key client relationships with First American and its Affiliates require certain superior service levels and the Company shall, and shall cause its Affiliates to, dedicate appropriate and sufficient resources as may be reasonably necessary to meet such superior service levels with regard to such key Mortgage
Customers identified by First American.
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(e) Technology Support Services. In providing the technology support services contemplated in Item (2) of Schedule I hereto, First American shall, or shall cause its Affiliates
to, meet certain baseline performance metrics, as set forth in the following table:
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Metrics |
Service Level | |
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1. |
Web Services Platform |
General systems availability:
Monday-Friday 1:00 am to 11:00 pm Pacific
Saturday: 1:00 am to 8:00 pm Pacific
Sunday 4:00 am to 11:00 pm Pacific
Minimum System Uptime and Availability: 99.9%; Reported Monthly, Measured Quarterly
Transaction Processing Time (Credit): not to exceed 10 seconds in addition to the response time of credit vendor
Service Level Response Time:
· Critical Need: Within 2 Hours
· Normal Need: Within 1 Business Day
New Account Setup:
· Within 2 Business Days of request for User Interface account
· Within 2 weeks for new client integrations to standard interface specifications, including Digital Certificates set-up
Services Provided:
· Ordinary course portal and system-to-system ordering of products and services
· Ordinary course client integration and implementation engagement management
· Solution analysis, design and delivery
· Application and system support services
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2. |
Oracle Applications (GL, AP, AR, FA, CM, iExpense, etc.) |
General Availability: 7x24x365 except for Saturday 10:00 pm to Sunday 3:00 am Central
Minimum System Uptime and Availability: 99%
Service Level Response Time for Tickets:
· Critical Need: Within 15 minutes as long as the on-call service is contacted via the IT Service Center
· Normal Need: Within 48 hours the team will respond to the ticket with the commit date and level of effort
Service Level Response Time for Projects:
· The published project methodology will be followed, which will specify communication plans, timeframes, and approvals that are required
Services Provided:
· Oracle Applications ongoing support in form of tickets
· Adding new functionalities or services in form of projects, including converting new companies into Oracle or other related services
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3. |
Disaster Recovery 1 |
Data Center Availability: 7x24x365
Internet Availability: 7x24x365
Service Level Response Time:
· Critical Need: Within 2 hours
· Normal Need: Within 48 hours
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(f) Santa Xxx Communications Hub. During the applicable Term, First American will cause FARES to provide the Company with reasonable access to its voice communications
hub (the “Communications Hub”) for the purpose of routing customer service calls to and the monitoring of personnel at the Company’s operations both domestically and in India.
2.5. Personnel.
(a) During the applicable Term, First American or the other First American Entities shall continue to employ all personnel performing the Business Services directly and shall be solely responsible for and pay all of their salary, benefits,
workers’ compensation premiums, unemployment insurance premiums, and all other compensation, insurance and benefits, including participation in employee benefit plans, if applicable. First American and the other First American Entities shall be solely responsible for timely payment, withholding and reporting of all applicable Federal, state, foreign and local withholding, employment and payroll taxes with respect to the personnel that perform the Business Services. First American or the other First American
Entities shall maintain workers’ compensation and employers’ liability insurance, in accordance with applicable law, covering the personnel that perform the Business Services.
(b) During the applicable Term, the Company or its Affiliates shall continue to employ all personnel performing the Company Services, the FAOS Services and the Mortgage Services directly and shall be solely responsible for and pay all
of their salary, benefits, workers’ compensation premiums, unemployment insurance premiums, and all other compensation, insurance and benefits, including participation in employee benefit plans, if applicable. The Company and its Affiliates shall be solely responsible for timely payment, withholding and reporting of all applicable Federal, state, foreign and local withholding, employment and payroll taxes with respect to the personnel that perform the Company Services, the FAOS Services and the Mortgage
Services. The Company and its Affiliates shall maintain workers’ compensation and employers’ liability insurance, in accordance with applicable law, covering the personnel that perform the Company Services, the FAOS Services and the Mortgage Services.
ARTICLE III.
FEES; PAYMENT
3.1. Fees.
(a) Business Services Fee. The Company shall pay First American (i) the Business Services Fee in consideration for the Business Services and (ii) such fees as
may be negotiated from time to time with respect to the services described in Section 2.3.
