EXHIBIT 10.26
FIRST AMENDMENT
TO
AGREEMENT FOR
COMPUTERIZED CREDIT REPORTING SERVICES
AND
OPTIONS TO PURCHASE AND SELL ASSETS
THIS FIRST AMENDMENT TO AGREEMENT FOR COMPUTERIZED CREDIT REPORTING
SERVICES AND OPTIONS TO PURCHASE AND SELL ASSETS (the "Amendment") dated as of
December 28, 1990, is made by and among THE CREDIT BUREAU, INCORPORATED OF
GEORGIA, a Georgia corporation ("CBI"), EQUIFAX INC., a Georgia corporation
("Equifax"), COMPUTER SCIENCES CORPORATION, a Nevada corporation ("CSC"), CSC
CREDIT SERVICES, INC., a Texas corporation ("Credit Services") (for itself and
as successor in interest to CSC CREDIT SERVICES OF MINNESOTA, INC., a Texas
corporation ("Minnesota")), CREDIT BUREAU OF CINCINNATI, INC., an Ohio
corporation ("Cincinnati"), CREDIT BUREAU OF GREATER KANSAS CITY, INC., a
Missouri corporation ("Kansas City"), ▇▇▇▇▇ HOLDING COMPANY, a Delaware
corporation ("JHC"), CSC ACCOUNTS MANAGEMENT, INC., a Texas corporation
("Accounts Management"), CSC ENTERPRISES, INC., a Nevada corporation ("CEI"),
and CSC ENTERPRISES, a Delaware general partnership (the "Partnership");
WITNESSETH:
WHEREAS, CBI, Equifax, CSC, Credit Services, Minnesota, Cincinnati,
Kansas City, JHC and Accounts Management were parties to that certain Agreement
for Computerized Credit Reporting Services and Options to Purchase and Sell
Assets, dated as of August 1, 1988 (the "Agreement"); and
WHEREAS, Minnesota has been merged into Credit Services effective
September 30, 1988; and
WHEREAS, Credit Services, CEI, CSC Ventures, Inc., a Nevada
corporation ("CSCV"), CBI Ventures Inc., a Georgia corporation ("CBIV"), and
Equifax Ventures Inc., a Georgia corporation ("Equifax Sub"), have entered into
that certain Partnership Agreement of the Partnership dated December 28, 1990
(the "Partnership Agreement"); and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement
dated of even date herewith (the "Initial Assignment") by and among Credit
Services, Cincinnati, Kansas City and JHC (collectively, the "Initial
Assignors") and CEI, the Initial Assignors have assigned to CEI all of their
right, title and interest in and to the Agreement, and CEI has assumed all of
the Initial Assignors' obligations under the Agreement; and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement
of even date herewith (the "Subsequent Assignment") by and between CEI, Credit
Services and the Partnership, CEI has assigned to the Partnership, among other
things, all of its right, title and interest in and to the Agreement, and the
Partnership has assumed all of CEI's obligations under the Agreement; and
WHEREAS, the parties hereto have agreed to amend the Agreement in
certain respects as set forth herein.
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Acknowledgement of Assignments. CBI and Equifax, as evidenced by
------------------------------
their signatures hereto, hereby acknowledge and consent to (i) the assignment by
the Initial Assignors to CEI of all of their right, title and interest
(including the assumption by CEI of their obligations) in and to the Agreement
pursuant to the Initial Assignment and (ii) the assignment by CEI to the
Partnership of all of its right, title and interest (including the assumption by
the Partnership of its obligations) in and to the Agreement pursuant to the
Subsequent Assignment. By virtue of the acquisition and the assumption by the
Partnership of the rights, titles and interests and the liabilities,
respectively, under the Agreement of the Initial Assignors (referred to as
Bureaus in the Agreement), the provisions of the Agreement referring to Bureaus
should be read accordingly.
2. Amendments. The Agreement is hereby amended as follows:
----------
a. Section I shall be amended to insert the following additional
definition: "Partnership" means CSC Enterprises, a Delaware general
partnership.
b. Paragraph 9(b) shall be amended to delete in two places the
phrase "Credit Services" and to insert in lieu thereof the phrase "the
Partnership".
c. Paragraph 14(c) shall be amended to delete the requirement that
Test Statements be delivered in respect of Credit Services' fiscal years
1990 and 1991, and to provide instead that, to the extent CBI is obligated
to make future payments pursuant to Paragraph 14, the Partnership shall
deliver to CBI information which is the practical equivalent of such Test
Statements.
d. Paragraph 21(b) shall be amended to read as follows:
"The Partnership covenants that, so long as the provisions of Articles IV
and V of this Agreement remain in effect, it will prepare, or cause to be
prepared, and deliver, or cause to be delivered, to CBI unaudited quarterly
combined financial statements of that part of the business of the
Partnership (and its subsidiaries) related to the Subsidiaries' Assets and
Liabilities, as soon as available, accompanied by a certificate executed by
a representative of the Partnership certifying that such financial
statements have been prepared in accordance with generally accepted
accounting principles (except for the
-2-
provisions for income taxes) consistently applied subject to the right, as
permitted by such principles, to choose alternative treatments of certain
matters. Such financial statements shall include sufficient financial
information to permit the parties to this Agreement to define the rights
and obligations of such parties upon the exercise of their respective
rights under said Articles IV and V."
e. Paragraph 37(a) shall be amended to read as follows:
If to CSC, Accounts Management, the Bureaus or the Partnership:
---------------------------------------------------------------
CSC Enterprises, Inc.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President
3. Paragraph 13. The parties acknowledge that as a result of the
------------
Partnership Agreement and the Subsequent Assignment, compliance with the
requirements of Paragraph 13 is no longer practicable. The parties therefore
agree that Paragraph 13 of the Agreement shall be null and void so long as the
Subsidiaries' Assets and Liabilities are held by the Partnership and its
subsidiaries. The parties, however, agree that if (i) the conditions described
in the first sentence of Paragraph 13(a) prior to its amendment hereby are
satisfied, (ii) CBI receives written notice from the Subsidiaries of their
intention to sell the Subsidiaries' Assets and Liabilities to CBI, and (iii)
within thirty (30) days of the receipt of such notice, CBI delivers to the
Partnership a written request describing a proposed restructuring of the said
sale, the parties will use their best efforts to cause the Subsidiaries to
restructure the said sale based upon CBI's request, so long as such
restructuring does not result in any material adverse economic, accounting, tax
or other consequence to the Subsidiaries or to the partners in the Partnership
(other than the Equifax Partners, as defined in the Partnership Agreement) or in
any material way adversely affect the rights of the Subsidiaries with respect to
such sale of the Subsidiaries' Assets and Liabilities. The determination of any
such adverse consequence or effect to the Subsidiaries shall be based on the
sole discretion of the Managing Partner on behalf of the Partnership and the
Board of Directors of each of the other Subsidiaries on behalf of such
Subsidiaries. The determination of any such adverse consequence or effect to
any partner in the Partnership shall be based on the sole discretion of such
partner. The parties agree that the sole reason for the proposal of a
restructuring by CBI would be to provide CBI with the benefits that were
contemplated by Paragraph 13 prior to its amendment hereby.
4. Certain Partnership Acquisitions. The parties acknowledge that
--------------------------------
corporations or other entities all of the stock or substantially all of the
assets of which are acquired by the Partnership after the date hereof must meet,
in order to qualify as Acquired Corporations under the Agreement, the tests set
forth in Paragraph 11(c) of the Agreement.
5. References to the Agreement. All capitalized terms which are
---------------------------
defined in the Agreement and not otherwise defined herein shall have the same
meaning herein as in the Agreement. On or after the date hereof, each reference
in the Agreement to "this Agreement," "hereunder," "herein," or words of like
import shall mean and be a reference to the Agreement,
-3-
as amended by this Amendment. All references to Paragraph numbers in this
Amendment shall be references to the corresponding Paragraph of the Agreement.
6. Authority. Each of the parties hereto represents to the other
---------
parties hereto that: (a) it has the full corporate (or, in the case of the
Partnership, partnership) power and authority to execute and deliver this
Amendment, to perform under the Agreement, as amended by this Amendment, and to
consummate the transactions contemplated by the Agreement, as amended by this
Amendment, without the necessity of any act, approval or consent of any other
Person whomsoever, except such as have been, or will be, obtained; (b) the
Agreement, as amended by this Amendment, has been approved by its Board of
Directors, or the Executive Committee thereof, (or, in the case of the
Partnership, by the respective Boards of Directors, or the Executive Committees
thereof, of each of its partners), except that this Amendment has not been
formally considered by the Board of Directors of Equifax or any committee
thereof, and constitutes the valid and legally binding obligation of such party
enforceable against such party in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws from time to time in effect which affect the
enforcement of creditors' rights generally, and except as enforcement of
remedies may be limited by general equitable principles. Equifax undertakes
that its Executive Committee will formally consider the ratification of the
execution of this Amendment no later than January 31, 1991.
7. Counterparts. This Amendment may be executed in several
------------
counterparts, and each counterpart, when so executed and delivered, shall
constitute an original instrument, and all such separate counterparts shall
constitute but one and the same instrument.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
Executed as of the date first above written:
THE CREDIT BUREAU, INCORPORATED OF GEORGIA
By
-----------------------------------------
Title
--------------------------------------
EQUIFAX INC.
By:
----------------------------------------
Title:
-------------------------------------
-4-
COMPUTER SCIENCES CORPORATION
By:
----------------------------------------
Title:
-------------------------------------
CSC CREDIT SERVICES, INC.
By:
----------------------------------------
Title:
-------------------------------------
CREDIT BUREAU OF CINCINNATI, INC.
By:
----------------------------------------
Title:
-------------------------------------
CREDIT BUREAU OF GREATER KANSAS CITY, INC.
By:
----------------------------------------
Title:
-------------------------------------
▇▇▇▇▇ HOLDING COMPANY
By:
----------------------------------------
Title:
-------------------------------------
CSC ACCOUNTS MANAGEMENT, INC.
By:
----------------------------------------
Title:
-------------------------------------
CSC ENTERPRISES, INC.
By:
----------------------------------------
Title:
-------------------------------------
-5-
CSC ENTERPRISES
By: CSC ENTERPRISES, INC., Its Managing
Partner
By:
----------------------------------------
Title:
-------------------------------------
-6-
SECOND AMENDMENT
TO
AGREEMENT FOR
COMPUTERIZED CREDIT REPORTING SERVICES
AND
OPTIONS TO PURCHASE AND SELL ASSETS
THIS SECOND AMENDMENT TO AGREEMENT FOR COMPUTERIZED CREDIT REPORTING
SERVICES AND OPTIONS TO PURCHASE AND SELL ASSETS (the "Second Amendment") dated
as of the _____ day of ____________, 1991, is made by and among THE CREDIT
BUREAU, INCORPORATED OF GEORGIA, a Georgia corporation ("ECIS" or "CBI"),
EQUIFAX INC., a Georgia corporation ("Equifax"), and CSC ENTERPRISES, a Delaware
general partnership (the "Partnership"), CSC ACCOUNTS MANAGEMENT, INC., a Texas
corporation ("Accounts Management") and COMPUTER SCIENCES CORPORATION, a Nevada
corporation ("CSC").
WITNESSETH:
----------
WHEREAS, CBI Ventures Inc., a Georgia corporation, and Equifax Ventures
Inc., a Georgia corporation, entered into that Partnership Agreement (the
Partnership Agreement") of the Partnership; and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement,
dated as of December 28, 1990, by and among Credit Services, Cincinnati, Kansas
City, JHC, as assignors, and CEI, as assignee, CEI was assigned all of
assignors' right, title and interest in and to the Original Agreement and CEI
assumed all of the assignors' obligations under the Original Agreement; and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement,
dated as of December 28, 1990, by and between CEI, Credit Services, as
assignors, and the Partnership, as assignee, CEI assigned to the Partnership,
among other things, all of its right, title and interest in and to the Original
Agreement, and the Partnership assumed all of CEI's obligations under the
Original Agreement; and
WHEREAS, the Original Agreement was amended as of December 28, 1990, by
that First Amendment to Agreement For Computerized Credit Reporting Services and
Options to Purchase and Sell Assets, among ECIS, Equifax, CSC, Credit Services,
Cincinnati, Kansas City, JHC, Accounts Management, CEI and the Partnership (the
"First Amendment," the Original Agreement, as amended by the First Amendment
being referred to herein as the "Agreement");
WHEREAS, CBI has adopted the assumed name "Equifax Credit Information
Services" and desires to use the acronym "ECIS" instead of "CBI" and any
reference to "CBI" or "ECIS" refers to THE CREDIT BUREAU, INCORPORATED OF
GEORGIA, a Georgia corporation; and
-7-
WHEREAS, the parties hereto have agreed to amend the Agreement in certain
respects as set forth herein.
