COMMITMENT INCREASE AGREEMENT
Exhibit 10.2
This Commitment Increase Agreement (this “Agreement”) dated as of March 5, 2010, is
entered into among Fidelity National Financial, Inc., a Delaware corporation (the “Borrower”), JPMorgan Chase Bank, N.A., in its capacity as a Lender (“JPMorgan”),
US Bank National Association, in its capacity as a Lender (“US Bank”), Union Bank of
California, N.A., in its capacity as a Lender (“Union Bank”), Fifth Third Bank, in its
capacity as a Lender (“Fifth Third”), RBS Citizens, N.A., in its capacity as a Lender
(“Citizens”), Bank of the West, in its capacity as a Lender (“Bank of the West”),
PNC Bank, N.A., in its capacity as a Lender (“PNC”), Compass Bank, in its capacity as a
Lender (“Compass”), Capital One, N.A., in its capacity as a Lender (“Capital One”),
Regions Bank, in its capacity as a Lender (“Regions”), Bank of Texas, N.A., in its capacity
as a Lender (“BOT”), Bank of Hawaii, in its capacity as a Lender (“BOH”) (JPMorgan,
US Bank, Union Bank, Fifth Third, Citizens, Bank of the West, PNC, Compass, Capital One, Regions,
BOT and BOH are hereafter sometimes referred to collectively as the “Increasing Lenders”),
and Bank of America, N.A., in its capacity as Administrative Agent (the “Administrative
Agent”). Capitalized terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Credit Agreement (as defined below).
PRELIMINARY STATEMENTS
Reference is made to that certain Credit Agreement dated as September 12, 2006, by and among
the Borrower, the Administrative Agent, and the Lenders that are parties thereto as amended by that
certain Amendment and Restatement Agreement, dated as of March 5, 2010 (as amended, modified,
supplemented or restated, the “Credit Agreement”).
Pursuant to Section 2.13 of the Credit Agreement, the Borrower has requested an
increase in the Aggregate Commitments from $825,000,000 to $951,250,000. Such increase in the
Aggregate Commitments is to become effective on March 5, 2010 (the “Increase Effective
Date”), subject to satisfaction of the conditions to effectiveness set forth in Section 4 of
this Agreement. In connection with such requested increase in the Aggregate Commitments, the
Borrower, the Administrative Agent and the Increasing Lenders hereby agree as follows:
AGREEMENT
1. AGGREGATE COMMITMENTS INCREASE. On the Increase Effective Date and subject to the
satisfaction of the conditions to effectiveness set forth in Section 4 of this Agreement, (a)
JPMorgan agrees to increase its Tranche 2 Commitment to $75,000,000, (b) US Bank agrees to increase
its Tranche 2 Commitment to $75,000,000, (c) Union Bank agrees to increase its Tranche 2 Commitment
to $62,500,000, (d) Fifth Third agrees to increase its Tranche 2 Commitment to $55,000,000, (e)
Citizens agrees to increase its Tranche 2 Commitment to $50,000,000, (f) Bank of the West agrees to
increase its Tranche 2 Commitment to $45,000,000, (g) PNC agrees to increase its Tranche 2
Commitment to $40,000,000, (h) Compass agrees to increase its Tranche 2 Commitment to $25,000,000,
(i) Capital One agrees to increase its Tranche 2 Commitment to $25,000,000, (j) Regions agrees to
increase its Tranche 2 Commitment to $30,625,000, (k) BOT agrees to increase its Tranche 2
Commitment to $15,000,000 and (l) BOH agrees to increase its Tranche 2 Commitment to $10,000,000.
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2. SCHEDULE 2.01. As of the Increase Effective Date and subject to the satisfaction
of the conditions to effectiveness set forth in Section 4 of this Agreement, Schedule 2.01
to the Credit Agreement shall be replaced by the form of Schedule 2.01 to this Agreement.
