NOTE: Portions of this agreement on pages 4, 16-25 and 28 have been omitted
pursuant to a request for confidential treatment submitted to the
Securities and Exchange Commission, as further indicated on those
pages.
CONFIDENTIAL
CREDIT REPORTING COMPANY AGREEMENT
THIS CREDIT REPORTING COMPANY AGREEMENT (this "Agreement") is made
effective as of this 1st day of January, 2000 by and between Factual Data
Corporation a Colorado corporation with its principal office located at 0000
Xxxxx Xxxx Xxxxx, Xxxxxxxx, XX 00000 ("the CRC"), and FEDERAL HOME LOAN MORTGAGE
CORPORATION ("Xxxxxxx Mac"), a federal instrumentality with offices located at
0000 Xxxxx Xxxxxx Xxxxx, XxXxxx, Xxxxxxxx 00000-0000.
WHEREAS, the CRC stores, publishes and distributes credit information
on individuals (the "Credit Information"); and
WHEREAS, Xxxxxxx Mac is the licensor of an automated underwriting
system (the "System"), which provides the Loan Prospector(R) service;
WHEREAS, certain of Xxxxxxx Mac's customers (the "Customers") may use
the System, among other things, to order Credit Information from the CRC; and
WHEREAS, the CRC has successfully implemented a telecommunications line
with Xxxxxxx Mac's communications service provider (the "Communications
Provider") on terms and conditions previously agreed upon by Xxxxxxx Mac, the
Communications Provider and the CRC for the purpose of communicating
electronically with the System;
Whereas, the CRC has certain users of its mortgage credit reporting system
("Technical Affiliates"), that are also consumer reporting agencies;
Whereas, the CRC and Xxxxxxx Mac are desirous of authorizing certain of the
Technical Affiliates to provide Services to Customers under the terms and
conditions set forth in this Agreement to so provide; and
NOW, THEREFORE, in consideration of the mutual promises herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. PROVISION OF THE CREDIT INFORMATION.
(a) Customer Set-Up. Upon receipt of a request from a Customer or
Xxxxxxx Mac, the CRC shall set up an account for Customer so that Customer may
order credit information from CRC through the System. When each Customer set-up
is complete, the CRC shall inform Xxxxxxx Mac. Xxxxxxx Mac shall design the
System so that only
CONFIDENTIAL
Customers that have been set-up by the CRC will be able to access the CRC's
Credit Information through the System.
(b) Credit Inquiries. Upon receipt of a request from the System for
information on an individual, the CRC agrees to order the credit information
from Equifax, TransUnion and Experian (the "Credit Repositories") using either
the CRC's subscriber number or the CRC's subscriber number for the Customer. The
CRC agrees that under no circumstances will it report to any of the Credit
Repositories that an inquiry was made by the System or by Xxxxxxx Mac. In no
event will Xxxxxxx Mac be responsible for the acts or omissions of the
Customers, including, without limitation, any uses made of the Credit
Information by the Customer.
(c) Merged Reports. Upon receipt of credit information in response to a
Customer request, the CRC shall produce a Merged Report for the Customer. A
Merged Report is defined as a report prepared by the CRC using credit
information (sometimes referred to as "infile data") obtained from the Credit
Repositories and merge procedures and programs developed by the CRC. The Service
Level Requirements for the Merged Reports are set forth in Section II of EXHIBIT
B to this Agreement.
(d) Interfaces and Quality Assurance. At all times during the term of
this Agreement the CRC shall maintain its telecommunications line with the
Communications Provider for the purpose of transmitting information to and
receiving information from the System, including paying all costs associated
with operating and maintaining the line. In addition, the CRC shall establish
and test such interfaces and systems as are necessary to comply with the
requirements of this Agreement. Furthermore, prior to transmitting any Credit
Information to the System, the CRC will conduct stringent quality assurance
tests to ensure that the Credit Information meets the requirements of EXHIBIT A
to this Agreement. The CRC will make its methodology and the results of such
quality assurance tests available to Xxxxxxx Mac. Xxxxxxx Mac will review the
test results and provide written approval or other feedback. Xxxxxxx Mac also
will have the right to conduct such quality assurance tests as it deems
appropriate from time to time, and the CRC will provide such assistance to
Xxxxxxx Mac as Xxxxxxx Mac may reasonably request in connection therewith.
2. RELATED SERVICES.
(a) Description of Services. The related services to be provided by the
CRC in connection with this Agreement are set forth in EXHIBIT A attached
hereto. All services performed by the CRC under this Agreement (the "Services")
will be performed in a highly professional, timely and responsive manner and in
accordance with the requirements of and standards set forth in this Agreement,
including (without limitation) Exhibits A and B. The CRC shall begin performing
the Services on the date indicated by Xxxxxxx Mac. The compensation terms stated
in Section 4 below represent the entire
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CONFIDENTIAL
compensation for Services to be performed by the CRC under this Agreement,
unless otherwise expressly agreed by the parties in writing.