1. Amendment
Exhibit A to the Agreement titled "The Automated Credit Reporting
Online Package (ACROPAC(TM)) System Description," is amended as follows:
a. At page 9 of Exhibit A the following language is deleted:
"CREDIT MARKETING SERVICE (CMS)
- CMS will represent the bureau at the national and regional level on
promotion programs sales.
- CMS will also assist the bureau on any promotion program sold by the
bureau."
and inserted in lieu thereof is the following language:
"PROMOTION MARKETING
1. ECIS Customer List. All promotion sales to any credit grantor (a
------------------
"Listed Customer") listed on Exhibit 1 annexed to this Exhibit A, as
amended from time to time pursuant to the provisions hereof (the "ECIS
Customer List") will be conducted solely by ECIS. A subsidiary or
division of a Listed Customer shall be deemed to be a Listed Customer
unless specifically excepted.
2. Promotion Sales by the Partnership. Notwithstanding any provision in
----------------------------------
the Agreement to the contrary and subject to the restrictions provided
in subparagraphs (i) and (ii) below, the Partnership shall have the
non-exclusive right to sell promotions to a credit grantor (a
"Potential Partnership Customer") who at the time of such sale is not
listed on the ECIS Customer List and whose decision-making office is
within the following area: Arkansas; Illinois (except for ▇▇▇▇,
DeKalb, DuPage, Grundy, Kane, Kendall, Lake, ▇▇▇▇▇▇▇ and Will
Counties); Indiana; Iowa; Kansas; Kentucky; Bienville, Bossier, Caddo,
Claiborne, Desoto, Jackson, Lincoln, Natchitoches, Red River, Sabine,
Webster, Morehouse, Oauchita, Richland, Union and West ▇▇▇▇▇▇▇
Parishes, Louisiana; Minnesota; Missouri; Nebraska; North Dakota;
Ohio; Oklahoma; South Dakota; Texas; and Wisconsin (the "Partnership
Area"), where the promotion covers consumers residing in and/or
outside of the Partnership Area, provided that:
(i) the Partnership shall have given notice to ECIS of the
Partnership's intention to make a Presentation to a Potential
Partnership Customer, describing the Presentation in reasonable
detail, including the nature of the Presentation, the name and
address of the Potential Partnership Customer, and the persons
proposed to be contacted at the Potential Partnership Customer.
Notwithstanding any provision of the Agreement - to the
-8-
contrary, for purposes of this subparagraph (i), notice shall be
deemed sufficient if: A) Sent by telecopy to ECIS at the
following facsimile number, or any such other facsimile number
as ECIS may, by giving written notice under the Agreement,
designate and B) the Partnership places a voice telephone call
to the following number to alert ECIS that a facsimile has been
sent or is forthcoming.
The Credit Bureau, Incorporated of Georgia
Attention: ▇▇▇▇ ▇▇▇▇
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
and;
(ii) ECIS does not within 24 hours after receipt of the notice
provided for in subparagraph (i) above (except that Saturdays,
Sundays, New Year's Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day, the Friday following Thanksgiving Day,
Christmas Eve and Christmas Day shall be excluded in such time
measurement) give written notice to the Partnership, Attention:
Executive Vice-President CRD, Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇ (or
any such other facsimile number as the Partnership may, by
giving written notice under the Agreement, designate), that,
prior to ECIS's receipt of such notice, ECIS had begun a Sales
Effort directed toward that Potential Partnership Customer in
respect of a sale of a promotion which comprises or includes in
substantial part the promotion contemplated by the Partnership,
describing the Sales Effort in reasonable detail, including the
nature of such Sales Effort, the persons contacted at the
Potential Partnership Customer, and the place and date of such
Sales Effort. In the event ECIS gives such notice, the
Partnership will not make such Presentation to this customer.
The Partnership will notify ECIS of the result of the
Presentation. Should a sale by the Partnership not result, the
next subsequent effort to market a promotion to that Potential
Partnership Customer @shall be subject to the procedure
described in these subparagraphs (i) and (ii). If a sale does
result, subsequent Presentations to that Potential Partnership
Customer do not require the Partnership to follow the procedure
described in these subparagraphs (i) and (ii).
Notwithstanding any provision in the Agreement to the contrary, the
Partnership shall have the right to market and to sell promotions to a
credit grantor who at the time of such sale is not listed on the ECIS
Customer List and whose decision-making office is within a zip code
area covered by a file of a bureau owned by the Partnership
("Partnership Zip Code Area"), where the promotion covers only
consumers residing in the Partnership Area,and in connection with such
sale, the Partnership shall not be required to follow the procedures
referred to in subparagraphs (i) and (ii) above. If the decision
making office is not within the
-9-
Partnership Area, the Partnership agrees to obtain permission from the
bureau file owner before marketing or selling a promotion.
3. ACROPAC(TM) Marketing by ECIS and the Partnership. ECIS and the
----------------------------------------------
Partnership agree that each will aggressively market all files in
ACROPAC(TM) irrespective of ownership, consistent with the provisions
hereof. The seller of a promotion shall set the price, terms and
conditions of the sale. Since the parties agree that the ECIS data
processing costs chargeable to a promotion sold by the Partnership
shall not exceed 10% of the gross revenue of that promotion, the
Partnership agrees not to sell promotions processed by ECIS for less
than $2,000. The parties agree that the Partnership may use a third-
party processor to process its data to create promotions or it may
process the data itself. Upon the Partnership's request, ECIS will
furnish the Partnership a copy of all of the data contained in the
credit files in the Partnership Zip Code Area in ECIS Master Record
format for $15,000.00 per copy ("File Copy Rate"). The parties agree
that when ECIS does not process the promotions sold by the
Partnership, ECIS is not entitled to the data processing costs or the
6% of net revenue administrative fee described in Exhibit A.
Consistent with the terms and conditions contained in the Agreement
and this Second Amendment, the Partnership shall have the right to
access all files in ACROPAC(TM) in connection with its promotion sales
processed by ECIS. Upon request of the Partnership, ECIS will assist
the Partnership on all promotion sales without charge to the
Partnership unless the Partnership requests that an ECIS sales
representative contact the customer directly, either by telephone or
in person. In the event that the Partnership requests that an ECIS
sales representative contact a customer directly, either by telephone
or in person, ECIS will receive 50% of the 25% commission on that
promotion sale.
4. Joint Annual Meeting of ECIS and the Partnership. In order to assure
------------------------------------------------
the aggressive marketing of all of the files in the ACROPAC(TM) System
and to provide a once-a-year forum to voice concerns regarding such,
the parties agree to hold an joint annual meeting. The meeting will
be held on the anniversary, or as dose as reasonably possible thereto,
to the signing of the Second Amendment ("Anniversary").
(i) The agenda of the meeting is to discuss aggressive marketing of
the ACROPAC(TM) system and to discuss additions and deletions to
the ECIS Customer List. Each party agrees that the joint meeting
is the proper and only forum for discussion of additions and
deletions. Each party will bring all of the necessary
information to the meeting in order to adequately discuss the
issues included in the meeting agenda. Each party may bring any
personnel it believes are reasonably necessary. While the
attendance of the President of ECIS and the attendance of the
President of the Credit Reporting Division of the Partnership is
not required, it is required that both presidents be available
to consult with the participants of the joint meeting during the
meeting. If presidential participation is
-10-
requested on a topic and the president whose participation is
requested is unavailable, the topic will be tabled for further
discussion when such president is available.
(ii) The parties will discuss the addition to the ECIS Customer List
of any customer to which the Partnership has sold two (2) or
more promotions each involving more than 500,000 names since, in
the case of the first joint review meeting, the signing of the
Second Amendment, or in the case of subsequent joint review
meetings, since the last joint review meeting. The parties will
discuss afl relevant factors relating to the customer
contemplated to be added to the ECIS Customer List. Upon
consideration of the factors, ECIS will decide at the joint
review meeting whether or not to add the customer to the ECIS
Customer List. ff ECIS adds the customer to the ECIS Customer
List, the Partnership will receive 50% of the 25% commission for
all subsequent promotion sales to that customer for the next 24
months.
(iii) The parties will discuss deleting customers from the ECIS
Customer List who have not purchased any promotions from ECIS
since, in the case of the first joint review meeting, the
signing of the Second Amendment, or in the case of subsequent
joint review meetings, since the last joint review meeting. In
discussing the deletion of the customer from the ECIS Customer
List, the parties will consider:
1. Has the customer purchased any promotions from other
vendors within the time frame considered?
2. Has ECIS made a Presentation within the time frame
considered?
3. Has ECIS made a Sales Effort within the time frame
considered?
4. Any other relevant considerations/circumstances.
(iv) After considering all the factors raised in the discussion, the
parties must jointly agree to remove the customer from the ECIS
Customer List. If the parties cannot jointly agree before the
end of the annual meeting that the customer should be deleted,
the customer will not be deleted from the ECIS Customer List.
(v) ECIS will provide a copy of the ECIS Customer List for the year
as soon as possible after the joint annual meeting.
5. Audit. ECIS agrees to have its independent public accounting firm
-----
annually perform, at no cost to the Partnership, a third party review,
as defined in accordance with SAS #44, of the ECIS data processing
system as it relates to promotions.
-11-
6. ECIS Affiliates. In the exercise of its rights and performance of its
---------------
duties under this Exhibit A, ECIS may act through an Affiliate,
provided, however, ECIS shall not thereby be relieved of any of its
obligations hereunder.
7. Definitions. For purposes of this Exhibit A:
-----------
"Affiliate" means any Person controlling, controlled by or under
common control with any other Person. For purposes of this
definition, "control" (including"controlled by" and "under common
control with") means ownership, directly or indirectly, beneficially
and of record of all of the equity of another Person.
"Presentation" means verbal or written communications with a Potential
Partnership Customer regarding a specific promotion and containing a
pricing proposal. Verbal and written communications, absent such
pricing proposal, shall not be a Presentation but will be a Sales
Effort.
"Promotion" means a list of consumer names and corresponding addresses
compiled from credit files by identifying such names on the basis of
credit information that match certain credit criteria supplied and/or
approved by the promotion customer. The definition of "promotion"
shall include products which review a customer's account portfolio to
screen or monitor for positive or negative changes to the
portfolio or individual accounts therein.
"Sales Effort" means verbal or written communications with a Potential
Partnership Customer regarding a specific promotion."
b. Wherever the term "CMS" appears in Exhibit A, such term is deleted and the
phrase "ECIS or any Affiliate of ECIS designated by ECIS" is inserted in lieu
thereof.
c. On page 1 of the Agreement, the term CBI is defined as referring to THE
CREDIT BUREAU, INCORPORATED OF GEORGIA, a Georgia corporation. Subsequently
that corporation has adopted the assumed name "Equifax Credit Information
Services" and desires to use the acronym "ECIS" instead of "CBI." Therefore, the
Agreement shall be amended such that the acronyms "ECIS" and "CBI" are
interchangeable and either may be used to refer to THE CREDIT BUREAU,
INCORPORATED OF GEORGIA.
2. References to the Agreement.
---------------------------
All capitalized terms which are defined in the Agreement and not otherwise
defined herein shall have the same meaning herein as in the Agreement. On or
after the date hereof, each reference in the Agreement to "this Agreement",
"hereunder", "herein", or words of like import shall mean and be a reference to
the Agreement, as amended by this Second Amendment.
