Legal Proceedings

EX-10.61.3 5 a88264exv10w61w3.txt EXHIBIT 10.61.3 EXHIBIT 10.61.3 THIRD AMENDMENT TO CREDIT AGREEMENT THIRD AMENDMENT, dated as of February 26, 2003 (this "Amendment"), to the Existing Credit Agreement (as defined below), among FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation (the "Borrower"), and the Lenders (as defined below) signatory hereto. W I T N E S S E T H: WHEREAS, the Borrower, various financial institutions and other Persons from time to time parties thereto (collectively, the "Lenders"), Bank of America, N.A., as the Administrative Agent, Chase Securities Inc., as the Syndication Agent, Morgan Stanley Senior Funding, Inc., as the Documentation Agent, and Paribas, as the Co-Documentation Agent, are parties to the Credit Agreement, dated as of February 10, 2000, (as amended by Amendment No. 1 thereto, dated as of March 20, 2001, and Amendment No. 2 thereto, dated as of July 12, 2001, and as further amended, supplemented, amended and restated or otherwise modified through the date hereof, the "Existing Credit Agreement", and as amended by this Amendment, the "Credit Agreement"); WHEREAS, the Borrower desires to amend the Existing Credit Agreement as set forth herein; and WHEREAS, the Lenders have agreed, subject to the terms and conditions hereinafter set forth, to amend and waive the Existing Credit Agreement in certain respects as provided below; NOW, THEREFORE, in consideration of the agreements herein contained, the parties hereto hereby agree as follows: ARTICLE I DEFINITIONS SECTION 1.1. Certain Definitions. The following terms (whether or not underscored) when used in this Amendment shall have the following meanings (such meanings to be equally applicable to the singular and plural form thereof): "Amendment" is defined in the preamble. "Borrower" is defined in the preamble. "Credit Agreement" is defined in the first recital. "Existing Credit Agreement" is defined in the first recital. "Third Amendment Effective Date" is defined in Section 3.1. SECTION 1.2. Other Definitions. Terms for which meanings are provided in the Existing Credit Agreement are, unless otherwise defined herein or the context otherwise requires, used in this Amendment with such meanings. ARTICLE II AMENDMENTS TO CREDIT AGREEMENT Effective on (and subject to the occurrence of) the Third Amendment Effective Date, the Existing Credit Agreement is hereby amended in accordance with this Article II; except as so amended, the Existing Credit Agreement shall continue in full force and effect. SECTION 2.1. Amendment to Section 1.1. Section 1.1 of the Existing Credit Agreement is hereby amended by inserting the following definition in such Section in the appropriate alphabetical sequence: "Amendment No. 3" means the Third Amendment to Credit Agreement, dated as of February 26, 2003, among the Borrower and the Lenders party thereto. SECTION 2.2. Amendment to Section 3.3. Section 3.3 of the Existing Credit Agreement is hereby amended by deleting the language in clause (b) thereof in its entirety and inserting "[INTENTIONALLY OMITTED]" in replacement therefor. SECTION 2.3. Amendment to Section 8.4. Clause (i) of Section 8.4 of the Existing Credit Agreement is hereby amended and restated to read in its entirety as follows: (i) so long as no Default or Event of Default has occurred and is continuing at the time of incurrence thereof, unsecured Indebtedness of the Borrower in an aggregate principal amount not to exceed $600,000,000 at any one time outstanding; provided that such Indebtedness (i) shall mature no earlier than seven years from the Closing Date, (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 default under this agreement) prior to the date that is seven years after the Closing Date, and (iii) has covenants, defaults and other terms and conditions (other than interest rates) no more restrictive than those contained in this agreement; ARTICLE III CONDITIONS TO EFFECTIVENESS SECTION 3.1. Amendment Effective Date. This Amendment (and the amendments contained herein) shall become effective as of the date first above written (the "Third Amendment Effective Date"), when all of the conditions set forth in this Section 3.1 have been fulfilled to the satisfaction of the Administrative Agent. -2- SECTION 3.1.1. Execution of Counterparts. The Administrative Agent shall have received counterparts of this Amendment, duly executed and delivered on behalf of the Borrower, the Administrative Agent and the Majority Lenders. SECTION 3.1.2. Fees and Expenses. The Administrative Agent shall have received all fees and expenses owing to it, including expenses referenced in Section 4.2 hereof. SECTION 3.1.3. Legal Details, etc. All documents executed or submitted pursuant hereto shall be satisfactory in form and substance to the Administrative Agent and its counsel. The Administrative Agent and its counsel shall have received all information and