EXHIBIT 10.2
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Third Amendment"), dated as
of February 15, 2005 (but effective as provided in Section 4 of this Third
Amendment), is entered into among FIDELITY NATIONAL FINANCIAL, INC., a Delaware
corporation (the "Borrower"), the lenders listed on the signature pages hereof
as Lenders (the "Lenders"), and BANK OF AMERICA, N.A., as Administrative Agent
(the "Administrative Agent").
BACKGROUND
A. The Borrower, the Lenders, and the Administrative Agent are parties to
that certain Credit Agreement, dated as of November 4, 2003, as amended by that
certain First Amendment to Credit Agreement, dated as of April 9, 2004, and that
certain Second Amendment to Credit Agreement, dated as of October 29, 2004 (the
"Second Amendment") (said Credit Agreement, as amended, the "Credit Agreement").
The terms defined in the Credit Agreement and not otherwise defined herein shall
be used herein as defined in the Credit Agreement.
B. As a result of the FIS Recapitalization Transaction (as defined herein),
certain amendments to the Credit Agreement provided for in the Second Amendment
which were to become effective upon the Second Amendment Secondary Effective
Date and the Second Amendment Final Effective Date (as each such term is defined
in the Second Amendment) are no longer necessary or appropriate.
C. The Lenders and the Administrative Agent hereby agree to amend the
Credit Agreement to, among other things, account for the FIS Recapitalization
Transaction and to eliminate certain provisions that were to subsequently become
effective pursuant to the Second Amendment, subject to the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the Borrower, the
Lenders, and the Administrative Agent covenant and agree as follows:
1. AMENDMENTS.
(a) The definition of "Interest Coverage Ratio" set forth in Section 1.01
of the Credit Agreement is hereby amended to read as follows:
"Interest Coverage Ratio" means, for any period, the ratio of Cash
Flow to Interest Expense for such period. Cash Flow and Interest Expense
shall be determined on a trailing four Fiscal Quarter basis as at the end
of each Fiscal Quarter for each Test Period.
(b) The definition of "Subsidiary" set forth in Section 1.01 of the Credit
Agreement is hereby amended to read as follows:
"Subsidiary" of a Person means any Person of which more than 50% of
the Voting Stock or other Equity Interests (in case of Persons other than
corporations), is owned or controlled directly or indirectly by the Person,
or one or more of the
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Subsidiaries of the Person, or a combination thereof; provided, however,
for purposes of this Agreement and any other Loan Document, FIS and its
Subsidiaries shall not be deemed to be Subsidiaries of the Borrower after
the Third Amendment Closing Date. For purposes of clarification, except
where otherwise expressly stated, references to Subsidiaries of the
Borrower with respect to time periods (a) prior to the Third Amendment
Closing Date shall refer to all Subsidiaries of the Borrower, including FIS
and its Subsidiaries, and (b) on and after the Third Amendment Closing Date
shall exclude FIS and its Subsidiaries; provided, further, however,
calculations of the financial covenants set forth in Section 7.09 (and the
related financial statements and audit required pursuant to Sections
6.01(a) and (b)) shall exclude FIS and its Subsidiaries, commencing
December 31, 2004. Subject to the immediately preceding sentence, unless
the context otherwise requires, references herein to a "Subsidiary" shall
refer to a Subsidiary of the Borrower.
(c) The definition of "Subsidiary Guarantor" set forth in Section 1.01 of
the Credit Agreement is hereby amended to read as follows:
"Subsidiary Guarantor" means each Material Subsidiary of the Borrower
identified as a Subsidiary Guarantor on Schedule 5.14(b), each of which are
required to execute and deliver to the Administrative Agent the Subsidiary
Guaranty, and each other Material Subsidiary that is required to execute
the Subsidiary Guaranty pursuant to Sections 6.12, 6.14 or 6.15.
(d) Section 1.01 of the Credit Agreement is hereby further amended by
deleting the following defined terms therefrom: "FIS IPO", "FIS IPO Dividend",
"FIS Spin Off Dividend", "FIS Transaction", "Second Amendment Final Effective
Date", and "Second Amendment Secondary Effective Date".
(e) Section 1.01 of the Credit Agreement is hereby amended by adding the
following defined terms thereto in proper alphabetical order:
"FIS Affiliate Credit Agreement:" means that certain Credit Agreement
among certain wholly-owned subsidiaries of FIS, certain lenders and Bank of
America, N.A., as agent, whereby such lenders agree to extend to such
subsidiaries a term loan facility and a revolving credit facility.
"FIS Recapitalization" means the FIS Stock Issuance and the FIS
Recapitalization Dividend.
"FIS Recapitalization Distribution" means the payment of a special
dividend by the Borrower to holders of the common Equity Interests of the
Borrower not to exceed $10 per share from amounts received by the Borrower
pursuant to the FIS Recapitalization Dividend.
"FIS Recapitalization Dividend" means the payment of a dividend by FIS
to the Borrower in an amount equal to at least $2,000,000,000.
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"FIS Recapitalization Proceeds" means proceeds retained by the
Borrower in respect of the FIS Recapitalization Transaction.
"FIS Recapitalization Transaction" means the FIS Recapitalization, the
FIS Affiliate Credit Agreement and the FIS Recapitalization Distribution.
"FIS Stock Issuance" means the issuance of approximately 25% of the
common Equity Interests of FIS to Xxxxxx X. Xxx Partners, L.P., Texas
Pacific Group and certain of its Affiliates and other investors.
"Third Amendment" means that certain Third Amendment to Credit
Agreement, dated as of February 15, 2005, by and among the Borrower, the
Lenders party thereto and the Administrative Agent.
"Third Amendment Closing Date" means the date that all of the
conditions precedent in Section 4(a) of the Third Amendment are satisfied.