3. Authority.
---------
6
Each of the parties hereto represents to the other parties hereto that:
(a) it has the full corporate (or, in the case of the Partnership, partnership)
power and authority to execute and deliver this Second Amendment, to perform
under the Agreement, as amended by this Second Amendment, and to consummate the
transactions contemplated by the Agreement, as amended by this Second Amendment,
without the necessity of any act, approval or consent of any other person
whomsoever, except such as having been obtained; and (b) the Agreement, as
amended by this Second Amendment, has been approved by its Board of Directors,
or the Executive Committee thereof (or, in the case of the Partnership, by the
respective Boards of Directors, or the Executive Committees thereof, of each of
its partners), and constitutes the valid and legally binding obligation of such
party enforceable against such party in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws from time to time in effect which affect the
enforcement of creditors' rights generally, and except as enforcement of
remedies may be limited by general equitable principles.
4. Counterparts.
------------
This Second Amendment may be executed in several counterparts, and each
counterpart, when so executed and delivered, shall constitute an original
instrument, and all such separate counterparts shall constitute but one and the
same instrument.
5. Merger.
------
This Second Amendment sets forth the entire understanding of the parties
regarding the subject matter hereof, and all prior such understandings, written
or oral, are merged herein.
6. Governing Law.
-------------
THIS SECOND AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS.
Executed as of the date first above written:
THE CREDIT BUREAU, INCORPORATED OF GEORGIA
By:
---------------------------------------
Title:
------------------------------------
EQUIFAX INC.
By:
---------------------------------------
Title:
------------------------------------
7
CSC ENTERPRISES
By: CSC ENTERPRISES, INC.
Its Managing Partner
By:
---------------------------------------
Title:
------------------------------------
CSC ACCOUNTS MANAGEMENT, INC.
By:
---------------------------------------
Title:
------------------------------------
COMPUTER SCIENCES CORPORATION
By:
---------------------------------------
Title:
------------------------------------
EXHIBIT ONE
ECIS CUSTOMER LIST
American General Huntington National Bank
Ameritrust Hartmarx
Amoco Oil Company Higbees
Associates IDS Deposit Corporation
Bank One ITT
Boatmans Bank ▇. ▇. ▇▇▇▇▇▇ Company
Cellular One May Company**
Cenex Merchantile Bank
Citgo Mobil Oil
Conoco More Card
▇▇▇▇▇▇ ▇▇▇▇▇▇ Maison ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Shamrock Neiman Marcus
Exxon Oil Company Norwest
Federated Allied ▇▇▇▇▇▇▇▇ Petroleum
Fidelity Investments Pier One
Fina Oil Seiferts
Fingerhut Shell Oil Company
First Bank Systems Star Bank
First City Bank Tandy
First Financial Bank of Milwaukee Texaco
First National Bank of Omaha USAA Federal Savings Bank
First Tier Bank Corp. Western Auto
G. E. Capital Zales/Gordons/▇▇▇▇▇▇, Banks &
Herbergers ▇▇▇▇▇▇
**(except for Foleys where the promotion covers only consumers residing in the
Partnership Zip Code Area.)
THIRD AMENDMENT
TO
AGREEMENT FOR
COMPUTERIZED CREDIT REPORTING SERVICES
AND
OPTIONS TO PURCHASE AND SELL ASSETS
THIS THIRD AMENDMENT TO AGREEMENT FOR COMPUTERIZED CREDIT REPORTING
SERVICES AND OPTIONS TO PURCHASE AND SELL ASSETS (the "Third Amendment") dated
as of the 27th day of September, 1991, is made by and among THE CREDIT BUREAU,
INCORPORATED OF GEORGIA, a Georgia corporation ("CBI" or "ECIS"), EQUIFAX INC.,
a Georgia corporation ("Equifax"), and CSC ENTERPRISES, a Delaware general
partnership (the "Partnership"), CSC ACCOUNTS MANAGEMENT, INC., a Texas
corporation ("Accounts Management") and COMPUTER SCIENCES CORPORATION, a Nevada
corporation ("CSC").
WITNESSETH:
-----------
WHEREAS, ECIS, Equifax, CSC, CSC Credit Services, Inc., a Texas corporation
("Credit Services"), (for itself and as successor in interest to CSC Credit
Services of Minnesota, Inc., a Texas corporation ("Minnesota")), Credit Bureau
of Cincinnati, Inc., an Ohio corporation ("Cincinnati"), Credit Bureau of
Greater Kansas City, Inc., a Missouri corporation ("Kansas City"), ▇▇▇▇▇ Holding
Company, a Delaware corporation ("JHC"), and Accounts Management entered into an
Agreement for Computerized Credit Reporting Services and Options to Purchase and
Sell Assets, dated as of August 1, 1988 (the "Original Agreement"); and
WHEREAS, Minnesota has been merged into Credit Services effective September
30, 1988; and
WHEREAS, as of December 28, 1990, Credit Services, CSC Enterprises, Inc., a
Nevada corporation ("CEI"), CSC Ventures, Inc., a Nevada corporation, CBI
Ventures Inc., a Georgia corporation, and Equifax Ventures Inc., a Georgia
corporation, entered into that Partnership Agreement (the "Partnership
Agreement") of the Partnership; and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement,
dated as of December 28, 1990, by and among Credit Services, Cincinnati, Kansas
City, JHC, as assignors, and CEI, as assignee, CEI was assigned all of
assignors' right, title and interest in and to the Original Agreement and CEI
assumed all of the assignors' obligations under the Original Agreement; and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement,
dated as of December 28, 1990, by and between CEI, Credit Services, as
assignors, and the Partnership, as assignee, CEI assigned to the Partnership,
among other things, all of its right, title and
interest in and to the Original Agreement, and the Partnership assumed all of
CEI's obligations under the Original Agreement; and
WHEREAS, the Original Agreement was amended as of December 28, 1990, by
that First Amendment to Agreement For Computerized Credit Reporting Services and
Options to Purchase. and Sell Assets, among ECIS, Equifax, CSC, Credit Services,
Cincinnati, Kansas City, JHC, Accounts Management, CEI and the Partnership (the
"First Amendment");
WHEREAS, the Original Agreement, as amended by the First
Amendment, was further amended as of the _____ day of __________ 1991, by that
Second Amendment to Agreement for Computerized Credit Reporting, Services and
Options to Purchase and Sell Assets, among ECIS, Equifax, the Partnership,
Accounts Management and CSC (the "Second Amendment", the Original Agreement, as
amended by the First Amendment and the Second Amendment being referred to herein
as the "Agreement");
WHEREAS, CBI has adopted the assumed name "Equifax Credit Information
Services" and desires to use the acronym "ECIS" instead of "CBI" and any
reference to "CBI" or "ECIS" refers to THE CREDIT BUREAU, INCORPORATED OF
GEORGIA, a Georgia corporation; and
WHEREAS, the parties hereto have agreed to amend the Agreement in certain
respects as set forth herein.
NOW THEREFORE, in consideration of the premises and of other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Addition of Exhibit K to the Agreement.
--------------------------------------
The following new Exhibit K titled "Use of Demographic Data" is hereby
added to the Agreement as follows:
1. Definitions. For the purposes of this Exhibit K, the following terms
-----------
will have the meanings specified:
"Affiliate" means any Person controlling, controlled by or under
common control with any other Person. For purposes of this
definition,"control" (including "controlled by" and "under common
control with") means ownership, directly or indirectly,
beneficially and of record of all of the equity of another
Person.
"Changed Address Product" means the product described in Exhibit
2 hereto, as modified or added to pursuant to paragraph 2.c
hereof.
"Demographic Data" means, with respect to any individual,
information and employment information owned by the Partnership
consisting of
-17-
identification information, including name, current address,
origin and date of current address, former address, second former
address, also known as, sex, marital status, date of birth,
social security number, dependents, employer, position, firm,
location, date employed, date verified, monthly salary, former
employment, position, location, date left, employment second
former, name of spouse and similar information.
"Direct Marketing Products" means the products described in
Exhibit I hereto, as modified or added to pursuant to paragraph
2.c hereof.
"Products" means Direct Marketing Products and Changed Address
Product.
"Profit" means Gross Revenues from the Products, less (i) all
costs of sales and production, (ii) general and administrative
expenses, and (iii) payments made to Affiliate Bureaus under
their respective direct marketing revenue sharing agreements with
ECIS.
"Gross Revenues" means gross revenue from the production, sale,
license or distribution of the Products (without deducting for
commission, production, operations or other costs).
2. Use and Modification of Products.
--------------------------------
a. Subject to the terms of this Exhibit K, ECIS may use the Demographic
Data owned by the Partnership and maintained within the ACROPAC(TM)
System only in order to incorporate such Demographic Data into
Products produced, sold, licensed or distributed by ECIS.
b. ECIS represents and warrants that ECIS and its Affiliates have
previously used Demographic Data for the Products (and no other
products or services). The Partnership hereby ratifies and consents
to the previous use of the Demographic Data for the Products, subject
to compliance by ECIS with the terms of this Exhibit K. ECIS has made
payments to the Partnership for Demographic Data previously used. To
the extent that the payments were made in accordance with the terms of
this Exhibit K, such payments previously made constitute payment in
full. The Partnership has the right to retain any payments previously
made.
C. ECIS may in its sole discretion determine that it is necessary to
modify the Products. ECIS's rights to use the Demographic Data in
Products as described in paragraph 2.a above extends to Products as so
modified, as long as the modified product is similar to a Product
described in Exhibit 1 or 2. Prior to using any Demographic Data with
respect to any other product not similar to those products described
on Exhibit I or 2, ECIS shall provide to the Partnership a written
description of the proposed product, including a description of its
information parameters and market, and shall request that the
Partnership consent
-18-
in writing to the use of Demographic Data with respect to such other
product, which written consent shall not be unreasonably withheld.
3. Payment to the Partnership for Direct Marketing Products.
--------------------------------------------------------
a. For the calendar year 1990, ECIS will pay the Partnership five percent
(5%) of Profit from the Direct Marketing Products. This percentage is
derived from the Partnership's right to receive 25% of the Profit from
the Direct Marketing Products times 20% (the previously established
percentage of all consumer credit files owned by the Partnership in
the ACROPAC/(TM)/ System).
b. From and after January 1, 1991, ECIS will pay the Partnership one
percent (I %) of all Gross Revenues from all Direct Marketing
Products. This percentage is derived from the Partnership's right to
receive 5% of the Gross Revenues from the Direct Marketing Products
times 20% (the previously established percentage of all consumer
credit files owned by the Partnership in the ACROPAC/(TM)/ System).
c. Payments due the Partnership will be calculated in respect of each
calendar quarter and paid to the Partnership no more than sixty (60)
days after the end of such calendar quarter.
4. Payment to the Partnership for Changed Address Product.
------------------------------------------------------
a. From and after January 1, 1990, ECIS will pay the Partnership three
percent (3%) of all Gross Revenues from the Changed Address Product.
This percentage is derived from the Partnership's right to receive 15%
of the Gross Revenues from the Changed Address Product times 20% (the
previously established percentage of all consumer credit files owned
by the Partnership in the ACROPAC(TM) System).
b. Payments due the Partnership will be calculated in respect of each
calendar quarter and paid to the Partnership no more than sixty (60)
days after the end of such calendar quarter.
5. Term of Exhibit K. This Exhibit K will be effective as of January 1, 1990
-----------------
and shall continue for an initial term of two (2) years from January 1,
1990 through December 31, 1991 (the "Initial Term"). Unless the
Partnership or ECIS shall give to the other written notice at least @ (30)
days prior to the expiration of the Initial Term of the intention of such
party to terminate this Exhibit K at the end of such Initial Term, this
Exhibit K shall be automatically renewed for an additional term of one (1)
year (a "Renewal Term") and such automatic renewal of this Exhibit K shall
continue for successive additional Renewal Terms of one (1) year each
unless such prior written notice of a desire to terminate shall be given at
least thirty (30) days prior to the expiration of the then current Renewal
Term. If this Exhibit K is terminated, ECIS's permission to use the
Demographic Data owned by the Partnership and maintained within the
ACROPAC/(TM)/ system is terminated even date therewith.
-19-
6. Audit Right. The Partnership shall have the right to audit ECIS's relevant
-----------
records to verify compliance with the terms of this Exhibit K. Such audit
may be conducted after reasonable notice, during normal business hours,
using reasonable procedures to assure an accurate audit. Each party will
cooperate with the other during the conduct of any such audit, it being
expressly understood that in no event shall auditors be permitted access to
confidential data, files or information belonging to a third party or not
directly related to this Exhibit K. Auditors will not be given free access
to facilities, documents or files. Auditors will work only in designated
locations and will conduct their business quietly without significant
disruption of work being done by others. Notwithstanding anything to the
contrary herein contained, ECIS will make available to the Partnership
appropriate personnel to answer the Partnership's questions associated with
the -audit. All expenses of the audit are the responsibility of the
Partnership.
