Exhibit 1.1
DEALER-MANAGER AND SOLICITATION AGENT AGREEMENT
FIDELITY NATIONAL TITLE GROUP, INC.
November __, 2005
XXXXXX BROTHERS INC.
000 Xxxxxxx Xxxxxx - Xxxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
1. THE EXCHANGE OFFER AND CONSENT SOLICITATION. Fidelity
National Title Group, Inc., a Delaware corporation (the "COMPANY"), intends to
make an exchange offer (together with any amendments and extensions thereof, the
"EXCHANGE OFFER") for the outstanding 7.30% Notes due 2011 and 5.25% Notes due
2013 (collectively, the "NOTES") of Fidelity National Financial, Inc., a
Delaware corporation ("FNF"), and to engage in a related solicitation (together
with any amendments and extensions thereof, the "SOLICITATION") of consents (the
"CONSENTS") of the holders of the Notes (the "HOLDERS") to certain amendments to
the Indenture dated as of August 20, 2001 between FNF and The Bank of New York,
as trustee (the "TRUSTEE"), relating to the Notes, as amended and supplemented
through the date hereof (the "INDENTURE"), in each case, on the terms and
subject to the conditions set forth in the forms of Prospectus and Consent
Solicitation Statement and related Letter of Transmittal and Consent attached
hereto as Exhibits A and B respectively. Such Prospectus and Consent
Solicitation Statement, (i) including (A) any documents incorporated by
reference therein and (B) any exhibits or annexes thereto and (ii) the Letter of
Transmittal and Consent, as the same may be amended or supplemented from time to
time, are referred to herein as the "OFFER TO EXCHANGE" (or sometimes as the
"PROSPECTUS") and "LETTER OF TRANSMITTAL" respectively. In exchange for tendered
Notes, the Company will issue its newly issued notes (the "NEW NOTES") with the
same principal amounts, interest rates, redemption terms and payment and
maturity dates as the tendered Notes. The New Notes will provide for accrued
interest from the last date for which interest was paid on the Notes. The New
Notes will be issued under a new indenture (the "NEW INDENTURE") between the
Company and the Trustee which will be substantially the same as the Indenture.
The Offer to Exchange, the Letter of Transmittal, all statements and other
documents filed or to be filed (including the Registration Statement, as
hereinafter defined) with any federal, state or local governmental or regulatory
agency or authority and such other documents (including, but not limited to, any
advertisements, press releases or summaries relating to the Exchange Offer
and/or Solicitation and any forms of letters to brokers, dealers, banks, trust
companies and other nominees relating to the Exchange Offer and/or the
Solicitation) as the Company may authorize for use in connection with the
Exchange Offer and/or the Solicitation during the term of this Agreement, as
amended or supplemented from time to time, are collectively referred to as the
"EXCHANGE OFFER AND SOLICITATION MATERIALS".
2. APPOINTMENT AS DEALER-MANAGER. The Company hereby appoints
Xxxxxx Brothers Inc. ("XXXXXX BROTHERS") as sole dealer-manager in connection
with the Exchange Offer and as sole solicitation agent in connection with the
Solicitation (in such capacities, the "DEALER-MANAGER"), and the Company hereby
authorizes Xxxxxx Brothers to act as such in connection with the Exchange Offer
and Solicitation. On the basis of the representations and warranties and
agreements of the Company contained in this Agreement and
subject to and in accordance with the terms and conditions hereof, Xxxxxx
Brothers agrees in accordance with its customary practice to use its reasonable
best efforts to solicit tenders of Notes and delivery of Consents pursuant to
the Exchange Offer and Solicitation, respectively, and to communicate with
brokers, dealers, banks, trust companies, nominees and other persons with
respect to the Exchange Offer and Solicitation.
3. NO LIABILITY FOR ACTS OF BROKERS, DEALERS, BANKS, TRUST
COMPANIES, NOMINEES AND OTHERS. Xxxxxx Brothers shall not be subject to any
loss, claim, damage, liability or expense owed to the Company or any of the
Company's affiliates or subsidiaries for any act or omission on the part of any
broker or dealer in securities (other than Xxxxxx Brothers), bank, trust
company, nominee or any other person, and Xxxxxx Brothers shall not be liable
for its own acts or omissions in performing its obligations as Dealer-Manager
except for any losses, claims, damages, liabilities and expenses determined in a
final judgment by a court of competent jurisdiction to have resulted directly
from any such acts or omissions undertaken or omitted to be taken by Xxxxxx
Brothers through its bad faith, gross negligence or willful misconduct. In
soliciting or obtaining tenders of Notes and deliveries of Consents, the Company
hereby acknowledges that Xxxxxx Brothers, as Dealer-Manager, is acting as
independent contractor and shall not be deemed to be acting as the agent of the
Company or as the agent of any broker, dealer, bank, trust company, nominee or
other person. In soliciting tenders and delivering consents, no broker, dealer,
bank, trust company, nominee or other person shall be deemed to be acting as the
agent of Xxxxxx Brothers, the Company or any of the Company's affiliates or
subsidiaries.
4. THE EXCHANGE OFFER AND SOLICITATION MATERIALS; COMMENCEMENT;
WITHDRAWAL.
(a) The Company hereby (i) agrees to furnish Xxxxxx Brothers
with as many copies as Xxxxxx Brothers may reasonably request of the final forms
of the Exchange Offer and Solicitation Materials and, upon its request, any
other documents filed or to be filed by the Company with any federal, state or
local governmental or regulatory agency or authority, any stock exchange or any
court, (ii) authorizes Xxxxxx Brothers to use copies of the Exchange Offer and
Solicitation Materials in connection with the Exchange Offer and Solicitation
and (iii) acknowledges that the Exchange Offer and Solicitation Materials have
been, or will be, prepared and approved by the Company and are the Company's
sole responsibility with respect to their accuracy and completeness. Xxxxxx
Brothers hereby agrees that it will not disseminate any written materials in
connection with the Exchange Offer and Solicitation other than the Exchange
Offer and Solicitation Materials, information consistent with the Exchange Offer
and Solicitation Materials or information otherwise authorized by the Company.
