EXHIBIT 10.61.3
THIRD AMENDMENT TO CREDIT AGREEMENT
THIRD AMENDMENT, dated as of February 26, 2003 (this "Amendment"), to
the Existing Credit Agreement (as defined below), among FIDELITY NATIONAL
FINANCIAL, INC., a Delaware corporation (the "Borrower"), and the Lenders (as
defined below) signatory hereto.
W I T N E S S E T H:
WHEREAS, the Borrower, various financial institutions and other Persons
from time to time parties thereto (collectively, the "Lenders"), Bank of
America, N.A., as the Administrative Agent, Chase Securities Inc., as the
Syndication Agent, Xxxxxx Xxxxxxx Senior Funding, Inc., as the Documentation
Agent, and Paribas, as the Co-Documentation Agent, are parties to the Credit
Agreement, dated as of February 10, 2000, (as amended by Amendment No. 1
thereto, dated as of March 20, 2001, and Amendment No. 2 thereto, dated as of
July 12, 2001, and as further amended, supplemented, amended and restated or
otherwise modified through the date hereof, the "Existing Credit Agreement", and
as amended by this Amendment, the "Credit Agreement");
WHEREAS, the Borrower desires to amend the Existing Credit Agreement as
set forth herein; and
WHEREAS, the Lenders have agreed, subject to the terms and conditions
hereinafter set forth, to amend and waive the Existing Credit Agreement in
certain respects as provided below;
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment shall have the following meanings (such
meanings to be equally applicable to the singular and plural form thereof):
"Amendment" is defined in the preamble.
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
"Existing Credit Agreement" is defined in the first recital.
"Third Amendment Effective Date" is defined in Section 3.1.
SECTION 1.2. Other Definitions. Terms for which meanings are provided
in the Existing Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendment with such meanings.
ARTICLE II
AMENDMENTS TO CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Third Amendment
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Article II; except as so amended, the Existing Credit Agreement shall
continue in full force and effect.
SECTION 2.1. Amendment to Section 1.1. Section 1.1 of the Existing
Credit Agreement is hereby amended by inserting the following definition in such
Section in the appropriate alphabetical sequence:
"Amendment No. 3" means the Third Amendment to Credit Agreement, dated
as of February 26, 2003, among the Borrower and the Lenders party thereto.
SECTION 2.2. Amendment to Section 3.3. Section 3.3 of the Existing
Credit Agreement is hereby amended by deleting the language in clause (b)
thereof in its entirety and inserting "[INTENTIONALLY OMITTED]" in replacement
therefor.
SECTION 2.3. Amendment to Section 8.4. Clause (i) of Section 8.4 of the
Existing Credit Agreement is hereby amended and restated to read in its entirety
as follows:
(i) so long as no Default or Event of Default has occurred and
is continuing at the time of incurrence thereof, unsecured Indebtedness
of the Borrower in an aggregate principal amount not to exceed
$600,000,000 at any one time outstanding; provided that such
Indebtedness (i) shall mature no earlier than seven years from the
Closing Date, (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
default under this agreement) prior to the date that is seven years
after the Closing Date, and (iii) has covenants, defaults and other
terms and conditions (other than interest rates) no more restrictive
than those contained in this agreement;
ARTICLE III
CONDITIONS TO EFFECTIVENESS
SECTION 3.1. Amendment Effective Date. This Amendment (and the
amendments contained herein) shall become effective as of the date first above
written (the "Third Amendment Effective Date"), when all of the conditions set
forth in this Section 3.1 have been fulfilled to the satisfaction of the
Administrative Agent.
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SECTION 3.1.1. Execution of Counterparts. The Administrative Agent
shall have received counterparts of this Amendment, duly executed and delivered
on behalf of the Borrower, the Administrative Agent and the Majority Lenders.
SECTION 3.1.2. Fees and Expenses. The Administrative Agent shall have
received all fees and expenses owing to it, including expenses referenced in
Section 4.2 hereof.