(f) Section 7.01 of the Credit Agreement is hereby amended to read as
follows:
7.01 LIENS. The Borrower shall not, nor shall it permit any Subsidiary
to, directly or indirectly, create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, other than the following ("Permitted Liens"):
(a) any Lien created under any Loan Document;
(b) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable without penalty, or to the
extent that non-payment thereof is permitted by Section 6.11;
(c) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of
business which are not delinquent or remain payable without penalty or
which are being contested in good faith by appropriate proceedings
diligently prosecuted;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, or
to secure the performance of tenders, statutory obligations, surety and
appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds, reinsurance agreements and other similar obligations
incurred in the ordinary course of business (exclusive of obligations in
respect of the payment for borrowed money);
(e) Liens existing on the Closing Date and identified on Schedule
7.01;
(f) Liens consisting of pledges or deposits of cash or securities made
by any Insurance Subsidiary as a condition to obtaining or maintaining any
licenses issued to it by, or to satisfy the requirements of, any
Department;
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(g) Liens consisting of judgment or judicial attachment Liens (other
than arising as a result of claims under or related to Insurance Contracts,
Retrocession Agreements or Reinsurance Agreements); provided that the
enforcement of such Liens is effectively stayed or fully covered by
insurance and all such liens in the aggregate at any time outstanding for
the Borrower and its Subsidiaries do not exceed 5% of Net Worth;
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the businesses of the Borrower and
its Subsidiaries;
(i) Liens securing obligations in respect of Capital Leases permitted
pursuant to Section 7.04(d) on assets subject to such leases; provided that
such Capital Leases are otherwise permitted hereunder,
(j) Liens securing obligations permitted under Sections 7.04(f) and
(g), to the extent such Liens are identified and permitted under such
Sections;
(k) Liens arising as a result of claims under or related to Insurance
Contracts, Reinsurance Agreements or Retrocession Agreements in the
ordinary course of business, or securing Indebtedness of Insurance
Subsidiaries incurred or assumed in connection with the settlement of claim
losses in the ordinary course of business of such Insurance Subsidiaries;
(l) Liens on assets of a Person that becomes a Subsidiary after the
Closing Date pursuant to a Permitted Acquisition securing Indebtedness
permitted by Section 7.04(h), which Liens previously existed and were not
created in contemplation thereof and which are not increased to cover any
other property;
(m) Liens on assets of the Borrower or its Subsidiaries securing
Indebtedness owed to the Borrower or a Subsidiary and permitted under
Section 7.04(l);
(n) Liens on assets of Designated Subsidiaries securing Indebtedness
permitted under Section 7.04(m);
(o) so long as no Default or Event of Default has occurred and is
continuing, other Liens securing obligations in an aggregate amount not
exceeding at any one time outstanding 5% of Net Worth; and
(p) any extension, renewal or replacement of the foregoing; provided
that the Liens permitted hereby shall not be spread to cover any additional
Indebtedness or property (other than a substitution of like property).
(g) Section 7.02 of the Credit Agreement is hereby amended to read as
follows:
7.02 CONSOLIDATIONS AND MERGERS; SALES OF ASSETS. The Borrower shall
not, and shall not permit any of its Subsidiaries to, merge, consolidate
with or into, or convey,
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transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or any part of its assets (including
receivables and Equity Interests, and in all cases whether now owned or
hereafter acquired) to or in favor of any Person, except:
(a) any Subsidiary may merge with the Borrower; provided that the
Borrower shall be the continuing or surviving Person, or with any one or
more Subsidiaries; provided that if any transaction shall be between a
Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, the
Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or
surviving Person;
(b) any Subsidiary may sell all or any part of its assets (upon
voluntary liquidation or otherwise) to the Borrower or another Subsidiary
that is a Wholly-Owned Subsidiary; and
(c) the Borrower or any Subsidiary may sell, lease, convey or
otherwise dispose of assets (i) if such sale, lease, conveyance or other
disposition is (A) of portfolio Investments in the ordinary course of its
business at fair market value, (B) of obsolete, worn-out or surplus
property, (C) a sale of property to the extent such property is exchanged
for credit against the purchase price of similar replacement property or
the Net Disposition Proceeds thereof are promptly applied to the purchase
of such replacement property; (D) ordinary course dispositions of real
estate and related properties in connection with relocation activities for
employees of the Borrower and its Subsidiaries; (E) dispositions of
tangible property as part of a like kind exchange under Section 1031 of the
Code in the ordinary course of business; (F) dispositions of real estate
and related properties as part of the resolution or settlement of claims
under an Insurance Contract in the ordinary course of business; or (G) a
voluntary termination of a Swap Contract; and (ii) not otherwise permitted
to be sold, leased, conveyed or disposed of in clause (i) immediately
preceding, provided that (A) no Default or Event of Default shall have
occurred or be continuing or would occur after giving effect thereto, (B)
all such dispositions shall be for fair market value, (C) the aggregate
value of all assets disposed of pursuant to this clause (ii) by the
Borrower and its Subsidiaries (excluding the FIS Recapitalization
Transaction and any additional disposition of common Equity Interests of
FIS) shall not exceed (A) 25% of Net Worth (determined as of the last day
of the immediately preceding Fiscal Year) in any Fiscal Year other than
Fiscal Year 2005 or (B) 15% of Net Worth in Fiscal Year 2005, and (D) such
disposition, if to FIS or any of its subsidiaries, would be an investment
or acquisition otherwise permitted to be made by FIS or any of its
subsidiaries under the FIS Credit Agreement.
(h) Section 7.03 of the Credit Agreement is hereby amended to read as
follows:
7.03 INVESTMENTS. The Borrower shall not, and shall not permit any of
its Subsidiaries to, make any Investments, except for:
(a) Investments held by the Borrower or any of its Subsidiaries in the
form of (i) Primary Investments and (ii) so long as no Default or Event of
Default has occurred and is continuing at the time of the making of such
Investment or after giving effect
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thereto, Secondary Investments; provided that, (A) such Investments comply
with all Legal Requirements, (B) the aggregate amount of Secondary
Investments shall not exceed 15% of the aggregate amount of the Borrower's
total investment portfolio and (C) the aggregate amount of Investments in
Secondary Investments that are issued by a single issuer shall not exceed
5% of the aggregate amount of the Borrower's total investment portfolio
(with all valuations for purposes of compliance with this clause (ii) being
on a cost basis);
(b) extensions of credit and capital contributions by the Borrower to
any of its Subsidiaries existing on the Closing Date or to new Subsidiaries
created after the Closing Date in accordance with this Agreement or by any
of its Subsidiaries to another of its Subsidiaries existing on the Closing
Date or to new Subsidiaries created after the Closing Date in accordance
with this Agreement (for clarification purposes, FIS and its Subsidiaries
shall not be deemed to be Subsidiaries of the Borrower in existence on the
Closing Date);
(c) Investments by the Insurance Subsidiaries in the ordinary course
of business and in compliance with all applicable regulatory requirements;
(d) Investments existing on the Closing Date and identified on
Schedule 7.03;
(e) extensions of credit in the nature of accounts receivable, notes
receivable, lease obligations and similar obligations arising in the
ordinary course of business;
(f) Investments constituting Permitted Acquisitions;
(g) Investments consisting of non-cash proceeds from Dispositions
permitted under Section 7.02(c) and (d);
(h) so long as no Default or Event of Default has occurred and is
continuing, Investments of FIS Recapitalization Proceeds in FIS and its
Subsidiaries after the Third Amendment Closing Date, together with
Restricted Payments made with FIS Recapitalization Proceeds permitted
pursuant to Section 7.06(b)(i), not to exceed $900,000,000 in aggregate
amount; and
(i) so long as no Default or Event of Default has occurred and is
continuing, other Investments (excluding Investments in FIS and its
Subsidiaries) in an aggregate amount not to exceed at any one time
outstanding 3% of Net Worth.
