EXHIBIT 99.3
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Second Amendment"), dated
as of October 29, 2004 (but effective as provided in Section 4 of this Second
Amendment), 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, as amended by
that certain First Amendment to Credit Agreement, dated as of April 9, 2004
(said Credit Agreement, as amended, 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. Reference is made to that Second Amendment to Credit Agreement dated
as of August 10, 2004 (the "Prior Amendment"), which by its terms did not become
effective. Upon the satisfaction of the Conditions to Effectiveness set forth in
Section 4(a) hereof, this Second Amendment shall replace the Prior Amendment in
its entirety.
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) The definition of "Designated Subsidiaries" set forth in Section
1.01 of the Credit Agreement is hereby amended to read as follows:
"Designated Subsidiaries" means FAMI and Fortuna and their
respective Subsidiaries.
(b) The definition of "Interest Coverage Ratio" set forth in Section
1.01 of the Credit Agreement is hereby amended to read as follows:
"Interest Coverage Ratio" means, for any period, the ratio of Cash
Flow to Interest Expense for such period. Cash Flow and Interest Expense
shall be determined on a trailing four Fiscal Quarter basis as at the end
of each Fiscal Quarter for each Test Period; provided, however, for
purposes of this calculation, the Cash Flow and Interest Expense
attributable to FIS and its Subsidiaries shall not be included in any
calculation of the Interest Coverage Ratio after the Second Amendment
Secondary Effective Date.
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(c) The definition of "Subsidiary Guarantor" set forth in Section 1.01
of the Credit Agreement is hereby amended to read as follows:
"Subsidiary Guarantor" means each Material Subsidiary of the
Borrower identified as a Subsidiary Guarantor on Schedule 5.14(b) (other
than FIS, FISAK and FNIS), each of which are required to execute and
deliver to the Administrative Agent the Subsidiary Guaranty, and each
other Material Subsidiary that is required to execute the Subsidiary
Guaranty pursuant to Sections 6.12, 6.14 or 6.15.
(d) Section 1.01 of the Credit Agreement is hereby amended by deleting
the defined term "FNFC" therefrom.
(e) Section 1.01 of the Credit Agreement is hereby further amended by
adding the following defined terms thereto in proper alphabetical order:
"FIS" means Fidelity National Information Services, Inc., a Delaware
corporation.
"FIS Credit Agreement" means that certain Credit Agreement among
FIS, certain lenders and Wachovia Bank, National Association, as agent,
whereby such lenders agree to extend to FIS a credit facility not to
exceed $600,000,000 in aggregate principal amount.
"FIS IPO" means the initial public offering of common Equity
Interests of FIS, resulting in the Borrower retaining at least 51% of the
common Equity Interests of FIS.
"FIS IPO Dividend" means the payment of a dividend by FIS to the
Borrower in an amount up to $250,000,000 with proceeds of the FIS IPO.
"FIS Spin Off Dividend" means the distribution of the remaining
Equity Interests of FIS owned by the Borrower after FIS IPO in the form of
a special dividend to holders of common Equity Interests of the Borrower.
"FIS Transaction" means the FIS IPO, the FIS IPO Dividend and the
FIS Spin Off Dividend.
"FISAK" means Fidelity Information Services, Inc., an Arkansas
corporation.
"FNIS" means Fidelity National Information Solutions, Inc., a
Delaware corporation.
"Second Amendment" means that certain Second Amendment to Credit
Agreement, dated as of October 29, 2004, by and among the Borrower, the
Lenders party thereto and the Administrative Agent.
"Second Amendment Final Effective Date" means the date that all of
the conditions precedent set forth in Section 4(c) of the Second Amendment
are satisfied.
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"Second Amendment Initial Effective Date" means the date that all of
the conditions precedent set forth in Section 4(a) of the Second Amendment
are satisfied.
"Second Amendment Secondary Effective Date" means the date that all
of the conditions precedent set forth in Section 4(b) of the Second
Amendment are satisfied.