SECTION 3.1.3. Legal Details, etc. All documents executed or submitted
pursuant hereto shall be satisfactory in form and substance to the
Administrative Agent and its counsel. The Administrative Agent and its counsel
shall have received all information and such counterpart originals or such
certified or other copies or such materials, as the Administrative Agent or its
counsel may reasonably request, and all legal matters incident to the
transactions contemplated by this Amendment shall be satisfactory to the
Administrative Agent and its counsel.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Cross-References. References in this Amendment to any
Article or Section are, unless otherwise specified or otherwise required by the
context, to such Article or Section of this Amendment.
SECTION 4.2. Loan Document Pursuant to Credit Agreement; Expenses;
Limited Amendment. This Amendment is a Loan Document executed pursuant to the
Credit Agreement and shall be construed, administered and applied in accordance
with all of the terms and provisions of the Credit Agreement. The Borrower
agrees to pay, promptly upon invoicing therefor, all out of pocket expenses of
the Administrative Agent in connection with the negotiation, execution and
delivery of this Amendment, together with its expenses in connection with
closing and post-closing matters related to the Existing Credit Agreement.
Except as expressly modified by this Amendment, all provisions of the Existing
Credit Agreement and the other Loan Documents shall remain in full force and
effect in accordance with their terms.
SECTION 4.3. Representations and Warranties. The Borrower hereby
represents and warrants that (a) before and after giving effect to this
Amendment the statements contained in Sections 5.2(b) and (c) of the Existing
Credit Agreement are true and correct in all material respects as it made on the
Third Amendment Effective Date, with all references therein to "Borrowing Date"
being deemed to be references to the Third Amendment Effective Date and
references therein to "Borrowing" being deemed to be references to the
amendments effected by this Amendment, and (b) each of the Contributed
Subsidiaries is not a Material Subsidiary.
SECTION 4.4. Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 4.5. Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
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SECTION 4.6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the signatories hereto have caused this Amendment
to be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------------
Title: Vice President and Treasurer
ACKNOWLEDGED:
BANK OF AMERICA,
as Administrative Agent and a Lender
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Title:
Xxx X. Xxxxxx
Managing Director
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------
Xxxxxxx X. Xxxx
Title: Vice President
3rd Amendment to FNF Credit Agreement
JPMORGAN CHASE BANK
By: /s/ [ILLEGIBLE]
-----------------------------------
Title: Managing Director
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Title:
Xxxxxx X. Xxxxxxxxx
Vice President
BANK OF THE WEST
By: /s/ [ILLEGIBLE]
-----------------------------------
Title: Vice President
COMERICA BANK - CALlFORNIA
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Title:
Xxxxx X. Xxxxxx
First Vice President
FIRST BANK & TRUST
By: /s/ [ILLEGIBLE]
-----------------------------------
Title: V.P.
BNP PARIBAS
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Title:
XXXXXX XXXXXXX
Director
Merchant Banking Group
/s/ Xxxx Xxxxxx
-----------------------------------
XXXX XXXXXX
VICE PRESIDENT
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ [ILLEGIBLE]
-----------------------------------
Title: Commercial Banking Officer
BANK ONE, NA, a national banking
asociation with its main office in
Chicago, Illinois, successor by merger
to BANK ONE, ARIZONA, NA
By: /s/ [ILLEGIBLE]
-----------------------------------
Title: Firs Vice President
BMO XXXXXXX XXXXX FINANCING, INC.
By: /s/ [ILLEGIBLE]
-----------------------------------
Title: VICE PRESIDENT
Western Financial Bank
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
Title: Vice president
SUMITOMO MITSUI BANKING
CORPORATION
By: /s/ [ILLEGIBLE]
-----------------------------------
Title: S.V.P.
FLEET NATIONAL BANK
By: /s/ [ILLEGIBLE]
-----------------------------------
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Title:
XXXX X. XXXXXX
MANAGING DIRECTOR
WACHOVIA BANK NATIONAL
ASSOCIATION
XXXXX FARGO BANK, N.A.
By: /s/ [ILLEGIBLE]
-----------------------------------
Title: Vice President
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------
Title: XXXXXXX X. XXXX
Vice President
TAIWAN BUSINESS BANK
By: /s/ Mr. Xxx Xxxx
-----------------------------------
Title: Mr. Xxx Xxxx VP & GM
