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-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QgPtbiB2ybhe3p7WsBhnLmMwGMjGcMzGArFZexsDrliy+/eeaYB8ajcecN/nQFxQ WykCZD1WQ8LjkGiAFv3/nA== 0000892569-05-000142.txt : 20050315 0000892569-05-000142.hdr.sgml : 20050315 20050315170817 ACCESSION NUMBER: 0000892569-05-000142 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20050309 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050315 DATE AS OF CHANGE: 20050315 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FIDELITY NATIONAL FINANCIAL INC /DE/ CENTRAL INDEX KEY: 0000809398 STANDARD INDUSTRIAL CLASSIFICATION: TITLE INSURANCE [6361] IRS NUMBER: 860498599 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-09396 FILM NUMBER: 05682450 BUSINESS ADDRESS: STREET 1: 601 RIVERSIDE AVENUE STREET 2: , CITY: JACKSONVILLE STATE: FL ZIP: 32204 BUSINESS PHONE: 904-854-8100 MAIL ADDRESS: STREET 1: 601 RIVERSIDE AVENUE STREET 2: , CITY: JACKSONVILLE STATE: FL ZIP: 32204 8-K 1 a06825ae8vk.htm FORM 8-K e8vk

United States
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

Current Report
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (date of earliest event reported):
March 9, 2005

Fidelity National Financial, Inc.

(Exact name of Registrant as Specified in its Charter)

1-9396
(Commission File Number)


Delaware		86-0498599
(State or Other Jurisdiction of Incorporation or Organization)		(IRS Employer Identification Number)

601 Riverside Avenue
Jacksonville, Florida 32204

(Addresses of Principal Executive Offices)

(904) 854-8100
(Registrant’s Telephone Number, Including Area Code)

(Former Name or Former Address, if Changed Since Last Report)


Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o		Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o		Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o		Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o		Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

TABLE OF CONTENTS


	Item 1.01. Entry Into a Material Definitive Agreement
	Item 8.01 Other Events
	Item 9.01. Financial Statements and Exhibits
SIGNATURES
EXHIBIT INDEX
EXHIBIT 10.1
EXHIBIT 10.2
EXHIBIT 99.1
EXHIBIT 99.2
EXHIBIT 99.3

Item 1.01. Entry Into a Material Definitive Agreement.

(a) Credit Agreement

On March 9, 2005, Fidelity National Information Solutions, Inc. (“Solutions”) and Fidelity National Tax Service, Inc. (“Tax” and, together with Solutions, “Borrowers”), both direct subsidiaries of Fidelity National Information Services, Inc. (the “Services”) and indirect subsidiaries of Fidelity National Financial, Inc. (the “Company”), and Services, as the parent guarantor, entered into a Credit Agreement, dated as of March 9, 2005, with Bank of America, N.A. as Administrative Agent, Collateral Agent, Swing Line Lender, L/C Issuer and lender, and the other financial institutions party thereto (the “Credit Agreement”).

The Credit Agreement replaces Services’ $500 million Revolving Credit Agreement, dated as of November 8, 2004, among Services, as borrower, and Wachovia Bank, National Association, as Administrative Agent and Swing Line Lender, Bank of America, as Syndication Agent and the other financial institutions party thereto (the “Wachovia Credit Agreement”), which was terminated on March 9, 2005, prior to its scheduled expiration date of November 8, 2007. On the date of its termination, approximately $410,265,229 was outstanding under the Wachovia Credit Agreement and no early termination penalties were incurred by Services.

The Credit Agreement provides for a $800 million six-year term facility (“Term A Loans”), a $2.0 billion eight-year term facility (“Term B Loans”) and a $400 million revolving credit facility maturing on the sixth anniversary of the closing date. The term facilities were fully drawn on the closing date while the revolving credit facility was undrawn on the closing date. Services has provided an unconditional guarantee of the full and punctual payment of the Borrowers’ obligations under the Credit Agreement and related loan documents. Solutions and Tax have also unconditionally guaranteed the full and punctual payment of the obligations of each other thereunder. In addition, each of the domestic wholly-owned subsidiaries of Solutions (other than certain immaterial subsidiaries and Services’ regulated subsidiary) has provided an unconditional guarantee of the full and punctual payments of the obligations under the Credit Agreement and related loan documents.

Amounts under the revolving credit facility may be borrowed, repaid and reborrowed by the Borrowers from time to time until the maturity of the revolving credit facility. The term facilities are subject to quarterly amortization of principal in equal installments of 0.25% of the principal amount with the remaining balance payable at maturity. In addition to the scheduled amortization, and with certain exceptions, the term loans are subject to mandatory prepayment from excess cash flow, issuance of additional equity and debt and certain sales of assets. Voluntary prepayments of both the term loans and revolving loans and commitment reductions of the revolving credit facility under the Credit Agreement are permitted at any time without fee upon proper notice and subject to a minimum dollar requirement. Revolving credit borrowings and Term A Loans bear interest at a floating rate, which will be, at the Borrowers’ option, either the British Bankers Association LIBOR or a base rate plus, in both cases, an applicable margin, which is subject to adjustment based on the performance of the Borrowers. The Term B Loans bear interest at either the British Bankers Association LIBOR plus 1.75% per annum or, at the Borrowers’ option, a base rate plus 0.75% per annum.

(b) Grant of Stock Options

The following nonqualified stock options to acquire common stock of Fidelity National Information Services, Inc. (“Services”) were granted on March 9, 2005 under the Fidelity National Information Services, Inc. 2005 Stock Incentive Plan. The options were granted at an exercise price of $10.00 per share. The time based options will vest with respect to 1/16 of the total number of shares subject to the time-based option on the last day of each fiscal quarter, commencing on the last day of the first fiscal quarter following the date of grant, until fully vested. The performance based options will vest as follows, in the event of a Change in Control or after an Initial Public Offering (as each term is defined in the form of Option Agreement filed herewith as Exhibit 99.1), solely if one of the following targets (each, a “Target”) shall be met: (a) 50% of the total number of shares subject to the option shall vest if the “Equity Value” of a share of Services’ common stock equals at least $17.50 (subject to adjustment stock splits and the like), and (b) 100% of the total number of shares subject to the option will vest if the Equity Value of a share of Services’ common stock equals at least $20.00 (subject to adjustment for stock splits and the like), provided the optionee’s service with Services has not terminated prior to the applicable vesting date.

For purposes of this calculation, “Equity Value” shall be determined as follows: (i) in the event of a Change in Control, the Equity Value shall be determined at the time of the transaction constituting a Change in Control, and shall be equal to the aggregate amount of net proceeds (other than any taxes) of cash or readily marketable securities and the discounted expected value of any other deferred consideration (as determined by the Board of Services) received or to be received by the holders of common stock of Services in such transaction, divided by the number of outstanding shares (including all shares issuable upon exercise of in-the-money exercisable options) at the time of the Change in Control, and (ii) at any time after an Initial Public Offering, the Equity Value shall be measured using the average price of the common stock over a consecutive forty-five (45) day trading period, then the applicable Target shall be deemed to have been met

Each option grant was evidenced by an option agreement and a notice of option exercise substantially in the form attached hereto as Exhibit 99.1. The fore going does not constitute a complete summary of the terms of the option agreement and notice of exercise and reference is made to the complete text of this agreement, which is filed herewith as Exhibit 99.1 and incorporated herein by reference.


Name	Title	Time Based		Performance Based
William P. Foley, II	Chairman and CEO		2,666,500		2,333,500
Ernest D. Smith	President LOS and IS		399,975		350,025
Hugh R. Harris	President FIS		399,975		350,025
Alan L. Stinson	Executive Vice President and Chief Financial Officer		373,310		326,690
Brent B. Bickett	Executive Vice President		373,310		326,690

Solutions and each of its subsidiaries that is a guarantor have granted the Administrative Agent a first priority (subject to certain exceptions) security interest in substantially all of their personal property, including shares of stock and other ownership interests. A mortgage lien was also granted by one of the subsidiaries of Solutions.

The Credit Agreement contains affirmative, negative and financial covenants customary for financings of this type, including, among other things, limits on the creation of liens, limits on the incurrence of indebtedness, restrictions on investments and dispositions, limitations on restricted payments and capital expenditures, a minimum interest coverage ratio and a maximum senior secured leverage ratio. The Credit Agreement includes customary events of default for facilities of this type (with customary grace periods, as applicable) and provides that, upon the occurrence of an event of default, the interest rate on all outstanding obligations will be increased and payments of all outstanding loans may be accelerated and/or the lenders’ commitments may be terminated. In addition, upon the occurrence of certain insolvency or bankruptcy related events of default, all amounts payable under the Credit Agreement shall automatically become immediately due and payable, and the lenders’ commitments will automatically terminate.

Some of the lenders under the Credit Agreement have or may have had various relationships with the Company and its affiliates involving the provision of a variety of financial services, including cash management, investment banking, pension fund and equipment financing and leasing services, and the issuance of letters of credit and bank guarantees.

The foregoing does not constitute a complete summary of the terms of the Credit Agreement and reference is made to the complete text of this agreement, which is filed as Exhibit 10.1 to this 8-K and incorporated herein by this reference.

(b) Amendment of Material Agreement

Effective March 9, 2005, the Company entered into a Third Amendment to Credit Agreement (the “Third Amendment to Credit Agreement”) amending that certain Credit Agreement dated as of November 4, 2003, among the Company, Bank of America, N.A., as Administrative Agent, and the lenders party thereto, as amended by the First Amendment to Credit Agreement dated as of April 9, 2004, and by the Second Amendment to Credit Agreement dated as of October 29, 2004 (the “Second Amendment”). As a result of (i) the issuance of approximately 25% of the common equity interests of Services to Thomas H. Lee Partners, L.P., Texas Pacific Group, Evercore METC Capital Partners II, L.P., Banc of America Capital Investors, L.P. and certain of their affiliates, (ii) the payment of a dividend by Services to the Company in the amount of $2.7 billion, (iii) the execution and delivery of a credit agreement providing for term loans in the aggregate principal amounts of $2.8 billion and a revolving credit facility in the amount of $400 million among Services and certain subsidiaries of Services in favor of certain lenders and Bank of America, N.A., as agent, and (iv) the payment of a special $10 per share special dividend by the Company to the holders of the common stock of the Company (collectively, the “FIS Recapitalization Transaction”), certain amendments to the Credit Agreement contemplated by the Second Amendment which were to become effective at the times provided therein were no longer necessary or appropriate. Accordingly, the Third Amendment to Credit Agreement

Item 8.01 Other Events

On March 9, 2005, Services also completed the issuance of a 25% interest in its common stock to certain affiliates of Thomas H. Lee Partners, L.P., certain affiliates of Texas Pacific Group, Evercore METC Capital Partners II L.P. (“Evercore”) and Banc of America Capital Investors, L.P. (“BOFA”). The purchase price for the shares was $500 million. In connection with the sale, Services agreed to pay certain fees to and expenses of the investors, totaling approximately $41 million. At the closing, Evercore and BOFA also became parties to the Stockholders Agreement and Registration Rights Agreement, as previously described in and filed with our Form 8-K report filed December 29, 2004. However, neither of them will have any governance rights under the Stockholders Agreement. Services used a portion of the proceeds of the minority interest sale to repay all outstanding principal and interest under the Wachovia Credit Agreement.

The complete text of the Stockholders Agreement and the Registration Rights Agreement as executed at the closing are filed as Exhibits 99.2 and 99.3 hereto and incorporated herein by this reference.

amended certain of the covenants and default provisions contained in the Credit Agreement to account for the FIS Recapitalization Transaction and to eliminate certain provisions that were to subsequently become effective pursuant to the Second Amendment, and to provide for the release of Services, Fidelity Information Services, Inc. and Solutions, from their respective obligations under the subsidiary guaranty of the Credit Agreement

The foregoing does not constitute a complete summary of the terms of the Third Amendment to Credit Agreement and reference is made to the complete text of this agreement, which is filed as Exhibit 10.2 to this 8-K and incorporated herein by this reference.

Item 9.01. Financial Statements and Exhibits


Exhibit 10.1	—	FNIS Credit Agreement

Exhibit 10.2	—	Third Amendment to FNF Credit Agreement

Exhibit 99.1	—	Form of FNIS Option Agreement

Exhibit 99.2	—	FNIS Stockholders Agreement

Exhibit 99.3	—	FNIS Registration Rights Agreement

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

FIDELITY NATIONAL FINANCIAL, INC.

Dated: March 15, 2005 By: /s/ Alan L. Stinson
Alan L. Stinson
Executive Vice President and
Chief Financial Officer

EXHIBIT INDEX


Exhibit
Number		Description
10.1		FNIS Credit Agreement

10.2		Third Amendment to FNF Credit Agreement

99.1		Form of FNIS Option Agreement

99.2		FNIS Stockholders Agreement

99.3		FNIS Registration Rights Agreement

EX-10.1 2 a06825aexv10w1.txt EXHIBIT 10.1 EXHIBIT 10.1 EXECUTION COPY ================================================================================ CREDIT AGREEMENT Dated as of March 9, 2005 among FIDELITY NATIONAL INFORMATION SOLUTIONS, INC. and FIDELITY NATIONAL TAX SERVICE, INC., as Borrowers, FIDELITY NATIONAL INFORMATION SERVICES, INC., The LENDERS Party Hereto, and BANK OF AMERICA, N.A., as Administrative Agent, Collateral Agent, Swing Line Lender and L/C Issuer ---------- BANC OF AMERICA SECURITIES LLC and J.P. MORGAN SECURITIES INC., Co-Lead Arrangers and Co-Joint Book Running Managers, WACHOVIA CAPITAL MARKETS, LLC, Co-Joint Book Running Manager, JPMORGAN CHASE BANK, N.A. and WACHOVIA BANK, NATIONAL ASSOCIATION, Co-Syndication Agents and BEAR STEARNS CORPORATE LENDING INC. and DEUTSCHE BANK TRUST COMPANY AMERICAS, Co-Documentation Agents ================================================================================ TABLE OF CONTENTS

i Section 3.09. Replacement of Lenders Under Certain Circumstances...... 70 Section 3.10. Survival................................................ 71 ARTICLE 4 CONDITIONS PRECEDENT TO CREDIT EXTENSIONS Section 4.01. Conditions of Initial Credit Extension.................. 72 Section 4.02. Conditions to All Credit Extensions..................... 74 ARTICLE 5 REPRESENTATIONS AND WARRANTIES Section 5.01. Existence, Qualification and Power; Compliance with Laws 75 Section 5.02. Authorization; No Contravention......................... 75 Section 5.03. Governmental Authorization; Other Consents.............. 76 Section 5.04. Binding Effect.......................................... 76 Section 5.05. Financial Statements; No Material Adverse Effect........ 76 Section 5.06. Litigation.............................................. 77 Section 5.07. Ownership of Property; Liens............................ 77 Section 5.08. Environmental Compliance................................ 77 Section 5.09. Taxes................................................... 78 Section 5.10. ERISA Compliance........................................ 78 Section 5.11. Subsidiaries; Equity Interests.......................... 79 Section 5.12. Margin Regulations; Investment Company Act.............. 79 Section 5.13. Disclosure.............................................. 79 Section 5.14. Intellectual Property; Licenses, Etc.................... 80 Section 5.15. Solvency................................................ 80 Section 5.16. Perfection, Etc......................................... 80 ARTICLE 6 AFFIRMATIVE COVENANTS Section 6.01. Financial Statements.................................... 81 Section 6.02. Certificates; Other Information......................... 82 Section 6.03. Notices................................................. 84 Section 6.04. Payment of Obligations.................................. 85 Section 6.05. Preservation of Existence, Etc.......................... 85 Section 6.06. Maintenance of Properties............................... 85 Section 6.07. Maintenance of Insurance................................ 85 Section 6.08. Compliance with Laws.................................... 85 Section 6.09. Books and Records....................................... 85 Section 6.10. Inspection Rights....................................... 86 Section 6.11. Use of Proceeds......................................... 86 Section 6.12. Covenant to Guarantee Obligations and Give Security..... 86 Section 6.13. Compliance with Environmental Laws...................... 89 Section 6.14. Further Assurances...................................... 89 Section 6.15. Designation of Subsidiaries............................. 90

ii Section 6.16. Interest Rate Protection................................ 90 ARTICLE 7 NEGATIVE COVENANTS Section 7.01. Liens................................................... 91 Section 7.02. Investments............................................. 94 Section 7.03. Indebtedness............................................ 97 Section 7.04. Fundamental Changes..................................... 100 Section 7.05. Dispositions............................................ 101 Section 7.06. Restricted Payments..................................... 103 Section 7.07. Change in Nature of Business............................ 106 Section 7.08. Transactions with Affiliates............................ 106 Section 7.09. Burdensome Agreements................................... 107 Section 7.10. Use of Proceeds......................................... 107 Section 7.11. Financial Covenants..................................... 107 Section 7.12. Amendments of Organization Documents.................... 108 Section 7.13. Change in Fiscal Year................................... 108 Section 7.14. Prepayments, Etc. of Indebtedness....................... 108 Section 7.15. Activities of Holdings.................................. 109 Section 7.16. Designated Senior Debt.................................. 109 Section 7.17. Capital Expenditures.................................... 109 ARTICLE 8 EVENTS OF DEFAULT AND REMEDIES Section 8.01. Events of Default....................................... 110 Section 8.02. Remedies Upon Event of Default.......................... 113 Section 8.03. Application of Funds.................................... 113 ARTICLE 9 ADMINISTRATIVE AGENT AND OTHER AGENTS Section 9.01. Appointment and Authorization of Agents................. 114 Section 9.02. Delegation of Duties.................................... 115 Section 9.03. Liability of Agents..................................... 115 Section 9.04. Reliance by Agents...................................... 116 Section 9.05. Notice of Default....................................... 116 Section 9.06. Credit Decision; Disclosure of Information by Agents.... 116 Section 9.07. Indemnification of Agents............................... 117 Section 9.08. Agents in their Individual Capacities................... 117 Section 9.09. Successor Agents........................................ 118 Section 9.10. Administrative Agent May File Proofs of Claim........... 119 Section 9.11. Collateral and Guaranty Matters......................... 119 Section 9.12. Other Agents; Arrangers and Managers.................... 120 Section 9.13. Appointment of Supplemental Administrative Agents....... 120

iii ARTICLE 10 GUARANTY Section 10.01. Guaranty................................................ 121 Section 10.02. Contribution............................................ 122 Section 10.03. Guaranty Absolute....................................... 122 Section 10.04. Waiver And Acknowledgments.............................. 123 Section 10.05. Subrogation............................................. 124 Section 10.06. Payment Free And Clear Of Taxes......................... 125 Section 10.07. No Waiver; Remedies..................................... 125 Section 10.08. Right Of Set-Off........................................ 125 Section 10.09. Continuing Guaranty; Assignments under the Credit Agreement............................................ 125 ARTICLE 11 MISCELLANEOUS Section 11.01. Amendments, Etc......................................... 126 Section 11.02. Notices and Other Communications; Facsimile Copies...... 128 Section 11.03. No Waiver; Cumulative Remedies.......................... 130 Section 11.04. Attorney Costs, Expenses and Taxes...................... 130 Section 11.05. Indemnification by the Borrowers........................ 130 Section 11.06. Payments Set Aside...................................... 132 Section 11.07. Assigns................................................. 132 Section 11.08. Successors.............................................. 136 Section 11.09. Confidentiality......................................... 136 Section 11.10. Set-off................................................. 137 Section 11.11. Interest Rate Limitation................................ 138 Section 11.12. Counterparts............................................ 138 Section 11.13. Integration............................................. 138 Section 11.14. Survival of Representations and Warranties.............. 138 Section 11.15. Severability............................................ 138 Section 11.16. Tax Forms............................................... 139 Section 11.17. Governing Law........................................... 141 Section 11.18. Waiver of Right to Trial by Jury........................ 141 Section 11.19. Binding Effect.......................................... 141 Section 11.20. USA Patriot Act Notice.................................. 142 Section 11.21. Waiver Of Notice Period Under Wachovia Credit Agreement............................................ 142

iv SCHEDULES 1.01A Earn-Out Payments 1.01B Closing Date Guarantors 1.01C Management Agreements 1.01D Shared Services Agreements 1.01E Unrestricted Subsidiaries 2.01 Commitments 5.06 Litigation 5.08 Environmental Matters 5.11 Subsidiaries 7.01 Existing Liens 7.02 Existing Investments 7.03 Existing Indebtedness 7.05 Permitted Dispositions 7.08 Transactions with Affiliates 7.09 Existing Restrictions 11.02 Administrative Agent's Office, Certain Addresses for Notices

EXHIBITS Form of A Committed Loan Notice B Swing Line Loan Notice C-1 Term A Note C-2 Term B Note C-3 Revolving Credit Note D Compliance Certificate E Assignment and Assumption F Subsidiary Guaranty G Security Agreement H Subordination Terms