(b) CRC Account Manager. At all times during the term of this
Agreement, the CRC agrees to provide a qualified account manager to act as a
single point of contact to assist with problem resolution and other issues
arising out of this Agreement. The initial CRC account manager will be Xxxxxx
Xxxxxxx. In the event Xxxxxxx Mac is dissatisfied with a CRC account manager,
and any problems identified by Xxxxxxx Mac are not addressed to Xxxxxxx Mac's
satisfaction within thirty (30) days after notice, the CRC will appoint a new
account manager immediately upon request by Xxxxxxx Mac. The CRC agrees to
notify Xxxxxxx Mac within twenty-four (24) hours if it replaces the CRC account
manager during the term of this Agreement.
(c) Xxxxxxx Mac Account Manager. Xxxx Xxxxxx Xxxxx shall serve as the
Xxxxxxx Mac account manager with regard to this Agreement. Xxxxxxx Mac will
notify the CRC if it replaces the Xxxxxxx Mac account manager during the term of
this Agreement.
3. TERM; TERMINATION. The term of this Agreement will commence on the effective
date hereof and will automatically expire at 11:59 p.m. on December 31, 2000
unless the term is extended by mutual written agreement of the parties. This
Agreement will automatically terminate if Xxxxxxx Mac shall at any time
discontinue offering Customers automated underwriting services through the
System.
(a) Xxxxxxx Mac reserves the right to terminate this Agreement for any reason in
its sole discretion upon thirty (30) days notice to the CRC. Notwithstanding the
provisions of Section 12(k) below, notice shall be deemed sufficient if made by
telephone and confirmed in writing within forty-eight (48) hours, said writing
to be sent in the manner provided in Section 12(k), in which event notice, shall
be deemed to have been given at the time of the telephone call. Xxxxxxx Mac will
direct its telephone call to the CRC account manager.
(b) In the event that Xxxxxxx Mac terminates this Agreement for convenience only
and not due to a breach of the CRC's representations, warranties or other
agreements hereunder, then subject to the requirements and limitations set forth
in Section 4 below, Xxxxxxx Mac shall pay the CRC for all Services rendered
under this Agreement prior to the date of termination, but shall have no other
liabilities or obligations to the CRC hereunder. In the event that Xxxxxxx Mac
terminates this Agreement for cause and it is subsequently determined that
sufficient cause for termination did not exist, the termination shall
automatically be converted into a termination for convenience, and Xxxxxxx Mac
shall be obligated to pay the CRC in accordance with the provisions of the
immediately preceding sentence, but shall have no other liabilities or
obligations to the CRC hereunder.
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CONFIDENTIAL
4. COMPENSATION.
(a) *
(b) Monthly Invoices. The CRC shall submit its monthly invoices to
Xxxxxxx Mac in both hard copy and on disk. Each monthly invoice submitted by the
CRC will include the following: (i) summary information of the charges reflected
therein, (ii) detailed information broken down by Customer, including Xxxxxxx
Mac's System key number, transaction number and Customer number, and (iii) a
further breakdown of the charges by borrower name (including date of transaction
and type of request [single or joint]). Monthly invoices will also include such
additional reasonable detail and back-up documentation as Xxxxxxx Mac may
request from time to time. Xxxxxxx Mac will pay charges incurred and reflected
in a properly documented monthly invoice within thirty (30) days after receipt
of the invoice. In the event of any questions or disputes related to any
invoice, Xxxxxxx Mac will pay the undisputed portion of the invoice within
thirty (30) days after receipt and will pay any remaining amounts within twenty
(20) days after all questions and disputes have been resolved to Xxxxxxx Mac's
satisfaction.
5. WARRANTIES.
(a) CRC's Warranties. The CRC represents and warrants that (i) it will
use all reasonable efforts to ensure the accuracy of the Credit Information,
(ii) it has, and will throughout the term of the Agreement have, all licenses
and permits necessary to provide the Credit Information and perform any services
hereunder, (iii) the Credit Information will be prepared and provided and any
services performed in compliance with all applicable laws, regulations, licenses
and professional standards, and (iv) it will use its best efforts to ensure that
the Merged Reports and any electronic communications from the CRC to Xxxxxxx Mac
will at all times be and remain free of computer viruses and any code designed
to cause the System to malfunction or self-destruct or to allow unauthorized
access or cause harm to the System.
The CRC warrants that during the term of this agreement, the occurrence or
use in any of the Merged Reports, or in any data transmission by the CRC to the
System, of dates on or after January 1, 2000 ("Millennial Dates"), will not
adversely affect the System's performance with respect to date-dependent data,
output or other functions. The CRC further warrants that, at the request of
Xxxxxxx Mac, upon reasonable notice, the CRC will provide evidence sufficient to
demonstrate adequate transmission of Merged
* The contents of Section 4(a) have been omitted pursuant to a request for
confidential treatment submitted to the Securities and Exchange Commission.
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CONFIDENTIAL
Reports or other data that is within the CRC's control to the System to meet the
foregoing requirements.
