EXHIBIT 10.27
SERVICES PURCHASE AGREEMENT
THIS SERVICES PURCHASE AGREEMENT is entered into as of the 4th day of
April, 2000, between Trans Union LLC, a Delaware limited liability company
("Trans Union"), and PRIMIS, Inc., a Georgia corporation ("PRIMIS").
RECITALS
A. Trans Union is engaged in providing consumer credit reporting and other
services, including packaged settlement services, to lenders and others on a
nationwide basis.
B. PRIMIS is engaged in providing home appraisal and valuation products and
related services (collectively, "Services") to lenders and others on a
nationwide basis.
C. Trans Union desires to purchase from PRIMIS, and PRIMIS desires to
provide to Trans Union, Services on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the parties hereto agree as follows:
1. SERVICES TO BE PROVIDED BY PRIMIS; PREFERRED PROVIDER STATUS.
(a) On the terms and subject to the conditions set forth herein, PRIMIS
shall make available to Trans Union, and Trans Union shall be entitled to
purchase from PRIMIS all of the Services currently or hereafter offered
generally by PRIMIS to its customers. Trans Union shall place orders for
Services in accordance with PRIMIS's standard procedures or in accordance with
such other procedures as the parties shall mutually agree upon.
(b) Trans Union hereby designates PRIMIS as a preferred provider with
respect to URARs and Forms 2055, including URARs and Forms 2055 to be included
in packaged settlement services provided by Trans Union to lenders and other
financial institutions in connection with home equity and other mortgage loans.
(c) PRIMIS shall deliver all Services purchased by Trans Union
electronically and Trans Union hereby accepts such method of service delivery.
2. PERFORMANCE STANDARDS. PRIMIS shall provide the Services in compliance
with all applicable state, federal and local laws and regulations and with the
Uniform Standards of Professional Appraisal Practice, as the same may be amended
from time to time. In addition, PRIMIS acknowledges that Trans Union may be
subject to certain performance standards and timelines imposed by its customers
that may be applicable to the Services to be provided by PRIMIS hereunder
("Performance Standards"). Trans Union shall notify PRIMIS from time to time of
all such Performance Standards and PRIMIS shall use its best efforts to comply
therewith.
Furthermore, during the course of negotiating Performance Standards with its
customers from time to time, Trans Union shall communicate to PRIMIS all of the
relevant Performance Standards sought to be imposed on Trans Union and shall
work with PRIMIS to facilitate the adoption by Trans Union and its customers of
Performance Standards that are reasonably achievable by PRIMIS.
3. COMPENSATION FOR SERVICES.
(a) PRICING. The prices payable by Trans Union for Services hereunder
shall be as set forth from time to time in pricing supplements signed by both
parties to this Agreement. Trans Union shall be entitled to the most favorable
pricing offered by PRIMIS to any client purchasing like volumes of Services.
Concurrently with the execution of this Agreement, PRIMIS and Trans Union shall
execute and deliver to each other the first pricing supplement to this
Agreement.
(b) PAYMENT. Trans Union shall track internally the Services provided
hereunder by PRIMIS during each of Trans Union's monthly billing cycles and
shall make payment to PRIMIS by electronic funds transfer based upon its
internal monthly tracking records with respect to such Services within ten (10)
days after the end of each such billing cycle. After the first monthly payment
date, PRIMIS shall, at least five (5) days prior to the monthly payment date,
provide to Trans Union a reconciliation of Trans Union's prior monthly payment
and PRIMIS's records regarding Services actually rendered and charges incurred
by Trans Union for the previous month; Trans Union agrees to adjust its monthly
payments for proper reconciliation of preceding months' charges at each payment
date on a timely basis.
4. QUARTERLY REVIEW MEETINGS. PRIMIS shall meet no less frequently than
quarterly with Trans Union to review PRIMIS's performance under this Agreement
as well as PRIMIS's general financial and strategic performance.
