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THIRD AMENDED AND RESTATED SERVICES AGREEMENT

Consulting Services Agreement

THIRD AMENDED AND RESTATED SERVICES AGREEMENT | Document Parties: FIRST AMERICAN CORPORATION You are currently viewing:
This Consulting Services Agreement involves

FIRST AMERICAN CORPORATION

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Title: THIRD AMENDED AND RESTATED SERVICES AGREEMENT
Governing Law: California     Date: 7/30/2009
Industry: Business Services     Sector: Services

THIRD AMENDED AND RESTATED SERVICES AGREEMENT, Parties: first american corporation
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Exhibit 10.1

 

THIRD AMENDED AND RESTATED

SERVICES AGREEMENT

 

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.

 

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 .

 

(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

 

Service Level

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)

 

2.

System (DataHQ) uptime

99.5%

 

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 Fannie Mae

 

4.

Customer service metrics for developed mortgage reports

Merge Plus:                                           24 hours

Residential Mortgage

Credit Report (RMCR):                                           48 hours

 

5.

Average speed of answer (ASA)

80% or greater of calls to be answered within 30 seconds

6.

Abandonment rate

Less than 5%

 

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


 
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