(b) The Company hereby represents and warrants that it will use
its reasonable best efforts to commence the Exchange Offer and Solicitation as
soon as practicable by publicly announcing its commencement and by distributing,
mailing, or causing to be mailed on its behalf, copies of the Exchange Offer and
Solicitation Materials (excluding the documents incorporated by reference in the
Exchange Offer and Solicitation Materials) to the Holders for delivery, where
necessary to the beneficial holders of the Notes (the date of such announcement
and of the commencement of such distribution, the "COMMENCEMENT DATE").
(c) The Company hereby represents and agrees that no
solicitation material in addition to the Exchange Offer and Solicitation
Materials, each of which shall be in the form
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which has been approved by Xxxxxx Brothers, will be used in connection with the
Exchange Offer and Solicitation or filed with any federal, state or local
governmental or regulatory agency or authority, including the Securities and
Exchange Commission (the "COMMISSION"), by or on behalf of the Company without
Xxxxxx Brothers' prior approval, which approval will not be unreasonably
withheld or delayed. In the event that (i) the Company uses or permits the use
of any such solicitation material in connection with the Exchange Offer or the
Solicitation or files any such solicitation material with any such federal,
state or local governmental or regulatory agency or authority without Xxxxxx
Brothers' prior approval or (ii) if at any time Xxxxxx Brothers shall determine
that any condition set forth in Section 9 shall not be satisfied, then Xxxxxx
Brothers (A) shall have a reasonable period of time after discovering or being
informed of such event to elect whether to continue to act as Dealer-Manager and
shall be entitled to withdraw as Dealer-Manager in connection with the Exchange
Offer and Solicitation without any liability or penalty to Xxxxxx Brothers or
any other person defined in Section 11 as an "Indemnified Person," (B) shall be
entitled promptly to receive the payment of all expenses payable to it under
Section 6 of this Agreement which have accrued to the date of such withdrawal
and (C) shall continue to be entitled to the indemnification and contribution
provisions contained in Section 11. If Xxxxxx Brothers withdraws as Dealer
Manager as set forth in the prior sentence, any fees that would have otherwise
become due pursuant to Section 5 upon the acceptance by the Company for exchange
of Notes tendered pursuant to the Exchange Offer had Xxxxxx Brothers not
withdrawn shall not be payable to Xxxxxx Brothers even if such acceptance
occurs.
5. COMPENSATION.
The Company hereby agrees to pay Xxxxxx Brothers as compensation for its
services as Dealer-Manager, upon the acceptance by the Company for exchange of
Notes tendered pursuant to the Exchange Offer, provided that at least a majority
of each of the two series of the Notes are tendered and not withdrawn pursuant
to the Exchange Offer, a fee equal to $1 million. If the foregoing condition is
met, then the fee set forth in this Section shall be payable within three
business days of the completion of the Exchange Offer and Solicitation.
6. REIMBURSEMENT OF EXPENSES AND PAYMENT OF OTHER COSTS. The
Company hereby agrees (a) to reimburse Xxxxxx Brothers in connection with its
services as Dealer-Manager for any expenses incurred by Xxxxxx Brothers in
connection with the preparation, printing, filing, mailing and publishing of the
Exchange Offer and Solicitation Materials and for all out-of-pocket expenses
incurred by Xxxxxx Brothers as Dealer-Manager, including, without limitation,
the fees and disbursements of Xxxxxx Brothers' legal counsel, Xxxxxxxx &
Xxxxxxxx LLP (as to the fees and expenses of such counsel, up to a maximum of
$100,000), (b) to pay all fees and expenses of the Information Agent (as defined
below), in connection with the Exchange Offer and Solicitation, (c) to pay any
fees payable to brokers, dealers, banks, trust companies and nominees as
reimbursement for their customary mailing and handling expenses incurred in
forwarding the Exchange Offer and Solicitation Materials to their customers, if
any, and (d) to pay any advertising and public relations charges pertaining to
the Exchange Offer and Solicitation and the related transactions. The Company
shall promptly reimburse Xxxxxx Brothers for all amounts owing under this
Section after such expenses have been paid or have accrued and an invoice
therefor has been sent by Xxxxxx Brothers to the Company, which may be sent from
time to time as such expenses are paid or accrued, whether or not the Exchange
Offer and Solicitation is consummated and in addition to the amounts owing to
Xxxxxx Brothers under the preceding Section.
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7. THE INFORMATION AGENT; NOTEHOLDER LISTS.
(a) The Company has arranged for X.X. Xxxx & Co., Inc. to serve
as information and exchange agent in connection with the Exchange Offer and
Solicitation (collectively in such capacities, the "INFORMATION AGENT") and to
perform services in connection with the Exchange Offer and Solicitation that are
customary for an information and exchange agent.
(b) The Company will provide, or will cause the Information
Agent, as applicable, to provide, Xxxxxx Brothers with the security listing
position (or other cards or lists) containing the names and addresses of, and
the aggregate principal amount of Notes held by, the Holders as of a recent date
and will use its reasonable best efforts to cause Xxxxxx Brothers to be advised,
from time to time as Xxxxxx Brothers may request, during the period of the
Exchange Offer and Solicitation as to any transfers of record of Notes. In
addition, the Company hereby authorizes Xxxxxx Brothers to communicate with the
Trustee and the Information Agent with respect to matters relating to the
Exchange Offer and Solicitation and the Company will advise, or will cause such
persons to advise, Xxxxxx Brothers daily as to such matters as Xxxxxx Brothers
may reasonably request, including the aggregate principal amount of Notes that
have been tendered and for which Consents have been delivered pursuant to the
Exchange Offer and Solicitation, respectively.
8. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. In addition to
the other representations and warranties made by the Company contained in this
Agreement, the Company represents and warrants to Xxxxxx Brothers, and agrees
with Xxxxxx Brothers, that:
(a) Each of the Company and FNF is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation.
(b) Each of the Company and FNF (to the extent applicable to it)
has all necessary corporate power and authority to execute and deliver and
perform this Agreement, to make and consummate the Exchange Offer and
Solicitation, including, but not limited to, by exchanging the Notes and issuing
the New Notes in consideration thereof, and by effecting (in the case of FNF)
the proposed amendments to the Indenture as set forth in the Offer to Exchange
by executing and delivering a supplemental indenture between FNF and the Trustee
supplementing the Indenture (the "SUPPLEMENTAL INDENTURE") pursuant to the
Exchange Offer and Solicitation Materials, and to consummate the other
transactions contemplated by this Agreement and by the Offer to Exchange and the
other Exchange Offer and Solicitation Materials (collectively, the
"TRANSACTIONS"); and all necessary corporate action has been duly taken by the
Company and FNF to authorize the making, execution, delivery, performance and
consummation, as the case may be, of the Transactions.
(c) This Agreement has been duly authorized, executed and
delivered by the Company.
(d) The registration statement on Form S-4 (File No. 333-_____)
(the "REGISTRATION STATEMENT") with respect to the New Notes (i) has been
prepared by the Company in conformity with the requirements of the Securities
Act of 1933, as amended (the "SECURITIES ACT"), and the rules and regulations
(the "RULES AND REGULATIONS") of the Commission thereunder, (ii) has been filed
with the Commission under the Securities Act, (iii) has become effective under
the Securities Act and is not proposed to be amended and (iv) is not subject to
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any stop order under the Securities Act suspending the effectiveness of such
registration statement or any Rule 462(b) registration statement relating
thereto, and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the Commission. If any
post-effective amendment to such registration statement has been filed with the
Commission prior to the execution and delivery of this Agreement, the most
recent such amendment has been declared effective by the Commission. Copies of
such registration statement as amended to date have been delivered by the
Company to Xxxxxx Brothers. The Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the Registration
Statement or the Prospectus will when they become effective or are first used to
effectuate the Transactions, as the case may be, conform as to form in all
material respects to the requirements of the Securities Act and the Rules and
Regulations. The Registration Statement and any amendment thereto does not and
will not, as of the applicable effective date, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) the Prospectus
and any amendment or supplement thereto will not, as of the first date of its
use to effectuate the Transactions, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading and (iii) the Exchange Offer and
Solicitation Materials (including any documents incorporated therein by
reference) do not and will not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that no representation is made with respect to
statements contained in any of the foregoing based on information furnished in
writing by or on behalf of Xxxxxx Brothers for use therein (the "SUPPLIED
INFORMATION").
(e) The documents incorporated by reference in the Exchange
Offer and Solicitation Materials, as of each of their respective filing dates,
complied as to form in all material respects with the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively the "EXCHANGE ACT"), and did not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(f) The execution, delivery, performance, making and
consummation, as the case may be, of the Transactions will comply in all
material respects with all applicable requirements of law, including the
Exchange Act and any applicable rules or regulations of any governmental or
regulatory agency or authority, including, without limitation those of the
Commission (but not including state securities or state insurance securities
laws, as to which no representation is made).
(g) The execution, delivery, performance, making and
consummation, as the case may be, of the Transactions will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default (or an event which, with or without notice or lapse of
time, or both, as the case may be, would constitute a default) under, (i) the
certificate of incorporation or by-laws of the Company or FNF, (ii) any material
loan or credit agreement, indenture (provided the requisite Consents are
executed with respect to the proposed amendments to the Indenture), mortgage,
note, deed of trust or other material agreement or instrument of the Company or
FNF or any of their respective affiliates or subsidiaries, (iii) any
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judgment, order, decree, law, statute, rule or regulation of any court,
governmental or regulatory agency or authority to which the Company or FNF or
any of their respective affiliates or subsidiaries is a party or by which the
Company or FNF or any of their respective affiliates or subsidiaries or assets
or properties is bound or (iv) result in the creation or imposition of any lien,
charge, claim or encumbrance on any material asset or property of the Company or
FNF or any of their respective affiliates or subsidiaries, which in any case
described above (except with reference to the result of a violation of, or a
default under, the restated certificate of incorporation or bylaws of the
Company or FNF), would be material to the Company or FNF and their respective
subsidiaries taken as a whole.
(h) No material consent, authorization, approval or filing with,
exemption, registration, qualification or other action with any federal, state
or local governmental or regulatory agency or authority is required in
connection with the execution, delivery, performance, making and consummation,
as the case may be, of the Transactions other than those which have been made or
obtained, as applicable, as set forth in the Offer to Exchange.
(i) There are no actions, lawsuits, claims or governmental or
administrative proceedings pending (including any stop order, restraining order
or denial of an application for approval), or to the knowledge of the Company
after due inquiry, threatened against the Company or FNF or any of their
respective affiliates or subsidiaries which would, if adversely determined,
materially affect or impair the execution, delivery, performance, making or
consummation, as the case may be, of the Transactions.
(j) The Company has, or has arranged for the borrowing of,
sufficient funds (and authority to use such funds under applicable law), which,
together with funds presently available or committed to it, will enable the
Company to pay, and the Company hereby agrees that the Company will pay
promptly, in accordance with the terms and subject to the conditions of the
Exchange Offer and Solicitation as set forth in the Exchange Offer and
Solicitation Materials and this Agreement, all fees and expenses related to the
Exchange Offer and Solicitation, including, but not limited to, fees and
expenses payable hereunder.