(f) Section 7.01 of the Credit Agreement is hereby amended to read as
follows:
7.01 LIENS. The Borrower shall not, nor shall it permit any
Subsidiary to, directly or indirectly, create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now
owned or hereafter acquired, other than the following ("Permitted Liens"):
(a) any Lien created under any Loan Document;
(b) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or to
the extent that non-payment thereof is permitted by Section 6.11;
(c) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary
course of business which are not delinquent or remain payable without
penalty or which are being contested in good faith by appropriate
proceedings diligently prosecuted;
(d) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, performance
and return-of-money bonds, reinsurance agreements and other similar
obligations incurred in the ordinary course of business (exclusive of
obligations in respect of the payment for borrowed money);
(e) Liens existing on the Closing Date and identified on Schedule
7.01;
(f) Liens consisting of pledges or deposits of cash or securities
made by any Insurance Subsidiary as a condition to obtaining or
maintaining any licenses issued to it by, or to satisfy the requirements
of, any Department;
(g) Liens consisting of judgment or judicial attachment Liens
(other than arising as a result of claims under or related to Insurance
Contracts, Retrocession Agreements or Reinsurance Agreements); provided
that the enforcement of such Liens is effectively stayed or fully covered
by insurance and all such liens in the aggregate at any time outstanding
for the Borrower and its Subsidiaries do not exceed (i) prior to the
Second Amendment Final Effective Date, 2% of Net Worth, and (ii)
thereafter, 3% of Net Worth;
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in
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amount, and which do not in any case materially detract from the value of
the property subject thereto or interfere with the ordinary conduct of the
businesses of the Borrower and its Subsidiaries;
(i) Liens securing obligations in respect of Capital Leases
permitted pursuant to Section 7.04(d) on assets subject to such leases;
provided that such Capital Leases are otherwise permitted hereunder,
(j) Liens securing obligations permitted under Sections 7.04(f)
and (g), to the extent such Liens are identified and permitted under such
Sections;
(k) Liens arising as a result of claims under or related to
Insurance Contracts, Reinsurance Agreements or Retrocession Agreements in
the ordinary course of business, or securing Indebtedness of Insurance
Subsidiaries incurred or assumed in connection with the settlement of
claim losses in the ordinary course of business of such Insurance
Subsidiaries;
(l) Liens on assets of a Person that becomes a Subsidiary after
the Closing Date pursuant to a Permitted Acquisition securing Indebtedness
permitted by Section 7.04(h), which Liens previously existed and were not
created in contemplation thereof and which are not increased to cover any
other property;
(m) Liens on assets of the Borrower or its Subsidiaries securing
Indebtedness owed to the Borrower or a Subsidiary and permitted under
Section 7.04(l);
(n) Liens on assets of Designated Subsidiaries securing
Indebtedness permitted under Section 7.04(m);
(o) so long as no Default or Event of Default has occurred and is
continuing, other Liens securing obligations in an aggregate amount not
exceeding at any one time outstanding (i) prior to the Second Amendment
Secondary Effective Date, 2% of Net Worth, (ii) after the Second Amendment
Secondary Effective Date but prior to the Second Amendment Final Effective
Date, 3% of Net Worth, and (iii) thereafter, 5% of Net Worth; and
(p) any extension, renewal or replacement of the foregoing;
provided that the Liens permitted hereby shall not be spread to cover any
additional Indebtedness or property (other than a substitution of like
property).
