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EXHIBIT 10.8.3.1
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of December 18, 1995, between
FIDELITY NATIONAL FINANCIAL, INC., a corporation duly organized and validly
existing under the laws of the State of Delaware (the "Company"); each of the
lenders that is a signatory hereto (individually, a "Bank" and, collectively,
the "Banks"); and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a national
banking association, as administrative agent for the Banks (in such capacity,
together with its successors in such capacity, the "Administrative Agent").
The Company, the Banks and the Administrative Agent are
parties to a Credit Agreement dated as of September 21, 1995 (as heretofore
modified and supplemented and in effect on the date hereof, the "Credit
Agreement"), providing, subject to the terms and conditions thereof, for loans
to be made by said Banks to the Company in an aggregate principal amount not
exceeding $35,000,000. The Company, the Banks and the Administrative Agent
wish to amend the Credit Agreement in certain respects, and accordingly, the
parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 1, terms defined in the Credit Agreement are used herein as
defined therein.
Section 2. Amendments. Subject to the satisfaction of the
conditions precedent specified in Section 4 below, but effective as of November
14, 1995, the Credit Agreement shall be amended as follows:
2.01. References in the Credit Agreement (including
references to the Credit Agreement as amended hereby) to "this Agreement" (and
indirect references such as "hereunder", "hereby", "herein" and "hereof") shall
be deemed to be references to the Credit Agreement as amended hereby.
2.02. Section 1.01 of the Credit Agreement shall be amended
by adding the following new definition and inserting the same in the
appropriate alphabetical location:
"'Recoupment Amount' means, as of any date, the aggregate
amount, as of such date, received, directly or indirectly, by the
Company or any of its Subsidiaries, whether through insurance, a
judgment or otherwise, in reimbursement of any expenses or charges of
the Company or any of its Subsidiaries relating to the loan fraud
described in the memorandum attached as Exhibit A hereto; provided
that, for purposes of Section 8.10(d) hereof, Recoupment
Amendment Xx. 0
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Xxxxxx xxxxx xx rounded down to the nearest multiple of $100,000".
2.03. Section 8.01 of the Credit Agreement is hereby amended
by (i) deleting the word "and" at the end of paragraph (r) thereof, (ii)
relettering paragraph (s) thereof as paragraph (t) and (iii) inserting the
following new paragraph (s) immediately prior to new paragraph (t):
"(s) promptly upon receipt thereof, notice of any Recoupment
Amount received by the Company or any of its Subsidiaries; and"
2.04. Section 8.10(d) of the Credit Agreement is hereby
amended by (i) replacing the number "$12,000,000" appearing directly opposite
the words "Fidelity National Title Insurance Company of New York" with
"$8,000,000 plus the Recoupment Amount".
Section 3. Representations and Warranties. The Company
represents and warrants to the Banks that the representations and warranties
set forth in Section 7 of the Credit Agreement are true and complete on the
date hereof as if made on and as of the date hereof and as if each reference in
said Section 7 to "this Agreement" included reference to this Amendment No. 1.
Section 4. Conditions Precedent. As provided in Section 2
above, the amendments to the Credit Agreement set forth in said Section 2 shall
become effective, as of November 14, 1995, upon the satisfaction of the
following conditions precedent:
4.01. Execution by All Parties. This Amendment No. 1 shall
have been executed and delivered by each of the parties hereto.
4.02. Documents. The Administrative Agent shall have
received the following documents, each of which shall be satisfactory to the
Administrative Agent in form and substance:
(1) Corporate Documents. Certified copies of the charter and
by-laws (or equivalent documents) of the Company (or, in the
alternative, a certification to the effect that none of such documents
has been modified since delivery thereof on the Closing Date pursuant
to the Credit Agreement) and of all corporate authority for the
Company (including, without limitation, board of director
Amendment No. 1
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resolutions and evidence of the incumbency of officers for the
Company) with respect to the execution, delivery and performance of
this Amendment No. 1 and the Credit Agreement as amended hereby and
the loans under the Credit Agreement as amended hereby and each other
document to be delivered by the Company from time to time in
connection with the Credit Agreement as amended hereby (and the
Administrative Agent and each Bank may conclusively rely on such
certificate until it receives notice in writing from the Company to
the contrary).
(2) Other Documents. Such other documents as the
Administrative Agent or any Bank or special New York counsel to Chase
may reasonably request.
Section 5. Miscellaneous. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and effect. This
Amendment No. 1 may be executed in any number of counterparts, all of which
taken together shall constitute one and the same amendatory instrument and any
of the parties hereto may execute this Amendment No. 1 by signing any such
counterpart. This Amendment No. 1 shall be governed by, and construed in
accordance with, the law of the State of New York.