Notwithstanding anything in this Section 7.03 or elsewhere in this
Agreement to the contrary, no Investment may be made in FIS or any of its
subsidiaries unless such Investment would otherwise be permitted to be made
under the FIS Affiliate Credit Agreement by FIS or its subsidiaries.
(i) Section 7.04 of the Credit Agreement is hereby amended to read as
follows:
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7.04 LIMITATION ON INDEBTEDNESS. The Borrower shall not, and shall not
permit any of its Subsidiaries to, create, incur, assume, suffer to exist,
or otherwise become or remain directly or indirectly liable with respect
to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness consisting of Contingent Obligations in respect of
obligations of other Persons (excluding for purposes of this Section
7.04(b) only, Contingent Obligations of the Borrower in respect of airplane
leases of its Subsidiaries not to exceed $25,000,000 in aggregate amount)
in an aggregate amount not to exceed at any one time outstanding 3% of Net
Worth;
(c) Indebtedness existing on the Closing Date and identified on
Schedule 7.04;
(d) Indebtedness incurred in the ordinary course of business in
connection with (i) Capital Leases which are non-recourse to the Borrower
or its Subsidiaries and (ii) other Capital Leases in an aggregate amount
not to exceed at any one time outstanding 3% of Net Worth;
(e) Obligations under Swap Contracts entered into for hedging
purposes;
(f) Indebtedness of the Borrower and its Subsidiaries having a
maturity of 92 days or less representing borrowings from a bank or banks
with which the Borrower or such Subsidiary has a depository relationship,
which borrowings shall be fully secured by Cash Equivalents purchased by
the Borrower or such Subsidiary with the proceeds of such borrowings;
(g) Obligations incurred in the ordinary course of business in
connection with relocation service transactions and secured by properties
which are the subject to such transactions;
(h) Indebtedness of a Person that becomes a Subsidiary after the
Closing Date pursuant to a Permitted Acquisition, which Indebtedness
existed prior to such Acquisition and was not created in contemplation
thereof;
(i) so long as no Default or Event of Default has occurred and is
continuing at the time of incurrence thereof or after giving effect
thereto, unsecured Indebtedness of the Borrower; provided that such
Indebtedness (i) shall mature no earlier than November 5, 2008, (ii) shall
not have any scheduled principal payments or provide for any mandatory
prepayments or redemptions or repurchases not otherwise provided to the
Lenders hereunder (including by way of a default under this Agreement)
prior to November 5, 2008, (iii) has covenants, defaults and other terms
and conditions (other than interest rates) no more restrictive than those
contained in this Agreement, and (iv) at any time a Guaranty Trigger Event
has occurred and is continuing, shall not exceed, when aggregated with all
other Indebtedness outstanding under this clause (i), $700,000,000,
provided that any Indebtedness permitted to be incurred pursuant to this
clause (i) prior to
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a Guaranty Trigger Event shall continue to be permitted and may remain
outstanding at such time as a Guaranty Trigger Event has occurred and is
continuing;
(j) so long as no Default or Event of Default has occurred and is
continuing at the time of incurrence thereof, other Indebtedness of the
Borrower and its Subsidiaries (excluding Synthetic Lease Obligations) in an
aggregate principal amount not to exceed at any one time outstanding 4% of
Net Worth;
(k) obligations consisting of guarantees of Indebtedness of insurance
agents of an Insurance Subsidiary in an aggregate amount not to exceed at
any one time outstanding 3% of Net Worth;
(l) Indebtedness of the Borrower or a Subsidiary owing to the Borrower
or another Subsidiary, provided that the payment of such Indebtedness by
the Borrower or a Subsidiary that is a Subsidiary Guarantor is subordinate
to the payment of the Obligations pursuant to Section 2.8 of the Subsidiary
Guaranty or otherwise in a manner satisfactory to the Administrative Agent;
(m) Non-Recourse Debt of the Designated Subsidiaries;
(n) so long as no Default or Event of Default has occurred and is
continuing at the time of incurrence thereof, Synthetic Lease Obligations
of the Borrower, provided the aggregate Attributable Indebtedness in
respect thereof shall not exceed at any one time outstanding 5% of Net
Worth; and
(o) any extensions, renewals or refinancings of the foregoing on terms
substantially similar to, or more favorable to the Borrower or any
Subsidiary than (but not less favorable to the Lenders), the terms of the
Indebtedness being extended, renewed or refinanced.