7. ECIS Affiliates. In the exercise of its rights and performance of its
---------------
duties under this Exhibit K, ECIS may act through an Affiliate,
provided, however, ECIS shall not thereby be relieved of any of its
obligations hereunder.
2. References to the Agreement.
---------------------------
All capitalized terms which are defined in the Agreement and not otherwise
defined herein shall have the same meaning herein as in the Agreement. On or
after the date hereof, each reference in the Agreement to "this Agreement",
"hereunder", "herein", or words of like import shall mean and be a reference to
the Agreement, as amended by this Third Amendment.
3. Authority.
---------
Each of the parties hereto represents to the other parties hereto that: (a)
it has the full corporate (or, in the case of the Partnership, partnership)
power and authority to execute and deliver this Third Amendment, to perform
under the Agreement, as amended by this Third Amendment, and to consummate
the transactions contemplated by the Agreement, as amended by this Third
Amendment, without the necessity of any act, approval or consent of any
other person whomsoever, except such as having been obtained; and (b) the
Agreement, as amended by this Third Amendment, has been approved by its
Board of Directors, or the Executive Committee thereof (or, in the case of
the Partnership, by the respective Boards of Directors, or the Executive
Committees thereof, of each of its partners), and constitutes the valid and
legally binding obligation of such party enforceable against such party in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
from time to time in effect which affect the enforcement of creditors'
rights generally, and except as enforcement of remedies may be limited by
general equitable principles.
4. Counterparts.
------------
This Third Amendment may be executed in several counterparts, and each
counterpart, when so executed and delivered, shall constitute an original
instrument, and all such separate counterparts shall constitute but one and the
same instrument.
-20-
5. Merger.
------
This Third Amendment sets forth the entire understanding of the parties
regarding the subject matter hereof, and all prior such understandings, written
or oral, are merged herein.
6. Governing Law.
-------------
THIS THIRD AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS.
THE CREDIT BUREAU, INCORPORATED
OF GEORGIA
By:
-----------------------------------
Title:
--------------------------------
EQUIFAX INC.
By:
-----------------------------------
Title:
--------------------------------
CSC ENTERPRISES
By: CSC ENTERPRISES, INC.
Its Managing Partner
By:
-----------------------------------
Title:
--------------------------------
CSC ACCOUNTS MANAGEMENT,
INC.
By:
-----------------------------------
Title:
--------------------------------
COMPUTER SCIENCES
CORPORATION
By:
-----------------------------------
Title:
--------------------------------
-21-
EXHIBIT I
---------
DIRECT MARKETING PRODUCTS
Service Description
------- -----------
PowerList A list product consisting of names and addresses selected by
geographic, demographic an-d buying behavior characteristics.
This is a 30-day active file. It may not be used to determine
creditworthiness.
PowerHouse A list product consisting of names and addresses selectable by
geographic, demographic and buying behavior characteristics.
This file is different from PowerLists in that it does not
require 30-day activity and it has refined geographic
selectability (household level).
Power Data The customer's own file is enhanced by PowerList indexes,
Overlay Census Data, Demographic and externally supplied data. It may
not be used to determine creditworthiness nor applied anywhere
other than their own customer base.
Custom A list selection derived directly from the Equifax Consumer
Modeling Marketing Database (ECMD) based on a quantitative model custom
built for the direct mailer. The model is designed to select
consumers who are likely to have an interest in the customer's
products and respond via the mail. It may not be used to
determine creditworthiness.
-22-
EXHIBIT 2
---------
CHANGED ADDRESS PRODUCT
Service Description
------- -----------
CB Movers Using the National Change of Address List (NCOA) to match against
the off-line screening database to determine if the NCOA is a new
address.
-23-
RESOLUTION AGREEMENT
--------------------
THIS RESOLUTION AGREEMENT, ("Resolution Agreement"), made and entered into
as of the 27th day of September, 1991, by and among THE CREDIT BUREAU,
INCORPORATED OF GEORGIA, a Georgia corporation ("CBI" or "ECIS"), EQUIFAX INC.,
a Georgia corporation ("Equifax") (CBI and Equifax are sometimes together
referred to herein as the "Equifax Parties"), COMPUTER SCIENCES CORPORATION, a
Nevada corporation ("CSC"), CSC CREDIT SERVICES, INC., a Texas corporation
("Credit Services") (for itself and as successor in interest to CSC CREDIT
SERVICES OF MINNESOTA, INC., a Texas corporation ("Minnesota")), CREDIT BUREAU
OF CINCINNATI, INC., an Ohio corporation ("Cincinnati"), CREDIT BUREAU OF
GREATER KANSAS CITY, INC., a Missouri corporation ("Kansas City"), ▇▇▇▇▇ HOLDING
COMPANY, a Delaware corporation ("JHC"), CSC ACCOUNTS MANAGEMENT, INC., a Texas
corporation ("Accounts Management"), CSC ENTERPRISES, INC., a Nevada corporation
("CEI"), and CSC ENTERPRISES, a Delaware general partnership (the "Partnership")
(CSC, Credit Services, Cincinnati, Kansas City, JHC, Accounts Management, CEI
and the Partnership are sometimes collectively referred to herein as the "CSC
Parties").
RECITALS:
---------
WHEREAS, ECIS, Equifax, CSC, Credit Services, Minnesota, Cincinnati, Kansas
City, JHC and Accounts Management entered into an Agreement for Computerized
Credit Reporting Services and Options to Purchase and Sell Assets, dated as of
August 1, 1988 (the "Original Agreement"); and
WHEREAS, Minnesota has been merged into Credit Services effective September
30, 1988; and
WHEREAS, as of December 28. 1990, Credit Services, CEI, CSC Ventures, Inc.,
a Nevada corporation, CBI Ventures Inc., a Georgia corporation, and Equifax
Ventures Inc., a Georgia corporation, entered into a Partnership Agreement (the
"Partnership Agreement") of the Partnership; and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement,
dated as of December 28, 1990, among Credit Services, Cincinnati, Kansas City,
JHC, as assignors, and CEI, as assignee, CEI was assigned all of assignors'
right, title and interest in and to the Original Agreement and CEI assumed all
of the assignors' obligations under the Original Agreement; and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement
entered into as of December 28, 1990, by and between CEI and Credit Services, as
assignors, and the Partnership, as assignee, CEI assigned to the Partnership,
among other things, all of its right,
-24-
title and interest in and to the Original Agreement, and the Partnership assumed
all of CEI's obligations under the Original Agreement, and
WHEREAS, the Original Agreement was amended as of December 28, 1990, by
that First Amendment to Agreement for Computerized Credit Reporting Services and
Options to Purchase and Sell Assets among ECIS, Equifax, CSC, Credit Services,
Cincinnati, Kansas City, JHC, Accounts Management, CEI, and the Partnership (the
"First Amendment," and the Original Agreement, as amended by the First
Amendment, being herein referred to as the "Agreement"); and
WHEREAS, CBI has adopted the assumed name "Equifax Credit Information
Services" and desires to use the acronym "ECIS" instead of "CBI" and any
reference to "CBI" or "ECIS" refers to THE CREDIT BUREAU, INCORPORATED OF
GEORGIA, a Georgia corporation; and
WHEREAS, the CSC Parties have claimed that CBI and Credit Marketing
Services, Inc. ("CMS") are obligated to waive or forego the 25% commission on
promotion sales for regional and national sales of promotions made by CBI or
CMS, which CBI has denied; and
WHEREAS, the parties desire to resolve the aforesaid contested claim and
for that purpose are entering into this Resolution Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein provided, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Second and Third Amendments to the Agreement.
--------------------------------------------
CBI, Equifax, the Partnership, Accounts Management and CSC are executing
and delivering contemporaneously with the execution of this Resolution
Agreement, those Second and Third Amendments to the Agreement for Computerized
Credit Reporting Services and Options to Purchase and Sell Assets in the forms
annexed as Schedules I and 2 to this Resolution Agreement (the "Second
Amendment" and the "Third Amendment," respectively).
2. Purchase and Sale of Software,
-----------------------------
Contemporaneously with the execution and delivery of this Resolution
Agreement, the Second Amendment and the Third Amendment, the Partnership and CBI
are executing and delivering an Agreement For the Purchase and Sale of Software
in the form annexed hereto as Schedule 3 (the "Software Purchase Agreement").
3. Payments by CBI.
---------------
On the date hereof, CBI shall pay to the Partnership $150,000, and from and
after the date hereof, CBI shall pay to the Partnership $25,000 on the first
business day of each month commencing in October 1991, and continuing regularly
thereafter through and including March 1994 (for an aggregate payment of
$900,000). Payments are to be made in lawful money of the
-25-
United States of America in immediately available funds at the office of the
Partnership, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
Controller, or such other place as the Partnership shall designate in Writing to
CBI. Furthermore, from and after the date hereof, (a) payments required to be
made to the Partnership under the phrase "25% of total net revenue" referred to
in the last sentence of indented paragraph 2. set forth in the first paragraph
on page 10 of Exhibit A of the Agreement shall be deemed to be payments under
this Resolution Agreement, and (b) payments required to be made to the
Partnership under the Third Amendment and the shared commissions under the
Second Amendment Section 1 (a)(4)(ii) shall be deemed to be payments under this
Resolution Agreement until such time as an aggregate amount of $376,316.00 shall
have been so received by the Partnership. After such time, amounts referred to
in clauses (a) and (b) of the preceding sentence shall continue to be paid to
the Partnership as provided by the Agreement, the Second Amendment and the Third
Amendment.
4. No Further Claims.
-----------------
The CSC Parties agree that the payments already made to them (and payments
to be made pursuant to the Agreement) by CBI and CMS for promotions sold CBI and
execution and performance of this Resolution Agreement, the Second Amendment,
the Third Amendment and the Software Purchase Agreement fully satisfy all claims
of the CSC Parties that CBI or CMS is obligated to waive or forego the 25%
commissions on promotion sales made by CBI or CMS as provided in Exhibit A of
the Agreement; and the CSC Parties and the Equifax Parties agree that they have
no knowledge of any other disputed claims they may have- regarding payment for
promotions already sold. Hereafter, payments for promotions will be governed by
this Resolution Agreement and the terms of the Agreement, and as amended by the
Second Amendment and the Third Amendment.
-26-
5. Entire Agreement.
----------------
This Resolution Agreement expresses the entire understanding and agreement
of the parties hereto regarding the subject matters hereof, and all prior
understandings and agreements, written or oral, among the parties regarding such
subject matters are merged herein.
6. Schedules.
---------
The Schedules referenced herein and annexed hereto are incorporated herein.
7. Counterparts.
------------
This Resolution Agreement may be executed in several counterparts, and each
counterpart, when so executed and delivered, shall constitute an original
instrument, and all such counterparts, together, shall evidence and constitute
one and the same instrument.
8. Governing Law.
-------------
THIS RESOLUTION AGREEMENT SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS
OF THE STATE OF TEXAS.
IN WITNESS WHEREOF, the parties have caused this Resolution Agreement to be
executed as of the date first above written.
THE CREDIT BUREAU, INCORPORATED
OF GEORGIA
By:
--------------------------------------
Title:
-----------------------------------
EQUIFAX INC.
By:
--------------------------------------
Title:
-----------------------------------
COMPUTER SCIENCES CORPORATION
By:
--------------------------------------
Title:
-----------------------------------
CSC CREDIT SERVICES, INC.
-4-
By:
--------------------------------------
Title:
-----------------------------------
CREDIT BUREAU OF CINCINNATI, INC.
By:
--------------------------------------
Title:
-----------------------------------
CREDIT BUREAU OF GREATER KANSAS
CITY, INC.
By:
--------------------------------------
Title:
-----------------------------------
▇▇▇▇▇ HOLDING COMPANY
By:
--------------------------------------
Title:
-----------------------------------
CSC ACCOUNTS MANAGEMENT, INC.
By:
--------------------------------------
Title:
-----------------------------------
CSC ENTERPRISES, INC.
