EXHIBIT 10.61.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment"),
dated as of April 9, 2004, is entered into among FIDELITY NATIONAL FINANCIAL,
INC., a Delaware corporation (the "Borrower"), the lenders listed on the
signature pages hereof as Lenders (the "Lenders"), and BANK OF AMERICA, N.A., as
Administrative Agent (the "Administrative Agent").
BACKGROUND
A. The Borrower, the Lenders, and the Administrative Agent are
parties to that certain Credit Agreement, dated as of November 4, 2003 (the
"Credit Agreement"). The terms defined in the Credit Agreement and not otherwise
defined herein shall be used herein as defined in the Credit Agreement.
B. The Borrower has requested an amendment to the Credit
Agreement.
C. The Lenders and the Administrative Agent hereby agree to amend
the Credit Agreement, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the Borrower, the
Lenders, and the Administrative Agent covenant and agree as follows:
1. AMENDMENTS.
(a) Section 5.05(e) of the Credit Agreement is hereby amended to
read as follows:
(e) Neither the Borrower nor any of its Subsidiaries has
any Off-Balance Sheet Liabilities except those permitted pursuant to
Section 7.04(n).
(b) Section 7.04 of the Credit Agreement is hereby amended to read
as follows:
7.04 LIMITATION ON INDEBTEDNESS. The Borrower shall not,
and shall not permit any of its Subsidiaries to, create, incur, assume,
suffer to exist, or otherwise become or remain directly or indirectly
liable with respect to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness consisting of Contingent Obligations in
respect of obligations of other Persons in an aggregate amount not to
exceed at any one time outstanding 2% of Net Worth;
1
(c) Indebtedness existing on the Closing Date and
identified on Schedule 7.04;
(d) Indebtedness incurred in the ordinary course of
business in connection with (i) Capital Leases which are non-recourse
to the Borrower or its Subsidiaries and (ii) other Capital Leases in an
aggregate amount not to exceed at any one time outstanding 2% of Net
Worth;
(e) Obligations under Swap Contracts entered into for
hedging purposes;
(f) Indebtedness of the Borrower and its Subsidiaries
having a maturity of 92 days or less representing borrowings from a
bank or banks with which the Borrower or such Subsidiary has a
depository relationship, which borrowings shall be fully secured by
Cash Equivalents purchased by the Borrower or such Subsidiary with the
proceeds of such borrowings;
(g) Obligations incurred in the ordinary course of
business in connection with "1031 exchange" or relocation service
transactions and secured by the properties which are the subject of
such transactions;
(h) Indebtedness of a Person that becomes a Subsidiary
after the Closing Date pursuant to a Permitted Acquisition, which
Indebtedness existed prior to such Acquisition and was not created in
contemplation thereof;
(i) so long as no Default or Event of Default has
occurred and is continuing at the time of incurrence thereof or after
giving effect thereto, unsecured Indebtedness of the Borrower; provided
that such Indebtedness (i) shall mature no earlier than November 5,
2008, (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 a
default under this Agreement) prior to November 5, 2008, (iii) has
covenants, defaults and other terms and conditions (other than interest
rates) no more restrictive than those contained in this Agreement, and
(iv) at any time a Guaranty Trigger Event has occurred and is
continuing, shall not exceed, when aggregated with all other
Indebtedness outstanding under this clause (i), $700,000,000, provided
that any Indebtedness permitted to be incurred pursuant to this clause
(i) prior to a Guaranty Trigger Event shall continue to be permitted
and may remain outstanding at such time as a Guaranty Trigger Event has
occurred and is continuing;
(j) so long as no Default or Event of Default has
occurred and is continuing at the time of incurrence thereof, other
Indebtedness of the Borrower and its Subsidiaries (excluding Synthetic
Lease Obligations) in an aggregate principal amount not to exceed at
any one time outstanding 3% of Net Worth;
(k) obligations consisting of guarantees of Indebtedness
of insurance agents of an Insurance Subsidiary in an aggregate amount
not to exceed at any one time outstanding 2% of Net Worth;
2
(l) Indebtedness of the Borrower or a Subsidiary owing to
the Borrower or another Subsidiary, provided that the payment of such
Indebtedness by the Borrower or a Subsidiary that is a Subsidiary
Guarantor is subordinate to the payment of the Obligations pursuant to
Section 2.8 of the Subsidiary Guaranty or otherwise in a manner
satisfactory to the Administrative Agent;
(m) Non-Recourse Debt of the Designated Subsidiaries;
(n) so long as no Default or Event of Default has
occurred and is continuing at the time of incurrence thereof, Synthetic
Lease Obligations of the Borrower, provided the aggregate Attributable
Indebtedness in respect thereof shall not exceed at any one time
outstanding 3% of Net Worth; and
(o) any extensions, renewals or refinancings of the
foregoing on terms substantially similar to, or more favorable to the
Borrower than (but not less favorable to the Lenders), the terms of the
Indebtedness being extended, renewed or refinanced.
(c) Exhibit E, Compliance Certificate, is hereby amended to be in
the form of Exhibit E hereto.
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By
its execution and delivery hereof, the Borrower represents and warrants that, as
of the date hereof:
(a) the representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct on and as of the
date hereof as made on and as of such date;
(b) no event has occurred and is continuing which constitutes a
Default or an Event of Default;
(c) (i) the Borrower has full power and authority to execute and
deliver this First Amendment, (ii) this First Amendment has been duly executed
and delivered by the Borrower, and (iii) this First Amendment 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 of this First
Amendment or the Credit Agreement, as amended hereby, nor the consummation of
any transactions contemplated herein or therein, will conflict with any Law or
Organization Documents of the Borrower, or any indenture, agreement or other
instrument to which the Borrower or any of its properties are subject; and
3
(e) no authorization, approval, consent, or other action by,
notice to, or filing with, any governmental authority or other Person (including
the board of directors of the Borrower) is required for the execution, delivery
or performance by the Borrower of this First Amendment.