such counterpart originals or such certified or other copies or such materials, as the Administrative Agent or its counsel may reasonably request, and all legal matters incident to the transactions contemplated by this Amendment shall be satisfactory to the Administrative Agent and its counsel. ARTICLE IV MISCELLANEOUS SECTION 4.1. Cross-References. References in this Amendment to any Article or Section are, unless otherwise specified or otherwise required by the context, to such Article or Section of this Amendment. SECTION 4.2. Loan Document Pursuant to Credit Agreement; Expenses; Limited Amendment. This Amendment is a Loan Document executed pursuant to the Credit Agreement and shall be construed, administered and applied in accordance with all of the terms and provisions of the Credit Agreement. The Borrower agrees to pay, promptly upon invoicing therefor, all out of pocket expenses of the Administrative Agent in connection with the negotiation, execution and delivery of this Amendment, together with its expenses in connection with closing and post-closing matters related to the Existing Credit Agreement. Except as expressly modified by this Amendment, all provisions of the Existing Credit Agreement and the other Loan Documents shall remain in full force and effect in accordance with their terms. SECTION 4.3. Representations and Warranties. The Borrower hereby represents and warrants that (a) before and after giving effect to this Amendment the statements contained in Sections 5.2(b) and (c) of the Existing Credit Agreement are true and correct in all material respects as it made on the Third Amendment Effective Date, with all references therein to "Borrowing Date" being deemed to be references to the Third Amendment Effective Date and references therein to "Borrowing" being deemed to be references to the amendments effected by this Amendment, and (b) each of the Contributed Subsidiaries is not a Material Subsidiary. SECTION 4.4. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. SECTION 4.5. Counterparts. This Amendment may be executed by the parties hereto in several counterparts, each of which when executed and delivered shall be deemed to be an original and all of which shall constitute together but one and the same agreement. -3- SECTION 4.6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. -4- IN WITNESS WHEREOF, the signatories hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the day and year first above written. FIDELITY NATIONAL FINANCIAL, INC. By: /s/ PATRICK S. FARENGA ------------------------------------- Title: Vice President and Treasurer ACKNOWLEDGED: BANK OF AMERICA, as Administrative Agent and a Lender By: /s/ Jim V. Miller ----------------------------------- Title: Jim V. Miller Managing Director U.S. BANK NATIONAL ASSOCIATION By: /s/ Douglas A. Rich ----------------------------------- Douglas A. Rich Title: Vice President 3rd Amendment to FNF Credit Agreement JPMORGAN CHASE BANK By: /s/ [ILLEGIBLE] ----------------------------------- Title: Managing Director UNION BANK OF CALIFORNIA, N.A. By: /s/ Joseph M. Argabrite ----------------------------------- Title: Joseph M. Argabrite Vice President BANK OF THE WEST By: /s/ [ILLEGIBLE] ----------------------------------- Title: Vice President COMERICA BANK - CALlFORNIA By: /s/ James F. Cooper ----------------------------------- Title: James F. Cooper First Vice President FIRST BANK & TRUST By: /s/ [ILLEGIBLE] ----------------------------------- Title: V.P. BNP PARIBAS By: /s/ Cecile Scherer ----------------------------------- Title: CECILE SCHERER Director Merchant Banking Group /s/ Mark Darrel ----------------------------------- MARK DARREL VICE PRESIDENT LASALLE BANK NATIONAL ASSOCIATION By: /s/ [ILLEGIBLE] ----------------------------------- Title: Commercial Banking Officer BANK ONE, NA, a national banking asociation with its main office in Chicago, Illinois, successor by merger to BANK ONE, ARIZONA, NA By: /s/ [ILLEGIBLE] ----------------------------------- Title: Firs Vice President BMO NESBITT BURNS FINANCING, INC. By: /s/ [ILLEGIBLE] ----------------------------------- Title: VICE PRESIDENT Western Financial Bank By: /s/ Arthur P. Carter ----------------------------------- Arthur P. Carter Title: Vice president SUMITOMO MITSUI BANKING CORPORATION By: /s/ [ILLEGIBLE] ----------------------------------- Title: S.V.P. FLEET NATIONAL BANK By: /s/ [ILLEGIBLE] ----------------------------------- Title: Vice President WACHOVIA BANK, N.A. By: /s/ Mark B. Felker ----------------------------------- Title: MARK B. FELKER MANAGING DIRECTOR WACHOVIA BANK NATIONAL ASSOCIATION WELLS FARGO BANK, N.A. By: /s/ [ILLEGIBLE] ----------------------------------- Title: Vice President By: /s/ Matthew A. Frey ----------------------------------- Title: MATTHEW A. FREY Vice President TAIWAN BUSINESS BANK By: /s/ Mr. Ben Chen ----------------------------------- Title: Mr. Ben Chen VP & GM