By:
--------------------------------------
Title:
-----------------------------------
CSC ENTERPRISES
Its Managing Partner
By:
--------------------------------------
Title:
-----------------------------------
-5-
SCHEDULE 1
SECOND AMENDMENT
TO
AGREEMENT
FOR
COMPUTERIZED CREDIT REPORTING SERVICES
AND
OPTIONS TO PURCHASE AND SELL ASSETS
THIS SECOND AMENDMENT TO AGREEMENT FOR COMPUTERIZED CREDIT REPORTING
SERVICES AND OPTIONS TO PURCHASE AND SELL ASSETS (the "Second Amendment") dated
as of the _____ day of ____________, 1991, is made by and among THE CREDIT
BUREAU, INCORPORATED OF GEORGIA, a Georgia corporation ("ECIS" or "CBI"),
EQUIFAX INC., a Georgia corporation ("Equifax"), and CSC ENTERPRISES, a Delaware
general partnership (the "Partnership"), CSC ACCOUNTS MANAGEMENT, INC., a Texas
corporation ("Accounts Management") and COMPUTER SCIENCES CORPORATION, a Nevada
corporation ("CSC").
WITNESSETH:
-----------
WHEREAS, ECIS, Equifax, CSC, CSC Credit Services, Inc., a Texas corporation
("Credit Services"), (for itself and as successor in interest to CSC Credit
Services of Minnesota, Inc., a Texas corporation ("Minnesota")), Credit Bureau
of Cincinnati, Inc., an Ohio corporation ("Cincinnati"), Credit Bureau of
Greater Kansas City, Inc., a Missouri corporation ("Kansas City"), ▇▇▇▇▇ Holding
Company, a Delaware corporation ("JHC"), and Accounts Management entered into an
Agreement for Computerized Credit Reporting Services and Options to Purchase and
Sell Assets, dated as of August 1, 1988 (the "Original Agreement"); and
WHEREAS, Minnesota has been merged into Credit Services effective September
30, 1988; and
WHEREAS, as of December 28, 1990, Credit Services, CSC Enterprises, Inc., a
Nevada corporation ("CEI"), CSC Ventures, Inc., a Nevada corporation, CBI
Ventures Inc., a Georgia corporation, and Equifax Ventures Inc., a Georgia
corporation, entered into that Partnership Agreement (the "Partnership
Agreement") of the Partnership; and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement,
dated as of December 28, 1990, by and among Credit Services, Cincinnati, Kansas
City, JHC, as assignors, and CEI, as assignee, CEI was assigned all of
assignors' right, title and interest in and to the Original Agreement and CEI
assumed all of the assignors' obligations under the Original Agreement; and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement,
dated as of December 28, 1990, by and between CEI, Credit Services, as
assignors, and the Partnership, as assignee, CEI assigned to the Partnership,
among other things, all of its right, title and interest
in and to the Original Agreement, and the Partnership assumed all of CEI's
obligations under the Original Agreement; and
WHEREAS, the Original Agreement was amended as of December 28, 1990, by
that First Amendment to Agreement For Computerized Credit Reporting Services and
Options to Purchase and Sell Assets, among ECIS, Equifax, CSC, Credit Services,
Cincinnati, Kansas City, JHC, Accounts Management, CEI and the Partnership (the
"First Amendment," the Original Agreement, as amended by the First Amendment
being referred to herein as the "Agreement");
WHEREAS, CBI has adopted the assumed name "Equifax Credit Information
Services" and desires to use the acronym "ECIS" instead of "CBI" and any
reference to "CBI" or "ECIS" refers to THE CREDIT BUREAU, INCORPORATED OF
GEORGIA, a Georgia corporation; and
WHEREAS, the parties hereto have agreed to amend the Agreement in certain
respects as set forth herein.
NOW THEREFORE, in consideration of the premises and of other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Amendment
Exhibit A to the Agreement titled "The Automated Credit Reporting
Online Package (ACROPAC(TM)) System Description," is amended as follows:
a. At page 9 of Exhibit A the following language is deleted:
"CREDIT MARKETING SERVICE (CMS)
- CMS will represent the bureau at the national and regional level
on promotion programs sales.
- CMS will also assist the bureau on any promotion program sold by
the bureau."
and inserted in lieu thereof is the following language:
-2-
"PROMOTION MARKETING
1. ECIS Customer List. All promotion sales to any credit grantor (a
------------------
"Listed Customer") listed on Exhibit I annexed to this Exhibit A, as
amended from time to time pursuant to the provisions hereof (the
"ECIS Customer List") will be conducted solely by ECIS. A subsidiary
or division of a Listed Customer shall be deemed to be a Listed
Customer unless specifically excepted.
2. Promotion Sales by the Partnership. Notwithstanding any provision in
----------------------------------
the Agreement to the contrary and subject to the restrictions provided
in subparagraphs (i) and (ii) below, the Partnership shall have the
non-exclusive right to sell promotions to a credit grantor (a
"Potential Partnership Customer") who at the time of such sale is not
listed on the ECIS Customer List and whose decision-making office is
within the following area: Arkansas; Illinois (except for ▇▇▇▇,
DeKalb, DuPage, Grundy, Kane, Kendall, Lake, ▇▇▇▇▇▇▇ and Will
Counties); Indiana; Iowa; Kansas; Kentucky; Bienville, Bessier, Caddo,
Claiborne, Desoto, Jackson, Lincoln, Natchitoches, Red River, Sabine,
Webster, Morehouse, Oauchita, Richland, Union and West ▇▇▇▇▇▇▇
Parishes, Louisiana; Minnesota; Missouri; Nebraska; North Dakota;
Ohio; Oklahoma; South Dakota; Texas; and Wisconsin (the "Partnership
Area"), where the promotion covers consumers residing in and/or
outside of the Partnership Area, provided that:
(i) the Partnership shall have given notice to ECIS of the Partnership's
intention to make a Presentation to a Potential Partnership Customer,
describing the Presentation in reasonable detail, including the nature
of the Presentation, the name and address of the Potential Partnership
Customer, and the persons proposed to be contacted at the Potential
Partnership Customer. Notwithstanding any provision of the Agreement
- to the contrary, for purposes of this subparagraph (i), notice shall
be deemed sufficient if: A) Sent by telecopy to ECIS at the following
facsimile number, or any such other facsimile number as ECIS may, by
giving written notice under the Agreement, designate and B) the
Partnership places a voice telephone call to the following number to
alert ECIS that a facsimile has been sent or is forthcoming.
-3-
The Credit Bureau, Incorporated of Georgia
Attention: ▇▇▇▇ ▇▇▇▇
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
;and
(ii) ECIS does not within 24 hours after receipt of the notice provided for
in subparagraph (i) above (except that Saturdays, Sundays, New Year's
Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, the
Friday following Thanksgiving Day, Christmas Eve and Christmas Day
shall be excluded in such time measurement) give written notice to the
Partnership, Attention: Executive Vice-President CRD, Facsimile
Number: ▇▇▇-▇▇▇-▇▇▇▇ (or any such other facsimile number as the
Partnership may, by giving written notice under the Agreement,
designate), that, prior to ECIS's receipt of such notice, ECIS had
begun a Sales Effort directed toward that Potential Partnership
Customer in respect of a sale of a promotion which comprises or
includes in substantial part the promotion contemplated by the
Partnership, describing the Sales Effort in reasonable detail,
including the nature of such Sales Effort, the persons contacted at
the Potential Partnership Customer, and the place and date of such
Sales Effort. In the event ECIS gives such notice, the Partnership
will not make such Presentation to this customer.
The Partnership will notify ECIS of the result of the Presentation.
Should a sale by the Partnership not result, the next subsequent
effort to market a promotion to that Potential Partnership Customer
shall be subject to the procedure described in these subparagraphs (i)
and (ii). If a sale does result, subsequent Presentations to that
Potential Partnership Customer do not require the Partnership to
follow the procedure described in these subparagraphs (i) and (ii).
Notwithstanding any provision in the Agreement to the contrary, the
Partnership shall have the right to market and to sell promotions to a
credit grantor who at the time of such sale is not listed on the ECIS
Customer List and whose decision-making office is within a zip code
area covered by a file of a bureau owned by the Partnership
("Partnership Zip Code Area"), where the promotion covers only
consumers residing in the Partnership Area,and in connection with such
sale, the Partnership shall not be required to follow
-4-
the procedures referred to in subparagraphs (i) and (ii) above. If the
decision making office is not within the Partnership Area, the
Partnership agrees to obtain permission from the bureau file owner
before marketing or selling a promotion.
3. ACROPAC(TM) Marketing by ECIS and the Partnership. ECIS and the
----------------------------------------------
Partnership agree that each will aggressively market all files in
ACROPAC(TM) irrespective of ownership, consistent with the provisions
hereof. The seller of a promotion shall set the price, terms and
conditions of the sale. Since the parties agree that the ECIS data
processing costs chargeable to a promotion sold by the Partnership
shall not exceed 10% of the gross revenue of that promotion, the
Partnership agrees not to sell promotions processed by ECIS for less
than $2,000. The parties agree that the Partnership may use a third-
party processor to process its data to create promotions or it may
process the data itself. Upon the Partnership's request, ECIS will
furnish the Partnership a copy of the data which it has the right to
use in ECIS Master Record format for $15,000-00 per copy ("File Copy
Rate"). The parties agree that when ECIS does not process the
promotions sold by the Partnership, ECIS is not entitled to the data
processing costs or the 6% of net revenue administrative fee described
in Exhibit A.
Consistent with the terms and conditions contained in the Agreement
and this Second Amendment, the Partnership shall have the right to
access all files in ACROPAC(TM) in connection with its promotion sales
processed by ECIS. Upon request of the Partnership, ECIS will assist
the Partnership on all promotion sales without charge to the
Partnership unless the Partnership requests that an ECIS sales
representative contact the customer directly, either by telephone or
in person. In the event that the Partnership requests that an ECIS
sales representative contact a customer directly, either by telephone
or in person, ECIS will receive 50% of the 25% commission on that
promotion sale.
4. Joint Annual Meeting of ECIS and the Partnership. In order to assure
------------------------------------------------
the aggressive marketing of all of the files in the ACROPAC(TM) System
and to provide a once-a-year forum to voice concerns regarding such,
the parties agree to hold an joint annual meeting. The meeting will
be held on the anniversary, or as close as reasonably possible
thereto, to the signing of the Second Amendment ("Anniversary").
-5-
(i) The agenda of the meeting is to discuss aggressive marketing of the
ACROPAC(TM) system and to discuss additions and deletions to the ECIS
Customer List. Each party agrees that the joint meeting is the proper
and only forum for discussion of additions and deletions.
Each party will bring all of the necessary information to the meeting
in order to adequately discuss the issues included in the meeting
agenda. Each party may bring any personnel it believes are reasonably
necessary. While the attendance of the President of ECIS and the
attendance of the President of the Credit Reporting Division of the
Partnership is not required, it is required that both presidents be
available to consult with the participants of the joint meeting during
the meeting. ff presidential participation is requested on a topic and
the president whose participation is requested is unavailable, the
topic will be tabled for further discussion when such president is
available.
(ii) The parties will discuss the addition to the ECIS Customer List of any
customer to which the Partnership has sold two (2) or more promotions
each involving more than 500,000 names since, in the case of the first
joint review meeting, the signing of the Second Amendment, or in the
case of subsequent joint review meetings, since the last joint review
meeting. The parties will discuss all relevant factors relating to
the customer contemplated to be added to the ECIS Customer List. Upon
consideration of the factors, ECIS will decide at the joint review
meeting whether or not to add the customer to the ECIS Customer List.
If ECIS adds the customer to the ECIS Customer List, the Partnership
will receive 50% of the 25% commission for all subsequent promotion
sales to that customer for the next 24 months.
(iii) The parties will discuss deleting customers from the ECIS Customer
List who have not purchased any promotions from ECIS since, in the
case of the first joint review meeting, the signing of the Second
Amendment, or in the case of subsequent joint review meetings, since
the last joint review meeting. In discussing the deletion of the
customer from the ECIS Customer List, the parties will consider:
1. Has the customer purchased any promotions from other vendors
within the time frame considered?
-6-
2. Has ECIS made a Presentation within the time frame
considered?
3. Has ECIS made a Sales Effort within the time frame
considered?