3. CONDITIONS TO EFFECTIVENESS. This First Amendment shall be
effective upon satisfaction or completion of the following:
(a) the Administrative Agent shall have received counterparts of
this First Amendment executed by the Required Lenders;
(b) the Administrative Agent shall have received counterparts of
this First Amendment executed by the Borrower; and
(c) 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.
4. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this First Amendment, 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 affected and
amended hereby.
(b) The Credit Agreement, as amended by the amendments referred to
above, shall remain in full force and effect and is hereby ratified and
confirmed.
5. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on
demand all costs and expenses of the Administrative Agent in connection with the
preparation, reproduction, execution and delivery of this First Amendment 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).
6. EXECUTION IN COUNTERPARTS. This First Amendment 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 First Amendment, 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.
7. GOVERNING LAW; BINDING EFFECT. This First Amendment shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within such state,
provided that each party shall
4
retain all rights arising under federal law, and shall be binding upon the
parties hereto and their respective successors and assigns.
8. HEADINGS. Section headings in this First Amendment are
included herein for convenience of reference only and shall not constitute a
part of this First Amendment for any other purpose.
9. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS
FIRST AMENDMENT, AND THE OTHER LOAN DOCUMENTS 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
5
IN WITNESS WHEREOF, this First Amendment is executed as of the date
first set forth above.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ XXXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President - Treasurer
6
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ XXX X. XXXXXX
------------------------------------
Name: Xxx X. Xxxxxx
Title: Managing Director
7
BANK OF AMERICA, N.A., as a Lender and
Swing Line Lender
By: /s/ XXX X. XXXXXX
------------------------------------
Name: Xxx X. Xxxxxx
Title: Managing Director
8
JPMORGAN CHASE BANK, as a Lender and
Co-Syndication Agent
By: /s/ XXXXXXXX XXXXXXX, XX.
------------------------------------
Name: Xxxxxxxx Xxxxxxx, Xx.
Title: Vice President
9
U.S. BANK NATIONAL ASSOCIATION, as a
Lender and Co-Syndication Agent
By: /s/ XXXXXXX X. XXXX
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
10
SUNTRUST BANK, as a Lender and
Co-Syndication Agent
By: /s/ XXXXXXXX XXXXX
-------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Director
11
WACHOVIA BANK, NATIONAL ASSOCIATION, as a
Lender and Co-Syndication Agent
By: /s/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
12
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Lender and Co-Managing Agent
By: /s/ XXXXX XXXXXXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Senior Vice President
By: /s/ XXXXX XXXXXXX
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
00
XXXXX XXXX XX XXXXXXXXXX, N.A., as a
Lender and Co-Managing Agent
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
14
BANK OF THE WEST, as a Lender and
Co-Managing Agent
By: /s/ XXXX XXXXXXXX
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
15
COMERICA BANK, as a Lender and
Co-Managing Agent
By: /s/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: First Vice President
16
XXXXXX XXXXXXX FINANCING, INC.
(formerly known as BMO Xxxxxxx Xxxxx
Financing, Inc.)
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
17
SUMITOMO MITSUI BANKING CORP., NEW YORK,
as a Lender and Co-Managing Agent
By: /s/ XXXXXX X. XXXXX III
-------------------------------------
Name: Xxxxxx X. Xxxxx III
Title: Senior Vice President
18
MIZUHO CORPORATE BANK, LTD., as a Lender
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
19
KEYBANK NATIONAL ASSOCIATION, as a Lender
By: /s/ XXXX X. XXXXX
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
20
FIFTH THIRD BANK, as a Lender
By: /s/ XXXX XXXXXX
-------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
21
COMPASS BANK, as a Lender
By: /s/ XXXX X. XXXXXXX
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
22
CITIBANK (WEST), FSB, as a Lender
By: /s/ XXXXXX X. XXXX
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
23
BANK ONE, NA, as a Lender
By: /s/ XXXXXX X. XXXX
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
24
NATIONAL CITY BANK, as a Lender
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
00
XXXXX XXX XXXXXXXXXX XXXX, XXX., XXX XXXX
BRANCH, as a Lender
By: /s/ MING XXXXX XXX
------------------------------------
Name: Ming Xxxxx Xxx
Title: SVP & General Manager
26
XXX XXX COMMERCIAL BANK, LTD. NEW YORK
AGENCY, as a Lender
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
27
BANK OF HAWAII, as a Lender
By: /s/ XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx XxXxxxx
Title: Vice President
28
WASHINGTON MUTUAL BANK, as a Lender
By: /s/ XXXXXXXXX RECORDS
------------------------------------
Name: Xxxxxxxxx Records
Title: Credit Manager, A.V.P.
29
LA SALLE BANK NATIONAL ASSOCIATION, as a
Lender and Co-Managing Agent
By: /s/ WILL X. XXXXX
------------------------------------
Name: Will X. Xxxxx
Title: Commercial Banking Officer
30
FLEET NATIONAL BANK, as a Lender
By: /s/ XXX X. XXXXXX
------------------------------------
Name: Xxx X. Xxxxxx
Title: Managing Director
31
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ XXXXX X. STAMPKOWSKI
-----------------------------------
Name: Xxxxx X. Stampkowski
Title: Vice President
32
THE INTERNATIONAL COMMERCIAL BANK OF
CHINA, LOS ANGELES BRANCH, as a Lender
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
33