EXHIBIT 10.10
ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT (the "Agreement") is made and
entered into as of July 1, 1998 between THE XXXXXXX-XXXXX COMPANY, a California
corporation ("Xxxxxxx-Xxxxx"), and 800-U.S. SEARCH, a California corporation
("U.S. Search").
WHEREAS, for a period of time, U.S. Search requires certain services for
its business that it currently cannot provide for itself;
WHEREAS, Xxxxxxx-Xxxxx is willing to provide such services to U.S. Search;
and
WHEREAS, the parties hereto wish to provide for the sharing of employees
and other costs between Xxxxxxx-Xxxxx and U.S. Search upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, covenants and agreements
hereinafter contained and other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. SERVICES TO BE PROVIDED. During the Term (as defined below), Xxxxxxx-
Xxxxx will provide, or will cause to be provided, to U.S. Search, such general
administrative services as are reasonably requested from time to time by U.S.
Search and are reasonably capable of being provided by Xxxxxxx-Xxxxx, in
Xxxxxxx-Xxxxx'x sole determination, at such time, including but not limited to,
financial management services, employee benefits administration, accounting and
other services (collectively, the "Services"). Unless otherwise agreed by
Xxxxxxx-Xxxxx, the Services will be performed in Los Angeles, California, and
Xxxxxxx-Xxxxx will not be required to render any services that would necessitate
that Xxxxxxx-Xxxxx agree to be subject to service of process or qualify to do
business in any other jurisdiction where it would otherwise not be required to
be so subject or so qualified. If the provision of any Service is terminated or
is no longer performed by Xxxxxxx-Xxxxx, then Xxxxxxx-Xxxxx shall not be
obligated to reinstate providing such Services unless Xxxxxxx-Xxxxx shall agree
thereto in writing.
Employees or consultants performing the Services shall be employees or
consultants of Xxxxxxx-Xxxxx, and Xxxxxxx-Xxxxx shall be responsible for the
hiring, discharge, supervision and management of such employees and consultants
and the establishment and revision of all terms of such employment or consulting
relationship, including, without limitation, wage scales, rates of compensation,
employee benefits, rates and conditions of employment, inservice training and
job and position descriptions with respect to such employees and consultants.
Nothing herein shall be deemed to preclude U.S. Search from hiring its own
personnel to perform all or any of the Services or from obtaining all or any of
the Services from other sources or suppliers if such Services or comparable
Services can be obtained from such alternate sources or suppliers on terms and
conditions more favorable to U.S. Search than those provided by Xxxxxxx-Xxxxx.
1.
2. FEES FOR SERVICES. U.S. Search shall pay to Xxxxxxx-Xxxxx, for the
provision of the Services, the sum of Thirty Five Thousand Dollars ($35,000) per
month during the Term (the "Fee"), payable on the first of each month commencing
July 1, 1998; provided, however, that in the event U.S. Search hires its own
personnel and/or uses other sources or suppliers to perform Services, the Fee to
be paid after U.S. Search hires such personnel or uses such other sources or
suppliers (assuming that Xxxxxxx-Xxxxx does not provide such Services for the
applicable period) shall be decreased by an amount reasonably agreed upon by the
parties; provided, further, however, that if after the reduction, if any, of the
Fee pursuant to the immediately preceding proviso the Fee would be reduced to
zero, this Agreement, other than the provisions of Section 4 hereof, shall
terminate.
3. PERFORMANCE OF SERVICES. Xxxxxxx-Xxxxx shall use commercially
reasonable efforts to perform all the Services to be performed under this
Agreement in a manner consistent with past practice or any such improved
practices as Xxxxxxx-Xxxxx deems prudent. Nothing provided herein shall require
Xxxxxxx-Xxxxx to violate any agreement with any third party. U.S. Search shall
provide direction to Xxxxxxx-Xxxxx where business decisions arc required in the
performance of the Services. Where necessary for the performance of the Services
hereunder, U.S. Search shall designate Xxxxxxx-Xxxxx as its authorized agent.
U.S. Search shall promptly notify Xxxxxxx-Xxxxx of any instance where
Services are considered by U.S. Search to be unsatisfactorily performed. Upon
receipt of any such notice, Xxxxxxx-Xxxxx shall promptly investigate U.S.
Search's claim and if Xxxxxxx-Xxxxx finds such claim to be justified, it shall
act to correct such unsatisfactory Services.