The CRC warrants that the branch offices will only receive electronic copies of
files for clients that they service. The branch offices will not have access to
files of clients that they do not service. Factual Data Corp (FDC) will have
access to all files, regardless of location. The branch offices cannot, and
never will have, access to the FDC secure merged logic source code, system
architecture or FDC Loan Prospector communication access point. Neither the
branch offices or FDC have access to the Loan Prospector System as a user. The
only access point with Xxxxxxx Mac is a secure communication point at the FDC
technology center. Additionally, files copied to the offices and at FDC have
secure locks on all identifying social security numbers.
The branch offices will receive an electronic copy of the Loan Prospector credit
file after the file has been ordered and processed by FDC and the Loan
Prospector System. There will be no slow down to the system as the electronic
copy is only sent after the client has received the file. This electronic copy
only allows the Branch offices the ability to access tradeline information and
complete customer service when requested by Loan Prospector clients. The
tracking system assures that only requested customer service is completed and
all customer service is documented and permanently stored with the file.
The branch offices must return the completed customer service to the client via
an electronic mailbox in the FDC Technology Center or via direct fax to the
client. The electronic mailboxes and the communication source code are securely
housed at the FDC Technology Center.
6. CONFIDENTIAL INFORMATION.
(a) Xxxxxxx Mac Information. The CRC hereby acknowledges and agrees
that the information and documentation previously provided or that may in the
future be provided by Xxxxxxx Mac or other third parties to the CRC in
connection with this Agreement or otherwise in connection with the System
(collectively, the "Xxxxxxx Mac Information") includes privileged, confidential
and proprietary information and trade secrets belonging to Xxxxxxx Mac and,
potentially, third parties, which (if disclosed) could result in substantial and
irreparable harm to Xxxxxxx Mac and/or such other third parties. It is expressly
understood that the Xxxxxxx Mac Information includes, without limitation, the
contents of this Agreement and the exhibits attached to this Agreement, the
identity of any participants in the System, the format of the System and the
identity of the data included therein and any and all other details concerning
the System. The parties understand and agree that information may constitute
Xxxxxxx Mac Information for purposes of this Section 6 whether or not such
information is specifically marked or designated as such. The CRC agrees that it
will not use the Xxxxxxx Mac Information for purposes other than in connection
with this Agreement.
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CONFIDENTIAL
(b) CRC Information. Proprietary and confidential information and
documentation previously provided or that may in the future be provided by the
CRC to Xxxxxxx Mac in connection with this Agreement includes privileged,
confidential and proprietary information and trade secrets belonging to the CRC
which (if disclosed) could result in substantial and irreparable harm to CRC. It
is expressly understood that the referred to herein as the "CRC Information"
includes, without limitation, the Credit Information, the contents of this
Agreement and any and all other details concerning the CRC. The parties
understand and agree that information may constitute CRC information for
purposes of this Section 6 whether or not such information is specifically
marked or designated as such. Xxxxxxx Mac agrees that it will not use the CRC
Information for purposes other than in connection with this Agreement. The
Xxxxxxx Mac Information and the CRC Information are collectively referred to
herein as the "Information".
(c) Non-Confidential Information. Notwithstanding the foregoing,
information will not constitute Xxxxxxx Mac Information or CRC Information to
the extent (i) the information is known to the public without a breach of this
Agreement, (ii) as is otherwise agreed by Xxxxxxx Mac (with respect to the
Xxxxxxx Mac Information) or the CRC (with respect to the CRC Information) in
writing, or (iii) the information is independently developed by Xxxxxxx Mac
(with respect to the CRC Information) or the CRC (with respect to the Xxxxxxx
Mac Information) or is received by such party from a third party which is not
itself subject to a confidentiality obligation with respect thereto.
(d) Limitations on Use. Each party hereto agrees to treat the other
party's Information as strictly confidential. Each party further agrees to treat
all materials which it prepares using or based on the Information of the other
party or any portion thereof (the "Derivative Documentation") as strictly
confidential. Without limiting the foregoing, and except as provided for in the
Permitted Exceptions, each party agrees that it will not, without the prior
written consent of the other party, release or disclose or permit the release or
disclosure of the other party's Information, any Derivative Documentation based
on the other party's Information, or any portion thereof to any individual or
entity, nor use or permit the use of such Information, Derivative Documentation
or any portion thereof for any purpose at any time except as expressly permitted
in this Agreement. In addition, the CRC agrees that it will not disclose to any
other persons or entity the names of borrowers with respect to whom the System
has obtained Credit Information, or the fact that the System has obtained such
Credit Information for or on behalf of Xxxxxxx Mac. Furthermore, in the event
either party intends or anticipates that it may be required for any reason to
release or disclose the other party's Information or any portion thereof, such
party shall promptly notify the other party and shall take such actions as may
be necessary to provide the other party with a reasonable opportunity to respond
in such manner as such other party deems appropriate to prevent or limit the
release or disclosure of such Information.
