EX-10.10 6 dex1010.htm LOANED PERSONNEL AGREEMENT BY AND BETWEEN FIRST AMER REAL ES AND FIRST ADVANTAGE LOANED PERSONNEL AGREEMENT
Exhibit 10.10
This LOANED PERSONNEL AGREEMENT (this “Agreement”), effective as of September 14, 2005 (the “Effective Date”), by and between FIRST AMERICAN REAL ESTATE SOLUTIONS, LLC, a California limited liability company (“FARES”) and FIRST ADVANTAGE CIG LLC a Florida limited liability company (“FADCIG”). FARES and FADCIG are also referred to collectively as the “Parties” and individually as a “Party.” Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Master Transfer Agreement (as defined below).
1.2.1 The Parties hereto acknowledge and agree that the Existing Employees are, at the Effective Date, and shall continue during the Loan-Out Period to be, employees of FARES, and are not and shall not for any purpose during the Loan-Out Period be deemed to be employees of FADCIG, except pursuant to Section 1.2.3 hereof. Until such time as an Existing Employee ceases to be an employee of XXXXX, XXXXX shall be solely responsible for and pay all of the salary, benefits, workers’ compensation premiums, unemployment insurance premiums and other compensation of such Existing Employee (collectively, “Compensation and Benefits”), including the costs of participation by such Existing Employee in the employee benefit plans of
FARES and its Affiliates, if applicable. Until such time as an Existing Employee ceases to be an employee of XXXXX, XXXXX shall be solely responsible for timely payment, withholding and reporting of all applicable Federal, state and local withholding, employment and payroll taxes with respect to such Existing Employee. Until such time as an Existing Employee ceases to be an employee of XXXXX, XXXXX shall maintain workers’ compensation and employers’ liability insurance, in accordance with applicable law, covering such Existing Employee. FARES shall furnish FADCIG with copies of certificates of insurance or other documentary evidence of such insurance coverage upon FADCIG’s reasonable request. Until such time as an Existing Employee ceases to be an employee of XXXXX, XXXXX shall remain the sole employer of such Existing Employee, but the work performed by such Existing Employee shall, during the Loan-Out Period, be subject to the final approval of FADCIG or an Affiliate thereof. Notwithstanding the foregoing, the Existing Employees shall report directly and exclusively to FADCIG and FADCIG shall be solely responsible for the direction, supervision, management and performance of the Existing Employees. FADCIG shall be solely responsible for the results of performance of such Existing Employees and all related quality control measures. In no event shall FARES or FARES LLC be responsible for the management, supervision, direction, performance or work product of such Existing Employee in performing the Services; provided, however, that FARES may, but shall have no obligation to, participate in the supervision of such services, and may, if it so desires, participate in the means, manner and method by which such services are to be performed, and the failure of FARES to participate in such supervision shall in no way constitute gross negligence or willful misconduct on the part of FARES for the purposes of Section 4.1 hereof.
1.2.2 FADCIG shall make a good faith offer of regular employment to all Existing Employees on or before the Termination Date. For those Existing Employees who accept such offer of employment with FADCIG (“Continuing Employees”), FARES agrees that it shall be solely responsible for all Compensation and Benefits accruing or earned prior to the date any Existing Employee commences employment with FADCIG (the “FADCIG Employment Commencement Date”), subject to reimbursement pursuant to Section 2. FADCIG agrees that it shall be responsible for all Compensation and Benefits accruing or earned on and after the FADCIG Employment Commencement Date by Continuing Employees; provided, that in the event that length of service is relevant for purposes of eligibility or vesting with respect to any Compensation or Benefits to be provided by FADCIG after the FADCIG Employment Commencement Date, such plan, program or arrangement shall credit each Continuing Employee with the same length of service as such Continuing Employee has been credited with by Seller or FARES as of the FADCIG Employment Commencement Date; provided, further, that FADCIG shall honor all vacation which has accrued to, but not been used by, any Continuing Employee as of September 14, 2005. Each Continuing Employee shall cease active participation in any employee benefit plan or arrangement of FARES or its Affiliates in which such Continuing Employee participated immediately prior to the FADCIG Employment Commencement Date (collectively “Benefit Plans”), except to the extent FADCIG employees also participate in such Benefit Plans or arrangements or to the extent FARES and FADCIG expressly agree otherwise in writing. FARES and FADCIG shall cooperate to minimize the aggregate amount of any employer’s obligation for employment and payroll taxes (including, without limitation, FICA taxes) in respect of any Continuing Employee.
2.2.1 “Loan-Out Fee” means an aggregate monthly charge in an amount equal to the sum of (i) the actual cost to FARES and its Affiliates of providing cash and non-cash benefits earned by such Existing Employee, together with all taxes payable thereon and all Reimbursable Expenses.