(g) Section 7.02 of the Credit Agreement is hereby amended to read as
follows:
7.02 CONSOLIDATIONS AND MERGERS; SALES OF ASSETS. The Borrower
shall not, and shall not permit any of its Subsidiaries to, merge,
consolidate with or into, or convey, transfer, lease or otherwise dispose
of (whether in one transaction or in a series of transactions) all or any
part of its assets (including receivables and Equity Interests, and in all
cases whether now owned or hereafter acquired) to or in favor of any
Person, except:
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(a) any Subsidiary may merge with the Borrower; provided that the
Borrower shall be the continuing or surviving Person, or with any one or
more Subsidiaries; provided that if any transaction shall be between a
Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, the
Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or
surviving Person;
(b) any Subsidiary may sell all or any part of its assets (upon
voluntary liquidation or otherwise) to the Borrower or another Subsidiary
that is a Wholly-Owned Subsidiary; and
(c) the Borrower or any Subsidiary may sell, lease, convey or
otherwise dispose of assets (i) if such sale, lease, conveyance or other
disposition is (A) of portfolio Investments in the ordinary course of its
business at fair market value, (B) of obsolete, worn-out or surplus
property, (C) a sale of property to the extent such property is exchanged
for credit against the purchase price of similar replacement property or
the Net Disposition Proceeds thereof are promptly applied to the purchase
of such replacement property; (D) ordinary course dispositions of real
estate and related properties in connection with relocation activities for
employees of the Borrower and its Subsidiaries; (E) dispositions of
tangible property as part of a like kind exchange under Section 1031 of
the Code in the ordinary course of business; (F) dispositions of real
estate and related properties as part of the resolution or settlement of
claims under an Insurance Contract in the ordinary course of business; or
(G) a voluntary termination of a Swap Contract; and (ii) not otherwise
permitted to be sold, leased, conveyed or disposed of in clause (i)
immediately preceding, provided that (A) no Default or Event of Default
shall have occurred or be continuing or would occur after giving effect
thereto, (B) all such dispositions shall be for fair market value and (C)
the aggregate value of all assets disposed of pursuant to this clause (ii)
by the Borrower and its Subsidiaries (excluding the FIS Transaction) shall
not exceed (A) 25% of Net Worth (determined as of the last day of the
immediately preceding Fiscal Year) in any Fiscal Year other than Fiscal
Year 2005 or (B) 15% of Net Worth in Fiscal Year 2005.
(h) Section 7.03 of the Credit Agreement is hereby amended to read as
follows:
7.03 INVESTMENTS. The Borrower shall not, and shall not permit any
of its Subsidiaries to, make any Investments, except for:
(a) Investments held by the Borrower or any of its Subsidiaries in
the form of (i) Primary Investments and (ii) so long as no Default or
Event of Default has occurred and is continuing at the time of the making
of such Investment or after giving effect thereto, Secondary Investments;
provided that, (A) such Investments comply with all Legal Requirements,
(B) the aggregate amount of Secondary Investments shall not exceed 15% of
the aggregate amount of the Borrower's total investment portfolio and (C)
the aggregate amount of Investments in Secondary Investments that are
issued by a single issuer shall not exceed 5% of the aggregate amount of
the Borrower's total investment portfolio (with all valuations for
purposes of compliance with this clause (ii) being on a cost basis);
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(b) extensions of credit and capital contributions by the Borrower
to any of its Subsidiaries existing on the Closing Date or to new
Subsidiaries created after the Closing Date in accordance with this
Agreement or by any of its Subsidiaries to another of its Subsidiaries
existing on the Closing Date or to new Subsidiaries created after the
Closing Date in accordance with this Agreement; provided, however, after
the Second Amendment Secondary Effective Date, the Borrower shall not, and
shall not permit any of its Subsidiaries to, make any Investments in FIS
or its Subsidiaries unless at the time of any such Investment or
immediately after giving effect thereto, no Default or Event of Default
shall have occurred;
(c) Investments by the Insurance Subsidiaries in the ordinary
course of business and in compliance with all applicable regulatory
requirements;
(d) Investments existing on the Closing Date and identified on
Schedule 7.03;
(e) extensions of credit in the nature of accounts receivable,
notes receivable, lease obligations and similar obligations arising in the
ordinary course of business;
(f) Investments constituting Permitted Acquisitions;
(g) Investments consisting of non-cash proceeds from Dispositions
permitted under Section 7.02(c) and (d); and
(h) so long as no Default or Event of Default has occurred and is
continuing, other Investments in an aggregate amount not to exceed at any
one time outstanding (i) prior to the Second Amendment Final Effective
Date, 2% of Net Worth and (ii) thereafter, 3% of Net Worth.