(j) Section 7.06 of the Credit Agreement is hereby amended to read as
follows:
7.06 RESTRICTED PAYMENTS. The Borrower shall not, and shall not allow
any of its Subsidiaries to, declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities
on account of any shares of any class of its Equity Interests, or purchase,
redeem or otherwise acquire for value any shares of any class of its Equity
Interests or any warrants, rights or options to acquire such shares, now or
hereafter outstanding, or directly or indirectly voluntarily prepay,
defease or in substance defease, purchase, redeem, retire or otherwise
acquire, any Indebtedness described in Section 7.04(i), or Section 7.04(j)
(collectively, "Restricted Payments"), except that (a) any Subsidiary may
pay dividends and tax sharing payments to the corporations which own its
Equity Interest, (b) the Borrower may, so long as before and after giving
effect to any such payment no Event of Default or Default shall have
occurred, make (i) Restricted Payments with FIS Recapitalization Proceeds
(excluding the FIS Recapitalization Distribution) after the Third Amendment
Closing Date, together with Investments made with Recapitalization Proceeds
permitted pursuant to Section 7.03(h), not to exceed $900,000,000 in
aggregate amount and (ii) the FIS Recapitalization Distribution, and (c)
the Borrower may, so long as before and after
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giving effect to any such payment no Event of Default or Default shall have
occurred, at any time that the Borrower's Debt Rating is Investment Grade
by either S&P or Xxxxx'x, make Restricted Payments in addition to those
permitted pursuant to clause (a) and (b) above; provided, however, if at
any time during any Fiscal Year the Borrower's Debt Rating is not
Investment Grade Rating by both S&P and Xxxxx'x, the Borrower may not make
any such additional Restricted Payments during such time that would cause
the aggregate amount of Restricted Payments during such Fiscal Year to
exceed 10% of Net Worth as of the last day of the immediately preceding
Fiscal Year; provided, further, however, that if no Default exists or would
result therefrom, the Borrower shall be entitled to make additional
Restricted Payments in the immediately following Fiscal Year only and not
on a cumulative basis, in an amount of the Restricted Payments permitted to
be made for the preceding Fiscal Year which were not made during such
Fiscal Year.
(k) Section 7.09(a) of the Credit Agreement is hereby amended to read as
follows:
7.09 FINANCIAL COVENANTS.
(a) Net Worth. The Borrower shall not permit its Net Worth as of
December 31, 2004 or as at the end of any Fiscal Quarter thereafter to be
less than (A) an amount equal to 75% of Net Worth as of December 31, 2004,
plus (B) 50% of Net Income (in excess of zero) for the period from the
beginning of the first Fiscal Quarter following December 31, 2004 to the
last day of the Fiscal Quarter for which such determination is made, plus
(C) 50% of cumulative cash equity contributions received by the Borrower
after December 31, 2004 through the issuance of Equity Interests (excluding
the FIS Recapitalization Dividend and any other proceeds received by the
Borrower or any Subsidiary in respect of the FIS Stock Issuance).
(l) Section 7.13 of the Credit Agreement is hereby deleted.
(m) Section 8.01(e) of the Credit Agreement is hereby amended to read as
follows:
(e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to
make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any
Indebtedness or Contingent Obligation (other than Indebtedness hereunder
and Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement)
of more than 3% of Net Worth and such failure continues after the
applicable grace or notice period, if any, specified in the relevant
document on the date of such failure, or (B) fails to observe or perform
any other agreement or condition relating to any such Indebtedness or
Contingent Obligation or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, the
effect of which default or other event is to cause, or to permit the holder
or holders of such Indebtedness or the beneficiary or beneficiaries of such
Guarantee (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or
an offer to
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repurchase, prepay, defease or redeem such Indebtedness to be made, prior
to its stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded; or (ii) there occurs under
any Swap Contract an Early Termination Date (as defined in such Swap
Contract) resulting from (A) any event of default under such Swap Contract
as to which the Borrower or any Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or (B) any Termination Event (as so defined)
under such Swap Contract as to which the Borrower or any Subsidiary is an
Affected Party (as so defined) and, in either event, the Swap Termination
Value owed by the Borrower or such Subsidiary as a result thereof is
greater than 3% of Net Worth; or
(n) Schedule 5.14(a) of the Credit Agreement is hereby amended to be in the
form of Schedule 5.14(a) to this Third Amendment.
(o) Exhibit E, Compliance Certificate, is hereby amended to be in the form
of Exhibit E to this Third Amendment.
2. RELEASE. FIS, FISAK and FNIS are hereby released from all of their
respective obligations under the Subsidiary Guaranty.
3. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its
execution and delivery hereof, the Borrower represents and warrants that, as of
the date hereof:
(a) the representations and warranties contained in the Credit Agreement
and the other Loan Documents are true and correct in all material respects on
and as of the date hereof as made on and as of such date;
(b) no event has occurred and is continuing which constitutes a Default or
an Event of Default;
(c) (i) the Borrower has full power and authority to execute and deliver
this Third Amendment, (ii) this Third Amendment has been duly executed and
delivered by the Borrower, and (iii) this Third Amendment and the Credit
Agreement, as amended hereby, constitute the legal, valid and binding
obligations of the Borrower, enforceable in accordance with their respective
terms, except as enforceability may be limited by applicable Debtor Relief Laws
and by general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law) and except as rights to indemnity may be
limited by federal or state securities laws;
(d) neither the execution, delivery and performance of this Third Amendment
or the Credit Agreement, as amended hereby, nor the consummation of any
transactions contemplated herein or therein, will conflict with any Law or
Organization Documents of the Borrower, or any indenture, agreement or other
instrument to which the Borrower or any of its properties are subject; and
(e) no authorization, approval, consent, or other action by, notice to, or
filing with, any governmental authority or other Person (including the board of
directors of the Borrower) is
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required for the execution, delivery or performance by the Borrower of this
Third Amendment or acknowledged by any Subsidiary Guarantor of this Third
Amendment.
4. CONDITIONS TO EFFECTIVENESS. This Third Amendment, including the release
set forth in Section 2 of this Third Amendment, shall be effective upon
satisfaction or completion of the following:
(a) the Administrative Agent shall have received counterparts of this Third
Amendment executed by the Required Lenders;
(b) the Administrative Agent shall have received counterparts of this Third
Amendment executed by the Borrower and acknowledged by the Subsidiary
Guarantors;
(c) the representations and warranties contained in Section 3 of this Third
Amendment shall be true and correct in all material respects;
(d) the Borrower shall have received the FIS Recapitalization Dividend,
which may initially be paid in the form of a note; provided that if the note is
not paid in full by FIS within 15 Business Days after the issuance thereof, then
notwithstanding anything in this Third Amendment to the contrary, this Third
Amendment shall automatically terminate and be of no further force or effect;
(e) the FIS Credit Agreement shall have been refinanced, and the Borrower
and all Subsidiaries that guaranty any obligations in respect of the FIS Credit
Agreement shall be released from all obligations with respect thereto;
(f) the Administrative Agent shall have received, for the account of each
Lender signing this Third Amendment, an amendment fee in immediately available
funds in an amount equal to the product of (i) 0.05% and (ii) each such Lender's
Commitment;
(g) the Administrative Agent shall have received, for its own account, the
fee agreed to be paid by the Borrower to the Administrative Agent with respect
to this Third Amendment; and
(h) the Administrative Agent shall have received, in form and substance
satisfactory to the Administrative Agent and its counsel, such other documents,
certificates and instruments as the Administrative Agent shall require.
5. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Third Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", or words of like import shall
mean and be a reference to the Credit Agreement, as affected and amended hereby.
(b) The Credit Agreement, as amended by the amendments referred to above,
shall remain in full force and effect and is hereby ratified and confirmed.
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6. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on demand all
costs and expenses of the Administrative Agent in connection with the
preparation, reproduction, execution and delivery of this Third Amendment and
the other instruments and documents to be delivered hereunder (including the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent with respect thereto).
7. GUARANTOR'S ACKNOWLEDGMENT. By signing below, each Subsidiary Guarantor
(a) acknowledges, consents and agrees to the execution, delivery and performance
by the Borrower of this Third Amendment, (b) acknowledges and agrees that its
obligations in respect of its Subsidiary Guaranty are not released, diminished,
waived, modified, impaired or affected in any manner by this Third Amendment or
any of the provisions contemplated herein, including, without limitation, the
release of FIS, FISAK and FNIS from their respective obligations under the
Subsidiary Guaranty, (c) ratifies and confirms its obligations under its
Subsidiary Guaranty, and (d) acknowledges and agrees that it has no claims or
offsets against, or defenses or counterclaims to, its Subsidiary Guaranty
8. EXECUTION IN COUNTERPARTS. This Third Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which when taken together shall constitute but one and the same
instrument. For purposes of this Third Amendment, a counterpart hereof (or
signature page thereto) signed and transmitted by any Person party hereto to the
Administrative Agent (or its counsel) by facsimile machine, telecopier or
electronic mail is to be treated as an original. The signature of such Person
thereon, for purposes hereof, is to be considered as an original signature, and
the counterpart (or signature page thereto) so transmitted is to be considered
to have the same binding effect as an original signature on an original
document.
9. GOVERNING LAW; BINDING EFFECT. This Third Amendment shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such state, provided that
each party shall retain all rights arising under federal law, and shall be
binding upon the parties hereto and their respective successors and assigns.
10. HEADINGS. Section headings in this Third Amendment are included herein
for convenience of reference only and shall not constitute a part of this Third
Amendment for any other purpose.
11. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS THIRD
AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
12
IN WITNESS WHEREOF, this Third Amendment is executed as of the date first
set forth above.
FIDELITY NATIONAL FINANCIAL, INC.
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President - Treasurer
Signature Page to Third Amendment
BANK OF AMERICA, N.A., as Administrative
Agent
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
BANK OF AMERICA, N.A., as a Lender and
Swing Line Lender
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
JPMORGAN CHASE BANK, N.A., as a Lender
and Co-Syndication Agent
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
U. S. BANK NATIONAL ASSOCIATION, as a
Lender and Co-Syndication Agent
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
SUNTRUST BANK, as a Lender and
Co-Syndication Agent
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
WACHOVIA BANK, NATIONAL ASSOCIATION, as
a Lender and Co-Syndication Agent
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Lender and Co-Managing Agent
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
UNION BANK OF CALIFORNIA, N.A., as a
Lender and Co-Managing Agent
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
BANK OF THE WEST, as a Lender and Co-
Managing Agent
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
COMERICA BANK, as a Lender and Co-
Managing Agent
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
XXXXXX XXXXXXX FINANCING, INC.,
(formerly known as BMO Xxxxxxx Xxxxx
Financing, Inc.)
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
SUMITOMO MITSUI BANKING CORP., NEW
YORK, as a Lender and Co-Managing Agent
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
MIZUHO CORPORATE BANK, LTD., as a
Lender
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
KEYBANK NATIONAL ASSOCIATION, as a
Lender
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
FIFTH THIRD BANK, as a Lender
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
COMPASS BANK, as a Lender
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
CITIBANK (WEST), FSB, as a Lender
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
NATIONAL CITY BANK, as a Lender
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
XXXXX XXX COMMERCIAL BANK, LTD.,
NEW YORK BRANCH, as a Lender
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
XXX XXX COMMERCIAL BANK, LTD. NEW YORK
AGENCY, as a Lender
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
BANK OF HAWAII, as a Lender
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
WASHINGTON MUTUAL BANK, as a Lender
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
LA SALLE BANK NATIONAL ASSOCIATION, as a
Lender and Co-Managing Agent
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
PNC BANK, NATIONAL ASSOCIATION, as a
Lender
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
THE INTERNATIONAL COMMERCIAL BANK OF
CHINA, LOS ANGELES BRANCH, as a Lender
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment
ACKNOWLEDGED AND AGREED TO:
FIDELITY NATIONAL MANAGEMENT SERVICES, LLC
ALAMO TITLE COMPANY
ALAMO TITLE COMPANY OF XXXXXX COUNTY, INC.
ALAMO TITLE COMPANY OF TARRANT COUNTY, INC.
ALAMO TITLE OF XXXXXX COUNTY, INC.
FIDELITY NATIONAL TITLE AGENCY, INC.
FIDELITY NATIONAL TITLE AGENCY OF NEVADA, INC.
FIDELITY NATIONAL TITLE COMPANY
FIDELITY NATIONAL TITLE COMPANY OF CALIFORNIA
FIDELITY NATIONAL TITLE COMPANY OF OREGON
FIDELITY NATIONAL TITLE COMPANY OF WASHINGTON, INC.
FIRST TITLE CORPORATION
TICOR TITLE COMPANY OF CALIFORNIA
By:
---------------------------------
Xxxxxxx X. Xxxxxxx
Vice President and Treasurer
Signature Page to Third Amendment
Schedule 5.14(a)
Subsidiaries
* Denotes a Material Subsidiary
** Denotes an Insurance Subsidiary
*/** Denotes a Subsidiary that is both a Material Subsidiary and an Insurance
Subsidiary
1 Stop Cyber Mall Inc.
2027267 Ontario Inc.
Adnoram Settlement Agency of Ohio, LLC (50.1%)
AIS Alamo Insurance Services, Inc.