(k) The New Indenture has been duly authorized, executed and
delivered by the Company and, assuming that the New Indenture is the valid and
legally binding obligation of the Trustee, constitutes a valid and legally
binding obligation of the Company, enforceable against the Company in accordance
with its terms except as that enforceability may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar
laws of general applicability now or hereafter in effect relating to or
affecting the enforcement of creditors' rights, (ii) general principles of
equity (regardless of whether enforceability is considered in a proceeding in
equity or at law) and (iii) an implied covenant of good faith and fair dealing.
The Notes have been duly and validly authorized by the Company for issuance upon
consummation of the Exchange Offer and, when executed by the Company and
authenticated by the Trustee in accordance with the New Indenture and delivered
upon consummation of the Exchange Offer, will have been validly issued and
delivered, free of any preemptive or similar rights to subscribe to or purchase
the same arising by operation of law or under the charter or by-laws of the
Company or otherwise, and will constitute valid and binding obligations of the
Company entitled to the benefits of the New Indenture and enforceable in
accordance with their terms, except as enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws of general applicability now or hereafter in effect relating to or
affecting the enforcement of creditors'
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rights, (ii) general principles of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law), and (iii) an implied
covenant of good faith and fair dealing, and the New Notes conform, or will
conform, to the description thereof in the Registration Statement and the
Prospectus.
(l) The Indenture has been duly authorized, executed and
delivered by FNF and, assuming that the Indenture is the valid and legally
binding obligation of the Trustee, constitutes a valid and legally binding
obligation of FNF, enforceable against FNF in accordance with its terms except
as that enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws of general
applicability now or hereafter in effect relating to or affecting the
enforcement of creditors' rights, (ii) general principles of equity (regardless
of whether enforceability is considered in a proceeding in equity or at law) and
(iii) an implied covenant of good faith and fair dealing. The Supplemental
Indenture has been duly authorized and, promptly following the receipt of the
requisite Consents, will be duly executed and delivered by FNF and, assuming
that the Supplemental Indenture will be a valid and legal binding obligation of
the Trustee, will constitute a valid and binding obligation of FNF, enforceable
against FNF in accordance with its terms except as that enforceability may be
limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws of general applicability now or hereafter in
effect relating to or affecting the enforcement of creditors' rights, (ii)
general principles of equity (regardless of whether enforceability is considered
in a proceeding in equity or at law) and (iii) an implied covenant of good faith
and fair dealing.
(m) The New Indenture, the Indenture and the Supplemental
Indenture conform to the descriptions thereof contained in the Offer to Exchange
and comply in all material respects with the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "TRUST INDENTURE ACT").
(n) KPMG LLP, whose reports are included or incorporated by
reference in the Prospectus, are independent certified public accountants with
respect to FNF and its subsidiaries, and the Company and its subsidiaries, as
required by the Securities Act and the Rules and Regulations. The financial
statements (including the related notes and supporting schedules) included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly in all material respects the financial condition, results of
operations and cash flows of the entities purported to be shown thereby at the
dates and for the periods indicated and have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods indicated and conform in all material respects with the
Rules and Regulations, except as otherwise noted therein; and the supporting
schedules included or incorporated by reference in the Registration Statement
present fairly in all materials respects the information required to be stated
therein.
(o) Each of the Company and each of its "SIGNIFICANT
SUBSIDIARIES" (as defined in Regulation S-X, section 1.02(w)) has been duly
organized or formed and is validly existing in good standing under the laws of
the jurisdiction of its organization or formation, with full corporate power and
authority to own, lease and operate its properties and conduct its business and,
in the case of the Company, to enter into and perform its obligations under this
Agreement and the New Indenture; and each of the Company and each of its
Subsidiaries holds all licenses and is duly registered and qualified to do
business and is in good standing in each jurisdiction in which the character of
the business conducted by it or the location of the
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properties owned, leased or operated by it makes such licensure, registration or
qualification necessary, except where the failure to be so licensed, registered
or qualified would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or other), results of operations,
business or prospects of the Company and its subsidiaries taken as a whole.
(p) All of the outstanding shares of capital stock of each
Significant Subsidiary of the Company that is a corporation have been duly
authorized and validly issued and are fully paid and nonassessable. Except as
disclosed in the Prospectus, all of the outstanding shares of capital stock,
partnership interests or other ownership interests of each Significant
Subsidiary of the Company are owned directly or indirectly by the Company, free
and clear of any material claim, lien, encumbrance, security interest,
restriction upon voting or transfer, preemptive rights or any other claim of any
third party, except such as are described in the Prospectus.
(q) Except as described in or contemplated by the Registration
Statement and the Prospectus, there has not been any material adverse change in,
or adverse development which, individually or in the aggregate, materially
affects or will materially affect, the condition (financial or other), results
of operations or business of the Company and its subsidiaries taken as a whole
from the respective dates as of which information is given in the Prospectus.
(r) The New Notes will be pari passu with all existing and
future unsecured and unsubordinated indebtedness of the Company.
(s) Except as disclosed in the Prospectus, all reinsurance
treaties, reinsurance contracts and reinsurance agreements to which the Company
or any of its subsidiaries is a party are in full force and effect, and none of
the Company or any of its subsidiaries is in violation of, or in default in the
performance, observance or fulfillment of, any obligation, agreement, covenant
or condition contained therein, except where the failure to be in full force and
effect and except where any such violation or default would not, singly or in
the aggregate, have a material adverse effect on the condition (financial or
other), results of operations, business or prospects of the Company and its
subsidiaries taken as a whole. None of the Company or any of its subsidiaries
has received any notice from any of the other parties to such treaties,
contracts or agreements which are material to its business that such other party
intends not to perform in any material respect such treaty, contract or
agreement, and the Company and its subsidiaries have no reason to believe that
any of the parties to such treaties, contracts or agreements will be unable to
perform such treaty, contract, agreement or arrangement; in each case, except
where such non-performance would not, singly or in the aggregate, have a
material adverse effect on the condition (financial or other), results of
operations, business or prospects of the Company and its subsidiaries taken as a
whole.