(b) FAOS Services Fee; Company Services Fees. First American shall pay the Company (i) the FAOS Services Fee in consideration for the FAOS Services and (ii) such
fees as may be negotiated from time to time with respect to Company Services.
(c) Mortgage Consumer Report Fees. First American shall pay the Company a fee of $12.60 for each of the Merged Reports provided to First American or its Affiliates
that is bundled with other products or services sold by First American or its Affiliates (the “Bundled Reports Fee”). Fees paid by First American and its Affiliates to the Company in consideration for Mortgage Consumer Reports and Services that are not bundled with other First American products or services shall be negotiated by the Parties on a case-by-case basis (the “Non-Bundled
Reports Fee” and collectively with the Bundled Reports Fee, the “Mortgage Consumer Reports Fees”). In addition, any additional fees paid by First American and its Affiliates to the Company in consideration of pairing, appending and/or bundling other consumer information and related services may be negotiated by the Parties on a case-by-case basis.
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(d) Communications Hub Fees. The
Company shall pay FARES its pro rata share (based on actual usage by the Company and its Subsidiaries) of the total actual cost to FARES of the Communications Hub.
3.2. Payment.
(a) Business Services. First American shall deliver to the Company an invoice containing a description of the Business Services covered by such invoice and provided
during the relevant period and the amount of the Business Services Fee for such period. Each invoice shall be due and payable immediately upon receipt, and payment shall be made no later thirty (30) calendar days after receipt of such invoice. The Business Services Fee shall, where appropriate, accrue during any month (or portion thereof) during the applicable Term.
(b) FAOS Services. The Company shall deliver to First American an invoice on a quarterly basis containing a description of the FAOS Services provided during the
relevant period and the amount of the FAOS Services Fee for such period. Each invoice shall be due and payable immediately upon receipt, and payment shall be made no later thirty (30) calendar days after receipt of such invoice.
(c) Mortgage Services. The Company may deliver to First American an invoice for Mortgage Consumer Report Fees upon delivery of the underlying Mortgage Consumer
Reports and Services to First American or its Affiliates, or at such later intervals as the Company determines. Each such invoice shall contain a description of the Mortgage Consumer Reports and Services provided during the relevant period and the amount of the Mortgage Consumer Reports Fees for such period. Each such invoice shall be due and payable immediately upon receipt, and payment shall be made no later ninety (90) calendar days after receipt of such invoice.
(d) Communications Hub. First American shall cause FARES to deliver to the Company an invoice containing a reasonable description of the fees payable by the Company
pursuant to Section 3.1(d). Each invoice shall be due and payable immediately upon receipt, and payment shall be made no later thirty (30) calendar days after receipt of such invoice.
ARTICLE IV.
TERM
4.1. Term. The term of this Agreement (the “Term”) shall be for a period of twelve
months from the Effective Date of this Agreement, unless both parties agree in writing to extend the term for an additional twelve month term.
4.2. Termination. In the event of termination of this Agreement with respect to any service or Section hereof, all outstanding unpaid fees owed by the Company
and First American with respect to such service or Section hereof shall become immediately due and payable. The termination of this Agreement with respect to any service or Section hereof as to any Party shall be without prejudice to any rights or liabilities of the other Party hereunder which shall have accrued prior to such termination and shall not affect any provisions of this Agreement that are expressly or by necessary implication intended to survive such termination. This Agreement
shall continue in full force and effect with respect to any services and/or Section hereof that has not been terminated in accordance herewith until terminated in accordance herewith.
ARTICLE V.
MISCELLANEOUS
5.1. Cooperation. The Parties will cooperate in good faith to carry out the purposes of this Agreement. Without limiting the generality of the foregoing, each
Party will assist the other Party and furnish the other Party with such information and documentation as the other Party may reasonably request.
5.2. No Liability.
(a) In providing the Business Services hereunder, neither First American nor any of its Affiliates shall be liable to the Company or its Affiliates for any error or omission except to the extent that such error or omission results from
the gross negligence or willful misconduct of First American or such Affiliate to perform the Business Services required by it hereunder. In no event shall First American or any of its Affiliates be liable to the Company or any of its Affiliates or any third party for any special or consequential damages, including, without limitation, lost profits or injury to the goodwill of the Company or any of its Affiliates, in connection with the performance, misfeasance or nonfeasance hereunder of First American
or any of its Affiliates.