*Alamo Title Company
Alamo Title Company of Brazoria County, Inc.
*Alamo Title Company of Xxxxxx County, Inc.
*Alamo Title Company of Tarrant County, Inc.
Alamo Title Holding Company
**Alamo Title Insurance
Alamo Title of Xxxxxxxxx County, Inc.
*Alamo Title of Xxxxxx County, Inc.
Alexander Title Agency, Incorporated
American Investment Properties, LLC
American Research Services LLC
American Title Agency of Pima County, Inc.
American Title Company (inactive)
Amtitle Company
ANFI, Inc.
Baton Rouge Title Company, Inc.
BHC&M, Ltd.
Castle Escrow Holdings, LLC
Chicago Heritage Insurance Services, Inc.
Chicago Land Agency Services, Inc. (52%)
Chicago Title Agency of Central Ohio, Inc.
Schedule 5.14(a) - 1
Chicago Title and Trust Company
Chicago Title Company
Chicago Title Company of Washington
*/**Chicago Title Insurance Company
**Chicago Title Insurance Company of Oregon
**Chicago Title Insurance Company of Puerto Rico (99.2%)
Chicago Title Land Trust Company
Chicago Title of Colorado, Inc.
Chicago Title of Michigan, Inc.
Chicago Title of the Florida Keys, Inc. (85%)
Commonwealth Title Company
Community Title Company (51%)
Construction Disbursements LLC
CT/Nevada Holding Co.
Dallas-Fidelity National Title Agency, Inc.
Decatur Title Company L.L.C.
Duxford Escrow, Inc. (51%)
EC Xxxxxxxxxx.xxx, Inc.
Emerald Mortgagee Assistance Company, LLC
Executive Direct, Inc.
Executive Title Agency Corp.
EZ Legal, L.L.C.
Fidelity Affiliates, LLC
Fidelity Asset Management, Inc. (Arizona)
Fidelity Asset Management, Inc. (California)
Fidelity Express Network, Inc.
Fidelity Fulfillment Center, LLC (51%)
Fidelity Fulfillment Services, Inc.
Fidelity Global Solutions Costa Rica, S.A.
Fidelity National Agency of Arizona, Inc. (51%)
Fidelity National Builder Services, LLC
Schedule 5.14(a) - 2
Fidelity National Claims Services, Inc.
Fidelity National Company of Northern California
Fidelity National Financial, Inc.
**Fidelity National Home Warranty Company
**Fidelity National Insurance Company
Fidelity National Insurance Services, Inc. (an Arizona corporation)
Fidelity National Insurance Services, Inc. (a California corporation)
**Fidelity National Lloyds (an association of individuals)
*Fidelity National Management Services, LLC
*Fidelity National Title Agency, Inc.
*Fidelity National Title Agency of Nevada, Inc.
Fidelity National Title Agency of Pinal County, Inc.
Fidelity National Title and Abstract, Inc.
Fidelity National Title & Escrow of Hawaii, Inc.
*Fidelity National Title Company
*Fidelity National Title Company of California
*Fidelity National Title Company of Oregon
*Fidelity National Title Company of Washington, Inc.
Fidelity National Title Insurance Agency of Coconino, Inc.
*/**Fidelity National Title Insurance Company
*/**Fidelity National Title Insurance Company of New York
**First Community Insurance Company
First National Financial Title Services of Alabama, Inc.
First Partners Title Agency, LLC (50.01%)
*First Title Corporation
First Title Corporation of Alabama, Inc.
FNF Canada Company
FNF Capital, Inc.
FNF Escrow Holdings, LLC
FNF Escrow Holdings II, LLC
FNF Escrow Holdings, III, LLC
FNF Funding X, LLC
Schedule 5.14(a) - 3
FNF National Record Centers, Inc.
FNF Title Reinsurance Company
FNL Management Corporation
FNTIC Properties
Fortuna Service Company, LLC
Xxxxxxx and Xxxxxxxxx Title Company
Gemini Escrow Services, Inc.
GF Funding Corp. VIII
GIT Holding Company, Inc. (60%)
Great Northern Title Agency, LLC (52.38%)
Greater Illinois Title Company, Inc. (60%)
Heritage American Insurance Services, Inc.
Heritage Title Company
Interfirst Escrow, Inc. (51%)
Iowa Land Services Company
Island Title Company
Xxxxxxx County Title Company, Inc.
Kensington Development Corporation
Lake County Trust Company
Lake First Title Agency, LLC (50.1%)
Land Title & Survey, Inc.
Landmark REO Management Services, Inc.
LaSalle County Title Company, L.L.C. (80%)
LC Investment Corporation
Legacy Title Company
Lexington Capital Corporation
Manchester Development Corporation
XxXxxxx County Title Company
XxXxxx County Title Company
XxXxxxxx, Inc.
National Alliance Marketing Group, Inc.
National Title Company of Fresno County (51%)
Schedule 5.14(a) - 4
National Title Company of San Francisco (51%)
National Title Company of Southern California (51%)
National Title Company of Ventura County (51%)
National Title Insurance Services, Inc.
**Nations Title Insurance of New York Inc.
Northwest Equities, Inc.
Northwest Title Agency of Ohio and Michigan, Inc.
NRT Title Agency, LLC
Palm Beach Joint Title Plant, Inc. (12.5%)
Pioneer Land Services, LLC (51%)
Pioneer National Title Company 00-0000000 (Arizona)
Premier Escrow Services, LLC
Premier Services of Nevada, LLC (51%)
Professional Escrow, Inc.
Prospect Office Partners, LP
Real Estate Index, Inc.
Real Estate Index Agency of Ohio, Ltd.
XxxxxxXxxxx.xxx, LLC
Referral Connection, LLC
Rocky Mountain Aviation, Inc.
Rocky Mountain Printing Services, Inc.
Rocky Mountain Support Services, Inc.
Saddleback Title Company (51%)
San Xxxxxxx Title Company
S.D.C. Title Agency, LLC
Security Title Agency, Inc.
