EXHIBIT 4.6
THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A
DEPOSITORY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. 1 CUSIP No.:
FORM OF 7.30% NOTE DUE AUGUST 15, 2011
FIDELITY NATIONAL TITLE GROUP, INC., a Delaware corporation, promises
to pay to CEDE & CO., or registered assigns, the principal sum of Two Hundred
and Fifty Million Dollars ($250,000,000) on August 15, 2011.
Interest Payment Dates: February 15 and August 15
Regular Record Dates: February 1 and August 1
Authenticated: November , 2005
Dated: November , 2005
FIDELITY NATIONAL TITLE GROUP, INC.
By: By:
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Name: Name:
Title: Title:
Certificate of Authentication
__________________________, as Trustee, certifies that this is one of
the Securities described in the within-mentioned Indenture.
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as Trustee
By:
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Authorized Signatory
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FIDELITY NATIONAL TITLE GROUP, INC.
7.30% NOTE DUE AUGUST 15, 2011
1. INTEREST. Fidelity National Title Group, Inc., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount of
this Security at the rate of 7.30% per annum. The Company shall pay interest
semiannually on February 15 and August 15 of each year (each an "Interest
Payment Date"), commencing February 15, 2006, until the principal is paid or
made available for payment. Interest on this Security will accrue from the most
recent date to which interest has been paid or duly provided for or, if no
interest has been paid, from the later of August 15, 2005 and the last date for
which interest was paid on the 7.30% Fidelity National Financial, Inc. note due
August 15, 2011 (CUSIP No. 000000XX0), for which this Security was exchanged.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
2. METHOD OF PAYMENT. The Company shall pay interest on this Security
(except defaulted interest, if any, which shall be paid on such special payment
date as may be fixed by the Company to Holders of record on such special record
date as may be fixed by the Company) to the persons who are registered Holders
at the close of business on the February 1 or August 1 immediately preceding any
Interest Payment Date, except that interest payable on August 15, 2011 shall be
payable to the persons to whom principal is payable on such date. A holder must
surrender this Security to a Paying Agent to collect principal payments. The
Company shall pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially,
(the "Trustee") shall act as Paying Agent and Registrar. The Company may change
or appoint any Paying Agent, Registrar or co-Registrar without notice. The
Company or any of its Subsidiaries may act as Paying Agent, Registrar or
co-Registrar.
4. INDENTURE. The Company issued this Security under an Indenture dated
as of November , 2005 between the Company and the Trustee (the "Indenture").
The terms of this Security include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 ("TIA") as
in effect on the date of the Indenture. This Security is subject to all such
terms, and Holders are referred to the Indenture and the TIA for a statement
thereof. Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Indenture.
The Company shall furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to: Fidelity
National Title Group, Inc., 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000,
Attention: Corporate Secretary.
5. PERSONS DEEMED OWNERS. The registered Holder or Holders of this
Security shall be treated as owners of it for all purposes.
6. OPTIONAL REDEMPTION. This Security is redeemable at the option of
the Company, at any time in whole or from time to time in part, at a price (the
"Redemption Price") equal to the greater of (i) 100% of the principal amount of
this Security to be redeemed and (ii)
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the sum of the present values of the remaining scheduled payments of principal
and interest on the principal amount of this Security to be redeemed, exclusive
of interest accrued to the date of redemption (the "Redemption Date"),
discounted to the Redemption Date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the applicable Treasury Yield plus 30
basis points, plus accrued and unpaid interest thereon to the Redemption Date.
The principal amount of this Security called for redemption shall become due on
the Redemption Date.
For purposes of determining the Redemption Price, the
following definitions are applicable:
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of this Security that would
be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of this Security.
"Comparable Treasury Price" means, with respect to any
Redemption Date:
the average of the bid and the asked prices for the Comparable
Treasury Issue, expressed as a percentage of its principal
amount, at 4:00 p.m. on the third business day preceding that
Redemption Date, as set forth on "Telerate Page 500," or such
other page as may replace Telerate Page 500; or
if Telerate Page 500, or any successor page, is not displayed
or does not contain bid and/or asked prices for the Comparable
Treasury Issue at that time, the average of the Reference
Treasury Dealer Quotations obtained by the Trustee for that
Redemption Date, after excluding the highest and lowest of
such Reference Treasury Dealer Quotations, or, if the Trustee
is unable to obtain at least four such Reference Treasury
Dealer Quotations, the average of all Reference Treasury
Dealer Quotations obtained by the Trustee.