4. LIMITATION OF LIABILITY; INDEMNIFICATION.
(a) LIMITATION OF LIABILITY. Xxxxxxx-Xxxxx and its affiliates, and
the officers, directors, employees, shareholders, partners, agents, consultants
and other representatives (collectively, the "Representatives") of Xxxxxxx-Xxxxx
and/or its affiliates shall not be liable to U.S. Search, its affiliates, or to
any Representative of U.S. Search or its affiliates, for any obligation, cost,
damage, claim, demand, debt, expense, loss, judgment, assessment or other
liability, including, without limitation, any special, indirect, consequential
or punitive damages, any court costs, costs of preparation or attorneys' fees or
expenses, or any accountant's or expert witness' fees (collectively,
"Liabilities") (i) arising out of, in connection with or related to, or any
allegations with respect thereto, of Xxxxxxx-Xxxxx'x or any of its affiliates'
or any of their respective Representatives' actions or failures to act with
respect to the Services to be provided hereunder, or (ii) as a result of U.S.
Search's or any of its affiliates' or any of their respective Representatives'
reliance on any advice or data that Xxxxxxx-Xxxxx, any of its affiliates, any
person or entity providing Services hereunder or any of their respective
Representatives may provide pursuant to this Agreement; provided, however, that
the foregoing shall not apply to limit any Liability of a party only to the
extent that such Liability is determined by a judgment of a court of competent
jurisdiction which is no longer subject to appeal or further review to have
resulted primarily from such party's gross negligence or willful misconduct in
connection with the provision of any of the Services.
2.
(B) INDEMNIFICATION. U.S. Search shall indemnify and hold harmless
the Representatives from and against any Liabilities which any Representative
may sustain or incur by reason of any claim, action, demand, allegation, suit or
recovery by any person or entity (i) arising out of, in connection with or
related to, this Agreement, or any allegations with respect thereto, or (ii)
arising out of, in connection with or related to, the performance or failure to
perform in accordance with this Agreement, by any of the Representatives, or any
allegations with respect thereto; provided, however, that U.S. Search will not
be responsible for any Liabilities of any Representative that are determined by
a judgment of a court of competent jurisdiction which is no longer subject to
appeal or further review to have resulted primarily from such Representative's
gross negligence or willful misconduct in connection with the provision of any
of the Services. U.S. Search also agrees to reimburse any Representative for all
court costs, reasonable attorneys' fees or expenses, and any accountant's or
expert witness' fees, as they are incurred in connection with enforcing such
Representative's indemnification rights under this Agreement.
5. TERM AND TERMINATION. The initial term of this Agreement (the "Term")
shall commence as of July 1, 1998 and end twelve (12) months thereafter, unless
sooner terminated by Xxxxxxx-Xxxxx or U.S. Search on not less than (other than
in connection with the second proviso of Section 2 hereof) thirty (30) days'
prior written notice; provided, however, that the provisions of Section 4 hereof
shall survive termination of this Agreement, whether upon the end of the Term or
otherwise.
6. SUCCESSORS AND ASSIGNS: NO THIRD PARTY BENEFICIARIES. The rights and
obligations of any party to this Agreement shall not be assignable without the
prior written consent of the other party. This Agreement shall be binding upon
and inure to the benefit of the successors and permitted assigns of the parties.
Except as specifically set forth in Section 4 hereof, nothing contained in this
Agreement is intended to confer upon any person or entity, other than the
parties and their respective successors, permitted assigns and nominees, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
7. RELATIONSHIP OF THE PARTIES. In all matters relating to this
Agreement, each party hereto shall be solely responsible for the acts of its
Representatives, and Representatives of one party shall not be considered
employees or Representatives of the other party. Except as otherwise provided
herein, no party shall have any right, power or authority to create any
obligation, express or implied, on behalf of any other party. In performing the
Services or causing Services to be performed for U.S. Search hereunder. Xxxxxxx-
Xxxxx shall be acting as an independent contractor to U.S. Search and nothing in
this Agreement is intended to create or constitute a joint venture, partnership
or similar relationship between the parties hereto or persons or entities
referred to herein.
8. U.S. SEARCH'S CORPORATE POWERS. Nothing herein shall be construed to
relieve the directors or officers of U.S. Search from the performance of their
respective duties or limit the exercise of their powers. Nothing herein shall
give Xxxxxxx-Xxxxx the power to take any actions on behalf of U.S. Search not
properly delegated to Xxxxxxx-Xxxxx that are within the authority of U.S.
Search's directors or officers.
3.
9. FORCE MAJEURE. If Xxxxxxx-Xxxxx is prevented from performing any
Services hereunder, in whole or in part, as a result of delays caused by U.S.