The following usages shall be considered Permitted Exceptions to the
above-described obligations of non-disclosure and restricted use of Information:
(i) with respect to the
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CONFIDENTIAL
Xxxxxxx Mac Information, if disclosure or use (as applicable) by the CRC is
reasonably necessary to enable the CRC to perform the Services (including as
necessary to provide the Credit Information to the System or the Customers),
(ii) with respect to the CRC Information, if disclosure or use (as applicable)
by Xxxxxxx Mac is reasonably necessary in connection with the System, or (iii)
if the CRC or Xxxxxxx Mac is otherwise ordered by a court or administrative
agency of competent jurisdiction. In the event either party intends or
anticipates that it may be required for any reason to disclose the other party's
Information or any portion thereof pursuant to an order of a court or
administrative agency of competent jurisdiction, such party shall promptly
notify the other party and shall take such actions as may be necessary to
provide the other party with a reasonable opportunity to respond in such manner
as such other party deems appropriate to prevent or limit the disclosure of its
Information.
(e) Copies. Without limiting the provisions of subsections (a) - (d)
above, each party agrees that it will not, without the prior written consent of
the other party, copy or permit copies to be made of the other party's
Information or any portion thereof, except (i) to the extent otherwise provided
for in the Permitted Exceptions, and (ii) that Xxxxxxx Mac shall be permitted to
copy the Merged Reports and Credit Information for the purposes of quality
control testing of the System and specific loan applications and compliance
testing of the CRC. Each party agrees that it shall xxxx as "confidential" all
Derivative Documentation it creates and all copies it makes of the Information
and the Derivative Documentation of the other party in a prominent location on
each page of such documentation.
(f) Survival of Obligations. The obligations contained in this Section 6 shall
survive the expiration or earlier termination of this Agreement.
7. INDEMNIFICATION. The CRC will indemnify Xxxxxxx Mac and hold it harmless from
and against any and all third party claims, and all related judgments, damages,
losses, liabilities, costs and expenses, including reasonable attorneys' fees,
arising from or related to (i) any inaccuracy or alleged inaccuracy of the
Credit Information or Merged Reports, or (ii) any breach or alleged breach of
the CRC's representations or warranties in this Agreement. For purposes of
subsection (i) of the preceding sentence, the parties understand that, except as
may otherwise be agreed by the parties in particular instances, the CRC does not
have the obligation to verify independently the accuracy of the credit
information, as received from the Credit Repositories, but only to pass through
accurately the information provided by the Credit Repositories.
8. LIMITATION OF LIABILITY. In no event will either party be liable to the other
for any indirect, incidental, special or consequential damages arising out of or
related to this Agreement or the Credit Information, with the exception of such
damages (if any) as can be proven to have resulted from (a) such party's
violation of the provisions of Section 6 of this Agreement, or (b) personal
injury or property damage.
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CONFIDENTIAL
9. INSURANCE.
(a) The CRC shall carry, at its expense, complete and comprehensive
insurance in the minimum amounts and types set forth below:
(i) Comprehensive General Liability coverage in the minimum amount of
$1,000,000 each occurrence and $2,000,000 annual aggregate, including a Broad
Form General Liability Endorsement and Broad Form Property Damage Extension.
(ii) Professional Liability Insurance in the minimum amount of $500,000
each occurrence and annual aggregate.
(iii) Fidelity Bond with a minimum limit of $500,000 each loss.
All such policies of insurance (A) shall be carried with companies rated A or
better by A.M. Best; (B) shall, at Xxxxxxx Mac's option, include deductibles not
in excess of amounts approved by Xxxxxxx Mac; (C) shall name Xxxxxxx Mac as an
additional insured, except that Xxxxxxx Mac need not be named an additional
insured under the CRC's professional liability policy; (D) shall contain a
requirement that Xxxxxxx Mac be given written notice at least thirty (30) days
prior to cancellation; and (E) shall be maintained for the entire term of this
Agreement. With respect to the CRC's professional liability policy,
notwithstanding the provisions of subsection (E) above, such policy may be
maintained for only the term, as such term may be extended, provided such policy
contains a one (1) year extended reporting period; otherwise the CRC's
professional liability policy shall be maintained for one (1) year beyond the
end of the term, as such term may be extended. The insurance requirements set
forth in this Agreement shall in no way be deemed to limit the CRC's liability
under or related to the Services of this Agreement.
(b) It is understood that the insurance requirements set forth in
subsection (a) above represent minimum requirements which the parties believe
are appropriate for the amount of business that may be provided to the CRC
hereunder during the initial few months of the term of the Agreement. The
parties agree that the foregoing minimum insurance requirements are subject to
modification in the event Xxxxxxx Mac determines at any time in its good faith
business judgment that the requirements are inadequate to cover the risks
inherent in the level of Services being provided by the CRC hereunder.
10. RECORDS AND FINANCIAL MONITORING.
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CONFIDENTIAL
(a) Inspection of Records. Xxxxxxx Mac will have the right, from
time-to-time upon reasonable notice to the CRC, to review or audit CRC's
records, files and processes related to this Agreement during normal business
hours at CRC's place of business. The CRC agrees to make its records, files and
facilities available and otherwise to cooperate fully with Xxxxxxx Mac and its
representatives in connection with any such review or audit.
