EXHIBIT 10.2
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November 10, 1998
Mr. X. Xxxxx Xxxx
Vice President and Treasurer
Chicago Title Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
Pursuant to our discussions Union Bank of California, N.A. (the Bank) is
pleased to offer a credit facility to Chicago Title Corporation (the
Borrower), it being understood that Bank shall make advances available on
the following terms and conditions:
The terms of the facility are:
1. Borrower Chicago Title Corporation
Chicago, Illinois
2. Amount: The aggregate amount outstanding shall not exceed
$20,000,000.00.
3. Purpose: For general corporate purposes.
4. Evidence of Indebtedness: Promissory Note (Base Rate) to be signed by
Borrower in the form of Exhibit A hereto (the
Note).
5. Expiration: This facility will expire on December 31, 1999
(Expiration Date).
6. Interest Rate: The unpaid principal balance of all loans shall, at
Borrower's option, bear interest at a rate per
annum equal to:
(a) For any day, a rate per annum equal to the
higher of (a) the Federal Funds Rate for such
day plus one half of one percent (0.50%) or
(b) the Reference Rate (hereinafter defined)
for such day. Reference Rate means the rate
per annum set by Bank from time to time and
called its Reference Rate. Interest on each
advance bearing interest at the Reference
Rate shall be calculated on the basis of a
year of 360 days and counting actual days
elapsed, and shall be payable quarterly on
the last day of each quarter.
(c) LIBOR (London Inter Bank Offered Rate)
as determined by Bank plus one-quarter of one
percent (0.25%) per annum (the LIBOR Rate).
Borrowings under this option shall be on an
as available basis for periods of one, two,
three, or six months (each, an Interest
Period) selected by Borrower. Interest on
borrowings under this option shall be payable
quarterly on the last day of each quarter and
on the Base Rate Maturity Date, and shall be
calculated on actual days elapsed based on a
360 day year.
In the event that deposits in the amount and for
the term of the selected Interest Period are
unavailable to Bank, or that by reason of
circumstances affecting the Eurodollar markets
generally, adequate and reasonable means do not
exist for ascertaining the interest rate applicable
to any loans bearing interest at the LIBOR Rate for
the selected Interest Period, Borrower shall either
repay such loan or direct Bank to convert such loan
into a loan bearing interest at a rate and for an
Interest Period which is available on the last day
of the then current Interest Period, said choice
between repayment or conversion to be solely at
Borrower's option.
If it shall become unlawful (or contrary to any
direction from or requirement of any governmental
authority having jurisdiction over the Bank) for
Bank to honor its commitment hereunder or continue
to fund or maintain any loan or to perform its
obligations hereunder, then this commitment shall
thereupon be canceled and, if it shall become
unlawful for Bank to continue to fund or maintain
any loan, Borrower shall prepay without premium or
penalty such loan together with accrued interest
thereon on the last day of the then current
Interest Period with respect to each such loan or
on such earlier date as may be required by law.
Each request by Borrower for a loan bearing
interest at the LIBOR Rate must be received by Bank
no later than 10:00 a.m. Pacific time on the
Business Day which is three (3) days prior to the
day it is to be funded. A request for a Federal
Funds Rate or a Reference Rate loan must be
received by Bank no later than 10:00 a.m. Pacific
time on the day it is to be funded.
7. Draw Maturities: No loan hereunder may mature later than the
Expiration Date.
8. Prepayment: Prepayments will be permitted only with prior
consent of Bank and in accordance with the terms of
the Note.
9. Commitment Fee: Borrower will pay a fee of ten (10) basis points
per annum of the unused portion of the amount
available hereunder, payable in arrears at the end
of each calendar quarter.