5. TERM AND TERMINATION. Subject to the provisions for early termination
hereinafter provided, this Agreement shall be for a term of three (3) years
commencing on the date hereof. Either party (a non-defaulting party) may
terminate this Agreement immediately upon the occurrence of any of the following
events:
(a) a material failure by the other party to observe or perform any
material covenant or obligation under this Agreement, or the material breach of
any representation or warranty made herein by the other party, and the
continuation of such failure or breach for a period of thirty (30) days after
notice of such failure or breach has been given by the non-defaulting party;
(b) the other party admitting its inability to pay its debts as they
mature or making of an assignment for the benefit of creditors;
(c) the commencement of proceedings by or against the other party in
bankruptcy, or for corporate reorganization, or for the readjustment of debts
under laws relating to bankruptcy or for the relief of debtors now or hereafter
existing, and, in the case of proceedings
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commenced against such party, the failure to discharge such proceedings within
sixty (60) days of their commencement;
(d) the appointment of a receiver or trustee for the other party or a
substantial part of the other party's assets or the institution of any
proceedings for the dissolution or the full or partial liquidation of the other
party, which proceedings shall not have been discharged within thirty (30) days
of their commencement.
In addition, Trans Union may terminate this Agreement as provided in Section 8
herein. Upon the expiration or termination of this Agreement, PRIMIS shall
fulfill in a timely manner all outstanding orders for Services placed by Trans
Union prior to such expiration or termination and Trans Union shall pay PRIMIS
for such services as herein provided.
6. REPRESENTATIONS AND WARRANTIES OF PRIMIS. PRIMIS hereby represents and
warrants to Trans Union as follows:
(a) PRIMIS is a corporation duly organized, validly existing and in
good standing the laws of the State of Georgia, and has the full corporate power
and authority (i) to own and use its properties, (ii) to transact the business
in which it is engaged and (iii) to execute, deliver and perform this Agreement.
(b) The execution, delivery and performance of this Agreement by PRIMIS
has been duly authorized by all necessary corporate action and will not violate
any provision of its organizational documents or constitute a material breach or
violation of or default under, or require the consent of any other person under,
any material agreement to which PRIMIS is a party or is otherwise bound.
(c) This Agreement constitutes the valid and binding obligation of
PRIMIS, enforceable against PRIMIS in accordance with its terms.
7. INDEMNIFICATION.
(a) PRIMIS shall indemnify, defend and hold harmless Trans Union and
its directors, officers, employees and agents from and against any and all
losses, costs, damages, claims, suits, liabilities and expenses, including
reasonable attorneys' fees and expenses, actually suffered or incurred by any of
them arising out of or resulting from the negligence or willful misconduct of
PRIMIS and its officers, employees, agents or subcontractors.
(b) Trans Union shall indemnify, defend and hold harmless PRIMIS and
its directors, officers, employees and agents from and against any and all
losses, costs, damages, claims, suits, liabilities and expenses, including
reasonable attorneys' fees and expenses, actually suffered or incurred by any of
them arising out of or resulting from the negligence or willful misconduct of
Trans Union and its officers, employees, agents or subcontractors in (i)
ordering Services from PRIMIS and providing the information necessary for PRIMIS
to perform the Services, and (ii) the use, handling or resale of the Services as
part of Trans Union's packaged settlement services or otherwise.
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8. INSURANCE. Schedule I to this Agreement sets forth a summary of PRIMIS's
insurance policies with respect to its business. During the term of this
Agreement, PRIMIS shall maintain such insurance with respect to its business,
with such coverages and in such amounts and with reputable carriers, as is
customary for businesses similarly situated, and shall from time to time upon
Trans Union's request provide Trans Union with certificates of insurance
evidencing the same. Within twenty (20) days after the execution and delivery
hereof, PRIMIS shall provide to Trans Union a certificate of insurance listing
Trans Union as an additional insured under the General Liability policy with
respect to PRIMIS's negligence. PRIMIS shall use commercially reasonable efforts
to add Trans Union as an additional insured under PRIMIS's errors and omissions
policies as soon as practicable. Failure by PRIMIS to have Trans Union so added
to each such policy not later than the next renewal of that policy shall give
rise to Trans Union having the right to terminate this Agreement, which right
shall be exercised, at the sole discretion of Trans Union, within sixty (60)
days after Trans Union's receipt of written notice of PRIMIS's failure to add
Trans Union as an additional insured as above described. Trans Union reserves
the right to decide not to be added as an additional insured on any specific
PRIMIS insurance policy.
9. MISCELLANEOUS.
(a) INDEPENDENT CONTRACTOR. PRIMIS is engaged by Trans Union only for
the purposes and to the extent set forth in this Agreement and its relationship
to Trans Union shall be that of an independent contractor. Nothing in this
Agreement shall be construed to create a relationship of partnership or joint
venture between the parties and each of Trans Union and PRIMIS shall be
independent contractors with respect to the conduct of their respective
businesses. Nothing contained in this Agreement shall be construed to prohibit
Trans Union from obtaining appraisal and valuation services from any other
person during the term of this Agreement.