(b) Financial Monitoring. The CRC recognizes that Xxxxxxx Mac has based
its decision to enter into this Agreement with the CRC in part upon an
evaluation of the CRC's financial stability and apparent ability to manage the
risks involved in this Agreement. The CRC will promptly notify Xxxxxxx Mac if
any event occurs which (i) has a material adverse impact on the financial
condition of the CRC, (ii) has a material adverse impact on CRC's ability to
perform its obligations under this Agreement, or (iii) is an event listed in
EXHIBIT G hereto. In addition, the CRC will provide to Xxxxxxx Mac copies of its
most recent financial statements, and audited profit and loss statements and
balance sheets, or copies of the most recent financial statements and audited
profit and loss statement and balance sheet of its corporate parent, if
applicable, within ten (10) days after any request therefor.
(c) Monthly Performance Reporting. The CRC shall provide Xxxxxxx Mac's
Account Manager with monthly written management reports which show the CRC's
volume of Merged Reports, customer service activity and performance compliance,
as further described in EXHIBIT C hereto. The monthly management reports shall
be sent by the CRC so that they are received by Xxxxxxx Mac by the 10th day of
the month following the reporting period, beginning with activity in January
2000 reported by February 10, 2000. An example of such a report is described in
EXHIBIT C hereto. Xxxxxxx Mac may from time to time change the content and the
format of the reports.
(d) Unsatisfactory Performance. If the findings of Xxxxxxx Mac's review
of the records or reports described in this Section 10 disclose a material
change in the CRC's financial condition, concerns regarding the CRC's financial
condition, or the reports or records are otherwise unsatisfactory, then Xxxxxxx
Mac may, at its sole discretion, take action regarding the CRC or this
Agreement, which action may include, without limitation, the following: (i)
Xxxxxxx Mac may limit the volume of transactions which the CRC may process
through the System until Xxxxxxx Mac's concerns are resolved; (ii) Xxxxxxx Mac
may require increased financial monitoring (for example, the CRC may be required
to submit financial statements quarterly or monthly); (iii) Xxxxxxx Mac may
require on-site reviews of the CRC with increased frequency; (iv) Xxxxxxx Mac
may suspend the CRC from adding any new clients for the Loan Prospector(R)
System; or (v)Xxxxxxx Mac may terminate this Agreement.
11. MINORITY BUSINESS DEVELOPMENT.
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CONFIDENTIAL
(a) Provision of Opportunities. It is Xxxxxxx Mac's policy to provide the
maximum practicable opportunity to minority-owned and women-owned business
enterprises ("M/WBEs") to compete fairly as suppliers, contractors and
subcontractors in Xxxxxxx Mac's business activities, taking into account both
price and quality. As an aspect of this policy, Xxxxxxx Mac encourages its
suppliers, contractors and subcontractors to ensure that M/WBEs are also given
the opportunity to compete fairly in those cases where portions of a Xxxxxxx Mac
contract will be subcontracted to third parties. Nothing contained in this
Section 12 will be deemed to override the provisions of Section 13(f) of this
Agreement or to constitute Xxxxxxx Mac's consent to any particular subcontract.
(b) Subcontractor Reporting. The CRC shall not subcontract any portion of
the Services hereunder without Xxxxxxx Mac's express prior written consent,
which may be granted or withheld in Xxxxxxx Mac's sole discretion. In the event
that any portion of the Services provided by the CRC hereunder is subcontracted
to one or more third parties, the CRC will deliver to Xxxxxxx Mac on a quarterly
basis a report which includes the following information, together with such
other information as Xxxxxxx Mac may reasonably request to evidence CRC's
compliance with the policy described in subsection (a) above: (i) description of
efforts made by the CRC to comply with the policy, (ii) total percentage of
Services subcontracted, both in terms of estimated manpower requirements and in
terms of total compensation under this Agreement, (iii) description of
subcontracted Services, and (iv) percentage of subcontractors awarded to M/WBEs,
both in terms of estimated subcontracted manpower requirements and in terms of
total compensation under all subcontracts. In compiling information for its
reports to Xxxxxxx Mac, the CRC may rely either on a self-certification system
in which each subcontractor certifies to the CRC as to whether or not it
qualifies as an M/WBE, or on such other system may reasonably select to provide
accurate reporting information to Xxxxxxx Mac.
(c) Definition of Terms. As used in this Section 11, the term
"minority-owned business enterprise" means an enterprise that is at least 51%
owned, controlled and operated by one or more United States citizens who are
also member s of the following groups: (i) African-American, (ii) Hispanic
American, (iii) Native American, (iv) Asian Pacific American, or (v) Asian
Indian American. The term "women-owned business enterprise" means an enterprise
that is at least 51% owned, controlled and operated by one or more women who are
also United States citizens.
12. MISCELLANEOUS.
(a) Independent Contractor Status. The parties hereto understand and
agree that the CRC is furnishing the Services and the Credit Information as an
independent contractor. Nothing contained herein will be construed to create any
association, partnership or joint venture or any agency relationship between the
parties hereto.