10. Covenants: Until the Expiration Date or termination of the of
the commitment and thereafter until all obligations
of the Borrower to the Bank have been satisfied and
discharged in full, the Borrower agrees that it,
with respect to the following covenants will:
(a) Consolidated Net Worth. Not permit
Consolidated Net Worth at the close of any fiscal
quarter to be less than $275,000,000; and
(b) Leverage Ratio. Not permit the Leverage Ratio
at the close of any fiscal quarter to be greater
than 0.45 to 1.0; and
(c) Interest Expense Coverage Ratio. Not permit the
ratio during any period of six consecutive fiscal
quarters of Earnings Before Interest and Taxes to
Interest Expense to be less than 2.5 to 1.0.
Capitalized covenant terms shall have the meaning
as defined in that certain Revolving Loan and
Credit Agreement entered into between Chicago Title
and Trust Company and certain Commercial Lending
Institutions and Lasalle National Bank as
Administrative Agent dated as of May 29, 1998, as
such defined terms are in effect as of the date of
this credit facility letter agreement. Any
violation of any of the above described covenants
shall be an Event of Default under the Note.
11. Cancellation: Borrower may cancel this facility at any time with
five (5) days written notice to Bank. Bank may
cancel this commitment upon the occurrence of a
Default as defined in the Note, such cancellation
to be effective upon the giving of written notice
to Borrower. Upon any such cancellation, Borrower
will pay to Bank any and all amounts due to Bank
hereunder, including without limitation any
Prepayment amounts which may be due under the Note.
Xxxxxxxx understands and agrees that this facility is not assignable by
Xxxxxxxx. Bank reserves the right to sell participations in this facility.
Your signing and returning these documents constitutes your agreement to
the terms and conditions of this credit facility. This offer expires on
December 31,1998, unless a signed copy of this letter, the enclosed
Promissory Note (Base Rate) and other documents are returned to my
attention by then. If the Bank does not have on file a current borrowing
resolution, a copy of the Borrower;s filed Articles of Incorporation and
any Amendments thereto and certificate of incumbency for authorized signers
for borrowings, please provide these at the time you return the signed
letter and Promissory Note.
Yours truly,
UNION BANK OF CALIFORNIA, N.A.
By: /S/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Vice President
Accepted and agreed to this 18th day of November, 1998.
CHICAGO TITLE CORPORATION
By: /S/ Xxxxx X. Xxxxxxxxx
Its: EVP, CFO and CAO
By: /S/ X. Xxxxx Xxxx
Its: VP and Treasurer
PROMISSORY NOTE
(BASE RATE)
CHICAGO TITLE CORPORATION
Borrower Address Office Loan Number
000 Xxxxx Xxxxx Xxxxxx Maturity Date $20,000,000.00
Chicago, Illinois 60601-3294 December 31, 1999
Los Angeles, California Date: January 1, 1999 $20,000,000.00
FOR VALUE RECEIVED, on December 31, 1999, the undersigned ("Debtor")
promises to pay to the order of UNION BANK OF CALIFORNIA, N.A. ("Bank"), as
indicated below, the principal sum of TWENTY MILLION AND NO/100 Dollars ($
20,000,000.00) or so much thereof as is disbursed, together with interest
on the balance of such principal from time to time outstanding, at the per
annum rate or rates and at the times set forth below.
1. INTEREST PAYMENTS. Debtor shall pay interest on the last day of each
calendar quarter (commencing March 31, 1999). Should interest not be paid
when due, it shall become part of the principal and bear interest as herein
provided. All computations of interest under this note shall be made on
the basis of a year of 360 days, for actual days elapsed.
a. BASE INTEREST RATE. At Debtor's option, amounts outstanding
hereunder in increments of at least $10,000 shall bear interest at a
rate, based on an index selected by Debtor, which is 0.25% per annum
in excess of Bank's LIBOR Rate for the Interest Period selected by
Xxxxxx; or
b. FEDERAL FUNDS RATE / REFERENCE RATE. The higher of (a) the 0.50%
per annum in excess of the Bank's Federal Funds Rate, or (b) the
Bank's Reference Rate.