3. REPRESENTATIONS AND WARRANTIES. By its execution and delivery hereof, the Borrower
represents and warrants that, as of the Increase Effective Date, and after giving effect to the
increase in the Aggregate Commitments provided for in this Agreement:
(a) the representations and warranties contained in Article V of the Credit
Agreement and the other Loan Documents are true and correct on and as of the Increase
Effective Date, 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 the representations contained in subsections (a) and (b) of Section
5.05 of the Credit Agreement shall be deemed to refer to the most recent statements
furnish pursuant to subsections (a) and (b), respectively, of Section 6.01 of the
Credit Agreement;
(b) no event has occurred and is continuing which constitutes a Default;
(c) (i) the Borrower has full power and authority to execute and deliver this
Agreement, (ii) this Agreement has been duly executed and delivered by the Borrower and
(iii) this Agreement 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 by the Borrower of this Agreement
or the Credit Agreement, as amended hereby, nor the consummation of any transactions
contemplated herein or therein, will violate any Law to the extent such violation could
reasonably be expected to have a Material Adverse Effect, or conflict with any Organization
Documents of the Borrower, or any material Contractual Obligation to which the Borrower is a
party; and
(e) no authorization, approval, consent, or other action by, notice to, or filing with,
any Governmental Authority or other Person not previously obtained is required for the
execution, delivery or performance by the Borrower, of this Agreement, other than (i) such
that have been obtained and are in full force and effect, (ii) those the failure of which to
obtain could not reasonably be expected to have a Material Adverse Effect and (iii) with
respect to execution, SEC filings.
4. CONDITIONS TO EFFECTIVENESS. This Agreement shall be effective on the Increase
Effective Date, subject to the satisfaction or completion of the following:
(a) the Administrative Agent shall have received counterparts of this Agreement
executed by the Increasing Lenders;
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(b) the Administrative Agent shall have received counterparts of this Agreement
executed by the Borrower;
(c) the Administrative Agent shall have received from the Borrower in immediately
available funds fees for the account of each Increasing Lender in an amount to be agreed;
and
(d) 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. PREPAYMENT. On the Increase Effective Date and subject to the satisfaction of the
conditions to effectiveness set forth in Section 4 of this Agreement, each Tranche 2 Lender shall,
to the extent necessary as set forth in Section 2.13(e) of the Credit Agreement, make a
payment to the Administrative Agent in an amount sufficient, upon the application of such payments
by all Tranche 2 Lenders to the outstanding Tranche 2 Revolving Loans held by the Tranche 2
Lenders, to cause the principal amount of Tranche 2 Revolving Loans made by each Tranche 2 Lender
to be in the amount of its Tranche 2 Participation Percentage (after giving effect to the increase
in the Aggregate Commitments in accordance with this Agreement) of all outstanding Tranche 2
Revolving Loans. If, as a result of the repayment of Tranche 2 Revolving Loans provided for in
this Section 5, any payment of Eurodollar Rate Loans occurs on a day which is not the last day of
the applicable Interest Period, the Borrower will pay to the Administrative Agent for the benefit
of any Tranche 2 Lender holding a Eurodollar Rate Loan any loss or cost incurred by such Tranche 2
Lender resulting therefrom in accordance with Section 3.05 of the Credit Agreement. Upon
the Increase Effective Date and the making of the payments described in this Section 5, each
Increasing Lender shall be deemed to have irrevocably and unconditionally purchased and received,
without recourse or warranty, an undivided participation in all outstanding Swing Line Loans in
accordance with its Participation Percentage (after giving effect to the increase in the Aggregate
Commitments in accordance with this Agreement).
6. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Agreement, 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 modified hereby. This Agreement shall be a Loan Document.
(b) The Credit Agreement, as modified herein, shall remain in full force and effect and
is hereby ratified and confirmed.
7. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay promptly after demand all
reasonable costs and expenses of the Administrative Agent in connection with the preparation,
reproduction, execution and delivery of this Agreement 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).
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8. EXECUTION IN COUNTERPARTS. This Agreement 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 Agreement, 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 Agreement shall be deemed to be a contract
made under and governed by and continued in accordance with the internal 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. This Agreement shall be binding upon
the parties hereto and their respective successors and assigns.
10. HEADINGS. Section headings in this Agreement are included herein for convenience
of reference only and shall not constitute a part of this Agreement for any other purpose.
11. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, THE OTHER LOAN DOCUMENTS, INCLUDING THIS
AGREEMENT, 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
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized
officers as of the date first above written.
| FIDELITY NATIONAL FINANCIAL, INC. |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Xxxx X. Xxxxxxx | ||||
| Chief Executive Officer | ||||
Commitment Increase Agreement (Fidelity) — Signature Page
| BANK OF AMERICA, N.A., as Administrative Agent |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Xxxxx Xxxxxx | ||||
| Vice President | ||||
Commitment Increase Agreement (Fidelity) — Signature Page
| JPMORGAN CHASE BANK, N.A., as a Lender |
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| By: | /s/ Xxxx X’Xxxxxx | |||
| Print Name : | Xxxx X’Xxxxxx | |||
| Print Title: | Managing Director | |||
| XX Xxxxxx Xxxxx Bank, N.A. | ||||
Commitment Increase Agreement (Fidelity) — Signature Page
| US BANK NATIONAL ASSOCIATION, as a Lender |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Print Name : | Xxxxx X. Xxxxxx | |||
| Print Title: | Senior Vice President | |||
Commitment Increase Agreement (Fidelity) — Signature Page
| UNION BANK OF CALIFORNIA, N.A., as a Lender |
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| By: | /s/ F. Xxxxx Xxxxxxx | |||
| Print Name : | F. Xxxxx Xxxxxxx | |||
| Print Title: | Vice President | |||
Commitment Increase Agreement (Fidelity) — Signature Page
| FIFTH THIRD BANK, as a Lender an Ohio Banking Corporation |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Print Name : | Xxxx X. Xxxxxx | |||
| Print Title: | Vice President | |||
Commitment Increase Agreement (Fidelity) — Signature Page
| RBS CITIZENS, N.A., as a Lender |
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| By: | /s/ Xxxxx Xxxx | |||
| Print Name : | Xxxxx Xxxx | |||
| Print Title: | Senior Vice President | |||
Commitment Increase Agreement (Fidelity) — Signature Page
| BANK OF THE WEST, as a Lender |
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| By: | /s/ Xxxx Xxxxxxxx | |||
| Print Name : | Xxxx Xxxxxxxx | |||
| Print Title: | Senior Vice President | |||
Commitment Increase Agreement (Fidelity) — Signature Page
| PNC BANK, N.A., as a Lender |
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| By: | /s/ Xxx X. Xxxxxx | |||
| Print Name : | Xxx X. Xxxxxx | |||
| Print Title: | Senior Vice President | |||
Commitment Increase Agreement (Fidelity) — Signature Page
| COMPASS BANK, as a Lender |
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| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Print Name : | Xxxxxx X. Xxxxxxxx | |||
| Print Title: | Vice President | |||
Commitment Increase Agreement (Fidelity) — Signature Page
| CAPITAL ONE, N.A., as a Lender |
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| By: | /s/ Xxxxxxxx Xxxxx | |||
| Print Name : | Xxxxxxxx Xxxxx | |||
| Print Title: | Vice President | |||
Commitment Increase Agreement (Fidelity) — Signature Page
| REGIONS BANK, as a Lender |
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| By: | /s/ Xxxxxxx Xxxxxx | |||
| Print Name : | Xxxxxxx Xxxxxx | |||
| Print Title: | Senior Vice President | |||
Commitment Increase Agreement (Fidelity) — Signature Page
| BANK OF TEXAS, N.A., as a Lender |
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| By: | /s/ Xxx Xxxxxxx | |||
| Print Name : | Xxx Xxxxxxx | |||
| Print Title: | Vice President | |||
Commitment Increase Agreement (Fidelity) — Signature Page
| BANK OF HAWAII, as a Lender |