(i) 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 (excluding for purposes of this Section
7.04(b) only, Contingent Obligations of the Borrower in respect of
airplane leases of its Subsidiaries not to exceed $25,000,000 in aggregate
amount) in an aggregate amount not to exceed at any one time outstanding
(i) prior to the Second Amendment Final Effective Date, 2% of Net Worth
and (ii) thereafter, 3% of Net Worth;
(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
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(ii) other Capital Leases in an aggregate amount not to exceed at any one
time outstanding (i) prior to the Second Amendment Final Effective Date,
2% of Net Worth and (ii) thereafter, 3% 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 (i) prior to the Second Amendment Final Effective Date,
"1031 exchange" or relocation service transactions and secured by the
properties which are the subject of such transactions and (ii) thereafter,
relocation service transactions and secured by properties which are the
subject to 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
(i) prior to the Second Amendment Final Effective Date, 3% of Net Worth
and (ii) thereafter, 4% 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 (i) prior to the Second Amendment Final
Effective Date, 2% of Net Worth and (ii) thereafter, 3% of Net Worth;
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(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 (i) prior to
the Second Amendment Final Effective Date, 3% of Net Worth and (ii)
thereafter, 5% of Net Worth;
(o) (i) prior to the Second Amendment Secondary Effective Date,
Indebtedness of the Borrower and its Subsidiaries in respect of the FIS
Credit Agreement and (ii) upon the Second Amendment Secondary Effective
Date and thereafter, Indebtedness of FIS and its Subsidiaries in respect
of the FIS Credit Agreement; and
(p) any extensions, renewals or refinancings of the foregoing on
terms substantially similar to, or more favorable to the Borrower or any
Subsidiary than (but not less favorable to the Lenders), the terms of the
Indebtedness being extended, renewed or refinanced.
(j) Section 7.09(a) of the Credit Agreement is hereby amended to read as
follows:
7.09 FINANCIAL COVENANTS.
(a) Net Worth. The Borrower shall not permit its Net Worth as of
(i) the Closing Date or as at the end of any Fiscal Quarter after the
Closing Date but prior to the Second Amendment Final Effective Date to be
less than (A) $2,250,000,000, plus (B) 50% of Net Income (in excess of
zero) for the period from the beginning of the first full Fiscal Quarter
following the Closing Date to the last day of the Fiscal Quarter for which
such determination is made, plus (C) 50% of cumulative cash equity
contributions received by the Borrower after the Closing Date through the
issuance of Equity Interests (excluding for purposes of this clause (i)
the FIS IPO Dividend and any other proceeds received by the Borrower or
any Subsidiary in respect of the FIS IPO) or (ii) the Second Amendment
Final Effective Date or as at the end of any Fiscal Quarter after the
Second Amendment Final Effective Date to be less than (A) $1,500,000,000
plus (B) 50% of Net Income (in excess of zero) for the period from the
beginning of the first full Fiscal Quarter following the Second Amendment
Final Effective Date to the last day of the Fiscal Quarter for which such
determination is made, plus (C) 50% of cumulative each equity
contributions received by the Borrower after the Second Amendment Final
Effective Date.
(k) Article VII of the Credit Agreement is hereby amended by adding a
new Section 7.13 thereto to read as follows:
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7.13 FIS CREDIT AGREEMENT. Prior to the Second Amendment Final
Effective Date, FIS shall not agree to any amendment or modification of
Section 7.06 of the FIS Credit Agreement which would have the effect of
further restricting the payment of dividends to the Borrower.
(l) Section 8.01(e) of the Credit Agreement is hereby amended to read as
follows:
(e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to
make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any
Indebtedness or Contingent Obligation (other than Indebtedness hereunder
and Indebtedness under Swap Contracts) having an aggregate principal
amount (including undrawn committed or available amounts and including
amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than 3% of Net Worth and such failure continues after
the applicable grace or notice period, if any, specified in the relevant
document on the date of such failure, or (B) fails to observe or perform
any other agreement or condition relating to any such Indebtedness or
Contingent Obligation or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, the
effect of which default or other event is to cause, or to permit the
holder or holders of such Indebtedness or the beneficiary or beneficiaries
of such Guarantee (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause, with the giving of
notice if required, such Indebtedness to be demanded or to become due or
to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee
to become payable or cash collateral in respect thereof to be demanded; or
(ii) there occurs under any Swap Contract an Early Termination Date (as
defined in such Swap Contract) resulting from (A) any event of default
under such Swap Contract as to which the Borrower or any Subsidiary is the
Defaulting Party (as defined in such Swap Contract) or (B) any Termination
Event (as so defined) under such Swap Contract as to which the Borrower or
any Subsidiary is an Affected Party (as so defined) and, in either event,
the Swap Termination Value owed by the Borrower or such Subsidiary as a
result thereof is greater than 3% of Net Worth; or
(m) Schedule 5.14(a) of the Credit Agreement is hereby amended to be in
the form of Schedule 5.14(a) to this Second Amendment.