(b) In providing the FAOS Services hereunder, neither the Company nor any of its Affiliates shall be liable to First American or its Affiliates for any error or omission except to the extent that such error or omission results from the
gross negligence or willful misconduct of the Company or such Affiliate to perform the FAOS Services required by it hereunder. In no event shall the Company or any of its Affiliates be liable to First American or any of its Affiliates or any third party for any special or consequential damages, including, without limitation, lost profits or injury to the goodwill of First American or any of its Affiliates, in connection with the performance, misfeasance or nonfeasance hereunder of the Company or any
of its Affiliates.
(c) In providing the Mortgage Services hereunder, the Company shall, and shall cause its Affiliates to, promptly reimburse First American and its Affiliates for any amounts First American or its Affiliates are required to pay as a result
of the failure of the Company or one of its Affiliates to meet the standard of care required by the agreements pursuant to which Mortgage Consumer Reports and Services are provided to Mortgage Customers.
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5.3. Notices. All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement shall be in writing and
shall be deemed to have been duly given if delivered in person, by mail, postage prepaid, or sent by facsimile, to the Parties, at the following addresses and facsimile numbers:
(a) If to First American, to:
The First American Corporation
0 Xxxxx Xxxxxxxx Xxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Facsimile:(000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Xxxxxxx X. XxXxxxxxx
(b) If to the Company, to:
First Advantage Corporation
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Facsimile:(000) 000-0000
Attention: Xxxx Xxxxxx
Xxxx Xxxxxxx
or to such other Person or address as any Party shall specify by notice in writing to the other Party in accordance herewith. Except for a notice of a change of address, which shall be effective only upon receipt, all such notices, requests, demands, waivers and communications properly addressed shall be effective and deemed received by
the applicable Party: (i) if sent by U.S. mail, three business days after deposit in the U.S. mail, postage prepaid; (ii) if sent by Federal Express or other overnight delivery service, one business day after delivery to such service; (iii) if sent by personal courier, upon receipt; and (iv) if sent by facsimile, upon receipt.
5.4. Assignment. This Agreement shall be binding upon and inure to the benefit of the successors of each of the Parties. First American may assign
this Agreement to any of its Affiliates, including, for the avoidance of doubt, an Affiliate subject to a plan to be distributed to the shareholders of First American. Except for the foregoing, this Agreement shall not be assigned by any Party without the prior written consent of the other Party.
5.5. No Third Parties. Nothing in this Agreement is intended to confer any rights or remedies under or by reason of this Agreement on any natural person or Person
other than First American, its Affiliates, the Company, its Affiliates and their respective successors and assignees. Nothing in this Agreement is intended to relieve or discharge the obligations or liability of any third parties to First American, its Affiliates, the Company or its Affiliates. No provision of this Agreement shall give any third party any right of action over or against First American, its Affiliates, the Company or its Affiliates.
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5.6. Amendments and Waivers. This Agreement may not be amended, and none of its provisions may be modified, except expressly by a written instrument signed by
the Parties hereto. No failure or delay of a Party in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right, or any abandonment or discontinuance of steps to enforce such a power or right, preclude any other or further exercise thereof or the exercise of any other power or right. No waiver by a Party of any provision of this Agreement or consent to any departure therefrom shall in any event be effective
unless the same shall be in writing and signed by such Party, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Notwithstanding anything to the contrary contained herein, First American shall not amend, or cause the Company to amend, any of the provisions of this Agreement or terminate this Agreement unless (a) the holders of a majority of the shares of Company Common Stock then outstanding (calculated without reference to any Shares
held by First American and its Affiliates (as defined in the Merger Agreement)) approve a proposal submitted by the Company’s board of directors authorizing such amendment or (b) a majority of the Audit Committee shall approve a resolution authorizing such amendment or termination.
5.7. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL SUBSTANTIVE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD
TO THE CONFLICT OF LAWS RULES THEREOF.