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| By: | /s/ Xxxxxx Xxxxxxx III | |||
| Print Name : | Xxxxxx Xxxxxxx, III | |||
| Print Title: | Senior Vice President | |||
Commitment Increase Agreement (Fidelity) — Signature Page
SCHEDULE 2.01 (AFTER IMPACT OF ASSIGNMENTS AND COMMITMENT INCREASES)
COMMITMENTS AND PARTICIPATION PERCENTAGES
| Tranche 1 | Tranche 2 | |||||||||||||||
| Participation | Participation | Participation | ||||||||||||||
| Lender | Commitment | Percentage | Percentage | Percentage | ||||||||||||
Bank of America, National Association |
$ | 75,000,000.00 | 7.884362681 | % | 0.000000000 | % | 8.108108108 | % | ||||||||
Xxxxx Fargo Bank, National Association |
$ | 75,000,000.00 | 7.884362681 | % | 0.000000000 | % | 8.108108108 | % | ||||||||
JPMorgan Chase Bank, N.A. |
$ | 75,000,000.00 | 7.884362681 | % | 0.000000000 | % | 8.108108108 | % | ||||||||
U.S. Bank, National Association |
$ | 75,000,000.00 | 7.884362681 | % | 0.000000000 | % | 8.108108108 | % | ||||||||
Union Bank of California, N.A. |
$ | 62,500,000.00 | 6.570302234 | % | 0.000000000 | % | 6.756756757 | % | ||||||||
Fifth Third Bank |
$ | 55,000,000.00 | 5.781865966 | % | 0.000000000 | % | 5.945945946 | % | ||||||||
RBS Citizens, National Association |
$ | 50,000,000.00 | 5.256241787 | % | 0.000000000 | % | 5.405405405 | % | ||||||||
Citibank, N.A. |
$ | 46,875,000.00 | 4.927726675 | % | 0.000000000 | % | 5.067567567 | % | ||||||||
Comerica Bank |
$ | 46,875,000.00 | 4.927726675 | % | 0.000000000 | % | 5.067567567 | % | ||||||||
SunTrust Bank |
$ | 46,875,000.00 | 4.927726675 | % | 0.000000000 | % | 5.067567567 | % | ||||||||
Bank of the West |
$ | 45,000,000.00 | 4.730617608 | % | 0.000000000 | % | 4.864864865 | % | ||||||||
PNC Bank, N.A. |
$ | 40,000,000.00 | 4.204993430 | % | 0.000000000 | % | 4.324324324 | % | ||||||||
Regions Bank |
$ | 30,625,000.00 | 3.219448095 | % | 0.000000000 | % | 3.310810811 | % | ||||||||
BMO Capital Markets Financing, Inc. |
$ | 30,000,000.00 | 3.153745072 | % | 0.000000000 | % | 3.243243243 | % | ||||||||
KeyBank National Association |
$ | 30,000,000.00 | 3.153745072 | % | 0.000000000 | % | 3.243243243 | % | ||||||||
Mizuho Corporate Bank, Ltd. |
$ | 26,250,000.00 | 2.759526938 | % | 100.000000000 | % | 0.000000000 | % | ||||||||
Capital One, N.A. |
$ | 25,000,000.00 | 2.628120894 | % | 0.000000000 | % | 2.702702703 | % | ||||||||
City National Bank |
$ | 25,000,000.00 | 2.628120894 | % | 0.000000000 | % | 2.702702703 | % | ||||||||
Schedule 2.01 (After Impact of Assignments and Commitment Increases)
| Tranche 1 | Tranche 2 | |||||||||||||||
| Participation | Participation | Participation | ||||||||||||||
| Lender | Commitment | Percentage | Percentage | Percentage | ||||||||||||
Compass Bank |
$ | 25,000,000.00 | 2.628120894 | % | 0.000000000 | % | 2.702702703 | % | ||||||||
Xxxxx Xxx Commercial Bank, Ltd., New
York Branch |
$ | 18,750,000.00 | 1.971090670 | % | 0.000000000 | % | 2.027027030 | % | ||||||||
First Commercial Bank (Taiwan) |
$ | 15,000,000.00 | 1.576872536 | % | 0.000000000 | % | 1.621621621 | % | ||||||||
Bank of Texas, N.A. |
$ | 15,000,000.00 | 1.576872536 | % | 0.000000000 | % | 1.621621621 | % | ||||||||
Bank of Hawaii |
$ | 10,000,000.00 | 1.051248357 | % | 0.000000000 | % | 1.081081081 | % | ||||||||
Xxx Xxx Commercial Bank Ltd. New York
Agency |
$ | 7,500,000.00 | 0.788436268 | % | 0.000000000 | % | 0.810810811 | % | ||||||||
Total |
$ | 951,250,000.00 | 100.000000000 | % | 100.000000000 | % | 100.000000000 | % | ||||||||
Schedule 2.01 (After Impact of Assignments and Commitment Increases)