CREDIT AGREEMENT This CREDIT AGREEMENT ("AGREEMENT") is entered into as of March 9, 2005, among FIDELITY NATIONAL INFORMATION SOLUTIONS, INC., a Delaware corporation ("SOLUTIONS"), FIDELITY NATIONAL TAX SERVICE, INC., a California corporation ("TAX" and, together with Solutions, the "BORROWERS"), FIDELITY NATIONAL INFORMATION SERVICES, INC., a Delaware corporation, each lender from time to time party hereto (collectively, the "LENDERS" and individually, a "LENDER") and BANK OF AMERICA, N.A., as Administrative Agent, Collateral Agent, Swing Line Lender and L/C Issuer. RECITALS The Borrowers have requested that (a) on the Closing Date (i) the Term A Lenders make a Term A Loan to each Borrower in an aggregate principal amount for all such Term A Loans of $800,000,000 and (ii) the Term B Lenders make a Term B Loan to each Borrower in an aggregate principal amount for all such Term B Loans of $2,000,000,000 and (b) from time to time, the Revolving Credit Lenders lend to the Borrowers and the L/C Issuer issue Letters of Credit for the account of the Borrowers and their Subsidiaries under a $400,000,000 revolving credit facility for the Borrowers and their Subsidiaries. The applicable Lenders have indicated their willingness to lend and the L/C Issuer has indicated its willingness to so issue Letters of Credit, in each case, on the terms and subject to the conditions set forth herein. In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows: ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS Section 1.01. Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: "1934 ACT" means the Securities Exchange Act of 1934. "ADDITIONAL GUARANTOR" has the meaning set forth in Section 6.12(a). "ADDITIONAL TERM LOANS" has the meaning specified in Section 2.14(b). "ADDITIONAL TERM LOAN TRANCHE" has the meaning specified in Section 2.14(b). "ADDITIONAL TERM COMMITMENTS EFFECTIVE DATE" has the meaning specified in Section 2.14(c). "ADMINISTRATIVE AGENT" means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent. "ADMINISTRATIVE AGENT'S OFFICE" means the Administrative Agent's address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account as the Administrative Agent may from time to time notify the Borrowers and the Lenders. "ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a form supplied by the Administrative Agent. "AFFILIATE" means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. "CONTROL" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. "CONTROLLING" and "CONTROLLED" have meanings correlative thereto. "AGENT-RELATED PERSONS" means the Administrative Agent, together with its Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons. "AGENTS" means, collectively, the Administrative Agent, the Arrangers, the Co-Syndication Agents, the Co-Documentation Agents and the Supplemental Administrative Agents (if any). "AGGREGATE COMMITMENTS" means the Commitments of all the Lenders. "AGREEMENT" means this Credit Agreement. "APPLICABLE MARGIN" means a percentage per annum equal to: (a) with respect to any Term A Loans and Revolving Credit Loans, (i) until delivery of the Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b) for the first fiscal quarter of Holdings both beginning and ending after the Closing Date, 1.75% if such Loans are Eurodollar Loans and 0.75% if such Loans are Base Rate Loans and (ii) thereafter, the following percentages per annum based upon the Senior Secured Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b):
Term A Loans and Revolving Credit Loans - ---------------------------------------------------------------------- Senior Secured Pricing Level Leverage Ratio Eurodollar Rate Base Rate - ------------- ------------------------- --------------- --------- 1 > 3.75:1 1.75% 0.75% 2 > 3.0:1 but < or = 3.75:1 1.50% 0.50% 3 < or = 3.0:1 1.25% 0.25%
(b) with respect to Term B Loans, at all times, 1.75% if such Loans are Eurodollar Loans and 0.75% if such Loans are Base Rate Loans and (c) with respect to the commitment fee to be paid pursuant to Section 2.09(a) (as used below, the "COMMITMENT FEE") and the Letter of Credit fee (the "L/C FEE"), (i) until delivery of the Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b) for the first fiscal quarter of Holdings both beginning and ending after the Closing Date, the Commitment Fee shall be 0.50% and the Letter of Credit Fee 2 shall be 1.75% and (ii) thereafter, the following percentages per annum based upon the Senior Secured Leverage Ratio as set forth below:
Senior Secured Pricing Level Leverage Ratio Commitment Fee LC Fee - ------------- ------------------------- -------------- ------ ~~1 > 3.75:1 0.50% 1.75% 2 > 3.0:1 but < or = 3.75:1 0.375% 1.50% 3 = 3.0:1 0.375% 1.25%~~
Any increase or decrease in the Applicable Margin resulting from a change in the Senior Secured Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(b); provided that at the option of the Administrative Agent or the Required Lenders, Pricing Level 1 shall apply (x) as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to and including the date on which such Compliance Certificate is so delivered (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply) and (y) as of the first Business Day after an Event of Default shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Event of Default is cured or waived (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply). "APPROPRIATE LENDER" means, at any time, (a) with respect to Loans of any Class, the Lenders of such Class, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.03(a), the Revolving Credit Lenders and (c) with respect to the Swing Line Facility, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section 2.04(a), the Revolving Credit Lenders. "APPROVED FOREIGN BANK" has the meaning specified in clause (j) of the definition of "Cash Equivalents". "APPROVED FUND" means any Fund that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender. "ARRANGERS" means Banc of America Securities LLC and J.P. Morgan Securities Inc., each in its capacity as a co-lead arranger and joint book running manager of the Facilities. "ASSIGNEE GROUP" means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor. "ASSIGNMENT AND ASSUMPTION" means an Assignment and Assumption substantially in the form of Exhibit E. "ATTORNEY COSTS" means and includes all reasonable fees, expenses and disbursements of any law firm or other external counsel. 3 "ATTRIBUTABLE INDEBTEDNESS" means, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP. "AUTO-RENEWAL LETTER OF CREDIT" has the meaning specified in Section 2.03(b)(iii). "BANK OF AMERICA" means Bank of America, N.A. and its successors. "BASE RATE" means for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its "prime rate." The "prime rate" is a rate set by Bank of America based upon various factors including Bank of America's costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. "BASE RATE LOAN" means a Loan that bears interest based on the Base Rate. "BORROWER" means each of Solutions and Tax; and "BORROWERS" means Solutions and Tax together. "BORROWER MATERIALS" has the meaning specified in Section 6.02. "BORROWING" means a Revolving Credit Borrowing, a Swing Line Borrowing, a Term A Borrowing or a Term B Borrowing, as the context may require. "BUSINESS DAY" means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent's Office is located or in Florida, and if such day relates to any interest rate settings as to a Eurodollar Rate Loan, any fundings, disbursements, settlements and payments in respect of any such Eurodollar Rate Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such Eurodollar Rate Loan, means any such day on which dealings in deposits are conducted by and between banks in the London interbank eurodollar market. "CAPITAL EXPENDITURES" means, as of any date for the applicable period then ended, all capital expenditures of the Restricted Companies on a consolidated basis for such period, as determined in accordance with GAAP; provided that Capital Expenditures shall not include any such expenditures which constitute (a) a Permitted Acquisition, (b) capital expenditures relating to the construction or acquisition of any property which has been transferred to a Person other than a Borrower or a Restricted Subsidiary pursuant to a sale-leaseback transaction permitted under Section 7.05(f), (c) to the extent permitted by this Agreement, a reinvestment of the Net Cash Proceeds of any Disposition in accordance with Section 2.05(b)(ii), Casualty Event or Equity Issuance by any Restricted Company, (d) expenditures of proceeds of insurance settlements, condemnation awards and other settlements in respect of lost, destroyed, damaged or condemned assets, equipment or other property to the extent such expenditures are made to 4 replace or repair such lost, destroyed, damaged or condemned assets, equipment or other property or otherwise to acquire, maintain, develop, construct, improve, upgrade or repair assets or properties useful in the business of the Borrowers and the Restricted Subsidiaries within 12 months of receipt of such proceeds, (e) interest capitalized during such period, (f) expenditures that are accounted for as capital expenditures of such Person and that actually are paid for by a third party (excluding Holdings, the Borrowers or any Restricted Subsidiary thereof) and for which neither Holdings, the Borrowers nor any Restricted Subsidiary thereof has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other Person (whether before, during or after such period), (g) the book value of any asset owned by such Person prior to or during such period to the extent that such book value is included as a capital expenditure during such period as a result of such Person reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period; provided that (i) any expenditure necessary in order to permit such asset to be reused shall be included as a Capital Expenditure during the period that such expenditure actually is made and (ii) such book value shall have been included in Capital Expenditures when such asset was originally acquired, (h) the purchase price of equipment purchased during such period to the extent the consideration therefor consists of any combination of (i) used or surplus equipment traded in at the time of such purchase and (ii) the proceeds of a concurrent sale of used or surplus equipment, in each case, in the ordinary course of business, or (i) the purchase price of equipment that is purchased substantially contemporaneously with the trade-in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time; provided further that, if for any period the calculation of Capital Expenditures determined for the Restricted Companies on a consolidated basis would include the full amount of Capital Expenditures of a Majority-Owned Subsidiary, the amount attributable to such Majority-Owned Subsidiary shall be reduced by an amount directly proportional to the amount of any minority interest in such Majority-Owned Subsidiary owned by a Person other than a Restricted Company. "CAPITALIZED LEASES" means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases on a balance sheet of the lessee. "CASH COLLATERAL" has the meaning specified in Section 2.03(g). "CASH COLLATERAL ACCOUNT" means a deposit account at the Collateral Agent in the name of the Collateral Agent and under the sole dominion and control of the Collateral Agent, and otherwise established in a manner satisfactory to the Collateral Agent. "CASH COLLATERALIZE" has the meaning specified in Section 2.03(g). "CASH EQUIVALENTS" means any of the following types of Investments, to the extent owned by Holdings or any of its Restricted Subsidiaries: (a) operating deposit accounts maintained by the Restricted Companies; 5 (b) securities issued or unconditionally guaranteed by the United States government or any agency or instrumentality thereof having maturities of not more than 12 months from the date of acquisition thereof; (c) securities issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than 12 months from the date of acquisition thereof and, at the time of acquisition, having a rating of at least "A-2" or "P-2" (or long-term ratings of at least "A3" or "A-") from either S&P or Moody's, or, with respect to municipal bonds, a rating of at least MIG 2 or VMIG 2 from Moody's (or the equivalent thereof); (d) commercial paper issued by any Lender that is a commercial bank or any bank holding company owning any Lender; (e) commercial paper maturing not more than 12 months after the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 or P-1 from either S&P or Moody's and commercial paper maturing not more than 90 days after the creation thereof and, at the time of acquisition, having a rating of at least A-2 or P-2 from either S&P or Moody's; (f) domestic and eurodollar certificates of deposit or bankers' acceptances maturing no more than one year after the date of acquisition thereof which are either issued by any Lender or any other banks having combined capital and surplus of not less than $100,000,000 (or in the case of foreign banks, the dollar equivalent thereof) or are insured by the Federal Deposit Insurance Corporation for the full amount thereof; (g) repurchase agreements with a term of not more than 30 days for, and secured by, underlying securities of the type without regard to maturity described in clauses (b), (c) and (f) above entered into with any bank meeting the qualifications specified in clause (f) above or securities dealers of recognized national standing; (h) shares of investment companies that are registered under the Investment Company Act of 1940 and invest solely in one or more of the types with regard to maturity of securities described in clauses (b) through (g) above; (i) fixed maturity securities which are rated BBB- and above by S&P or Baa3 and above by Moody's; provided that the aggregate amount of Investments by any Person in fixed maturity securities which are rated BBB+, BBB or BBB- by S&P or Baa1, Baa2 or Baa3 by Moody's shall not exceed 10% of the aggregate amount of Investments in fixed maturity securities by such Person; (j) solely with respect to any Foreign Subsidiary, non-Dollar denominated (i) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P 6 is at least "A-1" or the equivalent thereof or from Moody's is at least "P-1" or the equivalent thereof (any such bank being an "APPROVED FOREIGN BANK") and maturing within 12 months of the date of acquisition and (ii) equivalents of demand deposit accounts which are maintained with an Approved Foreign Bank; and (k) solely with respect to Regulated Subsidiaries, in addition to each of the Investments in clauses (a) through (i) above, any Investment permitted by the Regulatory Supervising Organization of such Regulated Subsidiary. "CASH MANAGEMENT OBLIGATIONS" has the meaning set forth in the Security Agreement. "CASH ON HAND" means, on any day, the sum of the amount of cash and Cash Equivalents of the Restricted Companies or Holdings and its consolidated Subsidiaries, as applicable, as set forth on the balance sheet of the Restricted Companies or Holdings and its consolidated Subsidiaries, as applicable, on the last day of each calendar month ending during the four fiscal quarters most recently ended on or prior to such day, divided by twelve (it being understood that such amount shall exclude in any event any cash and Cash Equivalents identified on such balance sheet as "restricted" (other than cash or Cash Equivalents restricted in favor of the Secured Parties) or otherwise subject to a security interest in favor of any other Person (other than security interests under the Collateral Documents and non-consensual Liens permitted under Section 7.01)); provided that, if fewer than four full fiscal quarters have elapsed since the Closing Date, Cash on Hand shall be determined as set forth above with reference to the period commencing on (and including) the Closing Date and ending on the last day of the fiscal quarter most recently ended on or prior to such day. "CASUALTY EVENT" means any event that gives rise to the receipt by any Borrower or Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property. "CHANGE OF CONTROL" means the earliest to occur of (a) (i) a "person" or "group" (as such terms are used in Sections 13(d) and 14(d)(2) of the 1934 Act, but excluding any employee benefit plan of such person and its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than the Permitted Holders, shall become the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the 1934 Act), directly or indirectly, of more than the greater of (A) 35% of the shares outstanding of Holdings (or, after a Qualifying IPO, the Qualifying IPO Issuer) and (B) the percentage of the then outstanding voting stock of Holdings (or, after a Qualifying IPO, the Qualifying IPO Issuer) owned, directly or indirectly, beneficially by the Permitted Holders, and (ii) during any period of twelve consecutive months, the board of directors of Holdings (or, after a Qualifying IPO, the Qualifying IPO Issuer) shall cease to consist of a majority of the Continuing Directors; and (b) any "Change of Control" (or any comparable term) in any document pertaining to any Junior Financing with an aggregate outstanding principal amount in excess of the Threshold Amount; and 7 (c) either Borrower ceasing to be a directly or indirectly wholly owned Subsidiary of Holdings. "CLASS" (a) when used with respect to Lenders, refers to whether such Lenders are Revolving Credit Lenders, Term A Lenders or Term B Lenders, (b) when used with respect to Commitments, refers to whether such Commitments are Revolving Credit Commitments, Term A Commitments or Term B Commitments and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Revolving Credit Loans, Term A Loans or Term B Loans. "CLOSING DATE" means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 4.01. "CLOSING DATE DIVIDEND" means a dividend in an approximate amount of $2,700,000,000 paid by the Borrowers to Holdings, which Holdings will use, together with the proceeds of the Equity Purchase, to (a) repay in full the FNF Note, (b) repay approximately $410,000,000 of existing Indebtedness under the Wachovia Credit Agreement and (c) pay certain fees and expenses associated with the Transaction. "CLOSING DATE FORECASTS" has the meaning specified in Section 4.01(f)(ii). "CODE" means the U.S. Internal Revenue Code of 1986. "CO-DOCUMENTATION AGENTS" means Deutsche Bank Securities Inc. and Bear Stearns & Co. Inc., as co-documentation agents under this Agreement. "COLLATERAL" means all of the "Collateral" referred to in the Collateral Documents and all of the other property and assets that are or are required under the terms hereof or of the Collateral Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties. "COLLATERAL AGENT" means Bank of America in its capacity as collateral agent, or any successor collateral agent. "COLLATERAL DOCUMENTS" means, collectively, the Security Agreement, the Intellectual Property Security Agreement, the Mortgages, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties, including collateral assignments, Security Agreement Supplements, security agreements, pledge agreements or other similar agreements delivered to the Administrative Agent and the Lenders pursuant to Section 6.12. "COMMITMENT" means a Term A Commitment, Term B Commitment or Revolving Credit Commitment, as the context may require. "COMMITTED LOAN NOTICE" means a notice of (a) a Term A Borrowing, (b) a Term B Borrowing, (c) a Revolving Credit Borrowing, (d) a conversion of Loans from one Type to the other, or (e) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A. 8 "COMPENSATION PERIOD" has the meaning specified in Section 2.12(b)(ii). "COMPLIANCE CERTIFICATE" means a certificate substantially in the form of Exhibit D. "CONSOLIDATED EBITDA" means, as of any date for the applicable period ending on such date with respect to any Person and its Subsidiaries on a consolidated basis, the sum of (a) Consolidated Net Income, plus (b) an amount which, in the determination of Consolidated Net Income for such period, has been deducted for, without duplication, (i) total interest expense, (ii) income, franchise and similar taxes, (iii) depreciation and amortization expense, (iv) letter of credit fees, (v) non-cash expenses resulting from any employee benefit or management compensation plan or the grant of stock and stock options to employees of Holdings, the Borrowers or any of their respective Subsidiaries pursuant to a written plan or agreement or the treatment of such options under variable plan accounting, (vi) all extraordinary charges, (vii) non-cash amortization of financing costs of such Person and its Subsidiaries, (viii) cash expenses incurred in connection with the Transaction or, to the extent permitted hereunder, any Investment permitted under Section 7.02, Equity Issuance or Debt Issuance (in each case, whether or not consummated), (ix) any losses realized upon the Disposition of property or assets outside of the ordinary course of business, (x) to the extent actually reimbursed, expenses incurred to the extent covered by indemnification provisions in any agreement in connection with a Permitted Acquisition, (xi) to the extent covered by insurance, expenses with respect to liability or casualty events or business interruption, (xii) management fees permitted under Section 7.08(d), (xiii) any non-cash purchase accounting adjustment and any non-cash write-up, write-down or write-off with respect to re-valuing assets and liabilities in connection with the Transaction or any Investment permitted under Section 7.02, 9 (xiv) non-cash losses from Joint Ventures and non-cash minority interest reductions, (xv) fees and expenses in connection with exchanges or refinancings permitted by Section 7.14, (xvi) (A) non-cash, non-recurring charges with respect to employee severance, (B) other non-cash, non-recurring charges so long as such charges described in this clause (B) do not result in a cash charge in a future period (except as permitted under clause (xvi)(C)) and (C) non-recurring charges other than those referred to in clauses (A) and (B) so long as such charges described in this clause (C) do not exceed $30,000,000 during any fiscal year, (xvii) other expenses of such Person and its Subsidiaries reducing Consolidated Net Income which do not represent a cash item in such period or any future period, and (xviii) with respect to the calculation of any covenant set forth in Section 7.11 for any applicable period, the Net Cash Proceeds of any Permitted Equity Issuance to FNF, the Equity Investors (or their respective Affiliates, related funds, general partners or limited partners) or any other Person that makes an equity investment together with FNF or the Equity Investors as part of such Permitted Equity Issuance in an amount equal to the amount necessary to ensure that the Loan Parties are in compliance with the covenants set forth in Section 7.11 for such period, solely to the extent that such Net Cash Proceeds (A) are actually received by a Borrower (including through capital contribution of such Net Cash Proceeds by Holdings to such Borrower) no later than twenty Business Days after the date of delivery of the Compliance Certificate for such period and (B) are Not Otherwise Applied; provided that any infusion of equity pursuant to a Notice of Intent to Make an Equity Infusion shall not be made more than twice in any twelve month period; it being understood that this clause (xviii) may not be relied on for purposes of calculating any financial ratios other than as applicable to Section 7.11 (including for purposes of the definition of "Pro Forma Basis"); minus (c) an amount which, in the determination of Consolidated Net Income, has been included for (i) (A) non-cash gains (other than with respect to cash actually received) and (B) all extraordinary gains, and (ii) any gains realized upon the Disposition of property outside of the ordinary course of business, plus/minus (d) unrealized losses/gains in respect of Swap Contracts, all as determined in accordance with GAAP; provided that (x) notwithstanding any other provision to the contrary contained in this Agreement, for purposes of any calculation made under the financial covenants set forth in Section 7.11 (including for purposes of the definition of "Pro Forma Basis", but excluding for purposes of the definition of "Applicable Margin"), to the 10 extent the receipt of any Net Cash Proceeds of any Permitted Equity Issuance are an effective addition to Consolidated EBITDA as contemplated by, and in accordance with, the provisions of clause (b)(xviii) above and, as a result thereof, any Event of Default of the covenants set forth in Section 7.11 shall have been cured for any applicable period, such cure shall be deemed to be effective as of the last day of such applicable period, and (y) "Consolidated EBITDA" with respect to Holdings and its Consolidated Subsidiaries for the fiscal quarters ended March 31, 2004, June 30, 2004, September 30, 2004 and December 31, 2004 shall be deemed to be $148,500,000, $164,800,000, $157,900,000 and $149,100,000, respectively. "CONSOLIDATED INTEREST CHARGES" means, as of any date for the applicable period ending on such date with respect to any Person and its Subsidiaries on a consolidated basis, the amount payable with respect to such period in respect of (a) total interest expense payable in cash plus pay-in-kind interest in respect of Indebtedness of the type set forth in clause (a) of the definition thereof (including the interest component under Capitalized Leases, but excluding, to the extent included in interest expense, (i) fees and expenses associated with the consummation of the Transaction, (ii) annual agency fees paid to the Administrative Agent, (iii) costs associated with obtaining Swap Contracts and (iv) fees and expenses associated with any Investment permitted under Section 7.02, Equity Issuance or Debt Issuance (whether or not consummated)), minus (b) interest income with respect to Cash on Hand of such Person and its Subsidiaries earned during such period, in each case as determined in accordance with GAAP. "CONSOLIDATED NET INCOME" means, as of any date for the applicable period ending on such date with respect to any Person and its Subsidiaries on a consolidated basis, net income (excluding, without duplication, (i) extraordinary items and (ii) any amounts attributable to Investments in any Joint Venture to the extent that (A) such amounts were not earned by such Joint Venture during the applicable period, (B) there exists any legal or contractual encumbrance or restriction on the ability of such Joint Venture to pay dividends or make any other distributions in cash on the Equity Interests of such Joint Venture held by such Person and its Subsidiaries, but only to the extent so encumbered or restricted or (C) such Person does not have the right to receive or the ability to cause to be distributed its pro rata share of all earnings of such Joint Venture) as determined in accordance with GAAP; provided that Consolidated Net Income for any such period shall not include (w) the cumulative effect of a change in accounting principles during such period, (x) any net after-tax income or loss (less all fees and expenses or charges relating thereto) attributable to the early extinguishment of indebtedness, (y) any non-cash charges resulting from mark-to-market accounting relating to Equity Interests and (z) any non-cash impairment charges resulting from the application of Statement of Financial Accounting Standards No. 142 - Goodwill and Other Intangibles and No. 144 - Accounting for the Impairment or Disposal of Long-Lived Assets and the amortization of intangibles including arising pursuant to Statement of Financial Accounting Standards No. 141 - Business Combinations. "CONSOLIDATED SUBSIDIARIES" means, with respect to any Person at any time, all Subsidiaries of such Person that are Restricted Subsidiaries and that would be consolidated in the financial statements of such Person on such date prepared in accordance with GAAP, but excluding any such consolidated Subsidiary of such Person that would not be so consolidated but for the effect of FIN 46. 11 "CONTINUING DIRECTORS" shall mean the directors of Holdings on the Closing Date, after giving effect to the Transaction and the other transactions contemplated hereby, and each other director, if, in each case, such other directors' nomination for election to the board of directors of Holdings (or the Qualifying IPO Issuer after a Qualifying IPO) is recommended by a majority of the then Continuing Directors or such other director receives the vote of the Permitted Holders in his or her election by the stockholders of Holdings (or the Qualifying IPO Issuer after a Qualifying IPO). "CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound. "CONTRIBUTED HOLDCO DEBT" means Permitted Holdco Debt to the extent the Net Cash Proceeds are contributed to one or both of the Borrowers and such Net Cash Proceeds are used within 90 days of the contribution thereof (a) to finance a Permitted Acquisition and, to the extent not so utilized, such excess amounts are applied to prepay the Term Loans pursuant to Section 2.05(b)(iv) or (b) to prepay the Term Loans pursuant to Section 2.05(b)(iv). "CONTROL" has the meaning specified in the definition of "Affiliate." "CO-SYNDICATION AGENTS" means JPMorgan Chase Bank, N.A. and Wachovia Bank, National Association, as co-syndication agents under this Agreement. "CREDIT EXTENSION" means each of the following: (a) a Borrowing and (b) an L/C Credit Extension. "CUMULATIVE EXCESS CASH FLOW" means the sum of Excess Cash Flow for each fiscal year commencing with the fiscal year ended December 31, 2005 (but determined for such first fiscal year for the period from April 1, 2005 through December 31, 2005) and ending on the last day of Holdings' most recently ended fiscal year. "DEBT ISSUANCE" means the issuance by any Person and its Subsidiaries of any Indebtedness for borrowed money. "DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally. "DEFAULT" means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default. "DEFAULT RATE" means an interest rate equal to (a) the Base Rate plus (b) the Applicable Margin, if any, applicable to Base Rate Loans plus (c) 2.0% per annum; provided that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest 12 rate (including any Applicable Margin) otherwise applicable to such Loan plus 2.0% per annum, in each case, to the fullest extent permitted by applicable Laws. "DEFAULTING LENDER" means any Lender that (a) has failed to fund any portion of the Term Loans, Revolving Credit Loans, participations in L/C Obligations or participations in Swing Line Loans required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding. "DISPOSITION" or "DISPOSE" means the sale, transfer, license, lease or other disposition of any property by any Person (including any sale and leaseback transaction and any sale of Equity Interests, but excluding any issuance by such Person of its own Equity Interests), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith. "DISQUALIFIED EQUITY INTERESTS" means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof, in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 91 days after the Maturity Date (determined in accordance with clause (c)(i) of the definition thereof) of the Term Loans. "DOLLAR" and "$" mean lawful money of the United States. "DOMESTIC SUBSIDIARY" means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia. "ELIGIBLE ASSIGNEE" means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any other Person (other than a natural person) approved by (i) the Administrative Agent, (ii) in the case of any assignment of a Revolving Commitment, the L/C Issuer and the Swing Line Lender, and (iii) unless an Event of Default has occurred and is continuing under Section 8.01(a) or 8.01(f), the Borrowers (each such approval not to be unreasonably withheld or delayed). "ENVIRONMENTAL LAWS" means any and all applicable Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems. 13 "ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any Restricted Company resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. "ENVIRONMENTAL PERMIT" means any permit, approval, identification number, license or other authorization required under any Environmental Law. "EQUITY INTERESTS" means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities). "EQUITY INVESTORS" means the Purchasers and certain other members of management of Holdings or its Subsidiaries who are investors, directly or indirectly, in Holdings. "EQUITY ISSUANCE" means any issuance for cash by any Person and its Subsidiaries to any other Person of (a) its Equity Interests, (b) any of its Equity Interests pursuant to the exercise of options or warrants, (c) any of its Equity Interests pursuant to the conversion of any debt securities to equity or (d) any options or warrants relating to its Equity Interests. A Disposition shall not be deemed to be an Equity Issuance. "EQUITY PURCHASE" means the acquisition of approximately 25% of the common stock of Holdings by the Purchasers for an aggregate purchase price of not less than $500,000,000 pursuant to the Purchase Agreement. "ERISA" means the Employee Retirement Income Security Act of 1974. "ERISA AFFILIATE" means any trade or business (whether or not incorporated) under common control with Holdings or a Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code). "ERISA EVENT" means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by Holdings, a Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by Holdings, a Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or 14 condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums not yet due or premiums due but not yet delinquent under Section 4007 of ERISA, upon Holdings, a Borrower or any ERISA Affiliate. "EURODOLLAR RATE" means, for any Interest Period with respect to any Eurodollar Rate Loan: (a) the rate per annum equal to the rate determined by the Administrative Agent to be the British Bankers Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time), for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or (b) if the rate referenced in the preceding clause (a) is not available, the rate per annum determined by the Administrative Agent as the rate of interest at which deposits in Dollars for delivery on the first day of such Interest Period in immediately available funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America's London Branch to major banks in the London interbank eurodollar market at their request at approximately 4:00 p.m. (London time) two Business Days prior to the first day of such Interest Period. "EURODOLLAR RATE LOAN" means a Loan that bears interest at a rate based on the Eurodollar Rate. "EVENT OF DEFAULT" has the meaning specified in Section 8.01. "EXCESS CASH FLOW" means, with respect to any fiscal period of Holdings, an amount equal to (a) Consolidated EBITDA of Holdings and its Consolidated Subsidiaries for such fiscal period plus (b) the amount, if any, by which Net Working Capital decreased from the beginning of the first day of such fiscal period to the end of the last day of such fiscal period (or, in the case of any determination of Excess Cash Flow for the period ending December 31, 2005, from the beginning of January 1, 2005 to the end of December 31, 2005) minus (c) without duplication, (i) Capital Expenditures to the extent not financed with the proceeds of long-term Indebtedness other than the Obligations, (ii) Consolidated Interest Charges, (iii) the aggregate of all income, franchise and similar taxes, as determined in accordance with GAAP, to the extent the same are payable in cash with respect to such fiscal period, including cash payments for Federal, state and other income tax liabilities incurred prior to the Closing Date, 15 (iv) the sum of all scheduled payments of principal on Indebtedness made during such period (including the implied principal component of payments made on Capitalized Leases during such fiscal period) as determined in accordance with GAAP, (v) Restricted Payments made by the Restricted Companies to the extent that such Restricted Payments are permitted to be made under Section 7.06(h), (vi) voluntary prepayments of any Indebtedness other than prepayments of the Term Loans and Revolving Credit Loans pursuant to Section 2.05(a); provided that (A) such prepayments are otherwise permitted hereunder and (B) if such Indebtedness consists of a revolving line of credit, the commitments under such line of credit are permanently reduced by the amount of such prepayment, (vii) letter of credit fees and annual agency fees, (viii) proceeds received by the Restricted Companies from insurance claims with respect to casualty events, business interruption or product recalls which reimburse prior business expenses, (ix) all extraordinary cash charges, (x) cash payments made in satisfaction of non-current liabilities, (xi) cash fees and expenses incurred in connection with the Transaction and not paid with the proceeds of the Loans or, to the extent permitted hereunder, any Investment permitted under Section 7.02, Equity Issuance or Debt Issuance (whether or not consummated), (xii) fees and expenses in connection with exchanges or refinancings permitted by Section 7.14, (xiii) cash indemnity payments received pursuant to indemnification provisions in any agreement in connection with the Equity Purchase, any Permitted Acquisition or any other Investment permitted hereunder (or in any similar agreement related to any other acquisition consummated prior to the Closing Date), (xiv) non-recurring cash charges to the extent included in determining Consolidated EBITDA, (xv) expenses incurred in connection with deferred compensation arrangements in connection with the Transaction, (xvi) management fees permitted to be made under Section 7.08(d), (xvii) cash used to consummate a Permitted Acquisition to the extent not financed with the proceeds of Indebtedness or any sale or other Disposition of assets or equity securities, 16 (xviii) to the extent added to Consolidated Net Income in determining Consolidated EBITDA, losses from discontinued operations for such fiscal period, (xix) to the extent added to Consolidated Net Income in determining Consolidated EBITDA, Net Cash Proceeds of Permitted Equity Issuances, (xx) cash expenditures made in respect of Swap Contracts during such fiscal period, (xxi) to the extent not deducted in the computation of Net Proceeds in respect of any asset Disposition or condemnation giving rise thereto, the amount of any mandatory prepayment of Indebtedness (other than Indebtedness hereunder or under any other Loan Document), together with any interest, premium or penalties required to be paid (and actually paid) in connection therewith, (xxii) cash payments described on Schedule 1.01A made in respect of acquisitions consummated prior to the Closing Date, (xxiii) increases in the regulatory capital of each Regulated Subsidiary, which shall be calculated by reference to the increase in the minimum statutory capital and surplus of such Regulated Subsidiary during such fiscal period times 110%; (xxiv) payments under Contractual Obligations in respect of Permitted Acquisitions required to be paid within 180 days after the end of such fiscal period (which payments would have been deducted in calculating Excess Cash Flow for such fiscal period had they been made during such fiscal period); provided that (A) the Compliance Certificate delivered for such fiscal period pursuant to Section 6.02(b) shall include a description of the nature and amount of such Contractual Obligation and shall certify that such Contractual Obligation has been paid or will be paid during the 180 days after the end of such fiscal period, (B) if such payment is not made within 180 days after the close of such fiscal period, then the Borrowers shall promptly make an optional prepayment of Term Loans in accordance with Section 2.05(a) in an amount, if positive, equal to (x) the amount that would have been paid pursuant to Section 2.05(b)(i) with respect to such fiscal period but for this clause (xxiv) minus (y) the amount of the payment made pursuant to Section 2.05(b)(i) with respect to such fiscal period and (C) any deduction from Excess Cash Flow made with respect to Contractual Obligations pursuant to this clause (xxiv) in such fiscal period shall not be deducted in computing Excess Cash Flow for the fiscal period in which such obligations are paid, and (xxv) the amount, if any, by which Net Working Capital increased from the beginning of the first day of such fiscal period to the end of the last day of such fiscal period (or, in the case of any determination of Excess Cash Flow for the period ending December 31, 2005, from the beginning of January 1, 2005 to the end of December 31, 2005). "FACILITY" means the Term Loans, the Revolving Credit Facility, the Swing Line Sublimit or the Letter of Credit Sublimit, as the context may require. 17 "FEDERAL FUNDS RATE" means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the immediately preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent. "FEE LETTER" means the letter agreement, dated January 20, 2005, among the Borrowers and the Agents. "FIDELITY COMPANIES" means Holdings, the Borrowers and their respective Subsidiaries. "FNF" means Fidelity National Financial, Inc., a Delaware corporation and, immediately prior to the Equity Purchase, the sole shareholder of Holdings. "FNF 2011 NOTES" means the 7.30% Notes due August 15, 2011 issued pursuant to the Indenture dated August 20, 2001 between FNF and The Bank of New York. "FNF 2013 NOTES" means the 5.25% Notes due March 15, 2013 issued pursuant to the Indenture dated August 20, 2001 between FNF and The Bank of New York. "FNF NOTE" means a $2,700,000,000 inter-company note owed by Holdings to FNF. "FOREIGN LENDER" has the meaning specified in Section 11.16(a)(i). "FOREIGN SUBSIDIARY" means any direct or indirect Subsidiary of Holdings which is not a Domestic Subsidiary. "FRB" means the Board of Governors of the Federal Reserve System of the United States. "FUND" means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit. "GAAP" means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied. "GOVERNMENTAL AUTHORITY" means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, 18 taxing, regulatory or administrative powers or functions of or pertaining to government (including in any event any Regulatory Supervising Organization). "GRANTING LENDER" has the meaning specified in Section 11.07(i). "GUARANTEE" means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the "PRIMARY OBLIGOR") in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term "Guarantee" shall not include indorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or Disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term "Guarantee" as a verb has a corresponding meaning. "GUARANTOR PARTY" has the meaning set forth in Section 10.01. "GUARANTORS" means, collectively, (i) each Guarantor Party, (ii) each Restricted Subsidiary of either Borrower that is a Domestic Subsidiary on the date hereof (other than a Regulated Subsidiary) and listed on Schedule 1.01B and (iii) each Additional Guarantor. "GUARANTY" means, collectively, the Guarantee by Holdings and each Borrower set forth in Article 10 of this Agreement and the Subsidiary Guaranty. "HAZARDOUS MATERIALS" means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law as hazardous, toxic, pollutants or contaminants or words of similar meaning or effect. 19 "HEDGE BANK" means any Person that is a Lender or an Affiliate of a Lender, in its capacity as a party to a Secured Hedge Agreement. "HISTORICAL FINANCIAL STATEMENTS" has the meaning specified in Section 4.01(f)(i). "HOLDINGS" means Fidelity National Information Services, Inc., a Delaware corporation; provided that if in connection with a Qualifying IPO, a Person other than Holdings becomes the Qualifying IPO Issuer, "Holdings" shall, from and after such Qualifying IPO, mean such Qualifying IPO Issuer. "HONOR DATE" has the meaning specified in Section 2.03(c)(i). "INDEBTEDNESS" means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP: (a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments or agreements; (b) the maximum available amount of all letters of credit (including standby and commercial), bankers' acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person; (c) net obligations of such Person under any Swap Contract (with the amount of such net obligations being deemed to be the Swap Termination Value thereof as of such date); (d) all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable in the ordinary course of business, (ii) any earn-out obligation until such obligation appears in the liabilities section of the balance sheet of such Person, and (iii) any earn-out obligation that appears in the liabilities section of the balance sheet of such Person, to the extent (A) such Person is indemnified for the payment thereof by a solvent Person reasonably acceptable to the Administrative Agent or (B) amounts to be applied to the payment therefore are in escrow); (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; (f) all Attributable Indebtedness; (g) all obligations of such Person in respect of Disqualified Equity Interests; (h) indebtedness or similar financing obligations of such Person under any Securitization Financing; and 20 (i) all Guarantees of such Person in respect of any of the foregoing paragraphs. For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is non-recourse to such Person. The amount of Indebtedness of any Person for purposes of clause (e) above shall be deemed to be equal to the lesser of (x) the aggregate unpaid amount of such Indebtedness and (y) the fair market value of the property encumbered thereby as determined by such Person in good faith. "INDEMNIFIED LIABILITIES" has the meaning set forth in Section 11.05. "INDEMNITEES" has the meaning set forth in Section 11.05. "INFORMATION" has the meaning specified in Section 11.09. "INTELLECTUAL PROPERTY SECURITY AGREEMENT" means, collectively, the Copyright Security Agreement, the Trademark Security Agreement and the Patent Security Agreement, substantially in the forms attached to the Security Agreement together with each other intellectual property security agreement executed and delivered pursuant to Section 6.12 or the Security Agreement. "INTEREST COVERAGE RATIO" means, as of the end of any fiscal quarter of Holdings for the four fiscal quarter period ending on such date, the ratio of (a) Consolidated EBITDA of Holdings and its Consolidated Subsidiaries for such period to (b) (i) Consolidated Interest Charges of the Borrowers and their Consolidated Subsidiaries for such period plus (ii) the amount of interest paid (if any) in cash with respect to such period in respect of Contributed Holdco Debt (but only to the extent that a Borrower or a Restricted Subsidiary made a Restricted Payment to Holdings pursuant to Section 7.06(h)(v) the proceeds of which were used by Holdings upon receipt to pay such interest); provided that for the purpose of calculating the Interest Coverage Ratio on any day prior to the expiration of four full fiscal quarters since the Closing Date, Consolidated Interest Charges shall be determined for the period commencing on the Closing Date and ending on the last day of the most recently ended fiscal quarter, annualized on a simple arithmetic basis. "INTEREST PAYMENT DATE" means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made. "INTEREST PERIOD" means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, or to the extent available (as determined by each relevant Lender) to all relevant Lenders, nine or twelve months 21 thereafter, as selected by the relevant Borrower in its Committed Loan Notice (or such other period, which is less than twelve months, as agreed by the relevant Borrower and all applicable Lenders); provided that: (a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Business Day; (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and (c) no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made. "INVESTMENT" means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor incurs debt of the type referred to in clause (h) of the definition of "Indebtedness" set forth in this Section 1.01 in respect of such Person or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment. "IP RIGHTS" has the meaning set forth in Section 5.14. "IRS" means the United States Internal Revenue Service. "JOINT VENTURE" means (a) any Person which would constitute an "equity method investee" of Holdings or any of its Subsidiaries, (b) any other Person designated by the Borrowers in writing to the Administrative Agent (which designation shall be irrevocable) as a "Joint Venture" for purposes of this Credit Agreement and at least 50% but less than 100% of whose Equity Interests are directly owned by Holdings or any of its Subsidiaries, and (c) any Person in whom Holdings or any of its Subsidiaries beneficially owns any Equity Interest that is not a Subsidiary. "JUNIOR FINANCING" means any Permitted Subordinated Indebtedness or any Permitted Holdco Debt. "JUNIOR FINANCING DOCUMENTATION" means any documentation governing any Junior Financing. 22 "LAWS" means, collectively, all applicable international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law. "L/C ADVANCE" means, with respect to each Revolving Credit Lender, such Lender's funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share. "L/C BORROWING" means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing. "L/C CREDIT EXTENSION" means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof. "L/C ISSUER" means Bank of America or any other Revolving Lender (or Affiliate thereof) that agrees in writing with the Borrower and the Administrative Agent to act as an L/C Issuer, in each case in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder. "L/C OBLIGATIONS" means, as at any date of determination, the aggregate undrawn amount of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. "LENDER" has the meaning specified in the introductory paragraph to this Agreement and, as the context requires, includes the L/C Issuer and the Swing Line Lender. "LENDING OFFICE" means, as to any Lender, the office or offices of such Lender described as such in such Lender's Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrowers and the Administrative Agent. "LETTER OF CREDIT" means any letter of credit issued hereunder. A Letter of Credit may be a commercial letter of credit or a standby letter of credit. "LETTER OF CREDIT APPLICATION" means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer. "LETTER OF CREDIT EXPIRATION DATE" means the day that is five days prior to the scheduled Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day). "LETTER OF CREDIT SUBLIMIT" means an amount equal to $50,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility. 23 "LIEN" means any mortgage, pledge, hypothecation, assignment for security, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capitalized Lease having substantially the same economic effect as any of the foregoing but excluding operating leases). "LOAN" means an extension of credit by a Lender to a Borrower under Article 2 in the form of a Term Loan, a Revolving Credit Loan or a Swing Line Loan. "LOAN DOCUMENTS" means, collectively, (a) this Agreement, (b) the Notes, (c) the Guaranty, (d) the Collateral Documents, (e) the Fee Letter and (f) each Letter of Credit Application. "LOAN PARTIES" means, collectively, the Borrowers and each Guarantor. "MAJORITY-OWNED SUBSIDIARY" means a Consolidated Subsidiary that is not wholly-owned (directly or indirectly) by one or both Borrowers. "MANAGEMENT AGREEMENT" means each of the agreements set forth on Schedule 1.01C. "MASTER AGREEMENT" has the meaning specified in the definition of "Swap Contract." "MATERIAL ADVERSE EFFECT" means (a) a material adverse effect on the business, assets, liabilities, results of operations, or financial position of the Borrowers and their Restricted Subsidiaries, taken as a whole, (b) a material adverse effect on the ability of any Loan Party to perform its obligations under the Loan Documents or (c) a material adverse effect on the rights and remedies of the Lenders under the Loan Documents; provided that the effect of the Closing Date Dividend, borrowings of Loans and the other elements of the Transaction shall be excluded in such determination. "MATERIAL REAL PROPERTY" means fee owned real property with a value in excess of $5,000,000. "MATURITY DATE" means (a) with respect to the Revolving Credit Facility and the Swing Line Facility, the earlier of (i) the sixth anniversary of the Closing Date and (ii) the date of termination in whole of the Revolving Credit Commitments, the Letter of Credit Commitments, and the Swing Line Commitments pursuant to Section 2.06(a) or 8.02, (b) with respect to the Term A Loans, the earlier of (i) the sixth anniversary from the Closing Date and (ii) the date of acceleration of the Term Loans pursuant to Section 8.02 and (c) with respect to the Term B Loans, the earlier of (i) the eighth anniversary of the Closing Date and (ii) the date of acceleration of the Term Loans pursuant to Section 8.02. "MAXIMUM RATE" has the meaning specified in Section 11.11. "MOODY'S" means Moody's Investors Service, Inc. and any successor thereto. 24 "MORTGAGE" means, collectively, each mortgage executed and delivered on or about the Closing Date and thereafter pursuant to Section 6.12. "MULTIEMPLOYER PLAN" means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which Holdings, a Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions. "NET CASH PROCEEDS" means: (a) with respect to the Disposition of any asset by any Restricted Company or any Casualty Event, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition or Casualty Event (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received and, with respect to any Casualty Event, any insurance proceeds or condemnation awards in respect of such Casualty Event actually received by or paid to or for the account of such Restricted Company) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the asset subject to such Disposition or Casualty Event and that is repaid in connection with such Disposition or Casualty Event (other than Indebtedness under the Loan Documents), (B) the out-of-pocket expenses (including attorneys' fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees) actually incurred by such Restricted Company in connection with such Disposition or Casualty Event, (C) taxes paid or reasonably estimated to be payable by such Restricted Company or any of the direct or indirect members thereof and attributable to such Disposition (including, in respect of any proceeds received in connection with a Disposition or Casualty Event of any asset of any Foreign Subsidiary, deductions in respect of withholding taxes that are or would be payable in cash if such funds were repatriated to the United States), and (D) any reserve for adjustment in respect of (1) the sale price of such asset or assets established in accordance with GAAP and (2) any liabilities associated with such asset or assets and retained by such Restricted Company after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction and it being understood that "Net Cash Proceeds" shall include any cash or Cash Equivalents (i) received upon the Disposition of any non-cash consideration received by such Restricted Company in any such Disposition and (ii) upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (D) of the preceding sentence or, if such liabilities have not been satisfied in cash and such reserve not reversed within 365 days after such Disposition or Casualty Event, the amount of such reserve; provided that (x) no proceeds realized in a single transaction or series of related transactions shall constitute Net Cash Proceeds unless such proceeds shall exceed $50,000,000 and (y) no proceeds shall constitute Net Cash Proceeds under this clause (a) in any fiscal year until the aggregate amount of all such proceeds in such fiscal year shall exceed $100,000,000 (and thereafter only proceeds in excess of such amount shall constitute Net Cash Proceeds under this clause (a)); 25 (b) with respect to the issuance of any Equity Interest by any Restricted Company, the excess of (i) the sum of the cash and Cash Equivalents received in connection with such issuance over (ii) all taxes (including, in respect of any proceeds received in connection with the issuance of Equity Interests of any Foreign Subsidiary, deductions in respect of withholding taxes that are or would otherwise be payable in cash if such funds were repatriated to the United States) and fees (including investment banking fees, underwriting discounts, commissions, costs and other out-of-pocket expenses and other customary expenses) incurred by such Restricted Company (or, in the case of taxes, any member thereof) in connection with such issuance; and (c) with respect to the incurrence or issuance of any Indebtedness by any Restricted Company, the excess, if any, of (i) the sum of the cash received in connection with such sale over (ii) the investment banking fees, underwriting discounts, commissions, costs and other out-of-pocket expenses and other customary expenses, incurred by such Restricted Company (or, in the case of taxes, any member thereof) in connection with such incurrence or issuance and, in the case of Indebtedness of any Foreign Subsidiary, deductions in respect of withholding taxes that are or would otherwise be payable in cash if such funds were repatriated to the United States. "NET WORKING CAPITAL" means, at any date and for any Person, (a) the consolidated current assets of such Person and its Consolidated Subsidiaries as of such date (excluding cash and Cash Equivalents) minus (b) the consolidated current liabilities of such Person and its Consolidated Subsidiaries as of such date (excluding current liabilities in respect of Indebtedness), in each case as determined in accordance with GAAP. "NON-CONSENTING LENDER" has the meaning specified in Section 3.09(e). "NONRENEWAL NOTICE DATE" has the meaning specified in Section 2.03(b)(iii). "NOTE" means a Term Note or a Revolving Credit Note, as the context may require. "NOTICE OF INTENT TO MAKE AN EQUITY INFUSION" has the meaning specified in Section 6.02(b). "NOT OTHERWISE APPLIED" means, with reference to any amount of Net Cash Proceeds of any transaction or event or of Excess Cash Flow, that such amount (a) in the case of Excess Cash Flow, was not required to be applied to prepay the Loans pursuant to Section 2.05(b)(i), other than as a result of clause (B) thereof or to the extent that such portion of Excess Cash Flow represented a shortfall amount (as defined therein) which has not been paid pursuant to the terms of Section 2.05(b)(i), (b) in the case of the amount of Net Cash Proceeds of a transaction, was not required to be applied to prepay the Loans pursuant to Section 2.05(b)(ii), Section 2.05(b)(iii) or Section 2.05(b)(iv), other than because such Net Cash Proceeds represented Unavailable Regulated Subsidiary Funds, (c) was not previously included in a calculation of "Consolidated EBITDA" pursuant to clause (b)(xviii) of the definition thereof and (d) was not previously applied in determining the permissibility of a transaction under the Loan Documents where such permissibility was (or may have been) contingent on receipt of such amount. "OBLIGATIONS" means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any 26 Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents include (a) the obligation to pay principal, interest, Letter of Credit commissions, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party under any Loan Document and (b) the obligation of any Loan Party to reimburse any amount in respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such Loan Party. "ORGANIZATION DOCUMENTS" means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-US. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity. "OTHER TAXES" has the meaning specified in Section 3.01(c). "OUTSTANDING AMOUNT" means (a) with respect to the Term Loans, Revolving Credit Loans and Swing Line Loans on any date, the principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, Revolving Credit Loans (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Borrowings as a Revolving Credit Borrowing) and Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount thereof on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes thereto as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing) or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date. "PARTICIPANT" has the meaning specified in Section 11.07(f). "PBGC" means the Pension Benefit Guaranty Corporation. "PENSION PLAN" means any "employee pension benefit plan" (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by Holdings, a Borrower or any ERISA Affiliate or to which Holdings, a Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years. 27 "PERMITTED ACQUISITION" has the meaning specified in Section 7.02(h). "PERMITTED ACQUISITION DEBT" means any Permitted Subordinated Indebtedness or any Permitted Senior Indebtedness permitted to be incurred pursuant to Section 7.03(a), in each case incurred in connection with a Permitted Acquisition, or any Contributed Holdco Debt (the Net Cash Proceeds of which are used to finance a Permitted Acquisition). "PERMITTED ENCUMBRANCES" has the meaning specified in the Mortgages. "PERMITTED EQUITY ISSUANCE" means any sale or issuance of any Equity Interests (other than Disqualified Equity Interests) of Holdings to the extent (a) permitted hereunder and (b) the Net Cash Proceeds of which are not required to be applied to the prepayment of the Loans pursuant to Section 2.05(b). "PERMITTED HOLDCO DEBT" has the meaning specified in Section 7.03(s). "PERMITTED HOLDERS" means FNF and the Sponsor. "PERMITTED REFINANCING" means, with respect to any Person, any modification, refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder or as otherwise permitted pursuant to Section 7.03, (b) such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) if the Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended, taken as a whole, (d) the terms and conditions (including, if applicable, as to collateral) of any such modified, refinanced, refunded, renewed or extended Indebtedness are not materially less favorable to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness being modified, refinanced, refunded, renewed or extended, taken as a whole, (e) such modification, refinancing, refunding, renewal or extension is incurred by the Person who is the obligor on the Indebtedness being modified, refinanced, refunded, renewed or extended, and such new or additional obligors as are or become Loan Parties in accordance with Section 6.12 and with respect to subordinated Indebtedness the obligations of such obligors shall be subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in documentation governing the Indebtedness, taken as a whole and (f) at the time thereof, no Event of Default shall have occurred and be continuing. 28 "PERMITTED SENIOR INDEBTEDNESS" means any unsecured Indebtedness (other than Permitted Subordinated Indebtedness) that (a) is not scheduled to mature prior to the date that is 91 days after the scheduled Maturity Date of the Term B Loans (or any later scheduled Maturity Date of any Additional Term Loans outstanding on the date of issuance of such Indebtedness), (b) has no scheduled amortization or payments of principal prior to the scheduled Maturity Date of the Term B Loans (or any later scheduled Maturity Date of any Additional Term Loans outstanding on the date of issuance of such Indebtedness), and (c) in the case of such Indebtedness (or series of related Indebtedness) in excess of the Threshold Amount, has mandatory prepayment, repurchase or redemption provisions no more onerous or expansive in scope, taken as a whole, than those contained in this Agreement for the Term B Loans or are otherwise reasonably acceptable to the Administrative Agent. "PERMITTED SUBORDINATED INDEBTEDNESS" means any unsecured Indebtedness that (a) is expressly subordinated to the prior payment in full in cash of the Obligations on terms not materially less favorable to the Lenders, taken as a whole, than the terms set forth on Exhibit H hereto or on such other terms as shall be reasonably acceptable to the Administrative Agent, (b) is not scheduled to mature prior to the date that is 91 days after the scheduled Maturity Date of the Term B Loans (or any later scheduled Maturity Date of any Additional Term Loans outstanding on the date of issuance of such Indebtedness), (c) has no scheduled amortization or payments of principal prior to the scheduled Maturity Date of the Term B Loans (or any later scheduled Maturity Date of any Additional Term Loans outstanding on the date of issuance of such Indebtedness), and (d) in the case of such Indebtedness (or series of related Indebtedness) in excess of the Threshold Amount, has mandatory prepayment, repurchase or redemption provisions no more onerous or expansive in scope, taken as a whole, than those contained in this Agreement for the Term B Loans or are otherwise reasonably acceptable to the Administrative Agent. "PERSON" means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. "PLAN" means any "employee pension benefit plan" (as such term is defined in Section 3(2) of ERISA) maintained or sponsored by Holdings or a Borrower or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate. "PLATFORM" has the meaning specified in Section 6.02. "PLEDGED DEBT" has the meaning specified in the Security Agreement. "PLEDGED EQUITY" has the meaning specified in the Security Agreement. "PRO FORMA BASIS", "PRO FORMA COMPLIANCE" and "PRO FORMA EFFECT" means, for purposes of calculating compliance with the Senior Leverage Ratio or each of the financial covenants set forth in Section 7.11 in respect of a Specified Transaction, that such Specified Transaction and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement in such covenant: (a) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, in the case of a Permitted Acquisition or Investment 29 described in the definition of "Specified Transaction", shall be included, (b) any retirement of Indebtedness, and (c) any Indebtedness incurred or assumed by any Restricted Company in connection with such Specified Transaction, and if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination; provided that the foregoing pro forma adjustments may be applied to the Senior Leverage Ratio and the financial covenants set forth in Section 7.11 to the extent that such adjustments are consistent with the definition of Consolidated EBITDA and may take into account cost savings for which the necessary steps have been implemented or are reasonably expected to be implemented within twelve months after the closing of the applicable Permitted Acquisition. "PRO RATA SHARE" means, with respect to each Lender at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitments of such Lender under the applicable Facility or Facilities at such time and the denominator of which is the amount of the Aggregate Commitments under the applicable Facility or Facilities at such time; provided that if such Commitments have been terminated, then the Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof. "PUBLIC LENDER" has the meaning specified in Section 6.02. "PURCHASE AGREEMENT" means the Amended and Restated Stock Purchase Agreement dated as of March 9, 2005, among between Holdings, FNF and the Purchasers named therein. "PURCHASERS" means certain Affiliates of Thomas H. Lee Partners, L.P., Texas Pacific Group and Evercore Partners and the other "Purchasers" referred to in the Purchase Agreement. "QUALIFYING IPO" means the issuance by the Qualifying IPO Issuer of its common Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act of 1933 (whether alone or in connection with a secondary public offering). "QUALIFYING IPO ISSUER" means Holdings or a corporation or other legal entity formed for the purpose of consummating a Qualifying IPO which owns, directly or indirectly, 100% of the outstanding equity interests of Holdings or the Borrowers. "RECAPITALIZATION" means the Equity Purchase and the Closing Date Dividend and use of the proceeds contemplated by the definition thereof. "REGISTER" has the meaning set forth in Section 11.07(e). "REGULATED SUBSIDIARY" means any Restricted Subsidiary that is subject to regulation as an insurance company by any Governmental Authority and for which the incurrence of Indebtedness (including Guarantees) or the granting of Liens with respect to its assets would be 30 prohibited or restricted or would result in a negative impact on any minimum capital or similar requirement applicable to it. "REGULATED SUBSIDIARY PORTION" has the meaning set forth in Section 2.05(b)(i). "REGULATORY SUPERVISING ORGANIZATION" means any Governmental Authority or regulatory organization of which a Regulated Subsidiary is a member or to whose rules it is subject. "REPORTABLE EVENT" means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived. "REQUEST FOR CREDIT EXTENSION" means (a) with respect to a Borrowing, conversion or continuation of Term Loans or Revolving Credit Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice. "REQUIRED LENDERS" means, as of any date of determination, Lenders having more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Lender's risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed "held" by such Lender for purposes of this definition), (b) aggregate unused Term Commitments, if any, and (c) aggregate unused Revolving Credit Commitments, if any; provided that the unused Term Commitment, unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders. "RESPONSIBLE OFFICER" means the chief executive officer, president, any vice president, chief financial officer, treasurer or assistant treasurer or other similar officer of a Loan Party and, as to any document delivered on the Closing Date, secretary or assistant secretary. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. "RESTRICTED COMPANIES" means Holdings, the Borrowers and the other Restricted Subsidiaries, and "RESTRICTED COMPANY" means any of the foregoing. "RESTRICTED PAYMENT" means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of any Restricted Company, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to Holdings or a Borrower's stockholders, partners or members (or the equivalent Persons thereof). "RESTRICTED SUBSIDIARY" means any Subsidiary of Holdings other than an Unrestricted Subsidiary (including in any event each Borrower). 31 "REVOLVING CREDIT BORROWING" means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Revolving Credit Lenders pursuant to Section 2.01(c). "REVOLVING CREDIT COMMITMENT" means, as to each Revolving Credit Lender, its obligation to (a) make Revolving Credit Loans to the Borrowers pursuant to Section 2.01(c), (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender's name on Schedule 2.01 under the caption "Revolving Credit Commitment" or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate Commitments of all Revolving Credit Lenders shall be $400,000,000 on the Closing Date, as such amount may be adjusted from time to time in accordance with the terms of this Agreement. "REVOLVING CREDIT FACILITY" means, at any time, the aggregate amount of the Revolving Credit Lenders' Revolving Credit Commitments at such time. "REVOLVING CREDIT LENDER" means, at any time, any Lender that has a Revolving Credit Commitment at such time. "REVOLVING CREDIT LOAN" has the meaning specified in Section 2.01(c). "REVOLVING CREDIT NOTE" means a promissory note of a Borrower payable to any Revolving Credit Lender or its registered assigns, in substantially the form of Exhibit C-3 hereto, evidencing the aggregate indebtedness of such Borrower to such Revolving Credit Lender resulting from the Revolving Credit Loans made by such Revolving Credit Lender. "ROLLOVER AMOUNT" has the meaning set forth in Section 7.17(b). "S&P" means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto. "SEC" means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions. "SECURED HEDGE AGREEMENT" means any Swap Contract permitted under Article 6 or 7 that is entered into by and between Holdings or any of its Subsidiaries and any Hedge Bank. "SECURED HEDGING OBLIGATIONS" has the meaning set forth in the Security Agreement. "SECURED OBLIGATIONS" has the meaning specified in the Security Agreement. "SECURED PARTIES" means, collectively, the Administrative Agent, the Lenders, the Hedge Banks, the Supplemental Administrative Agent and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.02. 32 "SECURITIZATION ASSETS" means any accounts receivable, royalty or revenue streams, other financial assets, proceeds and books, records and other related assets incidental to the foregoing subject to a Securitization Financing. "SECURITIZATION FINANCING" has the meaning referred to in Section 7.03(y). "SECURITIZATION VEHICLE" means one or more special purpose vehicles that are, directly or indirectly, wholly-owned Subsidiaries of Solutions and are Persons organized for the limited purpose of entering into a Securitization Financing by purchasing, or receiving by way of capital contributions, sale or other transfer, assets from the Borrowers and their Subsidiaries and obtaining financing for such assets from third parties, and whose structure is designed to insulate such vehicle from the credit risk of the Borrowers. "SECURITY AGREEMENT" means, collectively, the Security Agreement executed by Solutions and its Restricted Subsidiaries that are Loan Parties, substantially in the form of Exhibit G, together with each other security agreement supplement executed and delivered pursuant to Section 6.12. "SECURITY AGREEMENT SUPPLEMENT" has the meaning specified in the Security Agreement. "SENIOR INDEBTEDNESS" means (a) the aggregate Outstanding Amount of all Loans, the aggregate undrawn amount of all outstanding trade Letters of Credit and all Unreimbursed Amounts and (b) all other Indebtedness of the Borrowers and their Consolidated Subsidiaries of the type referred to in clauses (a), (b) (but solely in respect of letters of credit and bankers' acceptances, and solely to the extent drawn and not yet reimbursed), (d), (e), (f) and (h) of the definition thereof and all Guarantees of the Borrowers and their Restricted Subsidiaries in respect of such Indebtedness of any other Person, in each case other than Permitted Subordinated Indebtedness. "SENIOR LEVERAGE RATIO" means, at any date, the ratio of (a) Senior Indebtedness (net of Cash on Hand) of the Borrowers and their Consolidated Subsidiaries at such date to (b) Consolidated EBITDA of Holdings and its Consolidated Subsidiaries for the four fiscal quarters ended on or most recently prior to such date; provided that the amount determined pursuant to clause (a) above at any date shall be reduced, in the case of any such Indebtedness of a Majority-Owned Subsidiary, by an amount directly proportional to the amount (if any) by which Consolidated EBITDA determined pursuant to clause (b) above for such date was reduced (including through the calculation of Consolidated Net Income) by the elimination of a minority interest in such Majority-Owned Subsidiary owned by a Person other than a Restricted Company. "SENIOR SECURED INDEBTEDNESS" means all Senior Indebtedness of the Borrowers and their Consolidated Subsidiaries that is secured by a Lien on any assets of a Borrower or any Restricted Subsidiary which, in the case of Senior Secured Indebtedness consisting of revolving borrowings, shall be calculated based on the average daily outstanding amount of such Senior Secured Indebtedness for the four fiscal quarters most recently ended on or prior to such day (or, if fewer than four full fiscal quarters have elapsed since the Closing Date, for the period 33 commencing on the Closing Date and ending on the last day of the fiscal quarter most recently ended on or prior to such day). "SENIOR SECURED LEVERAGE RATIO" means, as of the end of any fiscal quarter of Holdings for the four fiscal quarter period ending on such date (or, if fewer than four full fiscal quarters have elapsed since the Closing Date, for the period commencing on the Closing Date and ending on the last day of the fiscal quarter most recently ended on or prior to such day), the ratio of (a) Senior Secured Indebtedness (net of Cash on Hand) on the last day of such period to (b) Consolidated EBITDA of Holdings and its Consolidated Subsidiaries for such period; provided that the amount of Senior Secured Indebtedness and/or Cash on Hand determined pursuant to clause (a) above at any date shall be reduced, in the case of any such Indebtedness or Cash on Hand of a Majority-Owned Subsidiary, by an amount directly proportional to the amount (if any) by which Consolidated EBITDA determined pursuant to clause (b) above for such date was reduced (including through the calculation of Consolidated Net Income) by the elimination of a minority interest in such Majority-Owned Subsidiary owned by a Person other than a Restricted Company. "SHARED SERVICES AGREEMENT" means the agreements set forth on Schedule 1.01D. "SHORTFALL AMOUNT" has the meaning set forth in Section 2.05(b)(i). "SOLUTIONS" has the meaning specified in the introductory paragraph to this Agreement. "SOLUTIONS RESTRICTED COMPANIES" means Solutions and its Restricted Subsidiaries. "SOLVENT" and "SOLVENCY" mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person's property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. "SPC" has the meaning specified in Section 11.07(i). "SPECIFIED EQUITY ISSUANCE" means the sale or issuance by any Restricted Company of any of its Equity Interests in a public offering or in a private placement or sale that is underwritten, managed, arranged, placed or initially purchased by an investment bank (it being understood that the Sponsor is not an investment bank), except the sale or issuance of any such Equity Interests (a) TO FNF, the Equity Investors, their Affiliates, related funds, general partners and limited partners, (b) to other Persons making additional equity investments together with FNF and the Equity Investors after the Closing Date, (c) the proceeds of which are used to fund 34 Investments permitted by Section 7.02, (d) issued as compensation to employees of any Fidelity Company or to management of Fidelity Company in the ordinary course of business or (e) used to cure Events of Default as contemplated by clause (b)(xviii) of the definition of Consolidated EBITDA. "SPECIFIED TRANSACTION" means, any Investment or incurrence of Indebtedness in respect of which compliance with the financial covenants set forth in Section 7.11 is by the terms of this Agreement required to be calculated on a Pro Forma Basis. "SPONSOR" means, collectively, Thomas H. Lee Partners, L.P. and its Affiliates, Texas Pacific Group and its Affiliates, Evercore Partners and its Affiliates and the other Purchasers (including, as applicable, related funds and general partners thereof and limited partners thereof, but solely to the extent any such limited partners are directly or indirectly participating as investors pursuant to a side-by-side investing arrangement). "STOCKHOLDERS AGREEMENT" means the Stockholders Agreement dated as of March 9, 2005 among FNF, Holdings, the Sponsors and the other parties thereto. "SUBSIDIARY" of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of Holdings. "SUBSIDIARY GUARANTY" means, collectively, the Subsidiary Guaranty made by the Subsidiaries of the Borrowers that are Guarantors in favor of the Administrative Agent on behalf of the Lenders, substantially in the form of Exhibit F, together with each other guaranty and guaranty supplement delivered pursuant to Section 6.12(a). "SUPPLEMENTAL ADMINISTRATIVE AGENT" has the meaning specified in Section 9.13 and "Supplemental Administrative Agents" shall have the corresponding meaning. "SWAP CONTRACT" means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward contracts, futures contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, repurchase agreements, reverse repurchase agreements, sell buy backs and buy sell back agreements, and securities lending and borrowing agreements or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any 35 form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement or related schedules, including any such obligations or liabilities arising therefrom. "SWAP TERMINATION VALUE" means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender). "SWING LINE BORROWING" means a borrowing of a Swing Line Loan pursuant to Section 2.04. "SWING LINE FACILITY" means the revolving credit facility made available by the Swing Line Lender pursuant to Section 2.04. "SWING LINE LENDER" means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder. "SWING LINE LOAN" has the meaning specified in Section 2.04(a). "SWING LINE LOAN NOTICE" means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit B. "SWING LINE SUBLIMIT" means an amount equal to the lesser of (a) $50,000,000 and (b) the Revolving Credit Commitments. The Swing Line Sublimit is part of, and not in addition to, the Revolving Credit Commitments. "TAX" has the meaning specified in the introductory paragraph to this Agreement. "TAX RESTRICTED COMPANIES" means Tax and its Restricted Subsidiaries. "TAXES" has the meaning specified in Section 3.01(a). "TERM A BORROWING" means a borrowing consisting of simultaneous Term A Loan's of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Term A Lenders pursuant to Section 2.01(a). "TERM A COMMITMENT" means, as to each Term A Lender, its obligation to make a Term A Loan to the Borrowers pursuant to Section 2.01(a) in an aggregate amount not to exceed the amount set forth opposite such Term A Lender's name on Schedule 2.01 under the caption "Term A Commitment" or in the Assignment and Assumption pursuant to which such Term A Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The initial aggregate amount of the Term A Commitments is $800,000,000. 