2.2.2 “Reimbursable Expenses” means all reasonable travel and entertainment and similar out-of-pocket third party expenses incurred by the Existing Employees in connection with the performance of their services to FADCIG hereunder.
SECTION 3. TERM AND TERMINATION
4.1. FADCIG shall hold harmless and indemnify each of FARES and its Affiliates (each, an “FARES Indemnitee”) from and against all losses, liabilities, costs, fines, damages and expenses (including, without limitation, reasonable attorney’s fees) (collectively, “Losses”) actually incurred by such FARES Indemnitee to the extent such Losses arise directly from (i) any breach of any representation, warranty, covenant or agreement made by FADCIG in this Agreement or (ii) any act or omission of FADCIG during the Loan-Out Period in contravention
of any applicable law, regulation, rule, ordinance or court order with respect to any Existing Employees, except in each case to the extent such Losses are attributable to the gross negligence or willful misconduct of such FARES Indemnitee or (b) are the result of, arise from or are in connection with the services rendered after the Effective Date hereof by any Existing Employee pursuant hereto, except in each case to the extent such Losses are attributable to the gross negligence or willful misconduct of such FARES Indemnitee; provided, however, that no act or omission of any Existing Employee after the Effective Date shall constitute gross negligence or willful misconduct on the part of an FARES Indemnitee.
4.2. FARES shall hold harmless and indemnify each of FADCIG and its Affiliates (each, a “FADCIG Indemnitee”) from and against all Losses actually incurred by such FADCIG Indemnitee to the extent such Losses arise directly from (i) any breach of any representation, warranty, covenant or agreement made by FARES in this Agreement.
4.3. FARES’s maximum liability under this Agreement shall be limited to the charges paid to FARES hereunder. In no event, shall FARES be liable hereunder for any consequential, incidental or punitive loss, damage or expense or lost profits even if it has been advised of their possible existence.
SECTION 5. NO THIRD PARTY BENEFICIARIES
This Agreement is solely for the benefit of the Parties, and their successors and assigns, and no provisions of this Agreement shall be deemed to confer upon any other persons or entities, including, without limitation, the Existing Employees or Continuing Employees, any right, remedy, claim, liability, reimbursement, cause of action or other right, or constitute such other persons or entities as intended or incidental third party beneficiaries to this Agreement.
SECTION 6. MISCELLANEOUS PROVISIONS
If to FADCIG: | First Advantage CIG, LLC Xxx Xxxxxxxx Xxxxx Xxxxx 0000 Xx. Xxxxxxxxxx, XX 00000 Telephone: (000) 000-0000 Telecopier: (000) 000-0000 Attention: Legal Department |
If to FARES: | First American Real Estate Solutions LLC 00000 Xxxxx Xxxxxxxx Xxx Xxxxx, XX 00000 Attention: | |||
Telephone: (000) 000-0000 | ||||
Facsimile: (000) 000-0000 |
with copies (which shall not constitute notice) to: | The First American Corporation 0 Xxxxx Xxxxxxxx Xxx Xxxxx Xxx, Xxxxxxxxxx 00000 | |||
Attention: Telephone: Facsimile: | General Counsel (000) 000-0000 (000) 000-0000 |
6.5. Amendment. This Agreement may be amended only by a written agreement executed by the Parties.
6.7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO ITS CONFLICT OF LAWS DOCTRINE.
6.8. Jurisdiction. Except as provided in Section 2.4, each Party agrees that any legal action or proceeding with respect to this Agreement may be brought in the Courts of the State of Florida sitting in St. Petersburg, Florida or the United States District Court for the Middle District of Florida and, by execution and delivery of this Agreement, each Party hereby irrevocably submits itself in respect of its property, generally and unconditionally to the non-exclusive jurisdiction of the aforesaid courts in any legal action or proceeding arising out of this Agreement. Each of the Parties hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection with this Agreement brought in the courts referred to in the preceding sentence. Each Party consents to process being served in any such action or proceeding by the mailing of a copy thereof to the address for notices to it set forth herein and agrees that such service upon receipt shall constitute good and sufficient service of process or notice thereof. Nothing in this
paragraph shall affect or eliminate any right to serve process in any other matter permitted by law.
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FIRST AMERICAN REAL ESTATE SOLUTIONS LLC | ||
By: | /s/ XXXXXXX X. XXXXXXXXX | |
Name: | Xxxxxxx X. XxXxxxxxx | |
Title: | Vice President | |
FIRST ADVANTAGE CIG, LLC | ||
By: | /s/ XXXXX XXXXXX | |
Name: | Xxxxx Xxxxxx | |
Title: | Vice President and General Counsel |
SCHEDULE 1.1
EMPLOYEE NAME | SALARY | DAILY RATE OF PAY |