(t) Except as disclosed in the Prospectus, none of the Company
or any of its subsidiaries has made any material changes in their insurance
reserving practices during the last two years.
(u) Each of the Company and each of its subsidiaries (i) holds
such permits, licenses, consents, exemptions, franchises, authorizations and
other approvals from insurance departments and other governmental or regulatory
authorities (each, an "AUTHORIZATION") (including, without limitation, insurance
licenses from the insurance regulatory agencies of the
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various states or other jurisdictions where it conducts business (the "INSURANCE
Licenses")), and has made all filings with and notices to, all governmental or
regulatory authorities and self-regulatory organizations and all courts and
other tribunals, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, and (ii) to the knowledge of
the Company, has fulfilled and performed all material obligations necessary to
maintain such Authorizations and Insurance Licenses; in each case, except where
the failure to hold or maintain any such Authorizations or Insurance Licenses or
to make any such filing or notice would not, singly or in the aggregate, have a
material adverse effect on the condition (financial or other), results of
operations or business of the Company and its subsidiaries taken as a whole.
(v) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended (the "1940 ACT"), or is subject to regulation as an "investment
company" under the 1940 Act.
9. CONDITIONS TO THE DEALER-MANAGER'S OBLIGATIONS. Xxxxxx
Brothers' obligation to act as Dealer-Manager shall at all times be subject to
the performance by the Company in all material respects of its obligations
herein and to the following additional conditions
(a) At all times from the Commencement Date to and including the
date on which the Company makes issuance of New Notes for validly tendered Notes
that it has accepted in accordance with the terms of the Exchange Offer (the
"EXCHANGE DATE"), the Company's representations and warranties contained herein
shall be true and correct in all material respects and the Company shall have
performed in all material respects all of the agreements contained in this
Agreement and as set forth in the Exchange Offer and Solicitation Materials
theretofore required by it to have been performed; and Xxxxxx Brothers shall
have received certificates to that effect, dated each of the Commencement Date
and the Exchange Date, signed by the Chief Executive Officer or the Chief
Financial Officer of the Company. The Company acknowledges that Xxxxxx Brothers'
agreement to act, or to continue to act, as Dealer-Manager at a time when it
knows or should know that any such representation, warranty and agreement is or
may be untrue or incorrect or not performed, as the case may be, in a material
respect shall be without prejudice to its right subsequently to cease so to act
by reason of such untruth, incorrectness or nonperformance, as the case may be.
(b) No stop order or restraining order shall have been issued
and no action, lawsuit, claim or governmental or administrative proceeding shall
have been commenced or, to the Company's knowledge, threatened with respect to
the Exchange Offer or Solicitation or the other Transactions before any court,
agency or other governmental regulatory body of any jurisdiction that Xxxxxx
Brothers, in good faith after consultation with counsel, believes renders it
inadvisable for Xxxxxx Brothers to continue to act hereunder as Dealer-Manager.
(c) The Company will furnish to Xxxxxx Brothers on the date
hereof and on the Exchange Date opinions of LeBoeuf, Lamb, Xxxxxx & XxxXxx LLP
and of Xxxx Xxxxxxx, Esq., counsel to the Company, addressed to Xxxxxx Brothers,
covering the matters previously agreed.
(d) On the date hereof and the Exchange Date Xxxxxx Brothers
shall have received letters from KPMG LLP, dated respectively the date hereof
and the Exchange Date and addressed to Xxxxxx Brothers, confirming that they are
independent certified public accountants
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within the meaning of the Securities Act and the applicable published Rules and
Regulations, and stating, as of the date of such letter (or, with respect to
matters involving changes or developments since the respective dates as of which
specified financial information is given or incorporated in the Prospectus as of
a date not more than five days prior to the date of such letter), the
conclusions and findings of such firm with respect to the financial information
and other matters covered by its letter delivered to you concurrently with the
execution of this Agreement, and, with respect to the letter delivered on the
Exchange Date, confirming the conclusions and findings set forth in such prior
letter.
(e) At the date hereof and the Exchange Date, the Company's
senior debt shall have a rating of at least Baa3 by Xxxxx'x Investors Services,
Inc. and BBB- by Standard & Poor's Rating Services. Since the date hereof, there
shall not have occurred any downgrading with respect to any debt securities of
the Company or any of its subsidiaries by any "nationally recognized statistical
rating organization" as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Securities Act or any public announcement that any such
organization has under surveillance or review its rating of any such debt
securities (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading of such rating).
(f) All opinions, letters and certificates required to be
delivered pursuant to the terms hereof shall be in a form and substance
reasonably satisfactory to counsel for Xxxxxx Brothers.
10. ADDITIONAL AGREEMENTS. In addition to the other agreements
of the Company contained elsewhere in this Agreement, the Company hereby agrees
and acknowledges, as applicable, that:
(a) It will advise Xxxxxx Brothers promptly of any of the
following: (i) the occurrence of any event which may cause the Company to
withdraw, terminate or cancel the Exchange Offer and Solicitation or would
permit the Company to exercise any right not to exchange Notes validly tendered
in the Exchange Offer and Solicitation, (ii) the occurrence of any event or the
discovery of any fact, the occurrence or existence of which it believes would
require the making of any material change in the Exchange Offer and Solicitation
Materials then being used or would cause any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material respect,
(iii) any proposal or requirement to amend or supplement the Exchange Offer and
Solicitation Materials or to make any other filing pursuant to any applicable
law, regulation or other rule, (iv) the issuance by the Commission or any other
governmental or regulatory agency or authority of any comment or order
concerning the Exchange Offer and Solicitation, (v) any material development in
connection with the Exchange Offer and Solicitation or the other transactions
contemplated by the Offer to Exchange or (vi) any other information relating to
the Exchange Offer and Solicitation which Xxxxxx Brothers may from time to time
reasonably request.
