EXHIBIT 4.1
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 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.: 000000XX0
5.25% NOTE DUE MARCH 15, 2013
FIDELITY NATIONAL FINANCIAL, 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 March 15, 2013.
Interest Payment Dates: March 15 and September 15
Regular Record Dates: March 1 and September 1
Authenticated: March 11, 2003
Dated: March 11, 2003
FIDELITY NATIONAL FINANCIAL, INC. [seal]
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxxx Xxxx X. Xxxxxxx
Executive Vice President and Executive Vice President and
General Counsel Chief Financial Officer
Certificate of Authentication
The Bank of New York as Trustee, certifies that this is one of the
Securities of the series described in the within-mentioned Indenture.
Dated: March 11, 2003
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THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxxx Xxxxxxx
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Authorized Signatory
FIDELITY NATIONAL FINANCIAL, INC.
5.25% NOTE DUE MARCH 15, 2013
1. INTEREST. Fidelity National Financial, Inc., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this
Security at the rate of 5.25% per annum. The Company shall pay interest
semiannually on March 15 and September 15 of each year (each an "Interest
Payment Date"), commencing September 15, 2003 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 March 11, 2003. 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 March 1 or September 1 immediately preceding any
Interest Payment Date, except that interest payable on March 15, 2013 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 Bank of New York (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 August 20, 2001 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
Financial, Inc., 00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 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) the sum of the present values of the
remaining
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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 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 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
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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 of each series of
Securities 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 or correct any mistake or to correct
or supplement any provision which may be inconsistent with any other provision
or to create another series of Securities and establish its terms or to make any
other provisions with respect to matters arising under the Indenture, provided
such action does not adversely affect the interests of any Holder.
9. DEFAULTS AND REMEDIES. Any of the following shall constitute an Event
of Default:
(a) default in the payment of any interest on this Security when
the same becomes due and payable, and continuance of such default for a period
of 30 days; or
(b) default in the payment of any principal of or premium, if
any, on this Security when the same becomes due and payable at its Maturity
(whether at Stated Maturity, upon redemption, or otherwise); or
(c) default in the performance, or breach, of any covenant or
warranty of the Company in the Indenture or this Security (other than a covenant
or warranty for which the consequences of breach or nonperformance are addressed
elsewhere in this Section 9 or a covenant or warranty which has expressly been
included in the Indenture, whether or not by means of a supplemental indenture,
solely for the benefit of Securities of a series other than this Security), and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of this Security a written notice specifying such default or
breach and requiring it to be remedied, and stating that such notice is a
"Notice of Default" hereunder; or
(d) default in the payment when due of amounts payable under any
bond, note, debenture or other evidence of Debt of the Company (including such
default with respect to any other series of Securities), or under any mortgage,
indenture or other instrument under which there may be issued or by which there
may be secured or evidenced any Debt of the Company, whether such Debt exists on
the date of the Indenture or shall hereafter be incurred or created, in an
aggregate amount exceeding $20,000,000, or default under any such evidence of
Debt (including default with respect to any other series of Securities), or
under any such other instrument, which results in such Debt in an aggregate
principal amount exceeding $20,000,000 becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable, and such outstanding amount shall not be paid in full, such
acceleration shall not be rescinded or annulled or such Debt shall not be paid
in full, or there shall not be deposited into trust a sum of money sufficient to
pay in full such outstanding amount or such Debt, within a period of 10 days
after there shall have
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been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of this Security a written notice specifying such default and
requiring the Company to cause such outstanding amount to be paid in full, such
acceleration to be rescinded or annulled, or such Debt to be paid in full, or to
deposit into trust a sum of money sufficient to pay in full such outstanding
amount or Debt and stating that such notice is a "Notice of Default" hereunder;
or
(e) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case or proceeding, (B) consents to the
entry of an order for relief against it in an involuntary case or proceeding or
to the commencement of any bankruptcy or insolvency case or proceeding against
it, (C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or (D) makes a general assignment for the
benefit of its creditors; or
(f) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that (A) is for relief against the Company in an
involuntary case, (B) appoints a Custodian of the Company or for all or
substantially all of its property, (C) orders the winding up or liquidation of
the Company, (D) adjudges the Company a bankrupt or insolvent or (E) approves as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect to the Company; and any such order or decree
described in this clause (f) remains unstayed and in effect for 60 days.
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, the
predecessor corporation shall be released from those obligations.
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12. TRUSTEE DEALINGS WITH COMPANY. The Bank of New York, 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.
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).
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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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