Search or any act of God, war, civil disturbance, court order, strike, labor
dispute, earthquake, fire, flood, hurricane, tornado or other casualty of
similar nature, shortages of labor or material, law or regulation of any
governmental authority or body, or other cause beyond the reasonable control of
Xxxxxxx-Xxxxx, such nonperformance shall not be a default hereunder. Xxxxxxx-
Xxxxx shall take all reasonable actions to resume performance of its obligations
hereunder as soon as feasible after the resolution of such event or occurrence
causing such delay.
10. MISCELLANEOUS PROVISIONS.
(A) GOVERNING LAW. This Agreement shall be governed by, construed,
interpreted and enforced in accordance with the laws or the State of California
without regard to the conflict of laws principles of such state. The parties
hereto agree that all actions or proceedings arising in connection with this
Agreement shall be tried and litigated exclusively in the state and federal
courts located in the County of Los Angeles, State of California. The
aforementioned choice of venue is intended by the parties hereto to be mandatory
and not permissive in nature, thereby precluding the possibility of litigation
between the parties hereto with respect to or arising out of this Agreement in
any jurisdiction other than that specified in this paragraph. Each of the
parties hereto hereby waives any right it may have to assert the doctrine of
forum non conveniens or similar doctrine or to object to venue with respect to
any proceeding brought in accordance with this paragraph, and stipulates that
the state and federal courts located in the County of Los Angeles, State of
California shall have in personam jurisdiction and venue over each of them for
the purpose of litigating any dispute, controversy or proceeding arising out of
or related to this Agreement. Each of the parties hereto authorizes and accepts
service of process sufficient for personal jurisdiction in any action against it
as contemplated by this paragraph according to the procedure for the giving of
notices as set forth in this Agreement. Any final judgment rendered against
either of the parties hereto in any action or proceeding shall be conclusive as
to the subject of such final judgment and may be enforced in other jurisdictions
in any manner provided by law.
(B) NOTICES. All notices, requests and other communications under
this Agreement shall be in writing and shall be deemed to have been delivered 72
hours after having been mailed in a general or branch post office and enclosed
in a registered or certified postage prepaid envelope; 24 hours after having
been sent by recognized overnight courier; or when personally delivered; and, in
each case, addressed to the respective parties at the addresses stated below or
to such other changed addresses that the parties may have fixed by notice in
accordance herewith:
If to Xxxxxxx-Xxxxx: The Xxxxxxx-Xxxxx Company
00000 Xxxxxxxx Xxxx., 00/xx/ Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000)000-0000
4.
If to U.S. Search: 800-U.S. Search
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(C) SECTION HEADINGS. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
(D) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(E) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements representations,
warranties, statements, promises, information, arrangements and understandings,
whether oral or written, express or implied, with respect to the subject matter
of this Agreement.
(F) AMENDMENT; WAIVER. Neither this Agreement nor any term or
provision hereof may be amended, waived, discharged or modified other than by a
written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or modification is sought. Any amendment shall be
effective and binding on all of the parties hereto. Any waiver of the
application of any term or provision herein or breach hereof shall not be deemed
to be a waiver of any other term, provision or breach and shall not be deemed a
waiver of any subsequent application of such term or provision or the occurrence
of a subsequent breach.
(G) SPECIFIC PERFORMANCE. Each of the parties hereto acknowledges and
agrees that (i) monetary damages would be an inadequate remedy for a breach of
any of the provisions of this Agreement, (ii) each party shall therefore be
entitled to specific performance of its rights under this Agreement without
obligation to post bond or other security in seeking such relief and (iii) in
the event of any action for specific performance of any right under this
Agreement by any party hereto against the other party hereto (such latter party,
the "Defending Party"), the Defending Party shall waive the defense that a
remedy at law would be adequate.
(H) ATTORNEY'S FEES. In any action or proceeding brought by any party
hereto to enforce any provision of this Agreement, or where any provision hereof
is validly asserted as a defense, the successful party shall be entitled to
recover reasonable attorney's fees and expenses, in addition to its cost and
expense and any other available remedy, associated with such action or
proceeding as may be fixed by any court of competent jurisdiction, or other
judicial or quasijudicial body (including, without limitation, an arbitrator or
arbitrators) having jurisdiction thereof whether or not such action or
proceeding results in a final judgment or award.
5.
(I) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
IN WITNESS WHEREOF, the parties hereto have executed this Administrative
Services Agreement to be effective as of the date first above written.
THE XXXXXXX-XXXXX COMPANY
By: /s/ Xxxxx Xxxxx
------------------------------------
Name:_____________________________
Title:____________________________
800-U.S. SEARCH
By: /s/ Xxxxxxxx Xxxxxxxxx
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Name:_____________________________
Title:____________________________
6.