(b) In the event that the Company is required, or considers it
advisable, to amend or supplement the Exchange Offer and Solicitation Materials
or make any additional filings with any governmental or regulatory agency or
authority, then it shall not make such amendment or supplement or filing without
Xxxxxx Brothers' prior approval, which shall not be unreasonably withheld.
10
(c) It will file and disseminate, as required, any necessary
amendments or supplements to the Exchange Offer and Solicitation Materials and
other documents that are filed with any governmental or regulatory agency or
authority relating to the Exchange Offer and Solicitation, and, if there is any
such filing, it will promptly furnish to Xxxxxx Brothers an accurate and
complete copy of each such amendment or supplement upon the filing thereof.
(d) It will comply with the Securities Act and Exchange Act
relating to the Exchange Offer and Solicitation in the future, to the extent
applicable.
(e) It will perform the agreements and obligations it has that
are set forth in or contemplated by the Exchange Offer and Solicitation
Materials, including, but not limited to, accepting for exchange Notes that have
been validly tendered and not withdrawn in accordance with and subject to the
terms and conditions of the Exchange Offer, duly executing and delivering to the
Trustee the New Indenture and furnishing the Trustee any officers' certificates
or other documents required or reasonably requested by the Trustee in connection
with the execution and delivery of the New Indenture by the Trustee, and issuing
the New Notes, pursuant to the New Indenture, in exchange for such Notes that
have been duly tendered for exchange.
(f) The Dealer-Manager, with the prior written consent of the
Company, which consent shall not be unreasonably withheld, and at the
Dealer-Manager's expense, may place an announcement in any newspapers and
periodicals as it may choose, stating that Xxxxxx Brothers is acting as
Dealer-Manager in connection with the Exchange Offer and Solicitation.
(g) In performing the services contemplated by this Agreement,
Xxxxxx Brothers will be relying on the information furnished by the Company and
its officers, attorneys and other agents and information available from
generally recognized public sources without independent verification.
11. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company hereby agrees to hold harmless and indemnify
Xxxxxx Brothers and its affiliates and any officer, director, employee or agent
of Xxxxxx Brothers or any such affiliates and any person controlling (within the
meaning of Section 20(a) of the Exchange Act) Xxxxxx Brothers or any such
affiliates (collectively, the "INDEMNIFIED PERSONS") from and against any loss,
claim, damage, liability and expense whatsoever (as incurred or suffered, and
including, but not limited to, any and all reasonable legal or other expenses
incurred in connection with investigating, preparing to defend or defending any
lawsuit, claim or other proceeding, commenced or threatened, whether or not
resulting in any liability, which reasonable legal or other expenses shall be
reimbursed by the Company, promptly after receipt of any invoices therefor from
Xxxxxx Brothers or such other Indemnified Person), (i) arising out of or based
upon (a) any untrue statement or alleged untrue statement of a material fact
contained in the Exchange Offer and Solicitation Materials or in any other
solicitation material used by the Company or authorized by it for use in
connection with the Exchange Offer or Solicitation, or arising out of or based
upon the omission or alleged omission to state in any such document a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading (other than statements or omissions made in reliance upon and in
conformity with the Supplied Information), (b) any withdrawal, termination or
cancellation by the Company of, or failure by the Company to make
11
or consummate, the Exchange Offer or Solicitation, (c) any actions taken or
omitted to be taken by an Indemnified Person pursuant to this Agreement or with
the consent of the Company or in conformity with actions taken or omitted to be
taken by the Company or (d) any breach by the Company of any representation or
warranty, or any failure by the Company to comply with any agreement contained
in this Agreement or (ii) arising out of, relating to or in connection with or
alleged to arise out of, relate to or be in connection with the Exchange Offer
or Solicitation, any of the other Transactions or the performance of Xxxxxx
Brothers' services as Dealer-Manager. However, the Company will not be obligated
to indemnify an Indemnified Person for any loss, claim, damage, liability or
expense pursuant to clause (i)(b), (i)(c) or (ii) of the preceding sentence,
which has been determined in a final judgment by a court of competent
jurisdiction to have resulted directly from the bad faith, willful misconduct or
gross negligence on the part of such Indemnified Person. The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have
to the Indemnified Person or to any director, officer, employee or controlling
person of the Indemnified Person.
(b) If any lawsuit, claim or proceeding is brought against any
Indemnified Person in respect of which indemnification may be sought against the
Company pursuant to this Section 11, such Indemnified Person shall promptly
notify the Company in writing of the commencement of such lawsuit, claim or
proceeding after receipt by such Indemnified Person of notice of such lawsuit,
claim or proceeding; provided, however, that the failure to so notify the
Company shall not relieve the Company from any obligation or liability which it
may have under this Section 11 except to the extent that it has been prejudiced
in any material respect by such failure and in any event shall not relieve the
Company from any other obligation or liability which it may have to such
Indemnified Person otherwise than under this Section 11. In case any such
lawsuit, claim or proceeding shall be brought against any Indemnified Person and
such Indemnified Person shall notify the Company in writing of the commencement
of such lawsuit, claim or proceeding, the Company shall be entitled to
participate in such lawsuit, claim or proceeding, and, after written notice from
the Company to such Indemnified Person, to assume the defense of such lawsuit,
claim or proceeding with counsel of its choice at its expense; provided,
however, that such counsel shall be satisfactory to the Indemnified Person in
the exercise of its reasonable judgment. Notwithstanding the election of the
Company to assume the defense of such lawsuit, claim or proceeding, such
Indemnified Person shall have the right to employ separate counsel and to
participate in the defense of such lawsuit, claim or proceeding, and the Company
shall bear the fees, costs and expenses of such separate counsel (and shall pay
such fees, costs and expenses promptly after receipt of any invoice therefor
from Xxxxxx Brothers) (provided that with respect to any single lawsuit, claim
or proceeding or with respect to several lawsuits, claims or proceedings
involving substantially similar legal claims, the Company shall not be required
to bear the fees, costs and expenses of more than one such counsel in addition
to any local counsel) if (i) the use of counsel chosen by the Company to
represent such Indemnified Person would present such counsel with a conflict of
interest; (ii) the defendants in, or targets of, any such lawsuit, claim or
proceeding include both an Indemnified Person and the Company, and such
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it or to other Indemnified Persons which are different
from or in addition to those available to the Company (in which case the Company
shall not have the right to direct the defense of such action on behalf of the
Indemnified Person); (iii) the Company shall not have employed counsel
satisfactory to such Indemnified Person, in the exercise of such Indemnified
Person's reasonable judgment, to represent such Indemnified Person within a
reasonable time after notice of the institution of any such lawsuit, claim or
proceeding; or (iv) the Company shall authorize such Indemnified Person to
employ separate counsel at the expense of the Company.