4. Any other relevant considerations/circumstances.
(iv) After considering all the factors raised in the discussion, the
parties must jointly agree to remove the customer from the ECIS
Customer List. If the parties cannot jointly agree before the end of
the annual meeting that the customer should be deleted, the customer
will not be deleted from the ECIS Customer List.
(v) ECIS will provide a copy of the ECIS Customer List for the year as
soon as possible after the joint annual meeting.
5. Audit. ECIS agrees to have its independent public accounting firm
-----
annually perform, at no cost to the Partnership, a third party review,
as defined in accordance with SAS #44, of the ECIS data processing
system as it relates to promotions.
6. ECIS Affiliates. In the exercise of its rights and performance of its
---------------
duties under this Exhibit A, ECIS may act through an Affiliate,
provided, however, ECIS shall not thereby be relieved of any of its
obligations hereunder.
7. Definitions. For purposes of this Exhibit A:
-----------
"Affiliate" means any Person controlling, controlled by or under
common control with any other Person. For purposes of this
definition, "control" (including"controlled by" and "under common
control with") means ownership, directly or indirectly,
beneficially and of record of all of the equity of another
Person.
"Presentation" means verbal or written communications with a
Potential Partnership Customer regarding a specific promotion and
containing a pricing proposal. Verbal and written
-7-
communications, absent such pricing proposal, shall not be a
Presentation but will be a Sales Effort.
"Promotion" means a list of consumer names and corresponding
addresses compiled from credit files by identifying such names on
the basis of credit information that match certain credit
criteria supplied and/or approved by the promotion customer. The
definition of "promotion" shall include products which review a
customer's account portfolio to screen or monitor for positive or
negative changes to the portfolio or individual accounts therein.
"Sales Effort" means verbal or written communications with a
Potential Partnership Customer regarding a specific promotion."
b. Wherever the term "CMS" appears in Exhibit A, such term is deleted and the
phrase "ECIS or any Affiliate of ECIS designated by ECIS" is inserted in lieu
thereof.
c. On page 1 of the Agreement, the term CBI is defined as referring to THE
CREDIT BUREAU, INCORPORATED OF GEORGIA, a Georgia corporation.
Subsequently that corporation has adopted the assumed name "Equifax Credit
Information Services" and desires to use the acronym "ECIS" instead of "CBI."
Therefore, the Agreement shall be amended such that the acronyms "ECIS" and
"CBI" are interchangeable and either may be used to refer to THE CREDIT BUREAU,
INCORPORATED OF GEORGIA.
2. References to the Agreement.
---------------------------
All capitalized terms which are defined in the Agreement and not otherwise
defined herein shall have the same meaning herein as in the Agreement. On or
after the date hereof, each reference in the Agreement to "this Agreement",
"hereunder", "herein", or words of like import shall mean and be a reference to
the Agreement, as amended by this Second Amendment.
3. Authority.
---------
Each of the parties hereto represents to the other parties hereto that:
-8-
(a) it has the full corporate (or, in the case of the Partnership, partnership)
power and authority to execute and deliver this Second Amendment, to perform
under the Agreement, as amended by this Second Amendment, and to consummate the
transactions contemplated by the Agreement, as amended by this Second Amendment,
without the necessity of any act, approval or consent of any other person
whomsoever, except such as having been obtained; and (b) the Agreement, as
amended by this Second Amendment, has been approved by its Board of Directors,
or the Executive Committee thereof (or, in the case of the Partnership, by the
respective Boards of Directors, or the Executive Committees thereof, of each of
its partners), and constitutes the valid and legally binding obligation of such
party enforceable against such party in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws from time to time in effect which affect the
enforcement of creditors' rights generally, and except as enforcement of
remedies may be limited by general equitable principles.
4. Counterparts.
------------
This Second Amendment may be executed in several counterparts, and each
counterpart, when so executed and delivered, shall constitute an original
instrument, and all such separate counterparts shall constitute but one and the
same instrument.
5. Merger.
------
This Second Amendment sets forth the entire understanding of the parties
regarding the subject matter hereof, and all prior such understandings, written
or oral, are merged herein.
6. Governing Law.
-------------
THIS SECOND AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS.
Executed as of the date first above written:
THE CREDIT BUREAU, INCORPORATED OF GEORGIA
By:
---------------------------------------
Title:
------------------------------------
EQUIFAX INC.
By:
---------------------------------------
Title:
------------------------------------
CSC ENTERPRISES
By: CSC ENTERPRISES, INC.
Its Managing Partner
By:
---------------------------------------
Title:
------------------------------------
CSC ACCOUNTS MANAGEMENT, INC.
By:
---------------------------------------
Title:
------------------------------------
COMPUTER SCIENCES CORPORATION
By:
---------------------------------------
Title:
------------------------------------
-10-
EXHIBIT ONE
ECIS CUSTOMER LIST
American General Huntington National Bank
Ameritrust Hartmarx
Amoco Oil Company Higbees
Associates IDS Deposit Corporation
Bank One ITT
Boatmans Bank ▇. ▇. ▇▇▇▇▇▇ Company
Cellular One May Company**
Cenex Merchantile Bank
Citgo Mobil Oil
Conoco More Card
▇▇▇▇▇▇ ▇▇▇▇▇▇ Maison ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Shamrock Neiman Marcus
Exxon Oil Company Norwest
Federated Allied ▇▇▇▇▇▇▇▇ Petroleum
Fidelity Investments Pier One
Fina Oil Seiferts
Fingerhut Shell Oil Company
First Bank Systems Star Bank
First City Bank Tandy
First Financial Bank of Milwaukee Texaco
First National Bank of Omaha USAA Federal Savings Bank
First Tier Bank Corp. Western Auto
G. E. Capital Zales/Gordons/▇▇▇▇▇▇, Banks &
Herbergers ▇▇▇▇▇▇
**(except for Foleys where the promotion covers only consumers residing in the
Partnership Zip Code Area.)
SCHEDULE 2
----------
THIRD AMENDMENT
TO
AGREEMENT FOR
COMPUTERIZED CREDIT REPORTING SERVICES
AND
OPTIONS TO PURCHASE AND SELL ASSETS
THIS THIRD AMENDMENT TO AGREEMENT FOR COMPUTERIZED CREDIT REPORTING
SERVICES AND OPTIONS TO PURCHASE AND SELL ASSETS (the "Third Amendment") dated
as of the 27th day of September, 1991, is made by and among THE CREDIT BUREAU,
INCORPORATED OF GEORGIA, a Georgia corporation ("CBI" or "ECIS"), EQUIFAX INC.,
a Georgia corporation ("Equifax"), and CSC ENTERPRISES, a Delaware general
partnership (the "Partnership"), CSC ACCOUNTS MANAGEMENT, INC., a Texas
corporation ("Accounts Management") and COMPUTER SCIENCES CORPORATION, a Nevada
corporation ("CSC").
WITNESSETH:
-----------
WHEREAS, ECIS, Equifax, CSC, CSC Credit Services, Inc., a Texas corporation
("Credit Services"), (for itself and as successor in interest to CSC Credit
Services of Minnesota, Inc., a Texas corporation ("Minnesota")), Credit Bureau
of Cincinnati, Inc., an Ohio corporation ("Cincinnati"), Credit Bureau of
Greater Kansas City, Inc., a Missouri corporation ("Kansas City"), ▇▇▇▇▇ Holding
Company, a Delaware corporation ("JHC"), and Accounts Management entered into an
Agreement for Computerized Credit Reporting Services and Options to Purchase and
Sell Assets, dated as of August 1, 1988 (the "Original Agreement"); and
WHEREAS, Minnesota has been merged into Credit Services effective
September 30, 1988; and
WHEREAS, as of December 28, 1990, Credit Services, CSC Enterprises, Inc., a
Nevada corporation ("CEI"), CSC Ventures, Inc., a Nevada corporation, CBI
Ventures Inc., a Georgia corporation, and Equifax Ventures Inc., a Georgia
corporation, entered into that Partnership Agreement (the
- 2 -
"Partnership Agreement") of the Partnership; and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement,
dated as of December 28, 1990, by and among Credit Services, Cincinnati, Kansas
City, JHC, as assignors, and CEI, as assignee, CEI was assigned all of
assignors' right, title and interest in and to the Original Agreement and CEI
assumed all of the assignors' obligations under the Original Agreement; and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement,
dated as of December 28, 1990, by and between CEI, Credit Services, as
assignors, and the Partnership, as assignee, CEI assigned to the Partnership,
among other things, all of its right, title and interest in and to the Original
Agreement, and the Partnership assumed all of CEI's obligations under the
Original Agreement; and
WHEREAS, the Original Agreement was amended as of December 28, 1990, by
that First Amendment to Agreement For Computerized Credit Reporting Services and
Options to Purchase. and Sell Assets, among ECIS, Equifax, CSC, Credit Services,
Cincinnati, Kansas City, JHC, Accounts Management, CEI and the Partnership (the
"First Amendment");
WHEREAS, the Original Agreement, as amended by the First Amendment, was
further amended as of the _____ day of __________ 1991, by that Second Amendment
to Agreement for Computerized Credit Reporting, Services and Options to Purchase
and Sell Assets, among ECIS, Equifax, the Partnership, Accounts Management and
CSC (the "Second Amendment", the Original Agreement, as amended by the First
Amendment and the Second Amendment being referred to herein as the "Agreement");
WHEREAS, CBI has adopted the assumed name "Equifax Credit Information
Services" and desires to use the acronym "ECIS" instead of "CBI" and any
reference to "CBI" or "ECIS" refers to THE CREDIT BUREAU, INCORPORATED OF
GEORGIA, a Georgia corporation; and
WHEREAS, the parties hereto have agreed to amend the Agreement in certain
respects as set forth herein.
- 3 -
NOW THEREFORE, in consideration of the premises and of other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Addition of Exhibit K to the Agreement.
--------------------------------------
The following new Exhibit K titled "Use of Demographic Data" is hereby
added to the Agreement as follows:
1. Definitions. For the purposes of this Exhibit K, the following terms
-----------
will have the meanings specified:
"Affiliate" means any Person controlling, controlled by or under
common control with any other Person. For purposes of this
definition,"control" (including "controlled by" and "under common
control with") means ownership, directly or indirectly,
beneficially and of record of all of the equity of another
Person.
"Changed Address Product" means the product described in
Exhibit 2 hereto, as modified or added to pursuant to paragraph
2.c hereof.
"Demographic Data" means, with respect to any individual,
information and employment information owned by the Partnership
consisting of identification information, including name, current
address, origin and date of current address, former address,
second former address, also known as, sex, marital status, date
of birth, social security number, dependents, employer, position,
firm, location, date employed, date verified, monthly salary,
former employment, position, location, date left, employment
second former, name of spouse and similar information.
- 4 -
"Direct Marketing Products" means the products described in
Exhibit I hereto, as modified or added to pursuant to paragraph
2.c hereof.
"Products" means Direct Marketing Products and Changed Address
Product.
"Profit" means Gross Revenues from the Products, less (i) all
costs of sales and production, (ii) general and administrative
expenses, and (iii) payments made to Affiliate Bureaus under
their respective direct marketing revenue sharing agreements
with ECIS.
"Gross Revenues" means gross revenue from the production, sale,
license or distribution of the Products (without deducting for
commission, production, operations or other costs).
2. Use and Modification of Products.
--------------------------------
a. Subject to the terms of this Exhibit K, ECIS may use the
Demographic Data owned by the Partnership and maintained within
the ACROPAC(TM) System only in order to incorporate such
Demographic Data into Products produced, sold, licensed or
distributed by ECIS.
b. ECIS represents and warrants that ECIS and its Affiliates have
previously used Demographic Data for the Products (and no other
products or services). The Partnership hereby ratifies and
consents to the previous use of the Demographic Data for the
Products, subject to compliance by ECIS with the terms of this
Exhibit K. ECIS has made payments to the Partnership for
Demographic Data previously used. To the extent that the payments
were made in accordance with the terms of this Exhibit K, such
payments previously made constitute payment in full. The
Partnership has the right to retain any payments previously made.
- 5 -
c. ECIS may in its sole discretion determine that it is necessary to
modify the Products. ECIS's rights to use the Demographic Data in
Products as described in paragraph 2.a above extends to Products
as so modified, as long as the modified product is similar to a
Product described in Exhibit 1 or 2. Prior to using any
Demographic Data with respect to any other product not similar to
those products described on Exhibit I or 2, ECIS shall provide to
the Partnership a written description of the proposed product,
including a description of its information parameters and market,
and shall request that the Partnership consent in writing to the
use of Demographic Data with respect to such other product, which
written consent shall not be unreasonably withheld.