Any Base Interest Rate may not be changed, altered or otherwise
modified until the expiration of the Interest Period selected by
Xxxxxx except as provided in paragraph 4. The exercise of interest
rate options by Debtor shall be as recorded in Bank's records, which
records shall be prima facie evidence of the amount borrowed under
either interest option and the interest rate; provided, however, that
failure of Bank to make any such notation in its records shall not
discharge Debtor from its obligations to repay in full with interest
all amounts borrowed. In no event shall any Interest Period extend
beyond the maturity date of this note.
To exercise this option, Debtor may, from time to time with respect to
principal outstanding on which a Base Interest Rate is not accruing,
and on the expiration of any Interest Period with respect to principal
outstanding on which a Base Interest Rate has been accruing, select an
index offered by Bank for a Base Interest Rate Loan and an Interest
Period by telephoning an authorized lending officer of Bank located at
the banking office identified below prior to 10:00 a.m., Pacific time,
on any Business Day and advising that officer of the selected index,
the Interest Period and the Origination Date selected (which
Origination Date, for a Base Interest Rate Loan based on the LIBOR
Rate, shall follow the date of such selection by no more than three
(3) Business Days).
Bank will mail a written confirmation of the terms of the selection to
Debtor promptly after the selection is made. Failure to send such
confirmation shall not affect Bank's rights to collect interest at the
rate selected. If, on the date of the selection, the index is
unavailable for any reason, the selection shall be void. Bank
reserves the right to fund the principal from any source of funds
notwithstanding any Base Interest Rate selected by Debtor.
c. VARIABLE INTEREST RATE. All principal outstanding hereunder
which is not bearing interest at a Base Interest Rate or the Federal
Funds Rate shall bear interest at the Reference Rate, which rate shall
vary as and when the Reference Rate changes.
At any time prior to the maturity of this note, subject to the
provisions of paragraph 4, below, of this note, Debtor may borrow,
repay and reborrow hereon so long as the total outstanding at any one
time does not exceed the principal amount of this note. Debtor shall
pay all amounts due under this note in lawful money of the United
States at Bank's Risk Management Department, 000 X. Xxxxxxxx Xxxxxx,
X00-000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 Office, or such other office
as may be designated by Bank, from time to time.
2. LATE PAYMENTS. If any payment required by the terms of this note
shall remain unpaid ten days after same is due, at the option of Bank,
Debtor shall pay a fee of $100 to Bank.
3. INTEREST RATE FOLLOWING DEFAULT. In the event of default, at the
option of Bank, and, to the extent permitted by law, interest shall be
payable on the outstanding principal under this note at a per annum rate
equal to two percent (2%) in excess of the interest rate specified in
paragraph 1.b, above, calculated from the date of default until all amounts
payable under this note are paid in full.
4. PREPAYMENT.
a. Amounts outstanding under this note bearing interest at a rate
based on the Reference Rate may be prepaid in whole or in part at any
time, without penalty or premium. Amounts outstanding under this note
bearing interest at a Base Interest Rate may only be prepaid, in whole
or in part provided Bank has received not less than five (5) Business
Days prior written notice of an intention to make such prepayment and
Debtor pays a prepayment fee to Bank in an amount equal to the present
value of the product of: (i) the difference (but not less than zero)
between (a) the Base Interest Rate applicable to the principal amount
which Debtor intends to prepay, and (b) the return which Bank could
obtain if it used the amount of such prepayment of principal to
purchase at bid price regularly quoted securities issued by the United
States having a maturity date most closely coinciding with the
relevant Base Rate Maturity Date and such securities were held by Bank
until the relevant Base Rate Maturity Date ("Yield Rate"); (ii) a
fraction, the numerator of which is the number of days in the period
between the date of prepayment and the relevant Base Rate Maturity
Date and the denominator of which is 360; and (iii) the amount of the
principal so prepaid (except in the event that principal payments are
required and have been made as scheduled under the terms of the Base
Interest Rate Loan being prepaid, then an amount equal to the lesser
of (A) the amount prepaid or (B) 50% of the sum of (1) the amount
prepaid and (2) the amount of principal scheduled under the terms of
the Base Interest Rate Loan being prepaid to be outstanding at the
relevant Base Rate Maturity Date). Present value under this note is
determined by discounting the above product to present value using the
Yield Rate as the annual discount factor.