12
The foregoing indemnification commitments shall apply whether or not the
Indemnified Person is a formal party to any such lawsuit, claim or proceeding.
The Company shall not be liable for any settlement of any lawsuit, claim or
proceeding effected without its consent (which consent will not be unreasonably
withheld), but if settled with such consent, or if there be a final judgment of
the plaintiff in any such action, the Company agrees, subject to the provisions
of this Section 11, to indemnify the Indemnified Person from and against any
loss, damage or liability by reason of such settlement or final judgment, as the
case may be. The Company agrees to notify Xxxxxx Brothers promptly, or cause
Xxxxxx Brothers to be notified promptly, of the assertion of any lawsuit, claim
or proceeding against the Company, any of its officers or directors or any
person who controls any of the foregoing within the meaning of Section 20(a) of
the Exchange Act, arising out of or relating to the Exchange Offer and
Solicitation. The Company further agrees that any settlement of a lawsuit, claim
or proceeding against it arising out of or relating to the Exchange Offer or
Solicitation or the consent to the entry of any judgment with respect to any
pending or threatened lawsuit, claim or proceeding in respect of which
indemnification or contribution may be sought under this Agreement (whether or
not the Indemnified Person is an actual or potential party to such claim or
action) shall include an explicit and unconditional release from the parties
bringing such lawsuit, claim or proceeding of all Indemnified Persons who are or
could have been a party to such lawsuit, claim or proceeding if such Indemnified
Persons could have sought indemnification hereunder, which release shall be
satisfactory to Xxxxxx Brothers.
(c) The Company, on the one hand, and Xxxxxx Brothers, on the
other hand, agree that if any indemnification sought by any Indemnified Person
pursuant to this Section 11 is unavailable or is insufficient for any reason,
other than a reason specified in the second sentence of this Section 11, then
(whether or not Xxxxxx Brothers is the Indemnified Person) the Company, on the
one hand, and Xxxxxx Brothers, on the other hand, shall contribute to the
losses, claims, damages, liabilities and expenses for which such indemnification
is held unavailable (i) in such proportion as is appropriate to reflect the
relative benefits to the Company, on one hand, and Xxxxxx Brothers, on the other
hand, in connection with the matter giving rise to such losses, claims, damages,
liabilities and expenses, or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in the
foregoing clause (i) but also the relative faults of the Company, on the one
hand, and Xxxxxx Brothers, on the other, in connection with the matter giving
rise to such losses, claims, damages, liabilities and expenses, and other
equitable considerations, subject to the limitation that in any event Xxxxxx
Brothers' aggregate contribution to all losses, claims, damages, liabilities and
expenses with respect to which contribution is available hereunder shall not
exceed the amount of fees actually received by Xxxxxx Brothers pursuant to this
Agreement. It is hereby agreed by the parties hereto that the relative benefits
to the Company, on the one hand, and Xxxxxx Brothers, on the other hand, with
respect to the Exchange Offer and Solicitation and the other Transactions shall
be deemed to be in the same proportion as (i) the aggregate value of the
consideration delivered or proposed to be delivered to the beneficial holders of
the Notes by the Company pursuant to the Exchange Offer and Solicitation and the
other Transactions (whether or not the Exchange Offer and Solicitation and the
other Transactions are consummated) bears to (ii) the fees payable to Xxxxxx
Brothers with respect to the Exchange Offer and Solicitation and the other
Transactions pursuant to Section 5. It is further agreed that the relative
faults of the Company, on the one hand, and Xxxxxx Brothers, on the other hand,
(i) in the case of an untrue or alleged untrue statement of a material fact or
an omission or alleged omission to state a material fact, shall be determined by
reference to, among other things, whether such statement or omission relates to
13
information supplied by the Company (including for this purpose its affiliates
and subsidiaries) or by Xxxxxx Brothers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission and (ii) in the case of any other action or omission,
shall be determined by reference to, among other things, whether such action or
omission was taken or omitted to be taken by the Company (including for this
purpose its affiliates and subsidiaries) or Xxxxxx Brothers and the parties'
relative intent, knowledge, access to information and opportunity to prevent
such action or omission. The amount paid or payable by an Indemnified Person as
a result of the losses, claims, damages, liabilities or expenses referred to in
this Section shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified
Person in connection with investigating, preparing to defend or defending any
such action or claim.
(d) In the event an Indemnified Person appears as a witness in
any action brought by or on behalf of or against the Company (other than an
action brought by the Company against any Indemnified Person or an action
brought by an Indemnified Person against the Company) in which such Indemnified
Person is not named as defendant, the Company agrees to reimburse such
Indemnified Person for all reasonable expenses incurred by it in connection with
such Indemnified Person's appearing and preparing to appear as such a witness,
including, without limitation, the reasonable fees and disbursements of its
legal counsel.