Security Title Company, LLC
Security Union Insurance Services, Inc.
**Security Union Title Insurance Company
Sentry Service Systems, Inc.
Southern Arizona Title & Trust Company
Spring Service Corporation
Schedule 5.14(a) - 5
Spring Service Texas, Inc.
Superior Data Services, Inc.
SWT Holdings, Inc.
Ten Thirty-One, L.L.C.
The Maryland Title Guarantee Company
The Title Company of Canada, Ltd.
The Title Guarantee Company
Third Millenium Title Agency, LLC (50.1%)
Ticor Financial Company
Ticor Insurance Services, Inc.
Ticor Title Abstract of New York, Inc.
Ticor Title Agency of Arizona, Inc.
Ticor Title Company
*Ticor Title Company of California
Ticor Title Company of Oregon
Ticor Title Consultants Ltd.
*/**Ticor Title Insurance Company
Ticor Title Insurance Company Limited
Ticor Title of Nevada, Inc.
Ticor Title of Washington, Inc.
Title Accounting Services Corporation
Title America, LLC (50.1%)
Title and Trust Company
Title Insurance and Escrow Services, Inc.
Title Services, Inc.
TPO, Inc.
TSNY Agency of New York City, Inc.
TT Acquisition Corp.
Tucson Title Insurance Company
United Financial Management Company
United Land Title Agency, LLC (50.1%)
United Title of Nevada, Inc.
Schedule 5.14(a) - 6
UTC Capital Group, Inc.
Washington Title Company
Washington Title Insurance Company
West Point Properties, Inc.
West Point Support Services, Inc.
Western Financial Trust Company
Yuma Title Agency, Inc.
Yuma Title and Trust Company
Schedule 5.14(a) - 7
EXHIBIT E
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: _____________,
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of November 4,
2003 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among Fidelity National Financial, Inc., a Delaware
corporation (the "Borrower"), the Lenders from time to time party thereto, and
Bank of America, N.A., as Administrative Agent and Swing Line Lender.
The undersigned Responsible Officer hereby certifies as of the date hereof
that he/she is the ________________________ of the Borrower, and that, as such,
he/she is authorized to execute and deliver this Certificate to the
Administrative Agent on the behalf of the Borrower, and that:
[Use following paragraph 1 for fiscal YEAR-END financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 6.01(a) of the Agreement for the fiscal year of
the Borrower ended as of the above date, together with the report and opinion of
an independent certified public accountant required by such section.
[Use following paragraph 1 for fiscal QUARTER-END financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 6.01(b) of the Agreement for the fiscal quarter of the
Borrower ended as of the above date. Such financial statements fairly present
the financial condition, results of operations and cash flows of the Borrower
and its Subsidiaries in accordance with GAAP as at such date and for such
period, subject only to normal year-end audit adjustments and the absence of
footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
the Borrower during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Borrower during such fiscal period has
been made under the supervision of the undersigned with a view to determining
whether during such fiscal period the Borrower performed and observed all its
Obligations under the Loan Documents, and
[select one:]
Exhibit E - 1
[TO THE BEST KNOWLEDGE OF THE UNDERSIGNED DURING SUCH FISCAL PERIOD, THE
BORROWER PERFORMED AND OBSERVED EACH COVENANT AND CONDITION OF THE LOAN
DOCUMENTS APPLICABLE TO IT.]
--or--
[THE FOLLOWING COVENANTS OR CONDITIONS HAVE NOT BEEN PERFORMED OR OBSERVED
AND THE FOLLOWING IS A LIST OF EACH SUCH DEFAULT AND ITS NATURE AND STATUS:]
4. The representations and warranties of the Borrower contained in Article
V of the Agreement, or which are contained in any document furnished at any time
under or in connection with the Loan Documents, are true and correct on and as
of the date hereof, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this
Compliance Certificate, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 of the Agreement shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01 of the Agreement, including the statements in
connection with which this Compliance Certificate is delivered.
5. As of ___________________ (the "Computation Date")(1):
(a) The Net Worth as of the Computation Date was $_______________________,
as computed on Attachment 1 hereto.
The minimum Net Worth permitted pursuant to Section 7.09(a) on the
Computation Date is $____________________, as computed on Attachment 1
hereto.
(b) The Interest Coverage Ratio was _______________ to 1.00, as computed
on Attachment 2 hereto.
The minimum Interest Coverage Ratio permitted pursuant to Section
7.09(b) on the Computation Date is 2.50 to 1:00.
(c) The Total Debt to Total Capitalization Ratio was _______ to 1.00, as
computed on Attachment 3 hereto.
The maximum Total Debt to Total Capitalization Ratio permitted
pursuant to Section 7.09(c) on the Computation Date is 0.35 to 1.00.
(d) The aggregate fair market value of Dispositions of the type referred
to in Section 7.02(c)(ii) was $_____________ in the current Fiscal
Year.
The maximum aggregate fair market value of such Dispositions permitted
pursuant to Section 7.02(c)(ii) (excluding FIS Recapitalization
Transaction and
----------
(1) The last day of the most recently completed Fiscal Quarter of the Borrower.
Exhibit E - 2
additional dispositions of common Equity Interests of FIS) is [25% OF
NET WORTH AS OF LAST DAY OF IMMEDIATELY PRECEDING FISCAL YEAR IN ANY
FISCAL YEAR OTHER THAN 2005; 15% OF NET WORTH AS OF DECEMBER 31, 2004
IN FISCAL YEAR 2005].
(e) The aggregate amount of Secondary Investments referred to in Section
7.03(a) equaled _____% of the aggregate amount of the Borrower's total
investment portfolio and the aggregate amount of Investments in such
Secondary Investments that are issued by a single issuer equaled
______% of the aggregate amount of the Borrower's total investment
portfolio.
The maximum aggregate amount of such Secondary Investments permitted
pursuant to in Section 7.03(a) is 15% of the aggregate amount of the
Borrower's total investment portfolio and the maximum aggregate amount
of Investments in such Secondary Investments that are issued by a
single issuer is 5% of the aggregate amount of the Borrower's total
investment portfolio.
(f) The total consideration payable in cash in respect of all Permitted
Acquisitions during the current Fiscal Year up to the Computation Date
was $____________.