b. In no event shall Bank be obligated to make any payment or refund
to Debtor, nor shall Debtor be entitled to any setoff or other claim
against Bank, should the return which Bank could obtain under the
above prepayment formula exceed the interest that Bank would have
received if no prepayment had occurred. All prepayments shall include
payment of accrued interest on the principal amount so prepaid and
shall be applied to payment of interest before application to
principal. A determination by Bank as to the prepayment fee amount,
if any, shall be conclusive.
c. Such prepayment fee, if any, shall also be payable if prepayment
occurs as the result of the acceleration of the principal of this note
by Bank because of any default hereunder. If, following such
acceleration, all or any portion of a Base Interest Rate Loan is
satisfied, whether through sale of property encumbered by any security
agreement or other agreement securing this note, at a foreclosure sale
held thereunder or through the tender of payment at any time following
such acceleration, but prior to such a foreclosure sale, then such
satisfaction shall be deemed an evasion of the prepayment conditions
set forth above, and Bank shall, automatically and without notice or
demand, be entitled to receive, concurrently with such satisfaction
the prepayment fee set forth above, and the amount of such prepayment
fee shall be added to the principal. DEBTOR HEREBY ACKNOWLEDGES AND
AGREES THAT BANK WOULD NOT MAKE THE LOAN TO DEBTOR EVIDENCED BY THIS
NOTE WITHOUT DEBTOR'S AGREEMENT, AS SET FORTH ABOVE, TO PAY BANK A
PREPAYMENT FEE UPON THE SATISFACTION OF ALL OR ANY PORTION OF THE
PRINCIPAL BEARING INTEREST AT A BASE INTEREST RATE FOLLOWING THE
ACCELERATION OF THE MATURITY DATE HEREOF BY REASON OF A DEFAULT.
DEBTOR HAS CAUSED THOSE PERSONS SIGNING THIS NOTE ON ITS BEHALF TO
SEPARATELY INITIAL THE AGREEMENT CONTAINED IN THIS PARAGRAPH BY
PLACING THEIR INITIALS BELOW:
INITIALS: PGL and ALS
5. DEFAULT AND ACCELERATION OF TIME FOR PAYMENT. Default shall include
any of the following: (a) the failure of Debtor to make any payment
required under this note when due; (b) any breach, misrepresentation or
other default by Debtor under the terms of this Note and the Credit
Facility Letter referenced in paragraph (i) below; (c) the insolvency of
Debtor, or the failure of Debtor generally to pay such debts as such debts
become due; (d) the commencement as to the Debtor of any voluntary or
involuntary proceeding under any laws relating to bankruptcy, insolvency,
reorganization, arrangement, debt adjustment or debtor relief; (e) the
making of an assignment for the benefit of such Debtor's creditors; (f) the
appointment, or commencement of any proceeding for the appointment of a
receiver, trustee, custodian or similar official for all or substantially
all of Debtor's property; (g) the commencement of any proceeding for the
dissolution or liquidation of the Debtor; (h) the termination of existence
of the Debtor, whether by sale, merger or consolidation; or (i) default
under any covenant set forth in that certain Credit Facility Letter
Agreement dated November 10, 1998 between Debtor and Bank. Upon the
occurrence of any such default, Bank, in its discretion, may cease to
advance funds hereunder and may declare all obligations under this note
immediately due and payable; however, upon the occurrence of an event of
default under d, e, f, or g, all principal and interest shall automatically
become immediately due and payable.