36 "TERM A LENDER" means, at any time, any Lender that has a Term A Commitment or Term A Loans at such time. "TERM A LOAN" means a Loan made pursuant to Section 2.01(a). "TERM B BORROWING" means a borrowing consisting of simultaneous Term B Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Term B Lenders pursuant to Section 2.01(b). "TERM B COMMITMENT" means, as to each Term B Lender, its obligation to make a Term B Loan to the Borrowers pursuant to Section 2.01(b) in an aggregate amount not to exceed the amount set forth opposite such Term B Lender's name on Schedule 2.01 under the caption "Term B Commitment" or in the Assignment and Assumption pursuant to which such Term B Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The initial aggregate amount of the Term B Commitments is $2,000,000,000. "TERM B LENDER" means, at any time, any Lender that has a Term B Commitment or Term B Loans at such time. "TERM B LOAN" means a Loan made pursuant to Section 2.01(b). "TERM COMMITMENT" means a Term A Commitment or a Term B Commitment and "TERM COMMITMENTS" means the Term A Commitments and the Term B Commitments. "TERM LENDER" means, at any time, any Lender that is a Term A Lender or a Term B Lender. "TERM LOAN" means either Term A Loans or Term B Loans, and "TERM LOANS" means the Term A Loans and the Term B Loans. "TERM NOTE" means a promissory note of a Borrower payable to any Term Lender or its registered assigns, in substantially the form of Exhibit C-1 or Exhibit C-2 hereto, evidencing the aggregate indebtedness of such Borrower to such Term Lender resulting from the Term Loans made by such Term Lender. "THRESHOLD AMOUNT" means $50,000,000. "TOTAL CONSOLIDATED ASSETS" means, at any time, the total assets appearing on the most recently prepared consolidated balance sheet of Holdings and its Consolidated Subsidiaries as of the end of the most recent fiscal quarter of Holdings and its Consolidated Subsidiaries for which such balance sheet is available, prepared in accordance with GAAP. "TOTAL OUTSTANDINGS" means the aggregate Outstanding Amount of all Loans and all L/C Obligations. 37 "TRANSACTION" means, collectively, (a) the Equity Purchase, (b) the Recapitalization, (c) the funding of the Term Loans and (d) the payment of the fees and expenses incurred in connection with any of the foregoing. "TYPE" means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan. "UNAVAILABLE REGULATED SUBSIDIARY FUNDS" means at any time funds held by a Regulated Subsidiary at such time that, as a result of the failure to receive necessary regulatory approvals or otherwise, may not be remitted to an Unregulated Person, pursuant to intercompany loans, distributions on equity or otherwise, without causing such Regulated Subsidiary's capital and surplus to be less than 200% of the minimum statutory capital and surplus required for such Regulated Subsidiary by the relevant Regulatory Supervising Organization. "UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral. "UNITED STATES" and "U.S." mean the United States of America. "UNREGULATED PERSON" means Holdings, the Borrowers and each of their respective Subsidiaries other than any Regulated Subsidiary. "UNREIMBURSED AMOUNT" has the meaning set forth in Section 2.03(c)(i). "UNRESTRICTED SUBSIDIARY" means (a) each Subsidiary of Holdings listed on Schedule 1.01E and (b) any Subsidiary of Holdings designated by the board of directors of Holdings as an Unrestricted Subsidiary pursuant to Section 6.15 subsequent to the date hereof. "U.S. LENDER" has the meaning set forth in Section 11.16(b). "WACHOVIA CREDIT AGREEMENT" means the Revolving Credit Agreement dated as of November 8, 2004 among Holdings, as borrower, and Wachovia Bank, National Association, as Administrative Agent and Swing Line Lender, Bank of America, as Syndication Agent, and the other lenders party thereto. "WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness. Section 1.02. Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document: 38 (a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms. (b) The words "herein," "hereto," "hereof" and "hereunder" and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof. (c) Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears. (d) The term "including" is by way of example and not limitation. (e) In the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including;" the words "to" and "until" each mean "to but excluding;" and the word "through" means "to and including." (f) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document. Section 1.03. Accounting Terms. (a) All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations pursuant to Section 7.11) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, as in effect from time to time, applied on a basis consistent (except for changes concurred in by Holdings' independent public accountants) with the most recent audited consolidated financial statements of Holdings and its Subsidiaries delivered to the Lenders pursuant to Section 6.01 or, prior to such delivery, the Historical Financial Statements for the fiscal year ended December 31, 2003. (b) If at any time any change in GAAP would affect the computation of any financial ratio set forth in any Loan Document, and either the Borrowers or the Required Lenders shall so request, the Administrative Agent and the Borrowers shall negotiate in good faith to amend such ratio to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrowers shall provide to the Administrative Agent and the Lenders a written reconciliation in form reasonably satisfactory to the Administrative Agent, between calculations of such ratio made before and after giving effect to such change in GAAP. It is understood that the provisions of this clause (b) shall not apply to the computation of "Excess Cash Flow" for any purpose under this Agreement. (c) Notwithstanding anything to the contrary contained herein, financial ratios and other financial calculations pursuant to this Agreement shall, following any Specified Transaction, be calculated on a Pro Forma Basis until the completion of four full fiscal quarters following such Specified Transaction. 39 (d) When calculating any amount required to be consolidated for the Borrowers and any of their Consolidated Subsidiaries on a consolidated basis, such amount is to be calculated by adding (i) the relevant amount determined with respect to Solutions and its Consolidated Subsidiaries on a consolidated basis and (ii) the relevant amount determined with respect to Tax and its Consolidated Subsidiaries on a consolidated basis, and eliminating intercompany accounts as though all such entities were a part of a single consolidated group, all in accordance with GAAP. Section 1.04. Rounding. Any financial ratios required to be maintained by Holdings and the Borrowers pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number). Section 1.05. References to Agreements and Laws. Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law. Section 1.06. Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable). Section 1.07. Timing of Payment or Performance. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, with respect to any payment of interest on or principal of Eurodollar Rate Loans, if such extension would cause any such payment to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day. ARTICLE 2 THE COMMITMENTS AND CREDIT EXTENSIONS Section 2.01. The Loans. (a) The Term A Borrowings. Subject to the terms and conditions set forth herein, each Term A Lender severally agrees to make, on the Closing Date, (i) a single loan to Solutions in an amount equal to 85% of such Term A Lender's Term A Commitment and (ii) a single loan to Tax in an amount equal to 15% of such Term A Lender's Term A Commitment. Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be reborrowed. Term A Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein. 40 (b) The Term B Borrowings. Subject to the terms and conditions set forth herein, each Term B Lender severally agrees to make, on the Closing Date, (i) a single loan to Solutions in an amount equal to 85% of such Term B Lender's Term B Commitment and (ii) a single loan to Tax in an amount equal to 15% of such Term B Lender's Term B Commitment. Amounts borrowed under this Section 2.01(b) and repaid or prepaid may not be reborrowed. Term B Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein. (c) The Revolving Credit Borrowings. Subject to the terms and conditions set forth herein, each Revolving Credit Lender severally agrees to make loans to the Borrowers (each such loan, a "REVOLVING CREDIT LOAN") from time to time, on any Business Day until the Maturity Date, in an aggregate amount not to exceed at any time outstanding the amount of such Lender's Revolving Credit Commitment; provided that after giving effect to any Revolving Credit Borrowing, the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's Revolving Credit Commitment. Within the limits of each Lender's Revolving Credit Commitment, and subject to the other terms and conditions hereof, a Borrower may borrow under this Section 2.01(c), prepay under Section 2.05 and reborrow under this Section 2.01(c). Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein. Section 2.02. Borrowings, Conversions and Continuations of Loans. (a) Each Term A Borrowing, each Term B Borrowing, each Revolving Credit Borrowing, each conversion of Term Loans or Revolving Credit Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon a Borrower's irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than 1:00 p.m. (i) three Business Days prior to the requested date of any Borrowing of Eurodollar Rate Loans, continuation of Eurodollar Rate Loans or any conversion of Base Rate Loans to Eurodollar Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans. Each telephonic notice by a Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of a Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Section 2.03(c)(i) and Section 2.04(c)(i), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether such Borrower is requesting a Term A Borrowing, a Term B Borrowing, a Revolving Credit Borrowing, a conversion of Term Loans or Revolving Credit Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or which existing Term Loans or Revolving Credit Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If a Borrower fails to specify a Type of Loan in a Committed Loan Notice or fails to give a timely notice requesting a conversion or continuation, then the applicable Term Loans or Revolving Credit Loans shall be made as, or 41 converted to, a Eurodollar Rate Loan with an Interest Period of 30 days (subject to the definition of Interest Period). Any such automatic conversion to Eurodollar Rate Loans with an Interest Period of 30 days shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If a Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Appropriate Lender of the amount of its Pro Rata Share of the applicable Class of Loans, and if no timely notice of a conversion or continuation is provided by the relevant Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Eurodollar Rate Loans with an Interest Period of 30 days or continuation described in Section 2.02(a). In the case of each Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent's Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received available to the relevant Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the relevant Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to the Administrative Agent by the relevant Borrower; provided that if, on the date the Committed Loan Notice with respect to such Borrowing is given by the relevant Borrower, there are Swing Line Loans or L/C Borrowings outstanding, then the proceeds of such Borrowing shall be applied, first, to the payment in full of any such L/C Borrowings, second, to the payment in full of any such Swing Line Loans, and third, to the relevant Borrower as provided above. (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan unless the relevant Borrower pays the amount due, if any, under Section 3.07 in connection therewith. During the existence of an Event of Default, the Administrative Agent or the Required Lenders may require that no Loans may be converted to or continued as Eurodollar Rate Loans. (d) The Administrative Agent shall promptly notify the Borrowers and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate. The determination of the Eurodollar Rate by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrowers and the Lenders of any change in Bank of America's prime rate used in determining the Base Rate promptly following the public announcement of such change. (e) After giving effect to all Term A Borrowings, all Term B Borrowings, all Revolving Credit Borrowings, all conversions of Term Loans or Revolving Credit Loans from one Type to the other, and all continuations of Term Loans or Revolving Credit Loans as the same Type, there shall not be more than 20 Interest Periods in effect. 42 (f) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing. Section 2.03. Letters of Credit. (a) The Letter of Credit Commitment. (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the relevant Borrower and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of the relevant Borrower; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension or after giving effect thereto, (x) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans would exceed such Lender's Revolving Credit Commitment or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers' ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. (ii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if: (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which, in each case, the L/C Issuer in good faith deems material to it; (B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last renewal, unless the Revolving Credit Lenders (other than any Revolving Credit Lender that is a Defaulting Lender) have approved such expiry date; (C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit 43 Lenders (other than any Revolving Credit Lender that is a Defaulting Lender) have approved such expiry date; or (D) the issuance of such Letter of Credit would violate any Laws or one or more policies of the L/C Issuer. (iii) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of Credit. (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of a Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of such Borrower. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 1:00 p.m. at least two Business Days prior to the proposed issuance date or date of amendment, as the case may be, or such later date and time as the L/C Issuer may agree in a particular instance in its sole discretion. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may reasonably request. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the L/C Issuer: (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the L/C Issuer may reasonably request. In the event that any Letter of Credit Application includes representations and warranties, covenants and/or events of default that do not contain the materiality qualifiers, exceptions or thresholds that are applicable to the analogous provisions of this Agreement or other Loan Documents, or are otherwise more restrictive, the relevant qualifiers, exceptions and thresholds contained herein shall be incorporated therein or, to the extent more restrictive, shall be deemed for purposes of such Letter of Credit Application to be the same as the analogous provisions herein. (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from a Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by the L/C Issuer of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof (such confirmation to be promptly provided by the Administrative Agent), then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the relevant Borrower or enter into the 44 applicable amendment, as the case may be. Immediately upon the issuance of each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender's Pro Rata Share times the amount of such Letter of Credit. (iii) If a Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic renewal provisions (each, an "AUTO-RENEWAL LETTER OF Credit"); provided that any such Auto-Renewal Letter of Credit must permit the L/C Issuer to prevent any such renewal at least once in each twelve month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the "NONRENEWAL NOTICE DATE") in each such twelve month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrowers shall not be required to make a specific request to the L/C Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the renewal of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided that the L/C Issuer shall not permit any such renewal if (A) the L/C Issuer has determined that it would have no obligation at such time to issue such Letter of Credit in its renewed form under the terms hereof (by reason of the provisions of Section 2.03(a)(ii) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five Business Days before the Nonrenewal Notice Date from the Administrative Agent, any Revolving Credit Lender or the Borrowers that one or more of the applicable conditions specified in Section 4.02 is not then satisfied. (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the relevant Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment. (c) Drawings and Reimbursements; Funding of Participations. (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the relevant Borrower and the Administrative Agent thereof. Not later than 3:00 p.m. on the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an "HONOR DATE"), the relevant Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing; provided that if notice of such drawing is not provided to the relevant Borrower prior to 1:00 p.m. on the Honor Date, then such Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing on the next succeeding Business Day and such extension of time shall be reflected in computing fees in respect of any such Letter of Credit. If such Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Credit Lender of the Honor Date, the amount of the unreimbursed drawing (the "UNREIMBURSED AMOUNT"), and the amount of such Revolving Credit Lender's Pro Rata Share thereof. In such event, such Borrower shall be deemed to have requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date 45 in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02(a) for the principal amount of Base Rate Loans but subject to the amount of the unutilized portion of the Revolving Credit Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice. (ii) Each Revolving Credit Lender (including the Lender acting as L/C Issuer) shall upon any notice pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent for the account of the L/C Issuer, in Dollars, at the Administrative Agent's Office in an amount equal to its Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the relevant Borrower in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer. (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans, the relevant Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving Credit Lender's payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03. (iv) Until each Revolving Credit Lender funds its Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender's Pro Rata Share of such amount shall be solely for the account of the L/C Issuer. (v) Each Revolving Credit Lender's obligation to make Revolving Credit Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer; the Borrowers or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default; or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Revolving Credit Lender's obligation to make Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by a Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of any Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein. 46 (vi) If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. A certificate of the L/C Issuer submitted to any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi) shall be conclusive absent manifest error. (d) Repayment of Participations. (i) If, at any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Credit Lender such Lender's L/C Advance in respect of such payment in accordance with Section 2.03(c), the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from a Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Pro Rata Share thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender's L/C Advance was outstanding) in the same funds as those received by the Administrative Agent. (ii) If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 11.06 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Credit Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. (e) Obligations Absolute. The obligation of the Borrowers to reimburse the L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following: (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document; (ii) the existence of any claim, counterclaim, setoff, defense or other right that any Borrower may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction; 47 (iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit; (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; (v) any exchange, release or nonperfection of any Collateral, or any release or amendment or waiver of or consent to departure from the Guaranty or any other guarantee, for all or any of the Obligations of the Borrowers in respect of such Letter of Credit; or (vi) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrowers; provided that the foregoing shall not excuse the L/C Issuer from liability to the Borrowers to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are waived by the Borrowers to the extent permitted by applicable law) suffered by the Borrowers that are caused by the L/C Issuer's gross negligence or willful misconduct. The Borrowers shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the relevant Borrower's instructions or other irregularity, such Borrower will promptly notify the L/C Issuer. The Borrowers shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid. (f) Role of L/C Issuer. Each Lender and the Borrowers agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, any Agent-Related Person nor any of the respective correspondents, participants or assignees of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. The Borrowers hereby assume all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided that this assumption is not intended to, and shall not, preclude the Borrowers from pursuing such rights and remedies as it may have against the 48 beneficiary or transferee at Law or under this Agreement or any other agreement. None of the L/C Issuer, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of the L/C Issuer, shall be liable or responsible for any of the matters described in clauses (i) through (vi) of Section 2.03(e); provided that anything in such clauses to the contrary notwithstanding, the Borrowers may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrowers, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by a Borrower which such Borrower proves were caused by the L/C Issuer's willful misconduct or gross negligence or the L/C Issuer's willful or grossly negligent failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. (g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing and the conditions set forth in Section 4.02 to a Revolving Credit Borrowing cannot then be met, or (ii) if, as of the Letter of Credit Expiration Date, any Letter of Credit may for any reason remain outstanding and partially or wholly undrawn, the relevant Borrower shall, within three Business Days, Cash Collateralize the then Outstanding Amount of all L/C Obligations (in an amount equal to such Outstanding Amount determined as of the date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case may be) or, in the case of clause (ii), provide a back-to-back letter of credit in a face amount at least equal to the then undrawn amount of such Letter of Credit from an issuer and in form and substance reasonably satisfactory to the L/C Issuer. For purposes hereof, "CASH COLLATERALIZE" means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances ("CASH COLLATERAL") pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the L/C Issuer (which documents are hereby consented to by the Lenders). Derivatives of such term have corresponding meanings. Cash Collateral shall be maintained in a Cash Collateral Account. If at any time the Administrative Agent determines that any funds held as Cash Collateral are subject to any right or claim of any Person other than rights or claims of the Administrative Agent and claims of the Collateral Agent arising by operation of law or that the total amount of such funds is less than the aggregate Outstanding Amount of all L/C Obligations, the Borrowers will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and held in the Cash Collateral Account, an amount equal to the excess of (a) such aggregate Outstanding Amount over (b) the total amount of funds, if any, then held as Cash Collateral that the Administrative Agent determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable Law, to reimburse the L/C Issuer. To the extent the amount of any Cash Collateral exceeds the aggregate Outstanding Amount of all 49 L/C Obligations and so long as no Event of Default has occurred and is continuing, the excess shall be refunded to the Borrowers. (h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by the L/C Issuer and the Borrowers when a Letter of Credit is issued, (i) the rules of the "International Standby Practices 1998" published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance shall apply to each commercial Letter of Credit. (i) Letter of Credit Fees. The Borrowers shall pay to the Administrative Agent for the account of each Revolving Credit Lender in accordance with its Pro Rata Share a Letter of Credit fee for each Letter of Credit issued for the account of a Borrower equal to the Applicable Margin times the daily maximum amount then available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit if such maximum amount increases periodically pursuant to the terms of such Letter of Credit). Such letter of credit fees shall be computed on a quarterly basis in arrears. Such letter of credit fees shall be due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If there is any change in the Applicable Margin during any quarter, the daily maximum amount of each Letter of Credit shall be computed and multiplied by the Applicable Margin separately for each period during such quarter that such Applicable Margin was in effect. (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The Borrowers shall pay directly to the L/C Issuer for its own account a fronting fee with respect to each Letter of Credit issued for the account of a Borrower equal to 0.125% per annum (or, in the case of any L/C Issuer, any lesser percentage that may be agreed by the Borrowers and such L/C Issuer) of the daily maximum amount then available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit if such maximum amount increases periodically pursuant to the terms of such Letter of Credit). Such fronting fees shall be computed on a quarterly basis in arrears. Such fronting fees shall be due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. In addition, the Borrowers shall pay directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable within five Business Days of demand and are nonrefundable. (k) Conflict with Letter of Credit Application. In the event of any conflict between the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control. Section 2.04. Swing Line Loans. (a)The Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender agrees to make loans (each such loan, a 50 "SWING LINE LOAN") to the Borrowers from time to time on any Business Day (other than the Closing Date) until the Maturity Date in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Pro Rata Share of the Outstanding Amount of Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender's Commitment; provided that after giving effect to any Swing Line Loan, the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's Revolving Credit Commitment; provided further that the Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.04, prepay under Section 2.05 and reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender's Pro Rata Share times the amount of such Swing Line Loan. (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon a Borrower's irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the relevant Borrower. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Revolving Credit Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the provisos to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the relevant Borrower. (c) Refinancing of Swing Line Loans. (i) The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrowers (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Revolving Credit Lender make a Base Rate Loan in an amount equal to such Lender's Pro Rata Share of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance 51 with the requirements of Section 2.02(a), without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the aggregate Revolving Credit Commitments and the conditions set forth in Section 4.02. The Swing Line Lender shall furnish the Borrowers with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent. Each Revolving Credit Lender shall make an amount equal to its Pro Rata Share of the amount specified in such Committed Loan Notice available to the Administrative Agent in immediately available funds for the account of the Swing Line Lender at the Administrative Agent's Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the relevant Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender. (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Credit Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Revolving Credit Lenders fund its risk participation in the relevant Swing Line Loan and each Revolving Credit Lender's payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. (iii) If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error. (iv) Each Revolving Credit Lender's obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrowers or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Revolving Credit Lender's obligation to make Revolving Credit Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02 (other than delivery by a Borrower of a Committed Loan Notice). No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrowers to repay Swing Line Loans, together with interest as provided herein. 52 (d) Repayment of Participations. (i) At any time after any Revolving Credit Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Pro Rata Share of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender's risk participation was funded) in the same funds as those received by the Swing Line Lender. (ii) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 11.06 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Revolving Credit Lender shall pay to the Swing Line Lender its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the applicable Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Borrowers for interest on the Swing Line Loans. Until each Revolving Credit Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Lender's Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall be solely for the account of the Swing Line Lender. (f) Payments Directly to Swing Line Lender. The Borrowers shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender. Section 2.05. Prepayments. (a) Optional. (i) The Borrowers may, upon notice to the Administrative Agent, at any time or from time to time, voluntarily prepay the Term Loans and Revolving Credit Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the Administrative Agent not later than 11:00 a.m. (1) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of Base Rate Loans; (B) any prepayment of Eurodollar Rate Loans shall be in a minimum principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Class(es) and Type(s) of Loans to be prepaid. The Administrative Agent will promptly notify each Appropriate Lender of its receipt of each such notice, and of the amount of such Lender's Pro Rata Share of such prepayment. If such notice is given by a Borrower, such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.07. Each prepayment of the Loans pursuant to this Section 2.05(a) shall be applied among the Facilities in such amounts and, in the case of the Term Loans in such order of maturity as the Borrowers may direct in their sole discretion. Each prepayment in respect of a particular Facility shall be paid to the Appropriate Lenders in accordance with their respective Pro Rata Shares. 53 (ii) The Borrowers may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (1) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (2) any such prepayment shall be in a minimum principal amount of the lesser of $100,000 and the total principal amount of the Swing Line Loans then outstanding. Each such notice shall specify the date and amount of such prepayment. If such notice is given by a Borrower, such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. (iii) Notwithstanding anything to the contrary contained in this Agreement, the Borrowers may rescind any notice of prepayment under Section 2.05(a)(i) or 2.05(a)(ii) if such prepayment would have resulted from a refinancing of all of the Facilities, which refinancing shall not be consummated or shall otherwise be delayed. (b) Mandatory. (i) Within five Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b), the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to (A) 50% of Excess Cash Flow, if any, for the fiscal year covered by such financial statements (commencing with the fiscal year ended December 31, 2005, but determined for such fiscal year for the period from April 1, 2005 through December 31, 2005) minus the sum of (1) the amount of any prepayments of the Term Loans made pursuant to Section 2.05(a) during the fiscal year covered by such financial statements and (2) solely to the extent the Revolving Credit Commitments are reduced pursuant to Section 2.06(a) in connection therewith (and solely to the extent of the amount of such reduction), the amount of any prepayments of the Revolving Credit Loans made pursuant to Section 2.05(a) during the fiscal year covered by such financial statements; provided that such percentage shall be reduced to (x) 25% if the Senior Secured Leverage Ratio as of the last day of the immediately preceding four fiscal quarters was less than 3.75:1 and equal to or greater than 3.25:1 and (y) 0% if the Senior Secured Leverage Ratio as of the last day of the immediately preceding four fiscal quarters was less than 3.25:1; provided further that if the Borrowers determine, in their reasonable judgment, that (I) a portion of Excess Cash Flow for any fiscal period is reasonably attributable to the results of operations and cash flows of any Regulated Subsidiary (the "REGULATED SUBSIDIARY PORTION"), (II) such Regulated Subsidiary does not have funds that are not then Unavailable Regulated Subsidiary Funds to remit the full amount of such Regulated Subsidiary Portion to any Unregulated Person and (III) the Borrowers otherwise lack sufficient cash or Cash Equivalents or other sources of liquidity to prepay the Regulated Subsidiary Portion of such Excess Cash Flow for such fiscal year (the amount of any such shortfall for any period after giving effect to clauses (II) and (III), but not in excess of such Regulated Subsidiary Portion, a "SHORTFALL AMOUNT"), then the Borrowers' obligation to pay such Shortfall Amount shall be deferred until the date, if any, on which the Borrowers are able to so pay the Shortfall Amount or any portion thereof, including as a result of any funds of a Regulated Subsidiary ceasing to be Unavailable Regulated Subsidiary Funds. (ii) (A) If (1) any Restricted Company Disposes of any property or assets (other than any Disposition of any property or assets (x) permitted by Section 7.05(a) 54 through (j), (l), (m)(i), (n) through (s) or (u) or (y) consummated by any Regulated Subsidiary to the extent, and for so long as, the Net Cash Proceeds thereof are Unavailable Regulated Subsidiary Funds, or (2) any Casualty Event occurs (other than any Casualty Event with respect to any Regulated Subsidiary to the extent, and for so long as, the Net Cash Proceeds thereof are Unavailable Regulated Subsidiary Funds), which, in either case, in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of $1,000,000 in any fiscal year, the Borrowers shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received; provided that no such prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) if, on or prior to such date, the Borrowers shall have given written notice to the Administrative Agent of their intention to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 2.05(b)(ii)(B) (which election may only be made if no Event of Default has occurred and is then continuing); (B) With respect to any Net Cash Proceeds realized or received with respect to any Disposition or any Casualty Event required to be applied in accordance with Section 2.05(b)(ii)(A), at the option of the relevant Borrower, and so long as no Event of Default shall have occurred and be continuing, such Borrower may reinvest all or any portion of such Net Cash Proceeds in assets useful for its business within (x) 24 months following receipt of such Net Cash Proceeds or (y) if such Borrower enters into a contract to reinvest such Net Cash Proceeds within such 24-month period following receipt thereof, 30 months following receipt of such Net Cash Proceeds; provided that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 24 month period or 30 month period, as applicable, an amount equal to any such Net Cash Proceeds shall be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.05. (iii) On or prior to the date which is five Business Days after the receipt of any Net Cash Proceeds of any Specified Equity Issuance, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 50% of such Net Cash Proceeds received from such Specified Equity Issuance (other than any Specified Equity Issuance by any Regulated Subsidiary to the extent, and for so long as, the Net Cash Proceeds thereof are Unavailable Regulated Subsidiary Funds); provided that such percentage shall be reduced to (x) 25% if the Senior Secured Leverage Ratio as of the last day of the prior fiscal quarter was less than 3.75:1 but greater than or equal to 3.25:1 and (y) 0% if the Senior Secured Leverage Ratio as of the last day of the prior fiscal quarter was less than 3.25:1. (iv) If any Restricted Company incurs or issues (A) any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03, (B) any Permitted Subordinated Indebtedness or Permitted Senior Indebtedness pursuant to Section 7.03(a)(ii)(A) (to the extent not utilized within 90 days of the date of incurrence to make a Permitted Acquisition) or Section 7.03(a)(ii)(B) (other than (x) Permitted Subordinated 55 Indebtedness or Permitted Senior Indebtedness payable to FNF, the Equity Investors or their respective Affiliates, related funds, general partners or limited partners or any other Person that makes such an Investment with FNF, the Equity Investors and their Affiliates after the Closing Date and (y) such Indebtedness incurred by any Regulated Subsidiary to the extent, and for so long as, the Net Cash Proceeds thereof are Unavailable Regulated Subsidiary Funds) or (C) any Indebtedness incurred pursuant to Section 7.03(y), the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans (or, in the case of clause (C) above, at the Borrowers' election, either the Terms Loans or the Revolving Credit Loans; provided that if the Borrowers elect to apply such Net Cash Proceeds to prepay Revolving Credit Loans, the Revolving Credit Commitments shall be permanently reduced by an amount equal to such Net Cash Proceeds) in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds. (v) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied ratably to each of the Term A Loans and the Term B Loans and in direct order of maturities to the principal repayment installments of the Term Loans that are due after the date of such prepayment Loans. Each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares (prior to giving effect to any rejection by any Term B Lender of any such prepayment pursuant to clause (vi) below), subject to clause (vi) of this Section 2.05(b). (vi) The Borrowers shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (i) through (iv) of this Section 2.05(b) at least (A) in the case of the prepayment of Term Loans which are Base Rate Loans, three Business Days and (B) in the case of prepayments of Term Loans which are Eurodollar Rate Loans, five Business Days, in each case prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrowers' prepayment notice and of such Appropriate Lender's Pro Rata Share of the prepayment. Any Term B Lender may elect, by delivering, not less than (A) in the case of prepayments of Term B Loans which are Base Rate Loans, one Business Day and (B) in the case of prepayments of Term B Loans which are Eurodollar Rate Loans, three Business Days, in each case prior to the proposed prepayment date, a written notice that any mandatory prepayment otherwise required to be made with respect to the Term B Loans held by such Term B Lender pursuant to clauses (i) through (iv) of this Section 2.05(b) not be made, in which event 50% of such prepayment which would otherwise have been applied to the Term B Loans of such Term B Lenders shall be applied to the Term A Loans and 50% shall be retained by the Borrowers. (c) Funding Losses, Etc. All prepayments under this Section 2.05 shall be made together with, in the case of any such prepayment of a Eurodollar Rate Loan on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such Eurodollar Rate Loan pursuant to Section 3.07. Notwithstanding any of the other provisions of Section 2.05(b), so long as no Event of Default shall have occurred and be continuing, if any prepayment of Eurodollar Rate Loans is required to be made under Section 2.05(b), other than on the last day of 56 the Interest Period therefor, the Borrowers may, in their sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder into a Cash Collateral Account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from the Borrowers or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with Section 2.05(b). Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrowers or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in accordance with Section 2.05(b). Section 2.06. Termination or Reduction of Commitments. (a) Optional. The Borrowers may, upon written notice to the Administrative Agent, terminate the Revolving Credit Commitments, or from time to time permanently reduce the Revolving Credit Commitments; provided that (i) any such notice shall be received by the Administrative Agent one Business Day prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of (A) $500,000 or any whole multiple of $100,000 in excess thereof or (B) equal to the total Revolving Credit Commitments at such time and (iii) if, after giving effect to any reduction of the Revolving Credit Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Revolving Credit Commitments, such sublimit shall be automatically reduced by the amount of such excess. Notwithstanding the foregoing, the Borrowers may rescind or postpone any notice of termination of the Revolving Credit Commitments if such termination would have resulted from a refinancing of all of the Facilities, which refinancing shall not be consummated or otherwise shall be delayed. (b) Mandatory. Subject to Section 2.14, the Term Commitment of each Term Lender shall be automatically and permanently reduced to $0 on the Closing Date upon the funding of the Term Loans in accordance with Section 2.01. The Revolving Credit Commitment shall be automatically and permanently reduced to $0 on the Maturity Date. (c) Application of Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify the Lenders of any termination or reduction of unused portions of the Letter of Credit Sublimit, the Swing Line Sublimit or the unused Commitments of any Class under this Section 2.06. Upon any reduction of unused Commitments of any Class, the Commitment of each Lender of such Class shall be reduced by such Lender's Pro Rata Share of the amount by which such Commitments are reduced (other than the termination of the Commitment of any Lender as provided in Section 3.09). All commitment fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination. Section 2.07. Repayment of Loans. (a) Term A Loans. The Borrowers shall repay to the Administrative Agent for the ratable account of the Term A Lenders the aggregate principal amount of all Term A Loans outstanding in quarterly installments as follows (which installments shall be (i) reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05(b)(v) and (ii) increased by an amount equal to (x) in the case of each installment other than the installment payable on the Maturity Date, an amount equal to 0.25% of the aggregate principal amount of any Additional Term Loans made pursuant to Section 2.14 as additional Term A Loans and (y) in the case of the installment payable on the 57 Maturity Date, an amount equal to the remainder of the aggregate principal amount of any such Additional Term Loans made as additional Term A Loans), each such payment to be made on the last Business Day of the applicable fiscal quarter:
AGGREGATE TERM A LOAN PRINCIPAL DATE AMORTIZATION PAYMENT ---- --------------------- Last Business Day of March, June, $2,500,000 September and December occurring after April 1, 2005 and prior to the Maturity Date Maturity Date All remaining outstanding principal amounts of the Term A Loans.
provided that the final principal repayment installment of the Term A Loans shall be repaid on the Maturity Date and in any event shall be in an amount equal to the aggregate principal amount of all Term A Loans outstanding on such date. (b) Term B Loans. The Borrowers shall repay to the Administrative Agent for the ratable account of the Term B Lenders the aggregate principal amount of all Term B Loans outstanding in quarterly installments as follows (which installments shall be (i) reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05(b)(v) and (ii) increased by an amount equal to (x) in the case of each installment other than the installment payable on the Maturity Date, an amount equal to 0.25% of the aggregate principal amount of any Additional Term Loans made pursuant to Section 2.14 as additional Term B Loans and (y) in the case of the installment payable on the Maturity Date, an amount equal to the remainder of the aggregate principal amount of any such Additional Term Loans made as additional Term B Loans), each such payment to be made on the last Business Day of the applicable fiscal quarter:
AGGREGATE TERM B LOAN PRINCIPAL DATE AMORTIZATION PAYMENT ---- --------------------- Last Business Day of March, June, $4,500,000 September and December occurring after April 1, 2005 and prior to the Maturity Date Maturity Date All remaining outstanding principal amounts of the Term B Loans.
provided that the final principal repayment installment of the Term B Loans shall be repaid on the Maturity Date and in any event shall be in an amount equal to the aggregate principal amount of all Term B Loans outstanding on such date. 58 (c) Revolving Credit Loans. The Borrowers shall repay to the Administrative Agent for the ratable account of the applicable Revolving Credit Lenders on the Maturity Date for the Revolving Credit Facility the aggregate principal amount of all of its Revolving Credit Loans outstanding on such date. (d) Swing Line Loans. The Borrowers shall repay its Swing Line Loans on the earlier to occur of (i) the date five Business Days after such Loan is made and (ii) the Maturity Date. Section 2.08. Interest. (a) Subject to the provisions of Section 2.08(b), (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Margin, (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Margin and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Margin for Revolving Credit Loans. (b) While any Event of Default set forth in Section 8.01(a) or (f) exists, the Borrowers shall pay interest on the principal amount of all of its outstanding due and payable Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand. (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law. Section 2.09. Fees. In addition to certain fees described in Sections 2.03(i) and (j): (a) Commitment Fee. The Borrowers shall pay to the Administrative Agent for the account of each Revolving Credit Lender in accordance with its Pro Rata Share, a commitment fee equal to the Applicable Margin times the actual daily amount by which the aggregate Revolving Credit Commitments exceed the sum of (i) the Outstanding Amount of Revolving Credit Loans, (ii) the Outstanding Amount of L/C Obligations and (iii) the Outstanding Amount of Swing Line Loans; provided that any commitment fee accrued with respect to any of the Commitments of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrowers so long as such Lender shall be a Defaulting Lender except to the extent that such commitment fee shall otherwise have been due and payable by the Borrowers prior to such time; and provided further that no commitment fee shall accrue on any of the Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting Lender. The commitment fee shall accrue at all times from the date hereof until the Maturity Date, including at any time during which one or more of the conditions in Article 4 is not met, and shall be due and payable quarterly in arrears on the first Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the Maturity Date for the Revolving Credit Facility. The commitment fee shall be calculated quarterly in arrears, and if there is any 59 change in the Applicable Margin during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Margin separately for each period during such quarter that such Applicable Margin was in effect. (b) Other Fees. The Borrowers shall pay to the Agents such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever. Section 2.10. Computation of Interest and Fees. All computations of interest for Base Rate Loans when the Base Rate is determined by Bank of America's "prime rate" shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error. Section 2.11. Evidence of Indebtedness. (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and evidenced by one or more entries in the Register maintained by the Administrative Agent, acting solely for purposes of Treasury Regulation Section 5f.103-1(c), as agent for the Borrowers, in each case in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be prima facie evidence absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrowers shall execute and deliver to such Lender (through the Administrative Agent) a Note payable to such Lender, which shall evidence such Lender's Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto. (b) In addition to the accounts and records referred to in Section 2.11(a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records and, in the case of the Administrative Agent, entries in the Register, evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. 60 (c) Entries made in good faith by the Administrative Agent in the Register pursuant to Section 2.11(a) and (b), and by each Lender in its account or accounts pursuant to Section 2.11(a) and (b), shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrowers to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement and the other Loan Documents, absent manifest error; provided that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrowers under this Agreement and the other Loan Documents. Section 2.12. Payments Generally. (a) All payments to be made by the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent's Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 2:00 p.m. shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. (b) Unless a Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that such Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that such Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in immediately available funds, then: (i) if a Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in immediately available funds at the applicable Federal Funds Rate from time to time in effect; and (ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the relevant Borrower to the date such amount is recovered by the Administrative Agent (the "COMPENSATION PERIOD") at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such 61 Lender's Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrowers, and the Borrowers shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrowers may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or a Borrower with respect to any amount owing under this Section 2.12(b) shall be conclusive, absent manifest error. (c) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article 2, and such funds are not made available to the relevant Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article 4 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest. (d) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan or purchase its participation. (e) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner. (f) Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.03. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender's Pro Rata Share of the sum of (i) the Outstanding Amount of all Loans outstanding at such time and (ii) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender. Section 2.13. Sharing of Payments. If, other than as expressly provided elsewhere herein, any Lender shall obtain on account of the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it, any payment (whether voluntary, involuntary, 62 through the exercise of any right of setoff, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them and/or such subparticipations in the participations in L/C Obligations or Swing Line Loans held by them, as the case may be, as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans or such participations, as the case may be, pro rata with each of them; provided that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 11.06 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender's ratable share (according to the proportion of (i) the amount of such paying Lender's required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon. The Borrowers agree that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of setoff, but subject to Section 11.10) with respect to such participation as fully as if such Lender were the direct creditor of the Borrowers in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.13 and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.13 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased. Section 2.14. Increase in Term Commitments. (a) Upon notice to the Administrative Agent (which shall promptly notify the Lenders), at any time after the Closing Date, the Borrowers may on up to five different occasions request additional Term Commitments; provided that (i) after giving effect to any such addition, the aggregate amount of additional Term Commitments that have been added pursuant to this Section 2.14 shall not exceed $500,000,000, and (ii) any such addition shall be in an aggregate amount of $50,000,000 or any whole multiple of $10,000,000 in excess thereof. (b) Any loans made in respect of any such additional Term Commitments (the "ADDITIONAL TERM LOANS") may be made by either (i) at the option of the Borrowers, increasing the Term A Commitments and/or the Term B Commitments with the same terms (including pricing) as the existing Term A Loans and Term B Loans, as applicable; provided that if the Term A Commitments are increased, the Term B Commitments shall be increased by a proportionate amount, or (ii) creating a new tranche of terms loans (an "ADDITIONAL TERM LOAN TRANCHE"); provided that any Additional Term Loan Tranche (A) shall not mature prior to the stated Maturity Date of the Term B Loans, (B) shall have scheduled amortization payments not exceeding 1% of its initial aggregate principal amount per annum and (C) if such Additional Term Loans are not Term A Loans or Term B Loans, such Additional Term Loans shall have prepayment events not more restrictive than the Term B Loans. At the time of the sending of 63 such notice, the Borrowers (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to provide an additional Term Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase (which shall be calculated on the basis of the amount of the funded and unfunded exposure under all the Facilities held by each Lender). Any Lender not responding within such time period shall be deemed to have declined to provide an additional Term Commitment. The Administrative Agent shall notify the Borrowers and each Lender of the Lenders' responses to each request made hereunder. To achieve the full amount of a requested increase, the Borrowers may also invite additional Eligible Assignees to become Term Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel. (c) If any Term Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrowers shall determine the effective date (the "ADDITIONAL TERM COMMITMENTS EFFECTIVE DATE") and the final allocation of such addition. The Administrative Agent shall promptly notify the Borrowers and the Lenders of the final allocation of such addition and the Additional Term Commitments Effective Date. As a condition precedent to such addition, the Borrowers shall deliver to the Administrative Agent a certificate of the Borrowers dated as of the Additional Term Commitments Effective Date signed by a Responsible Officer of each Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Article 5 and the other Loan Documents are true and correct in all material respects on and as of the Additional Term Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.14(c), the representations and warranties contained in Section 5.05(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (ii) no Default exists before or after giving effect to such addition. On each Additional Term Commitments Effective Date, each Lender or Eligible Assignee which is providing an additional Term Commitment (i) shall become a "Term Lender" for all purposes of this Agreement and the other Loan Documents, and (ii) shall make an Additional Term Loan to the Borrowers in a principal amount equal to such additional Term Commitment, and such Additional Term Loan shall be a "Term Loan" for all purposes of this Agreement and the other Loan Documents (except that the interest rate applicable to any Additional Term Loan under an Additional Term Loan Tranche may be higher). ARTICLE 3 TAXES, INCREASED COSTS AND ILLEGALITY Section 3.01. Taxes. (a) Except as provided in this Section 3.01, any and all payments by any Borrower to or for the account of any Agent or any Lender under any Loan Document shall be made free and clear of and without deduction for any and all present or future taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, and all 64 liabilities (including additions to tax, penalties and interest) with respect thereto, excluding, in the case of each Agent and each Lender, taxes imposed on or measured by its net income or overall gross income (including branch profits), and franchise (and similar) taxes imposed on it in lieu of net income taxes, by the jurisdiction (or any political subdivision thereof) under the Laws of which such Agent or such Lender, as the case may be, is organized, is (or was, during the relevant period) doing business or maintains a Lending Office, and all liabilities (including additions to tax, penalties and interest) with respect thereto (all such non-excluded taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, and liabilities being hereinafter referred to as "TAXES"). (b) If any Borrower shall be required by any Laws to deduct any Taxes from or in respect of any sum payable under any Loan Document to any Agent or any Lender, (i) except to the extent provided in Sections 3.01(e) and (f) below, the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 3.01), each of such Agent and such Lender receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower shall make such deductions, (iii) such Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable Laws, and (iv) within 30 days after the date of such payment, such Borrower shall furnish to such Agent or Lender (as the case may be) the original or a certified copy of a receipt evidencing payment thereof to the extent such a receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Administrative Agent. (c) Each Borrower also agrees to pay any and all present or future stamp, court or documentary taxes and any other excise, property, intangible or mortgage recording taxes or charges or similar levies which arise from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any Loan Document (hereinafter referred to as "OTHER TAXES"). (d) Each Borrower agrees to indemnify each Agent and each Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable under this Section 3.01) paid by such Agent and such Lender, and (ii) any liability (including additions to tax, penalties, interest and expenses) arising therefrom or with respect thereto, in each case whether or not such Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided such Agent or Lender, as the case may be, provides such Borrower with a written statement thereof setting forth in reasonable detail the basis and calculation of such amounts. Payment under this Section 3.01(d) shall be made within 30 days after the date such Lender or such Agent makes a demand therefor. (e) No Borrower shall be required pursuant to this Section 3.01 to pay any additional amount to, or to indemnify, any Lender or Agent, as the case may be, to the extent that such Lender or such Agent becomes subject to Taxes subsequent to the Closing Date (or, if later, the date such Lender or Agent becomes a party to this Agreement) as a result of a change in the place of organization of such Lender or Agent or a change in the Lending Office of such Lender, except to the extent that any such change is requested or required in writing by any Borrower (and provided that nothing in this clause (e) shall be construed as relieving any Borrower from 65 any obligation to make such payments or indemnification in the event of a change in Lending Office or place of organization that precedes a change in Law to the extent such Taxes result from a change in Law). (f) If a Lender or an Agent is subject to United States withholding tax at a rate in excess of zero percent at the time such Lender or such Agent, as the case may be, first becomes a party to this Agreement, withholding tax at such rate shall be considered excluded from Taxes unless and until such Lender or Agent, as the case may be, provides the appropriate forms certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered excluded from Taxes for periods governed by such forms; provided that, if at the date of the Assignment and Assumption pursuant to which a Lender becomes a party to this Agreement, the Lender assignor was entitled to payments under clause (a) of this Section 3.01 in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to the Lender assignee on such date. (g) If any Lender or Agent shall become aware that it is entitled to receive a refund in respect of amounts paid by any Borrower pursuant to this Section 3.01, which refund in the good faith judgment of such Lender or Agent is allocable to such payment, it shall promptly notify such Borrower of the availability of such refund and shall, within 30 days after the receipt of a request by such Borrower, apply for such refund; provided that in the sole reasonable judgment of the Lender or Agent, applying for such refund would not be disadvantageous to it. (h) If any Lender or Agent receives a refund in respect of any Taxes or Other Taxes as to which indemnification or additional amounts have been paid to it by a Borrower pursuant to this Section 3.01, it shall promptly remit such refund (including any interest included in such refund) to such Borrower (to the extent that it determines that it can do so without prejudice to the retention of the refund), net of all out-of-pocket expenses of the Lender or Agent, as the case may be; provided that the relevant Borrower, upon the request of the Lender or Agent, as the case may be, agrees promptly to return such refund to such party in the event such party is required to repay such refund to the relevant taxing authority. Such Lender or Agent, as the case may be, shall, at such Borrower's request, provide such Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant taxing authority; provided that such Lender or Agent may delete any information therein that such Lender or Agent deems confidential. (i) Nothing in this Section 3.01 shall interfere with the right of a Lender or Agent to arrange its tax affairs in whatever manner it thinks fit nor oblige any Lender or Agent to claim any tax refund or to disclose any information relating to its tax affairs or any computations in respect thereof or require any Lender or Agent to do anything that would prejudice its ability to benefit from any other refunds, credits, reliefs, remissions or repayments to which it may be entitled. Section 3.02. Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge 66 interest rates based upon the Eurodollar Rate, then, on notice thereof by such Lender to the Borrowers through the Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrowers that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, such Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such prepayment or conversion, such Borrower shall also pay accrued interest on the amount so prepaid or converted. Each Lender agrees to designate a different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. Section 3.03. Inability to Determine Rates. If the Required Lenders determine that for any reason adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan, or that the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, or that Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and the Interest Period of such Eurodollar Rate Loan, the Administrative Agent will promptly so notify the Borrowers and each Lender. Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrowers may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein. Section 3.04. Increased Cost and Reduced Return. If any Lender determines that as a result of the introduction of or any change in or in the interpretation of any Law, in each case after the date hereof, or such Lender's compliance therewith, there shall be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining Eurodollar Rate Loans or (as the case may be) issuing or participating in Letters of Credit, or a reduction in the amount received or receivable by such Lender in connection with any of the foregoing (excluding for purposes of this Section 3.04 any such increased costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to which Section 3.01 and Section 11.16 shall govern), (ii) changes in the basis of taxation of overall net income or overall gross income (including branch profits), and franchise (and similar) taxes imposed in lieu of net income taxes, by the United States or any foreign jurisdiction or any political subdivision of either thereof under the Laws of which such Lender is organized, is doing business or maintains a Lending Office and (iii) reserve requirements contemplated by Section 3.06), then from time to time within 30 days following written demand of such Lender setting forth in reasonable detail such increased costs (with a copy of such demand to the Administrative Agent given in accordance with Section 3.08), the Borrowers shall pay to such Lender such additional amounts as will compensate such Lender for such increased cost or reduction. 67 Section 3.05. Capital Adequacy. If any Lender determines that the introduction of any Law regarding capital adequacy or any change therein or in the interpretation thereof, in each case after the date hereof, or compliance by such Lender (or its Lending Office) therewith, has the effect of reducing the rate of return on the capital of such Lender or any Person controlling such Lender as a consequence of such Lender's obligations hereunder (taking into consideration such Lender's policies with respect to capital adequacy and desired return on capital), then from time to time within 30 days following written demand of such Lender setting forth in reasonable detail the charge and the calculation of such reduced rate of return (with a copy of such demand to the Administrative Agent given in accordance with Section 3.08), the Borrowers shall pay to such Lender such additional amounts as will compensate such Lender for such reduction. Section 3.06. Reserves On Eurodollar Rate Loans. (a) If any Lender is required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as "Eurocurrency liabilities"), the Borrowers shall pay to such Lender additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive in the absence of manifest error). (b) If any Lender is required to comply with any reserve ratio requirement or analogous requirement of any other Governmental Authority imposed in respect of the maintenance of the Commitments or the funding of the Eurodollar Rate Loans, the Borrowers shall pay such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive absent manifest error) which in each case shall be due and payable on each date on which interest is payable on such Loan. Any Lender requesting payment from any Borrower under Section 3.06(a) or (b) shall give such Borrower at least fifteen days' prior notice (with a copy to the Administrative Agent). If a Lender fails to give notice fifteen days prior to the relevant Interest Payment Date, such additional interest or cost shall be due and payable fifteen days from receipt of such notice. Section 3.07. Funding Losses. Upon demand of any Lender (with a copy to the Administrative Agent), the Borrowers shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of: (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); or (b) any failure by any Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by such Borrower; including any loss or expense arising from the liquidation or reemployment of funds obtained by such Lender to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. 68 For purposes of calculating amounts payable by any Borrower to any Lender under this Section 3.07, such Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded. Section 3.08. Matters Applicable to All Requests for Compensation. (a) Any Agent or any Lender claiming compensation under this Article 3 shall deliver a certificate to the Borrowers contemporaneously with the demand for payment setting forth in reasonable detail a calculation of the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. (b) With respect to any Lender's claim for compensation under any of Sections 3.01 through Section 3.07, no Borrower shall be required to compensate such Lender for any amount incurred more than 180 days prior to the date that such Lender notifies the relevant Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such increased cost or reduction is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. If any Lender requests compensation from any Borrower under any of Sections 3.04 through 3.06, such Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to make or continue from one Interest Period to another Eurodollar Rate Loans, or to convert Base Rate Loans into Eurodollar Rate Loans, until the event or condition giving rise to such request ceases to be in effect (in which case the provisions of Section 3.08(c) shall be applicable); provided that such suspension shall not affect the right of such Lender to receive the compensation so requested. (c) If the obligation of any Lender to make or continue from one Interest Period to another any Eurodollar Rate Loan (or to convert Base Rate Loans into Eurodollar Rate Loans) shall be suspended pursuant to Section 3.08(b) hereof, such Lender's Eurodollar Rate Loans shall be automatically converted into Base Rate Loans on the last day(s) of the then current Interest Period(s) for such Eurodollar Rate Loans (or, in the case of an immediate conversion required by Section 3.02, on such earlier date as required by Law) and, unless and until such Lender gives notice as provided below that the circumstances specified in Sections 3.01 through 3.06 hereof that gave rise to such conversion no longer exist: (i) to the extent that such Lender's Eurodollar Rate Loans have been so converted, all payments and prepayments of principal that would otherwise be applied to such Lender's Eurodollar Rate Loans shall be applied instead to its Base Rate Loans; and (ii) all Loans that would otherwise be made or continued from one Interest Period to another by such Lender as Eurodollar Rate Loans shall be made or continued instead as Base Rate Loans, and all Base Rate Loans of such Lender that would otherwise be converted into Eurodollar Rate Loans shall remain as Base Rate Loans. (d) If any Lender gives notice to any Borrower (with a copy to the Administrative Agent) that the circumstances specified in any of Sections 3.01 through 3.06 that gave rise to the 69 conversion of such Lender's Eurodollar Rate Loans pursuant to this Section 3.08 no longer exist (which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when Eurodollar Rate Loans made by other Lenders are outstanding, such Lender's Base Rate Loans shall be automatically converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding Eurodollar Rate Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding Eurodollar Rate Loans and by such Lender are held pro rata (as to principal amounts, interest rate basis, and Interest Periods) in accordance with their respective Commitments. (e) Each Lender agrees that (i) upon the occurrence of any event giving rise to the operation of Section 3.01(b) or (d) with respect to such Lender it will, if requested by any Borrower, use commercially reasonable efforts (subject to such Lender's internal policies and any legal or regulatory restrictions) to avoid the consequences of such event, including to designate another Lending Office for any Loan or Letter of Credit affected by such event and (ii) if any Lender (A) requests compensation under any of Sections 3.04 through 3.06, or (B) notifies any Borrower that it has determined that it is unlawful for its applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar Rate, then such Lender will, if requested by such Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan or Letter of Credit affected by such event; provided that in each case, such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided further that nothing in this Section 3.08(e) shall affect or postpone any of the Obligations of any Borrower or the rights of such Lender pursuant to Section 3.01(b) or (d), 3.02 or 3.04 through 3.06. Section 3.09. Replacement of Lenders Under Certain Circumstances. (a) If at any time: (i) any Borrower becomes obligated to pay additional amounts or indemnity payments described in Section 3.01 or Sections 3.04 through 3.06, as a result of any condition described in such Sections or any Lender ceases to make Eurodollar Rate Loans as a result of any condition described in Section 3.02 or Sections 3.04 through 3.06, (ii) any Lender becomes a Defaulting Lender or (iii) any Lender becomes a "Non-Consenting Lender" (as defined below in this Section 3.09), then the Borrowers may, on ten Business Days' prior written notice to the Administrative Agent and such Lender, either: (iv) replace such Lender by causing such Lender to (and such Lender shall be obligated to) assign 100% of its relevant Commitments and the principal of its relevant outstanding Loans plus any accrued and unpaid interest pursuant to Section 11.07(d) (with the assignment fee to be paid by such Borrower unless waived by the Administrative Agent in such instance) all of its relevant rights and obligations under this Agreement to one or more Eligible Assignees; provided that (A) the replacement Lender 70 shall agree to the consent, waiver or amendment to which the Non-Consenting Lender did not agree and (B) neither the Administrative Agent nor any Lender shall have any obligation to either Borrower to find a replacement Lender or other such Person or (v) terminate the Commitment of such Lender and repay all obligations of the Borrowers owing to such Lender relating to the Loans and participations held by such Lender as of such termination date. (b) Any Lender being replaced pursuant to Section 3.09(a) above shall (i) execute and deliver an Assignment and Assumption with respect to such Lender's Commitment and outstanding Loans and participations in L/C Obligations and Swing Line Loans, and (ii) deliver any Notes evidencing such Loans to the relevant Borrower or the Administrative Agent. (c) Pursuant to an Assignment and Assumption arising by operation of Section 3.09(b), (i) the assignee Lender shall acquire all or a portion, as the case may be, of the assigning Lender's Commitment and outstanding Loans and participations in L/C Obligations and Swing Line Loans, (ii) all obligations of each Borrower owing to the assigning Lender relating to the Loans and participations so assigned shall be paid in full by the assignee Lender to such assigning Lender concurrently with the execution of such Assignment and Assumption and (iii) upon such payment and, if so requested by the assignee Lender, delivery to the assignee Lender of the appropriate Note or Notes executed by each relevant Borrower, the assignee Lender shall become a Lender hereunder and the assigning Lender shall cease to be a Lender hereunder with respect to such assigned Loans, Commitments and participations, except with respect to indemnification provisions under this Agreement, which shall survive as to such assigning Lender. (d) Notwithstanding anything to the contrary, (i) any Lender that acts as L/C Issuer may not be replaced by operation of this Section 3.09 at any time that it has any Letter of Credit outstanding unless arrangements reasonably satisfactory to such L/C Issuer (including the furnishing of a back-up standby letter of credit in form and substance, and issued by an issuer reasonably satisfactory to such L/C Issuer or the depositing of cash collateral into a Cash Collateral Account in amounts and pursuant to arrangements reasonably satisfactory to such L/C Issuer) have been made with respect to such outstanding Letter of Credit and (ii) any Lender that acts as Administrative Agent may not be replaced by operation of this Section 3.09 except in accordance with the terms of Section 9.09. (e) If (i) any Borrower or the Administrative Agent requests the Lenders to consent to a departure or waiver of any provisions of the Loan Documents or to agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all affected Lenders in accordance with the terms of Section 11.01 or all the Lenders with respect to a certain class of the Loans and (iii) the Required Lenders have agreed to such consent, waiver or amendment, then any Lender who does not agree to such consent, waiver or amendment shall be deemed a "NON-CONSENTING LENDER." Section 3.10. Survival. All of the Borrowers' obligations under this Article 3 shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder. 71 ARTICLE 4 CONDITIONS PRECEDENT TO CREDIT EXTENSIONS Section 4.01. Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent: (a) The Administrative Agent's receipt of the following, each of which shall be originals, or electronic copies or facsimiles followed promptly by originals (unless otherwise specified), each properly executed by a Responsible Officer of the signing Loan Party (as applicable), each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel: (i) executed counterparts of this Agreement and each Guaranty; (ii) a Note executed by each Borrower in favor of each Lender requesting a Note; (iii) the Security Agreement, duly executed by Solutions and each of its Restricted Subsidiaries that is a Loan Party together with: (A) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, (B) copies of all necessary searches with respect to the Collateral, and all proper financing statements, duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, (C) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent, (iv) the Intellectual Property Security Agreement, duly executed by Solutions and each of its Restricted Subsidiaries that is a Loan Party, together with evidence that all action that the Administrative Agent in its reasonable judgment may deem reasonably necessary in order to perfect and protect the Liens created under the Intellectual Property Security Agreement has been taken; (v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each 72 Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; (vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization; (vii) an opinion of Foley & Lardner LLP, counsel to the Loan Parties, addressed to each Agent and each Lender and in form and substance reasonably satisfactory to the Administrative Agent; (viii) a certificate signed by a Responsible Officer of the Borrowers certifying as to the satisfaction of the conditions set forth in Section 4.02(a) (other than with respect to the representation and warranty in Section 5.05(b)) and Section 4.02(b); (ix) a certificate attesting to the Solvency of the Loan Parties and the Restricted Subsidiaries (taken as a whole) after giving effect to the Transaction, from the chief financial officer of Holdings; (x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Administrative Agent has been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to casualty and liability insurance as to which the Administrative Agent shall have requested to be so named; (xi) certified copies of the Purchase Agreement and all other material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request; and (xii) a Committed Loan Notice or Letter of Credit Application, as applicable, relating to the initial Credit Extension. (b) The Borrowers are in compliance with the Fee Letter and all fees and expenses required to be paid on or before the Closing Date shall have been paid in full in cash. (c) All material consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby (including the granting of the Liens on the Collateral) shall have been obtained. (d) All material governmental, shareholder and third party consents and approvals necessary in connection with the Transaction shall have been obtained and shall remain in effect; all applicable waiting periods (including the expiration or termination of the requisite waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1975, and the approval or consent of any applicable regulatory bodies specified in the Purchase Agreement as being required as a condition to the consummation of the Transaction) in connection with the Transaction shall have expired without any action being taken by any authority that could 73 restrain, prevent or impose any material adverse conditions on any of the Fidelity Companies or the Transaction or that could seek or threaten any of the foregoing. (e) The Transactions (other than the repayment of the FNF Note) shall simultaneously be consummated in accordance with applicable law and the terms of the Purchase Agreement. (f) The Arrangers and the Lenders shall have received: (i) (A) consolidated combined financial statements Holdings and its Subsidiaries for the fiscal years ended December 31, 2002 and December 31, 2003 and (B) unaudited consolidated combined financial statements of the Fidelity Companies for each of the quarterly periods ending March 31, 2004, June 30, 2004 and September 30, 2004 (the "HISTORICAL FINANCIAL STATEMENTS"); and (ii) forecasts prepared by management of Holdings, each in form reasonably satisfactory to the Arrangers, of consolidated balance sheets, income statements and cash flow statements for each quarter for the first four quarters following the Closing Date and for each year commencing with the fiscal year ending on December 31, 2003 through the fiscal year ending on December 31, 2011 (the "CLOSING DATE FORECASTS"), which shall state the material assumptions on the basis of which such forecasts shall have been prepared. (g) The Arrangers shall have received evidence reasonably satisfactory to them that the Wachovia Credit Agreement shall have been terminated and all amounts outstanding thereunder shall have been (or will be with the proceeds of the Loans on the Closing Date) paid in full. (h) There has been no change, occurrence or development since December 31, 2003 that (A) either individually or in the aggregate, could reasonably be expected to (1) have a material adverse effect on the business, liabilities, operations or financial position of the Restricted Companies, taken as a whole, other than any such effect to the extent it results from (x) changes in general economic, market or political conditions or any acts of war or terrorism, (y) matters generally affecting any of the industries in which the Restricted Companies operate and (z) matters resulting from the execution, delivery, performance or announcement of the Transaction, in each case unless disproportionately negatively affecting the Restricted Companies, (2) materially and adversely affect the ability of any Loan Party to perform its obligations under the Loan Documents or (3) materially and adversely affect the rights and remedies of the Lenders under the Loan Documents or (B) adversely affects any other aspect of the Transaction in any material respect. Section 4.02. Conditions to All Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Eurodollar Rate Loans) is subject to the following conditions precedent: (a) The representations and warranties of each Fidelity Company contained in Article 5 or any other Loan Document shall be true and correct in all material respects on and as of the date of such Credit Extension, except (i) to the extent that such representations and warranties 74 specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date and (ii) that for purposes of this Section 4.02(a), the representations and warranties contained in Section 5.05(a) shall be deemed to refer to the most recent financial statements furnished pursuant to Section 6.01(a) and Section 6.01(b) and, in the case of the financial statements furnished pursuant to Section 6.01(b), the representations contained in Section 5.05(a), as modified by this clause (ii), shall be qualified by the statement that such financial statements are subject to the absence of footnotes and year-end audit adjustments. (b) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds therefrom. (c) The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by any Borrower shall be deemed to be a representation and warranty that the conditions specified in Section 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension. ARTICLE 5 REPRESENTATIONS AND WARRANTIES Holdings and each Borrower represents and warrants to the Agents and the Lenders that: Section 5.01. Existence, Qualification and Power; Compliance with Laws. Each Loan Party and each of its Restricted Subsidiaries (a) is a Person, validly existing and in good standing under the Laws of the jurisdiction of its organization, (b) has all requisite power and authority to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, (c) is duly qualified and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, (d) is in compliance with all Laws, orders, writs and injunctions, and (e) has all requisite governmental licenses, authorizations, consents and approvals to operate its business as currently conducted; except in each case referred to in clauses (a) (other than with respect to the Borrowers), (c), (d) or (e), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect. Section 5.02. Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party, and, as of the Closing Date only, the consummation of the Transaction, are (a) within such Loan Party's corporate or other powers, (b) have been duly authorized by all necessary corporate, shareholder or other organizational action, and (c) do not and will not (i) contravene the terms of any of such Person's Organization Documents, (ii) conflict with or result in any breach or contravention of, 75 or the creation of any Lien under (other than as permitted by Section 7.01), or require any payment to be made under, (A) any Junior Financing Documentation, (B) any other Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (C) any order, injunction, writ or decree, of or with any Governmental Authority or any arbitral award to which such Person or its property is subject; or (iii) violate, in any material respect, any Law; except with respect to any conflict, breach or contravention or payment (but not creation of Liens) referred to in clause (ii) to the extent that such conflict, breach, contravention or payment could not reasonably be expected to have a Material Adverse Effect. Section 5.03. Governmental Authorization; Other Consents. No material approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required to be made or obtained by any Loan Party in connection with (a) the execution, delivery or performance by any Loan Party of this Agreement or any other Loan Document, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the priority thereof) or (d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for (i) filings necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties, (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force, (iii) those approvals, consents, exemptions, authorizations, actions, notices or filings described in the Security Agreement and (iv) those approvals, consents, exemptions, authorizations, actions, notices or filings, the failure of which to obtain or make could not reasonably be expected to have a Material Adverse Effect. Section 5.04. Binding Effect. This Agreement and each other Loan Document has been duly executed and delivered by each Loan Party that is party thereto. This Agreement and each other Loan Document constitutes a legal, valid and binding obligation of each Loan Party that is a party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by bankruptcy insolvency, reorganization, receivership, moratorium or other Laws affecting creditors' rights generally and by general principles of equity. Section 5.05. Financial Statements; No Material Adverse Effect. (a) The Historical Financial Statements fairly present in all material respects the financial condition of Holdings and its Subsidiaries as of the date thereof and their results of operations and cash flows for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein. (b) Since December 31, 2003, there has been no change, effect, event or, occurrence that has had or could reasonably be expected to have a Material Adverse Effect. (c) The Closing Date Forecasts, copies of which have been furnished to the Administrative Agent, the Arrangers and the Lenders prior to the Closing Date, have been prepared in good faith based upon reasonable assumptions made in light of conditions existing at 76 the time of preparation, it being understood that (i) such forecasts, as to future events, are not to be viewed as facts, that actual results during the period or periods covered by any such forecasts may differ significantly from the forecasted results and that such differences may be material and that such forecasts are not a guarantee of financial performance and (ii) no representation is made with respect to information of a general economic or general industry nature. Section 5.06. Litigation. Except as disclosed in Schedule 5.06, there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrowers, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority or Regulatory Supervising Organization, by or against any Borrower or any of its Restricted Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document or (b) either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. Section 5.07. Ownership of Property; Liens. Each Loan Party and each of its Restricted Subsidiaries has good record and indefeasible title in fee simple to, or valid leasehold interests in, or easements or other limited property interests in, all real property necessary in the ordinary conduct of its business, free and clear of all Liens except for minor defects in title that do not materially interfere with its ability to conduct its business or to utilize such assets for their intended purposes and Liens permitted by Section 7.01 and except where the failure to have such title or the existence of such Lien could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Section 5.08. Environmental Compliance. (a) There are no claims pending or, to the knowledge of the Borrowers, threatened in writing alleging potential liability or responsibility for violation of any Environmental Law by their respective businesses, operations and properties that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as disclosed in Schedule 5.08, Environmental Liabilities in the aggregate could not reasonably be expected to have a Material Adverse Effect. (b) Except as disclosed in Schedule 5.08 or except as could not reasonably be expected to have a Material Adverse Effect, (i) none of the properties currently or, to the knowledge of the Borrowers, formerly owned or operated by any Loan Party or any of its Restricted Subsidiaries is listed or proposed for listing on the National Priorities List under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 or on the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency or any analogous foreign, state or local list of sites requiring investigation or remediation under Environmental Laws or, to the knowledge of the Borrowers, is adjacent to any such property; (ii) there are no and, to the knowledge of the Borrowers, never have been any underground or aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any of its Restricted Subsidiaries or, to its knowledge, on any property formerly owned or operated by any Loan Party or any of its Restricted Subsidiaries during the period of such ownership or operation, in each case, except those maintained in compliance with Environmental Laws; (iii) there is no asbestos or asbestos-containing material on any property currently owned or operated by any Loan Party or any of its Restricted Subsidiaries; and (iv) Hazardous Materials 77 have not been released, discharged or disposed of on any property currently owned or operated by any Loan Party or any of its Restricted Subsidiaries and, to the knowledge of the Borrowers, were not released, discharged or disposed of at any property formerly owned or operated by any Loan Party or any of its Restricted Subsidiaries during the period of such ownership or operation, except for such releases, discharges or disposal that were in material compliance with Environmental Laws. (c) The Material Real Properties do not contain any Hazardous Materials in amounts or concentrations which (i) constitute a violation of, (ii) require remedial action under, or (iii) could result in any Loan Party or any of its Restricted Subsidiaries or any Lender incurring liability under, Environmental Laws, which violations, remedial actions and liabilities, in the aggregate, could reasonably be expected to result in a Material Adverse Effect. (d) Except as disclosed in Schedule 5.08, none of the Loan Parties or any of their Restricted Subsidiaries is undertaking and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any Governmental Authority or the requirements of any Environmental Law except for such investigation or assessment or remedial or response action that, in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. (e) All Hazardous Materials generated, used, treated, handled or stored at, or, directly or indirectly, transported by or on behalf of any Loan Party or any of their Restricted Subsidiaries to or from, any property currently or formerly owned or operated by any Loan Party or any of their Restricted Subsidiaries have been disposed of in a manner not reasonably expected to result in a Material Adverse Effect. Section 5.09. Taxes. Holdings and its Subsidiaries have filed all Federal and material state and other tax returns and reports required to be filed, and have paid all Federal and material state and other taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those (a) which are not overdue by more than 30 days, (b) which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP or (c) with respect to which the failure to make such filing or payment could not reasonably be expected to have a Material Adverse Effect. Section 5.10. ERISA Compliance. (a) Each Plan is in compliance in all material respects with the applicable provisions of ERISA and the Code except to the extent that non-compliance could not reasonably be expected to have a Material Adverse Effect. Each Plan that is intended to qualify under Section 401(a) of the Code has either received a favorable determination letter from the IRS or an application for such a letter has been or will be submitted to the IRS within the applicable required time period with respect thereto and, to the knowledge of the Borrowers and Holdings, nothing has occurred which could reasonably be expected to prevent, or cause the loss of, such qualification. In the preceding five years, each Loan Party and each ERISA Affiliate have, in all material respects, made all required contributions to each Pension Plan subject to Section 412 of the Code, and in the preceding five years, no application for a funding 78 waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan. (b) There are no pending or, to the knowledge of any Borrower or Holdings, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect. (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has an "accumulated funding deficiency" (as defined in Section 412 of the Code), whether or not waived, and no application for a waiver of the minimum funding standard has been filed with respect to any Pension Plan; (iii) none of Holdings, the Borrowers nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums not yet due or premiums due and not yet delinquent under Section 4007 of ERISA); (iv) none of Holdings, the Borrowers nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) none of Holdings, the Borrowers nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA, except, with respect to each of the foregoing clauses of this Section 5.10(c), as could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. Section 5.11. Subsidiaries; Equity Interests. As of the Closing Date, (a) each Restricted Subsidiary is owned directly or indirectly by a Loan Party free and clear of all Liens except (i)those created under the Collateral Documents and (ii) any nonconsensual Lien that is permitted under Section 7.01 and (b) Schedule 5.11 (i) sets forth the name and jurisdiction of organization of each Subsidiary, (ii) sets forth the ownership interest of Holdings, the Borrowers and any other Subsidiary in each such Subsidiary, including the percentage of such ownership and (iii) identifies each Subsidiary that is a Regulated Subsidiary, if any. Section 5.12. Margin Regulations; Investment Company Act. (a) No proceeds of any Borrowings or drawings under any Letter of Credit will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock in violation of Regulation U issued by the FRB. (b) None of Holdings, the Borrowers, any Person Controlling any of the foregoing, nor any Restricted Subsidiary is or is required to be registered as an "investment company" under the Investment Company Act of 1940. Section 5.13. Disclosure. No report, financial statement, certificate or other written information furnished by or on behalf of any Loan Party to any Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or any other Loan Document (as modified or supplemented by other information so furnished) when taken as a whole contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the 79 circumstances under which they were made, not materially misleading; provided that, with respect to financial estimates, projected or forecasted financial information and other forward-looking information, Holdings and each Borrower represent and warrant only that such information was prepared in good faith based upon reasonable assumptions in light of conditions existing at the time of preparation; it being understood that (A) such projections and forecasts, as to future events, are not to be viewed as facts, that actual results during the period or periods covered by any such projections or forecasts may differ significantly from the projected or forecasted results and that such differences may be material and that such projections and forecasts are not a guarantee of financial performance and (B) no representation is made with respect to information of a general economic or general industry nature. Section 5.14. Intellectual Property; Licenses, Etc. Each Loan Party and its Restricted Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses, database rights and design rights and other intellectual property rights (collectively, "IP RIGHTS") that are reasonably necessary for the operation of their respective businesses, without conflict with the rights of any other Person, except to the extent such failure to own or possess the right to use or such conflicts, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. To the knowledge of the Borrowers, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by any Loan Party or any Restricted Subsidiary infringes upon any rights held by any other Person except for such infringements, individually or in the aggregate, which could not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending or, to the knowledge of the Borrowers, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. Section 5.15. Solvency. On the Closing Date after giving effect to the Transaction, the Loan Parties, on a consolidated basis, are Solvent. Section 5.16. Perfection, Etc. All filings and other actions necessary to perfect and protect the Liens in the Collateral created under and in the manner contemplated by the Collateral Documents have been duly made or taken or otherwise provided for in the manner reasonably requested by the Administrative Agent and are in full force and effect, and the Collateral Documents create in favor of the Administrative Agent for the benefit of the Secured Parties a valid and, together with such filings and other actions, perfected first priority Lien in the Collateral, securing the payment of the Secured Obligations, subject to Liens permitted by Section 7.01. The Loan Parties are the legal and beneficial owners of the Collateral free and clear of any Lien, except for the Liens created or permitted under the Loan Documents. ARTICLE 6 AFFIRMATIVE COVENANTS So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder which is accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding or not otherwise provided for in full in a manner reasonably satisfactory to the L/C Issuer, Holdings and each Borrower shall, and shall (except in 80 the case of the covenants set forth in Section 6.01, Section 6.02, Section 6.03 and Section 6.15) cause each Restricted Subsidiary to: Section 6.01. Financial Statements. Deliver to the Administrative Agent for further distribution to each Lender: (a) as soon as available, but in any event within 105 days after the end of each fiscal year of Holdings beginning with the fiscal year ending on December 31, 2005, a consolidated balance sheet of Holdings and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, shareholders' equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, and audited and accompanied by a report and opinion of KPMG LLP or any other independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any "going concern" or like qualification or exception or any qualification or exception as to the scope of such audit; provided that if the independent auditor provides an attestation and a report with respect to management's report on internal control over financial reporting and its own evaluation of internal control over financial reporting, then such report may include a qualification or limitation due to the exclusion of any acquired business from such report to the extent such exclusion is permitted under rules or regulations promulgated by the SEC or the Public Company Accounting Oversight Board; (b) as soon as available, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of Holdings beginning with the fiscal quarter ending on March 31, 2005, a consolidated balance sheet of Holdings and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, shareholders' equity and cash flows for such fiscal quarter and for the portion of the fiscal year then ended, setting forth, in each case, in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of Holdings as fairly presenting in all material respects the financial condition, results of operations, shareholders' equity and cash flows of Holdings and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes; (c) as soon as available, but in any event no later than 105 days after the end of each fiscal year, forecasts prepared by management of Holdings, in form reasonably satisfactory to the Administrative Agent of consolidated balance sheets, income statements and cash flow statements of Holdings and its Subsidiaries for the fiscal year following such fiscal year then ended, which shall be prepared in good faith upon reasonable assumptions at the time of preparation and which shall state therein all the material assumptions on the basis of which such forecasts were prepared), it being understood that actual results may vary from such forecasts and that such variations may be material; (d) if there are any Unrestricted Subsidiaries as of the last day of any fiscal quarter, simultaneously with the delivery of each set of consolidated financial statements referred to in Section 6.01(a) and 6.01(b) above, the related consolidating financial statements reflecting the 81 adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries from such consolidated financial statements; and (e) as soon as available, but in any event within 60 days after the Closing Date, a consolidated balance sheet of Holdings and its Subsidiaries as at the end of the fiscal year ending on December 31, 2004, and the related consolidated statements of income or operations, shareholders' equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, and audited and accompanied by a report and opinion of KPMG LLP or any other independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards. Section 6.02. Certificates; Other Information. Deliver to the Administrative Agent for further distribution to each Lender: (a) no later than five days after the delivery of each set of consolidated financial statements referred to in Section 6.01(a), a certificate of Holdings' independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Event of Default under Section 7.11 or, if any such Event of Default shall exist, stating the nature and status of such event; (b) no later than five days after the delivery of each set of consolidated financial statements referred to in Section 6.01(a) and 6.01(b), (i) a duly completed Compliance Certificate signed by a Responsible Officer of Holdings and (ii) at the option of the Equity Investors, notice of their intent to provide to the Borrowers the Net Cash Proceeds of any Permitted Equity Issuance to the Equity Investors in an amount equal to the amount necessary to cause the Loan Parties to be compliance with the covenants set forth in Section 7.11 (a "NOTICE OF INTENT TO MAKE AN EQUITY INFUSION") through capital contributions or the purchase of Equity Interests, as contemplated pursuant to clause (b)(xviii) and clause (x) of the final proviso of the definition of "Consolidated EBITDA", to be included in the calculation of "Consolidated EBITDA" for the period ending on the last day of such fiscal quarter in accordance with such clauses; provided that the delivery of a Notice of Intent to Make an Equity Infusion shall in no way affect or alter the occurrence, existence or continuation of any Event of Default or the rights, benefits, powers and remedies of the Administrative Agent and the Lenders under any Loan Document, except that from the date of receipt of such Notice of Intent to Make an Equity Infusion by the Administrative Agent until the twentieth Business Day following the delivery of the Compliance Certificate, neither the Administrative Agent nor any Lender shall exercise any right to accelerate the Loans, terminate the Commitments or foreclose on or take possession of the Collateral solely on the basis of an Event of Default having occurred and continuing under Section 7.11, unless the Administrative Agent is notified that such equity infusion will not be made or such equity infusion is made in an amount less than the amount necessary to cause the Loan Parties to be in compliance with the covenants set forth in Section 7.11; (c) promptly after the same are publicly available, copies of each annual report, proxy or financial statement sent to the stockholders of Holdings, and copies of all annual, regular, periodic and special reports and registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent) which Holdings may file or be required to 82 file, copies of any report, filing or communication with the SEC under Section 13 or 15(d) of the 1934 Act, or with any Governmental Authority that may be substituted therefor, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto; (d) promptly after the furnishing thereof, copies of any requests or notices received by any Loan Party (other than in the ordinary course of business) or statement or report furnished by any Loan Party to any holder of debt securities of any Loan Party or of any of its Restricted Subsidiaries pursuant to the terms of any Junior Financing Documentation in a principal amount greater than the Threshold Amount and not otherwise required to be furnished to the Lenders; (e) promptly after the receipt thereof by a Responsible Officer of any Loan Party or any of its Restricted Subsidiaries, copies of each notice or other correspondence received from any Regulatory Supervising Organization or Governmental Authority concerning any material investigation or other material inquiry regarding any material violation of applicable Law by any Loan Party or any of its Restricted Subsidiaries which could reasonably be expected to have a Material Adverse Effect; (f) together with the delivery of each Compliance Certificate pursuant to Section 6.02(b), (i)a report identifying all owned real property disposed of by any Loan Party or any of its Restricted Subsidiaries since the delivery of the last supplements and a list and description of all owned real property acquired since the delivery of the last supplements (including the street address (if available), county or other relevant jurisdiction, state and the record owner), (ii) a description of each event, condition or circumstance during the last fiscal quarter covered by such Compliance Certificate requiring a mandatory prepayment under Section 2.05(b) and (iii) a list of each Subsidiary that is a Regulated Subsidiary as of the date of delivery of such Compliance Certificate that was not identified as such in the immediately preceding Compliance Certificate delivered pursuant to this clause (f); and (g) promptly after any request therefor, such additional information regarding the business, legal, financial or corporate affairs of any Loan Party or any Restricted Subsidiary of any Loan Party, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which Holdings posts such documents, or provides a link thereto on the Holdings' website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on Holdings' behalf on SyndTrak or other relevant website, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: Holdings shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents which notice may be included in the certificate delivered pursuant to Section 6.02(b). Except for such Compliance Certificates, the Administrative Agent shall have no obligation to maintain copies of the documents referred to above, and in any event shall have no responsibility to 83 monitor compliance by Holdings with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. Holdings and the Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of Holdings or the Borrowers hereunder (collectively, "BORROWER MATERIALS") by posting the Borrower Materials on IntraLinks or another similar electronic system (the "PLATFORM") and (b) certain of the Lenders may be "public-side" Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to Holdings, the Borrowers or their securities) (each, a "PUBLIC LENDER"). Holdings and the Borrowers hereby agree that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean that the word "PUBLIC" shall appear prominently on the first page thereof; (x) by marking Borrower Materials "PUBLIC," Holdings and the Borrowers shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuer and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to Holdings, the Borrowers or their securities for purposes of United States Federal and state securities laws; (y) all Borrower Materials marked "PUBLIC" are permitted to be made available through a portion of the Platform designated "Public Investor;" and (z) the Administrative Agent and the Arrangers shall treat any Borrower Materials that are not marked "PUBLIC" as being suitable only for posting on a portion of the Platform not designated "Public Investor." Section 6.03. Notices. Promptly notify the Administrative Agent after a Responsible Officer obtains knowledge of: (a) the occurrence of any Default; (b) any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including any matter arising out of or resulting from (i) breach or non-performance of, or any default under, a Contractual Obligation of any Loan Party or any Subsidiary, (ii) any dispute, litigation, investigation, proceeding or suspension between any Loan Party or any Restricted Subsidiary and any Regulatory Supervising Organization or any Governmental Authority, (iii) the commencement of, or any material adverse development in, any litigation, investigation or proceeding affecting any Loan Party or any Subsidiary, including pursuant to any applicable Environmental Laws or the assertion or occurrence of any noncompliance by any Loan Party or as any of its Subsidiaries with any Environmental Law or Environmental Permit, or (iv) the occurrence of any ERISA Event; (c) the occurrence of any Casualty Event with respect to any Material Real Property; and (d) the application of any amount of Net Cash Proceeds of any transaction or event or of Excess Cash Flow pursuant to clause (d) of the definition of "Not Otherwise Applied". Each notice pursuant to this Section 6.03 shall be accompanied by a written statement of a Responsible Officer of Holdings (x) that such notice is being delivered pursuant to Section 6.03(a), (b) or (d) (as applicable) and (y) setting forth details of the occurrence referred to therein 84 and, in the case of a notice delivered pursuant to Section 6.03(a) or (b), stating what action Holdings has taken and proposes to take with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with particularity to the extent known any and all provisions of this Agreement and any other Loan Document in respect of which such Default exists. Section 6.04. Payment of Obligations. Pay, discharge or otherwise satisfy as the same shall become due and payable, all of its obligations and liabilities except, in each case, to the extent the failure to pay or discharge the same could not reasonably be expected to have a Material Adverse Effect or such obligations or liabilities are being contested in good faith by appropriate proceedings. Section 6.05. Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.04 or 7.05 and, in the case of any Restricted Subsidiary, to the extent the failure to do so, could not reasonably be expected to have a Material Adverse Effect, (b) take all reasonable action to maintain all rights, privileges (including its good standing), permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect and (c) preserve or renew all of its registered patents, trademarks, trade names, service marks and copyrights, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect. Section 6.06. Maintenance of Properties. Except if the failure to do so could not reasonably be expected to have a Material Adverse Effect, (a) maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order, ordinary wear and tear excepted and casualty and condemnation excepted, and (b) make all necessary renewals, replacements, modifications, improvements, upgrades, extensions and additions to material properties and equipment in accordance with prudent industry practice. Section 6.07. Maintenance of Insurance. Maintain with financially sound and reputable insurance companies, insurance of such types and in such amounts (after giving effect to any self-insurance) reasonable and customary for similarly situated Persons engaged in the same or similar businesses as Holdings, the Borrowers and the Restricted Subsidiaries) as are customarily carried under similar circumstances by such other Persons except, in the case of Foreign Subsidiaries, to the extent that the failure to maintain such insurance with respect to one or more Foreign Subsidiaries could not reasonably be expected to result in a Material Adverse Effect. Section 6.08. Compliance with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions, and decrees applicable to it or to its business or property, except if the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect or the necessity of compliance therewith is being contested in good faith by appropriate proceedings. Section 6.09. Books and Records. Maintain proper books of record and account, in a manner to allow financial statements to be prepared in conformity with GAAP consistently 85 applied shall be made of all material financial transactions and matters involving the assets and business of Holdings, such Borrower or such Restricted Subsidiary, as the case may be. Section 6.10. Inspection Rights. With respect to any Loan Party, permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of the Borrowers and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrowers; provided that, excluding any such visits and inspections during the continuation of an Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights under this Section 6.10 and the Administrative Agent shall not exercise such rights more often than two times during any calendar year absent the existence of an Event of Default and only one such time shall be at the Borrowers' expense; provided further that when an Event of Default exists the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrowers at any time during normal business hours and upon reasonable advance notice. The Administrative Agent and the Lenders shall give the Borrowers the opportunity to participate in any discussions with Holdings' and the Borrowers' accountants. Section 6.11. Use of Proceeds. Use the proceeds of the Credit Extensions (i) to repay the FNF Note evidencing the Closing Date Dividend, (ii) to repay existing Indebtedness of Holdings, (iii) to pay fees and expenses incurred in connection with the Transaction and (iv) to provide ongoing working capital and for other general corporate purposes of the Restricted Companies and their Subsidiaries (including Permitted Acquisitions). Section 6.12. Covenant to Guarantee Obligations and Give Security. (a) Cause each of the following Restricted Subsidiaries to guarantee the Obligations (each an "ADDITIONAL GUARANTOR"): (i) any new direct or indirect wholly owned Restricted Subsidiary formed or acquired by any Loan Party, (ii) any existing direct or indirect wholly owned Subsidiary designated as a Restricted Subsidiary pursuant to Section 6.15, (iii) any Restricted Subsidiary guaranteeing any obligations of Holdings, a Borrower or any other Restricted Subsidiary in respect of any Junior Financing and (iv) one or more existing Restricted Subsidiaries that are not already Guarantors to the extent necessary to cause the percentage of aggregated Consolidated EBITDA of Holdings, the Borrowers and the Guarantors (determined on a consolidated basis but without regard for any Consolidated Subsidiary that is not a Guarantor) (for any period, the "LOAN PARTY EBITDA") to equal or exceed 92.5% of the Consolidated EBITDA of Holdings and its Consolidated Subsidiaries, in each case for the four fiscal quarters most recently ended for which financial statements have been delivered pursuant to Section 6.01 (the "DETERMINATION PERIOD"); provided that (A) in the case of clauses (i), (ii) and (iv) above, (1) no Foreign Subsidiary and no Regulated Subsidiary shall be required to become an Additional Guarantor and (2) no Restricted Subsidiary that is prohibited from guaranteeing the Obligations pursuant to documents governing any Indebtedness assumed in connection with a Permitted Acquisition and not incurred in contemplation thereof shall be required to become an Additional Guarantor for so long as such Indebtedness remains outstanding and (B) in the case of clauses (i) and (ii) above, no Restricted Subsidiary shall be required to become an Additional Guarantor to the extent that the Loan Party EBITDA, determined after inclusion of all Additional Guarantors other than such 86 proposed Additional Guarantor or Additional Guarantors, equaled or exceeded 92.5% of the Consolidated EBITDA of Holdings and its Consolidated Subsidiaries, in each case determined for such determination period. (b) Within 30 days after a Restricted Subsidiary becomes an Additional Guarantor, or such longer period as the Administrative Agent may agree in its reasonable discretion, the Borrowers shall, in each case at the Borrowers' expense: (i) cause such Additional Guarantor to duly execute and deliver to the Administrative Agent a guaranty or guaranty supplement, in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the Obligations; (ii) cause such Additional Guarantor that is a Subsidiary of Solutions to furnish to the Administrative Agent a description of the Material Real Property owned by such Additional Guarantor consisting of the street address (if available), county or other relevant jurisdiction, state and the record owner; (iii) cause such Additional Guarantor that is a Restricted Subsidiary of Solutions to duly execute and deliver to the Administrative Agent Mortgages, Security Agreement Supplements, Intellectual Property Security Agreements and other security documents, as specified by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreement and other security documents in effect on the Closing Date), granting a Lien in substantially all of the Material Real Property and personal property of such Restricted Subsidiary, in each case securing the Obligations of such Additional Guarantor under its Guaranty; provided that (A) no more than 65% of the voting Equity Interests of any Foreign Subsidiary that are held directly by a Loan Party shall be required to be pledged to support the Obligations (except to the extent such Equity Interests are pledged to support obligations under any Junior Financing); (B) no Equity Interests or assets of any Restricted Subsidiary which have been pledged to secure Indebtedness of such Additional Guarantor assumed in connection with a Permitted Acquisition that is secured by a Lien permitted by Section 7.01(p) shall be required to be pledged, but only for so long as such Lien is in effect; (C) no Equity Interests of any Foreign Subsidiary that are held directly by a Foreign Subsidiary shall be required to be pledged to support the Obligations (except to the extent such Equity Interests are pledged to support obligations under any Junior Financing); and (D) no assets of any Regulated Subsidiary shall be required to be pledged to support the Obligations (except to the extent such assets are pledged to support obligations under any Junior Financing); (iv) cause such Additional Guarantor that is a Restricted Subsidiary of Solutions to deliver, to the extent required to be pledged hereunder or under the Collateral Documents, any and all certificates representing Equity Interests owned by such Restricted Subsidiary accompanied by undated stock powers or other appropriate instruments of transfer executed in blank and instruments evidencing the intercompany debt held by such Additional Guarantor, indorsed in blank to the Administrative Agent; and 87 (v) take and cause such Additional Guarantor that is a Restricted Subsidiary of Solutions to take whatever action (including the recording of Mortgages with respect to Material Real Property, the filing of Uniform Commercial Code financing statements, the giving of notices and the endorsement of notices on title documents and delivery of stock and membership interest certificates) as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid and subsisting Liens on the properties purported to be subject to the Mortgages, Security Agreement Supplements, Intellectual Property Security Agreements and other security documents delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms; provided that no action shall be required to be taken with respect to motor vehicles the perfection of a security interest in which is excluded from the Uniform Commercial Code; (c) None of the assets of Holdings, Tax or any Restricted Subsidiary of Tax shall be required to be pledged to support the Obligations so long as the FNF 2011 Notes or the FNF 2013 Notes, or any instrument (other than any instrument entered into between FNF and any of its Affiliates) that contains a similar negative pledge or requirement for the grant of pari passu liens, remain outstanding and such Persons are "Restricted Subsidiaries" (or comparably classified and restricted) thereunder; provided that, within 30 days, or such longer period as the Administrative Agent may agree in its reasonable discretion, after all such notes and instruments cease to be outstanding or any such Person ceases to be so classified and restricted, the Borrowers shall cause each such Person that is a Guarantor to comply with Sections 6.12(b)(iii), (b)(iv) and (b)(v). (d) Within 45 days after the reasonable request therefor by the Administrative Agent, or such longer period as the Administrative Agent may agree in its reasonable discretion, the Borrowers shall, at the Borrowers' expense, deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in Section 6.12(b) as the Administrative Agent may reasonably request. (e) As promptly as practicable after the request therefor by the Administrative Agent, the Borrowers shall, at the Borrowers' expense, deliver to the Administrative Agent with respect to each Material Real Property owned or held by each Additional Guarantor that is the subject of such request, title reports in scope, form and substance reasonably satisfactory to the Administrative Agent and, to the extent available, surveys and environmental assessment reports. (f) Upon the acquisition of (x) any personal property by Solutions or any of its Subsidiaries which is a Loan Party or (y) any Material Real Property by Solutions or any of its Subsidiaries which is a Loan Party, in each case which is not already subject to a perfected Lien in favor of the Administrative Agent for the benefit of the Secured Parties, Solutions shall give notice thereof to the Administrative Agent and shall, if requested by the Administrative Agent, cause such assets to be subjected to a Lien securing such Loan Party's Obligations and will take, or cause the relevant Loan Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect or record such Lien, including the actions referred to in Section 6.12(b) with respect to Material Real Property or personal property. 88 (g) Notwithstanding the foregoing, (i) the Administrative Agent shall not take a security interest in or require any title insurance or similar items with respect to those assets as to which the Administrative Agent shall determine, in its reasonable discretion, that the cost of obtaining such Lien (including any mortgage, stamp, intangibles or other tax, title insurance or similar items) is excessive in relation to the benefit to the Lenders of the security afforded thereby and (ii) Liens required to be granted pursuant to this Section 6.12 shall be subject to exceptions and limitations consistent with those set forth in the Collateral Documents as in effect on the Closing Date (to the extent appropriate in the applicable jurisdiction). Section 6.13. Compliance with Environmental Laws. Except, in each case, to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect, (a) comply, and take all commercially reasonable actions to cause all lessees and other Persons operating or occupying its properties to comply, in all material respects, with all applicable Environmental Laws and Environmental Permits; (b) obtain and renew all Environmental Permits necessary for its operations and properties; and (c) in each case to the extent required by Environmental Laws, conduct any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to remove and clean up all Hazardous Materials from any of its properties, in accordance with the requirements of all Environmental Laws. Section 6.14. Further Assurances. (a) Promptly upon reasonable request by the Administrative Agent, (i) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Loan Document or other document or instrument relating to any Collateral and (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably require from time to time in order to carry out more effectively the purposes of the Loan Documents. (b) Concurrently with the delivery of each Compliance Certificate pursuant to Section 6.02(b), sign and deliver to the Administrative Agent an appropriate Intellectual Property Security Agreement with respect to all After-Acquired Intellectual Property (as defined in the Security Agreement) owned by it as of the last day of the period for which such Compliance Certificate is delivered, to the extent that such After-Acquired Intellectual Property is not covered by any previous Intellectual Property Security Agreement so signed and delivered by it; provided that an Intellectual Property Security Agreement shall not be required to be delivered with respect to After-Acquired Intellectual Property except as provided in the Security Agreement. In each case, Solutions will, and will cause each of its Subsidiaries that is a Loan Party to, promptly cooperate as necessary to enable the Administrative Agent to make any necessary or reasonably desirable recordations with the U.S. Copyright Office or the U.S. Patent and Trademark Office, as appropriate. (c) Within 10 days after the Closing Date, or such longer period as the Administrative Agent may agree in its reasonable discretion, Solutions, to the extent that it owns Material Real Property on the Closing Date, shall, and Solutions shall cause each of its Restricted Subsidiaries that owns Material Real Property on the Closing Date to, duly execute and deliver to the Administrative Agent Mortgages granting a Lien in all Material Real Property owned by such Person (other than real property located at 601 Riverside Avenue, Jacksonville, Florida) and 89 deliver an opinion addressed to the Administrative Agent and the other Secured Parties in form and substance reasonably acceptable to the Administrative Agent, and shall take whatever action (including the recording of Mortgages with respect to such Material Real Property) as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid and subsisting Liens on the Material Real Property purported to be subject to such Mortgages, enforceable against all third parties in accordance with their terms. Section 6.15. Designation of Subsidiaries. The board of directors of Holdings may at any time designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (a) other than in the case of the designation of a Joint Venture in existence on the Closing Date that thereafter becomes a Subsidiary (an "EXCLUDED UNRESTRICTED SUBSIDIARY"), immediately before and after such designation, no Default shall have occurred and be continuing, (b) other than in the case of the designation of a Excluded Unrestricted Subsidiary, immediately after giving effect to such designation, Holdings and its Consolidated Subsidiaries shall be in compliance, on a Pro Forma Basis, with the covenants set forth in Section 7.11 (and, as a condition precedent to the effectiveness of any such designation, the Borrowers shall deliver to the Administrative Agent a certificate setting forth in reasonable detail the calculations demonstrating such compliance), (c) no Borrower may be designated as an Unrestricted Subsidiary, (d) no designation of a Restricted Subsidiary as an Unrestricted Subsidiary, other than an Excluded Unrestricted Subsidiary, shall be effective if, immediately after such designation, (i) the aggregated Consolidated EBITDA of the Unrestricted Subsidiaries would exceed 5% of the Consolidated EBITDA of Holdings and its Consolidated Subsidiaries or (ii) the fair market value of the assets of all Unrestricted Subsidiaries would exceed 5% of the aggregate fair market value of the assets of Holdings and its Subsidiaries calculated as of such date, in each case determined without regard to any Excluded Restricted Subsidiary at any time after such Person becomes a Subsidiary, and (e) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a "Restricted Subsidiary" for the purpose of any Junior Financing. The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute Investments by the Restricted Companies therein at the date of designation in an amount equal to the net book value (or, in the case of any guarantee or similar Investment, the amount) of the Restricted Companies' Investments therein. If any Person becomes a Restricted Subsidiary on any date after the Closing Date (including by redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary), the Indebtedness of such Person outstanding on such date will be deemed to have been incurred by such Person on such date for purposes of Section 7.03, but will not be considered the sale or issuance of Equity Interests for purposes of Section 7.05. Section 6.16. Interest Rate Protection. As promptly as practicable, and in any event within 180 days after the Closing Date, the Borrowers will enter into, and thereafter for a period of at least two years will maintain in effect, one or more interest rate protection agreements on such terms and with such Lenders or Affiliates of Lenders as shall be reasonably satisfactory to the Administrative Agent, the effect of which shall be to fix or limit the interest cost to the Borrower with respect to at least 25% of the outstanding Term Loans and other long-term Indebtedness of the Borrowers and their Consolidated Subsidiaries that bears interest at a floating rate, calculated as of the date such interest rate protection was entered into. 90 ARTICLE 7 NEGATIVE COVENANTS So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder which is accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding or not otherwise provided for in full in a manner reasonably satisfactory to the L/C Issuer, Holdings and the Borrowers shall not, nor shall they permit any of their Restricted Subsidiaries to, directly or indirectly: Section 7.01. Liens. 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: (a) Liens pursuant to any Loan Document; (b) Liens existing on the date hereof and listed on Schedule 7.01 and any modifications, replacements, renewals or extensions thereof; provided that (i) the Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.03, and (B) proceeds and products thereof and (ii) the modification, replacement, renewal, extension or refinancing of the obligations secured or benefited by such Liens (if such obligations constitute Indebtedness) is permitted by Section 7.03; (c) Liens for taxes, assessments or governmental charges which are not overdue for a period of more than 30 days, or, if more than 30 days overdue, (i) which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP or (ii) with respect to which the failure to make payment could not reasonably be expected to have a Material Adverse Effect; (d) statutory Liens of landlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other like Liens arising in the ordinary course of business which secure amounts not overdue for a period of more than 30 days or, if more than 30 days overdue, (i) no action has been taken to enforce such Lien, (ii) such Lien is being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP or (iii) with respect to which the failure to make payment as to all such amounts, in the aggregate, could not reasonably be expected to have a Material Adverse Effect; (e) (i) Liens incurred in the ordinary course of business in connection with workers' compensation, unemployment insurance and other social security legislation, (ii) Liens incurred in the ordinary course of business securing insurance premiums or reimbursement obligations under insurance policies or (iii) obligations in respect of letters of credit or bank guarantees that have been posted by a Restricted Company to support the payment of the items set forth in clauses (i) and (ii) of this Section 7.01(e); (f) (i) deposits to secure the performance of bids, trade contracts, governmental contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety, 91 stay, customs and appeal bonds, performance bonds, performance and completion guarantees and other obligations of a like nature (including those to secure health, safety and environmental obligations) incurred in the ordinary course of business and (ii) obligations in respect of letters of credit or bank guarantees that have been posted by a Borrower or any of their Restricted Subsidiaries to support the payment of items set forth in clause (i) of this Section 7.01(f); (g) easements, rights-of-way, restrictions, encroachments, protrusions and other similar encumbrances and minor title defects affecting real property which, in the aggregate, do not in any case materially and adversely interfere with the ordinary conduct of the business of the applicable Person; (h) Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h); (i) Liens securing Indebtedness permitted under Section 7.03(f); provided that (i) such Liens attach concurrently with or within 270 days after the acquisition, repair, replacement, construction or improvement (as applicable) of the property subject to such Liens, and (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and the proceeds and the products thereof and accessions thereto; provided that individual financings otherwise permitted to be secured hereunder provided by one Person (or its affiliates) may be cross collateralized to other such financings provided by such Person (or its affiliates); (j) (i) leases, licenses, subleases or sublicenses granted to other Persons in the ordinary course of business which do not (A) interfere in any material respect with the business of the Borrowers or any of their material Restricted Subsidiaries or (B) secure any Indebtedness (other than any obligation that is Indebtedness solely as a result of the operation of clause (e) of the definition thereof) and (ii) the rights reserved or vested in any Person by the terms of any lease, license, franchise, grant or permit held by any Restricted Company or by a statutory provision to terminate any such lease, license, franchise, grant or permit or to require periodic payments as a condition to the continuance thereof; (k) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business; (l) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, (ii) attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and (iii) in favor of a banking institution arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry; (m) Liens (i) (A) on advances of cash or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant to Sections 7.02(h) and (k) to be applied against the purchase price for such Investment, and (B) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 7.05, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the 92 date of the creation of such Lien and (ii) on cash earnest money deposits made by a Borrower or any Restricted Subsidiary in connection with any letter of intent or purchase agreement permitted hereunder; (n) Liens on property of any Foreign Subsidiary securing Indebtedness of such Foreign Subsidiary to the extent permitted under Section 7.03; (o) Liens in favor of a Borrower or a Restricted Subsidiary securing Indebtedness permitted under Section 7.03(e) or other obligations other than Indebtedness owed by a Restricted Company to another Restricted Company; (p) Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Restricted Subsidiary, in each case after the date hereof (other than Liens on the Equity Interests of any Person that becomes a Restricted Subsidiary) and any modifications, replacements, renewals or extensions thereof; provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Restricted Subsidiary, (ii) in the case of Liens securing purchase money Indebtedness or Capitalized Leases, such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and after-acquired property subjected to a Lien pursuant to terms existing at the time of such acquisition, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition); provided that individual financings otherwise permitted to be secured hereunder provided by one Person (or its affiliates) may be cross collateralized to other such financings provided by such Person (or its affiliates), (iii) in the case of Liens securing Indebtedness other than purchase money Indebtedness or Capitalized Leases, such Liens do not extend to the property of any Person other than the Person acquired or formed to make such acquisition and the subsidiaries of such Person and (iv) the Indebtedness secured thereby (or, as applicable, any modifications, replacements, renewals or extensions thereof) is permitted under Section 7.03; (q) Liens arising from precautionary UCC financing statement filings (or similar filings under applicable Law) regarding leases entered into by a Borrower or any of its Restricted Subsidiaries in the ordinary course of business; (r) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by a Borrower or any of its Restricted Subsidiaries in the ordinary course of business not prohibited by this Agreement; (s) Permitted Encumbrances; (t) other Liens securing Indebtedness or other obligations outstanding in an aggregate principal amount not to exceed the greater of (i) 2% of Total Consolidated Assets and (ii) $75,000,000; (u) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness (other than Indebtedness described in clause (e) of the definition thereof), (ii) relating to pooled deposit 93 or sweep accounts of any Restricted Company to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of such Restricted Company and (iii) relating to purchase orders and other similar agreements entered into in the ordinary course of business; (v) Liens consisting of pledges or deposits of cash or securities made by a Regulated Subsidiary as a condition to obtaining or maintaining any licenses issued to it by, or to satisfy the requirements of, any applicable Regulatory Supervising Organization; (w) Liens securing obligations permitted under Sections 7.03(v) and (w) to the extent specified therein; (x) Liens on the assets of a Securitization Vehicle securing Indebtedness under any Securitization Financing permitted under Section 7.03(y); and (y) Liens arising as a result of claims against a Regulated Subsidiary under or related to insurance or insurance-related contracts entered into in the ordinary course of business and Liens securing Indebtedness assumed by a Regulated Subsidiary in connection with the settlement of claim losses incurred in the ordinary course of business. Without limitation of the foregoing, in no event shall (A) Holdings, Tax or any Restricted Subsidiary of Tax 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 Liens, if any, that may be provided in the future under the Loan Documents), if the effect thereof is to require an additional Lien (including on an equal and ratable basis) for the benefit of the holders of the FNF 2011 Notes or of the FNF 2013 Notes or (B) any Restricted Company create, incur, assume or suffer to exist any Lien upon the real property located at 601 Riverside Avenue, Jacksonville, Florida, securing Indebtedness for borrowed money (other than Liens, if any, that may be provided in the future under the Loan Documents). Section 7.02. Investments. Make or hold any Investments, except: (a) Investments by a Restricted Company in assets that were Cash Equivalents when such Investment was made, and the holding of cash at any time by a Restricted Company; (b) loans or advances to directors, officers, members of management, employees and consultants of a Restricted Company (i) in an aggregate amount not to exceed $20,000,000 at any time outstanding, for business-related travel, entertainment, relocation and analogous ordinary business purposes, and (ii) in connection with such Person's purchase of Equity Interests of Holdings in an aggregate amount not to exceed the amount of such Restricted Payments permitted to be made pursuant to Section 7.06(g); (c) Investments (i) by any Loan Party in any other Loan Party, (ii) by any Restricted Subsidiary that is not a Loan Party in any Restricted Company, (iii) by any Loan Party in any Regulated Subsidiary that is not a Loan Party (A) in the ordinary course of business or (B) to consummate any transaction permitted by this Article 7 and (iv) by any Loan Party in an 94 aggregate amount not to exceed $50,000,000 in any Restricted Subsidiary that is not a Regulated Subsidiary and is not a Loan Party; (d) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business; (e) Investments consisting of Liens, Indebtedness, fundamental changes, Dispositions and Restricted Payments permitted under Section 7.01, 7.03, 7.04, 7.05 and 7.06, respectively; (f) Investments existing or contemplated on the date hereof and set forth on Schedule 7.02 and any modification, replacement, renewal or extension thereof; provided that the amount of the original Investment is not increased except by the terms of such Investment or as otherwise permitted by this Section 7.02; (g) promissory notes and other noncash consideration received in connection with Dispositions permitted by Section 7.05; (h) the purchase or other acquisition of all or substantially all of the property and assets or business of, any Person or of assets constituting a business unit, a line of business or division of such Person, or of more than 50% of the Equity Interests in a Person that, upon the consummation thereof, will be owned directly by a Borrower or one or more of its wholly owned Subsidiaries (including as a result of a merger or consolidation); provided that, with respect to each purchase or other acquisition made pursuant to this Section 7.02(h) (each, a "PERMITTED ACQUISITION"): (i) each applicable Loan Party and any such newly created or acquired Subsidiary shall, or will within the times specified therein, have complied with the requirements of Section 6.12; (ii) other than Indebtedness incurred under this Agreement, any Indebtedness incurred in connection with such acquisition by a Borrower or any Restricted Subsidiary shall be Permitted Acquisition Debt or Permitted Holdco Debt; (iii) (A) immediately before and immediately after giving Pro Forma Effect to any such purchase or other acquisition, no Event of Default shall have occurred and be continuing and (B) immediately after giving effect to such purchase or other acquisition, (1) the Borrowers shall be in Pro Forma Compliance with all of the covenants set forth in Section 7.11 and (2) the Senior Leverage Ratio, calculated on a Pro Forma Basis, shall not be greater than 4.75:1.00, in each case such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) as though such purchase or other acquisition had been consummated as of the first day of the fiscal period covered thereby and evidenced by a certificate from the chief financial officer (or other equivalent officer) of the Borrowers demonstrating such compliance calculation in reasonable detail; 95 (iv) if the total consideration of such Permitted Acquisition exceeds $20,000,000, the Borrowers shall have delivered to the Administrative Agent, on behalf of the Lenders, no later than five Business Days after the date on which any such purchase or other acquisition is consummated, a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all of the requirements set forth in this Section 7.02(h) have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition; and (v) such purchase or other acquisition was not preceded by, or effected pursuant to, a hostile offer; (i) Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of any Person and in settlement of obligations of, or other disputes with, any Person arising in the ordinary course of business and upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment; (j) loans and advances to Holdings in lieu of, and not in excess of the amount of (after giving effect to any other loans, advances or Restricted Payments in respect thereof), Restricted Payments permitted to be made to Holdings in accordance with Section 7.06; (k) so long as immediately after giving effect to any such Investment, no Event of Default has occurred and is continuing, other Investments that (net of any cash repayment of or return on such Investments theretofore received) do not exceed (i) $150,000,000 for the period after the Closing Date to and including December 31, 2005 and (ii) $75,000,000 in any fiscal year thereafter; provided that to the extent that the aggregate amount of Investments made by the Restricted Companies in any fiscal year pursuant to this clause (k) is less than the amount set forth for such fiscal year, the amount of such difference may be carried forward and used to make Investments in the succeeding fiscal years; provided further that the amounts set forth in clauses (i) and (ii) may be further increased by an amount equal to the sum of (A) 50% of any Equity Interests (other than Disqualified Equity Interests) of Holdings issued to the seller of the Equity Interests, property or assets acquired in an Investment permitted under Section 7.02(h) or (k) plus (B) the sum of the Net Cash Proceeds received during such period of (1) any Permitted Holdco Debt, (2) any Permitted Equity Issuance (other than as part of the Transaction) and (3) the incurrence or issuance of any Permitted Subordinated Indebtedness or Permitted Senior Indebtedness permitted by Section 7.03(a)(i) plus (C) in the case of clause (ii), the amount of Cumulative Excess Cash Flow, but only to the extent the amounts described in clauses (A), (B) and (C) above are in respect of transactions occurring after the Closing Date and are Not Otherwise Applied; (l) advances of payroll payments to employees in the ordinary course of business; (m) Guarantees by a Restricted Company of leases (other than Capital Lease Obligations) entered into in the ordinary course of business; (n) Investments in the ordinary course consisting of endorsements for collection or deposit; 96 (o) Investments in Unrestricted Subsidiaries; provided that immediately after giving effect to such Investment, the fair market value of the assets of such Subsidiary, when aggregated with the fair market value of the assets of all other Unrestricted Subsidiaries, shall not exceed 5% of the aggregate fair market value of the assets of Holdings and its Subsidiaries calculated as of the date any such Investment is made; (p) Investments consisting of Swap Contracts entered into in the ordinary course of business and not for speculative purposes; (q) Investments in connection with the Closing Date Dividend and the repayment of the FNF Note; (r) Investments by a Regulated Subsidiary in the ordinary course of business and in compliance with applicable regulatory requirements; and (s) any Investment in a Securitization Vehicle or any Investment by a Securitization Vehicle in any other Person in connection with a Securitization Financing permitted by Section 7.03(y), including Investments of funds held in accounts permitted or required by the arrangements governing the Securitization Financing or any related Indebtedness; provided that any Investment in a Securitization Vehicle is in the form of a purchase money note, contribution of additional Securitization Assets or equity investments. Section 7.03. Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except: (a) Permitted Subordinated Indebtedness and Permitted Senior Indebtedness of a Loan Party (i) in an aggregate amount not to exceed $100,000,000 and (ii) in an aggregate amount in excess of $100,000,000 solely to the extent that (A) the Net Cash Proceeds thereof are utilized within 90 days of the incurrence thereof to finance a Permitted Acquisition and, to the extent not so utilized, such excess amounts are applied to prepay the Term Loans pursuant to Section 2.05(b)(iv) or (B) the Net Cash Proceeds thereof are applied to prepay the Term Loans pursuant to Section 2.05(b)(iv) and any Permitted Refinancing of Indebtedness described in this clause (a); (b) Indebtedness of the Loan Parties under the Loan Documents; (c) Indebtedness outstanding on the date hereof and listed on Schedule 7.03 and any Permitted Refinancing thereof; (d) Guarantees by a Restricted Company in respect of Indebtedness of a Borrower or Restricted Subsidiary otherwise permitted hereunder; provided that (x) no Guarantee by any Restricted Subsidiary of any Permitted Subordinated Indebtedness (or any Permitted Refinancing thereof) shall be permitted unless such Restricted Subsidiary shall have also provided a Guarantee of the Obligations substantially on the terms set forth in the Subsidiary Guarantee in accordance with Section 6.12 and (y) if the Indebtedness being Guaranteed is subordinated to the Obligations, such Guarantee shall be subordinated to the Guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness; 97 (e) Indebtedness of a Restricted Company that constitutes an Investment permitted by Section 7.02; provided that all such Indebtedness of any Loan Party to any Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party, it being understood that such Loan Party may make payments thereon unless an Event of Default has occurred and is continuing; (f) Attributable Indebtedness and purchase money obligations (including obligations in respect of mortgage, industrial revenue bond, industrial development bond, and similar financings), in each case of a Borrower or Restricted Subsidiary to finance the purchase, repair or improvement of fixed or capital assets within the limitations set forth in Section 7.01(i) and any Permitted Refinancing thereof; provided that the aggregate amount of all such Indebtedness incurred in any fiscal year shall not exceed an amount equal to 50% of the aggregate amount, if any, of Capital Expenditures that could be made during such fiscal year pursuant to Section 7.17; (g) Indebtedness of Foreign Subsidiaries in an aggregate principal amount at any time outstanding for all such Persons taken together not exceeding the greater of (i) 2% of Total Consolidated Assets and (ii) $75,000,000; (h) Indebtedness of a Restricted Company assumed in connection with any Permitted Acquisition and not incurred in contemplation thereof, and any Permitted Refinancing thereof; (i) Indebtedness incurred by any Restricted Company representing deferred compensation to employees of a Borrower or Restricted Subsidiary incurred in the ordinary course of business; (j) Indebtedness consisting of promissory notes issued by any Restricted Company to future, present or former directors, officers, members of management, employees or consultants of Holdings or any of its Subsidiaries or their respective estates, heirs, family members, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings permitted by Section 7.06; (k) Indebtedness incurred by a Restricted Company in a Permitted Acquisition or Disposition under agreements providing for indemnification, the adjustment of the purchase price or similar adjustments; (l) Indebtedness consisting of obligations of any Restricted Company under deferred compensation or other similar arrangements incurred by such Person in connection with the Transaction and Permitted Acquisitions; (m) Cash Management Obligations and Indebtedness incurred by any Restricted Company in respect of netting services, overdraft protections and similar arrangements in each case in connection with cash management and deposit accounts; (n) Indebtedness of a Restricted Company in an aggregate principal amount not to exceed the greater of (i) 3% of Total Consolidated Assets and (ii) $125,000,000 at any time outstanding; 98 (o) Indebtedness consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations of a Borrower or Restricted Subsidiary contained in supply arrangements, in each case, in the ordinary course of business; (p) Indebtedness incurred by a Restricted Company constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to such similar reimbursement-type obligations; provided that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence; (q) obligations in respect of performance, stay, customs, appeal and surety bonds and performance and completion guarantees provided by a Borrower or Restricted Subsidiary or obligations in respect of letters of credit related thereto, in each case in the ordinary course of business or consistent with past practice; (r) Guarantees by Holdings of Indebtedness permitted under this Section 7.03; (s) unsecured Indebtedness of Holdings ("PERMITTED HOLDCO DEBT") that (i) is not subject to any Guarantee by a Borrower or any Restricted Subsidiary, (ii) will not mature prior to the date that is 91 days after the scheduled Maturity Date of the Term B Loans (or any later scheduled Maturity Date of any Additional Term Loans outstanding on the date of issuance of such Indebtedness) and (iii) has no scheduled amortization or payments of principal prior to the date that is 91 days after the scheduled Maturity Date of the Term B Loans (or any later scheduled maturity date of any Additional Term Loans outstanding on the date of issuance of such Indebtedness); (t) Indebtedness in respect of Swap Contracts required by Section 6.15 or entered into in the ordinary course of business and not for speculative purposes; (u) Indebtedness in respect of any bankers' acceptance supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business; (v) Indebtedness of the Restricted Companies having a maturity of 92 days or less representing borrowings from a bank or banks with which the Restricted Companies have a depository relationship, which borrowings shall be fully secured by Cash Equivalents purchased by such Restricted Company with the proceeds of such borrowings; (w) Indebtedness incurred in the ordinary course of business in connection with "1031 exchange" under Section 1031 of the Code or relocation service transactions and secured by the properties which are the subject of such transactions; (x) obligations consisting of Guarantees of Indebtedness of insurance agents of a Regulated Subsidiary in an aggregate amount at any time outstanding not to exceed $20,000,000; 99 (y) Indebtedness incurred in connection with a trade receivables securitization transaction involving the Restricted Companies and a Securitization Vehicle (a "SECURITIZATION FINANCING"); provided that (i) the Net Cash Proceeds of such Indebtedness are applied to prepay either the Terms Loans or the Revolving Credit Loans pursuant to Section 2.05(b); provided that if the Revolving Credit Loans are prepaid with such Net Cash Proceeds, the Revolving Credit Commitments shall be permanently reduced by the amount of such Net Cash Proceeds, (ii) such Indebtedness when incurred shall not exceed 100% of the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition, (iii) such Indebtedness is created and any Lien attaches to such property concurrently with or within forty-five (45) days of the acquisition thereof, and (iv) such Lien does not at any time encumber any property other than the property financed by such Indebtedness; (z) Indebtedness pursuant to the FNF Note; provided that such note is repaid in full by the close of business on the second Business Day after the Closing Date; (aa) Indebtedness (i) of the type described in clause (e) of the definition thereof subject to Liens permitted under Section 7.01 or (ii) secured by Liens permitted under Sections 7.01(e)(ii), (e)(iii), (f), (r) or (y); and (bb) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (aa) above; provided that the aggregate outstanding principal or face amount of Indebtedness of Restricted Subsidiaries that are Regulated Subsidiaries (other than Foreign Subsidiaries) (other than Indebtedness described in clauses (b) (if applicable), (e), (i), (k), (l), and (v) above, and Indebtedness permitted hereunder and secured by Liens described in Section 7.01(y)) shall not exceed $5,000,000 at any time. Section 7.04 . Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that: (a) any Restricted Subsidiary other than a Borrower may merge with or liquidate into (i) a Borrower (including a merger, the purpose of which is to reorganize a Borrower into a new jurisdiction so long as such Borrower remains organized under the laws of the United States, any state thereof or the District of Columbia and does not become a regulated entity); provided that the relevant Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of such Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any such Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02 and 7.03, respectively; (b) so long as no Event of Default exists or would result therefrom, any Borrower or any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted 100 Subsidiary or the designation of an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) if the continuing or surviving Person is a Restricted Subsidiary, such Restricted Subsidiary shall have complied with the requirements of Section 6.12(b), (ii) in the case of a transaction the purpose of which is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary, such transaction must be consummated in compliance with Section 6.15, (iii) to the extent constituting an Investment, such Investment must be permitted under Section 7.02 and (iv) if a Borrower is a party thereto, such Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of such Borrower in a manner reasonably acceptable to the Administrative Agent; (c) a Borrower and/or Restricted Subsidiary may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if a Borrower is a party thereto, (A) such Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of such Borrower in a manner reasonably acceptable to the Administrative Agent and (B) such Borrower or such continuing or surviving Person shall continue to be a direct wholly-owned Subsidiary of Holdings, (ii) such Borrower or such continuing or surviving Person shall be organized under the laws of the United States, any state thereof or the District of Columbia and (iii) such Borrower or such continuing surviving Person shall not be a regulated entity; and (d) a Borrower may merge with one of its Subsidiaries for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) such Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of such Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) such Borrower or such surviving Person shall be organized under the laws of the United States, any state thereof or the District of Columbia and (iii) such Borrower or such surviving Person shall not be a regulated entity and shall continue to be a direct wholly-owned Subsidiary of Holdings. Section 7.05. Dispositions. Make any Disposition of any of its property except: (a) Dispositions of obsolete, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of the Borrowers and their Restricted Subsidiaries; (b) Dispositions of inventory in the ordinary course of business; (c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property; (d) Dispositions of property by (i) a Solutions Restricted Company to another Solutions Restricted Company, (ii) a Tax Restricted Company to another Tax Restricted Company or to a Solutions Restricted Company or (iii) a Solutions Restricted Company to a Tax Restricted Company (A) in the ordinary course of business or (B) with a fair market value for all such Dispositions pursuant to this clause (B) after the Closing Date not exceeding $75,000,000, in each case including any such Dispositions effected pursuant to a merger, liquidation or 101 dissolution; provided that if the transferor of such property is a Guarantor or a Borrower (x) the transferee thereof must either be a Borrower or a Guarantor or (y) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 7.02; (e) Dispositions permitted by Sections 7.02 and 7.04 (so long as any Disposition pursuant to a liquidation permitted pursuant to Section 7.04 shall be done on a pro rata basis among the equity holders of the applicable Subsidiary) and Section 7.06 and Liens permitted by Section 7.01; (f) Dispositions by a Borrower or Restricted Subsidiary of property pursuant to sale-leaseback transactions; provided that (i) the fair market value of all property so Disposed of shall not exceed $50,000,000 from and after the Closing Date and (ii) the purchase price for such property shall be paid to such Borrower or Restricted Subsidiary for not less than 75% cash consideration; (g) Dispositions of Cash Equivalents; (h) Dispositions of accounts receivable in connection with the collection or compromise thereof; (i) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Restricted Companies; (j) transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event; (k) Dispositions of property by a Borrower or Restricted Subsidiary not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, no Event of Default shall exist or would result from such Disposition, (ii) the aggregate book value of all property Disposed of in reliance on this clause (k) shall not exceed the greater of (A) 2% of Total Consolidated Assets and (B) $75,000,000 and (iii) the purchase price for such property (if in excess of $15,000,000) shall be paid to such Borrower or Restricted Subsidiary for not less than 75% cash consideration; (l) Dispositions in the ordinary course of business consisting of the abandonment of IP Rights which, in the reasonable good faith determination of the Borrowers, are not material to the conduct of the business of the Restricted Companies; (m) Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements (i) in substantially the form as such arrangements are in effect on the Closing Date or (ii) to the extent that the Net Cash Proceeds of such Disposition are applied to prepay the Term Loans pursuant to Section 2.05(b)(ii); (n) Dispositions by any Restricted Subsidiary of all or substantially all of its assets (upon voluntary liquidation or otherwise) to a Borrower or to another Restricted Subsidiary; provided that (i) if the transferor in such a transaction is a Guarantor, then the transferee must 102 either be a Borrower or a Guarantor or (ii) to the extent constituting an Investment, such Investment must be an Investment permitted by Section 7.02; (o) Dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, members of management, employees or consultants of the Restricted Companies; (p) Dispositions of tangible property in the ordinary course of business as part of a like-kind exchange under Section 1031 of the Code; (q) Dispositions of real property and related properties as part of the resolution or settlement of claims under any insurance or insurance related contract entered into by a Regulated Subsidiary in the ordinary course of business; (r) voluntary terminations of Swap Contracts; (s) Dispositions set forth on Schedule 7.05; (t) Dispositions of Unrestricted Subsidiaries; and (u) Dispositions of Securitization Assets (or a fractional undivided interest therein) in a Securitization Financing permitted under Section 7.03(y); provided that any Disposition of any property pursuant to this Section 7.05 (except pursuant to Sections 7.05(d), (e), (h), (l) and (n), shall be for no less than the fair market value of such property at the time of such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than Solutions or any of its Restricted Subsidiaries that is a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing. Section 7.06. Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower that is its parent and to any other Restricted Company (and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to (i) a Borrower or another Restricted Subsidiary and (ii) each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests); (b) any Restricted Company may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of such Person; (c) so long as no Event of Default shall have occurred and be continuing or would result therefrom, (x) Holdings may make Restricted Payments with the proceeds received from any Permitted Equity Issuance to the extent not required to prepay the Term Loans pursuant to 103 Section 2.05(b) and (y) Holdings may make Restricted Payments with the proceeds of the issuance of Permitted Holdco Debt; (d) on the Closing Date, the Borrowers may pay the Closing Date Dividend to Holdings, and Holdings may make the other Restricted Payments contemplated by this Agreement to consummate the Transaction; (e) to the extent constituting Restricted Payments, the Borrowers and their Restricted Subsidiaries may enter into transactions expressly permitted by Section 7.04, 7.05(e), 7.05(n) or 7.08; (f) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants; (g) Holdings may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings held by any future, present or former director, officer, member of management, employee or consultant of Holdings or any of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing); provided that the aggregate amount of Restricted Payments made under this clause (g) does not exceed in any calendar year $15,000,000 (with unused amounts in any calendar year being carried over to the two succeeding calendar years); and provided further that such amount in any calendar year may be increased by an amount not to exceed (i) the cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) to directors, officers, members of management, employees or consultants of Holdings or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) that occurs after the Closing Date plus (ii) the amount of any cash bonuses otherwise payable to directors, officers, members of management, employees or consultants of Holdings or any of its Subsidiaries in connection with the Transaction that are foregone in return for the receipt of Equity Interests of Holdings pursuant to a deferred compensation plan of such Person plus (iii) the cash proceeds of key man life insurance policies received by Holdings, the Borrower or its Subsidiaries after the Closing Date (provided that Holdings may elect to apply all or any portion of the aggregate increase contemplated by clauses (i), (ii) and (iii) above in any calendar year) less (iv) the amount of any Restricted Payments previously made pursuant to clauses (i), (ii) and (iii) of this clause (g); (h) the Borrowers and other Restricted Subsidiaries may make Restricted Payments to Holdings: (i) the proceeds of which shall be used by Holdings to (A) pay operating expenses of Holdings and the other Restricted Companies incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $25,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors, officers, members of management, employees or consultants of Holdings attributable to the ownership or operations of the Borrowers and their Restricted Subsidiaries, (B) pay its franchise or similar taxes and other similar 104 fees, taxes and expenses required to maintain Holdings' corporate existence and (C) make payments required under the Shared Services Agreement; (ii) the proceeds of which will be used by Holdings to make Restricted Payments permitted by clause (g); (iii) to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to a Borrower or one of their Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into a Borrower or one of their Subsidiaries in order to consummate such Permitted Acquisition; (iv) the proceeds of which shall be used by Holdings to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; (v) the proceeds of which shall be used by Holdings to pay when due (and required to be paid in cash), and in aggregate amounts equal to, accrued and unpaid interest on Contributed Holdco Debt; provided that before and immediately after giving effect to such payment, no Event of Default shall exist or would result from such action and Holdings shall be in compliance with Section 7.11(b); (vi) the proceeds of which shall be used to make cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of a Holdings or its Restricted Subsidiaries; provided that any such cash payment shall not be for the purpose of evading the limitations set forth in this Section 7.06 (as determined in good faith by the board of directors of the relevant Borrower or Restricted Subsidiary (or any authorized committee thereof)); (vii) the proceeds of which will be used by Holdings to pay (or to make a Restricted Payment to FNF to enable it to pay) the income tax liability for each relevant jurisdiction in respect of the consolidated, combined, unitary or affiliated returns filed by or on behalf of Holdings (or FNF); provided that such proceeds are limited to the income tax liability attributable to Holdings and its Subsidiaries; (viii) the proceeds of which shall be used by Holdings to pay customary salary, bonus and other benefits payable to officers and employees of Holdings to the extent such salaries, bonuses and other benefits are directly attributable and reasonably allocated to the operations of the Borrowers and their Restricted Subsidiaries; and (ix) the proceeds of which shall be used by Holdings to pay amounts owing pursuant to the Shared Services Agreement, the Management Agreement, tax sharing agreements, and other amounts of the type described in Section 7.08, in each case to the 105 extent the applicable payment would be permitted under Section 7.08 if such payment were to be made by a Borrower or its Restricted Subsidiaries. (i) so long as no Event of Default shall have occurred or be continuing or would result therefrom, in addition to the foregoing Restricted Payments, the Borrowers may make additional Restricted Payments to Holdings the proceeds of which may be utilized by Holdings to make additional Restricted Payments, in an aggregate amount not to exceed $50,000,000 (such amount to be increased to (i) $75,000,000 if the Senior Secured Leverage Ratio as of the last day of the immediately preceding four fiscal quarters was less than 3.75:1 and (ii) $100,000,000 if the Senior Secured Leverage Ratio as of the last day of the immediately preceding four fiscal quarters was less than 3.25:1); provided that such amounts may be increased by an amount equal to 50% of Cumulative Excess Cash Flow that is Not Otherwise Applied; and (j) from and after a Qualifying IPO of a Qualifying IPO Issuer, such Qualifying IPO Issuer may make the Restricted Payments permitted to be made by Holdings under this Section 7.06. Section 7.07. Change in Nature of Business. Engage in any material line of business substantially different from those lines of business conducted by the Borrowers and their Restricted Subsidiaries on the date hereof or any business reasonably related or ancillary thereto. Section 7.08. Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate of the Borrowers, whether or not in the ordinary course of business, other than (a) transactions among the Loan Parties, (b) on fair and reasonable terms substantially as favorable to such Borrower or Restricted Subsidiary as would be obtainable by such Borrower or Restricted Subsidiary at the time in a comparable arm's-length transaction with a Person other than an Affiliate, (c) the payment of fees and expenses in connection with the consummation of the Transaction, (d) so long as no Event of Default shall have occurred and be continuing under Section 8.01(f), the payment of fees under the Management Agreements as such fee provisions are set forth in the Management Agreements as in effect on the date the Purchase Agreement transactions are closed, (e) equity issuances by Holdings permitted under Section 7.06, (f) loans and other transactions by Holdings, the Borrowers and their Restricted Subsidiaries to the extent permitted under this Article 7, (g) customary fees payable to any directors of Holdings (or after a Qualifying IPO, the Qualifying IPO Issuer) and reimbursement of reasonable out of pocket costs of the directors of Holdings, (h) employment and severance arrangements between any Restricted Company and their officers and employees in the ordinary course of business, (i) payments by any Restricted Company pursuant to the tax sharing agreements among Holdings and its Subsidiaries on customary terms, (j) the payment of customary fees and indemnities to directors, officers and employees of Holdings and its Subsidiaries in the ordinary course of business, (k) transactions pursuant to permitted agreements in existence on the Closing Date and set forth on Schedule 7.08 or any amendment thereto to the extent such an amendment is not adverse to the Lenders in any material respect, (l) Restricted Payments permitted under Section 7.06, (m) transactions and payments pursuant to the Shared Services Agreements, (n) any transaction with a Securitization Vehicle as part of a Securitization Financing permitted under Section 7.03(y) and (o) payments by any Restricted Company to the Sponsor made for any customary financial advisory, financing, underwriting or placement services or in respect of 106 other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by the majority of the board of directors of Holdings in good faith. Section 7.09. Burdensome Agreements. Enter into or permit to exist any Contractual Obligation (other than this Agreement or any other Loan Document) that limits the ability of (a) any Restricted Subsidiary of a Borrower to make Restricted Payments to either Borrower or any Guarantor or to otherwise transfer property to or invest in any Borrower or any Guarantor, or (b) any Loan Party to create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Agents and the Lenders with respect to the credit facilities established hereunder and the Obligations or under the Loan Documents; provided that the foregoing shall not apply to Contractual Obligations which (i)(x) exist on the date hereof and (to the extent not otherwise permitted by this Section 7.09) are listed on Schedule 7.09 hereto and (y) to the extent Contractual Obligations permitted by clause (x) are set forth in an agreement evidencing Indebtedness, are set forth in any agreement evidencing any permitted renewal, extension or refinancing of such Indebtedness so long as such renewal, extension or refinancing does not expand the scope of the restrictions described in clauses (a) or (b) that are contained in such Contractual Obligation, (ii) are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary, so long as such Contractual Obligations were not entered into solely in contemplation of such Person becoming a Restricted Subsidiary, (iii) represent Indebtedness of a Restricted Subsidiary of the Borrower which is not a Loan Party which is permitted by Section 7.03, (iv) arise in connection with any Disposition permitted by Section 7.05, (v) are customary provisions in joint venture agreements and other similar agreements applicable to Joint Ventures permitted under Section 7.02 and applicable solely to such Joint Venture entered into in the ordinary course of business, (vi) are negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 7.03 but solely to the extent any negative pledge relates to the property financed by or the subject of such Indebtedness or expressly permits Liens for the benefit of the Agents and the Lenders with respect to the credit facilities established hereunder and the Obligations under the Loan Documents on a senior basis and without a requirement that such holders of such Indebtedness be secured by such Liens equally and ratably or on a junior basis, (vii) are customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions may relate to the assets subject thereto,(viii) comprise restrictions imposed by any agreement relating to secured Indebtedness permitted pursuant to Section 7.03(f) to the extent that such restrictions apply only to the property or assets securing such Indebtedness, (ix) are customary provisions restricting subletting or assignment of any lease governing a leasehold interest, or (x) are customary provisions restricting assignment or transfer of any agreement entered into in the ordinary course of business. Section 7.10. Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly, to purchase or carry margin stock (within the meaning of Regulation U issued by the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund Indebtedness originally incurred for such purpose, in each case in violation of Regulation U issued by the FRB. Section 7.11. Financial Covenants.(a) Senior Secured Leverage Ratio. Permit the Senior Secured Leverage Ratio as of the end of any fiscal quarter of the Borrowers and their 107 Restricted Subsidiaries (beginning with the fiscal quarter ending September 30, 2005) set forth below to be greater than the ratio set forth below opposite such fiscal quarter:
Fiscal Year First Quarter Second Quarter Third Quarter Fourth Quarter - ----------- ------------- -------------- ------------- -------------- 2005 N/A N/A 5.35:1 5.35:1 2006 5.35:1 5.35:1 5.35:1 4.75:1 2007 4.75:1 4.75:1 4.75:1 4.25:1 2008 4.25:1 4.25:1 4.25:1 3.75:1 2009 3.75:1 3.75:1 3.75:1 3.25:1 2010 3.25:1 3.25:1 3.25:1 2.75:1 2011 2.75:1 2.75:1 2.75:1 2.75:1 2012 2.75:1 2.75:1 2.75:1 2.75:1
(b) Interest Coverage Ratio. Permit the Interest Coverage Ratio as of the end of any fiscal quarter of Holdings (beginning with the fiscal quarter ending September 30, 2005) set forth below to be less than the ratio set forth below opposite such fiscal quarter:
Fiscal Year First Quarter Second Quarter Third Quarter Fourth Quarter - ----------- ------------- -------------- ------------- -------------- 2005 N/A N/A 2.75:1 2.75:1 2006 2.75:1 2.75:1 2.75:1 3.00:1 2007 3.00:1 3.00:1 3.00:1 3.25:1 2008 3.25:1 3.25:1 3.25:1 3.50:1 2009 3.50:1 3.50:1 3.50:1 3.75:1 2010 3.75:1 3.75:1 3.75:1 4.00:1 2011 4.00:1 4.00:1 4.00:1 4.25:1 2012 4.25:1 4.25:1 4.25:1 4.25:1
Section 7.12. Amendments of Organization Documents. Amend any of its Organization Documents in a manner materially adverse to the Administrative Agent or the Lenders. Section 7.13. Change in Fiscal Year. Make any change in fiscal year. Section 7.14. Prepayments, Etc. of Indebtedness. (a) Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner (it being understood that payments of regularly scheduled interest shall be permitted) any Permitted Senior Indebtedness or any Junior Financing or make any payment in violation of any subordination terms of any Permitted Subordinated Indebtedness, except (i) the refinancing thereof with the Net Cash Proceeds of any Permitted Subordinated Indebtedness, Permitted Holdco Debt or Permitted Equity Issuance or, in the case of Permitted Senior Indebtedness, other Permitted Senior Indebtedness, Permitted Holdco Debt or Permitted Equity Issuance, in each case to the extent not required to prepay any Loans pursuant to Section 2.05(b), (ii) the conversion of any 108 Junior Financing or Permitted Senior Indebtedness to Equity Interests (other than Disqualified Equity Interests) and (iii) so long as no Event of Default has occurred and is continuing or would result therefrom, prepayments, redemptions or repurchases of Permitted Senior Indebtedness or Junior Financing in an aggregate amount not to exceed $50,000,000 in any fiscal year, or (b) amend, modify or change in any manner materially adverse to the interests of the Administrative Agent or the Lenders any term or condition of any Permitted Senior Indebtedness or any Junior Financing Documentation without the consent of the Administrative Agent. Section 7.15. Activities of Holdings. In the case of Holdings, (a) conduct, transact or otherwise engage in any business or operations other than those incidental to its ownership of the Equity Interests of the Borrowers, the performance of the Loan Documents, the Purchase Agreement and the other agreements contemplated by the Purchase Agreement and any transactions that Holdings is permitted to enter into or consummate under this Article 7, (b) make any Investments, conduct any business or own any assets other than Equity Interests in the Borrowers or (c) incur any Indebtedness other than Indebtedness permitted pursuant to Section 7.03. Section 7.16. Designated Senior Debt. Designate any other Indebtedness (other than under this Agreement and the other Loan Documents) of the Borrower or its Restricted Subsidiaries as "Senior Indebtedness" or "Senior Secured Financing" (or any comparable term) under, and as defined in, any Junior Financing Documentation. Section 7.17. Capital Expenditures. (a) Make any Capital Expenditure except for Capital Expenditures not exceeding, in the aggregate for the Borrowers and their Restricted Subsidiaries during (i) the period commencing on the Closing Date and ending on the last day of the fiscal year ending in 2005, $200,000,000 and (ii) the fiscal year ending during each year set forth below, the amount set forth opposite such year:
YEAR AMOUNT - ---- ------------ ~~2006 $210,000,000 2007 $220,000,000 2008 $230,000,000 2009 $240,000,000 2010 $250,000,000 2011 $250,000,000 2012 $250,000,000~~
(b) Notwithstanding anything to the contrary contained in clause (a) above, (i) to the extent that the aggregate amount of Capital Expenditures made by the Restricted Companies in any fiscal year pursuant to Section 7.17(a) is less than the amount set forth for such fiscal year, the amount of such difference (the "ROLLOVER AMOUNT") may be carried forward and used to make Capital Expenditures in either of the two immediately succeeding fiscal years, (ii) if the aggregate amount of Capital Expenditures made by the Restricted Companies in any fiscal year (in this clause (b), the "CURRENT FISCAL YEAR") is greater than the amount permitted for such fiscal year pursuant to clause (a) above and clause (i) of this clause (b), an amount of up to 50% of the 109 amount otherwise available for Capital Expenditures in the immediately succeeding fiscal year pursuant to clause (a) may be reallocated to such current fiscal year by notice thereof in the Compliance Certificate delivered for such current fiscal year, identifying such amount carried back as the "CAPEX CARRYBACK AMOUNT" and showing the calculation thereof in demonstrating compliance with this Section 7.17, and (A) the amount of Capital Expenditures permitted to be made in such current fiscal year shall be increased by such CapEx Carryback Amount and (B) the amount of Capital Expenditures otherwise permitted to be made in the immediately succeeding fiscal year pursuant to clause (a) above shall be reduced by an equal amount; provided that if such reallocation is made during any current fiscal year, no such reallocation may be made during the immediately succeeding fiscal year and (iii) for any fiscal year during which a Permitted Acquisition is consummated and for each fiscal year thereafter, the amount available for Capital Expenditures otherwise permitted shall increased by an amount equal to the amount of Capital Expenditures made by the acquired Person or business for the 36-month period immediately preceding such Permitted Acquisition divided by 3; provided that (A) for the fiscal year in which such Permitted Acquisition occurs, such increased amount shall be multiplied by a fraction equal to (1) the number of days remaining in such fiscal year after the closing of the Permitted Acquisition divided by (2) 365 and (B) for the first full fiscal year after the closing of such Permitted Acquisition, such increased amount shall be multiplied by 125%. ARTICLE 8 EVENTS OF DEFAULT AND REMEDIES Section 8.01. Events of Default. Any of the following shall constitute an "EVENT OF DEFAULT": (a) Non-Payment. Any Restricted Company fails to pay (i) when due, any amount of principal of any Loan, or (ii) within five Business Days after the same becomes due, any interest on any Loan or any other amount payable hereunder or with respect to any other Loan Document; or (b) Specific Covenants. Any Restricted Company fails to perform or observe any term, covenant or agreement contained in any of Section 6.03(a), 6.05(a) (solely with respect to the Borrowers), 6.11 or Article 7; provided that any Event of Default under Section 7.11 is subject to cure as contemplated by the last proviso set forth in the definition of "Consolidated EBITDA"; or (c) Other Defaults. Any Restricted Company fails to perform or observe any other term, covenant or agreement (not specified in Section 8.01(a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days (or, in the case of the Mortgages, such other period specified therein) after notice thereof by the Administrative Agent to any Borrower; or (d) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Restricted Company herein, in any other Loan Document, or in any document required to be delivered in connection herewith or 110 therewith shall be incorrect or misleading in any material respect when made or deemed made; or (e) Cross-Default. Any Restricted Company (i) fails to make any payment after the applicable grace period with respect thereto, if any, (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness (other than Indebtedness hereunder and Indebtedness owed by one Restricted Company to another Restricted Company) having an aggregate outstanding principal amount of not less than the Threshold Amount, or (ii) fails to observe or perform any other agreement or condition relating to any such Indebtedness, 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 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 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; provided that this clause (e)(ii) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness; or (f) Insolvency Proceedings, Etc. Any Restricted Company institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or (g) Inability to Pay Debts; Attachment. (i) Any Restricted Company becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within 60 days after its issue or levy; or (h) Judgments. There is entered against any Restricted Company a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer has been notified of such judgment or order and does not deny coverage) and there is a period of 60 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in 111 an aggregate amount which could reasonably be expected to result in a Material Adverse Effect, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount which could reasonably be expected to result in a Material Adverse Effect; or (j) Invalidity of Loan Documents. Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder (including as a result of a transaction permitted under Section 7.04 or 7.05) or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Restricted Company contests in writing the validity or enforceability of any provision of any Loan Document; or any Restricted Company denies in writing that it has any or further liability or obligation under any Loan Document (other than as a result of repayment in full of the Obligations and termination of the Aggregate Commitments or as a result of a transaction permitted hereunder or thereunder (including as a result of a transaction permitted under Section 7.04 or 7.05)), or purports in writing to revoke or rescind any Loan Document; or (k) Change of Control. There occurs any Change of Control; or (l) Collateral Documents. Any Collateral Document after delivery thereof pursuant to Section 4.01 or Section 6.12 shall for any reason (other than pursuant to the terms thereof including as a result of a transaction permitted under Section 7.04 or 7.05) cease to create a valid and perfected first priority Lien on and security interest in the Collateral covered thereby, subject to Liens permitted under Section 7.01, or any Loan Party shall assert in writing such invalidity or lack of perfection or priority (other than in an informational notice delivered to the Administrative Agent), except to the extent that any such loss of perfection or priority results from the failure of the Administrative Agent to maintain possession of certificates or other possessory collateral actually delivered to it representing securities or other collateral pledged under the Collateral Documents or to file Uniform Commercial Code financing statements, continuation statements or equivalent filings and except, as to Collateral consisting of real property to the extent that such losses are covered by a lender's title insurance policy insured by a solvent insurer and such insurer has not denied or disclaimed in writing that such losses are covered by such title insurance policy; or (m) Junior Financing Documentation. (i) Any of the Obligations of the Loan Parties under the Loan Documents for any reason shall cease to be "Senior Indebtedness" (or any comparable term) or "Senior Secured Financing" (or any comparable term) under, and as defined in, any Junior Financing Documentation governing Permitted Subordinated Indebtedness in an aggregate principal amount in excess of the Threshold Amount or (ii) the subordination provisions set forth in any Junior Financing Documentation governing Permitted Subordinated Indebtedness in an aggregate principal amount in excess of the Threshold Amount shall, in whole or in part, cease to be effective or cease to be legally valid, binding and enforceable against the holders of any Junior Financing, if applicable (it being understood that such Junior Financing may no longer be Permitted Subordinated Indebtedness hereunder). 112 Section 8.02. Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions: (a) declare the Commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such Commitments and obligation shall be terminated; (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each Borrower; (c) require that each Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and (d) exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable Law; provided that upon the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of each Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender. Section 8.03. Application of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received on account of the Secured Obligations shall be applied by the Administrative Agent in the following order: First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including Attorney Costs payable under Section 11.04 and amounts payable under Article 3 but excluding principal of, and interest on, any Loan) payable to the Administrative Agent in its capacity as such; Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including Attorney Costs payable under Section 11.05 and amounts payable under Article 3), ratably among them in proportion to the amounts described in this clause Second payable to them; Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and L/C Borrowings, ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them; 113 Fourth, to payment of (i) that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings, (ii) Secured Hedging Obligations and (iii) the Cash Management Obligations, ratably among the Lenders and/or other holders thereof in proportion to the respective amounts described in this clause Fourth held by them; Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit; Sixth, to the payment of all other Obligations of the Loan Parties that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date; and Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrowers or as otherwise required by Law. Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above and, if no Obligations remain outstanding, delivered to the Borrowers. ARTICLE 9 ADMINISTRATIVE AGENT AND OTHER AGENTS Section 9.01. Appointment and Authorization of Agents. (a)Each Lender hereby irrevocably appoints, designates and authorizes the Administrative Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere herein or in any other Loan Document, the Administrative Agent shall have no duties or responsibilities, except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent. Without limiting the generality of the foregoing sentence, the use of the term "agent" herein and in the other Loan Documents with reference to any Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (b) Each L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of 114 the benefits and immunities (i) provided to the Agents in this Article 9 with respect to any acts taken or omissions suffered by each L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and the applications and agreements for letters of credit pertaining to such Letters of Credit as fully as if the term "Agent" as used in this Article 9 and in the definition of "Agent-Related Person" included such L/C Issuer with respect to such acts or omissions, and (ii) as additionally provided herein with respect to such L/C Issuer. (c) The Administrative Agent shall also act as the "collateral agent" under the Loan Documents, and each of the Lenders (in its capacities as a Lender, Swing Line Lender (if applicable), L/C Issuer (if applicable) and a potential Hedge Bank) hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of (and to hold any security interest created by the Collateral Documents for and on behalf of or on trust for) such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as "collateral agent" (and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.02 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this Article 9 (including Section 9.07, as though such co-agents, sub-agents and attorneys-in-fact were the "collateral agent" under the Loan Documents) as if set forth in full herein with respect thereto. Section 9.02. Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents or of exercising any rights and remedies thereunder) by or through agents, employees or attorneys-in-fact, such sub-agents as shall be deemed necessary by the Administrative Agent and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agent or sub-agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct. Section 9.03. Liability of Agents. No Agent-Related Person shall (a) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct in connection with its duties expressly set forth herein), or (b) be responsible in any manner to any Lender or participant for any recital, statement, representation or warranty made by any Loan Party or any of their Subsidiaries or any officer thereof, contained herein or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or the perfection or priority of any Lien or security interest created or purported to be created under the Collateral Documents, or for any failure of any Fidelity Company or any other party to any Loan Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender or participant to ascertain or to 115 inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party or any of their Subsidiaries or any Affiliate thereof. Section 9.04. Reliance by Agents. (a) Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to any Loan Party or any of their Subsidiaries), independent accountants and other experts selected by such Agent. Each Agent shall be fully justified in failing or refusing to take any action under any Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Each Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders (or such greater number of Lenders as may be expressly required hereby in any instance) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders. (b) For purposes of determining compliance with the conditions specified in Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Section 9.05. Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default, except with respect to defaults in the payment of principal, interest and fees required to be paid to the Administrative Agent for the account of the Lenders, unless the Administrative Agent shall have received written notice from a Lender or a Loan Party referring to this Agreement, describing such Default and stating that such notice is a "notice of default." The Administrative Agent will notify the Lenders of its receipt of any such notice. The Administrative Agent shall take such action with respect to any Event of Default as may be directed by the Required Lenders in accordance with Article 8; provided that unless and until the Administrative Agent has received any such direction, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default as it shall deem advisable or in the best interest of the Lenders. Section 9.06. Credit Decision; Disclosure of Information by Agents. Each Lender acknowledges that no Agent-Related Person has made any representation or warranty to it, and that no act by any Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of any Loan Party or any of their Subsidiaries thereof, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Lender as to any matter, including whether Agent-Related Persons have disclosed material 116 information in their possession. Each Lender represents to each Agent that it has, independently and without reliance upon any Agent-Related Person and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of each Fidelity Company, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit hereunder. Each Lender also represents that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of each Loan Party or any of their Subsidiaries. Except for notices, reports and other documents expressly required to be furnished to the Lenders by any Agent herein, such Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any Loan Party or any of their Subsidiaries which may come into the possession of any Agent-Related Person. Section 9.07. Indemnification of Agents. Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon demand each Agent-Related Person (to the extent not reimbursed by or on behalf of any Loan Party and without limiting the obligation of any Loan Party to do so), pro rata, and hold harmless each Agent-Related Person from and against any and all Indemnified Liabilities incurred by it; provided that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities resulting from such Agent-Related Person's own gross negligence or willful misconduct; provided that no action taken in accordance with the directions of the Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 9.07; provided further that to the extent an L/C Issuer is entitled to indemnification under this Section 9.07 solely in connection with its role as an L/C Issuer, only the Revolving Credit Lenders shall be required to indemnify such L/C Issuer in accordance with this Section 9.07. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section 9.07 applies whether any such investigation, litigation or proceeding is brought by any Lender or any other Person. Without limitation of the foregoing, each Lender shall reimburse the Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including Attorney Costs) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses by or on behalf of the Borrower. The undertaking in this Section 9.07 shall survive termination of the Aggregate Commitments, the payment of all other Obligations and the resignation of the Administrative Agent. Section 9.08. Agents in their Individual Capacities. Bank of America and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire Equity 117 Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with each Loan Party or any of their Subsidiaries as though Bank of America were not the Administrative Agent or the L/C Issuer hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to such activities, Bank of America or its Affiliates may receive information regarding any Loan Party or any of their Subsidiaries (including information that may be subject to confidentiality obligations in favor of such Loan Party or any of their Subsidiaries) and acknowledge that the Administrative Agent shall be under no obligation to provide such information to them. With respect to its Loans, Bank of America shall have the same rights and powers under this Agreement as any other Lender and may exercise such rights and powers as though it were not the Administrative Agent or the L/C Issuer, and the terms "Lender" and "Lenders" include Bank of America in its individual capacity. Section 9.09. Successor Agents. The Administrative Agent may resign as the Administrative Agent upon 30 days' notice to the Lenders and the Borrowers. If the Administrative Agent resigns under this Agreement, the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall be consented to by the Borrowers at all times other than during the existence of an Event of Default under Section 8.01(f) (which consent of the Borrowers shall not be unreasonably withheld or delayed). If no successor agent is appointed prior to the effective date of the resignation of the Administrative Agent, the Administrative Agent may appoint, after consulting with the Lenders and each Borrower, a successor agent from among the Lenders. Upon the acceptance of its appointment as successor agent hereunder, the Person acting as such successor agent shall succeed to all the rights, powers and duties of the retiring Administrative Agent and the term "Administrative Agent," shall mean such successor administrative agent and/or supplemental administrative agent, as the case may be, and the retiring Administrative Agent's appointment, powers and duties as the Administrative Agent shall be terminated. After the retiring Administrative Agent's resignation hereunder as the Administrative Agent, the provisions of this Article 9 and Section 11.04 and 11.05 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent under this Agreement. If no successor agent has accepted appointment as the Administrative Agent by the date which is 30 days following the retiring Administrative Agent's notice of resignation, the retiring Administrative Agent's resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above; provided that in the case of any Collateral held by the Administrative Agent on behalf of the Lenders or an L/C Issuer under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such Collateral until such time as a successor Administrative Agent is appointed. Upon the acceptance of any appointment as the Administrative Agent hereunder by a successor and upon the execution and filing or recording of such financing statements, or amendments thereto, and such amendments or supplements to the Mortgages, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may request, in order to continue the perfection of the Liens granted or purported to be granted by the Collateral Documents, the Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges, and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documents. After the retiring Administrative Agent's resignation hereunder as the Administrative Agent, the provisions of this 118 Article 9 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Administrative Agent. Section 9.10. Administrative Agent May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on any Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Section 2.03(i) and (j), 2.09 and 11.04) allowed in such judicial proceeding; and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due the Administrative Agent under Section 2.09 and 11.04. Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. Section 9.11. Collateral and Guaranty Matters. The Lenders irrevocably authorize the Administrative Agent: (a) to release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other than (x) obligations under Secured Hedge Agreements, (y) Cash Management Obligations not yet due and payable and (z) contingent indemnification obligations not yet accrued and payable) and the expiration or termination of all Letters of Credit (or provision therefor in full in a manner reasonably satisfactory to each L/C Issuer), (ii) that is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other 119 Loan Document to any Person other than a Loan Party, (iii) subject to Section 11.01, if approved, authorized or ratified in writing by the Required Lenders, or (iv) owned by a Guarantor upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (c) below; (b) to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 7.01(b), (e), (f), (g), (i), (j), (l), (m), (p), (r), (s), (u), (w) and (x); and (c) to release any Guarantor from its obligations under any Loan Document to which it is a party if such Person ceases to be a Restricted Subsidiary as a result of a transaction or designation permitted hereunder; provided that no such release shall occur if such Guarantor continues to be a guarantor in respect of any Junior Financing unless and until such Guarantor is (or is being simultaneously) released from its guarantee with respect to such Junior Financing. Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent's authority to release its interest in particular types or items of property, or to release any Guarantor from its obligations under the Loan Documents pursuant to this Section 9.11. In each case as specified in this Section 9.11, the Administrative Agent will, at the Borrowers' expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents, or to release such Guarantor from its obligations under the Loan Documents, in each case in accordance with the terms of the Loan Documents and this Section 9.11. Section 9.12. Other Agents; Arrangers and Managers. None of the Lenders or other Persons identified on the facing page and/or signature pages of this Agreement as a "co-syndication agent," "co-documentation agent," "joint book-running manager," "arranger," or "co-lead arranger" shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders or other Persons so identified shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not taking action hereunder. Section 9.13. Appointment of Supplemental Administrative Agents. (a) It is the purpose of this Agreement and the other Loan Documents that there shall be no violation of any Law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as agent or trustee in such jurisdiction. It is recognized that in case of litigation under this Agreement or any of the other Loan Documents, and in particular in case of the enforcement of any of the Loan Documents, or in case the Administrative Agent deems that by reason of any present or future Law of any jurisdiction it may not exercise any of the rights, powers or remedies granted herein or in any of the other Loan Documents or take any other action which may be desirable or necessary in connection therewith, the Administrative Agent is hereby authorized to appoint an additional individual or institution selected by the Administrative Agent in its sole discretion as a separate trustee, co-trustee, administrative agent, collateral agent, administrative sub-agent or administrative co-agent (any such additional 120 individual or institution being referred to herein individually as a "SUPPLEMENTAL ADMINISTRATIVE AGENT" and collectively as "SUPPLEMENTAL ADMINISTRATIVE AGENTS"). (b) In the event that the Administrative Agent appoints a Supplemental Administrative Agent with respect to any Collateral, (i) each and every right, power, privilege or duty expressed or intended by this Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed to the Administrative Agent with respect to such Collateral shall be exercisable by and vest in such Supplemental Administrative Agent to the extent, and only to the extent, necessary to enable such Supplemental Administrative Agent to exercise such rights, powers and privileges with respect to such Collateral and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Loan Documents and necessary to the exercise or performance thereof by such Supplemental Administrative Agent shall run to and be enforceable by either the Administrative Agent or such Supplemental Administrative Agent, and (ii) the provisions of this Article 9 and of Section 9.07 (obligating the Borrower to pay the Administrative Agent's expenses and to indemnify the Administrative Agent) that refer to the Administrative Agent shall inure to the benefit of such Supplemental Administrative Agent and all references therein to the Administrative Agent shall be deemed to be references to the Administrative Agent and/or such Supplemental Administrative Agent, as the context may require. (c) Should any instrument in writing from any Loan Party be required by any Supplemental Administrative Agent so appointed by the Administrative Agent for more fully and certainly vesting in and confirming to him or it such rights, powers, privileges and duties, the Borrowers or Holdings, as applicable, shall, or shall cause such Loan Party to, execute, acknowledge and deliver any and all such instruments promptly upon request by the Administrative Agent. In case any Supplemental Administrative Agent, or a successor thereto, shall die, become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Administrative Agent, to the extent permitted by Law, shall vest in and be exercised by the Administrative Agent until the appointment of a new Supplemental Administrative Agent. ARTICLE 10 GUARANTY Section 10.01. Guaranty. Holdings and each Borrower hereby guarantees the punctual payment when due, whether at scheduled maturity or by acceleration, demand or otherwise, of all Obligations of (a) in the case of Holdings, each Borrower and (b) in the case of each Borrower, the other Borrower, in each case now or hereafter existing (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing Obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, fees, indemnities, contract causes of action, costs, expenses or otherwise (Holdings and each Borrower in its capacity as guarantor under this Article 10, a "GUARANTOR PARTY", and such Obligations, for any Guarantor Party, its "GUARANTEED OBLIGATIONS"). Without limiting the generality of the foregoing, the liability of each Guarantor Party shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by 121 any other Loan Party to any Secured Party under or in respect of the Loan Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other Loan Party. Section 10.02. Contribution. Subject to Section 10.03, each Guarantor Party hereby unconditionally agrees that in the event any payment shall be required to be made to any Secured Party under this Article 10 or the Subsidiary Guaranty or any other guaranty, such Guarantor Party in its capacity as such will contribute, to the maximum extent permitted by law, such amounts to each other Guarantor so as to maximize the aggregate amount paid to the Secured Parties under or in respect of the Loan Documents. Section 10.03. Guaranty Absolute. Each Guarantor Party guarantees that its Guaranteed Obligations will be paid in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Secured Party with respect thereto. The Obligations of each Guarantor Party under or in respect of this Article 10 are independent of the Guaranteed Obligations or any other Obligations of any other Loan Party under or in respect of the Loan Documents, and a separate action or actions may be brought and prosecuted against each Guarantor Party to enforce this Article 10, irrespective of whether any action is brought against any Borrower or any other Loan Party or whether any Borrower or any other Loan Party is joined in any such action or actions. The liability of each Guarantor Party under this Article 10 shall be irrevocable, absolute and unconditional, and each Guarantor Party hereby irrevocably waives any defenses (other than payment in full of the Guaranteed Obligations) it may now have or hereafter acquire in any way relating to, any or all of the following: (a) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto; (b) any change in the time, manner or place of payment of, or in any other term of, all or any of its Guaranteed Obligations or any other Obligations of any other Loan Party under or in respect of the Loan Documents, or any other amendment or waiver of or any consent to departure from any Loan Document, including, without limitation, any increase in its Guaranteed Obligations resulting from the extension of additional credit to any Loan Party or any of its Subsidiaries or otherwise; (c) any taking, exchange, release or non-perfection of any Collateral or any other collateral, or any taking, release or amendment or waiver of, or consent to departure from, any other guaranty, for all or any of its Guaranteed Obligations; (d) any manner of application of Collateral or any other collateral, or proceeds thereof, to all or any of its Guaranteed Obligations, or any manner of sale or other disposition of any Collateral or any other collateral for all or any of its Guaranteed Obligations or any other Obligations of any Loan Party under the Loan Documents or any other assets of any Loan Party or any of its Subsidiaries; (e) any change, restructuring or termination of the corporate structure or existence of any Loan Party or any of its Subsidiaries; 122 (f) any failure of any Secured Party to disclose to any Loan Party any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Loan Party now or hereafter known to such Secured Party (each Guarantor Party waiving any duty on the part of the Secured Parties to disclose such information); (g) the failure of any other Person to execute or deliver any other guaranty or agreement or the release or reduction of liability of any other guarantor or surety with respect to its Guaranteed Obligations; or (h) any other circumstance or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or a discharge of, any Loan Party or any other guarantor or surety other than satisfaction in full of the Obligations. This Article 10 shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of such Guarantor Party's Guaranteed Obligations is rescinded or must otherwise be returned by any Secured Party or any other Person upon the insolvency, bankruptcy or reorganization of any Borrower or any other Loan Party or otherwise, all as though such payment had not been made. Section 10.04. Waiver And Acknowledgments. (a) Each Guarantor Party hereby waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of its Guaranteed Obligations and this Article 10 (other than any notice expressly required by the Loan Documents) and any requirement that any Secured Party protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against any Loan Party or any other Person or any Collateral. (b) Each Guarantor Party hereby unconditionally and irrevocably waives any right to revoke this Article 10 and acknowledges that this Article 10 is continuing in nature and applies to all of its Guaranteed Obligations, whether existing now or in the future. (c) Each Guarantor Party hereby unconditionally and irrevocably waives any defense arising by reason of any claim or defense based upon an election of remedies by any Secured Party that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such Guarantor Party or other rights of such Guarantor Party to proceed against any of the other Loan Parties, any other guarantor or any other Person or any Collateral and any defense based on any right of set-off or counterclaim against or in respect of the Obligations of such Guarantor Party under this Article 10. (d) Each Guarantor Party acknowledges that the Administrative Agent may, in accordance with the Loan Documents, without notice to or demand upon such Guarantor Party and without affecting the liability of such Guarantor Party under this Article 10, to the extent permitted by applicable Law, foreclose under any mortgage by nonjudicial sale, and each Guarantor Party hereby waives any defense to the recovery by the Administrative Agent and the 123 other Secured Parties against such Guarantor Party of any deficiency after such nonjudicial sale and any defense or benefits that may be afforded by applicable law. (e) Each Guarantor Party hereby unconditionally and irrevocably waives any duty on the part of any Secured Party to disclose to such Guarantor Party any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Loan Party or any of its Subsidiaries now or hereafter known by such Secured Party. (f) Each Guarantor Party acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Loan Documents and that the waivers set forth in this Article 10 are knowingly made in contemplation of such benefits. Section 10.05. Subrogation. Each Guarantor Party hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against any other Loan Party (including, in the case of each Borrower and Guarantor Party, the other Borrower) or any other insider guarantor that arise from the existence, payment, performance or enforcement of such Guarantor Party's Obligations under or in respect any Loan Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Secured Party against any other Loan Party or any other insider guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any other Loan Party or any other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of such Guarantor Party's Guaranteed Obligations and all other amounts payable under this Article 10 shall have been paid in full in cash, all Letters of Credit shall have expired or been terminated or otherwise provided for in full in a manner reasonably satisfactory to the L/C Issuer and the Commitments shall have expired or been terminated. If any amount shall be paid to any Guarantor Party in violation of the immediately preceding sentence at any time prior to the latest of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Article 10, (b) the Maturity Date and (c) the latest date of expiration or termination of all Letters of Credit or other provision therefor in full in a manner reasonably satisfactory to the L/C Issuer, such amount shall be received and held in trust for the benefit of the Secured Parties, shall be segregated from other property and funds of such Guarantor Party and shall forthwith be paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to such Guarantor Party's Guaranteed Obligations and all other amounts payable by it under this Article 10, whether matured or unmatured, in accordance with the terms of the Loan Documents, or to be held as Collateral for any of such Guarantor Party's Guaranteed Obligations or other amounts payable by it under this Article 10 thereafter arising. If (i) all of the Guaranteed Obligations and all other amounts payable under this Article 10 shall have been paid in full in cash, (ii) the Maturity Date shall have occurred and (iii) all Letters of Credit shall have expired or been terminated or other provision therefor in full shall have been made in a manner reasonably satisfactory to the L/C Issuer, the Secured Parties will, at any Guarantor Party's request and expense, execute and deliver to such Guarantor Party appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor 124 Party of an interest in the Guaranteed Obligations resulting from such payment made by such Guarantor Party pursuant to this Article 10. Section 10.06. Payment Free And Clear Of Taxes. Any and all payments by any Guarantor Party under this Article 10 shall be made in accordance with the provisions of this Agreement, including the provisions of Section 3.01 (and such Guarantor Party shall make such payments of Taxes or Other Taxes to the extent described in Section 3.01), as though such payments were made by a Borrower. Section 10.07. No Waiver; Remedies. No failure on the part of any Secured Party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law. Section 10.08. Right Of Set-Off. Upon (a) the occurrence and during the continuance of any Event of Default and (b) the making of the request or the granting of the consent specified by Section 8.02 to authorize the Administrative Agent to declare the Loans due and payable pursuant to the provisions of said Section 8.02, the Administrative Agent and, after obtaining the prior written consent of the Administrative Agent, each other Agent and each Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, but not any deposits held in a custodial, trust or other fiduciary capacity) at any time held and other indebtedness at any time owing by such Agent, such Lender or such Affiliate to or for the credit or the account of any Guarantor Party against any and all of the Obligations of such Guarantor Party now or hereafter existing under any Loan Document, irrespective of whether such Agent or such Lender shall have made any demand under any Loan Document and although such Obligations may be unmatured. Each Agent and each Lender agrees promptly to notify such Guarantor Party after any such set-off and application; provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Agent and each Lender and their respective Affiliates under this Section 10.08 are in addition to other rights and remedies (including, without limitation, other rights of set-off) that such Agent, such Lender and their respective Affiliates may have. Section 10.09. Continuing Guaranty; Assignments under the Credit Agreement. This Article 10 is a continuing guaranty and shall (a) remain in full force and effect until the latest of (i) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Article 10, (ii) the Maturity Date and (iii) the latest date of expiration or termination of all Letters of Credit or other provision therefor in full in a manner reasonably satisfactory to the L/C Issuer, (b) be binding upon each Guarantor Party, its successors and assigns and (c) inure to the benefit of and be enforceable by the Secured Parties and their permitted successors, transferees and assigns. Without limiting the generality of clause (c) of the immediately preceding sentence, any Secured Party may assign or otherwise transfer all or any portion of its rights and obligations under the Credit Agreement (including, without limitation, all or any portion of its Commitments, the Loans owing to it and the Note or Notes held by it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Secured Party herein or otherwise, in each case as and to the extent provided in Section 125 11.07. No Guarantor Party shall have the right to assign its rights hereunder or any interest herein without the prior written consent of all Lenders. ARTICLE 11 MISCELLANEOUS Section 11.01. Amendments, Etc. (a) No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by any Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower or the applicable Loan Party, as the case may be, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that: (i) no amendment, waiver or consent shall, without the written consent of each Lender directly affected thereby: (A) extend or increase the Commitment of any Lender (it being understood that a waiver of any condition precedent set forth in Section 4.01 or 4.02 or the waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender); (B) postpone any date scheduled for any payment of principal or interest under Section 2.07 or 2.08 or fees under Section 2.03(i) or 2.09(a), it being understood that the waiver of any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest; (C) reduce or forgive the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iii) of the second proviso to this Section 11.01) any fees or other amounts payable hereunder or under any other Loan Document, it being understood that any change to the definition of Senior Secured Leverage Ratio or in the component definitions thereof shall not constitute a reduction in the rate of interest; provided that only the consent of the Required Lenders shall be necessary to amend the definition of "Default Rate" or to waive any obligation of any Borrower to pay interest at the Default Rate; or (D) change Section 2.13 or 8.03 in any manner that would alter the pro rata sharing of payments required thereby; and (ii) no amendment, waiver or consent shall, without the written consent of each Lender: (A) change any provision of this Section 11.01 or the definition of "Required Lenders"; 126 (B) release all or substantially all of the Collateral in any transaction or series of related transactions; or (C) release all or substantially all of the value of the Guaranty; provided further that: (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Letter of Credit Application relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent under this Agreement or any other Loan Document; (iv) Section 11.07(i) may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at the time of such amendment, waiver or other modification; (v) no amendment, waiver or consent shall alter the allocation of payments set forth in Section 2.05(b)(v) between the Term Loans without the consent of Lenders having more than 50% of the outstanding principal amount of each Class of Term Loans affected thereby, voting as separate Classes; and (vi) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. (b) Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded from a vote of the Lenders hereunder requiring any consent of the Lenders). (c) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrowers (i) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and 127 fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders. (d) Notwithstanding anything to the contrary contained herein, in order to implement any Additional Term Loan Tranche in accordance with Section 2.14, this Agreement may be amended for such purpose (but solely to the extent necessary to add such Additional Term Loan Tranche in accordance with Section 2.14) by the Borrowers, the Administrative Agent and the relevant Lenders providing such Additional Term Loan Tranche. (e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, Holdings, each Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term A Loans or Term B Loans ("REFINANCED TERM LOANS") with a replacement term loan tranche hereunder ("REPLACEMENT TERM LOANS"); provided that (i) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (ii) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (iii) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (iv) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing. (f) Notwithstanding anything to the contrary contained in this Section 11.01, in the event that any Borrower requests that this Agreement be modified or amended in a manner that would require the unanimous consent of all of the Lenders and such modification or amendment is agreed to by the Required Lenders, then with the consent of each Borrower and the Required Lenders, each Borrower and the Required Lenders shall be permitted to amend the Agreement without the consent of the Lender or Lenders that did not agree to the modification or amendment requested by the Borrower (such Lender or Lenders, collectively the "MINORITY LENDERS") to provide for (i) the termination of the Commitment of each of the Minority Lenders, (ii) the addition to this Agreement of one or more other financial institutions (each of which shall be an Eligible Assignee), or an increase in the Commitment of one or more of the Required Lenders (with the written consent thereof), so that the total Commitment after giving effect to such amendment shall be in the same amount as the total Commitment immediately before giving effect to such amendment, (iii) if any Loans are outstanding at the time of such amendment, the making of such additional Loans by such new financial institutions or Required Lender or Lenders, as the case may be, as may be necessary to repay in full, at par, the outstanding Loans of the Minority Lenders immediately before giving effect to such amendment and (iv) such other modifications to this Agreement as may be appropriate to effect the foregoing clauses (i), (ii) and (iii). Section 11.02. Notices and Other Communications; Facsimile Copies. (a) Generally. Unless otherwise expressly provided herein, all notices and other communications provided for under any Loan Document shall be in writing (including by facsimile transmission and, except as 128 otherwise specifically provided herein, electronic mail). All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile number or (subject to Section 11.02(c)) electronic mail address, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows: (i) if to any Borrower, the Administrative Agent, the L/C Issuer or the Swing Line Lender, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 11.02 or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties; and (ii) if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender. All such notices and other communications shall be deemed to be given or made upon the earlier of (i) actual receipt by the relevant party and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party; (B) if delivered by mail, four Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail, when delivered; provided that notices and other communications to the Administrative Agent, the L/C Issuer and the Swing Line Lender pursuant to Article 2 shall not be effective until actually received by such Person. In no event shall a voice mail message be effective as a notice, communication or confirmation hereunder. (b) Effectiveness of Facsimile Documents and Signatures. Loan Documents may be transmitted and/or signed by facsimile or other electronic means. The effectiveness of any such documents and signatures shall, subject to applicable Law, have the same force and effect as manually signed originals and shall be binding on each Loan Party, each Agent and each Lender. The Administrative Agent may also require that any such documents and signatures be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any facsimile document or signature. (c) Electronic Communications. Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including electronic mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to Article 2 if such Lender or the L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrowers may, in their discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. 129 (d) Reliance by Agents and Lenders. The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of any Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. Such Borrower shall indemnify each Agent-Related Person and each Lender from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of such Borrower in the absence of gross negligence or willful misconduct. Section 11.03. No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges provided under each Loan Document are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Law. Section 11.04. Attorney Costs, Expenses and Taxes. Each Borrower agrees (a) to pay or reimburse the Administrative Agent for all reasonable out-of-pocket costs and expenses incurred in connection with the preparation, negotiation, syndication and execution of this Agreement and the other Loan Documents, and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or not the transactions contemplated thereby are consummated), and the consummation and administration of the transactions contemplated hereby and thereby, including all Attorney Costs of Davis Polk & Wardwell, and (b) to pay or reimburse the Administrative Agent and each Lender for all reasonable out-of-pocket costs and expenses incurred in connection with the enforcement of any rights or remedies under this Agreement or the other Loan Documents (including all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law), including all Attorney Costs of counsel to the Administrative Agent. The foregoing costs and expenses shall include all search, filing, recording, title insurance and appraisal charges and fees and taxes related thereto, and other reasonable out-of-pocket expenses incurred by any Agent. All amounts due under this Section 11.04 shall be paid promptly after receipt by the Borrowers of an invoice in reasonable detail. The agreements in this Section 11.04 shall survive the termination of the Aggregate Commitments and repayment of all other Obligations. If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it hereunder or under any Loan Document, such amount may be paid on behalf of such Loan Party by the Administrative Agent or any Lender, in its sole discretion. Section 11.05. Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall jointly and severally indemnify and hold harmless each Agent, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, attorneys-in-fact, trustees and advisors (collectively the "INDEMNITEES") from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs (which shall be limited to one counsel to the Administrative Agent and the 130 Lenders (exclusive of one local counsel to the Administrative Agent and the Lenders in each relevant jurisdiction), unless (x) the interests of the Administrative Agent and the Lenders are sufficiently divergent, in which case one additional counsel may be appointed and (y) if the interests of any Lender or group of Lenders (other than all of the Lenders) are distinctly or disproportionately affected, one additional counsel for such Lender or group of Lenders in the case of clause (a) below)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with: (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby; (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit); or (c) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by any Restricted Company or any of their Subsidiaries, or any Environmental Liability related in any way to any Restricted Company or any of their Subsidiaries; or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto; (all the foregoing, collectively, the "INDEMNIFIED LIABILITIES"), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements (x) have resulted from the gross negligence or willful misconduct of such Indemnitee or breach of the Loan Documents by such Indemnitee or (y) arise from claims of any of the Lenders solely against one or more Lenders that have not resulted from any misrepresentation, default or the breach of any Loan Document or any actual or alleged performance or non-performance by a Borrower or one of its Subsidiaries or other Affiliates or any of their respective officers, directors, stockholders, partners, members, employees, agents, representatives or advisors. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 11.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is 131 brought by any Loan Party, its directors, shareholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 11.05 shall be paid promptly after receipt by the Borrowers of an invoice in reasonable detail. The agreements in this Section 11.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Section 11.06. Payments Set Aside. To the extent that any payment by or on behalf of any Borrower is made to any Agent or any Lender, or any Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by any Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. Section 11.07. Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 11.07(f) and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement. (b) Notwithstanding Section 11.07(a), neither Holdings nor any Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender. (c) Notwithstanding Section 11.07(a), no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of Section 11.07(d), (ii) by way of participation in accordance with the provisions of Section 11.07(f), (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 11.07(h) and Section 11.07(j) or (iv) to an SPC in accordance with the provisions of Section 11.07(i) (and any other attempted assignment or transfer by any party hereto shall be null and void). 132 (d) Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement; provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender's Commitment and the Loans at the time owing to it or, in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the outstanding principal balance of the Loan of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if "Trade Date" is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000, in the case of any assignment in respect of the Revolving Credit Facility, or $1,000,000, in the case of any assignment in respect of any Term Loans, unless each of the Administrative Agent and, so long as no Event of Default in respect of Section 8.01(a) or (f) has occurred and is continuing and except for assignments in connection with the primary syndication of the Facilities, the Borrowers otherwise consent (each such consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not (x) apply to rights in respect of Swing Line Loans or (y) prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis; (iii) any assignment of a Revolving Credit Commitment must be approved by the Borrowers (in accordance with Section 11.07(d)(i)), the Administrative Agent, the L/C Issuer and the Swing Line Lender unless the Person that is the proposed assignee is itself a Revolving Credit Lender (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); (iv) the parties (other than the Borrower unless its consent to such assignment is required hereunder) to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption (and, to the extent that any such Assignment and Assumption is to be cleared through an electronic clearing system, the Administrative Agent currently intends, based on circumstances existing on the date hereof, to use the ClearPar Settlement System, to the extent practicable and consistent with then current practice), together with a processing and recordation fee of $2,500; provided that in the event of two or more concurrent assignments to an Assignee Group or two or more concurrent assignments by members of the same Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group), the Assignment Fee will be $2,500 plus, for each additional assignment after the first four concurrent assignments, $500 (which fee (x) no Borrower shall have any obligation to pay except as required in Section 3.09 and (y) may be waived by the Administrative Agent in its discretion); and 133 (v) the assigning Lender shall deliver any Notes evidencing such Loans to the Borrowers or the Administrative Agent (and the Administrative Agent shall deliver such Notes to the Borrowers). Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 11.07(e), from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 3.01, 3.04, 3.07, 11.04 and 11.05 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, and the surrender by the assigning Lender of its Note, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this clause (d) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 11.07(f). (e) The Administrative Agent, acting solely for this purpose as an agent of each Borrower, shall maintain at the Administrative Agent's Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and related interest amounts) of the Loans, L/C Obligations (specifying the Unreimbursed Amounts), L/C Borrowings and amounts due under Section 2.03 owing to each Lender pursuant to the terms hereof from time to time (the "REGISTER"). The entries in the Register shall be conclusive, absent manifest error, and each Borrower, each Agent and each Lender shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by any Borrower, any Agent and any Lender, at any reasonable time and from time to time upon reasonable prior notice. (f) Any Lender may at any time, without the consent of, or notice to, any Borrower or the Administrative Agent, sell participations to any Person (other than a natural person) (each, a "PARTICIPANT") in all or a portion of such Lender's rights and/or obligations under this Agreement; provided that (i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) each Borrower, each Agent and each other Lender shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement or the other Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in Section 134 11.01(a)(i) that directly affects such Participant. Subject to Section 11.07(g), each Participant shall be entitled to the benefits of Section 3.01, and Sections 3.04 through 3.07 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.07(d). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.10 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. (g) A Participant shall not be entitled to receive any greater payment under Section 3.01 and Sections 3.04 through 3.07 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with each Borrower's prior written consent and such Participant complies with Section 11.16 as if such Participant were a Lender under Section 11.16. A Participant shall not be entitled to the benefits of Section 3.01 unless each Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of each Borrower, to comply with Section 11.16 as though it were a Lender. (h) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement under its Note, if any to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. (i) Notwithstanding anything to the contrary contained herein: (i) any Lender (a "GRANTING LENDER") may grant to a special purpose funding vehicle (an "SPC") identified as such in writing from time to time by the Granting Lender to the Administrative Agent and each Borrower the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (A) nothing herein shall constitute a commitment by any SPC to fund any Loan, and (B) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. (ii) (A) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of any Borrower under this Agreement (including its obligations under Section 3.01 or 3.04 through 3.07), (B) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, and (C) the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the lender of record hereunder. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. 135 (iii) any SPC may (A) with notice to, but without prior consent of any Borrower or the Administrative Agent and with the payment of a processing fee of $3,500, assign all or any portion of its right to receive payment with respect to any Loan to the Granting Lender and (B) disclose on a confidential basis any non-public information relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such SPC. (j) Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may create a security interest in all or any portion of the Loans owing to it and the Note, if any, held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 11.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents, (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise (unless such trustee is an Eligible Assignee which has complied with the requirements of Section 11.07(d)). Section 11.08. Successors. Notwithstanding anything to the contrary contained herein, Bank of America may, upon 30 days' notice to the Borrowers and the Lenders, resign as L/C Issuer and/or Swing Line Lender; provided that on or prior to the expiration of such 30-day period with respect to Bank of America's resignation as L/C Issuer, Bank of America shall have identified a successor L/C Issuer reasonably acceptable to the Borrower willing to accept its appointment as successor L/C Issuer. In the event of any such resignation as L/C Issuer or Swing Line Lender, the Borrowers shall be entitled to appoint a successor L/C Issuer or Swing Line Lender from among the Lenders willing to accept such appointment; provided that a failure by the Borrowers to appoint any such successor shall not affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be, except as provided above. If Bank of America resigns as L/C Issuer, it shall retain all the rights and obligations of the L/C Issuer with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Section 11.09. Confidentiality. Each Agent and each Lender agrees to maintain the confidentiality of the Information, except that the Information may be disclosed (a) to its directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and who have agreed or are otherwise obligated to keep such Information confidential); (b) to the extent requested by any regulatory authority; (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process; provided that the Agent or Lender that discloses any Information pursuant to this clause (c) shall 136 provide the Borrower prompt notice of such disclosure; (d) to any other party to this Agreement; (e) subject to an agreement containing provisions substantially the same as those of this Section 11.09 (or as may otherwise be reasonably acceptable to each Borrower), to any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in, any of its rights or obligations under this Agreement; (f) with the written consent of any Borrower; (g) to the extent such Information becomes publicly available other than as a result of a breach of this Section 11.09; (h) to any state, Federal or foreign authority or examiner (including the National Association of Insurance Commissioners or any other similar organization) regulating any Lender; or (i) to any rating agency when required by it (it being understood that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Information relating to the Loan Parties received by it from such Lender). In addition, any Agent and any Lender may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to any Agent and any Lender in connection with the administration and management of this Agreement, the other Loan Documents, the Commitments, and the Credit Extensions. For the purposes of this Section 11.09, "INFORMATION" means all information received from any Loan Party relating to any Loan Party or its business, other than any such information that is publicly available to any Agent or any Lender prior to disclosure by any Loan Party other than as a result of a breach of this Section 11.09. Section 11.10. Set-off. In addition to any rights and remedies of each Lender provided by Law, upon the occurrence and during the continuance of any Event of Default, after obtaining the prior written consent of the Administrative Agent, each Lender is authorized at any time and from time to time, without prior notice to any Loan Party, any such notice being waived by each Borrower (on its own behalf and on behalf of each other Loan Party) to the fullest extent permitted by Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, but not any deposits held in a custodial, trust or other fiduciary capacity), at any time held by, and other Indebtedness at any time owing by, such Lender to or for the credit or the account of the respective Loan Parties against any and all Obligations owing to such Lender hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Each Lender agrees promptly to notify the Borrowers and the Administrative Agent after any such set off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent and each Lender under this Section 11.10 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent and such Lender may have. Notwithstanding anything herein or in any other Loan Document to the contrary, in no event shall the assets of any Foreign Subsidiary that is not a Loan Party constitute security, or shall the proceeds of such assets be available for, payment of the Obligations of any Borrower or any Domestic Subsidiary, it being understood that (a) the Equity Interests of any Foreign Subsidiary that is not a Loan Party do not constitute such an asset and (b) the provisions hereof shall not limit, reduce or otherwise diminish in any respect each Borrower's obligation to make any mandatory prepayment pursuant to Section 2.05(b)(ii). 