(e) The Company also agrees that no Indemnified Person shall
have any liability to the Company or any person asserting claims on behalf of or
in right of the Company (including for this purpose its affiliates and
subsidiaries) in connection with this Agreement or Xxxxxx Brothers' acting as
Dealer-Manager hereunder, except for liabilities determined in a final judgment
by a court of competent jurisdiction to have resulted directly from any acts or
omissions undertaken or omitted to be taken by such Indemnified Person through
its or his, as the case may be, bad faith, gross negligence or willful
misconduct.
(f) The foregoing rights to indemnification and contribution
shall be in addition to any other rights which Xxxxxx Brothers and the other
Indemnified Persons may have against the Company under common law or otherwise.
12. INDEMNIFICATION, REPRESENTATIONS AND WARRANTIES TO REMAIN
OPERATIVE. The rights to indemnification, contribution and exculpation contained
in Section 11 and the representations, warranties and agreements of the Company
set forth in this Agreement shall survive and remain operative and in full force
and effect regardless of (a) the failure to commence the Exchange Offer and
Solicitation, the consummation of the Exchange Offer and Solicitation, any
withdrawal, termination or cancellation of the Exchange Offer and Solicitation
for any reason whatsoever, the exchange of Notes pursuant to the Exchange Offer
and Solicitation or any withdrawal by Xxxxxx Brothers pursuant to Section 4, (b)
any investigation made by or on behalf of any party hereto or any person
controlling any party hereto within the meaning of Section 20(a) of the Exchange
Act and (c) the completion of Xxxxxx Brothers' services under this Agreement.
13. TERMINATION. This Agreement shall terminate upon the
earliest to occur of (a) the consummation or the termination, withdrawal or
cancellation of the Exchange Offer and Solicitation by the Company, (b) the
withdrawal by Xxxxxx Brothers as the Dealer-Manager pursuant to Section 4 hereof
and (c) the date that is one year from the date hereof; provided that, Sections
3, 5, 6, 8, 11-22 hereof shall survive the termination of this Agreement.
14
14. NOTICES. All notices and other communications required or
permitted to be provided under this Agreement shall be in writing and shall be
deemed to have been duly given if (a) delivered personally, (b) sent by
facsimile with immediate telephonic confirmation or (c) sent by registered or
certified mail, return receipt requested, postage prepaid, to the parties hereto
as follows:
(a) if to Xxxxxx Brothers:
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Liability Management Group, 5th Floor
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Xx.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(b) if to the Company:
Fidelity National Title Group, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
LeBoeuf, Lamb, Xxxxxx & XxxXxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
15. MODIFICATIONS. This Agreement may not be amended or modified
except in writing signed by each of the parties hereto.
15
16. CONSENT TO JURISDICTION; FORUM SELECTION; APPOINTMENT OF
AGENT FOR SERVICE OF PROCESS; WAIVER OF JURY TRIAL.
(a) The Company hereby submits to the jurisdiction of the courts
of the State of New York and the courts of the United States of America located
in the State of New York over any suit, action or proceeding with respect to
this Agreement or the transactions contemplated hereby.
(b) Any action, lawsuit or proceeding with respect to this
Agreement or the transactions contemplated hereby may be brought only in the
courts of the State of New York or the courts of the United States of America
located in the State of New York, in each case, located in the Borough of
Manhattan, City of New York, State of New York. The Company waives any objection
that it may have to the venue of such action, lawsuit or proceeding in any such
court or that such action, lawsuit or proceeding in such court was brought in an
inconvenient court and agrees not to plead or claim the same.
(c) Each party hereby agrees that service of process by
registered mail to such party at the address set forth above shall be effective
service of process in any such suit, action or proceeding referred to in Section
16(a).
(d) Any right to trial by jury with respect to any action,
lawsuit, claim or other proceeding arising out of or relating to this Agreement
or the services to be rendered by Xxxxxx Brothers hereunder is expressly and
irrevocably waived.
17. GOVERNING LAW. The terms of this Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York,
applicable to contracts made and to be performed therein.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
such counterparts, when so executed and delivered, shall be deemed to be an
original, and all of such counterparts, taken together, shall constitute one and
the same Agreement.
19. SEVERABILITY. If any term or provision of this Agreement is
deemed or rendered invalid or unenforceable in any jurisdiction, then such term
or provision shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or affecting the validity
or enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction, which shall remain in full force and effect.
20. SUCCESSORS. This Agreement is made solely for the benefit of
Xxxxxx Brothers, the Company and to the extent expressly set forth herein, the
Indemnified Persons and their executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by virtue of this
Agreement.
21. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement by and among the parties hereto with respect to the subject matter
thereof and supersedes all prior agreements and undertakings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof.
16
22. HEADINGS. The headings to sections contained in this
Agreement are included for ease of reference only, and the parties hereto agree
that they are not to be given substantive meaning or otherwise affect each
party's rights and duties hereunder.
[The rest of this page has been left blank intentionally; the
signature page follows.]
17
Please indicate Xxxxxx Brothers' willingness to act as
Dealer-Manager and Xxxxxx Brothers' acceptance of the foregoing provisions by
signing in the space provided below for that purpose and returning to us a copy
of this letter so signed, whereupon this letter and Xxxxxx Brothers' acceptance
shall constitute a valid and legally binding agreement between us.
Very truly yours,
FIDELITY NATIONAL TITLE GROUP, INC.
By:
-------------------------------------
Name:
Title:
Accepted and agreed as of the date first above written:
XXXXXX BROTHERS INC.
By:
-------------------------------------
Authorized Representative
18
EXHIBIT A
OFFER TO EXCHANGE
[Attached]
EXHIBIT B
LETTER OF TRANSMITTAL
[Attached]