6. ADDITIONAL AGREEMENTS OF DEBTOR. If any amounts owing under this note
are not paid when due, Debtor promises to pay all costs and expenses,
including reasonable attorneys' fees, incurred by Bank in the collection or
enforcement of this note. Debtor and any endorsers of this note, for the
maximum period of time and the full extent permitted by law, (a) waive
diligence, presentment, demand, notice of nonpayment, protest, notice of
protest, and notice of every kind; (b) waive the right to assert the
defense of any statute of limitations to any debt or obligation hereunder;
and (c) consent to renewals and extensions of time for the payment of any
amounts due under this note. If this note is signed by more than one
party, the term "Debtor" includes each of the undersigned and any
successors in interest thereof; all of whose liability shall be joint and
several. The receipt of any check or other item of payment by Bank, at its
option, shall not be considered a payment on account until such check or
other item of payment is honored when presented for payment at the drawee
bank. Bank may delay the credit of such payment based upon Bank's schedule
of funds availability, and interest under this note shall accrue until the
funds are deemed collected. In any action brought under or arising out of
this note, Debtor, including their successors and assigns, hereby consent
to the jurisdiction of any competent court within the State of California,
as provided in any alternative dispute resolution agreement executed
between Debtor and Bank, and consent to service of process by any means
authorized by said state's law. The term "Bank" includes, without
limitation, any holder of this note. This note shall be construed in
accordance with and governed by the laws of the State of California. This
note hereby incorporates any alternative dispute resolution agreement
previously, concurrently or hereafter executed between Debtor and Bank.
7. DEFINITIONS. As used herein, the following terms shall have the
meanings respectively set forth below: "Base Interest Rate" shall mean a
rate of interest based on the LIBOR Rate. "Base Interest Rate Loan" shall
mean amounts outstanding under this note that bear interest at a Base
Interest Rate. "Base Rate Maturity Date" shall mean the last day of the
Interest Period with respect to principal outstanding under a Base Interest
Rate Loan. "Business Day" shall mean a day which is not a Saturday or
Sunday on which Bank is open for business in the state identified in
paragraph 6, above, and with the respect to the rate of interest based on
the LIBOR Rate, on which dealings in U.S. dollar deposits outside of the
United States may be carried on by Bank. "Interest Period" shall mean any
calendar period of one, two, three, six, nine or twelve months. In
determining an Interest Period, a month means a period that starts on one
Business Day in a month and ends on and includes the day preceding the
numerically corresponding day in the next month. For any month in which
there is no such numerically corresponding day, then as to that month, such
day shall be deemed to be the last calendar day of such month. Any
Interest Period which would otherwise end on a non-Business Day shall end
on the next succeeding Business Day unless that is the first day of a
month, in which event such Interest Period shall end on the next preceding
Business Day. "LIBOR Rate" shall mean a per annum rate of interest
(rounded upward, if necessary, to the nearest 1/100 of 1%) at which dollar
deposits, in immediately available funds and in lawful money of the United
States would be offered to Bank, outside of the United States, for a term
coinciding with the Interest Period selected by Debtor and for an amount
equal to the amount of principal covered by Xxxxxx's interest rate
selection, plus Bank's costs, including the cost, if any of reserve
requirements. "Origination Date" shall mean the Business Day on which
funds are made available to Debtor relating to Debtor's selection of a Base
Interest Rate. "Reference Rate" shall mean the rate announced by Bank from
time to time at its corporate headquarters as its Reference Rate. The
Reference Rate is an index rate determined by Bank from time to time as a
means of pricing certain extensions of credit and is neither directly tied
to any external rate of interest or index nor necessarily the lowest rate
of interest charged by Bank at any given time.
Federal Funds Rate means the rate determined by Bank to be the per annum
rate at which Bank can acquire term Federal funds overnight deposits for an
amount equal to the amount of principal covered by Debtor's interest rate
election, and adjusted to reflect Bank's costs.
CHICAGO TITLE CORPORATION
By /S/ Xxxxx X. Xxxxxxxxx
Title EVP, CFO and XXX
By /S/ X. Xxxxx Xxxx
Title VP and Treasurer