137 Section 11.11. Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under any Loan Document shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the "MAXIMUM RATE"). If any Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to such Borrower. In determining whether the interest contracted for, charged, or received by an Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder. Section 11.12. Counterparts. This Agreement and each other Loan Document may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier of an executed counterpart of a signature page to this Agreement and each other Loan Document shall be effective as delivery of an original executed counterpart of this Agreement and such other Loan Document. The Agents may also require that any such documents and signatures delivered by telecopier be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier. Section 11.13. Integration. This Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of any Agent or any Lender in any other Loan Document shall not be deemed a conflict with this Agreement and subject, in the case of Letter of Credit Applications, to the last sentence of Section 2.03(b)(i). Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof. Section 11.14. Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by each Agent and each Lender, regardless of any investigation made by any Agent or any Lender or on their behalf and notwithstanding that any Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding. Section 11.15. Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be 138 affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Section 11.16. Tax Forms. (a)(i) Each Lender and Agent that is not a "United States person" within the meaning of Section 7701(a)(30) of the Code (each, a "FOREIGN LENDER") shall deliver to the Borrowers and the Administrative Agent, on or prior to the date which is ten Business Days after the Closing Date (or upon accepting an assignment of an interest herein), two duly signed, properly completed copies of either IRS Form W-8BEN or any successor thereto (relating to such Foreign Lender and entitling it to an exemption from, or reduction of, United States withholding tax on all payments to be made to such Foreign Lender by the Borrowers or any other Loan Party pursuant to this Agreement or any other Loan Document) or IRS Form W-8ECI or any successor thereto (relating to all payments to be made to such Foreign Lender by the Borrowers or any other Loan Party pursuant to this Agreement or any other Loan Document) or such other evidence reasonably satisfactory to the Borrowers and the Administrative Agent that such Foreign Lender is entitled to an exemption from, or reduction of, United States withholding tax, including any exemption pursuant to Section 881(c) of the Code, and in the case of a Foreign Lender claiming such an exemption under Section 881(c) of the Code, a certificate that establishes in writing to the Borrowers and the Administrative Agent that such Foreign Lender is not (i) a "bank" as defined in Section 881(c)(3)(A) of the Code, (ii) a 10-percent shareholder within the meaning of Section 871(h)(3)(B) of the Code, or (iii) a controlled foreign corporation related to the Borrowers with the meaning of Section 864(d) of the Code. Thereafter and from time to time, each such Foreign Lender shall (A) promptly submit to the Borrowers and the Administrative Agent such additional duly and properly completed and signed copies of one or more of such forms or certificates (or such successor forms or certificates as shall be adopted from time to time by the relevant United States taxing authorities) as may then be available under then current United States laws and regulations to avoid, or such evidence as is reasonably satisfactory to the Borrowers and the Administrative Agent of any available exemption from, or reduction of, United States withholding taxes in respect of all payments to be made to such Foreign Lender by the Borrowers or other Loan Party pursuant to this Agreement, or any other Loan Document, in each case, (1) on or before the date that any such form, certificate or other evidence expires or becomes obsolete, (2) after the occurrence of any event requiring a change in the most recent form, certificate or evidence previously delivered by it to the Borrowers and the Administrative Agent and (3) from time to time thereafter if reasonably requested by the Borrowers or the Administrative Agent, and (B) promptly notify the Borrowers and the Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction. (ii) Each Foreign Lender, to the extent it does not act or ceases to act for its own account with respect to any portion of any sums paid or payable to such Foreign Lender under any of the Loan Documents (for example, in the case of a typical participation by such Foreign Lender), shall deliver to the Borrower and the Administrative Agent on the date when such Foreign Lender ceases to act for its own account with respect to any portion of any such sums paid or payable, and at such other times as may be necessary in the determination of the Borrower or the Administrative Agent (in either case, in the reasonable exercise of its discretion), (A) two duly signed, properly completed copies of the forms or statements required to be provided by such 139 Foreign Lender as set forth above, to establish the portion of any such sums paid or payable with respect to which such Foreign Lender acts for its own account that is not subject to United States withholding tax, and (B) two duly signed, properly completed copies of IRS Form W-8IMY (or any successor thereto), together with any information such Foreign Lender chooses to transmit with such form, and any other certificate or statement of exemption required under the Code, to establish that such Foreign Lender is not acting for its own account with respect to a portion of any such sums payable to such Foreign Lender. (iii) The Borrower shall not be required to pay any additional amount or any indemnity payment under Section 3.01 to (A) any Foreign Lender with respect to any Taxes required to be deducted or withheld on the basis of the information, certificates or statements of exemption such Lender transmits pursuant to this Section 11.16(a), (B) any Foreign Lender if such Foreign Lender shall have failed to satisfy the foregoing provisions of this Section 11.16(a), or (C) any U.S. Lender if such U.S. Lender shall have failed to satisfy the provisions of Section 11.16(b); provided that if such Lender shall have satisfied the requirement of this Section 11.16(a) or Section 11.16(b), as applicable, on the date such Lender became a Lender or ceased to act for its own account with respect to any payment under any of the Loan Documents, nothing in this Section 11.16(a) or Section 11.16(b) shall relieve the Borrower of its obligation to pay any amounts pursuant to Section 3.01 in the event that, as a result of any change in any applicable Law, treaty or governmental rule, regulation or order, or any change in the interpretation, administration or application thereof, such Lender is no longer properly entitled to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender or other Person for the account of which such Lender receives any sums payable under any of the Loan Documents is not subject to withholding or is subject to withholding at a reduced rate. (iv) The Administrative Agent may deduct and withhold any taxes required by any Laws to be deducted and withheld from any payment under any of the Loan Documents. (b) Each Lender and Agent that is a "United States person" within the meaning of Section 7701(a)(30) of the Code (each, a "U.S. LENDER") shall deliver to the Administrative Agent and the Borrower two duly signed, properly completed copies of IRS Form W-9 on or prior to the Closing Date (or on or prior to the date it becomes a party to this Agreement), certifying that such U.S. Lender is entitled to an exemption from United States backup withholding tax, or any successor form. If such U.S. Lender fails to deliver such forms, then the Administrative Agent may withhold from any payment to such U.S. Lender an amount equivalent to the applicable backup withholding tax imposed by the Code and the Borrower shall not be liable for any additional amounts with respect to such withholding. (c) If any Governmental Authority asserts that the Borrower or the Administrative Agent did not properly withhold or backup withhold, as the case may be, any tax or other amount from payments made to or for the account of any Foreign Lender or U.S. Lender, such Foreign Lender or U.S. Lender shall indemnify the Borrower and the Administrative Agent therefor, including all penalties and interest, any taxes imposed by any jurisdiction on the amounts 140 payable to the Borrower and the Administrative Agent under this Section 11.16, and costs and expenses (including Attorney Costs) of the Borrower and the Administrative Agent. The obligation of the Foreign Lenders or U.S. Lenders, severally, under this Section 11.16 shall survive the termination of the Aggregate Commitments, repayment of all other Obligations hereunder and the resignation of the Administrative Agent. Section 11.17. Governing Law. (a) THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, HOLDINGS, EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, HOLDINGS, EACH AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. Section 11.18. Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 11.18 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. Section 11.19. Binding Effect. This Agreement shall become effective when it shall have been executed by the Borrower and Holdings and the Administrative Agent shall have been notified by each Lender, Swing Line Lender and the L/C Issuer that each such Lender, Swing Line Lender and the L/C Issuer has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, each Agent and each Lender and their respective successors and assigns, except that no Borrower shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders except as permitted by Section 7.04 141 Section 11.20. USA Patriot Act Notice. Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "ACT"), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the Act. Section 11.21. Waiver Of Notice Period Under Wachovia Credit Agreement. Each Lender that is also a lender party to the Wachovia Credit Agreement (a "WACHOVIA AGREEMENT LENDER") hereby waives (i) any requirement pursuant to Section 2.05 of the Wachovia Credit Agreement that five Business Days notice be given of a voluntary prepayment and termination of the Aggregate Commitments (as defined therein) pursuant to such Section; provided that such prepayment is made on the Closing Date and (ii) any "Default" or "Event of Default" (as defined therein ) that would otherwise occur as a result of the issuance of the FNF Note and the incurrence and maintenance of Indebtedness (as defined therein) under the FNF Note; provided that such FNF Note is repaid in full by not later than the time required by Section 7.03(z). The waiver granted pursuant to clause (ii) above shall be effective for any Wachovia Agreement Lender from and after the date of receipt by the Administrative Agent of a counterpart of this Agreement executed by such Wachovia Agreement Lender whether or not this Agreement has otherwise become effective in accordance with its terms. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.] 142 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. FIDELITY NATIONAL INFORMATION SOLUTIONS, INC. By: ------------------------------------ Name: Title: FIDELITY NATIONAL TAX SERVICE, INC. By: ------------------------------------ Name: Title: FIDELITY NATIONAL INFORMATION SERVICES, INC. By: ------------------------------------ Name: Title: BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT, COLLATERAL AGENT, SWING LINE LENDER AND L/C ISSUER AND AS A LENDER By: ------------------------------------ Name: Title: [OTHER LENDERS] By: ------------------------------------ Name: Title: EX-10.2 3 a06825aexv10w2.txt EXHIBIT 10.2 EXHIBIT 10.2 THIRD AMENDMENT TO CREDIT AGREEMENT THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Third Amendment"), dated as of February 15, 2005 (but effective as provided in Section 4 of this Third 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, and that certain Second Amendment to Credit Agreement, dated as of October 29, 2004 (the "Second Amendment") (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. As a result of the FIS Recapitalization Transaction (as defined herein), certain amendments to the Credit Agreement provided for in the Second Amendment which were to become effective upon the Second Amendment Secondary Effective Date and the Second Amendment Final Effective Date (as each such term is defined in the Second Amendment) are no longer necessary or appropriate. C. The Lenders and the Administrative Agent hereby agree to amend the Credit Agreement to, among other things, account for the FIS Recapitalization Transaction and to eliminate certain provisions that were to subsequently become effective pursuant to the Second Amendment, 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 "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. (b) The definition of "Subsidiary" set forth in Section 1.01 of the Credit Agreement is hereby amended to read as follows: "Subsidiary" of a Person means any Person of which more than 50% of the Voting Stock or other Equity Interests (in case of Persons other than corporations), is owned or controlled directly or indirectly by the Person, or one or more of the 1 Subsidiaries of the Person, or a combination thereof; provided, however, for purposes of this Agreement and any other Loan Document, FIS and its Subsidiaries shall not be deemed to be Subsidiaries of the Borrower after the Third Amendment Closing Date. For purposes of clarification, except where otherwise expressly stated, references to Subsidiaries of the Borrower with respect to time periods (a) prior to the Third Amendment Closing Date shall refer to all Subsidiaries of the Borrower, including FIS and its Subsidiaries, and (b) on and after the Third Amendment Closing Date shall exclude FIS and its Subsidiaries; provided, further, however, calculations of the financial covenants set forth in Section 7.09 (and the related financial statements and audit required pursuant to Sections 6.01(a) and (b)) shall exclude FIS and its Subsidiaries, commencing December 31, 2004. Subject to the immediately preceding sentence, unless the context otherwise requires, references herein to a "Subsidiary" shall refer to a Subsidiary of the Borrower. (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), 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 further amended by deleting the following defined terms therefrom: "FIS IPO", "FIS IPO Dividend", "FIS Spin Off Dividend", "FIS Transaction", "Second Amendment Final Effective Date", and "Second Amendment Secondary Effective Date". (e) Section 1.01 of the Credit Agreement is hereby amended by adding the following defined terms thereto in proper alphabetical order: "FIS Affiliate Credit Agreement:" means that certain Credit Agreement among certain wholly-owned subsidiaries of FIS, certain lenders and Bank of America, N.A., as agent, whereby such lenders agree to extend to such subsidiaries a term loan facility and a revolving credit facility. "FIS Recapitalization" means the FIS Stock Issuance and the FIS Recapitalization Dividend. "FIS Recapitalization Distribution" means the payment of a special dividend by the Borrower to holders of the common Equity Interests of the Borrower not to exceed $10 per share from amounts received by the Borrower pursuant to the FIS Recapitalization Dividend. "FIS Recapitalization Dividend" means the payment of a dividend by FIS to the Borrower in an amount equal to at least $2,000,000,000. 2 "FIS Recapitalization Proceeds" means proceeds retained by the Borrower in respect of the FIS Recapitalization Transaction. "FIS Recapitalization Transaction" means the FIS Recapitalization, the FIS Affiliate Credit Agreement and the FIS Recapitalization Distribution. "FIS Stock Issuance" means the issuance of approximately 25% of the common Equity Interests of FIS to Thomas H. Lee Partners, L.P., Texas Pacific Group and certain of its Affiliates and other investors. "Third Amendment" means that certain Third Amendment to Credit Agreement, dated as of February 15, 2005, by and among the Borrower, the Lenders party thereto and the Administrative Agent. "Third Amendment Closing Date" means the date that all of the conditions precedent in Section 4(a) of the Third 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; 3 (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 5% 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 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 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, 4 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: (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, (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries (excluding the FIS Recapitalization Transaction and any additional disposition of common Equity Interests of FIS) 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, and (D) such disposition, if to FIS or any of its subsidiaries, would be an investment or acquisition otherwise permitted to be made by FIS or any of its subsidiaries under the FIS Credit Agreement. (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 5 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); (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 (for clarification purposes, FIS and its Subsidiaries shall not be deemed to be Subsidiaries of the Borrower in existence on the Closing Date); (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); (h) so long as no Default or Event of Default has occurred and is continuing, Investments of FIS Recapitalization Proceeds in FIS and its Subsidiaries after the Third Amendment Closing Date, together with Restricted Payments made with FIS Recapitalization Proceeds permitted pursuant to Section 7.06(b)(i), not to exceed $900,000,000 in aggregate amount; and (i) so long as no Default or Event of Default has occurred and is continuing, other Investments (excluding Investments in FIS and its Subsidiaries) in an aggregate amount not to exceed at any one time outstanding 3% of Net Worth. Notwithstanding anything in this Section 7.03 or elsewhere in this Agreement to the contrary, no Investment may be made in FIS or any of its subsidiaries unless such Investment would otherwise be permitted to be made under the FIS Affiliate Credit Agreement by FIS or its subsidiaries. (i) Section 7.04 of the Credit Agreement is hereby amended to read as follows: 6 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 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 (ii) other Capital Leases in an aggregate amount not to exceed at any one time outstanding 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 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 7 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 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 3% of Net Worth; (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 5% of Net Worth; and (o) 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 7.06 of the Credit Agreement is hereby amended to read as follows: 7.06 RESTRICTED PAYMENTS. The Borrower shall not, and shall not allow any of its Subsidiaries to, declare or make any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any shares of any class of its Equity Interests, or purchase, redeem or otherwise acquire for value any shares of any class of its Equity Interests or any warrants, rights or options to acquire such shares, now or hereafter outstanding, or directly or indirectly voluntarily prepay, defease or in substance defease, purchase, redeem, retire or otherwise acquire, any Indebtedness described in Section 7.04(i), or Section 7.04(j) (collectively, "Restricted Payments"), except that (a) any Subsidiary may pay dividends and tax sharing payments to the corporations which own its Equity Interest, (b) the Borrower may, so long as before and after giving effect to any such payment no Event of Default or Default shall have occurred, make (i) Restricted Payments with FIS Recapitalization Proceeds (excluding the FIS Recapitalization Distribution) after the Third Amendment Closing Date, together with Investments made with Recapitalization Proceeds permitted pursuant to Section 7.03(h), not to exceed $900,000,000 in aggregate amount and (ii) the FIS Recapitalization Distribution, and (c) the Borrower may, so long as before and after 8 giving effect to any such payment no Event of Default or Default shall have occurred, at any time that the Borrower's Debt Rating is Investment Grade by either S&P or Moody's, make Restricted Payments in addition to those permitted pursuant to clause (a) and (b) above; provided, however, if at any time during any Fiscal Year the Borrower's Debt Rating is not Investment Grade Rating by both S&P and Moody's, the Borrower may not make any such additional Restricted Payments during such time that would cause the aggregate amount of Restricted Payments during such Fiscal Year to exceed 10% of Net Worth as of the last day of the immediately preceding Fiscal Year; provided, further, however, that if no Default exists or would result therefrom, the Borrower shall be entitled to make additional Restricted Payments in the immediately following Fiscal Year only and not on a cumulative basis, in an amount of the Restricted Payments permitted to be made for the preceding Fiscal Year which were not made during such Fiscal Year. (k) 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 December 31, 2004 or as at the end of any Fiscal Quarter thereafter to be less than (A) an amount equal to 75% of Net Worth as of December 31, 2004, plus (B) 50% of Net Income (in excess of zero) for the period from the beginning of the first Fiscal Quarter following December 31, 2004 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 December 31, 2004 through the issuance of Equity Interests (excluding the FIS Recapitalization Dividend and any other proceeds received by the Borrower or any Subsidiary in respect of the FIS Stock Issuance). (l) Section 7.13 of the Credit Agreement is hereby deleted. (m) 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 9 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 (n) Schedule 5.14(a) of the Credit Agreement is hereby amended to be in the form of Schedule 5.14(a) to this Third Amendment. (o) Exhibit E, Compliance Certificate, is hereby amended to be in the form of Exhibit E to this Third 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: (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 Third Amendment, (ii) this Third Amendment has been duly executed and delivered by the Borrower, and (iii) this Third 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 Third 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 10 required for the execution, delivery or performance by the Borrower of this Third Amendment or acknowledged by any Subsidiary Guarantor of this Third Amendment. 4. CONDITIONS TO EFFECTIVENESS. This Third Amendment, including the release set forth in Section 2 of this Third Amendment, shall be effective upon satisfaction or completion of the following: (a) the Administrative Agent shall have received counterparts of this Third Amendment executed by the Required Lenders; (b) the Administrative Agent shall have received counterparts of this Third Amendment executed by the Borrower and acknowledged by the Subsidiary Guarantors; (c) the representations and warranties contained in Section 3 of this Third Amendment shall be true and correct in all material respects; (d) the Borrower shall have received the FIS Recapitalization Dividend, which may initially be paid in the form of a note; provided that if the note is not paid in full by FIS within 15 Business Days after the issuance thereof, then notwithstanding anything in this Third Amendment to the contrary, this Third Amendment shall automatically terminate and be of no further force or effect; (e) the FIS Credit Agreement shall have been refinanced, and the Borrower and all Subsidiaries that guaranty any obligations in respect of the FIS Credit Agreement shall be released from all obligations with respect thereto; (f) the Administrative Agent shall have received, for the account of each Lender signing this Third Amendment, an amendment fee in immediately available funds in an amount equal to the product of (i) 0.05% and (ii) each such Lender's Commitment; (g) the Administrative Agent shall have received, for its own account, the fee agreed to be paid by the Borrower to the Administrative Agent with respect to this Third Amendment; and (h) 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 Third 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. 11 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 Third 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). 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 Third 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 Third 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 Third 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 Third 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 Third 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 Third Amendment are included herein for convenience of reference only and shall not constitute a part of this Third Amendment for any other purpose. 11. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS THIRD 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 12 IN WITNESS WHEREOF, this Third Amendment is executed as of the date first set forth above. FIDELITY NATIONAL FINANCIAL, INC. By: ------------------------------------ Name: Patrick G. Farenga Title: Vice President - Treasurer Signature Page to Third Amendment BANK OF AMERICA, N.A., as Administrative Agent By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment BANK OF AMERICA, N.A., as a Lender and Swing Line Lender By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment JPMORGAN CHASE BANK, N.A., as a Lender and Co-Syndication Agent By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment U. S. BANK NATIONAL ASSOCIATION, as a Lender and Co-Syndication Agent By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment SUNTRUST BANK, as a Lender and Co-Syndication Agent By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender and Co-Syndication Agent By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender and Co-Managing Agent By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment UNION BANK OF CALIFORNIA, N.A., as a Lender and Co-Managing Agent By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment BANK OF THE WEST, as a Lender and Co- Managing Agent By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment COMERICA BANK, as a Lender and Co- Managing Agent By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment HARRIS NESBITT FINANCING, INC., (formerly known as BMO Nesbitt Burns Financing, Inc.) By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment SUMITOMO MITSUI BANKING CORP., NEW YORK, as a Lender and Co-Managing Agent By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment MIZUHO CORPORATE BANK, LTD., as a Lender By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment KEYBANK NATIONAL ASSOCIATION, as a Lender By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment FIFTH THIRD BANK, as a Lender By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment COMPASS BANK, as a Lender By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment CITIBANK (WEST), FSB, as a Lender By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment NATIONAL CITY BANK, as a Lender By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment CHANG HWA COMMERCIAL BANK, LTD., NEW YORK BRANCH, as a Lender By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment HUA NAN COMMERCIAL BANK, LTD. NEW YORK AGENCY, as a Lender By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment BANK OF HAWAII, as a Lender By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment WASHINGTON MUTUAL BANK, as a Lender By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment LA SALLE BANK NATIONAL ASSOCIATION, as a Lender and Co-Managing Agent By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment PNC BANK, NATIONAL ASSOCIATION, as a Lender By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment THE INTERNATIONAL COMMERCIAL BANK OF CHINA, LOS ANGELES BRANCH, as a Lender By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Signature Page to Third Amendment ACKNOWLEDGED AND AGREED TO: FIDELITY NATIONAL MANAGEMENT SERVICES, LLC ALAMO TITLE COMPANY ALAMO TITLE COMPANY OF HARRIS COUNTY, INC. ALAMO TITLE COMPANY OF TARRANT COUNTY, INC. ALAMO TITLE OF TRAVIS COUNTY, INC. FIDELITY NATIONAL TITLE AGENCY, INC. FIDELITY NATIONAL TITLE AGENCY OF NEVADA, INC. FIDELITY NATIONAL TITLE COMPANY FIDELITY NATIONAL TITLE COMPANY OF CALIFORNIA FIDELITY NATIONAL TITLE COMPANY OF OREGON FIDELITY NATIONAL TITLE COMPANY OF WASHINGTON, INC. FIRST TITLE CORPORATION TICOR TITLE COMPANY OF CALIFORNIA By: --------------------------------- Patrick G. Farenga Vice President and Treasurer Signature Page to Third Amendment Schedule 5.14(a) Subsidiaries * Denotes a Material Subsidiary ** Denotes an Insurance Subsidiary */** Denotes a Subsidiary that is both a Material Subsidiary and an Insurance Subsidiary 1 Stop Cyber Mall Inc. 2027267 Ontario Inc. Adnoram Settlement Agency of Ohio, LLC (50.1%) AIS Alamo Insurance Services, Inc. *Alamo Title Company Alamo Title Company of Brazoria County, Inc. *Alamo Title Company of Harris County, Inc. *Alamo Title Company of Tarrant County, Inc. Alamo Title Holding Company **Alamo Title Insurance Alamo Title of Guadalupe County, Inc. *Alamo Title of Travis County, Inc. Alexander Title Agency, Incorporated American Investment Properties, LLC American Research Services LLC American Title Agency of Pima County, Inc. American Title Company (inactive) Amtitle Company ANFI, Inc. Baton Rouge Title Company, Inc. BHC&M, Ltd. Castle Escrow Holdings, LLC Chicago Heritage Insurance Services, Inc. Chicago Land Agency Services, Inc. (52%) Chicago Title Agency of Central Ohio, Inc. Schedule 5.14(a) - 1 Chicago Title and Trust Company Chicago Title Company Chicago Title Company of Washington */**Chicago Title Insurance Company **Chicago Title Insurance Company of Oregon **Chicago Title Insurance Company of Puerto Rico (99.2%) Chicago Title Land Trust Company Chicago Title of Colorado, Inc. Chicago Title of Michigan, Inc. Chicago Title of the Florida Keys, Inc. (85%) Commonwealth Title Company Community Title Company (51%) Construction Disbursements LLC CT/Nevada Holding Co. Dallas-Fidelity National Title Agency, Inc. Decatur Title Company L.L.C. Duxford Escrow, Inc. (51%) EC Purchasing.com, Inc. Emerald Mortgagee Assistance Company, LLC Executive Direct, Inc. Executive Title Agency Corp. EZ Legal, L.L.C. Fidelity Affiliates, LLC Fidelity Asset Management, Inc. (Arizona) Fidelity Asset Management, Inc. (California) Fidelity Express Network, Inc. Fidelity Fulfillment Center, LLC (51%) Fidelity Fulfillment Services, Inc. Fidelity Global Solutions Costa Rica, S.A. Fidelity National Agency of Arizona, Inc. (51%) Fidelity National Builder Services, LLC Schedule 5.14(a) - 2 Fidelity National Claims Services, Inc. Fidelity National Company of Northern California Fidelity National Financial, Inc. **Fidelity National Home Warranty Company **Fidelity National Insurance Company Fidelity National Insurance Services, Inc. (an Arizona corporation) Fidelity National Insurance Services, Inc. (a California corporation) **Fidelity National Lloyds (an association of individuals) *Fidelity National Management Services, LLC *Fidelity National Title Agency, Inc. *Fidelity National Title Agency of Nevada, Inc. Fidelity National Title Agency of Pinal County, Inc. Fidelity National Title and Abstract, Inc. Fidelity National Title & Escrow of Hawaii, Inc. *Fidelity National Title Company *Fidelity National Title Company of California *Fidelity National Title Company of Oregon *Fidelity National Title Company of Washington, Inc. Fidelity National Title Insurance Agency of Coconino, Inc. */**Fidelity National Title Insurance Company */**Fidelity National Title Insurance Company of New York **First Community Insurance Company First National Financial Title Services of Alabama, Inc. First Partners Title Agency, LLC (50.01%) *First Title Corporation First Title Corporation of Alabama, Inc. FNF Canada Company FNF Capital, Inc. FNF Escrow Holdings, LLC FNF Escrow Holdings II, LLC FNF Escrow Holdings, III, LLC FNF Funding X, LLC Schedule 5.14(a) - 3 FNF National Record Centers, Inc. FNF Title Reinsurance Company FNL Management Corporation FNTIC Properties Fortuna Service Company, LLC Fuentes and Kreischer Title Company Gemini Escrow Services, Inc. GF Funding Corp. VIII GIT Holding Company, Inc. (60%) Great Northern Title Agency, LLC (52.38%) Greater Illinois Title Company, Inc. (60%) Heritage American Insurance Services, Inc. Heritage Title Company Interfirst Escrow, Inc. (51%) Iowa Land Services Company Island Title Company Johnson County Title Company, Inc. Kensington Development Corporation Lake County Trust Company Lake First Title Agency, LLC (50.1%) Land Title & Survey, Inc. Landmark REO Management Services, Inc. LaSalle County Title Company, L.L.C. (80%) LC Investment Corporation Legacy Title Company Lexington Capital Corporation Manchester Development Corporation McHenry County Title Company McLean County Title Company McNamara, Inc. National Alliance Marketing Group, Inc. National Title Company of Fresno County (51%) Schedule 5.14(a) - 4 National Title Company of San Francisco (51%) National Title Company of Southern California (51%) National Title Company of Ventura County (51%) National Title Insurance Services, Inc. **Nations Title Insurance of New York Inc. Northwest Equities, Inc. Northwest Title Agency of Ohio and Michigan, Inc. NRT Title Agency, LLC Palm Beach Joint Title Plant, Inc. (12.5%) Pioneer Land Services, LLC (51%) Pioneer National Title Company 95-3488610 (Arizona) Premier Escrow Services, LLC Premier Services of Nevada, LLC (51%) Professional Escrow, Inc. Prospect Office Partners, LP Real Estate Index, Inc. Real Estate Index Agency of Ohio, Ltd. RealtyCheck.com, LLC Referral Connection, LLC Rocky Mountain Aviation, Inc. Rocky Mountain Printing Services, Inc. Rocky Mountain Support Services, Inc. Saddleback Title Company (51%) San Joaquin Title Company S.D.C. Title Agency, LLC Security Title Agency, Inc. Security Title Company, LLC Security Union Insurance Services, Inc. **Security Union Title Insurance Company Sentry Service Systems, Inc. Southern Arizona Title & Trust Company Spring Service Corporation Schedule 5.14(a) - 5 Spring Service Texas, Inc. Superior Data Services, Inc. SWT Holdings, Inc. Ten Thirty-One, L.L.C. The Maryland Title Guarantee Company The Title Company of Canada, Ltd. The Title Guarantee Company Third Millenium Title Agency, LLC (50.1%) Ticor Financial Company Ticor Insurance Services, Inc. Ticor Title Abstract of New York, Inc. Ticor Title Agency of Arizona, Inc. Ticor Title Company *Ticor Title Company of California Ticor Title Company of Oregon Ticor Title Consultants Ltd. */**Ticor Title Insurance Company Ticor Title Insurance Company Limited Ticor Title of Nevada, Inc. Ticor Title of Washington, Inc. Title Accounting Services Corporation Title America, LLC (50.1%) Title and Trust Company Title Insurance and Escrow Services, Inc. Title Services, Inc. TPO, Inc. TSNY Agency of New York City, Inc. TT Acquisition Corp. Tucson Title Insurance Company United Financial Management Company United Land Title Agency, LLC (50.1%) United Title of Nevada, Inc. Schedule 5.14(a) - 6 UTC Capital Group, Inc. Washington Title Company Washington Title Insurance Company West Point Properties, Inc. West Point Support Services, Inc. Western Financial Trust Company Yuma Title Agency, Inc. Yuma Title and Trust Company Schedule 5.14(a) - 7 EXHIBIT E FORM OF COMPLIANCE CERTIFICATE Financial Statement Date: _____________, To: Bank of America, N.A., as Administrative Agent Ladies and Gentlemen: Reference is made to that certain Credit Agreement, dated as of November 4, 2003 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the "Agreement;" the terms defined therein being used herein as therein defined), among Fidelity National Financial, Inc., a Delaware corporation (the "Borrower"), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and Swing Line Lender. The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the ________________________ of the Borrower, and that, as such, he/she is authorized to execute and deliver this Certificate to the Administrative Agent on the behalf of the Borrower, and that: [Use following paragraph 1 for fiscal YEAR-END financial statements] 1. Attached hereto as Schedule 1 are the year-end audited financial statements required by Section 6.01(a) of the Agreement for the fiscal year of the Borrower ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section. [Use following paragraph 1 for fiscal QUARTER-END financial statements] 1. Attached hereto as Schedule 1 are the unaudited financial statements required by Section 6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the above date. Such financial statements fairly present the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes. 2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Borrower during the accounting period covered by the attached financial statements. 3. A review of the activities of the Borrower during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Borrower performed and observed all its Obligations under the Loan Documents, and [select one:] Exhibit E - 1 [TO THE BEST KNOWLEDGE OF THE UNDERSIGNED DURING SUCH FISCAL PERIOD, THE BORROWER PERFORMED AND OBSERVED EACH COVENANT AND CONDITION OF THE LOAN DOCUMENTS APPLICABLE TO IT.] --or-- [THE FOLLOWING COVENANTS OR CONDITIONS HAVE NOT BEEN PERFORMED OR OBSERVED AND THE FOLLOWING IS A LIST OF EACH SUCH DEFAULT AND ITS NATURE AND STATUS:] 4. The representations and warranties of the Borrower contained in Article V of the Agreement, or which are contained in any document furnished at any time under or in connection with the Loan Documents, are true and correct on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Compliance Certificate, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Agreement, including the statements in connection with which this Compliance Certificate is delivered. 5. As of ___________________ (the "Computation Date")(1): (a) The Net Worth as of the Computation Date was $_______________________, as computed on Attachment 1 hereto. The minimum Net Worth permitted pursuant to Section 7.09(a) on the Computation Date is $____________________, as computed on Attachment 1 hereto. (b) The Interest Coverage Ratio was _______________ to 1.00, as computed on Attachment 2 hereto. The minimum Interest Coverage Ratio permitted pursuant to Section 7.09(b) on the Computation Date is 2.50 to 1:00. (c) The Total Debt to Total Capitalization Ratio was _______ to 1.00, as computed on Attachment 3 hereto. The maximum Total Debt to Total Capitalization Ratio permitted pursuant to Section 7.09(c) on the Computation Date is 0.35 to 1.00. (d) The aggregate fair market value of Dispositions of the type referred to in Section 7.02(c)(ii) was $_____________ in the current Fiscal Year. The maximum aggregate fair market value of such Dispositions permitted pursuant to Section 7.02(c)(ii) (excluding FIS Recapitalization Transaction and - ---------- (1) The last day of the most recently completed Fiscal Quarter of the Borrower. Exhibit E - 2 additional dispositions of common Equity Interests of FIS) is [25% OF NET WORTH AS OF LAST DAY OF IMMEDIATELY PRECEDING FISCAL YEAR IN ANY FISCAL YEAR OTHER THAN 2005; 15% OF NET WORTH AS OF DECEMBER 31, 2004 IN FISCAL YEAR 2005]. (e) The aggregate amount of Secondary Investments referred to in Section 7.03(a) equaled _____% of the aggregate amount of the Borrower's total investment portfolio and the aggregate amount of Investments in such Secondary Investments that are issued by a single issuer equaled ______% of the aggregate amount of the Borrower's total investment portfolio. The maximum aggregate amount of such Secondary Investments permitted pursuant to in Section 7.03(a) is 15% of the aggregate amount of the Borrower's total investment portfolio and the maximum aggregate amount of Investments in such Secondary Investments that are issued by a single issuer is 5% of the aggregate amount of the Borrower's total investment portfolio. (f) The total consideration payable in cash in respect of all Permitted Acquisitions during the current Fiscal Year up to the Computation Date was $____________. The maximum total consideration payable in cash in respect of all Acquisitions constituting Permitted Acquisitions in any Fiscal Year permitted pursuant to Section 7.03(f) is $500,000,000. (g) [TO BE COMPLETED AT ANY TIME A GUARANTY TRIGGER EVENT HAS OCCURRED AND IS CONTINUING] The aggregate principal amount of the Indebtedness of the type referred to in Section 7.04(i) with respect to the Borrower was $___________. The maximum aggregate principal amount of such Indebtedness of the Borrower permitted pursuant to Section 7.04(i) is $700,000,000. (h) The aggregate principal amount of Indebtedness of the type referred to in Section 7.04(j) with respect to the Borrower and its Subsidiaries was $______________. The maximum aggregate principal amount of such Indebtedness of the Borrower and its Subsidiaries permitted pursuant to Section 7.04(j) is [4% OF NET WORTH]. (i) The aggregate amount of Attributable Indebtedness of the type referred to in Section 7.04(n) with respect to the Borrower was $_____________. The maximum aggregate amount of such Attributable Indebtedness of the Borrower permitted pursuant to Section 7.04(n) is [5% OF NET WORTH]. (j) The aggregate amount of Capital Expenditures made or committed to be made by the Borrower and its Subsidiaries during the current Fiscal Year up to the Computation Date was $_______________. Exhibit E - 3 The maximum aggregate amount of such Capital Expenditures permitted pursuant to Section 7.12 for any Fiscal Year is as follows plus 25% of the amount of any permitted Capital Expenditures (on a cumulative basis) not made or committed to be made in the immediately preceding Fiscal Year.
Fiscal Year - ----------- ~~2003 $275,000,000 2004 $300,000,000 2005 $330,000,000 2006 $365,000,000 2007 $400,000,000 2008 $440,000,000~~
Exhibit E - 4 ATTACHMENT 1 (TO __/__/__ COMPLIANCE CERTIFICATE) NET WORTH on (the "Computation Date") A. Net Worth: the sum of all amounts (without duplication) which, in accordance with GAAP, would be included in the Borrower's stockholders' equity (excluding unrealized gains or losses recorded pursuant to FAS 115) as required to be reported in the Borrower's then most recent consolidated balance sheet required to be delivered pursuant to the Credit Agreement $___________ B. Net Worth Covenant: (1) 75% of Net Worth at December 31, 2004 $___________ (2) 50% of Net Income (in excess of zero) for the period from the beginning of the first full Fiscal Quarter following December 31, 2004 to the Computation Date $___________ (3) 50% of the cumulative cash equity contributions received by the Borrower after December 31, 2004 through the issuance of Equity Interests $___________ (excluding the FIS Recapitalization Dividend and any other proceeds received in respect of the FIS Stock Issuance) (4) The sum of Items B(l) through B(3) $___________ Exhibit E - 5 ATTACHMENT 2 (TO ___/ ___/ ___,COMPLIANCE CERTIFICATE) INTEREST COVERAGE RATIO on _________________ (the "Computation Date") A. Cash Flow:(2) (1) Available Dividends from the Insurance Subsidiaries $___________ (2) EBITDA of Subsidiaries which are non-Insurance Subsidiaries available to be paid as dividends under applicable law for such Test Period: (a) Net Income $___________ (b) The amount of interest charges deducted in determining such Net Income $___________ (c) The amount of taxes, based on or measured by income, used or included in the determination of such Net Income $___________ (d) The amount of depreciation and amortization expense deducted in determining such Net Income $___________ (e) The sum of Items A(2)(a) through A(2)(d) $___________ (3) The total interest expense for such Test Period multiplied by the actual marginal combined federal and state income tax rate then applicable to the Borrower $___________ (4) Acquired Cash Flow: (a) Available Dividends of any person or assets acquired by a Subsidiary which is an Insurance Subsidiary in a Permitted Acquisition during such Test Period, determined on a pro forma basis for such Test Period as if consummation of such Permitted Acquisition occurred on the first day of such Test Period $___________ - ---------- (2) Determined on a trailing Four Fiscal Quarter basis as of the Computation Date. Exhibit E - 6 (b) EBITDA of any Person or assets acquired by a Subsidiary which is a non-Insurance Subsidiary in a Permitted Acquisition during such Test Period and available to be paid as dividends to the Borrower under applicable law, determined on a pro forma basis for such Test Period as if consummation of such Permitted Acquisition occurred on the first day of such Test Period $___________ (c) The sum of Items A(4)(a) and A(4)(b) $___________ (5) The sum of Items A(l), A(2)(e), A(3) and A(4)(c) $___________ (B) Interest Expense: the aggregate amount of interest expense for the Borrower and its Subsidiaries during such Test Period $___________ (C) Interest Coverage Ratio: the ratio of Item A(5) to Item B _______:1.00 Exhibit E - 7 ATTACHMENT 3 (TO __/__/__ COMPLIANCE CERTIFICATE) TOTAL DEBT TO TOTAL CAPITALIZATION RATIO on (the "Computation Date") A. Total Debt (1) Applicable Debt of the Borrower and its Subsidiaries $___________ (2) Non-contingent reimbursement or payment obligations in respect of the face amount of all letters of credit or surety bonds issued for the account of the Borrower and its Subsidiaries and, without duplication, all drafts drawn thereunder $___________ (3) Contingent Obligations of the Borrower and its Subsidiaries in respect of Applicable Debt of another Person $___________ (4) The sum of Items A(1) through A(3) $___________ (5) Non-Recourse Debt of the Designated Subsidiaries $___________ (6) The remainder of Item (A)(4) minus Item (A)(5) $___________ (B) Total Capitalization: (1) Net Worth (see Attachment I) $___________ (2) Total Debt (see Item A(6) above) $___________ (3) The sum of Items B(1) and B(2) $___________ (C) Total Debt to Total Capitalization Ratio: the ratio of Item A(6) to Item B(3) $___________ Exhibit E - 8 IN WITNESS WHEREOF, the undersigned has executed this Certificate as of _____________, _________________. FIDELITY NATIONAL FINANCIAL, INC. By: ------------------------------------ Name: ------------------------------ Title: ----------------------------- Exhibit E - 9 EX-99.1 4 a06825aexv99w1.txt EXHIBIT 99.1 EXHIBIT 99.1 FIDELITY NATIONAL INFORMATION SERVICES, INC. STOCK INCENTIVE PLAN STOCK OPTION AGREEMENT REFERENCE NUMBER: 2005-A SECTION 1. GRANT OF OPTION. (a) OPTION. On the terms and conditions set forth in this Agreement and each Notice of Stock Option Grant referencing this Agreement (the "Notice"), the Company grants to the Optionee on the Date of Grant an option to purchase at the Exercise Price a number of Shares, all as set forth in the Notice. Each such Notice, together with this referenced Agreement, shall be a separate option governed by the terms of this Agreement. This option is intended to be an ISO or a Nonstatutory Option, as provided in the Notice. If this option is designated as an ISO in the Notice, but fails to so qualify, it shall be treated as a Nonstatutory Option. (b) DEFINED TERMS. This option is granted under and subject to the terms of the Plan, which is incorporated herein by this reference. Capitalized terms are defined in Section 13 of this Agreement. (c) DURATION OF THIS AGREEMENT. This Agreement shall apply both to this option and to the Shares acquired upon the exercise of this option until this option has been exercised with respect to all Shares subject to this option. SECTION 2. RIGHT TO EXERCISE. Subject to the conditions set forth in this Agreement, all or part of this option may be exercised prior to its expiration at the time or times set forth in the Notice. SECTION 3. NO TRANSFER OR ASSIGNMENT OF OPTION. This option and the rights and privileges conferred hereby shall not be transferred assigned, pledged or hypothecated (whether by operation of law or otherwise) and shall not be subject to execution, attachment or other similar process, except by beneficiary designation, will or the laws of descent and distribution. SECTION 4. EXERCISE PROCEDURES. (a) NOTICE OF EXERCISE. The Optionee or the Optionee's representative may exercise this option by giving written notice to the Company specifying the election to exercise this option, the number of Shares for which it is being exercised and the form of payment. Exhibit A is an example of a "Notice of Exercise". The Notice of Exercise shall be signed by the person exercising this option. In the event that this option is being exercised by the Optionee's representative, the notice shall be accompanied by proof (satisfactory to the Company) of the representative's right to exercise this option. The Optionee or the Optionee's representative shall deliver to the Company, at the time of giving the notice, payment in a form permissible under Section 5 for the full amount of the Purchase Price. (b) WITHHOLDING REQUIREMENTS. The Company may withhold any tax (or other governmental obligation) as a result of the exercise of this option, as a condition to the exercise of this option, and the Optionee shall make arrangements satisfactory to the Company to enable it to satisfy all such withholding requirements. The Optionee shall also make arrangements satisfactory to the Company to enable it to satisfy any withholding requirements that may arise in connection with the disposition of Shares purchased by exercising this option. (c) EMPLOYEE STOCKHOLDERS' AGREEMENT. As a condition to the exercise of this option, each Optionee must become a party to the Employee Stockholders' Agreement. (d) ISSUANCE OF SHARES. After receiving a proper notice of exercise and after satisfaction of the conditions of this Agreement, including, without limitation Sections 4(c) and 7 and 9, the Company shall cause to be issued a certificate or certificates for the Shares as to which this option has been exercised, registered in the name of the person exercising this option. SECTION 5. PAYMENT FOR SHARES. (a) CASH OR CHECK. All or part of the Purchase Price may be paid in cash or by personal check at the time this option is exercised. (b) NET CASHLESS EXERCISE. In lieu of paying the Purchase Price as described in Section 5(a) above, the Optionee may pay all or a portion of the Purchase Price and any applicable withholding requirements by reducing the number of Shares otherwise to be delivered upon exercise of this option by the number of such Shares having a Fair Market Value equal to the amount to be paid upon exercise. (c) ALTERNATIVE METHODS OF PAYMENT FOR SHARES. At the sole discretion of the Committee, all or any part of the Purchase Price and any applicable withholding requirements may be paid by any alternative method selected by the Committee. The Committee's exercise of its discretion to allow the Optionee to pay the exercise price pursuant to an alternative method shall not bind the Committee to permit such alternative method of payment for the remainder of this option or with respect to any other option or optionee under the Plan. SECTION 6. TERM AND EXPIRATION. (a) BASIC TERM. Subject to earlier termination in accordance with subsection (b) below, this option shall expire on the expiration date set forth in the Notice. (b) TERMINATION OF SERVICE. If the Optionee's Service terminates for any reason, then this option shall expire on the earliest of the following occasions: (i) The expiration date determined pursuant to Subsection (a) above; (ii) The date twelve (12) months after the Optionee's Retirement, death, Disability or termination without Cause; or 2 (iii) The date of termination of the Optionee's Service if such termination is for Cause or if Cause exists on such date or if the Optionee terminates his or her Service voluntarily. Unless the Notice shall otherwise provide, the Optionee (or in the case of the Optionee's death or Disability, the Optionee's representative) may exercise all or a part of this option at any time before the expiration date described in the preceding sentence only to the extent that this option has become exercisable for vested Shares on or before the date the Optionee's Service terminates. Unless the Notice shall otherwise provide, the balance of this option (which is not exercisable and vested on the date the Optionee's Service terminates) shall lapse when the Optionee's Service terminates. (c) LEAVES OF ABSENCE. For any purpose under this Agreement, Service shall be deemed to continue while the Optionee is on a bona fide leave of absence, if such leave was approved by the Company or any Subsidiary in writing or if continued crediting of Service for such purpose is expressly required by the terms of such leave or by applicable law (as determined by the Company or Subsidiary). (d) NOTICE CONCERNING ISO TREATMENT. If this option is designated as an ISO in the Notice, it ceases to qualify for favorable tax treatment as an ISO to the extent it is exercised (i) more than three (3) months after the date the Optionee ceases to be an Employee for any reason other than death or permanent and total disability (as defined in Section 22(e)(3) of the Code), (ii) more than twelve (12) months after the date the Optionee ceases to be an Employee by reason of such permanent and total disability or (iii) after the Optionee has been on a leave of absence for more than ninety (90) days, unless the Optionee's reemployment rights are guaranteed by statute or by contract. SECTION 7. LEGALITY OF INITIAL ISSUANCE. No Shares shall be issued upon the exercise of this option unless and until the Company has determined that: (a) The Company and the Optionee have taken all actions required to register the Shares under the Securities Act or to perfect an exemption from the registration requirements thereof; (b) Any applicable listing requirement of any stock exchange or other securities market on which the Shares are is listed has been satisfied; and (c) Any other applicable provision of state or federal law has been satisfied. SECTION 8. REGISTRATION RIGHTS. The Company may, but shall not be obligated to, register or qualify the sale of Shares under the Securities Act or any other applicable law. The Company shall not be obligated to take any affirmative action in order to cause the sale of Shares under this Agreement to comply with any law. 3 SECTION 9. OPTIONEE REPRESENTATIONS AND COVENANTS (a) OPTIONEE UNDERTAKING. The Optionee agrees to take whatever additional action and execute whatever additional documents the Company may deem necessary or advisable to carry out or effect one or more of the obligations or restrictions imposed on either the Optionee or upon the Shares pursuant to the provisions of this Agreement and the Employee Stockholders' Agreement. (b) INVESTMENT INTENT. The Optionee represents and agrees that as of the Date of Grant, the Shares to be acquired upon exercising this option will be acquired for investment, and not with a view to the sale or distribution thereof. If the sale of Shares under the Plan is not registered under the Securities Act but an exemption is available which requires an investment representation or other representation, the Optionee shall represent and agree at the time of exercise that the Shares being acquired upon exercising this option are being acquired for investment, and not with a view to the sale or distribution thereof, and shall make such other representations as are deemed necessary or appropriate by the Company and its counsel. SECTION 10. ADDITIONAL CONDITIONS. (a) SECURITIES LAW RESTRICTIONS. Regardless of whether the offering and sale of Shares under the Plan have been registered under the Securities Act or have been registered or qualified under the securities laws of any state, the Company at its discretion may impose restrictions upon the sale, pledge or other transfer of such Shares (including the placement of appropriate legends on stock certificates or the imposition of stop-transfer instructions) if, in the judgment of the Company, such restrictions are necessary or desirable in order to achieve compliance with the Securities Act or the securities laws of any state or any other law. Such restrictions may be in addition to the restrictions set forth in the Employee Stockholders' Agreement. (b) LEGENDS. In addition to any legends required by the Employee Stockholders' Agreement, all certificates evidencing Shares purchased under this Agreement shall bear the following legends: "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY FOREGOING OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE EMPLOYEE STOCKHOLDERS' AGREEMENT DATED AS OF [________, 200__], COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM FIDELITY NATIONAL INFORMATION SERVICES, INC. OR ANY SUCCESSOR THERETO." (c) REMOVAL OF LEGENDS. If, in the opinion of the Company, any legend placed on a stock certificate representing Shares sold under this Agreement is no longer required, the holder of such certificate shall be entitled to exchange such certificate for a certificate representing the same number of Shares but without such legend. (d) ADMINISTRATION. Any determination by the Company in connection with any of the matters set forth in this Section 10 shall be conclusive and binding on the Optionee and all other persons. 4 SECTION 11. ADJUSTMENT OF SHARES. In the event of a Recapitalization, the terms of this option (including, without limitation, the number and kind of Shares subject to this option and the Exercise Price) shall be adjusted as set forth in Section 10(a) of the Plan. In the event that the Company is a party to a merger or consolidation, this option shall be subject to the agreement of merger or consolidation, as provided in Section 10(b) of the Plan. SECTION 12. MISCELLANEOUS PROVISIONS. (a) RIGHTS AS A STOCKHOLDER. Neither the Optionee nor the Optionee's representative shall have any rights as a stockholder with respect to any Shares subject to this option until the Optionee or the Optionee's representative becomes entitled to receive such Shares by (i) filing a notice of exercise, (ii) paying the Purchase Price as provided in this Agreement, and (iii) satisfying the requirements of this Agreement. (b) NO RETENTION RIGHTS. Nothing in this option or in the Plan shall confer upon the Optionee any right to continue in Service for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Company (or any Parent or Subsidiary employing or retaining the Optionee) or of the Optionee, which rights are hereby expressly reserved by each, to terminate his or her Service at any time and for any reason, with or without cause. (c) NOTIFICATION. Any notification required by the terms of this Agreement shall be given in writing and shall be deemed effective upon personal delivery or upon deposit with the United States Postal Service, by registered or certified mail, with postage and fees prepaid. A notice shall be addressed to the Company at its principal executive office and to the Optionee at the address that he or she most recently provided to the Company. (d) ENTIRE AGREEMENT. The Notice, this Agreement and the Plan (and upon exercise of this option, the Employee Stockholders' Agreement) constitute the entire contract between the parties hereto with regard to the subject matter hereof. They supersede any other agreements, representations or understandings (whether oral or written and whether express or implied) which relate to the subject matter hereof. (e) WAIVER. No waiver of any breach or condition of this Agreement shall be deemed to be a waiver of any other or subsequent breach or condition whether of like or different nature. (f) SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the Company and its successors and assigns and upon the Optionee, the Optionee's assigns and the legal representatives, heirs and legatees of the Optionee's estate, whether or not any such person shall have become a party to this Agreement and have agreed in writing to be join herein and be bound by the terms hereof. (g) CHOICE OF LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, as such laws are applied to contracts entered into and performed in such State. 5 SECTION 13. DEFINITIONS. (a) "AFFILIATE" shall mean any person or entity directly or indirectly controlling, controlled by, or under common control with another person. (b) "AGREEMENT" shall mean this Stock Option Agreement. (c) "BOARD OF DIRECTORS" shall mean the Board of Directors of the Company, as constituted from time to time. (d) "CAUSE" shall mean with respect to an Optionee, "cause" as defined in any employment agreement between the Optionee and the Company (or, if applicable, the Subsidiary employing the Optionee) or if the Optionee is not a party to an employment agreement or "cause" is not defined therein, the following unless another meaning is specifically provided by the Committee or in the participant's option agreement: (i) Any conviction or plea of guilty or nolo contendere to a felony, (ii) Any willful misconduct or gross negligence, or (iii) Any willful breach of any written policy or any confidential or proprietary information, non-compete or non-solicitation covenant for the benefit of the Company or any of its Affiliates. (e) "CODE" shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated thereunder. (f) "COMMITTEE" shall mean a committee of the Board of Directors, as described in Section 2 of the Plan. (g) "COMPANY" shall mean Fidelity National Information Services, Inc., a Delaware corporation and any successor thereto. (h) "CONSULTANT" shall mean a person who performs bona fide services for the Company, a Parent or a Subsidiary as a consultant or advisor, excluding Employees and Directors. (i) "DATE OF GRANT" shall mean the date specified in the Notice, which date shall be the later of (i) the date on which the Committee resolved to grant this option or (ii) the first day of the Optionee's Service. (j) "DIRECTOR" shall mean a member of the Board of Directors who is not an Employee. (k) "DISABILITY", with respect to the Optionee, shall mean (i) "disability" as defined in any employment agreement or engagement agreement between the between the Optionee and the Company (or, if applicable, the Subsidiary employing or retaining the Optionee) or (ii) if the Optionee is not a party to any such agreement or "disability" is not defined therein, the following: (A) the inability of the Optionee to perform the duties of participant's employment or engagement with the Company due to physical or emotional incapacity or illness, where such 6 inability continues for ninety (90) days and is expected to be of long-continued and indefinite duration; or (ii) the Optionee shall be entitled to disability retirement benefits under the federal Social Security Act or to recover benefits under any long-term disability plan or policy maintained by the Company. (l) "EMPLOYEE" shall mean any individual who is a common-law employee of the Company, a Parent or a Subsidiary. (M) "EMPLOYEE STOCKHOLDERS' AGREEMENT" shall mean any stockholders' agreement, right of first refusal agreement, or other agreement regarding restrictions on the Optionee's ability to vote, transfer, sell, assign, pledge or hypothecate the Shares underlying this option, entered into by and among the Company and the other parties named therein. (n) "EXCHANGE ACT" shall mean the Securities and Exchange Act of 1934, as amended. (o) "EXERCISE PRICE" shall mean the amount for which one Share may be purchased upon exercise of this option, as specified in the Notice. (p) "FAIR MARKET VALUE" shall mean the fair market value of a Share, as determined by the Board of Directors in good faith. Such determination shall be conclusive and binding on all persons. (q) "ISO" shall mean an incentive stock option described in Section 422(b) of the Code. (r) "NONSTATUTORY OPTION" shall mean a stock option not described in Sections 422(b). (s) "NOTICE" shall have the meaning described in Section 1(a) of this Agreement. (t) "OPTIONEE" shall mean the person named in the Notice. (u) "PARENT" shall mean any corporation (other than the Company) in an unbroken chain of corporations ending with the Company, if each of the corporations other than the Company owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Parent on a date after the execution of this Agreement shall be considered a Parent commencing as of such date. (V) "PERMITTED TRANSFERS" shall have the meaning described in Section 10(a) of this Agreement. (w) "PLAN" shall mean the Fidelity National Information Services, Inc. 2005 Stock Incentive Plan. (x) "PURCHASE PRICE" shall mean the Exercise Price multiplied by the number of Shares with respect to which this option is being exercised. (y) "RECAPITALIZATION" shall mean an event or series of events affecting the capital structure of the Company such as a stock split, reverse stock split, stock dividend, extraordinary cash 7 dividend, distribution, recapitalization, combination or reclassification of the Company's securities. (z) "RETIREMENT" shall mean [termination of Service by the Optionee with an attained age of 65.] (aa) "SECURITIES ACT" shall mean the Securities Act of 1933, as amended. (bb) "SERVICE" shall mean service as an Employee, Director or Consultant. (cc) "SHARE" shall mean one share of common stock of the Company, with a par value of $.0001 per share. (dd) "SUBSIDIARY" shall mean any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company, if each of the corporations other than the last corporation in the unbroken chain owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Subsidiary on a date after the execution of this Agreement shall be considered a Subsidiary commencing as of such date. 8 EXHIBIT A SAMPLE NOTICE OF EXERCISE Fidelity National Information Services, Inc. 601 Riverside Avenue Jacksonville, FL 32204 Attn: Corporate Secretary To the Corporate Secretary: I hereby exercise my stock option granted under the Fidelity National Information Services, Inc. 2005 Stock Incentive Plan (the "Plan") and notify you of my desire to purchase the shares that have been offered pursuant to the Plan and related Option Agreement as described below. I shall pay for the shares by delivery of a check payable to Fidelity National Information Services, Inc. (the "Company") in the amount described below in full payment for such shares plus all amounts required to be withheld by the Company under state federal or local law as a result of such exercise or shall provide such documentation as is satisfactory to the Company demonstrating that I am exempt from any withholding requirement. This notice of exercise is delivered this ___ day of ___________________ (month) ____(year).
- --------------------------------------------------------------------------------------------------- No. Shares to be Type of Option Exercise Price Total Acquired - --------------------------------------------------------------------------------------------------- Nonstatutory - --------------------------------------------------------------------------------------------------- Incentive - --------------------------------------------------------------------------------------------------- Estimated Withholding Nonstatutory only - --------------------------------------------------------------------------------------------------- AMOUNT PAID - ---------------------------------------------------------------------------------------------------
Very truly yours, ------------------------------- Signature of Optionee Optionee's Name and Mailing Address ------------------------------- ------------------------------- ------------------------------- Optionee's Social Security Number ------------------------------- (5 Year Time Based Vesting) FIDELITY NATIONAL INFORMATION SERVICES, INC. 2005 STOCK INCENTIVE PLAN NOTICE OF STOCK OPTION GRANT Name of Optionee: ________________________ Total Number of _____ shares of common stock, par value $.0001 per Shares Subject share ("Shares") of Fidelity National to Option: Information Services, Inc. (the "Company") Type of Option: Nonstatutory Stock Option Exercise Price $10.00 Per Share: Date of Grant: March 9, 2005 Date Exercisable: This option may be exercised to the extent the Shares subject to this option have vested at any time after the Date of Grant. Vesting Schedule: This option will vest with respect to 1/20 of the Total Number of Shares Subject to Option on the last day of each fiscal quarter, commencing on the last day of the first fiscal quarter following the Date of Grant, until fully vested (i.e., this option will be fully vested on the fifth (5th) anniversary of the last day of the first fiscal quarter following the Date of Grant), provided the Optionee's Service with the Company has not terminated prior to the applicable vesting date. Expiration Date: March 9, 2015 (10 year term from the Date of Grant), subject to earlier termination in accordance with Section 6 of the Stock Option Agreement. Additional Conditions: Concurrently with the exercise of this option, the Optionee must become bound by the Employee Stockholders' Agreement. The Employee Stockholders' Agreement contains provisions that limit the transferability and voting rights of the Shares acquired upon exercise. In addition, the Optionee must satisfy such additional conditions as the Committee shall advise (e.g., satisfy tax withholding and make representations to satisfy securities laws). By signing your name below, you accept this option and acknowledge and agree that this option is granted under and governed by the terms and conditions of the Fidelity National Services, Inc. 2005 Stock Incentive Plan and the Stock Option Agreement reference number 2005-A both of which are hereby made a part of this document. 2 (4 Year Time Based Vesting) FIDELITY NATIONAL INFORMATION SERVICES, INC. 2005 STOCK INCENTIVE PLAN NOTICE OF STOCK OPTION GRANT Name of Optionee: ________________________ Total Number of _____ shares of common stock, par value $.0001 per Shares Subject share ("Shares") of Fidelity National to Option: Information Services, Inc. (the "Company") Type of Option: Nonstatutory Stock Option Exercise Price $10.00 Per Share: Date of Grant: March 9, 2005 Date Exercisable: This option may be exercised to the extent the Shares subject to this option have vested at any time after the Date of Grant. Vesting Schedule: This option will vest with respect to 1/16 of the Total Number of Shares Subject to Option on the last day of each fiscal quarter, commencing on the last day of the first fiscal quarter following the Date of Grant, until fully vested (i.e., this option will be fully vested on the fourth (4th) anniversary of the last day of the first fiscal quarter following the Date of Grant), provided the Optionee's Service with the Company has not terminated prior to the applicable vesting date. Expiration Date: March 9, 2015 (10 year term from the Date of Grant), subject to earlier termination in accordance with Section 6 of the Stock Option Agreement. Additional Conditions: Concurrently with the exercise of this option, the Optionee must become a party to a Employee Stockholders' Agreement. The Employee Stockholders' Agreement contains provisions that limit the transferability and voting rights of the Shares acquired upon exercise. In addition, the Optionee must satisfy such additional conditions as the Committee shall advise (e.g., satisfy tax withholding and make representations to satisfy securities laws). 3 (1.75x/2.0x Performance Based Vesting) FIDELITY NATIONAL INFORMATION SERVICES, INC. 2005 STOCK INCENTIVE PLAN NOTICE OF STOCK OPTION GRANT Name of Optionee: ________________________ Total Number of _____ shares of common stock, par value $.0001 per Shares Subject share ("Shares") of Fidelity National to Option: Information Services, Inc. (the "Company") Type of Option: Nonstatutory Stock Option Exercise Price $10.00 Per Share: Date of Grant: March 9, 2005 Date Exercisable: This option may be exercised to the extent the Shares subject to this option have vested at any time after the Date of Grant. Vesting Schedule: This option will vest as follows, in the event of a Change in Control or after an Initial Public Offering, solely if one of the following targets (each, a "Target") shall be met: (a) 50% of the Total Number of Shares subject to this Option shall vest if the "Equity Value" of a share of the Company's Common Stock shall equal at least $17.50 (subject to adjustment stock splits and the like), and (b) 100% of the Total Number of Shares subject to this Option shall vest if the Equity Value of a share of the Company's Common Stock shall equal at least $20.00 (subject to adjustment for stock splits and the like), provided the Optionee's Service with the Company has not terminated prior to the applicable vesting date. For purposes of this calculation, "Equity Value" shall be determined as follows: (i) in the event of a Change in Control, the Equity Value shall be determined at the time of the transaction constituting a Change in Control, and shall be equal to the aggregate amount of net proceeds (other than any taxes) of cash or readily marketable securities and the discounted expected value of any other deferred consideration (as determined by the Board of the Company) received or to be received by the holders of Common Stock of the Company in such transaction, divided by the number of outstanding shares (including all shares issuable upon exercise of in-the-money exercisable options) at the time of the Change in Control, and (ii) at any time after an Initial Public Offering, the Equity Value shall be measured using the average price of the Common Stock over a consecutive forty-five (45) day trading period, then the applicable Target shall be deemed to have been met. Expiration Date: March 9, 2015 (10 year term from Date of Grant), subject to earlier termination in accordance with Section 6 of the Stock Option Agreement. 4 Additional Conditions: Concurrently with the exercise of this option, the Optionee must become bound by Sections [ ] of the Employee Stockholders' Agreement. The Employee Stockholders' Agreement contains provisions that limit the transferability and voting rights of the Shares acquired upon exercise. In addition, the Optionee must satisfy such additional conditions as the Committee shall advise (e.g., satisfy tax withholding and make representations to satisfy securities laws). 5 (2.0x Performance Based Vesting) FIDELITY NATIONAL INFORMATION SERVICES, INC. 2005 STOCK INCENTIVE PLAN NOTICE OF STOCK OPTION GRANT Name of Optionee: ________________________ Total Number of _____ shares of common stock, par value $.0001 per Shares Subject share ("Shares") of Fidelity National to Option: Information Services, Inc. (the "Company") Type of Option: Nonstatutory Stock Option Exercise Price $10.00 Per Share: Date of Grant: March 9, 2005 Date Exercisable: This option may be exercised to the extent the Shares subject to this option have vested at any time after the Date of Grant. Vesting Schedule: This option will vest with respect to the Total Number of Shares subject to this Option in the event of a Change in Control or after an Initial Public Offering, if the "Equity Value" of a share of the Company's Common Stock shall equal at least $20.00 (subject to adjustment for stock splits and the like), provided the Optionee's Service with the Company has not terminated prior to the applicable vesting date. For purposes of this calculation, "Equity Value" shall be determined as follows: (i) in the event of a Change in Control, the Equity Value shall be determined at the time of the transaction constituting a Change in Control, and shall be equal to the aggregate amount of net proceeds (other than any taxes) of cash or readily marketable securities and the discounted expected value of any other deferred consideration (as determined by the Board of the Company) received or to be received by the holders of Common Stock of the Company in such transaction, divided by the number of outstanding shares (including all shares issuable upon exercise of in-the-money exercisable options) at the time of the Change in Control, and (ii) at any time after an Initial Public Offering, the Equity Value shall be measured using the average price of the Common Stock over a consecutive forty-five (45) day trading period, then the option will vest as described above. Expiration Date: March 9, 2015 (10 year term from Date of Grant), subject to earlier termination in accordance with Section 6 of the Stock Option Agreement. Additional Conditions: Concurrently with the exercise of this option, the Optionee must become bound by Sections [ ] of the Employee Stockholders' Agreement. The Employee Stockholders' Agreement contains provisions that limit the transferability and voting rights of the Shares acquired upon exercise. In addition, the Optionee 6 must satisfy such additional conditions as the Committee shall advise (e.g., satisfy tax withholding and make representations to satisfy securities laws). 7 EX-99.2 5 a06825aexv99w2.txt EXHIBIT 99.2 - -------------------------------------------------------------------------------- EXHIBIT 99.2 STOCKHOLDERS AGREEMENT DATED MARCH 9, 2005 AMONG FIDELITY NATIONAL INFORMATION SERVICES, INC. AND THE OTHER PARTIES HERETO - -------------------------------------------------------------------------------- TABLE OF CONTENTS
PAGE ---- ARTICLE I REPRESENTATIONS AND WARRANTIES OF THE PARTIES ........... 1 1.1 Representations and Warranties of the Company and Parent ... 1 1.2 Representations and Warranties of the Stockholders ......... 2 ARTICLE II VOTING AGREEMENTS AND COVENANTS ......................... 2 2.1 Election of Directors; Committees .......................... 2 2.2 Voting Required for Action ................................. 5 2.3 Selection Criteria ......................................... 7 2.4 Sponsor Veto ............................................... 7 2.5 Independent Company Management Terms ....................... 8 2.6 Parent Board Representation ................................ 8 ARTICLE III TRANSFERS OF SHARES ..................................... 8 3.1 Restrictions on Transfer of Shares ......................... 8 3.2 Tag-Along Rights ........................................... 9 3.3 Transfers in Violation of Agreement ........................ 10 ARTICLE IV LIQUIDITY RIGHTS ........................................ 10 4.1 Duty to Negotiate; Appraisal ............................... 10 4.2 Exchange Rights ............................................ 13 ARTICLE V TAKE-ALONG RIGHT ........................................ 14 5.1 Take-Along Right ........................................... 14 ARTICLE VI REDEMPTION RIGHTS ....................................... 15 6.1 Redemption of Sponsor Shares ............................... 15 6.2 Redemption Closing ......................................... 16 6.3 Failure to Redeem .......................................... 16 ARTICLE VII PRE-EMPTIVE RIGHTS ...................................... 17 7.1 Issuance of New Shares ..................................... 17 ARTICLE VIII BOARD OBSERVERS AND ACCESS .............................. 18 8.1 Board Representation and Access ............................ 18 8.2 Information Rights ......................................... 20 ARTICLE IX AMENDMENT AND TERMINATION ............................... 21
9.1 Amendment and Waiver ....................................... 21 9.2 Termination of Agreement ................................... 21 9.3 Termination as to a Party .................................. 21 ARTICLE X MISCELLANEOUS ........................................... 21 10.1 Certain Defined Terms ...................................... 21 10.2 Legends .................................................... 26 10.3 Severability ............................................... 27 10.4 Entire Agreement ........................................... 27 10.5 Successors and Assigns ..................................... 27 10.6 Counterparts ............................................... 27 10.7 Remedies ................................................... 28 10.8 Notices .................................................... 28 10.9 Governing Law .............................................. 29 10.10 Descriptive Headings ....................................... 30 10.11 Tax-Free Reorganization .................................... 30