(n) Exhibit E, Compliance Certificate, is hereby amended to be in the
form of Exhibit E to this Second Amendment.
2. RELEASE. FIS, FISAK and FNIS are hereby released from all of their
respective obligations under the Subsidiary Guaranty.
3. 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:
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(a) the representations and warranties contained in the Credit Agreement
and the other Loan Documents are true and correct in all material respects 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 Second Amendment, (ii) this Second Amendment has been duly executed and
delivered by the Borrower, and (iii) this Second 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 Second
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
(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 Second Amendment or acknowledged by any
Subsidiary Guarantor of this Second Amendment.
4. CONDITIONS TO EFFECTIVENESS.
(a) The amendments set forth in Sections 1(b), 1(e), 1(f), 1(i), 1(k)
and 1(n) of this Second Amendment shall be effective upon satisfaction or
completion of the following:
(i) the Administrative Agent shall have received counterparts of
this Second Amendment executed by the Required Lenders;
(ii) the Administrative Agent shall have received counterparts of
this Second Amendment executed by the Borrower and acknowledged by the
Subsidiary Guarantors;
(iii) the representations and warranties contained in Section 3 of
this Second Amendment shall be true and correct in all material respects;
(iv) the Administrative Agent shall have received a Subsidiary
Guaranty executed by FIS and any other Material Subsidiary which has not
previously delivered a Subsidiary Guaranty to the Administrative Agent;
and
(v) 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.
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(b) The amendments set forth in Sections 1(c), 1(h) and 1(j) of this
Second Amendment and the release set forth in Section 2 of this Second Amendment
shall be effective upon satisfaction or completion of the following:
(i) The Second Amendment Initial Effective Date shall have
occurred;
(ii) the Administrative Agent shall have received evidence
satisfactory to it that the FIS IPO shall have occurred;
(iii) the representations and warranties contained in Section 3 of
this Second Amendment shall be true and correct in all material respects
as of the date of the FIS IPO; and
(iv) 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.
(c) The Amendments set forth in Sections 1(a), 1(d), 1(g), 1(l) and 1(m)
of this Second Amendment shall be effective upon satisfaction or completion of
the following:
(i) The Second Amendment Secondary Effective Date shall have
occurred;
(ii) The representations and warranties contained in Section 3 of
this Second Amendment shall be true and correct in all material respects
as of the date of the FIS Spin-Off Dividend;
(iii) The Administrative Agent shall have received evidence
satisfactory to it that the FIS Spin Off Dividend has occurred; and
(iv) The Administrative Agent shall have received, in form and
substance satisfactory to the Administrative Agent and its counsel, such
other documents, certificates and instruments as the Administrative Agent
shall require.
5. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Second 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.
6. 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 Second 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).
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7. GUARANTOR'S ACKNOWLEDGMENT. By signing below, each Subsidiary
Guarantor (a) acknowledges, consents and agrees to the execution, delivery and
performance by the Borrower of this Second Amendment, (b) acknowledges and
agrees that its obligations in respect of its Subsidiary Guaranty are not
released, diminished, waived, modified, impaired or affected in any manner by
this Second Amendment or any of the provisions contemplated herein, including,
without limitation, the release of FIS, FISAK and FNIS from their respective
obligations under the Subsidiary Guaranty, (c) ratifies and confirms its
obligations under its Subsidiary Guaranty, and (d) acknowledges and agrees that
it has no claims or offsets against, or defenses or counterclaims to, its
Subsidiary Guaranty
8. EXECUTION IN COUNTERPARTS. This Second 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 Second 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.
9. GOVERNING LAW; BINDING EFFECT. This Second 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 retain all rights arising under federal law, and
shall be binding upon the parties hereto and their respective successors and
assigns.
10. HEADINGS. Section headings in this Second Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Second Amendment for any other purpose.
11. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS SECOND
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.
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