5.8. Confidentiality.
(a) Confidential Company Information. First American will, and will cause its Affiliates to, hold all Confidential Company Information confidential and will not
disclose any such Confidential Company Information to any Person except as may be required to perform the Business Services, as authorized in advance by the Company or its Affiliates in writing or otherwise, or as may be required by law, in which case First American shall promptly provide notice to the Company that such Confidential Company Information has been subpoenaed or otherwise demanded, so that the Company may seek a protective order or other appropriate remedy. First American will, and will cause its
Affiliates to, use its reasonable best efforts (but without out-of-pocket costs or expense) to obtain or assist the Company in obtaining such protective order or other remedy.
(b) Confidential FAF Information. The Company will, and will cause its Affiliates to, hold all Confidential FAF Information confidential and will not disclose
any such Confidential FAF Information to any Person except as may be required to perform Company Services for First American Entities hereunder, as authorized in advance by First American in writing or otherwise, or as may be required by law, in which case the Company shall promptly provide notice to First American that such Confidential FAF Information has been subpoenaed or otherwise demanded, so that First American may seek a protective order or other appropriate remedy. The Company will, and will
cause its Affiliates to, use its reasonable best efforts (but without out-of-pocket costs or expense) to obtain or assist First American in obtaining such protective order or other remedy.
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5.9. Legal Enforceability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without affecting the validity or enforceability of the remaining provisions hereof. Any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable.
5.10. Capacity. Each of the Parties hereto acknowledges and agrees that First American and each of its Affiliates is acting solely as an agent of the Company
in rendering the Business Services hereunder and nothing herein contained, express or implied, is intended to create any other relationship, whether as principal or otherwise.
5.11. Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute
one and the same instrument.
5.12. Complete Agreement. This Agreement, the Merger Agreement and the agreements expressly contemplated hereby and thereby set forth the entire understanding
of the Parties with respect to the subject matter hereof and thereof and supersede all prior letters of intent, agreements, covenants, arrangements, communications, representations, or warranties, whether oral or written, by any officer, employee, or representative or any Party relating thereto.
5.13. Affiliates. Each of First American and the Company shall cause each of its relevant Affiliates to comply with its obligations under this Agreement.
5.14. Representations. Each Party hereby represents and warrants to the other Party that (a) it has the corporate power and authority to execute, deliver and
perform this Agreement, (b) the execution, delivery and performance of this Agreement has been duly authorized by it, and (c) this Agreement is a valid and binding agreement enforceable against such Party according to its terms, except as may be limited by laws affecting creditors’ rights generally or equitable principles generally.
5.15. Effect. The Amended Services Agreement is hereby terminated. Any future reference to the Amended Services Agreement shall from and after the date hereof be deemed to be a reference to this Agreement.
* * *
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IN WITNESS WHEREOF, each of the Parties has caused its corporate name to be hereunto subscribed by its officer thereunto duly authorized, all as of the day and year first above written.
| THE FIRST AMERICAN CORPORATION | |||
|
|
By: |
/s/ Xxx XxXxxxxxx | |
| Name: Xxx XxXxxxxxx | |||
| Title: Executive Vice President | |||
| FIRST ADVANTAGE CORPORATION | |||
|
|
By: |
/s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | |||
| Title: Executive Vice President and CFO | |||
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Schedule I
BUSINESS SERVICES
|
Column A – Service |
Column B – Price |
|
1. Business Services including solely the following services:
a. Mortgage marketing services (excluding commissions paid pursuant to sales compensation plans or other direct costs, provided that the Company shall not be obligated to pay any fees for additional direct costs in the event that such
direct costs are in excess of $20,000 per incident);
b. Benefits administration (including administration of the following plans: 401k; employee pension; employee stock purchase plan; workers compensation; and plan document updates; but excluding a company car program);
c. Technology Support Services:
i. Oracle systems license and support (*up to a maximum of 5,500 support and development hours) and related Disaster Recovery services; and
ii. Web Service Platform and related Disaster Recovery services.
2. Additional Oracle support and development hours (*beyond the 5,500 included in the Business Services flat fee)
3. Any additional services not otherwise itemized herein
|
Total flat fee of $3,900,000 per
calendar year – itemized as follows:
$1,150,000
$50,000
$2,200,000
$500,000
$120 per hour
Actual cost (or if not a direct cost, then the fee otherwise that would be charged/allocated to another First American Affiliate) |
Schedule II
FAOS SERVICES
1. Leasing of real and personal property in India
2. Management support for Indian operations
3. Human resources/payroll support in India
4. Services incidental to the provision of the foregoing services
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