Exhibit 10.37
SECOND AMENDMENT TO CREDIT AGREEMENT
This Second Amendment to Credit Agreement (this "Amendment") is made as
of December 22, 1999 by and among LandAmerica Financial Group, Inc. (formerly
known as Lawyers Title Corporation) (the "Company"), Bank of America, N.A.,
f/k/a Bank of America National Trust and Savings Association, individually and
as agent (the "Agent"), and the other financial institutions signatory hereto
(the "Banks").
RECITALS:
WHEREAS, the Company, the Agent and the Banks are parties to that
certain Revolving Credit Agreement dated as of November 7, 1997 (as amended by
that certain First Amendment of Credit Agreement dated as of February 19, 1998,
the "Credit Agreement"); and
WHEREAS, the Company, the Agent and the Banks desire to amend the
Credit Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, all
capitalized terms used herein shall have the meanings given them in the Credit
Agreement.
SECTION 2. Amendments to the Credit Agreement. The Credit Agreement is,
as of the Effective Date (as defined below), hereby amended as follows:
(a) Section 2.05 - Reduction of Commitments. The first
sentence of subsection 2.05(b) of the Credit Agreement is hereby
amended by deleting such sentence in its entirety and replacing it with
the following:
The Commitments shall be automatically and
permanently reduced by (i) an amount equal to 100% of the net
cash proceeds of any Indebtedness incurred by the Company or
its Subsidiaries other than Indebtedness permitted by Section
7.05(a) through (h), such reduction to be effective upon the
receipt thereof by the Company and its Subsidiaries; and (ii)
an amount equal to 75% of the net cash proceeds received by
the Company or its Subsidiaries from any equity issuance
(other than any equity issuance pursuant to the Stock
Acquisition, including any related "green shoe" issuance),
such reduction to be effective in either case upon the receipt
of such net cash proceeds by the Company or its Subsidiaries;
provided, however, the aggregate Commitments of the Banks
shall not be reduced below $150,000,000 pursuant to this
subsection 2.05(b).
(b) Section 5.24 - Year 2000 Representation. Article V of
the Credit Agreement is hereby amended by adding the following new
Section 5.24 immediately following Section 5.23 of the Credit
Agreement:
5.24 Year 2000 Compliance. The Company has
conducted a comprehensive review and assessment of its
computer applications with respect to the year 2000 problem
(that is, the risk that computer applications may not be able
to properly perform date sensitive functions after December
31, 1999). Based on the foregoing review, assessment and
inquiry, the Company believes the year 2000 problem will not
result in a Material Adverse Effect.
(c) Section 6.01 - Financial Statements. Subsections 6.01(a)
through (d) of the Credit Agreement are hereby amended by deleting such
subsections in their entirety and replacing them with the following:
(a) as soon as available, but not later than 120
days after the end of each fiscal year, a copy of the audited
consolidated balance sheet of the Company and its Subsidiaries
as at the end of such year and the related consolidated
statements of income or operations, shareholders' equity and
cash flows for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, and
accompanied by the opinion of Ernst & Young, L.L.P. or another
nationally-recognized independent public accounting firm
("Independent Auditor") which report shall state that such
consolidated financial statements present fairly the financial
position for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years. Such opinion
shall not be qualified or limited because of a restricted or
limited examination by the Independent Auditor of any material
portion of the Company's or any Subsidiary's records;
(b) as soon as available, but not later than 60
days after the end of each of the first three fiscal quarters
of each fiscal year, a copy of the unaudited consolidated
balance sheet of the Company and its Subsidiaries as of the
end of such quarter and the related consolidated statements of
income, shareholders' equity and cash flows for the period
commencing on the first day and ending on the last day of such
quarter, and certified by a Responsible Officer as fairly
presenting, in accordance with GAAP (subject to ordinary, good
faith year-end audit adjustments), the financial position and
the results of operations of the Company and the Subsidiaries;
(c) as soon as available, but not later than 120
days after the end of each fiscal year, a copy of an unaudited
parent only balance sheet of the Company as at the end of such
year and the related statement of income, shareholders' equity
and cash flows for such year, certified by a Responsible
Officer as having been developed and used in connection with
the preparation of the financial statements referred to in
subsection 6.01(a);
(d) as soon as available, but not later than 60
days after the end of each of the first three fiscal quarters
of each fiscal year, a copy of the unaudited parent only
balance sheet of the Company and the related statements of
income, shareholders' equity and cash flows for such quarter,
all certified by a
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Responsible Officer as having been developed and used in
connection with the preparation of the financial statements
referred to in subsection 6.01(b);
(d) Section 7.02 - Disposition of Assets. Subsection 7.02(j) of
the Credit Agreement is hereby amended by deleting such subsection in its
entirety and replacing it with the following:
(j) dispositions of tangible property
transferred pursuant to sale-leaseback transactions; provided,
that the fair market value of such property transferred in
calendar year 1999 shall not exceed $25,300,000 and that the
fair market value of such property in any subsequent calendar
year shall not exceed $10,000,000.
