Conditions of Effectiveness This Amendment shall become effective as of the date first above written (the “Amendment Effective Date”) when, and only when, the Paying Agent shall have received counterparts of this Amendment executed by the Borrower and all of the Lenders or, as to any of the Lenders, advice satisfactory to the Paying Agent that such Lender has executed this Amendment and the Paying Agent shall have additionally received all of the following documents, each such document (unless otherwise specified) dated the date of receipt thereof by the Paying Agent (unless otherwise specified) and in sufficient copies for each Lender, in form and substance satisfactory to the Paying Agent (unless otherwise specified) and in sufficient copies for each Lender:
(a) A certificate signed by a duly authorized officer of the Borrower, dated the Amendment Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 of the Credit Agreement, as amended hereby, are correct on and as of the Amendment Effective Date; and
(ii) No event has occurred and is continuing that constitutes a Default;
(b) The Consent attached hereto, duly executed by each Guarantor existing on the Amendment Effective Date;
(c) Certified copies of the resolutions of the Board of Directors of the Borrower approving this Amendment and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment and the other Loan Documents;
(d) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and the other documents to be delivered hereunder or thereunder; and
(e) A favorable opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President, Secretary and General Counsel for the Borrower, substantially in the form of Exhibit C to the Credit Agreement and as to such other matters as any Lender through the Paying Agent may reasonably request.
Conditions to Effectiveness of Amendment This Amendment shall become effective upon the satisfaction of the following conditions; provided that all such conditions are satisfied on or prior to December 31, 2009 (the date that all such conditions are so satisfied, the “Amendment No. 1 Effective Date”):
(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 applicable Loan Party, each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Amendment from the Borrower, Holdings, the Required Lenders, the Majority Revolving Facility Lenders and the Majority Term Facility Lenders;
(ii) the FNIS Loan Party Guaranty substantially in the form of Exhibit I hereto, duly executed by FNIS and each FNIS Subsidiary Guarantor;
(iii) executed counterparts of the Borrower Supplemental Agreement (together with all schedules contemplated thereby, which schedules shall be reasonably satisfactory to the Administrative Agent);
(iv) a guaranty supplement substantially in the form of Appendix I hereto or such other form of guaranty or guaranty supplement to guarantee the Guaranteed Obligations (as defined in the FNIS Credit Agreement) in form and substance reasonably satisfactory to the FNIS Administrative Agent (the “FNIS Credit Guaranty”), duly executed by Group Members that are Loan Parties immediately prior the Amendment No. 1 Effective Date;
(v) evidence (in form reasonably satisfactory to the Administrative Agent and the FNIS Administrative Agent, as the case may be) of the identity, authority and capacity of each Responsible Officer of each Loan Party (including any FNIS Loan Party) executing this Amendment, the Borrower Supplemental Agreement, the FNIS Loan Party Guaranty or the FNIS Credit Guaranty;
(vi) such documents and certifications as the Administrative Agent or the FNIS 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) opinions of counsel to Holdings, the Borrower and FNIS addressed to the Administrative Agent and each Lender, providing legal opinions substantially similar to those set forth on Appendix II hereto (with standard exceptions and qualifications reasonably acceptable to the Administrative Agent);
(viii) opinions of counsel to Holdings, the Borrower and FNIS addressed to the FNIS Administrative Agent and each Consenting Lender that will receive FNIS Term Loans pursuant to the terms of the Debt Exchange Agreement, providing legal opinions substantially similar to those set forth on Appendix III hereto (with standard exceptions and qualifications reasonably acceptable to the FNIS Administrative Agent);
(ix) a certificate signed by a Responsible Officer of the Borrower (in such person’s capacity as an officer of the Borrower and not personally) certifying as to the satisfaction of the conditions set forth in Section 14(f) and (g) of this Amendment;
(x) a certificate signed by a Responsible Officer of FNIS (in such person’s capacity as an officer of FNIS and not personally) attesting to the Solvency of FNIS and the Restricted Subsidiaries (taken as a whole) and of Holdings and the Group Members (taken as a whole) after giving effect to the FNIS Merger, this Amendment and each of the other transactions contemplated to occur on the Amendment No. 1 Effective Date;
(xi) copies (certified to be true and complete by the Borrower) of any amendments to the FNIS Merger Agreement and the disclosure schedules thereto;
(xii) a certificate signed by a Responsible Officer of FNIS (in such person’s capacity as an officer of FNIS and not personally) certifying as to the satisfaction of the conditions set forth in Section 14(h) of this Amendment;
(xiii) executed counterparts of Amendment No. 1 to the Guarantee and Collateral Agreement, which sets forth the provisions set forth in Section 12 hereof, from the Borrower, Holdings, each subsidiary of Holdings party thereto and the Administrative Agent;
(xiv) an acknowledgement and confirmation signed by a Responsible Officer of FNIS Merger Sub (A) acknowledging that (1) after giving effect to the FNIS Merger it shall continue to be a Loan Party, Group Member and Restricted Company under the Loan Documents with the same force and effect as if originally named therein as “Holdings”, (2) each reference to “Holdings” in the Loan Documents, or any schedule, exhibit, appendix, annex or addendum thereto, shall be deemed to be to it and (3) it shall be bound by all of the terms and provisions of the Loan Documents to which Holdings is a party and that it shall be deemed to have ratified and affirmed its continued obligations, liabilities and indebtedness of Holdings thereunder, and (B) confirming that the representations and warranties set forth in Section 13 of this Amendment shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date, except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date;
(xv) (A) a copy of the articles of organization, including all amendments thereto, of FNIS Merger Sub, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of FNIS Merger Sub as of a recent date, from such Secretary of State, (B) a certificate of the Secretary or Assistant Secretary of FNIS Merger Sub dated the Amendment No. 1 Effective Date and certifying (1) that attached thereto is a true and correct copy of the limited liability company agreement of FNIS Merger Sub as in effect on the Amendment No. 1 Effective Date and at all times since a date prior to the date of the resolutions described in clause (2) below, (2) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors or other governing body of FNIS Merger Sub authorizing the execution, delivery and performance of the Loan Documents to which it is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (3) that the articles of organization of FNIS Merger Sub have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (A) above, and (4) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of FNIS Merger Sub, (C) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (B) above; and (D) such other documents as the Lenders or the Administrative Agent may reasonably request; and
(xvi) evidence in form and substance reasonably satisfactory to the Administrative Agent that each Consenting Lender shall have committed to purchase accounts receivable under the FNIS A/R Securitization Facility in an amount sufficient to satisfy the conditions set forth in Section 2(a) of this Amendment.