Amendment No. 1
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed and delivered as of the day and year first
above written.
FIDELITY NATIONAL FINANCIAL, INC.
By /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
Amendment No. 1
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BANKS
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THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By /s/ Xxxxx X. Xxxxx
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Title: Vice President
IMPERIAL BANK
By /s/ Xxxxx Xxxxxxxxxx
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Title: Sr. Vice President
SANWA BANK CALIFORNIA
By /s/ Xxxxx X. Xxxxx
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Title: Commercial Banking Officer
FIRST INTERSTATE BANK
OF CALIFORNIA
By /s/ Xxxxx X. Xxxxxxx
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Title: Vice President
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XXX XXXXX XXXXXXXXX BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
By /s/ Xxxxx X. Xxxxx
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Title: Vice President
Amendment No. 1
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EXHIBIT A
[FIDELITY NATIONAL TITLE LETTERHEAD]
MEMORANDUM
TO: BANKS WHICH ARE A PARTY TO THE FIDELITY NATIONAL FINANCIAL, INC. CREDIT
AGREEMENT DATED AS OF SEPTEMBER 21, 1995
FROM: XXXX XXXXXXXXX
DATE: NOVEMBER 17, 1995
SUBJ: FIDELITY NATIONAL TITLE INSURANCE COMPANY OF NEW YORK ("FNNEW")
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The major components of the FNNEW change in surplus are:
In late June of 1995 FNNEW became aware of a loan fraud perpetrated by an
individual in Virginia. The loan fraud involved approximately 23 individual
transactions closed by a now cancelled agent, Innovisions Title. Currently, the
exposure to FNNEW is approximately $3.1 million, this was the primary component
of the third quarter $3.0 Stat loss.
GAAP Treatment:
$3.1 million reclassification from Incurred But Not Reported ("IBNR")
reserves to Case reserves.
GAAP reserves at September 30, 1995:
Case $ 7,006,000
IBNR 12,219,000
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$19,225,000
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Statutory Treatment:
$3.1 million expense
Increase in non-admitted assets of $620,000
Statutory reserve for undetermined title losses approximately $8,006,000
Resolution:
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Ultimately the Company expects to recoup approximately $2.35 million
under Fidelity Bond coverage, which will result in a reversal of the impact on a
GAAP and Stat basis up to the amount of the recovery.
Intercompany Prior Period Adjustment:
A $743,000 charge was taken as an intercompany prior period adjustment.
Total statutory impact of above approximately ($4.4 million).
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CERTIFICATE OF SECRETARY
OF
FIDELITY NATIONAL FINANCIAL, INC.
I, M'Liss Xxxxx Xxxx, Secretary of Fidelity National Financial, Inc., a
Delaware corporation (the "Company"), hereby certify that neither the charter
nor the bylaws of the Company have been modified since their delivery on the
Closing Date, as defined in the Credit Agreement dated September 21, 1995
between the Company and certain lenders for which The Chase Manhattan Bank is
administrative agent (the "Credit Agreement") and all of the corporate
authority for the Company including, without limitation, board of director
resolutions and evidence of the incumbency of officers for the Company with
respect to the execution, delivery and performance of Amendment Number One to
the Credit Agreement and the Credit Agreement as amended hereby and each such
other documents to be delivered by the Company from time to time in connection
with the Credit Agreement as amended hereby.
IN WITNESS WHEREOF, I hereby set my hand this 20th day of December,
1995.
/s/ M'LISS XXXXX XXXX
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M'Liss Xxxxx Xxxx, Secretary
Fidelity National Financial, Inc.
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CERTIFICATE OF SECRETARY
OF
FIDELITY NATIONAL FINANCIAL, INC.
I, M'Liss Xxxxx Xxxx, the duly elected Secretary of Fidelity National
Financial, Inc. ("FNFI"), hereby certify that at a meeting of the Board of
Directors held on September 14, 1995, the following resolutions were
unanimously adopted:
RESOLVED, that the Board of Directors approves a $35,000,000 Revolving
Credit and Term Loan Facility as presented to the Board and evidenced
by that certain Credit Agreement between FNFI and The Chase Manhattan
Bank, attached hereto;
FURTHER RESOLVED, that the appropriate officers of this corporation be
and hereby are authorized to take all necessary action to cause said
transactions referred to in the Credit Agreement to be completed,
including but not limited to executing all documents required at
closing and as may be needed in the future.
IN WITNESS WHEREOF, I hereby set my hand and seal this 3rd day of
January, 1996.
/s/ M'LISS XXXXX XXXX
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M'Liss Xxxxx Xxxx, Secretary
