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.
“ 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.
“ 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.
“ 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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Principles
of Construction .
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(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.
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.
(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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Mortgage
Consumer Reports and Services .
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(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.
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Hours of system
(DataHQ) availability
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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.
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System (DataHQ)
uptime
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99.5%
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3.
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Turn time for
Instant Merge Reports
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95% of
transactions in under 20 seconds, or such other better service
level required from time to time by Fannie Mae
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4.
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Customer
service metrics for developed mortgage reports
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Merge
Plus: 24
hours
Residential
Mortgage
Credit Report
(RMCR): 48
hours
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5.
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Average speed
of answer (ASA)
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80% or greater
of calls to be answered within 30 seconds
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6.
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Abandonment
rate
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Less than
5%
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7.
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Consumer
disputes
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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
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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