The maximum total consideration payable in cash in respect of all
Acquisitions constituting Permitted Acquisitions in any Fiscal Year
permitted pursuant to Section 7.03(f) is $500,000,000.
(g) [TO BE COMPLETED AT ANY TIME A GUARANTY TRIGGER EVENT HAS OCCURRED AND
IS CONTINUING] The aggregate principal amount of the Indebtedness of
the type referred to in Section 7.04(i) with respect to the Borrower
was $___________.
The maximum aggregate principal amount of such Indebtedness of the
Borrower permitted pursuant to Section 7.04(i) is $700,000,000.
(h) The aggregate principal amount of Indebtedness of the type referred to
in Section 7.04(j) with respect to the Borrower and its Subsidiaries
was $______________.
The maximum aggregate principal amount of such Indebtedness of the
Borrower and its Subsidiaries permitted pursuant to Section 7.04(j) is
[4% OF NET WORTH].
(i) The aggregate amount of Attributable Indebtedness of the type referred
to in Section 7.04(n) with respect to the Borrower was $_____________.
The maximum aggregate amount of such Attributable Indebtedness of the
Borrower permitted pursuant to Section 7.04(n) is [5% OF NET WORTH].
(j) The aggregate amount of Capital Expenditures made or committed to be
made by the Borrower and its Subsidiaries during the current Fiscal
Year up to the Computation Date was $_______________.
Exhibit E - 3
The maximum aggregate amount of such Capital Expenditures permitted
pursuant to Section 7.12 for any Fiscal Year is as follows plus 25% of the
amount of any permitted Capital Expenditures (on a cumulative basis) not
made or committed to be made in the immediately preceding Fiscal Year.
Fiscal Year
-----------
2003 $275,000,000
2004 $300,000,000
2005 $330,000,000
2006 $365,000,000
2007 $400,000,000
2008 $440,000,000
Exhibit E - 4
ATTACHMENT 1
(TO __/__/__ COMPLIANCE
CERTIFICATE)
NET WORTH
on
(the "Computation Date")
A. Net Worth: the sum of all amounts (without duplication)
which, in accordance with GAAP, would be included in the
Borrower's stockholders' equity (excluding unrealized gains
or losses recorded pursuant to FAS 115) as required to be
reported in the Borrower's then most recent consolidated
balance sheet required to be delivered pursuant to the
Credit Agreement $___________
B. Net Worth Covenant:
(1) 75% of Net Worth at December 31, 2004 $___________
(2) 50% of Net Income (in excess of zero) for the period
from the beginning of the first full Fiscal Quarter
following December 31, 2004 to the Computation Date $___________
(3) 50% of the cumulative cash equity contributions
received by the Borrower after December 31, 2004
through the issuance of Equity Interests $___________
(excluding the FIS Recapitalization Dividend and any
other proceeds received in respect of the FIS Stock
Issuance)
(4) The sum of Items B(l) through B(3) $___________
Exhibit E - 5
ATTACHMENT 2
(TO ___/ ___/ ___,COMPLIANCE
CERTIFICATE)
INTEREST COVERAGE RATIO
on _________________
(the "Computation Date")
A. Cash Flow:(2)
(1) Available Dividends from the Insurance Subsidiaries $___________
(2) EBITDA of Subsidiaries which are non-Insurance
Subsidiaries available to be paid as dividends under
applicable law for such Test Period:
(a) Net Income $___________
(b) The amount of interest charges deducted in
determining such Net Income $___________
(c) The amount of taxes, based on or measured by
income, used or included in the determination of
such Net Income $___________
(d) The amount of depreciation and amortization
expense deducted in determining such Net Income $___________
(e) The sum of Items A(2)(a) through A(2)(d) $___________
(3) The total interest expense for such Test Period
multiplied by the actual marginal combined federal and
state income tax rate then applicable to the Borrower $___________
(4) Acquired Cash Flow:
(a) Available Dividends of any person or assets
acquired by a Subsidiary which is an Insurance
Subsidiary in a Permitted Acquisition during
such Test Period, determined on a pro forma
basis for such Test Period as if consummation of
such Permitted Acquisition occurred on the first
day of such Test Period $___________
----------
(2) Determined on a trailing Four Fiscal Quarter basis as of the Computation
Date.
Exhibit E - 6
(b) EBITDA of any Person or assets acquired by a
Subsidiary which is a non-Insurance Subsidiary
in a Permitted Acquisition during such Test
Period and available to be paid as dividends to
the Borrower under applicable law, determined on
a pro forma basis for such Test Period as if
consummation of such Permitted Acquisition
occurred on the first day of such Test Period $___________
(c) The sum of Items A(4)(a) and A(4)(b) $___________
(5) The sum of Items A(l), A(2)(e), A(3) and A(4)(c) $___________
(B) Interest Expense: the aggregate amount of interest expense
for the Borrower and its Subsidiaries during such Test
Period $___________
(C) Interest Coverage Ratio: the ratio of Item A(5) to Item B _______:1.00
Exhibit E - 7
ATTACHMENT 3
(TO __/__/__ COMPLIANCE
CERTIFICATE)
TOTAL DEBT TO TOTAL CAPITALIZATION RATIO
on
(the "Computation Date")
A. Total Debt
(1) Applicable Debt of the Borrower and its Subsidiaries $___________
(2) Non-contingent reimbursement or payment obligations in
respect of the face amount of all letters of credit or
surety bonds issued for the account of the Borrower
and its Subsidiaries and, without duplication, all
drafts drawn thereunder $___________
(3) Contingent Obligations of the Borrower and its
Subsidiaries in respect of Applicable Debt of another
Person $___________
(4) The sum of Items A(1) through A(3) $___________
(5) Non-Recourse Debt of the Designated Subsidiaries $___________
(6) The remainder of Item (A)(4) minus Item (A)(5) $___________
(B) Total Capitalization:
(1) Net Worth (see Attachment I) $___________
(2) Total Debt (see Item A(6) above) $___________
(3) The sum of Items B(1) and B(2) $___________
(C) Total Debt to Total Capitalization Ratio: the ratio of Item
A(6) to Item B(3) $___________
Exhibit E - 8
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
_____________, _________________.
FIDELITY NATIONAL FINANCIAL, INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Exhibit E - 9