(e) Section 7.08 - Contingent Obligations. Subsection 7.08(d) of
the Credit Agreement is hereby amended by deleting such section in its entirety
and replacing it with the following:
7.08 Contingent Obligations. The Company shall
not, and shall not suffer or permit a Subsidiary to, create,
incur, assume or suffer to exist any Contingent Obligation
except:
(a) endorsements for collection or deposit in
the ordinary course of business;
(b) Permitted Swap Obligations;
(c) Contingent Obligations of the Company and
its Subsidiaries existing as of the Execution Date and listed
on Schedule 7.08 hereto;
(d) Contingent Obligations with respect to
Surety Instruments incurred in the ordinary course of
business; and
(e) guaranties by the Company of (i)
sale-leaseback transactions entered into in calendar year 1999
and permitted by Section 7.02(j) and (ii) leases for furniture
and equipment used in the ordinary course of business.
SECTION 3. Conditions Precedent to Effectiveness of Amendment. This
Amendment shall become effective upon the date (the "Effective Date") when the
Company, the Agent and the Banks shall have executed and delivered this
Amendment.
SECTION 4. Representations and Warranties of Company. The Company
represents and warrants to the Agent and the Banks that:
(a) The representations and warranties contained in the
Credit Agreement are true and correct in all material respects at and
as of the date hereof as though made on and as of the date hereof
(except to the extent specifically made with regard to a particular
date).
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(b) No Event of Default or Default has occurred and is
continuing.
(c) The execution, delivery and performance of this
Amendment has been duly authorized by all necessary action on the part
of, and duly executed and delivered by, the Company and this Amendment
is a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as the
enforcement thereof may be subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and general principles of equity
(regardless of whether such enforcement is sought in a proceeding in
equity or at law).
(d) The execution, delivery and performance of this
Amendment does not conflict with or result in a breach by the Company
of any term of any material contract, loan agreement, indenture or
other agreement or instrument to which the Company is a party or is
subject.
SECTION 5. References to and Effect on the Credit Agreement.
(a) On and after the Effective Date each reference in the
Credit Agreement to "this Agreement," "hereunder," "hereof," "herein,"
or words of like import shall mean and be a reference to the Credit
Agreement as amended hereby.
(b) Except as specifically amended above, the Credit
Agreement shall remain in full force and effect and are hereby ratified
and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of the Agent or the Banks under
the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be executed in
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. This Amendment shall be binding upon the respective parties
hereto upon the execution and delivery of this Amendment by the Company, the
Agent, and each Bank. Delivery of an executed counterpart of a signature page of
this Amendment by facsimile transmission shall be effective as delivery of a
manually executed counterpart of this Amendment.
SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS
WITHOUT REGARD TO THE INTERNAL CONFLICTS OF LAWS PROVISIONS THEREOF.
SECTION 8. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
[signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
LANDAMERICA FINANCIAL GROUP, INC.
(f/k/a/ Lawyers Title Corporation)
By: /s/
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Title: Senior Vice President and Treasurer
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BANK OF AMERICA, N.A., f/k/a Bank of
America National Trust and Savings Association,
successor by merger to Bank of America, N.A.,
f/k/a NationsBank, N.A., successor by merger to
NationsBank of Texas, N.A., as Agent and as a
Bank
By: /s/ Xxxx X. X'Xxxxx
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Title: Principal
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S-1
[TO SECOND AMENMDENT]
CRESTAR BANK, as Documentation Agent and a Bank
By: /s/
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Title: Vice President
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S-2
[TO SECOND AMENDMENT]
ALLFIRST BANK (f/k/a First National Bank Of
Maryland), as Co-Agent and a Bank
By: /s/
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Title: Vice President
-----------------------------------------
S-3
[TO SECOND AMENDMENT]
FLEET NATIONAL BANK, as Co-Agent and a Bank
By: /s/
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Title: Assistant Vice President
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S-4
[TO SECOND AMENDMENT]
UNION BANK OF CALIFORNIA, N.A., as
Co-Agent and a Bank
By: /s/ Xxx Areabrite
--------------------------------------------
Title: Vice President
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S-5
[TO SECOND AMENDMENT]
COMERICA BANK, as a Bank
By: /s/
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Title: Vice President
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S-6
[TO SECOND AMENDMENT]
FIRST UNION NATIONAL BANK, as a Bank
By: /s/ Xxxx X. Xxxxxxxxx
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Title: Senior Vice President
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S-7
[TO SECOND AMENDMENT]
MELLON BANK, N.A., as a Bank
By: /s/ Xxxxx X. Xxxxx
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Title: Credit Manager
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S-8
[TO SECOND AMENDMENT]
PNC BANK, NATIONAL ASSOCIATION, as a Bank
By: /s/
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Title: Vice President
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S-9
[TO SECOND AMENDMENT]