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CONFIDENTIAL
(b) Governing Law. This Agreement will be construed, and the rights and
obligations of the parties hereunder determined, in accordance with the laws of
the United States. Insofar as there may be no applicable precedent, and insofar
as to do so would not frustrate any provisions of this Agreement or the
transactions governed hereby, the laws of the Commonwealth of Virginia will be
deemed reflective of the laws of the United States.
(c) Exemption from Taxes. The CRC acknowledges and agrees that pursuant
to the provisions of 12 U.S.C. Section 1452(e), Xxxxxxx Mac is exempt from all
taxes levied by any state, county, municipality or local taxing authority (other
than certain real property taxes). Nothing contained herein will be deemed to
make Xxxxxxx Mac responsible for any taxes from which Xxxxxxx Mac enjoys such an
exemption, however designated or levied pursuant to this Agreement.
(d) Sole Agreement. This Agreement constitutes the only agreement between
Xxxxxxx Mac and the CRC relating to the subject matter hereof, and no
representations, promises, understandings or agreements, oral or otherwise, not
herein contained will be of any force or effect. Any conflict between this
Agreement and any exhibits hereto will be resolved in favor of this Agreement.
(e) Modifications and Waivers. No modification or waiver of any provision
of this Agreement will be valid unless it is in writing and signed by the party
against whom it is sought to be enforced. No waiver at any time of any provision
of this Agreement will be deemed a waiver of any other provision of this
Agreement at that time or a waiver of that or any other provision of this
Agreement at any other time. No payment by Xxxxxxx Mac will be deemed to
constitute an acceptance of any information, services or other matter or a
waiver of any of Xxxxxxx Mac's rights or remedies arising in connection
therewith.
(f) No Assignment. This Agreement and the rights and obligations of the
parties created hereunder shall not be assignable or delegable by the CRC
without the prior written consent of Xxxxxxx Mac, which consent may be granted
or withheld in Xxxxxxx Mac's sole discretion. This Agreement is binding upon and
inures to the benefit of the parties hereto and their respective successors and
assigns.
(g) Exhibits. The terms and provisions of the exhibits attached hereto
and referenced in this Agreement are hereby incorporated into this Agreement .
(h) Survival. All agreements and obligations of the parties hereunder
which arise prior to the expiration or termination of the term of the Agreement
will survive such expiration or termination, with the sole exception of CRC's
obligation to continue to provide Credit Information or Services.
(i) Unenforceability. If one or more of the provisions of this Agreement
are held for any reason to be invalid, illegal or unenforceable, such
invalidity, illegality or
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unenforceability will not affect any other provision of this Agreement, and this
Agreement will be construed and enforced as if such invalid, illegal or
unenforceable provisions had not been contained herein.
(j) Power and Authority. Each party represents to the other that it has
all necessary power and authority to enter into and perform its obligations
under this Agreement. The individuals executing this Agreement on behalf of each
party represent that they have authority to do so.
(k) Notices. All notices required or permitted to be sent under this
Agreement shall be in writing and shall be sent to the parties at the addresses
set forth in the preamble of this Agreement, or to such other addresses and to
such other individuals of which either party may notify the other in a notice
which complies with the provisions of this subsection. Notices to Xxxxxxx Mac
shall be sent to the attention of Xxxx Xxxxxx Xxxxx, copy also to the Associate
General Counsel, Corporate Affairs of Xxxxxxx Mac. Notices to the CRC shall be
sent to the attention of X. X. Xxxxxx, President.
All notices will be deemed given (i) when delivered by hand, (ii) one (1) day
after delivery to a reputable overnight carrier, or (iii) three (3) days after
placement in first-class mail, postage prepaid, return receipt requested.
(l) Rights Cumulative. The rights and remedies of the parties hereunder
are cumulative and are in addition to, and not in lieu of, all rights and
remedies available at law and in equity.
(m) Captions. The captions in this Agreement are included for convenience
of reference only and will not be construed to define or limit any of the
provisions contained herein.
(n) No Exclusive Rights. This Agreement does not provide to the CRC the
exclusive right to furnish any information or services to Xxxxxxx Mac.
Furthermore, nothing contained in this Agreement will be deemed to obligate any
entity (including, without limitation, the Customers and Xxxxxxx Mac) to order
Credit Information from the CRC at any time.
(o) No Publicity. The CRC will neither disclose, advertise, nor publish
the fact that the CRC has contracted to furnish information or services to
Xxxxxxx Mac nor disclose to a third party any details connected with this
Agreement, except to the extent expressly authorized by Xxxxxxx Mac in writing.
Xxxxxxx Mac requires review of any and all related press releases and/or
marketing pieces before release.
(p) Force Majeure. Neither Xxxxxxx Mac nor the CRC shall have any
liability to the other for a failure of performance resulting from any cause
beyond its control and without its fault or negligence.
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(q) No Future Obligations. The parties acknowledge that entering into
this Agreement for the current version of the System does not indicate any
commitment by either party to enter into any agreement with the other party
regarding future generations of the System or the business requirements or terms
of any future agreement.