"Independent Investment Banker" means Xxxxxx Brothers Inc. and
any successors or, if it is unwilling or unable to select the
applicable Comparable Treasury Issue, an independent investment banking
institution of national standing appointed by the Trustee and
reasonably acceptable to the Company.
"Reference Treasury Dealer" means Xxxxxx Brothers Inc. and any
successors and four other primary United States government securities
dealers in New York City selected by the Independent Investment Banker
(each, a "Primary Treasury Dealer"); provided that, if any of the
foregoing ceases to be a Primary Treasury Dealer, the Company shall
substitute another Primary Treasury Dealer therefor.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, an average, as
determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue for this Security, expressed in each case as
a percentage of its principal amount, quoted in writing to the Trustee
by the
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Reference Treasury Dealer at 5:00 p.m., New York City time, on the
third business day preceding the Redemption Date.
"Treasury Yield" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual equivalent yield to
maturity, computed as of the third business day immediately preceding
the Redemption Date, of the Comparable Treasury Issue, assuming a price
for the Comparable Treasury Issue, expressed as a percentage of its
principal amount, equal to the applicable Comparable Treasury Price for
the Redemption Date.
7. UNCLAIMED MONEY. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent shall pay the money
back to the Company at its request. After that, Holders entitled to the money
must look to the Company for payment unless an abandoned property law designates
another person.
8. AMENDMENT, SUPPLEMENT. Subject to certain exceptions, the Indenture
or this Security may be amended or supplemented with the consent of at least a
majority in aggregate principal amount of the Holders affected by the amendment.
Without the consent of any Holder, the Company and the Trustee may amend or
supplement the Indenture or this Security to, among other things, cure any
ambiguity, defect or inconsistency, to create another series of Securities and
establish its terms or to make any other change, provided such action does not
adversely affect the rights of any Holder.
9. DEFAULTS AND REMEDIES. This Security has the Events of Default set
forth in Sections 5.1(1), (2), (3), (5) and (6) of the Indenture.
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If an Event of Default with respect to this Security occurs
and is continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount of this Security, by written notice to the Company (and, if
given by the Holders, to the Trustee), may declare the principal of and accrued
interest, if any, on the aggregate principal amount of this Security to be due
and payable, and upon any such declaration such principal and interest, if any,
shall be immediately due and payable.
At any time after such a declaration of acceleration with
respect to this Security has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as provided in the
Indenture, the Holders of a majority in aggregate principal amount of this
Security, by written notice to the Trustee, may rescind and annul such
declaration and its consequences as provided in the Indenture.
The Holders of a majority in aggregate principal amount of
this Security by written notice to the Trustee may waive any past Default or
Event of Default with respect to this Security and its consequences except (a) a
Default or Event of Default in the payment of the principal of, or premium, if
any, or interest on, this Security or (b) in respect of a covenant or provision
hereof which pursuant to the Indenture cannot be amended or modified without the
consent of each Holder of this Security. Upon any such waiver, such Default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured.
10. AMOUNT UNLIMITED. The aggregate principal amount of Securities
which may be authenticated and delivered under the Indenture is unlimited. The
Securities may be issued from time to time in one or more series. The Company
may from time to time, without the consent of the existing Holders of this
Security, issue additional Securities of the series of which this Security is a
part on substantially the same terms and conditions as those of this Security.
11. SUCCESSOR CORPORATION. When a successor corporation assumes all the
obligations of its predecessor under this Security and the Indenture under
Article 7 of the Indenture, the predecessor corporation shall be released from
those obligations.
12. TRUSTEE DEALINGS WITH COMPANY. , as Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its affiliates, and may
otherwise deal with the Company or its affiliates, as if it were not Trustee.
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13. NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under this Security or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. Each
Holder by accepting this Security waives and releases all such liability. The
waiver and release are part of the consideration for the issue of this Security.
14. DISCHARGE OF INDENTURE. The Indenture contains certain provisions
pertaining to defeasance, which provisions shall for all purposes have the same
effect as if set forth herein.
15. AUTHENTICATION. This Security shall not be valid until the Trustee
signs the certificate of authentication on the other side of this Security.
16. GOVERNING LAW. This Security shall be governed by and construed in
accordance with the internal laws of the State of New York.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
[Remainder of Page Intentionally Left Blank]
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ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the
form below: I or we assign and transfer this Security to
(Insert assignee's social security or tax ID number)
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(Print or type assignee's name, address, and zip code)
and irrevocably appoint,
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agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Date:
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Your signature:
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(Sign exactly as your name appears
on the other side of this Security)
Signature
Guarantee:
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