(b) All fees and expenses required to be paid on or before the Amendment No. 1 Effective Date shall have been paid in full in cash.
(c) The FNIS Merger Agreement and any material agreement relating thereto shall not have been altered, amended or otherwise changed or supplemented in a manner material and adverse to the Lenders or any condition therein waived in a manner material and adverse to the Lenders, in each case without the consent of the Administrative Agent (which shall not be unreasonably withheld or delayed). The FNIS Merger shall have been consummated, or substantially concurrently consummated, in accordance in all material respects with the terms of the FNIS Merger Agreement.
(d) There shall not have occurred between December 31, 2008 and the Amendment No. 1 Effective Date any event, occurrence, change, state of circumstances or condition which, individually or in the aggregate has had or is reasonably likely to have a “Material Adverse Effect” (as defined in the FNIS Merger Agreement and set forth for ease of reference in the annex attached hereto as Annex D) with respect to FNIS, Holdings or FNIS Merger Sub (in its capacity as the surviving entity of its merger with Holdings).
(e) The Lenders shall have received (i) audited consolidated financial statements of FNIS for the fiscal year ended December 31, 2008 and (ii) such financial information for periods ending after December 31, 2008 as shall be publicly available prior to the Amendment No. 1 Effective Date (or as may be otherwise delivered to the Borrower pursuant to the FNIS Merger Agreement). The Lenders shall have received pro forma consolidated financial statements as to FNIS and its Subsidiaries (after giving effect to the FNIS Merger) for (x) the 12-month period ending on the last day of the fiscal quarter most recently ended at least forty-five days prior to the Amendment No. 1 Effective Date and (y) the fiscal year ended December 31, 2008 and any subsequent interim period, and forecasts of balance sheets, income statements and cash flow statements for (A) each fiscal quarter of 2009 and 2010 ended after the Amendment No. 1 Effective Date and (B) each fiscal year ending on December 31, 2009 through the fiscal year ending on December 31, 2013.
(f) The representations and warranties of the Borrower and Holdings contained in Section 13 of this Amendment shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date.
(g) No Default shall exist with respect to FNIS, FNIS Merger Sub, Holdings and their respective Subsidiaries (including the Borrower) at the time of, or after giving effect to, the Restructuring Transactions and this Amendment.
(h) The representations and warranties of FNIS contained in Annex E attached hereto (and made by FNIS pursuant to the Borrower Supplemental Agreement) shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date, except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date.
(i) The Debt Exchange Agreement shall have been duly executed by all the parties thereto and the Debt Exchange shall have been consummated, or substantially concurrently consummated, in accordance with the terms of the Debt Exchange Agreement.
(j) The FNIS Revolving Loan Purchases and the FNIS Term Loan Purchases (other than in respect of the Debt Exchange) described in Section 2 and Section 3 of this Amendment shall have been consummated, or substantially concurrently consummated, in accordance with such sections.
(k) The Administrative Agent shall have received the results of a recent lien search with respect to FNIS Merger Sub in jurisdictions in which filings are to be made pursuant to the Loan Documents, and such search shall reveal no Liens on any of the assets of FNIS Merger Sub except for Liens permitted by Section 7.1 of the Credit Agreement or discharged on or prior to the Amendment No. 1 Effective Date pursuant to documentation satisfactory to the Administrative Agent.
(l) Each document (including any Uniform Commercial Code financing statement) required by the Security Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Lenders, a perfected Lien on the assets of FNIS Merger Sub which constitute Collateral, prior and superior in right to any other Person (other than with respect to Liens expressly permitted by Section 7.1 of the Credit Agreement), shall be in proper form for filing, registration or recordation.