By signing below, the undersigned have expressed their mutual agreement
to the terms of this Credit Reporting Company Agreement.
FACTUAL DATA CORPORATION FEDERAL HOME LOAN
MORTGAGE CORPORATION
By: /s/ X X Xxxxxx By: /s/ Xxxxx X. Xxxxxx
--------------------------------- -------------------------------
Name: X X Xxxxxx Name: Xxxxx X. Xxxxxx
------------------------------- -----------------------------
Title: President Title: Vice President -
Customer Support 1/7/00
Exhibit A- CRC Scope of Services for Loan Prospector Service
Exhibit B - CRC Service Level Requirements for Loan Prospector Service
Exhibit C - CRC Management Reporting
Exhibit D- CRC Disaster Recovery Requirements
Exhibit E - CRC Pricing to Xxxxxxx Mac
Exhibit F - Contact Persons
Exhibit G - Additional Reporting Requirements
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EXHIBIT A
CRC SCOPE OF SERVICES FOR LOAN PROSPECTOR(R) SERVICE
CRC is to provide the following services for Loan Prospector(R) Service. The
services are further qualified by EXHIBIT B CRC Service Level Requirements:
1. Provide merged credit reports (each, a "Merged Report") to Customers through
the System in accordance with the following:
(a) receive all requests reported electronically from the System;
(b) use existing merge logic, software, and procedures;
(c) use in-files from all three national credit repositories (Equifax,
Experian, TransUnion)
(d) format a print image (i.e. human readable) report; and, a format for a
machine readable image may be specified at the Customer level in the
future.
(e) print and machine readable images may be requested and returned
electronically to the system, in the future; and
(f) communicate with the System using the technical specifications
established by Xxxxxxx Mac and the Communications Provider.
The CRC agrees that it will use a new or revised version of a national credit
repository's in-file format and/or data approved by the CRC and Xxxxxxx Mac, and
that it will do so no later than 90 days following such joint approval.
2. Provide Customer with customer service:
(a) set-up Customer profiles (specific to the System);
(b) provide Merged Report format options for each Customer;
(c) answer any questions relating to a CRC produced Merged Report; and
(d) provide additional products and services (i.e. those above and beyond
those being offered through the System) directly to each Customer (e.g.
tradeline verifications, consumer interviews, upgrades to RMCRs and the
like) at the CRC's standard terms and rates.
(e) provide a toll-free customer service number for Loan Prospector users
3. Provide consumers with customer service:
(a) answer any questions relating to CRC produced Merged Reports; and
(b) assist in answering any questions directly relating to consumer's Credit
Information.
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4. Provide Xxxxxxx Mac with customer service:
(a) answer questions relating to CRC produced Merged Reports;
(b) answer questions relating to Customers, their setups, the services the
Customers are receiving, and related questions;
(c) provide technical support relating to the interface between the System
and the CRC; and
(d) provide resources to be used in testing.
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EXHIBIT B*
CRC SERVICE LEVEL REQUIREMENTS FOR LOAN PROSPECTOR(R) SERVICE
* The contents of Exhibit B, comprising pages 16 through 23, have been
omitted pursuant to a request for confidential treatment submitted to the
Securities and Exchange Commission.
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EXHIBIT C
CRC MANAGEMENT REPORTING
The CRC will provide monthly reports using the procedures documented below. The
standardized format of the reports will be provided to the CRC under separate
cover.
--------------------------------------------------------------------------------
FIELD DESCRIPTION
--------------------------------------------------------------------------------
NOTE: All information from previous months should remain on all of
these reports for tracking purposes.
"A" REQUESTS FOR MERGED REPORT
1A Insert the Xxxxxxx Mac Customer in this field.
o Please list all Customers which are set-up with you to order
merge credit reports through Loan Prospector, even if they
do not have any requests for the month for which you are
reporting.
2A Insert the corresponding Customer Name in this field.
o SORT list in alphabetical order by Customer name.
3A Insert the number of merged credit requests for each Customer in the
month for which you are reporting.
o If there is a Customer with zero requests for a particular
month, you may leave the field blank, or use a "0" or "-" in
the field.
o We will not need any additional documentation for the number
of requests per Customer per month for the monthly report.
You may want to keep such back up documentation in your
files in case a discrepancy is identified.
o If a discrepancy from a previous month(s) is identified,
please notify us in writing, including necessary
documentation and an updated monthly report.
4A This field should reflect your total number of merged requests for the
year to date.
"B" PERFORMANCE REPORT:
1B o Enter total number of requests for the month which you are
reporting. (This figure must equal the monthly total from
the Requests for Merged Credit Report)
2B o Enter the total number of requests for the month which took
over 60 seconds to be returned to the Customer.
3B o Enter the total number of merge requests returned with error
messages.
4B o Enter the total number of requests for upgrades for the
month.
5B *
* The contents for line 5B have been omitted pursuant to a request for
confidential treatment submitted to the Securities and Exchange Commission.