-ii- STOCKHOLDERS AGREEMENT THIS STOCKHOLDERS' AGREEMENT (this "Agreement") is entered into as of March 9, 2005 by and among (i) Fidelity National Information Services, Inc., a Delaware corporation (the "Company"), (ii) Thomas H. Lee Equity Fund V, L.P., Thomas H. Lee Parallel Fund V, L.P., Thomas H. Lee Cayman Fund V, L.P., Thomas H. Lee Investors Limited Partnership, Putnam Investment Holdings, LLC, Putnam Investments Employees' Securities Company I, LLC, and Putnam Investments Employees' Securities Company II, LLC (each a "THL Holder," collectively, "THL"), (iii) TPG Partners III, L.P., TPG Parallel III, L.P., TPG Investors III, L.P., FOF Partners III, L.P., FOF Partners III-B, L.P., TPG Dutch Parallel III, C.V. and TPG Partners IV, L.P. (each a "TPG Holder," collectively "TPG"), (iv) Evercore METC Capital Partners II L.P. ("Evercore Holder," or "Evercore"), (v) Banc of America Capital Investors, L.P. ("BACI Holder", or "BACI"), and (vi) Fidelity National Financial, Inc. (the "Parent"). Each THL Holder, TPG Holder, the Evercore Holder and the BACI Holder is referred to herein as a "Sponsor," and collectively, the "Sponsors." The Sponsors, the Parent, each member of management who hereafter (i) exercises options to purchase Common Stock, or (ii) purchases restricted Common Stock, pursuant to the Company's 2005 Stock Incentive Plan (the "SIP") and becomes a party hereto (each, a "Management Holder"), and each other Person that is or may become a party to this Agreement as contemplated hereby are sometimes referred to herein collectively as the "Stockholders" and individually as a "Stockholder." Certain capitalized terms used herein are defined in Section 10.1. The parties hereto agree as follows: ARTICLE I REPRESENTATIONS AND WARRANTIES OF THE PARTIES 1.1 Representations and Warranties of the Company and Parent.Each of the Company and Parent hereby represent and warrant to each Stockholder (other than Parent) that as of the date of this Agreement: (a) it is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, it has full power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby, and the execution, delivery and performance by it of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action; (b) this Agreement has been duly and validly executed and delivered by it and constitutes a legal and binding obligation of the Company or Parent, as the case may be, enforceable against it in accordance with its terms; and (c) the execution, delivery and performance by the Company and Parent of this Agreement and the consummation by the Company and Parent of the transactions contemplated hereby will not, with or without the giving of notice or lapse of time, or both, (i) violate any provision of law, statute, rule or regulation to which the Company or Parent is subject, (ii) violate any order, judgment or decree applicable to the Company or Parent or (iii) conflict with, or result in a breach or default under, any term or condition of the Company's or Parent's organizational documents or any agreement or instrument to which the Company or Parent is a party or by which it is bound. 1.2 Representations and Warranties of the Stockholders. Each Stockholder other than Parent (as to himself or itself only) represents and warrants to the Company and Parent that, as of the time such Stockholder becomes a party to this Agreement: (a) it is a corporation duly organized, validly existing and in good standing under the laws of the State of its state of incorporation, or it is a limited partnership or a limited liability company duly formed, validly existing, and in good standing under the Laws of the State of its state of formation, as the case may be, it has full power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby, and the execution, delivery and performance by it of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate, partnership or limited liability company action. (b) this Agreement (or the separate joinder agreement executed by such Stockholder) has been duly and validly executed and delivered by such Stockholder, and this Agreement constitutes a legal and binding obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms; and (c) the execution, delivery and performance by such Stockholder of this Agreement (or any joinder to this Agreement, if applicable) and the consummation by such Stockholder of the transactions contemplated hereby (and thereby, if applicable) will not, with or without the giving of notice or lapse of time, or both, (i) violate any provision of law, statute, rule or regulation to which such Stockholder is subject, (ii) violate any order, judgment or decree applicable to such Stockholder or (iii) conflict with, or result in a breach or default under, any term or condition of any agreement or other instrument to which such Stockholder is a party or by which such Stockholder is bound. ARTICLE II VOTING AGREEMENTS AND COVENANTS 2.1 Election of Directors; Committees. (a) Each Person, other than the Company, that is a party to this Agreement hereby agrees that such Person will vote, or cause to be voted, all voting Shares of the Company over which such Person has the power to vote or direct the voting, and will take all other necessary or desirable actions within such Person's control, and the Company will take all necessary or desirable actions within its control, to cause the authorized number of directors to be established at up to sixteen (16) directors, and to elect or appoint or cause to be elected or appointed to the board of directors of the Company (the "Board") and cause to be continued in office, the following individuals, in each case subject to the provisions of subparagraph (b) below: -2- (i) one (1) director designated by Thomas H. Lee Equity Fund V, L.P. and one (1) director designated by Thomas H. Lee Parallel Fund V, L.P. (collectively, the "THL Directors"), who shall initially be Thomas M. Hagerty and Seth Lawry and who shall be such directors so long as they are principals of THL (or equivalent or higher ranking employees of THL), provided that any directors replacing the initial THL Directors shall always be individuals who are principals of THL (or equivalent or higher ranking employees of THL); (ii) two (2) directors designated by TPG Partners IV, L.P. (the "TPG Directors"), who shall initially be Jonathan Coslet and Marshall Haines and who shall be such directors so long as they are principals of TPG (or equivalent or higher ranking employees of TPG), provided that any directors replacing the initial TPG Directors shall always be individuals who are principals of TPG (or equivalent or higher ranking employees of TPG); and (iii) up to twelve (12) directors designated by Parent representing the proportional amount of Shares held by Parent at the relevant time (the "Parent Directors"), one of whom shall be William P. Foley, II, subject to the terms of paragraph (c) below; provided that, it is acknowledged that any number of the director seats to be filled by the Parent at any time may remain vacant until such time as the Parent elects to fill such seats. (b) If at any time THL or TPG ceases to own at least 50% of the Shares held by it as of the date hereof (subject to adjustment for stock splits, combinations and similar events), the number of directors THL or TPG, as the case may be, is entitled to designate shall be decreased by one. In the event such decrease results in an undesignated Board seat, the remaining Board members may designate, by majority vote, a successor director to fill the vacancy created thereby or decrease the size of the Board by such seats. (c) The chairman of the Board (the "Chairman") shall be elected by a majority vote of the Board; provided, however, that William P. Foley, II shall serve as the Chairman for an initial period of three (3) years provided he continues to be employed by the Company as Chief Executive Officer. (d) The Board shall hold no less than one (1) meeting per fiscal quarter. At each meeting of the Board (or committee thereof) at which a quorum is present, each director shall be entitled to one vote on each matter to be voted on at such meeting. A majority of the Board shall constitute a quorum. (e) If at any time any director ceases to serve on the Board (whether due to resignation, removal or otherwise), the Stockholders shall elect a successor to fill the vacancy created thereby on the terms and subject to the conditions of paragraphs (a) and (b) above. Each Person that is a party hereto agrees to vote, or cause to be voted, all voting Shares of the Company over which such Person has the power to vote or direct the voting, and shall take all -3- such other actions as shall be necessary or desirable to cause the designated successor to be elected to fill such vacancy. (f) Nothing in this Agreement shall be construed to impair any rights that the stockholders of the Company may have to remove any director for cause under applicable law, the certificate of incorporation of the Company, or the by-laws of the Company, as the case may be. No such removal of an individual designated pursuant to this Section 2.1 for cause shall affect any of the Stockholders' rights to designate a different individual pursuant to this Section 2.1 to fill the position from which such individual was removed. (g) Each member of the Board shall be entitled to reimbursement from the Company for his or her reasonable out-of-pocket expenses (including travel) incurred in attending any Board meeting. (h) For so long as a Sponsor has any designees on the Board, Parent shall maintain a directors' and officers' liability insurance policy for directors and officers of Parent and its Subsidiaries (including the Company), with coverage of at least $125.0 million of "Side A", "Side B" and "Side C" coverage (the "Policy"), plus an additional $20.0 million of "Side A" coverage with terms substantially the same as the terms in effect under the Parent's policy in effect on the date hereof. In the event that any claims are made under the Policy such that less than $50 million of coverage remains under the Policy in any calendar year, Parent agrees to purchase additional "Side A", "Side B" and "Side C" directors' and officers' liability insurance such that there shall always be a minimum of $50 million of coverage available to directors and officers of the Parent and its Subsidiaries. The Company shall indemnify the directors designated by the Sponsors in accordance with the Company's certificate of incorporation and each indemnification agreement entered into by the Company and such director. (i) There shall be established at all times during the term of this Agreement a Compensation Committee of the Board (the "Compensation Committee") which shall be comprised of up to five (5) directors as follows: one (1) of whom shall be one of the THL Directors, one (1) of whom shall be one of the TPG Directors and three (3) of whom shall be Parent Directors, provided that, one (1) of the Parent Directors shall be an independent director selected by Parent who shall not be an employee of Parent. The Compensation Committee will (i) determine the compensation of all senior employees and consultants of the Company (including salary, bonus, equity participation and benefits) consistent with compensation of companies similar to the Company and (ii) subject to Section 2.2(a)(vii) hereof, approve the grants of any options or awards under, or amendments to or replacement of, the SIP and the repurchases of any stock under the terms of the SIP; provided that no member of the Compensation Committee may vote on his own compensation or option or award grant. The initial members of the Compensation Committee shall be William P. Foley, II, Thomas M. Hagerty and Jonathan Coslet and two other individuals designated by Parent in accordance with the provisions in this clause (i). (j) There shall be established at all times during the term of this Agreement an Audit Committee of the Board (the "Audit Committee") which shall be comprised of THL Directors, TPG Directors and Parent Directors representing the proportional amount of Shares -4- held by the Sponsors and Parent, respectively. The Audit Committee shall determine the Company's audit policies, review audit reports and recommendations made by the Company's internal audit staff and its independent auditors, meet with the Company's independent auditors, oversee the independent auditors, and recommend the Company's engagement of independent auditors. (k) All other committees that may be established by the Board from time to time shall be comprised of up to five (5) directors as follows: one (1) of whom shall be one of the THL Directors, one (1) of whom shall be one of the TPG Directors and three (3) of whom shall be Parent Directors, provided that, one (1) of the Parent Directors shall be an independent director selected by Parent who shall not be an employee of Parent. 2.2 Voting Required for Action. (a) At any time prior to a Public Offering, the following actions by the Company or any of its Subsidiaries shall require the approval of (X) the holders of at least a majority of the Shares then held by THL and its Transferees, and (Y) the holders of at least a majority of the Shares then held by TPG and its Transferees (together, the "Major Sponsors"): (i) the approval of any modification or deviation in excess of (A) 20% with respect to the capital expenditure line item of the annual operating budget and capital expenditure budget of the Company and its Subsidiaries from the amounts included in the three (3) year projections attached hereto as Schedule 1 (unless such increase relates to an acquisition permitted or approved under Section 2.2(a)(ii)), and (B) 20% of the aggregate amounts set forth in the annual operating budget and capital expenditure budget approved by the Board on an annual basis, (ii) acquisition, by merger or consolidation, or by purchase of, or investments in, all or substantially all of the assets or stock of, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof, in excess of $50,000,000 per transaction or series of related transactions, or in excess of $100,000,000 in the aggregate in any fiscal year, (iii) amendments to the certificate of incorporation or bylaws of the Company or any of its Subsidiaries in a manner which disproportionately and adversely affects the rights of the Sponsors or which adversely affect the indemnification or exculpation of any director of the Company, (iv) subject to the rights of the Sponsors in Sections 4.1 and 5.1, any (A) sale of all or substantially all of the assets of, or liquidation, dissolution or recapitalization of, the Company or any of its Material Subsidiaries, or (B) change of control of the Company or a Material Subsidiary, whether through merger or sale of stock or otherwise, the result of which is Persons owning voting stock of the Company or such Material Subsidiary, as the -5- case may be, prior to such transaction do not hold more than 50% of the voting stock of the Company or such Material Subsidiary after giving effect to such transaction, (v) the incurrence of any indebtedness for borrowed money by the Company or any of its Subsidiaries in excess of $100,000,000 in the aggregate or the granting of any lien or encumbrance on the assets or pledge of the capital stock of the Company or its Subsidiaries (other than indebtedness incurred under, and liens imposed in connection with the Financing), (vi) the authorization or issuance, or committing to authorize or issue, any equity securities of the Company or its Subsidiaries senior to the Shares (or any replacement securities) held by the Sponsors as to liquidation preference, redemption rights or dividend rights, (vii) any increase in the authorized number of shares of Common Stock or Common Stock Equivalents issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company, pursuant to the SIP or adoption of any similar incentive or option plan, or any option grant under the SIP in excess of 16,378,379 shares or the making of any restricted stock awards under the SIP in excess of the initial 2,500,000 aggregate share award contemplated by Section 2.7 hereof, (viii)entering into any contract or transaction (other than an Exempted Arrangement) which involves payments by any party of more than $500,000 annually in the aggregate, between the Company and any of its Subsidiaries on the one hand and any Stockholder or its Affiliates or any Related Parties on the other, (ix) in the event an employee of the Company is terminated without Cause (as defined in the SIP), exercising any call right under the SIP to repurchase Common Stock or Common Stock Equivalents from such employee if the aggregate purchase price paid to employees for the repurchase of shares pursuant to the SIP within the prior 12 months (including the current repurchase ) exceeds $15,000,000, (x) any Public Offering that is not a Qualified Public Offering, or (xi) any (A) commencement of a case, proceeding or other action (1) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (2) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any -6- substantial part of its assets, or (B) making of a general assignment for the benefit of its creditors. (xii) the amendment or modification, in a manner adverse to the Sponsors, of the commission percentage payable to any of the Company's Subsidiaries pursuant to the Issuing Agency Agreements by and among the Company's Subsidiaries and each of Chicago Title Insurance Company and LSI Title Agency, Inc. (b) The Company agrees to provide each of the Sponsors written notice of any proposed action that is approved or denied by the Major Sponsors pursuant to Section 2.2(a) within 10 business days following such approval or denial, as the case may be, which notice shall include a brief summary of the action taken by the Major Sponsors. 2.3 Selection Criteria. In the event that the Board determines to appoint a new Chief Executive Officer, Chief Financial Officer or Chief Operating Officer (or equivalent position) at any time or times, the Company shall select persons for such positions who meet criteria agreed to in advance by the Board in consultation with the Major Sponsors. 2.4 Sponsor Veto. (a) Each time the Board proposes to replace the Chief Executive Officer, Chief Financial Officer or Chief Operating Officer, the Major Sponsors, for bona fide, good faith reasons, communicated in writing in reasonable detail by the Major Sponsors within a reasonable time after the Company notifies the Major Sponsors of the identity of a proposed replacement candidate, shall have the right to veto the selection of two such proposed candidates for Chief Executive Officer, two such proposed candidates for Chief Financial Officer and two such proposed candidates for Chief Operating Officer of the Company (each such candidate, a "Candidate"). (b) In the event the Major Sponsors have already vetoed two Candidates for any of such positions, the Major Sponsors will have the right to veto a third Candidate for such position so long as the Major Sponsors withdraw their veto and waives their veto rights with respect to one of the previously vetoed Candidates, and the Company will have the right to appoint to such position the Candidate for whom the veto was withdrawn. (c) Notwithstanding anything in this Section 2.4 to the contrary: (i) a simple majority of the Board may appoint an interim Chief Executive Officer, Chief Financial Officer or Chief Operating Officer to serve for a term not to exceed (unless otherwise agreed in writing by the Sponsor Group) 120 calendar days (the "Interim Term"); and (ii) a simple majority of the Board may extend the Interim Term by successive increments of 60 calendar days until a Chief Executive Officer, Chief Financial Officer or Chief Operating Officer is appointed, so long as the -7- Company is proceeding in good faith with the process set forth in this Section 2.4. 2.5 Independent Company Management Terms. The Company will use reasonable best efforts to put in place within a reasonable time after the date hereof a senior management team at the Company (including a chief legal officer and chief operating officer) composed of managers who are not employed by, or serve as directors of, Parent (other than William P. Foley, II and Brent Bickett who will be employed by both Parent and the Company). 2.6 Parent Board Representation. Parent will use reasonable best efforts to have Thomas M. Hagerty nominated and elected to Parent's Board of Directors. 2.7 2005 Stock Incentive Plan. Promptly following the Closing Date, the Company intends to offer to certain key employees set forth on a schedule previously delivered to the Sponsors stock awards under the SIP covering an aggregate of 2,500,000 shares of Common Stock, at a purchase price per share of $10 each. Each person offered such an award will have until the date (the "Cut-Off Date") that is 60 days after the Closing Date to accept the award by returning a signed copy of the award agreement, payment for the shares and a counterpart signature page to this Agreement. The making of any (i) restricted stock award under the SIP in excess of the initial 2,500,000 shares referred to above shall, and (ii) stock option award under the SIP in excess of the initial 16,378,379 shares reserved in the SIP, shall require consent in accordance with Section 2.2(a). ARTICLE III TRANSFERS OF SHARES 3.1 Restrictions on Transfer of Shares. (a) Prior to the completion of the Company's first Public Offering, no Stockholder may Transfer any Shares, except in an Exempt Transfer or otherwise in accordance with the applicable terms of this Agreement. (b) No Transfer of any Shares by any Stockholder shall become effective unless and until the Transferee (unless such Transferee already is party to this Agreement) executes and delivers to the Company a counterpart to this Agreement, agreeing to be treated in the same manner as the transferring Stockholder. Upon such Transfer and such execution and delivery, the Transferee acquiring Transferred Shares shall be bound by, and entitled to the benefits of, this Agreement in the same manner as the transferring Stockholder; provided that no Transferee of a Sponsor (other than pursuant to the second sentence of the definition of an Exempt Transfer) shall be entitled to any of the rights of the Sponsor set forth in this Agreement (or the benefits hereunder) other than Section 3.2, Article VII, Article VI, Section 8.2, Article IX and Article X hereof. Any attempted Transfer of Shares by any Stockholder not in accordance with this Section 3.1 shall not be effective and shall be void. (c) No Shares may be transferred by a Stockholder (other than pursuant to an effective registration statement under the Securities Act) unless, if requested by the Company, such Stockholder first delivers to the Company an opinion of counsel, which opinion and counsel -8- shall be reasonably satisfactory to the Company, to the effect that such Transfer is not required to be registered under the Securities Act. 3.2 Tag-Along Rights. (a) At any time after the date of this Agreement, if any Sponsor or Parent (the "Selling Holder") proposes to Transfer any Shares, the Selling Holder shall, before such Transfer: (i) Deliver to the Company and to the other Stockholders (the "Other Holders") at least thirty (30) days prior written notice of such proposed Transfer (the "Sale Notice") and the terms of such Transfer, including (A) the number of Shares to which the Transfer relates (the "Offered Shares"), (B) the name and address of the proposed Transferee, (C) the proposed amount and type of consideration (including, if the consideration consists in whole or in part of non-cash consideration, such information available to the Selling Holder as may be reasonably necessary for the other Stockholders to properly analyze the economic value and investment risk of such non-cash consideration) and the terms and conditions of payment proposed by the Selling Holder. (ii) Any of the Other Holders may, within twenty-five (25) days of the receipt of the Sale Notice, give written notice (each, a "Tag-Along Notice") to the Selling Holder that such Other Holder wishes to participate in such proposed Transfer upon the terms and conditions set forth in the Sale Notice, which Tag-Along Notice shall specify the Shares such Other Holder desires to include in such proposed Transfer; provided, however, that (1) each Other Holder shall be required, as a condition to being permitted to sell Shares pursuant to this Section 3.2(a) in connection with a Transfer of Offered Shares, to sell a number of shares equal to the product of its Pro Rata Amount and the number of Offered Shares, (2) to exercise its tag-along rights hereunder, each Other Holder must agree to make to the Transferee on behalf of itself the same representations, warranties, covenants, indemnities and agreements as the Selling Holder agrees to make in connection with the Transfer of the Offered Shares (except that in the case of representations and warranties pertaining specifically to, or covenants made specifically by, the Selling Holder, the Other Holders shall make comparable representations and warranties pertaining specifically to (and, as applicable, covenants by) themselves), and must agree to bear its ratable share (which shall be proportionate based on the value of Shares that are Transferred) of all liabilities to the Transferees arising out of representations, warranties (other than those representations, warranties and covenants that pertain specifically to a given Stockholder), covenants, indemnities or other agreements made in connection with the Transfer. Each Stockholder will bear (x) its own costs of any sale of Shares pursuant to this Section 3.2(a) and (y) its pro-rata -9- share (based upon the relative amount of Shares sold) of any of the other costs of any reasonable and customary sale of Shares pursuant to this Section 3.2(a) to the extent such costs are incurred for the benefit of all Stockholders and are not otherwise paid by the Transferee. (b) If none of the Other Holders gives the Selling Holder a Tag-Along Notice prior to the expiration of the 25-day period for giving Tag-Along Notices with respect to the Transfer proposed in the Sale Notice, then (notwithstanding this Section 3.2(a)) the Selling Holder may Transfer such Offered Shares on the terms and conditions set forth, and to or among any of the Transferees identified (or Affiliates of Transferees identified), in the Sale Notice at any time within ninety (90) days after expiration of the 25-day period for giving Tag-Along Notices with respect to such Transfer. Any such Offered Shares not Transferred by the Selling Holder during such 90-day period will again be subject to the provisions of this Section 3.2 upon subsequent Transfer. If one or more Other Holders give the Selling Holder a timely Tag-Along Notice, then the Selling Holder shall use all reasonable efforts to obtain the agreement of the prospective Transferee(s) to the participation of the Other Holders in any contemplated Transfer, on the same terms and conditions as are applicable to the Offered Shares, and no Selling Holder shall transfer any of its shares to any prospective Transferee if such prospective Transferee(s) declines to allow the participation of any of the Other Holders. (c) The rights and restrictions contained in Section 3.2(a) shall not apply with respect to any Exempt Transfer, except Exempt Transfers pursuant to this Section 3.2. 3.3 Transfers in Violation of Agreement. Any Transfer or attempted Transfer of any Shares in violation of any provision of this Agreement shall be void, and the Company shall not record such Transfer on its books or treat any purported transferee of such Shares as the owner of such Shares for any purpose. ARTICLE IV LIQUIDITY RIGHTS 4.1 Duty to Negotiate; Appraisal. (a) If the Sponsors shall have cooperated with the Company in its efforts to consummate a Qualified Public Offering but the Company has not consummated a Qualified Public Offering prior to the second anniversary of the Closing Date, then, at any time thereafter, the holders of 75% of the Sponsor Shares (together, the "Sponsor Group") may give notice (the "Transfer Notice") to Parent that the Sponsors desire to sell their Shares to Parent. For a period of 30 days from the date of the Transfer Notice, each party will negotiate in good faith regarding a sale of all the Sponsor Shares to the Parent or the Company. If the parties are unable to agree upon the terms of a sale of the Sponsor Shares to the Parent or the Company within such 30-day period, then the Sponsor Group may elect to initiate the Appraisal Process to determine the Appraisal Price (the "Election"). Any Appraisal Process shall be initiated by the Sponsor Group by delivering to Parent and the Company the report of the first appraiser. -10- (b) If, following the first Appraisal Process, the Sponsor Group is not satisfied in its sole discretion, with the Appraisal Price (which determination it shall make within fifteen (15) days of completion of the Appraisal Process), then it may elect (the "Second Election") to initiate the Appraisal Process a second time; provided that the Sponsor Group may not make a Second Election within 12 months of the Election. If, following the second Appraisal Process, the Sponsor Group is not satisfied in its sole discretion, with the Appraisal Price (which determination it shall make within fifteen (15) days of completion of the Appraisal Process), then it may elect to initiate the Appraisal Process a third time (the "Third Election"), provided that, the Sponsor Group may not make a Third Election within 12 months of the Second Election. The Sponsor Group may not initiate the Appraisal Process more than three times. (c) If, following any Appraisal Process, the Sponsor Group is satisfied, in its sole discretion, with the Appraisal Price, the Sponsor Group shall so notify the Parent and the Company and the Parent or the Company may elect, within fifteen (15) days of receipt of notice of the Sponsor Group's approval of the Appraisal Price, in its sole discretion, to purchase for cash all but not less than all of the Sponsor Shares from the Sponsors at the Appraisal Price by sending written notice to the Sponsors, and, in such event, the Sponsors shall sell all but not less than all of the Sponsor Shares to the Company and/or Parent. The closing of the purchase of the Shares from the Sponsors by the Company and/or Parent pursuant to this Section 4.1(c) shall occur no later than 30 days after notice of the Company or Parent's election to purchase. (d) If the Sponsor Group, in its sole discretion, has approved an Appraisal Price, but the Company and Parent elect not to purchase the Sponsors' Shares or fail to make an election within the 15-day time period referenced in clause (c) above, then the Sponsor Group shall have the right to compel a Sale of the Company pursuant to Section 4.1(e) (the "Sale Process"). (e) In accordance with Section 4.1(d) above, the Sponsor Group may elect to compel a Sale of the Company in accordance with the provisions of this Section 4.1(e) by providing written notice thereof to the Company. (i) The Stockholders and the Company promptly after receiving such notice will take, under the direction of the Sponsor Group, all actions reasonably necessary or desirable and will use their reasonable best efforts to cause the consummation of such Sale of the Company (and, as used in this Section 4.1, if structured as a stock sale, a sale of 100% of the outstanding stock of the Company) at the highest value reasonably available. Without limiting the foregoing, (i) each of Parent and the Company shall provide each of the Sponsors with prompt notice regarding any and all approvals, consents, notifications, waivers and other legal requirements applicable to it and necessary for the consummation of the proposed Sale of the Company, and shall use its reasonable best efforts to obtain all such approvals, consents, notifications and waivers, and comply with all such other legal requirements in a timely fashion, (ii) the Company shall hire an investment bank (chosen by the Sponsor Group, but reasonably acceptable to the Company) to identify potential buyers, conduct an auction process -11- and otherwise facilitate a Sale of the Company, (iii) subject to the provisions of 4.1(e)(ii), if the proposed Sale of the Company is structured as a sale of assets or a merger or consolidation, or otherwise requires equityholder approval, subject to the approval of the terms of such proposed Sale of the Company by the Sponsor Group, in its sole discretion, the Stockholders and the Company will vote or cause to be voted all Shares that they hold or with respect to which such Stockholder has the power to direct the voting and which are entitled to vote on such transaction in favor of such transaction and will waive any appraisal rights which they may have in connection therewith, and (iv) subject to the provisions of 4.1(e)(ii) and to the approval of the Sale of the Company by the Sponsor Group, in its sole discretion, if the proposed Sale of the Company is structured as or involves a sale or redemption of Shares, the Stockholders will agree to sell all but not less than all of their Shares on the terms and conditions approved by such Sponsor Group, and the Stockholders and the Company will execute any merger, asset purchase, security purchase, recapitalization or other sale agreement approved by such Sponsor Group (the "Definitive Sale Agreements"), and will make to the buyer the same representations, warranties, covenants, indemnities and agreements (other than non-competition agreements) as the Sponsor Group makes in connection with such Sale of the Company (except that in the case of representations and warranties pertaining specifically to, or covenants made specifically by, any Sponsor, the other Stockholders shall make comparable representations and warranties pertaining specifically to (and, as applicable, covenants by) themselves), and must agree to bear their ratable share (which shall be proportionate based on the value of Shares that are being sold in such Sale of the Company) of all liabilities of the Stockholders arising out of representations, warranties (other than those representations, warranties, covenants, indemnities and agreements that pertain specifically to a given Stockholder), covenants, indemnities or other agreements made in the Definitive Sale Agreements. (ii) The obligations of the Stockholders with respect to the Sale of the Company are subject to the satisfaction of the following conditions: (A) upon the consummation of the Sale of the Company, all of the holders of a particular class or series of Shares shall receive the same form and amount of consideration per share, or amount of Shares, or if any holders of a particular class or series of Shares are given an option as to the form and amount of consideration to be received, all holders of such class or series will be given the same option, (B) all holders of vested and exercisable rights to acquire a particular class or series of Shares will be given an opportunity to either (1) exercise such rights prior to the consummation of the Sale of the Company and participate in such sale as holders of such Shares or (2) upon the consummation of the Sale of the Company, receive in exchange for such rights consideration equal to the amount determined by multiplying (x) the same amount of consideration per share, or amount -12- of Shares received by the holders of such type and class of Shares in connection with the Sale of the Company less the exercise price per share, or amount of such rights to acquire such Shares by (y) the number of shares, or aggregate amount of Shares represented by such rights, and (C) in no event shall the aggregate liability of any Stockholder for representations, warranties, covenants, indemnities or agreements (other than with respect to such Stockholder's ownership of its Shares or ability to consummate the transfer thereof) with respect to any Sale of the Company exceed the proceeds received by such Stockholder in such Sale of the Company. (iii) Each Stockholder will bear its or his pro-rata share (based upon the relative amount of Shares sold) of the reasonable and customary costs of any Sale of the Company to the extent such costs are incurred for the benefit of all Stockholders and are not otherwise paid by the Company or the acquiring party. (iv) In no event will the auction process take more than 180 days (the "Auction Period"), unless Definitive Sale Agreements have been entered into prior to the end of the Auction Period. Unless Definitive Sale Agreements have previously been executed, the Sponsor Group shall have the right to terminate the Sale Process at any time during the Auction Period in its sole discretion (the "Sale Termination Right"). If (i) the Sponsor Group exercises the Sale Termination Right, or (ii) the Sale of the Company as contemplated by the Definitive Sale Agreements is not consummated (unless the failure to consummate is the result of a breach of the Definitive Agreements by a member of the Sponsor Group), then, at any time on or after 6 months after the date on which the Sponsor Group exercised the Sale Termination Right or the Definitive Sale Agreements terminated in accordance with their terms, as the case may be, the Sponsor Group may, again initiate their liquidity rights under this Article IV (commencing with Section 4.1(a)), subject to the terms of Section 4.1(b). If, (i) at the end of the Auction Period, there is no good faith, bona fide offer to acquire the Company, or (ii) the shareholders of Parent have the right to approve the Sale of the Company and vote against such transaction, then, the Sponsor Group may, in its sole discretion, either (i) exercise the exchange rights described in Section 4.2, or (ii) again and at any time initiate their liquidity rights under this Article IV (commencing with Section 4.1(a)), subject to the terms of Section 4.1(b). 4.2 Exchange Rights. If a Sale of the Company does not occur in accordance with the provisions of Section 4.1(e), then the Sponsor Group may elect to cause the exchange of all, but not less than all, of the Sponsor Shares for shares of common stock of Parent, the resale of which by Sponsors shall be registered on Form S-3 or any successor form, to the extent such form is available to the Parent -13- at such time, based upon the Appraisal Price of the Sponsor Shares pursuant to a new Appraisal Process (which shall not count towards the limits in Section 4.1(b)) initiated at the time the Sponsor Group elects to exercise the exchange rights hereunder and the fair market value of the Parent's common stock determined by the average closing price of the Parent's common stock for the 45-day trading period immediately prior to the date of the exchange for Parent common stock (the "Exchange"). To the extent the number of shares to be received by Sponsors at the Appraisal Price constitutes more than 19.9% of the outstanding capital stock of Parent (as determined pursuant to the rules of the New York Stock Exchange), then each Sponsor will receive the balance in cash as a pro rata portion of the Appraisal Price. Upon written notice to Parent, the Company and the other Sponsors of the Sponsor Group's election to consummate such Exchange (the "Exchange Notice"), each of Parent and the Company shall (i) provide each Sponsor with prompt notice regarding any and all approvals, consents, notifications, waivers, filings, amendments and other legal requirements applicable to it and necessary for the consummation of the proposed Exchange, and shall use their reasonable best efforts to obtain all such approvals, consents, notifications, waivers, filings and amendments and shall comply with all such other legal requirements in a timely fashion, and (ii) take all other actions reasonably necessary or desirable and use their reasonable best efforts to cause the consummation of the Exchange. In no event shall any Sponsor be required to make any representations, warranties, covenants, indemnities or agreements (other than representations and indemnities with respect to such Sponsor's ownership of its Shares, its ability to consummate the Exchange and investment representations required under applicable securities laws) in connection with any Exchange. ARTICLE V TAKE-ALONG RIGHT 5.1 Take-Along Right. (a) If the Sponsor Group and Parent, acting together, elect to consummate, or to cause the Company to consummate, a transaction constituting a Sale of the Company, the Sponsor Group and Parent shall notify the Company and the other Stockholders in writing of that election, the other Stockholders will consent to and raise no objections to the proposed transaction, and the Stockholders and the Company will take all other actions reasonably necessary or desirable to cause the consummation of such Sale of the Company on the terms proposed by Sponsor Group and Parent. Without limiting the foregoing, (i) if the proposed Sale of the Company is structured as a sale of assets or a merger or consolidation, or otherwise requires Stockholder approval, the Stockholders and the Company will vote or cause to be voted all Shares that they hold or with respect to which such Stockholder has the power to direct the voting and which are entitled to vote on such transaction in favor of such transaction and will waive any appraisal rights which they may have in connection therewith and (ii) if the proposed Sale of the Company is structured as or involves a sale or redemption of Shares, the Stockholders will agree to sell their pro-rata share of the Shares being sold in such Sale of the Company on the terms and conditions approved by the Sponsor Group and Parent, and the Stockholders will execute any Definitive Sale Agreements, and will make to the buyer the same representations, warranties, covenants, indemnities and agreements (other than non-competition agreements) as the Sponsors make in connection with such Sale of the Company (except that in the case of representations and warranties pertaining specifically to, or covenants made specifically by, any -14- Sponsor, the other Stockholders shall make comparable representations and warranties pertaining specifically to (and, as applicable, covenants by) themselves), and must agree to bear their ratable share (which shall be proportionate based on the value of Shares that are being sold in such Sale of the Company) of all liabilities of the Stockholders arising out of representations, warranties (other than those representations, warranties, covenants, indemnities and agreements that pertain specifically to a given Stockholder), covenants, indemnities or other agreements made in the Definitive Sale Agreements. (b) The obligations of the Stockholders with respect to the Sale of the Company are subject to the satisfaction of the following conditions: (i) upon the consummation of the Sale of the Company, all of the holders of Shares shall receive the same form and amount of consideration per Share, or if any holders of a particular class or series of securities are given an option as to the form and amount of consideration to be received, all holders of such class or series will be given the same option, (ii) all holders of rights without regard to vesting or exercise restrictions to acquire a particular class or series of securities will be given an opportunity to either (A) exercise such rights prior to the consummation of the Sale of the Company and participate in such sale as holders of such Securities or (B) upon the consummation of the Sale of the Company, receive in exchange for such rights consideration equal to the amount determined by multiplying (1) the same amount of consideration per share, unit or amount of Shares received by the holders of such type and class of Shares in connection with the Sale of the Company less the exercise price per share, unit or amount of such rights to acquire such Shares by (2) the number of shares, units or aggregate amount of Shares represented by such rights, and (iii) in no event shall the aggregate liability of any Stockholder for representations, warranties, covenants, indemnities or agreements (other than with respect to such Stockholder's ownership of its Shares, its ability to consummate the transfer thereof, and investment representations required under applicable securities laws) with respect to any Sale of the Company exceed the proceeds received by such Stockholder in such Sale of the Company. (c) Each Stockholder will bear its or his pro-rata share (based upon the relative amount of Shares sold) of the reasonable and customary costs of any sale of Shares pursuant to a Sale of the Company to the extent such costs are incurred for the benefit of all Stockholders and are not otherwise paid by the Company or the acquiring party. Costs incurred by or on behalf of a Stockholder for its or his sole benefit will not be considered costs of the transaction hereunder. In the event that any transaction that the Sponsor Group and Parent, acting together, elect to consummate or cause to be consummated pursuant to this Article V is not consummated for any reason, the Company will reimburse the Sponsors and Parent for all actual and reasonable expenses paid or incurred by the Sponsors and Parent in connection therewith. ARTICLE VI REDEMPTION RIGHTS 6.1 Redemption of Sponsor Shares. At any time prior to a Public Offering becoming effective: -15- (a) Parent shall provide the Sponsors with no less than thirty (30) days prior written notice of any event that will constitute a Parent Change of Control. If the Sponsor Group gives notice of its election (such election to be called the "Redemption Notice") within twenty (20) days after receipt of such notice from the Parent, to have the Parent purchase the Sponsor Shares, then, upon consummation of such Parent Change of Control (the "Redemption Date"), the Parent shall be required to purchase, at the Redemption Price (as defined below), all of the Shares then held by the Sponsors (the "Redemption Shares"). The Redemption Notice must request redemption of all, and not less than all, of the Shares held by the Sponsors. (b) For purposes of this provision, a "Parent Change of Control" shall be deemed to have occurred when there has occurred (i) an acquisition by any "person" (as that term is used in Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act, as amended (the "Exchange Act") (or any successor item, regulation or act to the same effect)) of beneficial ownership, directly or indirectly, of securities of Parent representing more than fifty percent (50%) of the combined voting power of Parent's then outstanding securities; (ii) an acquisition by any "person" (as that term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) (or any successor item, regulation or act to the same effect)) of the right to appoint a majority of Parent's board of directors; or (iii) the sale of all or substantially all of the assets of Parent. (c) The purchase price for each Redemption Share (the "Redemption Price") shall be the Appraisal Price of each share of the Company's Common Stock on the date that the applicable Redemption Notice is first given under Section 6.1 (the "Determination Date"). (d) In consideration of the purchase of the Redemption Shares hereunder, the Parent shall deliver to each Sponsor on the Redemption Date, the Redemption Price for its Shares, in cash by certified check or by wire transfer of immediately available funds. 6.2 Redemption Closing. The closing of the purchase of the Redemption Shares being redeemed by the Sponsors (the "Redemption Closing") shall take place at 10:00 a.m. at the offices of Weil, Gotshal & Manges LLP, 100 Federal Street, Boston, MA 02110 on the applicable Redemption Date, or at such other time and place as the Sponsors and the Parent may agree. The Sponsors shall deliver to the Parent at the Closing a certificate or certificates evidencing the Shares redeemed hereunder together with executed stock powers. 6.3 Failure to Redeem. If the Parent fails to purchase all of the Redemption Shares on the Redemption Date, then the Parent shall be deemed to have breached Section 6.1 hereof. If the Parent's breach is due to insufficient funds, then those funds which are available to the Parent will be used to purchase, pro rata, based on the aggregate Redemption Price payable to each Sponsor, the maximum possible number of Redemption Shares. Any subsequent purchase by the Parent shall be for the remaining Redemption Shares of each Sponsor, allocated pro rata based on each Sponsor's ownership of the remaining Redemption Shares. In the event of such a breach, in addition to any other remedies available to the Sponsors at law or in equity, between the Redemption Date and such time as the purchase is completed, the Redemption Price for each Sponsor's Shares shall bear interest at the rate of twelve percent (12%) per annum, compounded annually; provided that such rate shall increase by 2% on the date that is six (6) months after the Redemption Date, and subject to applicable law, shall further increase by an additional 2% on -16- the last day of every quarter thereafter, until such Redemption Shares are fully purchased by the Parent. If the Parent purchases fewer than all of the Redemption Shares offered for purchase, the holders of the Shares not redeemed shall continue to receive the benefit of the rights and privileges afforded the Shares hereunder. ARTICLE VII PRE-EMPTIVE RIGHTS 7.1 Issuance of New Shares. (a) Purchase Rights. If at any time after the date of this Agreement the Company proposes to issue or sell any Common Stock, Common Stock Equivalents or securities convertible into equity securities of the Company (collectively, "New Shares"), the Company shall first offer to sell to each Stockholder (other than any Management Holder, as to whom this Section 7.1 shall not apply) a portion of each type of such New Shares equal to the quotient determined by dividing (x) the number of Shares held or beneficially owned by such Stockholder, by (y) the total number of Shares outstanding immediately prior to such issuance or sale. A Stockholder shall be entitled to purchase all or any portion of its respective portion (as determined in the immediately preceding sentence) of such New Shares at the most favorable price and on the most favorable terms as such New Shares are to be offered. The holders of Shares shall further have a right of over-allotment such that to the extent a Stockholder (a "Rejecting Holder") does not does not exercise its right to purchase any of the New Shares, or exercises its rights for less than all of its pro rata share of the New Shares (as determined above), then each other Stockholder may elect to purchase its pro rata share (as determined above) of such New Shares which the Rejecting Holder does not elect to purchase. (b) Offer Period. In order to exercise its purchase rights hereunder, each Stockholder must, within 30 days after receipt of written notice from the Company describing in reasonable detail the New Shares being offered, the purchase price thereof, the payment terms, the percentage of the New Shares initially available to such holder pursuant to Section 7.1(a) and the over-allotment right available in connection therewith, deliver a written notice to the Company describing its election to exercise its purchase rights hereunder. (c) Expiration of Offer Period. Upon the expiration of the offering period described above, the Company shall be entitled to sell such New Shares which the Stockholders have not elected to purchase during the 180 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Stockholders pursuant to Section 7.1(a). Any New Shares to be sold by the Company after such 180-day period must be reoffered to the Stockholders pursuant to the terms of this Section 7.1. (d) Exceptions to Purchase Rights. The provisions of this Section 7.1 will not apply to the following issuances of New Shares: 1. Common Stock or Common Stock Equivalents issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company, pursuant to the SIP (it being acknowledged that Common -17- Stock or Common Stock Equivalents will not be issued to Sponsors under this Section 7.1(d)(1), or to their director designees (other than pursuant to a grant for a number of shares also granted to the independent directors of the Company)), 2. Equity Securities issued in respect of or in exchange for Shares by way of a stock dividend, stock split or similar transaction, and 3. Equity Securities issued in the first Public Offering approved by the Board in accordance with the terms hereof. ARTICLE VIII BOARD OBSERVERS AND ACCESS 8.1 Board Representation and Access. The Company agrees as follows: (a) In the event that either THL or TPG loses its right to designate all of its directors pursuant to Section 2.1(b), such Sponsor (an "Affected Sponsor") shall have the right to designate an employee of such Sponsor or its Affiliates as a non-voting observer (a "Non-Voting Observer") to the Board and who shall be such Sponsor's initial designee as a director of the Company so long as they are principals of such Sponsor, and any replacement shall be a principals of such Sponsor. The Non-Voting Observer attending a meeting of the Board shall be entitled to reimbursement from the Company for his or her reasonable out-of-pocket expenses (including travel) incurred in attending such meeting. (i) The Non-Voting Observer shall be entitled to be present at all meetings of the Board and of each committee of the Board and such observer shall be notified of any meeting of the Board or committee, including such meeting's time and place, in the same manner as Board members and shall have the same access to information (including any copies of all materials distributed to members of the Board or a committee thereof) concerning the business and operations of the Company and at the same time as Board members and shall be entitled to participate in discussions and consult with, and make proposals and furnish advice to, the Board or committee without voting; provided, however, that the Company shall not be under any obligation to take any action with respect to any proposals made or advice furnished by the Non-Voting Observer, and nothing herein shall prevent the Board (or any committee thereof) from acting by written instrument to the extent permitted by applicable law. The Non-Voting Observer shall have a duty of confidentiality to the Company comparable to the duty of confidentiality of a director of the Company. (ii) Notwithstanding the foregoing, if an issue is to be discussed or otherwise arises at any meeting of the Board or any committee of the Board which, in the reasonable judgment of the Board or a majority of the members of such committee, based on advice of legal counsel, cannot be discussed in the presence of the Non-Voting Observer in order to avoid a conflict of interest on the part of the Non-Voting Observer or to preserve an attorney-client or accountant-client or any other available privilege, then such issue may be discussed without the Non-Voting Observer being present and may be deleted from any materials being -18- distributed in connection with any meeting at which such issues are to be discussed, so long as the Non-Voting Observer is given notice of the occurrence of such meeting and the deletion of such materials. (b) The Company will, and will cause its Subsidiaries to, upon reasonable notice at reasonable times from time to time, provide each Sponsor (and any other parent company of such Sponsor that is a venture capital operating company), at the sole expense of such Sponsor, reasonable opportunities to routinely consult with and advise the management of the Company and its subsidiaries on all matters relating to the operation of the Company and each such Subsidiary, including, without limitation, with respect to any proposed merger, sale of all or substantially all of the Company's assets or capital stock, liquidation or dissolution of or by the Company or other similar corporation transaction, and shall consider, in good faith, the recommendations of each Sponsor in connection with the matters on which it is consulted; provided that the ultimate discretion with respect to all such matters shall be retained by the Company and the Company shall not be under any obligation to accept the recommendations of any Sponsor. The Company shall give, and shall cause its subsidiaries to give, subject to compliance with applicable laws and confidentiality obligations to third parties, such Sponsor (and any other parent company of such Sponsor that is a venture capital operating company) and their authorized representatives reasonable access during normal business hours to all books of account, facilities and properties of the Company and its subsidiaries and permit the Sponsor (and any parent company of such Sponsor that is a venture capital operating company) to make such copies and inspections thereof as any such Person may reasonably request and discuss the affairs, finances and accounts with the officers thereof; provided that such Sponsor shall not exercise such rights more often than quarterly during any calendar year, and such additional times as may be reasonably required in order to qualify any of the Shares as a venture capital investment (as defined in the Department of Labor Regulation Section 2510.3-101). Any such visit will be at the expense of such Sponsor (or such other parent company of such Sponsor that is a venture capital operating company). (c) If (i) reasonably required, in order to qualify any of the Shares as a venture capital investment (as defined in the Department of Labor Regulation Section 2510.3-101) or (ii) any Sponsor is unable for any reason (including pursuant to this Agreement) to appoint a Non-Voting Observer to the Board (and each of the committees, except the compensation committee, thereof), then the Company shall promptly provide true and correct copies of all documents, reports, financial data, and such additional financial and other information with respect to the Company, and its subsidiaries as such Sponsor (and any other parent company of such Sponsor that is a venture capital operating company) may from time to time reasonably request. (d) The Company's obligations pursuant to Section 8.1(a) shall survive until a Public Offering, and the Company's obligations pursuant to Section 8.1(b) and (c) shall survive with respect to each Sponsor until the later of (i) a Public Offering, or (ii) until such Sponsor holds less than 20% of its initial equity investment in the Company. -19- 8.2 Information Rights. Prior to the consummation of the first Public Offering, the Company shall provide to each of the Sponsors the following information: (a) Within ninety (90) days after the end of each fiscal year, an audited consolidated balance sheet of the Company and its Subsidiaries as of the end of such fiscal year, and an audited consolidated statement of income and statement of cashflows of the Company and its Subsidiaries for such year, in each case prepared in accordance with generally accepted accounting principles and setting forth in comparative form the figures for the previous fiscal year, all in reasonable detail, and audited by the Company's independent public accountants. (b) Within forty five (45) days after the end of each of the first three fiscal quarters of each fiscal year, unaudited consolidated balance sheets of the Company and its Subsidiaries as of the end of such fiscal quarter, unaudited consolidated statements of income, and unaudited consolidated statements of cash flows for such fiscal quarter and for the current fiscal year to date. Such financial statements shall be prepared in accordance with generally accepted accounting principles consistently applied (other than omission of accompanying notes) and compared with both the actual results from the corresponding quarter of the previous fiscal year and the budget for the current fiscal year, all in reasonable detail and signed by the principal financial or accounting officer of the Company. (c) Within twenty (20) days after the end of each month of each fiscal year, the Company's monthly reporting package, including unaudited consolidated statements of income. Such financial statements shall be prepared in accordance with generally accepted accounting principles consistently applied (other than omission of accompanying notes) and compared with both the actual results from the corresponding month of the previous fiscal year and the budget (including any reforecasts) for the current fiscal year, all in reasonable detail and signed by the principal financial or accounting officer of the Company. (d) As soon as reasonably practicable and in accordance with Company's past practice (but in no extent later than the first day of such fiscal year), a copy of an annual budget with line items compared to the previous year's budget and an annual strategic plan for such fiscal year. 8.3 Confidentiality. Each Stockholder agrees that it will hold, and will use all commercially reasonable efforts to cause its officers, directors, members, managers, partners, employees, accountants, counsel, consultants, advisors, financial sources, financial institutions, and agents (the "Representatives") to hold, in confidence all confidential information and documents regarding the Company and its Subsidiaries pursuant to or received by such Stockholder or its Representatives in connection with this Agreement or any transaction contemplated hereby (except as required by applicable law, regulation or legal process, including any rule or regulation of a self-regulatory organization to which such Stockholder or its Representatives are subject); provided, that each Stockholder shall be entitled to disclose such confidential information and documents to its investors who are subject to confidentiality obligations owed to such Stockholders. -20- ARTICLE IX AMENDMENT AND TERMINATION 9.1 Amendment and Waiver. Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Agreement shall be effective against the Company or the Stockholders unless such modification, amendment or waiver is approved in writing by the Company and (i) holders of a majority of the Shares held by THL, (ii) holders of a majority of the Shares held by TPG, and (iii) the Parent; provided, however, that no such waiver, modification or amendment which adversely affects either Evercore or BACI disproportionately to any other Sponsor shall be permitted without the written consent of Evercore or BACI, as applicable. The failure of any party to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms. 9.2 Termination of Agreement. This Agreement will terminate in respect of all Stockholders (a) with the written consent of the Company and (i) holders of a majority of the Shares held by THL, (ii) holders of a majority of the Shares held by TPG, and (iii) the Parent; (b) upon the dissolution, liquidation or winding-up of the Company; (c) upon the consummation of a Sale of the Company; or (d) upon a Public Offering; provided, that the Company's obligations pursuant to Sections 8.1(b) and (c) shall survive termination of this Agreement with respect to each Sponsor until the later of (i) a Public Offering, or (ii) until such Sponsor holds less than 20% of its initial equity investment in the Company. 9.3 Termination as to a Party. Any Person who ceases to hold any Shares shall cease to be a Stockholder and shall have no further rights or obligations under this Agreement. ARTICLE X MISCELLANEOUS 10.1 Certain Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth or as referenced below: "Affiliate" of any particular Person means any other Person Controlling, Controlled by or under common Control with such particular Person or, in the case of a natural Person, any other member of such Person's Family Group. "Agreement" has the meaning set forth in the preamble. "Appraisal Price" means the "fair market value" of each Share determined in accordance with this definition by one or more of the following independent investment banking firms (the "Firms") acting as an appraiser (an "Appraiser"): Bank of America Securities, LLC, Bear, Stearns & Co. Inc., Citigroup Global Markets Inc., Credit Suisse First Boston LLC, Deutsche Bank AG, Goldman Sachs Group, Inc., J.P. Morgan Securities Inc. and Morgan Stanley, provided that if all such Firms have been exhausted by either having already rendered a valuation or the Sponsor Group or Parent has approached such Firms to engage them and such Firms have declined such engagement, then the parties will cooperate and use their reasonable -21- best efforts to mutually agree upon another independent, nationally recognized investment banking firm. Each party who selects an Appraiser must make such selection within fifteen (15) days of the event triggering the Appraisal. Each party selecting an Appraiser hereunder shall direct the Appraiser to deliver its valuation within thirty (30) days of being retained, and such party shall cooperate with the Appraiser and use its reasonable best efforts to cause such valuation to be delivered within such time frame. The expenses of any Appraiser engaged in connection with the Appraisal Process shall be divided evenly among the parties. The Appraisal Price shall be determined as follows: (a) Each Appraiser retained hereunder shall determine the fair market per share value of the Sponsor Shares assuming the sale of the entire equity interest of the Company to an independent willing buyer in an arms'-length transaction under then current prevailing market conditions for the sale of all of the stock of comparable business enterprises intended for continued use as part of a going concern. Each Appraiser shall assume that in any such transaction each shareholder of the Company would receive the same per share consideration, and the Appraiser shall not apply any discount for minority interest or illiquidity of the Sponsor Shares, nor any control premium. (b) The initial Appraiser shall be selected by the Sponsor Group (the "Sponsor Appraiser"). If the Parent does not accept the per share valuation arrived at by the Sponsor Appraiser, then the Parent shall promptly notify each Sponsor thereof and Parent shall retain one of the Firms as a second Appraiser (the "Parent Appraiser"). (c) If a valuation is delivered by the Parent Appraiser in accordance with paragraph (b), and the Parent Appraiser and the Sponsor Appraiser arrive at per share valuations (the "Initial Valuations") within ten percent (10%) of each other, the mathematical mean of the Initial Valuations shall be deemed to be the Appraisal Price. If such Appraisers shall arrive at Initial Valuations that are not within ten percent (10%) of each other but are within twenty percent (20%) of each other, then the Parent Appraiser and the Sponsor Appraiser, as soon as reasonably practicable, shall jointly retain a Firm to act as a third Appraiser (the "Third Appraiser") on reasonable terms agreed to by the Sponsor Group and Parent in good faith. In the event the valuation of the Third Appraiser is greater than the higher of the Initial Valuations, then the Appraisal Price shall be the higher of the Initial Valuations. In the event the valuation of the Third Appraiser is less than the lower of the Initial Valuations, the Appraisal Price shall be the lower of the Initial Valuations. If the valuation of the Third Appraiser is not greater than the higher of the Initial Valuations or lower than the lower of the Initial Valuations, the Appraisal Price shall be the mathematical mean of (i) the per share valuation arrived at by the Third Appraiser, and (ii) the Initial Valuation that is closest to that of the per share valuation arrived at by the Third Appraiser. -22- (d) If the Initial Valuations are not within twenty percent (20%) of each other, then neither valuation shall be used and the Sponsor Group will retain a new Firm to act as Sponsor Appraiser (the "Second Sponsor Appraiser") and Parent shall retain a new Firm to act as Parent Appraiser (the "Second Parent Appraiser"). If the per share valuations arrived at by the Second Sponsor Appraiser and Second Parent Appraiser (the "Second Valuations") are within twenty percent (20%) of each other, then the Appraisal Price shall be determined as set forth in paragraph (c) above. If the Second Valuations are not within twenty percent (20%) of each other, then the Second Valuations shall not be used and the Second Parent Appraiser and the Second Sponsor Appraiser, as soon as reasonably practicable, shall jointly select a Firm to act as a final Appraiser (the "Final Appraiser") on reasonable terms agreed to by the Sponsor Group and Parent in good faith. So long as the valuation of the Final Appraiser is not higher than the higher of the Second Valuations or lower than the lower of the Second Valuations, the valuation arrived at by the Final Appraiser shall be deemed to be the Appraisal Price. In the event the valuation of the Final Appraiser is greater than the higher of the Second Valuations, then the Appraisal Price shall be the higher of the Second Valuations. In the event the valuation of the Final Appraiser is less than the lower of the Second Valuations, the Appraisal Price shall be the lower of the Second Valuations. "Appraisal Process" shall mean the process described in the definition of Appraisal Price in order to arrive at the Appraisal Price. "Closing Date" has the meaning ascribed thereto in the Stock Purchase Agreement between the Company, Parent and the Purchasers named therein. "Common Stock" means, collectively the common stock, par value $.0001 per share of the Company and any other class or series of authorized capital stock of the Company which is not limited to a fixed sum or percentage of par or stated value in respect to the rights of the holders thereof to participate in dividends or in the distribution of assets upon any liquidation, dissolution or winding up of the successor to the Company. "Common Stock Equivalents" means (without duplication with any Common Stock or other Common Stock Equivalents) rights, warrants, options, convertible Shares, or exchangeable Shares or indebtedness, or other rights, exercisable for or convertible or exchangeable into, directly or indirectly, Common Stock or securities exercisable for or convertible or exchangeable into Common Stock, as the case may be, whether at the time of issuance or upon the passage of time or the occurrence of some future event. "Company" has the meaning set forth in the preamble. "Control" (including, with correlative meaning, all conjugations thereof) means with respect to any Person, the ability of another Person to control or direct the actions or policies of such first Person, whether by ownership of voting Shares, by contract or otherwise. -23- "Exempted Arrangements" means the arrangements provided in (i) the Management Agreement by and between the Company and THL Advisors V, LLC of even date herewith, (ii) the Management Agreement by and between the Company and TPG GenPar IV, L.P. of even date herewith, (iii) the Management Agreement by and between the Company and Evercore Advisors L.L.C. of even date herewith, (iv) the intercompany agreements listed on Schedule 1 hereto, and (v) any contracts or transactions involving the Parent or one of its Subsidiaries (other than the Company or its Subsidiaries) on the one hand, and the Company or one of its Subsidiaries on the other hand, involving payments of less than $500,000 annually in the aggregate by either party and which do not restrict the ability of the Company and its Subsidiaries to engage in any activities. "Exempt Transfer" means a Transfer of Shares (a) pursuant to Section 3.2 hereof, (b) pursuant to Sections 4.1, 4.2, 5.1 or 6.1 hereof, (c) upon the death of the holder pursuant to the applicable laws of descent and distribution, (d) solely to or among such Person's Family Group, or (e) incidental to the exercise, conversion or exchange of such Shares in accordance with their terms, any combination of shares (including any reverse stock split) or any recapitalization, reorganization or reclassification of, or any merger or consolidation involving, the Company. Solely with respect to Sponsor Shares, an Exempt Transfer shall also include a Transfer of Sponsor Shares (a) to and among the Affiliates of the Sponsors, partners of the Sponsors and the partners (including, without limitation, any limited partner of such Sponsor), stockholders, employees and Affiliates of such partners or Affiliates, and (b) pursuant to a pledge of such Sponsor Shares to an unaffiliated financial institution. "Family Group" means, with respect to any individual, such individual's spouse and descendants (whether natural or adopted) and any trust, partnership, limited liability company or similar vehicle established and maintained solely for the benefit of (or the sole members or partners of which are) such individual, such individual's spouse and/or such individual's descendants. "Financing" has the meaning ascribed thereto in the Stock Purchase Agreement between the Company, Parent and the Purchasers named therein. "Major Sponsors" has the meaning given such term in Section 2.2(a). "Management Holder" has the meaning given such term in the preamble. "Material Subsidiary" means a direct or indirect Subsidiary of the Company which represents 10% or more of the assets or revenues of the Company and its Subsidiaries, taken together as a whole. "Other Holder" has the meaning given such term in Section 3.2(a). "Person" means an individual, a partnership, a joint venture, a corporation, an association, a joint stock company, a limited liability company, a trust, an unincorporated organization or a government or any department or agency or political subdivision thereof. -24- "Pro Rata Amount" means, with respect to any Stockholder, the quotient obtained by dividing (i) the sum of the aggregate number of shares of Common Stock held by such Stockholder by (ii) the aggregate number of issued and outstanding shares of Common Stock held by all Stockholders. "Public Offering" means an offering and sale to the public of any shares or equity securities of the Company pursuant to a registration statement in the United States. "Qualified Public Offering" means a Public Offering whereby the offered shares trade on a national securities exchange or NASDAQ, and in which, at the election of the Company, either one of the following criteria is fulfilled: (A) (i) the price per share paid by the public in such offering is at least $15.00 and less than $17.50, and (ii) the gross proceeds to the Company would at least equal an amount obtained by multiplying the per share price in (A)(i) above by that number of shares (the "1.5 Cap") equal to 15% of the outstanding shares of the Company after giving effect to the offering, or (B) (i) the price per share paid by the public in such offering is at least $17.50, and (ii) the gross proceeds to the Company would at least equal an amount obtained by multiplying the per share price in (B)(i) above by that number of shares (the "1.75 Cap") equal to 12.5% of the outstanding shares of the Company after giving effect to the offering. Any per share price contained in this definition shall be subject to adjustment for stock splits, combinations and similar events. "quorum" means, with respect to any meeting of directors of the Board of the Company, a group of directors present at any meeting that includes a number of directors designated by Parent that constitutes a majority of directors present at any such meeting. "Sale of the Company" means the consummation of a transaction, whether in a single transaction or in a series of related transactions that are consummated contemporaneously (or consummated pursuant to contemporaneous agreements), with any other Person or group of Persons on an arm's-length basis other than an Affiliate of any Sponsor, pursuant to which such party or parties (a) acquire (whether by merger, stock purchase, recapitalization, reorganization, redemption, issuance of capital stock or otherwise) more than 50% of the voting stock of the Company or (b) acquire assets constituting all or substantially all of the assets of the Company and its Subsidiaries on a consolidated basis; provided, however, that in no event shall a Sale of the Company be deemed to include any transaction effected for the purpose of (i) changing, directly or indirectly, the form of organization or the organizational structure of the Company or any of its Subsidiaries or (ii) contributing stock to entities controlled by the Company. "Sale Notice" has the meaning given such term in Section 3.2(a). "SEC" means the Securities and Exchange Commission. "Securities Act" means the Securities Act of 1933 and the rules and regulation promulgated thereunder, all as the same have been or may be amended from time to time. "Selling Holder" has the meaning given such term in Section 3.2(a). -25- "Shares" means, collectively, the shares of Common Stock or other equity securities of the Company held by the Stockholders. "SIP" has the meaning given such term in the preamble. "Sponsor Group" has the meaning given such term in Section 4.1(a). "Sponsors" has the meaning given such term in the preamble. "Sponsor Shares" means Shares held by the Sponsors. "Stockholder(s)" has the meaning given such term in the preamble. "Subsidiary" means any corporation with respect to which another specified corporation has the power to vote or direct the voting of sufficient shares to elect directors having a majority of the voting power of the board of directors of such corporation. "Tag-Along Notice" has the meaning given such term in Section 3.2(a). "Transfer" means (in either the noun or the verb form, including with respect to the verb form, all conjugations thereof within their correlative meanings) with respect to any security, the gift, sale, assignment, transfer, pledge, hypothecation or other disposition (whether for or without consideration, whether directly or indirectly, and whether voluntary, involuntary or by operation of law) of such security or any interest therein. "Transferee" means any Person to whom a Stockholder may Transfer Shares. 