(b) SCHEDULES. Any Schedules attached hereto are an integral part of
this Agreement and reference to this Agreement shall be deemed to include any
such Schedules.
(c) SEVERABILITY. If any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, and
each provision of this Agreement shall be enforced to the fullest extent
permitted by law.
(d) WAIVER. No waiver of a breach of any provision of this Agreement
shall be effective unless given in writing by the party from which the waiver is
sought. No waiver by any party of a breach of any provision of this Agreement by
the other party shall operate or be construed as a waiver of any subsequent
breach of such provision by such other party or of any breach of any other
provision of this Agreement.
(e) NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered personally,
including delivery by courier or overnight delivery service, or on the date
delivered by facsimile (with receipt confirmed electronically), or three (3)
days following the date when deposited in the United States mail,
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certified or registered mail, return receipt requested, postage prepaid, in each
case addressed as follows:
If to PRIMIS:
PRIMIS, Inc.
00000 Xxxxx Xxxx Xxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Chief Legal Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Trans Union:
Trans Union LLC
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as either party shall notify the other as provided
herein.
(f) BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. Neither party may assign this Agreement or any of its
rights or obligations hereunder without the prior written consent of the other
party.
(g) COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
(h) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, without regard to the
conflicts of laws provisions thereof.
(i) ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the entire
agreement between the parties hereto with respect to the services to be provided
hereunder and supersedes all prior and contemporaneous agreements and
understandings with respect thereto. No modifications or amendments of this
Agreement shall be valid or effective unless in writing executed by both parties
hereto.
(j) COSTS OF ENFORCEMENT. In the event any legal action is taken by
either party against the other party to enforce any of the terms and provisions
of this Agreement, the unsuccessful party to such action shall pay to the
prevailing party therein all court costs, reasonable attorneys' fees and
expenses incurred by the prevailing party.
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(k) INTERPRETATION. This Agreement is a contract of Trans Union acting
through its Resources and Property Management Division; shall be interpreted
solely with respect to the Resource and Property Management Division and no
other division or business unit of Trans Union; and any performance obligation
of Trans Union under this Agreement shall be considered a performance obligation
of the Resource and Property Management Division and no other division or
business unit of Trans Union.
(l) REPRESENTATION AND WARRANTY OF TRANS UNION. This Agreement
constitutes the valid and binding obligation of Trans Union, enforceable against
Trans Union in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
PRIMIS, INC.
By:
-------------------------------------
Name:
Title:
TRANS UNION LLC
By:
-------------------------------------
Name:
Title:
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SCHEDULE I
Summary of Insurance
------------------------- ---------------- --------------------------------- ---------------------- ------------------
POLICY CARRIER LIMITS DEDUCTIBLE RENEWAL DATE
------------------------- ---------------- --------------------------------- ---------------------- ------------------
Commercial General St. Xxxx $1,000,000/occurrence; None 04/01/01
Liability Insurance $2,000,000 aggregate
Company
------------------------- ---------------- --------------------------------- ---------------------- ------------------
Workers' Compensation St. Xxxx Statutory limits None 04/01/01
Insurance
Company
------------------------- ---------------- --------------------------------- ---------------------- ------------------
Automobile Liability St. Xxxx $1,000,000 combined single limit None 04/01/01
Insurance
Company
------------------------- ---------------- --------------------------------- ---------------------- ------------------
Appraisal Errors & Executive Risk $2,000,000/claim; $2,000,000 $5,000 each claim 07/01/00
Omissions Spec. Ins. Co. aggregate
------------------------- ---------------- --------------------------------- ---------------------- ------------------
Title Errors & Omissions Executive Risk $2,000,000/claim; $2,000,000 $5,000 each claim 10/01/00
Indemnity Inc. aggregate
------------------------- ---------------- --------------------------------- ---------------------- ------------------
Flood Errors & Omissions Legion $1,000,000/claim; $1,000,000 $5,000 each claim 11/ 09/00
Indemnity aggregate
Company
------------------------- ---------------- --------------------------------- ---------------------- ------------------
Inspections Errors & Lexington $1,000,000/claim; $1,000,000 $25,000 each claim 03/31/01
Omissions Insurance aggregate
Company
------------------------- ---------------- --------------------------------- ---------------------- ------------------
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