3. Payment to the Partnership for Direct Marketing Products.
--------------------------------------------------------
a. For the calendar year 1990, ECIS will pay the Partnership five
percent (5%) of Profit from the Direct Marketing Products. This
percentage is derived from the Partnership's right to receive 25%
of the Profit from the Direct Marketing Products times 20% (the
previously established percentage of all consumer credit files
owned by the Partnership in the ACROPAC(TM) System).
b. From and after January 1, 1991, ECIS will pay the Partnership one
percent (1 %) of all Gross Revenues from all Direct Marketing
Products. This percentage is derived from the Partnership's right
to receive 5% of the Gross Revenues from the Direct Marketing
Products times 20% (the previously established percentage of all
consumer credit files owned by the Partnership in the ACROPAC(TM)
System).
c. Payments due the Partnership will be calculated in respect of
each calendar quarter and paid to the Partnership no more than
sixty (60) days after the end of such calendar quarter.
4. Payment to the Partnership for Changed Address Product.
------------------------------------------------------
- 6 -
a. From and after January 1, 1990, ECIS will pay the Partnership
three percent (3%) of all Gross Revenues from the Changed Address
Product. This percentage is derived from the Partnership's right
to receive 15% of the Gross Revenues from the Changed Address
Product times 20% (the previously established percentage of all
consumer credit files owned by the Partnership in the ACROPAC(TM)
System).
b. Payments due the Partnership will be calculated in respect of
each calendar quarter and paid to the Partnership no more than
sixty (60) days after the end of such calendar quarter.
5. Term of Exhibit K. This Exhibit K will be effective as of January 1,
-----------------
1990 and shall continue for an initial term of two (2) years from
January 1, 1990 through December 31, 1991 (the "Initial Term"). Unless
the Partnership or ECIS shall give to the other written notice at
least @ (30) days prior to the expiration of the Initial Term of the
intention of such party to terminate this Exhibit K at the end of such
Initial Term, this Exhibit K shall be automatically renewed for an
additional term of one (1) year (a "Renewal Term") and such automatic
renewal of this Exhibit K shall continue for successive additional
Renewal Terms of one (1) year each unless such prior written notice of
a desire to terminate shall be given at least thirty (30) days prior
to the expiration of the then current Renewal Term. If this Exhibit K
is terminated, ECIS's permission to use the Demographic Data owned by
the Partnership and maintained within the ACROPAC(TM) system is
terminated even date therewith.
6. Audit Right. The Partnership shall have the right to audit ECIS's
-----------
relevant records to verify compliance with the terms of this Exhibit
K. Such audit may be conducted after reasonable notice, during normal
business hours, using reasonable procedures to assure an accurate
audit. Each party will cooperate with the other during the conduct of
any such audit, it being expressly understood that in no event shall
auditors be permitted access to confidential data, files or
information belonging to a third party or not directly
- 7 -
related to this Exhibit K. Auditors will not be given free access to
facilities, documents or files. Auditors will work only in designated
locations and will conduct their business quietly without significant
disruption of work being done by others. Notwithstanding anything to
the contrary herein contained, ECIS will make available to the
Partnership appropriate personnel to answer the Partnership's
questions associated with the audit. All expenses of the audit are
the responsibility of the Partnership.
7. ECIS Affiliates. In the exercise of its rights and performance of its
---------------
duties under this Exhibit K, ECIS may act through an Affiliate,
provided, however, ECIS shall not thereby be relieved of any of its
obligations hereunder.
2. References to the Agreement.
---------------------------
All capitalized terms which are defined in the Agreement and not otherwise
defined herein shall have the same meaning herein as in the Agreement. On or
after the date hereof, each reference in the Agreement to "this Agreement",
"hereunder", "herein", or words of like import shall mean and be a reference to
the Agreement, as amended by this Third Amendment.
3. Authority.
---------
Each of the parties hereto represents to the other parties hereto that: (a)
it has the full corporate (or, in the case of the Partnership, partnership)
power and authority to execute and deliver this Third Amendment, to perform
under the Agreement, as amended by this Third Amendment, and to consummate the
transactions contemplated by the Agreement, as amended by this Third Amendment,
without the necessity of any act, approval or consent of any other person
whomsoever, except such as having been obtained; and (b) the Agreement, as
amended by this Third Amendment, has been approved by its Board of Directors, or
the Executive Committee thereof (or, in the case of the Partnership, by the
respective Boards of Directors, or the Executive Committees thereof, of each of
its partners), and constitutes the valid and legally binding obligation of such
party enforceable against such party in accordance with its terms, except as
enforceability may be limited by
- 8 -
bankruptcy, insolvency, reorganization, moratorium and other similar laws from
time to time in effect which affect the enforcement of creditors' rights
generally, and except as enforcement of remedies may be limited by general
equitable principles.
4. Counterparts.
------------
This Third Amendment may be executed in several counterparts, and each
counterpart, when so executed and delivered, shall constitute an original
instrument, and all such separate counterparts shall constitute but one and the
same instrument.
5. Merger.
------
This Third Amendment sets forth the entire understanding of the parties
regarding the subject matter hereof, and all prior such understandings, written
or oral, are merged herein.
6. Governing Law.
-------------
THIS THIRD AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS.
THE CREDIT BUREAU, INCORPORATED
OF GEORGIA
By:
---------------------------------------
Title:
------------------------------------
EQUIFAX INC.
By:
---------------------------------------
Title:
------------------------------------
- 9 -
CSC ENTERPRISES
By: CSC ENTERPRISES, INC.
Its Managing Partner
By:
---------------------------------------
Title:
------------------------------------
CSC ACCOUNTS MANAGEMENT, INC.
By:
---------------------------------------
Title:
------------------------------------
COMPUTER SCIENCES CORPORATION
By:
---------------------------------------
Title:
------------------------------------
- 10 -
EXHIBIT I
---------
DIRECT MARKETING PRODUCTS
Service Description
------- -----------
PowerList A list product consisting of names and addresses selected
by geographic, demographic an-d buying behavior
characteristics. This is a 30-day active file. It may not
be used to determine creditworthiness.
PowerHouse A list product consisting of names and addresses
selectable by geographic, demographic and buying behavior
characteristics. This file is different from PowerLists
in that it does not require 30-day activity and it has
refined geographic selectability (household level).
Power Data Overlay The customer's own file is enhanced by PowerList indexes,
Census Data, Demographic and externally supplied data. It
may not be used to determine creditworthiness nor applied
anywhere other than their own customer base.
Custom Modeling A list selection derived directly from the Equifax
Consumer Marketing Database (ECMD) based on a
quantitative model custom built for the direct mailer.
The model is designed to select consumers who are likely
to have an interest in the customer's products and
respond via the mail. It may not be used to determine
creditworthiness.
- 11 -
EXHIBIT 2
---------
CHANGED ADDRESS PRODUCT
Service Description
------- -----------
CBMovers Using the National Change of Address List (NCOA) to match
against the off-line screening database to determine if the
NCOA is a new address.
- 1 -
SCHEDULE 3
----------
AGREEMENT FOR PURCHASE AND SALE OF SOFTWARE
THIS AGREEMENT FOR THE PURCHASE AND SALE OF SOFTWARE (the "Software
Agreement") is made and entered into as of the ____ day of ____________, 1991 by
and between CSC ENTERPRISES, a Delaware general partnership (the "Partnership")
and THE CREDIT BUREAU, INCORPORATED OF GEORGIA, a Georgia corporation ("CBI" or
"ECIS").
RECITALS:
The Partnership is the owner of that computer software described with
specificity on Exhibit A attached hereto (the "Software") and the source code
related thereto ("Source Code") and the Documentation as hereinafter defined.
"Documentation" shall mean: 1) operational documentation consisting of a summary
of the jobs and detailed instructions by job; 2) technical documentation
consisting of a detailed technical description of each job; 3) a cross-reference
report explaining the outputs from each job and 4) any and all other
miscellaneous reports and records which may assist ECIS in the operation of the
Software.
CBI has adopted the assumed name "Equifax Credit Information Services"
and desires to use the acronym "ECIS" instead of "CBI" and any reference to
"CBI" or "ECIS" refers to THE CREDIT BUREAU, INCORPORATED OF GEORGIA, a Georgia
corporation.
ECIS wishes to purchase, and the Partnership wishes to sell, the Software,
Documentation and Source Code in accordance with the terms of this Software
Agreement.
AGREEMENT:
1. Sale of Software Documentation and Source Code. Subject to the
----------------------------------------------
terms and conditions hereinafter set forth, the Partnership does hereby
- 2-
transfer, grant, convey and assign to ECIS all of the Partnership's right, title
and interest in and to the Software, Documentation and Source Code.
2. Purchase Price. For and in consideration of the conveyance of
--------------
the Software, Documentation and Source Code as contemplated by Section 1 above,
and in reliance upon the representations and warranties made herein by the
Partnership, ECIS shall in full payment for the Software, Documentation and
Source Code pay on the date hereof Five Hundred Thousand Dollars ($500,000), by
wire transfer of funds to the Partnership.
3. Installation Support. The Partnership agrees that it will
--------------------
provide installation support to ECIS with respect to the Software described on
Exhibit A attached. The Partnership will provide one person on-site, at a
location determined by ECIS, for up to five (5) consecutive business days for
the purpose of installing the Software and training ECIS regarding the use of
the Software. Five additional days of support will be available to ECIS, for
thirty (30) days following initial installation, ECIS will pay $500 per day per
support person plus travel and accommodations with a one-half day one person
minimum.
4. Representations and Warranties of the Partnership. The
-------------------------------------------------
Partnership represents and warrants to ECIS that: (i) it is a partnership duly
organized, validly existing and in good standing under the laws of Delaware;
(ii) it has the partnership power and authority, and unencumbered right to enter
into this Software Agreement and perform all of its obligations hereunder; (iii)
it has good and marketable title to the Software, Documentation and Source Code,
free and clear of any liens or security interests, and, to its knowledge, free
and clear of any other charges, options, rights or claims or other encumbrances;
and (iv) it has not previously licensed the Software to any other parties.
5. Warranty Disclaimer. THE SOFTWARE, DOCUMENTATION AND SOURCE CODE
-------------------
ARE SOLD ON AN AS IS BASIS, AND, EXCEPT FOR THE WARRANTIES EXPRESSED IN SECTION
4 ABOVE, THE PARTNERS@ MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, CONCERNING THE SOFTWARE, THE DOCUMENTATION AND THE SOURCE CODE AND ALL
OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED,
- 3 -
INCLUDING, WITHOUT LIMITATION THOSE OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, ARE HEREBY SPECIFICALLY EXCLUDED.
6. Nonexclusive License. ECIS does hereby grant to the Partnership
--------------------
a nonexclusive perpetual license to use the Software, Documentation and Source
Code solely in the internal operations of its business anywhere in the world.
It is agreed such license to the Partnership does not require ECIS to provide
any software support to the Partnership in connection with the Software. In
connection with the exercise of its license herein granted, the Partnership
shall be permitted to enhance and modify the Software, Documentation and Source
Code, which, to the extent such enhancements and modifications are made during
the two year period commencing with the date of this Software Agreement, shall
be the sole and exclusive property of ECIS. During such two year period, upon
making such enhancements and modifications, the Partnership shall deliver to
ECIS at the Software installation site copies of all Source Code, documentation
and other information regarding the same. The Partnership shall, and shall
cause all of its officers and employees to, keep confidential and not disclose
to others the Source Code. The Partnership may utilize the Software,
Documentation and the Source Code to create derivative products; however, the
Partnership shall not license such derivative products to any party other than
ECIS.
7. Limitation of Liability. It is the intent of the parties that the
-----------------------
sale of the Software, Documentation and Source Code is AS IS, and that ECIS
should have no claim or cause of action against the Partnership in any way
relating to the Software, Documentation, Source Code or this Agreement.
However, in the event that a court deems the Partnership to have liability to
ECIS because of any claim relating in any way to the Software, Documentation,
Source Code or this Agreement, it is the further intent of the parties that such
liability shall be no more than $5,000. Patent and copyright infringement
claims by third parties against ECIS related to the Software and ECIS's costs
related thereto are excepted from the above limitation of liability.