10.2 Legends. (a) Each certificate or instrument evidencing Shares and each certificate or instrument issued in exchange for or upon the Transfer of any such Shares (if such Shares remain subject to this Agreement after such Transfer) shall be stamped or otherwise imprinted with a legend (as appropriately completed under the circumstances) in substantially the following form: "THE SHARES REPRESENTED BY THIS CERTIFICATE CONSTITUTE SHARES UNDER A CERTAIN STOCKHOLDERS AGREEMENT DATED AS OF MARCH [9], 2005 AMONG THE ISSUER OF SUCH SHARES (THE "COMPANY") AND CERTAIN OF THE COMPANY'S STOCKHOLDERS AND, AS SUCH, ARE SUBJECT TO CERTAIN VOTING PROVISIONS, PURCHASE RIGHTS AND RESTRICTIONS ON TRANSFER SET FORTH IN THE STOCKHOLDERS AGREEMENT. A COPY OF SUCH STOCKHOLDERS AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST." -26- (b) Each instrument or certificate evidencing Shares and each instrument or certificate issued in exchange or upon the Transfer of any Shares shall be stamped or otherwise imprinted with a legend substantially in the following form: "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED OR SOLD UNLESS IT HAS BEEN REGISTERED UNDER THE SECURITIES ACT OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE (AND, IN SUCH CASE, IF REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY SHALL HAVE BEEN DELIVERED TO THE COMPANY TO THE EFFECT THAT SUCH OFFER OR SALE IS NOT REQUIRED TO BE REGISTERED UNDER THE SECURITIES ACT)." (c) Whenever in the opinion of the Company and counsel reasonably satisfactory to the Company (which opinion shall be delivered to the Company in writing) the restrictions described in any legend set forth above cease to be applicable to any Shares, the holder thereof shall be entitled to receive from the Company, without expense to the holder, a new instrument or certificate not bearing a legend stating such restriction. 10.3 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. 10.4 Entire Agreement. Except as otherwise expressly set forth herein, this document embodies the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way. 10.5 Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be enforceable by the Company and its successors and assigns and the Stockholders and any subsequent holders of Shares and the respective successors and assigns of each of them, so long as they hold Shares. 10.6 Counterparts. This Agreement may be executed in separate counterparts (including by means of telecopied signature pages) each of which shall be an original and all of which taken together shall constitute one and the same agreement. -27- 10.7 Remedies. The Company and the Stockholders shall be entitled to enforce their rights under this Agreement specifically, to recover damages by reason of any breach of any provision of this Agreement (including costs of enforcement) and to exercise all other rights existing in their favor. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that the Company or any Stockholder may in its or his sole discretion apply to any court of law or equity of competent jurisdiction for specific performance or injunctive relief (without posting a bond or other security) in order to enforce or prevent any violation of the provisions of this Agreement. 10.8 Notices. Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, or mailed first class mail (postage prepaid) or sent by reputable overnight courier service (charges prepaid) to the Company at the address set forth below and to any other recipient at the address indicated on the Company's records, or at such address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party. Notices will be deemed to have been given hereunder when sent by facsimile (receipt confirmed) delivered personally, 5 days after deposit in the U.S. mail and one day after deposit with a reputable overnight courier service. Notices to the Company will be sent to: Fidelity National Information Services, Inc. 601 Riverside Avenue Jacksonville, FL 32204 Attention: Gregory S. Lane, Senior Vice President - Mergers and Acquisitions Counsel Facsimile: (904) 357-1026 with copies to: Thomas H. Lee Partners, L.P. 100 Federal Street Boston, MA 02110 Attention: Thomas M. Hagerty and Seth Lawry Facsimile: (617) 227-5514 Texas Pacific Group 345 California Street, Suite 3300 San Francisco, CA 94104 Attention: Jonathan Coslet and Marshall Haines Facsimile: (415) 743-1501 Weil, Gotshal & Manges LLP 100 Federal Street Boston, MA 02110 Attention: James Westra, Esq. Marilyn French, Esq. Facsimile: (617) 772-8333 -28- Notices to any Stockholder will be sent to the address set forth opposite such Stockholder's name on Exhibit A attached hereto, with a copy to: Weil, Gotshal & Manges LLP 100 Federal Street Boston, MA 02110 Attention: James Westra, Esq. Marilyn French, Esq. Facsimile: (617) 772-8333 and, if such Stockholder is a TPG Holder, with a copy to: Cleary, Gottlieb, Steen & Hamilton One Liberty Plaza New York, NY 10006 Attention: David Leinwand Facsimile: (212) 225-2838 and, if to Evercore, with a copy to: Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, NY 10017 Attention: Alan Schwartz Facsimile: (212) 455-2502 and, if to BACI, with a copy to: Kennedy Covington Lobdell & Hickman, L.L.P. Hearst Tower 214 North Tryon Street, 47th Floor Charlotte, NC 28202 Attention: T. Richard Giovannelli Facsimile: (704) 353-3184 10.9 Governing Law. The Delaware General Corporation Laws shall govern all questions arising under this Agreement concerning the relative rights of the Company and its stockholders. All other questions concerning the construction, validity and interpretation of this Agreement shall be governed by and construed in accordance with the domestic laws of the State of Delaware applicable to contracts made and to be performed in the State of Delaware. The parties hereto hereby irrevocably and unconditionally submit to the exclusive jurisdiction of any State or Federal court sitting in New York, NY over any suit, action or proceeding arising out of or relating to this Agreement. The parties hereby agree that service of any process, summons, notice or document by U.S. registered mail addressed to any such party shall be effective service of process for any action, suit or proceeding brought against a party in any such court. The parties hereto hereby irrevocably and unconditionally waive any objection to the laying of venue -29- of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. The parties hereto agree that a final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon any party and may be enforced in any other courts to whose jurisdiction any party is or may be subject, by suit upon such judgment. 10.10 Descriptive Headings. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. 10.11 Tax-Free Reorganization Parent may propose and the Sponsor Group shall consider, at its sole and absolute discretion, transactions by and between the Company and Parent that would allow Parent to consummate a tax free spin off of its shares in the Company on such terms as may be mutually agreeable to the Sponsor Group and FNF. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] [SIGNATURE PAGES FOLLOW] -30- COUNTERPART SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT IN WITNESS WHEREOF, the parties hereto have executed this Stockholders Agreement on the day and year first above written. FIDELITY NATIONAL FINANCIAL, INC. By: ________________________________________ Name: Title: FIDELITY NATIONAL INFORMATION SERVICES, INC. By: ________________________________________ Name: Title: THOMAS H. LEE EQUITY FUND V, L.P. By: THL Equity Advisors V, LLC, its general partners By: Thomas H. Lee Partners, L.P., its sole member By: Thomas H. Lee Advisors LLC, its general partner By: ________________________________________ Name: Title: Managing Director COUNTERPART SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT THOMAS H. LEE PARALLEL FUND V, L.P. By: THL Equity Advisors V, LLC, its general partner By: Thomas H. Lee Partners, L.P., its sole member By: Thomas H. Lee Advisors LLC, its general partner By: ________________________________________ Name: Title: Managing Director THOMAS H. LEE CAYMAN FUND V, L.P. By: THL Equity Advisors V, LLC, its general partner By: Thomas H. Lee Partners, L.P., its sole member By: Thomas H. Lee Advisors LLC, its general partner By: ________________________________________ Name: Title: Managing Director THOMAS H. LEE INVESTORS LIMITED PARTNERSHIP By: THL Investment Management Corp., its general partner By: ________________________________________ Name: Thomas H. Lee Title: Chief Executive Officer COUNTERPART SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT PUTNAM INVESTMENTS EMPLOYEES' SECURITIES COMPANY I LLC By: Putnam Investments Holdings, LLC, its managing member By: Putnam Investment, LLC, its managing member By: ___________________________________________ Name: Title: PUTNAM INVESTMENTS EMPLOYEES' SECURITIES COMPANY II LLC By: Putnam Investment Holdings, LLC, its managing member By: Putnam Investments, LLC, its managing member By: ___________________________________________ Name: Title: PUTNAM INVESTMENT HOLDINGS, LLC By: Putnam Investments, LLC, its managing member By: ___________________________________________ Name: Title: COUNTERPART SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT TPG PARTNERS IV, L.P. By: TPG GenPar IV, L.P., its general partner By: TPG Advisors IV, Inc., its general partner By: _____________________________________________ Name: Title: TPG PARTNERS III, L.P. By: TPG GenPar III, L.P., its general partner By: TPG Advisors III, Inc., its general partner By: _____________________________________________ Name: Title: TPG PARALLEL III, L.P. By: TPG GenPar III, L.P., its general partner By: TPG Advisors III, Inc., its general partner By: _____________________________________________ Name: Title: TPG INVESTORS III, L.P. By: TPG GenPar III, L.P., its general partner By: TPG Advisors III, Inc., its general partner By: _____________________________________________ Name: Title: COUNTERPART SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT FOF PARTNERS III, L.P. By: TPG GenPar III, L.P., its general partner By: TPG Advisors III, Inc., its general partner By: _____________________________________________ Name: Title: FOF PARTNERS III-B, L.P. By: TPG GenPar III, L.P., its general partner By: TPG Advisors III, Inc., its general partner By: _____________________________________________ Name: Title: TPG DUTCH PARALLEL III, C.V. By: TPG GenPar Dutch, L.L.C., its general partner By: TPG GenPar III, L.P., its general partner By: TPG Advisors III, Inc., its general partner By: _____________________________________________ Name: Title: COUNTERPART SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT EVERCORE METC CAPITAL PARTNERS II L.P. By: Evercore Partners II L.L.C., its General Partner By: ___________________________________ Name: Title: BANC OF AMERICA CAPITAL INVESTORS, L.P. By: Banc of America Capital Management, L.P., its General Partner By: BACM I GP, LLC, its General Partner By: ___________________________________ Name: Title: EXHIBIT A Thomas H. Lee Partners, L.P. 100 Federal Street Boston, MA 02110 Attention: Thomas M. Hagerty and Seth Lawry Facsimile: (617) 227-5514 Texas Pacific Group 345 California Street, Suite 3300 San Francisco, CA 94104 Attention: Jonathan Coslet and Marshall Haines Facsimile: (415) 743-1501 Evercore Partners 55 East 52nd Street, 43rd Floor New York, NY 10055 Attn: Neeraj Mital Telephone: (212) 857-3197 Facsimile: (212) 857-3152 Fidelity National Financial, Inc. 601 Riverside Avenue Jacksonville, FL 32204 Attention: Gregory S. Lane, Senior Vice President - Mergers & Acquisitions Counsel Facsimile: (904) 357-1026 Banc of America Capital Investors, L.P. Bank of America Corporate Center 100 North Tryon Street, 25th Floor NC1-007-25-02 Charlotte, NC 28255 Attention: Robert L. Edwards, Jr. Facsimile: (704) 386-6432 SCHEDULE 1 CAPITAL EXPENDITURES
FY 2005 FY 2006 FY 2007 ------- ------- ------- ~~171,290 152,413 137,901~~
EX-99.3 6 a06825aexv99w3.txt EXHIBIT 99.3 EXHIBIT 99.3 REGISTRATION RIGHTS AGREEMENT THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of March 9, 2005 by and among (i) Fidelity National Information Services, Inc., a Delaware corporation (the "Company"), and the Securityholders (as herein defined). Certain capitalized terms used herein are defined in Section 1.1. The parties hereto agree as follows: ARTICLE 1 DEFINITIONS 1.1 Definitions. "Affiliate" of any particular Person means any other Person Controlling, Controlled by or under common Control with such particular Person or, in the case of a natural Person, any other member of such Person's Family Group. "Agreement" has the meaning set forth in the preamble. "BACI Holder" means Banc of America Capital Investors, L.P. "Board" or "Board of Directors" means the Board of Directors of the Company. "Closing Date" has the meaning given such term in the Stock Purchase Agreement. "Common Stock" means the Company's common stock. "Company" has the meaning set forth in the preamble. "Company Qualified Public Offering" has the meaning set forth in Section 2.1(b). "Control" (including, with correlative meaning, all conjugations thereof) means with respect to any Person, the ability of another Person to control or direct the actions or policies of such first Person, whether by ownership of voting stock, by contract or otherwise. "Demand Registration" has the meaning given to such term in Section 2.1(a). "Employee" means each of the other Securityholders that are then employees of the Company. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Evercore Holder" means Evercore METC Capital Partners II L.P. "Family Group" means, with respect to any individual, such individual's spouse and descendants (whether natural or adopted) and any trust, partnership, limited liability company or similar vehicle established and maintained solely for the benefit of (or the sole members or partners of which are) such individual, such individual's spouse and/or such individual's descendants. "FNF" means Fidelity National Financial, Inc. "Incidental Registration" has the meaning given such term in Section 2.2(a). "Indemnified Party" has the meaning given such term in Section 2.7(a). "Losses" has the meaning given such term in Section 2.7(a). "NASD" has the meaning given such term in Section 2.5(k). "NASDAQ" means the National Association of Securities Dealers Automated Quotation System. "Person" means an individual, a partnership, a joint venture, a corporation, an association, a joint stock company, a limited liability company, a trust, an unincorporated organization or a government or any department or agency or political subdivision thereof. "Proceeding" has the meaning given such term in Section 2.7(c). "Public Offering" means an offering and sale to the public of any equity securities of the Company or any of its subsidiaries pursuant to an effective registration statement filed with the SEC pursuant to the Securities Act, as then in effect, provided that a Public Offering shall not include an offering made in connection with a business acquisition or combination or an employee benefit plan. "Qualified Public Offering" means a Public Offering whereby the offered shares trade on a national securities exchange or NASDAQ, and in which, at the election of the Company, either one of the following criteria is fulfilled: (A) (i) the price per share paid by the public in such offering is at least $15.00 and less than $17.50, and (ii) the gross proceeds to the Company would at least equal an amount obtained by multiplying the per share price in (A)(i) above by that number of shares (the "1.5 Cap") equal to 15% of the outstanding shares of the Company after giving effect to the offering, or (B) (i) the price per share paid by the public in such offering is at least $17.50, and (ii) the gross proceeds to the Company would at least equal an amount obtained by multiplying the per share price in (B)(i) above by that number of shares (the "1.75 Cap") equal to 12.5% of the outstanding shares of the Company after giving effect to the offering. Any per share price contained in this definition shall be subject to adjustment for stock splits, combinations and similar events. 2 "Registrable Shares" means (i) Common Stock, issued or issuable (upon conversion of warrants, or otherwise) to any Securityholder, excluding such shares that (a) have been sold pursuant to a Registration Statement, or (b) are eligible to be sold or distributed in the United States pursuant to Rule 144 (including, without limitation, Rule 144(k)) in a single transaction by any Securityholder, and (ii) Common Stock to be registered and sold pursuant to Section 2.1(b). "Registration Expenses" means all amounts payable by the Company pursuant to Section 2.5. "Registration Notice" has the meaning given such term in Section 2.1(c). "Registration Request" has the meaning given such term in Section 2.1(a). "Registration Statement" means any registration statement of the Company under which any of the Registrable Shares are included therein pursuant to the provisions of this Agreement, including the prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits, and all material incorporated by reference or deemed to be incorporated by reference in such registration statement. "Requesting Holders" has the meaning given such term in Section 2.1(a). "Rule 144" means Rule 144 adopted under the Securities Act (or any successor rule or regulation). "SEC" means the Securities and Exchange Commission. "Securityholder(s)" means (i) the stockholders listed on Annex A hereto and their respective successors, assignees and transferees who execute a counterpart to this Agreement, and (ii) those Persons who acquire Registrable Shares in the future and become a party hereto. "Securities Act" means the Securities Act of 1933, as amended from time to time. "Selling Securityholder" means a Securityholder selling its shares pursuant to the terms of this Agreement. "Shelf Registration" has the meaning given such term in Section 2.1(a). "Sponsor Group" has the meaning given such term in Section 2.1(b) "Sponsors" means collectively, the THL Holders, the TPG Holders, the Evercore Holder and the BACI Holder. "Stockholders Agreement" means that certain Stockholders' Agreement dated as of the date hereof among the Company and the other parties thereto. 3 "Stock Purchase Agreement" means that certain Stock Purchase Agreement dated as of December 23, 2004, as amended, among the Company and the other parties thereto. "Subsidiary" means any corporation with respect to which another specified corporation has the power to vote or direct the voting of sufficient securities to elect directors having a majority of the voting power of the board of directors of such corporation. "THL Holders" means collectively, Thomas H. Lee Equity Fund V, L.P., a Delaware limited partnership, Thomas H. Lee Parallel Fund V, L.P., Thomas H. Lee Cayman Fund V, L.P., Thomas H. Lee Investors Limited Partnership, Putnam Investment Holdings, LLC, Putnam Investments Employees' Securities Company I LLC, and Putnam Investments Employees' Securities Company II, LLC. "TPG Holders" means collectively, TPG Partners III, L.P., TPG Parallel III, L.P., TPG Investors III, L.P., FOF Partners III, L.P., FOF Partners III-B, L.P., TPG Dutch Parallel III, C.V., and TPG Partners IV, L.P. "Transfer" means (in either the noun or the verb form, including with respect to the verb form, all conjugations thereof within their correlative meanings) with respect to any security, the gift, sale, assignment, transfer, pledge, hypothecation or other disposition (whether for or without consideration, whether directly or indirectly, and whether voluntary, involuntary or by operation of law) of such security or any interest therein. ARTICLE 2 REGISTRATION RIGHTS 2.1 Demand Registrations. (a) Requests for Registration of Registrable Shares Owned by the Sponsors. Subject to the provisions of this Article 2, each of (i) FNF and (ii) subject to the provisions of 2.1(f), each of (A) the THL Holders and (B) the TPG Holders shall have the right to request registration under the Securities Act (the "Demand Right") of all or any portion of the Registrable Shares held by such Securityholders by delivering a written notice to the principal business office of the Company, which notice identifies the Person(s) requesting registration (the "Requesting Holders") and specifies the number of Registrable Shares to be included in such registration (the "Registration Request"); provided, unless FNF and the Sponsor Group otherwise consent, if the Company has not already consummated a Public Offering, the initial Demand Right must be for a Qualified Public Offering. Any such requested registration shall hereinafter be referred to as a "Demand Registration." With respect to any Demand Registration, the Requesting Holders may request the Company to effect a registration of the Registrable Shares under a registration statement pursuant to Rule 415 under the Securities Act (a "Shelf Registration"). 4 (b) Request for Registration of Registrable Shares by the Company for its own Account. Subject to the provisions of this Article 2, each of (i) FNF, and (ii) the holders of at least 75% of the Registrable Shares then owned by the THL Holders and the TPG Holders (such holders, the "Sponsor Group") shall have the right to request the issuance and registration by the Company under the Securities Act in an initial Qualified Public Offering of newly issued shares of Common Stock (a "Company Qualified Public Offering"), by delivering a Registration Request; provided, however, that in no event will a Company Qualified Public Offering require the Company to issue a number of shares in excess of the 1.5 Cap or the 1.75 Cap as applicable. (c) Effecting the Registration. Subject to the restrictions set forth in Section 2.1(f), the Company will give prompt written notice of any such Registration Request (the "Registration Notice") to all other holders of Registrable Shares and will thereupon use its reasonable best efforts to effect the registration under the Securities Act on any form available to the Company of: (i) in the case of a Company Qualified Public Offering, the Registrable Shares required to be registered by the Company; (ii) the Registrable Shares requested to be registered by the Requesting Holders; and (iii) all other Registrable Shares of the same type and class which the Company has received a written request to register pursuant to Section 2.2(a) within 10 days after notice is given by the Company pursuant to Section 2.2(a) and any securities of the Company proposed to be included in such registration by the Company for its own account (provided such securities shall be of the same class required to be registered under Section 2.1(a)). (d) Preservation of Demand Registration. A registration undertaken by the Company at the request of the Requesting Holder under Section 2.1(a) will not count as a Demand Registration: (i) if, pursuant to the Demand Right, the Requesting Holders are unable to register and sell at least 50% of the Registrable Shares requested to be included in such registration by them, unless such failure results from any act of, or failure to act by, any of the Requesting Holders; (ii) if the Requesting Holders withdraw their Registration Request prior to the time the Registration Statement therefor is declared effective and promptly reimburse the Company for all Registration Expenses incurred by the Company in connection with effecting such registration, such Registration Request shall not count as a Demand Registration so long as this provision has not been 5 previously utilized by the Sponsor Group within the immediately preceding 18 months; or (iii) if the Requesting Holders withdraw a Registration Request upon the determination of the board of directors of the Company to postpone the filing or effectiveness of a Registration Statement pursuant to Section 2.1(f). (e) Priority on Demand Registration. If the sole or managing underwriter of a Demand Registration advises the Company in writing that in its reasonable opinion the number of Registrable Shares and other securities requested to be included exceeds the number of Registrable Shares and other securities which can be sold in such offering without adversely affecting the distribution of the securities being offered, the price that will be paid in such offering or the marketability thereof, the Company will include in such registration the Registrable Shares in the following priority: (i) first, in the event of a Company Qualified Public Offering, the greatest number of securities of the Company proposed to be included in such registration by the Company for its own account, which in the opinion of such underwriters can be so sold; and (ii) second, after all securities that the Company proposes to register for its own account have been included in the case of a Company Qualified Public Offering, the greatest amount of Registrable Shares requested to be registered by the holders thereof which in the opinion of such underwriters can be sold in such offering without adversely affecting the distribution of the securities being offered, the price that will be paid in such offering or the marketability thereof, ratably among the holders of Registrable Shares (whether requested to be registered pursuant to Section 2.1 or 2.2) based on the respective amounts of Registrable Shares requested to be included by each such holder. (f) Restrictions on Demand Registrations. Except as otherwise provided in this Section 2.1(f), following the Company's initial Public Offering, the Company shall not be obligated to effect (i) more than two (2) Demand Registrations pursuant to a Demand Right exercised by the THL Holders under Section 2.1(a), and (ii) more than two (2) Demand Registrations pursuant to a Demand Right exercised by the TPG Holders under Section 2.1(a). No Securityholder may exercise a Demand Right under this Section 2.1 unless the reasonably anticipated gross proceeds of the resulting offering would exceed $75,000,000. Any Demand Registration requested must be for a firmly underwritten public offering of Registrable Shares to be managed by an underwriter or underwriters of recognized national standing selected by the Company and reasonably acceptable to the Requesting Holders. The Company may defer the filing (but not the preparation thereof) of a Registration Statement to effect a Demand Registration 6 if, after a request is made, the Board of Directors of the Company has determined in good faith, after consultation with independent outside counsel, that the filing of a Registration Statement would require disclosure in the Registration Statement of material, non-public information in order to make the statements in the Registration Statement not misleading which the Company has a bona fide business purpose for preserving as confidential, and disclosure of which would have an adverse effect on the Company or its business. The Company may defer the registration under this paragraph (f) pursuant to the preceding sentence until the earlier of (A) the date upon which such material information is disclosed to the public or disclosure of which would no longer be material or materially detrimental or (B) 90 days after the Company first makes such good faith determination; provided, however, that the Company shall not utilize this right to defer more than once in any twelve-month period. (g) Stock Splits. In connection with any Demand Registration pursuant to this Section 2.1, each party to this Agreement will vote, or cause to be voted, all securities of the Company over which it has the power to vote or direct the voting to effect any stock split which, in the opinion of the sole or managing underwriter, is necessary to facilitate the effectiveness of such Demand Registration. (h) Other Registration Rights. Except as provided in this Agreement, the Company shall not grant to any Persons the right to request the Company to register any equity securities of the Company or any incidental or "piggy-back" rights that are superior or pari pasu with respect to any equity security of the Company, or any securities convertible or exchangeable into or exercisable for such securities, without the prior written consent of the Sponsor Group. 2.2 Incidental Registration. (a) Requests for Incidental Registration. At any time the Company proposes to register for a Public Offering any Common Stock under the Securities Act, including registrations pursuant to Section 2.1(a) and 2.1(b), whether or not for sale for its own account, the Company will give written notice to each holder of Registrable Shares at least 20 days prior to the initial filing of such Registration Statement with the SEC of its intent to file such Registration Statement (or, if earlier, within 5 business days of receipt of a Registration Notice) and of such holder's rights under this Section 2.2. Upon the written request of any holder of Registrable Shares made within 10 days after any such notice is given by the Company (which request shall specify the Registrable Shares intended to be disposed of by such holder), the Company will effect the registration (an "Incidental Registration") under the Securities Act of all Registrable Shares which the Company has been so requested to register by the holders thereof; provided, however, that if, at any time after giving written notice of its intention to register any securities and prior to the effective date of the Registration Statement filed in connection with such Incidental Registration (each an "Incidental Registration Statement"), (i) the Company shall determine not to register such securities for its own account (provided such Company-initiated registration is not pursuant to Section 2.1(b) hereof) or to defer the registration of such securities in accordance with Section 2.1(f), or 7 (ii) the Securityholder exercising a Demand Right shall determine for any reason not to register or to delay registration of such securities, the Company or such Securityholder, as the case may be, at its election, may give written notice of such determination to each holder of Registrable Shares and, thereupon, (a) in the case of a determination not to register, the Company shall be relieved of its obligation to register any Registrable Shares under this Section 2.2 or under Section 2.1 in connection with such particular registration (but not from its obligation to pay the expenses incurred in connection therewith) and (b) in the case of a determination to delay registration, the Company shall be permitted to delay registering any Registrable Shares under this Section 2.2 or under Section 2.1 during the period that the registration of such other securities is delayed. (b) Priority on Incidental Registration. If the sole or managing underwriter of a registration advises the Company in writing that in its opinion the number of Registrable Shares and other securities requested to be included exceeds the number of Registrable Shares and other securities which can be sold in such offering without adversely affecting the distribution of the securities being offered, the price that will be paid in such offering or the marketability thereof, the Company will include in such registration the Registrable Shares and other securities of the Company in the following order of priority: (i) first, in the event of a Company-initiated registration, the greatest number of securities of the Company proposed to be included in such registration by the Company for its own account, which in the opinion of such underwriters can be so sold; and (ii) second, after all securities that the Company proposes to register for its own account have been included in the event of a Company-initiated registration, the greatest amount of Registrable Shares requested to be registered by the holders thereof which in the opinion of such underwriters can be sold in such offering without adversely affecting the distribution of the securities being offered, the price that will be paid in such offering or the marketability thereof, ratably among the holders of Registrable Shares (whether requested to be registered pursuant to Section 2.1 or 2.2) based on the respective amounts of Registrable Shares requested to be included by each such holder. 2.3 Registration on Form S-3 (a) Request for Registration. After twelve (12) months following the initial Public Offering of the Company's securities pursuant to an effective registration statement filed by the Company under the Securities Act, if FNF or any of the Sponsors request that the Company file a registration statement on Form S-3 (or any successor form to Form S-3), or any similar short-form registration statement, for a Public Offering of Registrable Shares, the reasonably anticipated gross proceeds from the sale of such Registrable Shares would exceed $25,000,000, and the Company is a registrant entitled to 8 use Form S-3 to register the Registrable Shares for such an offering, the Company shall (i) within ten (10) days of the receipt by the Company of such notice, give written notice of such proposed registration to all other Securityholders and (ii) as soon as practicable, shall use its commercially reasonable efforts to cause such Registrable Shares to be registered on such form for the offering and to cause such Registrable Shares to be qualified in such jurisdictions as the Securityholders may reasonably request together with all or such portion of the Registrable Shares of any Securityholders joining in such request as are specified in a written request received by the Company within twenty (20) days after receipt of such written notice from the Company. After the Company's first Public Offering, the Company will use its best efforts to qualify for and remain eligible to use Form S-3 registration or a similar short-form registration. For the avoidance of doubt, a registration under this Section 2.3(a) shall not be considered to be a Demand Registration for any purpose. (b) Deferral of Filing. The Company may defer the filing (but not the preparation thereof) of a Registration Statement required by Section 2.3 if, after a request is made, the Board of Directors of the Company has determined in good faith after consultation with independent outside counsel, that the filing of a Registration Statement would require disclosure in the Registration Statement of material, non-public information in order to make the statements in the Registration Statement not misleading which the Company has a bona fide business purpose for preserving as confidential, and disclosure of which would have an adverse effect on the Company or its business. The Company may defer the registration under this paragraph (b) pursuant to the preceding sentence until the earlier of (A) the date upon which such material information is disclosed to the public or disclosure would no longer be material or materially detrimental or (B) 90 days after the Company first makes such good faith determination; provided, however, that the Company shall not utilize this right to defer more than once in any twelve-month period. 2.4 Holdback Agreements. Each Securityholder agrees that if requested in connection with any Public Offering made pursuant to this Agreement for which a Securityholder has registration rights pursuant to this Article 2 by the managing underwriter or underwriters of such underwritten offering, such Securityholder will enter into an agreement with the underwriters on customary terms regarding restrictions on the ability of the Securityholders, without the prior written consent of the managing underwriter, to sell their Registrable Shares during the period commencing on the date of the final prospectus to such Public Offering and ending on the date specified by the Company and the managing underwriter; provided, that (i) the date so specified will be no later than (A) 180 days after the date of such final prospectus in the case of an initial Public Offering, and (B) 90 days after the date of such final prospectus for any subsequent Public Offering, and will be the same for all Securityholders that enter into such agreements, and (ii) all executive officers, beneficial owners of more than 5% of the Company's capital stock and directors enter into such agreements. In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to 9 the Registrable Shares of each Securityholder (and the shares or securities of every other person listed in clause (ii) above) until the end of such period. 2.5 Registration Procedures. In connection with the registration of any Registrable Shares, the Company shall effect such registrations to permit the sale of such Registrable Shares in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible: (a) Prepare and file with the SEC a Registration Statement or Registration Statements on a form available for the sale of the Registrable Shares by the holders thereof in accordance with the intended method of distribution thereof, and cause each such Registration Statement to become effective; (b) (i) Except in the case of a Shelf Registration, prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be reasonably requested by any Sponsor (if such Sponsor is registering securities pursuant to such Registration Statement) or necessary to keep such Registration Statement continuously effective for a period ending on the earlier of (A) 90 days from the effective date and (B) such time as all of such securities have been disposed of in accordance with the intended method of disposition thereof; cause the related prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such prospectus as so supplemented; and (ii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statements in compliance with the Securities Act with respect to the disposition of all Registrable Shares subject thereto for a period ending on the earlier of the date on which all the Registrable Shares subject thereto have been sold pursuant to such Registration Statement or two (2) years after effectiveness of the S-3. (c) Notify the Selling Securityholders of Registrable Shares promptly (but in any event within 2 business days), and confirm such notice in writing, (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any written comments by the SEC in respect of the Registration Statement or any request by the SEC or any other federal or state governmental authority for amendments or supplements to such Registration Statement or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threat of any proceedings for such purpose, (iv) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of Registrable Shares the Company becomes aware 10 that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 2.5(i) below cease to be true and correct in all material respects, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or any of the Registrable Shares for offer or sale in any jurisdiction, (vi) if the Company becomes aware of the happening of any event that makes any statement of a material fact made in such Registration Statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue or that requires the making of any changes in such Registration Statement, prospectus or documents so that, in the case of such Registration Statement, it will not 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, and that in the case of the prospectus, it will not 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, in light of the circumstances under which they were made, not misleading, or (vii) if for any other reason it shall be necessary to amend or supplement such Registration Statement in order to comply with the Securities Act. (d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of a prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Shares for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order at the earliest possible moment. (e) Promptly incorporate in a prospectus supplement or post-effective amendment to the applicable Registration Statement such information as the managing underwriter or underwriters, if any, or the holders of a majority of the Registrable Shares of the class being sold agree should be included therein relating to the plan of distribution with respect to such Registrable Shares; and make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; (f) Deliver to each Selling Securityholder of Registrable Shares and the underwriters, if any, without charge, as many copies of the prospectus or prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such prospectus and each amendment or supplement thereto by each of the Selling Securityholders of Registrable Shares and the underwriters or agents, if any, in connection with the offering and sale of the Registrable Shares covered by such prospectus and any amendment or supplement thereto. (g) Prior to any public offering of Registrable Shares, to use its best efforts to register or qualify, and cooperate with the Selling Securityholders of Registrable Shares, the underwriters, if any, the sales agents and their respective counsel 11 in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares for offer and sale under the securities or "blue sky" laws of such jurisdictions within the United States as any Selling Securityholder or the managing underwriters reasonably request in writing; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject. (h) Upon the occurrence of any event contemplated by Section 2.5(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Shares being sold thereunder, such prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (i) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing or sole underwriter in order to expedite or facilitate the registration or the disposition of such Registrable Shares, including obtaining for delivery to the Company and the underwriter or underwriters, if any, with copies to the holders of Registrable Shares included in such registration, a cold comfort letter from the Company's independent certified public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the managing underwriter or underwriters reasonably request, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement. (j) Comply with all applicable rules and regulations of the SEC and make generally available to its Securityholders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than 45 days after the end of any 12-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Shares are sold to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to underwriters in such an offering, commencing on the first day of the first fiscal quarter of the Company after the effectiveness of a Registration Statement, which statements shall cover said 12-month periods. (k) (i) Use its reasonable best efforts to cause all such Registrable Shares covered by such registration statement to be listed on the principal securities exchange on which Common Stock is then listed (if any), if the listing of such Registrable Shares is then permitted under the rules of such exchange, or (ii) if no Common Stock is then so listed, use its commercially reasonable efforts to, either (as the 12 Company may elect) (x) cause all such Registrable Shares to be listed on a national securities exchange or (y) secure designation of all such Registrable Shares as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 or, failing that, to secure NASDAQ authorization for such shares and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such shares with the National Association of Securities Dealers, Inc. ("NASD"). (l) Make available upon reasonable notice at reasonable times and for reasonable periods for inspection by a representative appointed by the holders of a majority of the Registrable Shares of each class covered by the applicable Registration Statement, by any managing underwriter or underwriters participating in any disposition to be effected pursuant to such Registration Statement and by any attorney, accountant or other agent retained by such sellers or any such managing underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company's officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility (subject to the entry by each party referred to in this clause (l) into customary confidentiality agreements in a form reasonably acceptable to the Company). (m) In the case of an underwritten offering, cause the senior executive officers of the Company to participate in the customary "road show" presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; provided however this right may not be exercised pursuant to a registration in which the Company is not selling securities more than once in any 12 month period without the consent of such senior executive officers. The Company may require each holder of Registrable Shares as to which any registration is being effected to furnish to the Company such information regarding such holder and the distribution of such Registrable Shares as the Company may, from time to time, reasonably request in writing; provided that, such information shall be used only in connection with such registration. The Company may exclude from such registration the Registrable Shares of any holder who unreasonably fails to furnish such information promptly after receiving such request. Each holder agrees that, upon receipt of written notice from the Company of the happening of any event of the kind described in Section 2.5(c)(ii), 2.5(c)(iv) or 2.5 (c)(v), such holder will forthwith discontinue disposition of such Registrable Shares covered by such Registration Statement or prospectus until such holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 2.5, or until it is advised in writing by the 13 Company that the use of the applicable prospectus may be resumed, and has received copies of any amendments or supplements thereto. In the case of a Shelf Registration, each holder of Registrable Shares, upon receipt of written notice (a "Suspension Notice") from the Company of the happening of any event of the kind described in Section 2.5(c) or any circumstance described in Section 2.1(f) or 2.3(b), shall forthwith discontinue disposition of the Registrable Shares pursuant to the Shelf Registration covering such Registrable Shares until (i) with respect to an event in Section 2.5(c), such holder's receipt of the copies of the writing (the "Advice") by the Company that the use of the prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the prospectus, and (ii) with respect to a circumstance described in Section 2.1(f) or 2.3(b), 90 days after receipt of the Suspension Notice. The Company shall not give a Suspension Notice until after the Shelf Registration has been declared effective and shall not give more than one Suspension Notice during any period of twelve consecutive months and in no event shall the period from the date on which any holder receives a Suspension Notice to the date on which any holder receives either the Advice or copies of the supplemented or amended prospectus contemplated by Section 2.5(c) (the "Suspension Period") exceed 90 days. In the event that the Company shall give any Suspension Notice, the Company shall use its best efforts and take such actions as are reasonably necessary to render the Advice and end the Suspension Period as promptly as practicable. 2.6 Registration Expenses. Subject to Section 2.1(d)(ii), all of the following fees and expenses incident to the performance of or compliance with this Agreement by the Company shall be borne by the Company, whether or not any Registration Statement is filed or becomes effective, (i) all registration and filing fees (including, without limitation, (A) fees with respect to filings required to be made with the NASD in connection with an underwritten offering and (B) fees and expenses of compliance with state securities or "blue sky" laws), (ii) reasonable messenger, telephone and delivery expenses, (iii) fees and disbursements of counsel for the Company, (iv) fees and disbursements of all independent certified public accountants referred to in Section 2.5(i), (v) underwriters' fees and expenses (excluding discounts, commissions, or fees of underwriters, selling brokers, dealer managers or similar securities industry professionals relating to the distribution of the Registrable Shares), (vi) Securities Act liability insurance, if the Company so desires such insurance, (vii) internal expenses of the Company, (viii) the expense of any annual audit, (ix) the fees and expenses incurred in connection with the listing of the securities to be registered on any securities exchange, (x) the fees and expenses of any Person, including special experts, retained by the Company, and (xi) shall reimburse the holders of the Registrable Shares being registered in such registration for the reasonable fees and disbursements of not more than one counsel (together with appropriate local counsel) chosen by the holders of a majority in interest of the Registrable Shares to be included in such registration and reasonably acceptable to the Company. 14 2.7 Indemnification; Contribution. (a) Indemnification by the Company. The Company shall, without limitation as to time, indemnify and hold harmless, to the fullest extent permitted by law, each holder of Registrable Shares, the officers, directors, agents, partners and employees of each of them, each Person who controls each such holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), the officers, directors, agents, partners and employees of each such controlling person and any financial or investment adviser (each, an "Indemnified Party"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, actions or proceedings (whether commenced or threatened), reasonable costs (including, without limitation, reasonable costs of preparation and reasonable attorneys' fees) and reasonable expenses (including reasonable expenses of investigation) (collectively, "Losses"), as incurred, arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus or form of prospectus or in any amendment or supplements thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the extent that the same arise out of or are based upon information furnished in writing to the Company by such Indemnified Party or the related holder of Registrable Shares expressly for use therein or (ii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration; provided, however, that the Company shall not be liable to any Person who participates as an underwriter in the offering or sale of Registrable Shares or any other Person, if any, who controls such underwriters within the meaning of the Securities Act to the extent that any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if (i) such Person failed to send or deliver a copy of the prospectus with or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim from which such Losses arise, (ii) the prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, and (iii) the Company has complied with its obligations under Section 2.5(c). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party. (b) Indemnification by Holders. In connection with any Registration Statement in which a holder of Registrable Shares is participating, such holder, or an authorized officer of such holder, shall furnish to the Company in writing such information as the Company reasonably requests for use in connection with any Registration Statement or prospectus and agrees, severally and not jointly, to indemnify, to the full extent permitted by law, the Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling persons, from and against all Losses arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus, or form of prospectus, or arising out of or based upon 15 any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information so furnished in writing by such holder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was relied upon by the Company in preparation of such Registration Statement, prospectus or form of prospectus; provided, however, that such holder of Registrable Shares shall not be liable in any such case to the extent that the holder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to the Company, and the Company failed to include such information therein. In no event shall the liability of any Selling Securityholder of Registrable Shares hereunder be greater in amount than the dollar amount of the proceeds (net of payment of all expenses) received by such holder upon the sale of the Registrable Shares giving rise to such indemnification obligation. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party. (c) Conduct of Indemnification Proceedings. If any Person shall be entitled to indemnity hereunder (an "indemnified party"), such indemnified party shall give prompt notice to the party or parties from which such indemnity is sought (the "indemnifying parties") of the commencement of any action, suit, proceeding or investigation or written threat thereof (a "Proceeding") with respect to which such indemnified party seeks indemnification or contribution pursuant hereto; provided, however, that the failure to so notify the indemnifying parties shall not relieve the indemnifying parties from any obligation or liability except to the extent that the indemnifying parties have been prejudiced by such failure. The indemnifying parties shall have the right, exercisable by giving written notice to an indemnified party promptly after the receipt of written notice from such indemnified party of such Proceeding, to assume, at the indemnifying parties' expense, the defense of any such Proceeding, with counsel reasonably satisfactory to such indemnified party; provided, however, that an indemnified party or parties (if more than one such indemnified party is named in any Proceeding) shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party or parties unless: (i) the indemnifying parties agree to pay such fees and expenses; (ii) the indemnifying parties fail promptly to assume the defense of such Proceeding or fail to employ counsel reasonably satisfactory to such indemnified party or parties; or (iii) the named parties to any such Proceeding (including any impleaded parties) include both such indemnified party or parties and the indemnifying parties or an affiliate of the indemnifying parties or such indemnified parties, and there may be one or more defenses available to such indemnified party or parties that are different from or additional to those available to the indemnifying parties, in which case, if such indemnified party or parties notifies the indemnifying parties in 16 writing that it elects to employ separate counsel at the expense of the indemnifying parties, the indemnifying parties shall not have the right to assume the defense thereof and such counsel shall be at the expense of the indemnifying parties, it being understood, however, that, unless there exists a conflict among indemnified parties, the indemnifying parties shall not, in connection with any one such Proceeding or separate but substantially similar or related Proceedings in the same jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party or parties. Whether or not such defense is assumed by the indemnifying parties, such indemnifying parties or indemnified party or parties will not be subject to any liability for any settlement made without its or their consent (but such consent will not be unreasonably withheld). The indemnifying parties shall not consent to entry of any judgment or enter into any settlement which (i) provides for other than monetary damages without the consent of the indemnified party or parties (which consent shall not be unreasonably withheld or delayed) or (ii) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party or parties of a release, in form and substance satisfactory to such indemnified party or parties, from all liability in respect of such Proceeding for which such indemnified party would be entitled to indemnification hereunder. (d) Contribution. If the indemnification provided for in this Section 2.7 is unavailable to an indemnified party or is insufficient to hold such indemnified party harmless for any Losses in respect of which this Section 2.7 would otherwise apply by its terms, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall have an obligation to contribute to the amount paid or payable by such indemnified party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and such indemnified party, on the other hand, in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such indemnifying party, on the one hand, and indemnified party, on the other hand, shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been taken by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any legal or other fees or expenses incurred by such party in connection with any Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 2.7(a) or 2.7(b) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.7(d) were determined by pro-rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in this Section 2.7(d). Notwithstanding the provisions of this Section 2.7(d), an indemnifying party that is a Selling Securityholder of Registrable Shares shall not be required to contribute any 17 amount in excess of the amount by which the net proceeds received by such indemnifying party in the offering to which such claims relates exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reasons of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. 2.8 Rule 144. At all times after the Company effects its first Public Offering, the Company shall file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder, and will take such further action as any holder of Registrable Shares may reasonably request, all to the extent required from time to time to enable such holder to sell Registrable Shares without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 or 144A or Regulation S under the Securities Act. Upon the request of any holder of Registrable Shares, the Company shall deliver to such holder a written statement as to whether it has complied with such requirements. 2.9 Underwritten Registrations. (a) No holder of Registrable Shares may participate in any underwritten registration hereunder unless such holder (A) agrees to sell such holder's Registrable Shares on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (B) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements. (b) In the case of an underwritten offering requested by holders pursuant to Section 2.1 or 2.3, the price, underwriting discount and other financial terms for each class of Registrable Shares of the related underwriting agreement shall be determined by the Securityholders initially exercising such Demand Rights or rights under Section 2.3 and be acceptable to the Company (such consent not to be unreasonably withheld or delayed). In the case of any underwritten offering pursuant to a Company initiated offering, such price, discount and other terms shall be determined by the Company, subject to the right of the holders requesting to participate pursuant to Section 2.2(a) to withdraw their request to participate in the registration after being advised of such price, discount and other terms. 2.10 No Inconsistent Agreements. The Company has not and will not, enter into any agreement with respect to the Company's securities that is inconsistent with the rights granted to the holders of Registrable Shares in this Article 2 or otherwise conflicts with the provisions hereof. 18 ARTICLE 3 TERMINATION 3.1 Termination. The provisions of this Agreement shall terminate when there shall no longer be any Registrable Shares outstanding. ARTICLE 4 MISCELLANEOUS 4.1 Notices. Any notices or other communications required or permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery, by telex, by telecopier or registered or certified mail, postage prepaid, return receipt requested, addressed as follows (or at such other address as may be substituted by notice given as herein provided): If to the Company: Fidelity National Information Services, Inc. 601 Riverside Avenue Jacksonville, FL 32204 Attention: Gregory S. Lane, Senior Vice President - Mergers & Acquisitions Counsel Facsimile: (904)357-1026 If to FNF: Fidelity National Financial, Inc. 601 Riverside Avenue Jacksonville, FL 32204 Attention: Gregory S. Lane, Senior Vice President - Mergers & Acquisitions Counsel Facsimile: (904) 357-1026 If to a Sponsor: Thomas H. Lee Partners, L.P. 100 Federal Street Boston, MA 02110 Attention: Thomas Hagerty and Seth Lawry Telephone: (617) 227-1050 Facsimile: (617) 227-3514 Texas Pacific Group 301 Commerce Street Suite 3300 Fort Worth, TX 76102 Attention: David Spuria, Esq. Telephone: (817) 871-4000 Facsimile: (817) 871-4088 19 Evercore Partners 55 East 52nd Street, 43rd Floor New York, NY 10055 Attn: Neeraj Mital Telephone: (212) 857-3197 Facsimile: (212) 857-3152 Banc of America Capital Investors, L.P. Bank of America Corporate Center 100 North Tryon Street, 25th Floor NC1-007-25-02 Charlotte, NC 28255 Attention: Robert L. Edwards, Jr. Facsimile: (704) 386-6432 with copies to: Weil, Gotshal & Manges LLP 100 Federal Street Boston, MA 02110 Attention: James Westra, Esq. Marilyn French, Esq. Facsimile: (617) 772-8333 Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 Attention: David Leinwand, Esq. Facsimile: (212) 225-3999 Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, NY 10017 Attention: Alan Schwartz Facsimile: (212) 455-2502 Kennedy Covington Lobdell & Hickman, L.L.P. Hearst Tower 214 North Tryon Street, 47th Floor Charlotte, NC 28202 Attention: T. Richard Giovannelli Facsimile: (704) 353-3184 If to any other Securityholder, at its address listed on Annex A hereof. 20 Any notice or communication hereunder shall be deemed to have been given or made as of the date so delivered if personally delivered; when receipt is acknowledged, if sent via facsimile; one business day following the day sent by overnight courier (with written confirmation of receipt); and three (3) calendar days after mailing if sent by registered or certified mail (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee). Failure to mail a notice or communication to a Securityholder or any defect in it shall not affect its sufficiency with respect to other Securityholders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it. 4.2 Governing Law; Consent to Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. Each of the parties agrees that all actions, suits or proceedings arising out of or based upon this Agreement or the subject matter hereof shall be brought and maintained exclusively in the federal and state courts of the State of New York. Each of the parties hereto by execution hereof (i) hereby irrevocably submits to the jurisdiction of the federal and state courts in the State of New York for the purpose of any action, suit or proceeding arising out of or based upon this Agreement or the subject matter hereof and (ii) hereby waives to the extent not prohibited by applicable law, and agrees not to assert, by way of motion, as a defense or otherwise, in any such action, suit or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that it is immune from extraterritorial injunctive relief or other injunctive relief, that its property is exempt or immune from attachment or execution, that any such action, suit or proceeding may not be brought or maintained in one of the above-named courts, that any such action, suit or proceeding brought or maintained in one of the above-named courts should be dismissed on grounds of forum non conveniens, should be transferred to any court other than one of the above-named courts, should be stayed by virtue of the pendency of any other action, suit or proceeding in any court other than one of the above-named courts, or that this Agreement or the subject matter hereof may not be enforced in or by any of the above-named courts. Each of the parties hereto hereby consents to service of process in any such suit, action or proceeding in any manner permitted by the laws of the State of New York, agrees that service of process by registered or certified mail, return receipt requested, at the address specified in or pursuant to Section 4.1 is reasonably calculated to give actual notice and waives and agrees not to assert by way of motion, as a defense or otherwise, in any such action, suit or proceeding any claim that service of process made in accordance with Sections 4.1 and 4.2 does not constitute good and sufficient service of process. The provisions of this Section 4.2 shall not restrict the ability of any party to enforce in any court any judgment obtained in a federal or state court of the State of New York. 4.3 Successors and Assigns. Each Securityholder may assign its rights hereunder to any purchaser or transferee of Registrable Shares; provided, however, that such purchaser or transferee shall, as a condition to the effectiveness of such assignment, 21 be required to execute a counterpart to this Agreement, whereupon such purchaser or transferee shall have the benefits of, and shall be subject to the restrictions contained in this Agreement as if such purchaser or transferee was originally included in the definition of Securityholder herein and had originally been a party hereto. 4.4 Duplicate Originals. All parties may sign any number of copies of this Agreement. Each signed copy shall be an original, but all of them together shall represent the same agreement. 4.5 Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and the remaining provisions shall not in any way be affected or impaired thereby. 4.6 No Waivers; Amendments. (a) No failure or delay on the part of the Company or any Securityholder in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Company or any Securityholder at law or in equity or otherwise. (b) Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by (i) the Company, (ii) FNF, and (iii) the Sponsor Group; provided, however, that no such amendment or waiver which adversely affects either Evercore or BACI disproportionately to any other Sponsor shall be permitted without the written consent of Evercore or BACI, as applicable. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 22 IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights' Agreement on the day and year first above written. COMPANY: Fidelity National Information Services, Inc. By: _________________________________________ Name: Title: SECURITYHOLDERS: Fidelity National Financial, Inc. By: _________________________________________ Name: Title: THOMAS H. LEE EQUITY FUND V, L.P. By: THL Equity Advisors V, LLC, its general partners By: Thomas H. Lee Partners, L.P., its sole member By: Thomas H. Lee Advisors LLC, its general partner By: _________________________________________ Name: Title: Managing Director THOMAS H. LEE PARALLEL FUND V, L.P. By: THL Equity Advisors V, LLC, its general partner By: Thomas H. Lee Partners, L.P., its sole member By: Thomas H. Lee Advisors LLC, its general partner By: _________________________________________ Name: Title: Managing Director 23 COUNTERPART SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT THOMAS H. LEE CAYMAN FUND V, L.P. By: THL Equity Advisors V, LLC, its general partner By: Thomas H. Lee Partners, L.P., its sole member By: Thomas H. Lee Advisors LLC, its general partner By: _________________________________________ Name: Title: Managing Director THOMAS H. LEE INVESTORS LIMITED PARTNERSHIP By: THL Investment Management Corp., its general partner By: _________________________________________ Name: Thomas H. Lee Title: Chief Executive Officer 24 COUNTERPART SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT PUTNAM INVESTMENTS EMPLOYEES' SECURITIES COMPANY I LLC By: Putnam Investment Holdings, LLC, its managing member By: Putnam Investments, LLC, its managing member By: _________________________________________ Name: Title: PUTNAM INVESTMENTS EMPLOYEES' SECURITIES COMPANY II LLC By: Putnam Investment Holdings, LLC, its managing member By: Putnam Investments, LLC, its managing member By: _________________________________________ Name: Title: PUTNAM INVESTMENT HOLDINGS, LLC By: Putnam Investments, LLC, its managing member By: _________________________________________ Name: Title: 25 COUNTERPART SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT TPG PARTNERS III, L.P. By: TPG GenPar III, L.P. By: TPG Advisors III, Inc. By: _________________________________________ Name: Title: TPG PARALLEL III, L.P. By: TPG GenPar III, L.P. By: TPG Advisors III, Inc. By: _________________________________________ Name: Title: TPG INVESTORS III, L.P. By: TPG GenPar III, L.P. By: TPG Advisors III, Inc. By: _________________________________________ Name: Title: FOF PARTNERS III, L.P. By: TPG GenPar III, L.P. By: TPG Advisors III, Inc. By: _________________________________________ Name: Title: 26 COUNTERPART SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT FOF PARTNERS III-B, L.P. By: TPG GenPar III, L.P. By: TPG Advisors III, Inc. By: _________________________________________ Name: Title: TPG DUTCH PARALLEL III, C.V. By: TPG GenPar Dutch, L.L.C. By: TPG Genpar III, L.P. By: TPG Advisors III, Inc. By: _________________________________________ Name: Title: TPG PARTNERS IV, L.P. By: TPG GenPar IV, L.P. By: TPG Advisors IV, Inc. By: _________________________________________ Name: Title: 27 COUNTERPART SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT EVERCORE METC CAPITAL PARTNERS II L.P. By: Evercore Partners II L.L.C., its General Partner By: _________________________________________ Name: Title: BANC OF AMERICA CAPITAL INVESTORS, L.P. By: Banc of America Capital Management, L.P., its General Partner By: BACM I GP, LLC, its General Partner By: _________________________________________ Name: Title: 28 Annex I Securityholders: THL HOLDERS: Thomas H. Lee Partners, L.P. 100 Federal Street Boston, MA 02110 Attention: Thomas M. Hagerty and Seth Lawry Facsimile: (617) 227-5514 TPG HOLDERS: Texas Pacific Group 345 California Street, Suite 3300 San Francisco, CA 94104 Attention: Jonathan Coslet and Marshall Haines Facsimile: (415) 743-1501 EVERCORE: Evercore Partners 55 East 52nd Street, 43rd Floor New York, NY 10055 Attn: Neeraj Mital Telephone: (212) 857-3197 Facsimile: (212) 857-3152 FNF: Fidelity National Financial, Inc. 601 Riverside Avenue Jacksonville, FL 32204 Attention: Gregory S. Lane, Senior Vice President - Mergers and Acquisitions Counsel Facsimile: (904) 357-1026 BACI: Banc of America Capital Investors, L.P. Bank of America Corporate Center 100 North Tryon Street, 25th Floor NC1-007-25-02 Charlotte, NC 28255 Attention: Robert L. Edwards, Jr. Facsimile: (704) 386-6432 ~~-----END PRIVACY-ENHANCED MESSAGE-----~~

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	FIDELITY NATIONAL FINANCIAL, INC.
Dated: March 15, 2005	By:	/s/ Alan L. Stinson
		Alan L. Stinson
		Executive Vice President and Chief Financial Officer