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FIELD DESCRIPTION
"C" INCIDENT REPORT:
1C o Enter a brief description of the incident - listing
each incident separately. Include the date of the
incident in this field.
2C o Indicate either "Y" or "N" whether you reported the
incident to Xxxxxxx Mac at the time the incident
occurred
3C o Enter the start, stop and total elapsed time of the
incident
"D" CUSTOMER SERVICE LOG:
1D o Identify total number of calls for the month. If
there was a particular Customer(or consumer) that had
an abundance of calls, please note that here.
2D o Summarize the general reasons for the calls or
provide a "top 5" list of reasons for the calls.
3D o Provide an average response (meaning resolution of
the issue) time for all Loan Prospector calls for the
month.
ADDITIONAL
REPORT
Please add a list of all new Loan Prospector accounts that
were set up during the month. Include Xxxxxxx Mac Seller or
Broker (TPO) Number and Customer Name. This listing may be in
any format you choose.
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EXHIBIT D
CRC DISASTER RECOVERY REQUIREMENTS
1. DAILY BACKUPS - The CRC is required to fully backup its system data, control
files, software, etc., on a daily basis. This would include two (2) copies; one
stored on-site and one stored off-site.
2. OFF-SITE STORAGE - The CRC must ensure that software, documentation, data
bases, procedure manuals, forms, supplies, the disaster recovery plan, and other
information required to fully recover and maintain the CRC system are stored
off-site at a location not susceptible to the same disaster. At a minimum, the
off -site storage facility should meet the following requirements:
- Fire detection and fire suppression equipment available and in
operation;
- Temperature and humidity controlled;
- 24-hour access and security monitored; and
- Storage techniques appropriate for the media.
3. REQUIRED RECOVERY TIME FRAME AND AVAILABILITY PERCENTAGE - The CRC must
provide complete system functionality and availability within 72 hours of a
declared disaster.
4. DISASTER RECOVERY PLAN - An up-to-date disaster recovery plan must be
maintained by the CRC for the CRC systems that interface with or are necessary
to the normal operation of systems directly supporting the services to be
provided the System. The plan must cover recovery of both the CRC application(s)
and data center. The plan will include:
- The CRC staff responsibilities, including those related to
on-call availability, transportation to backup facility, etc.
- Recovery location (e.g., cold-site, hot-site, Sunguard, etc.)
- Communication of disaster and activation of plan to Xxxxxxx Mac
- Security during storage, disaster recovery testing, and recovery
Xxxxxxx Mac has the right to recommend changes to the CRC's disaster recovery
plans and the CRC will use its best efforts to implement any such
recommendations.
5. DISASTER RECOVERY SITE - The controls at the disaster recovery site,
including those over access, confidentiality, security, environment, fire, and
power backup, must be equal to those at the CRC data center.
6. TESTING - The CRC is required to conduct an initial test to determine whether
the disaster recovery plan will function as intended. Xxxxxxx Mac will work with
the CRC to determine the date of this initial test, which the CRC shall perform
within sixty (60) days
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of the date of this Agreement. The CRC is required to hold an annual test of its
disaster recovery plan. Xxxxxxx Mac reserves the right to attend, observe, or
participate in the tests. The CRC is required to provide Xxxxxxx Mac with the
test schedule, test plan, and detailed results of the tests.
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EXHIBIT E
CRC PRICING TO XXXXXXX MAC*
* The contents of Exhibit E have been omitted pursuant to a request for
confidential treatment submitted to the Securities and Exchange Commission.
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EXHIBIT F
CONTACT PERSONS
Xxxxxxx Mac Contact Persons
Account Manager: Xxxx Xxxxxx Xxxxx Tel: 000-000-0000
Fax: 000-000-0000
Billing Contact: Xxxxxx Xxxxxxx Tel: 000-000-0000
Fax: 000-000-0000
Xxxxx Xxxxxxx Tel: 000-000-0000
Xxxxxxx Mac
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
CRC Contact Person
Account Manager: Xxxxxx Xxxxxxx Tel: 000-000-0000 x000
Account Set-up: Factual Data Corporation Fax: 000-000-0000
0000 Xxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
After hours pager Xxxx Xxxxxx Cellular: 000-000-0000
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EXHIBIT G
ADDITIONAL REPORTING REQUIREMENTS
The CRC must advise Xxxxxxx Mac, in writing, within one business day after any
of the following events:
1. The CRC undergoes a major change in its ownership or organization
2. The CRC changes its name
3. The CRC changes its fiscal year-end
4. The CRC voluntarily files a petition under federal bankruptcy or state
insolvency laws, or answers an involuntary proceeding admitting insolvency
or inability to pay debts
5. The CRC fails to obtain a vacation or stay of involuntary proceedings
brought for its reorganization, dissolution or liquidation
6. The CRC is adjudged bankrupt or insolvent
7. The CRC makes an assignment for the benefit of its creditors
8. The CRC becomes subject to any judgment, order, finding or regulatory
action that would adversely affect the CRC's ability to comply with the
terms and conditions of this Agreement.
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