8. Counterparts. This Software Agreement may be executed in
------------
counterparts, all of which taken together shall constitute a single agreement
between the parties.
- 4 -
9. Section Headings; Exhibits. The section headings used herein are
--------------------------
for reference and convenience only, and shall not enter into the interpretation
hereof. The exhibits attached hereto are incorporated by reference herein.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
11. Entire Agreement. This Software Agreement and the exhibits
----------------
attached hereto constitute the entire agreement between the parties, and
supersedes and cancels any prior agreements, whether oral or written, between
the parties hereto, relating to the subject matter herein. This Software
Agreement may not be modified or amended orally, but only by an agreement in
writing signed by both parties.
12. Binding Effect. This Software Agreement shall be binding upon
--------------
and inure to the benefit of the parties hereto and their respective successors
and assigns.
IN WITNESS WHEREOF, each party hereto has executed this Software Agreement
on the date first above written.
CSC ENTERPRISES
By: CSC ENTERPRISES, INC.
Its Managing Partner
By:
--------------------------------------------
Title:
-----------------------------------------
THE CREDIT BUREAU, INCORPORATED
OF GEORGIA
By:
--------------------------------------------
Title:
-----------------------------------------
- 5 -
EXHIBIT A
JOB Name/Number Description
------------------ -----------------------------------------------------------
CEIDELTS Deletes the disk files created in the prior month's run of
the CBI jobs. This frees up disk space for the current
month's run.
CBIREV Copies Revenue tape file to disk and a backup tape.
CBI430 Builds the frontend Revenue file for CBISSS. Reads the
Revenue disk file. Validates the data against VSAM files
containing valid region and service codes. Produces
validation reports (i.e. error listings). Retrieves CSC
service code values (summarized level of service codes).
Does a determination of whether a service fee is to be
calculated Reformats the file with additional data.
CBICOST Copies Cost Allocation tape file to disk and also to a
backup tape.
C21800 Builds the frontend Cost files for CBIBSS.
Reads the cost disk file. Validates the data against VSAM
files containing valid region and service codes. Specifies
each record as G(ain) or L(oss). Sorts transactions,
assigns Record Types 2-5 and writes to a file for use in
the update of the Customer History File. Record Types are
as follows:
2 - outbound Intercompany
3 - Outbound Affiliate
4 - Inbound Intercompany
5 - Inbound Affiliate
CBI855 Reads both Cost and Revenue output files. Assigns record
type 1 to Local transactions. Sorts, summarizes and formats
each record into the format of the Customer History File.
Writes the file out as a tape file. Merges
- 6 -
the current month's output with the previous month's CEF to
create the current period-to-date file.
CBM4800 Reads the Customer History File (CHF) and creates a
validation report. Summarizes the entire file by record
type. Prints report showing service amount, expense amount,
and quantity for the last four (4) periods. Used for
validation of the CHF against the tapes. (see CB244900)
CBM4900 Reads the Cost and Revenue files to create validation
reports. Summarizes the files by Gain, Loss, Local and
Unassigned. Used for validation of the CHF against the
tapes. (see CBM4800)
CBM5000 Builds the extracted and enhanced Customer History File for
use in Sales Reporting. Extracts additional data from the
Revenue tape: Customer name, sales rep, sibling indicator,
customer abbr, and family code. Uses the Sales
representative number for 905 territory salesmen from an
uploaded sequential file. Assigns Service Group codes from
the VSAM 'Group' table. Validates/overlays the family code
read in an uploaded National Pricing file. Creates
'enhanced' records using 13 periods of data from CHF, sorts
and writes new files to tape
CBM5100 Creates detail report:
"Sales Representative Report"
"Local Member - Local Revenue"
CBM5200 Creates detail report:
"Sales Representative Report"
"Local Member - Outbound Revenue"
CBM5300 Creates summary reports:
1. "Sales Representative Report"
"Local member - Local Revenue"
- 7 -
2. "Sales Representative Report"
"Local Member - Outbound Revenue"
CBM5400 Creates report: "Inbound Revenue Activity Report"
CBM5500 Creates report: "Sales Representative Report"
"Local & outbound by Current Revenue"
CBF5600 Creates report: "Bureau Sales Report"
"Local and Outbound by Current Revenue"
CBM5700 Creates reports:
1. "Top 200 members"
"Local and outbound by Current Revenue"
2. "Top 200 members of Affiliates"
"Inbound by Current Revenue"
3. "Fiscal YTD Top 200 Members"
"Local and Outbound by YTD Revenue
4. "Fiscal YTD Top 200 members of
Affiliates"
"Inbound by YTD Revenue"
CBM5800 Creates detail and summary reports:
1. "Revenue by Industry Code"
"Local and Outbound"
2. "Reporting Units by Industry Code"
"Local and Outbound"
CBM5900 Creates report: "Credit Reporting Units"
"Local and Outbound by Sales Representative"
CBM6000 Creates reports:
1. "DAS Revenue by Sales Representative"
2. "DTEC Units by Sales Representative"
CBM6100 Creates reports:
- 8 -
1. "Online Directory Units by Sales Representative"
2. "Persona Units by Sales Representative"
3. "Safescan Revenue by Sales Representative"
4. "Finders Revenue by Sales Representative"
5. "Beacon Revenue by Sales Representative"
CBM6200 Creates report: "Member Dues Report"
CBM6300 Creates report: "Terminal equipment Report"
CBM6400 Creates detail & summary reports:
"Verbal & Written Credit Reporting Units"
CBM6500 Creates reports:
1. "Outbound Revenue Activity by Large Volume"
2. "Outbound Revenue Activity by Region"
3 "Outbound Revenue Activity"
CBM6550 Creates report: "Local and Outbound Units
"ZB Members only"
CBM6600 Creates report: "Member Roster Report"
CBM6700 Creates detail & summary reports:
"Local & Outbound Units by Major Service Group"
- 1 -
AGREEMENT FOR PURCHASE AND SALE OF SOFTWARE
THIS AGREEMENT FOR THE PURCHASE AND SALE OF SO@ARE (the "Software
Agreement") is made and entered into as of the ____ day of ____________, 1991 by
and between CSC ENTERPRISES, a Delaware general partnership (the "Partnership")
and THE CREDIT BUREAU, INCORPORATED OF GEORGIA, a Georgia corporation ("CBI" or
"ECIS").
RECITALS:
The Partnership is the owner of that computer software described with
specificity on Exhibit A attached hereto (the "Software") and the source code
related thereto ("Source Code") and the Documentation as hereinafter defined.
"Documentation" shall mean: 1) operational documentation consisting of a summary
of the jobs and detailed instructions by job; 2) technical documentation
consisting of a detailed technical description of each job; 3) a cross-reference
report explaining the outputs from each job and 4) any and all other
miscellaneous reports and records which may assist ECIS in the operation of the
Software.
CBI has adopted the assumed name "Equifax Credit Information Services"
and desires to use the acronym "ECIS" instead of "CBI" and any reference to
"CBI" or "ECIS" refers to THE CREDIT BUREAU, INCORPORATED OF GEORGIA, a Georgia
corporation.
ECIS wishes to purchase, and the Partnership wishes to sell, the
Software, Documentation and Source Code in accordance with the terms of this
Software Agreement.
AGREEMENT:
1. Sale of Software Documentation and Source Code. Subject to the
----------------------------------------------
terms and conditions hereinafter set forth, the Partnership does hereby
- 2 -
transfer, grant, convey and assign to ECIS all of the Partnership's right, title
and interest in and to the Software, Documentation and Source Code.
2. Purchase Price. For and in consideration of the conveyance of the
--------------
Software, Documentation and Source Code as contemplated by Section 1 above, and
in reliance upon the representations and warranties made herein by the
Partnership, ECIS shall in full payment for the Software, Documentation and
Source Code pay on the date hereof Five Hundred Thousand Dollars ($500,000), by
wire transfer of funds to the Partnership.
3. Installation Support. The Partnership agrees that it will provide
--------------------
installation support to ECIS with respect to the Software described on Exhibit A
attached. The Partnership will provide one person on-site, at a location
determined by ECIS, for up to five (5) consecutive business days for the purpose
of installing the Software and training ECIS regarding the use of the Software.
Five additional days of support will be available to ECIS, for thirty (30) days
following initial installation, ECIS will pay $500 per day per support person
plus travel and accommodations with a one-half day one person minimum.
4. Representations and Warranties of the Partnership. The
-------------------------------------------------
Partnership represents and warrants to ECIS that: (i) it is a partnership duly
organized, validly existing and in good standing under the laws of Delaware;
(ii) it has the partnership power and authority, and unencumbered right to enter
into this Software Agreement and perform all of its obligations hereunder; (iii)
it has good and marketable title to the Software, Documentation and Source Code,
free and clear of any liens or security interests, and, to its knowledge, free
and clear of any other charges, options, rights or claims or other encumbrances;
and (iv) it has not previously licensed the Software to any other parties.
5. Warranty Disclaimer. THE SOFTWARE, DOCUMENTATION AND SOURCE CODE
-------------------
ARE SOLD ON AN AS IS BASIS, AND, EXCEPT FOR THE WARRANTIES EXPRESSED IN SECTION
4 ABOVE, THE PARTNERSHIP MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, CONCERNING THE SOFTWARE, THE DOCUMENTATION AND THE SOURCE CODE AND ALL
OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED,
- 3 -
INCLUDING, WITHOUT LIMITATION THOSE OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, ARE HEREBY SPECIFICALLY EXCLUDED.
6. Nonexclusive License. ECIS does hereby grant to the Partnership a
--------------------
nonexclusive perpetual license to use the Software, Documentation and Source
Code solely in the internal operations of its business anywhere in the world.
It is agreed such license to the Partnership does not require ECIS to provide
any software support to the Partnership in connection with the Software. In
connection with the exercise of its license herein granted, the Partnership
shall be permitted to enhance and modify the Software, Documentation and Source
Code, which, to the extent such enhancements and modifications are made during
the two year period commencing with the date of this Software Agreement, shall
be the sole and exclusive property of ECIS. During such two year period, upon
making such enhancements and modifications, the Partnership shall deliver to
ECIS at the Software installation site copies of all Source Code, documentation
and other information regarding the same. The Partnership shall, and shall
cause all of its officers and employees to, keep confidential and not disclose
to others the Source Code. The Partnership may utilize the Software,
Documentation and the Source Code to create derivative products; however, the
Partnership shall not license such derivative products to any party other than
ECIS.
7. Limitation of Liability. It is the intent of the parties that the
-----------------------
sale of the Software, Documentation and Source Code is AS IS, and that ECIS
should have no claim or cause of action against the Partnership in any way
relating to the Software, Documentation, Source Code or this Agreement.
However, in the event that a court deems the Partnership to have liability to
ECIS because of any claim relating in any way to the Software, Documentation,
Source Code or this Agreement, it is the further intent of the parties that such
liability shall be no more than $5,000. Patent and copyright infringement
claims by third parties against ECIS related to the Software and ECIS's costs
related thereto are excepted from the above limitation of liability.
8. Counterparts. This Software Agreement may be executed in
------------
counterparts, all of which taken together shall constitute a single agreement
between the parties.
- 4 -
9. Section Headings; Exhibits The section headings used herein are
--------------------------
for reference and convenience only, and shall not enter into the interpretation
hereof. The exhibits attached hereto are incorporated by reference herein.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
11. Entire Agreement. This Software Agreement and the exhibits
----------------
attached hereto constitute the entire agreement between the parties, and
supersedes and cancels any prior agreements, whether oral or written, between
the parties hereto, relating to the subject matter herein. This Software
Agreement may not be modified or amended orally, but only by an agreement in
writing signed by both parties.
12. Binding Effect. This Software Agreement shall be binding upon
--------------
and inure to the benefit of the parties hereto and their respective successors
and assigns.
IN WITNESS WHEREOF, each party hereto has executed this Software
Agreement on the date first above written.
CSC ENTERPRISES
By: CSC ENTERPRISES, INC.
Its Managing Partner
By:
----------------------------
Title:
-------------------------
THE CREDIT BUREAU, INCORPORATED
OF GEORGIA
By:
----------------------------
Title:
-------------------------