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EXHIBIT 4.3
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
7.30% NOTE DUE AUGUST 15, 2011
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 August 15, 2011.
Interest Payment Dates: February 15 and August 15
Regular Record Dates: February 1 and August 1
Authenticated: August 20, 2001
Dated: August 20, 2001
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ XXXX X. XXXXXXX By: /s/ XXXXXX XXXXXX
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Xxxx X. Xxxxxxx Xxxxxx Xxxxxx
Executive Vice President Executive Vice President, Legal
and Chief Financial Officer
Certificate of Authentication
The Bank of New York, as Trustee, certifies that this is one of the
Securities described in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: /s/ XXXXXXX XXXXXXX
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Authorized Signatory
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FIDELITY NATIONAL FINANCIAL, INC.
7.30% NOTE DUE AUGUST 15, 2011
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 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, 2002, 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 August 20, 2001. 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 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 scheduled payments of principal and interest
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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.
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"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. 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
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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 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
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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.
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).
[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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