Exhibit 4.4
First Supplemental Indenture
FIRST SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), dated as
of November , 2005, between Fidelity National Financial, Inc., a Delaware
corporation (the "Company") and The Bank of New York, a New York banking
corporation (the "Trustee").
WHEREAS, pursuant to the Indenture dated as of August 20, 2001, between
the Company and the Trustee (the "Base Indenture"), as amended by the
certificates of Executive Vice President and Chief Financial Officer and Vice
President and Assistant Corporate Secretary dated as of August 20, 2001 and
March 11, 2003 (the "Officers' Certificates"); the Base Indenture as amended by
the relevant Officers' Certificate in respect of each series of Securities (as
defined below), the "Original Indenture"; and the Original Indenture as amended
hereby, the "Indenture"; the Company issued its 7.30% Notes due August 15, 2011
in the aggregate principal amount of $250,000,000 (CUSIP No. ▇▇▇▇▇▇▇▇▇) and its
5.25% Notes due March 15, 2013 in the aggregate principal amount of $250,000,000
(CUSIP No. ▇▇▇▇▇▇▇▇▇) (the "Securities");
WHEREAS, the Company is party to a Separation Agreement with Fidelity
National Title Group, Inc. ("FNT") whereby FNT agreed to conduct exchange offers
in which FNT would offer to exchange newly-issued notes of FNT for the
Securities;
WHEREAS, in connection with such exchange offers and in accordance with
Section 8.2 of the Original Indenture, the Company has obtained the consent of
the holders of a majority of the aggregate principal amount of each series of
the outstanding Securities to amend the Original Indenture;
NOW, THEREFORE, for and in consideration of the premises, it is
mutually covenanted and agreed for the benefit of all holders of the Securities
as follows:
Section 1. (a)(i) The definition of "Bankruptcy Law" set forth in
Section 1.1 of the Original Indenture is hereby deleted in its entirety.
(ii) The definition of "Consolidated Net Tangible Assets" set forth in
Section 1.1 of the Original Indenture is hereby deleted in its entirety.
(iii) The definition of "Excluded Debt" set forth in Section 1.1 of the
Original Indenture is hereby deleted in its entirety.
(iv) The definition of "Restricted Subsidiary" set forth in Section 1.1
of the Original Indenture is hereby deleted in its entirety.
(v) The definition of "Secured Debt" set forth in Section 1.1 of the
Original Indenture is hereby deleted in its entirety.
(b) Section 5.1 of the Original Indenture is hereby amended by
replacing the entirety of the text of each of clauses (4), (5), (6) and (7)
thereof with the words "Intentionally omitted."
(c) Article 7 of the Original Indenture is hereby amended by replacing
the entirety of the text thereof, including the entirety of the text of each of
Sections 7.1 and 7.2 thereof, with the words: "Intentionally omitted."
(d) Section 9.4 of the Original Indenture is hereby amended by
replacing the entirety of the text thereof with the words: "Intentionally
omitted."
(e) Section 9.5 of the Original Indenture is hereby amended by
replacing the entirety of the text thereof with the words: "Intentionally
omitted."
(f) Section 9.8 of the Original Indenture is hereby amended by
replacing the entirety of the text thereof with the words: "Intentionally
omitted."
(g) Section 9.9 of the Original Indenture is hereby amended by
replacing the entirety of the text thereof with the words: "Intentionally
omitted."
(h) Section 9.10 of the Original Indenture is hereby amended by
replacing the entirety of the text thereof with the words: "Intentionally
omitted."
Section 2. Any breach of or failure of the Company to comply with any
provision of Sections 7.1, 7.2, 9.4, 9.5, 9.8, 9.9 or 9.10 of the Original
Indenture (whether occurring before or after the execution of this Supplemental
Indenture) shall no longer constitute a Default or an Event of Default or have
any other consequence under the Indenture and the Company is released from any
and all obligations thereunder.
Section 3. For the avoidance of doubt, the rights of the holders of
each series of Securities are modified by this Supplemental Indenture, the
provisions of which shall be controlling in the event of any conflict between
such provisions and any provisions set forth in the Securities of any series.
Without limiting the foregoing, notwithstanding anything to the contrary set
forth in Section 9 of the Securities of either series, the only Events of
Default with respect to such Securities are those set forth in Sections 5.1(1),
(2) and (3) of the Indenture.
Section 4. The Trustee accepts this Supplemental Indenture and agrees
to execute the trust created by the Indenture as hereby supplemented upon the
terms and conditions set forth in the Indenture, including the terms and
provisions defining and limiting the liabilities and responsibilities of the
Trustee, which terms and provisions shall in like manner define and limit its
liabilities and responsibilities in the performance of the trust created by the
Indenture as hereby supplemented.
Section 5. The Indenture, supplemented as hereinabove set forth, is in
all respects ratified and confirmed, and the terms and conditions thereof,
supplemented as hereinabove set forth, shall be and remain in full force and
effect.
Section 6. The recitals contained in this Supplemental Indenture shall
be taken as the statements of the Company, and the Trustee shall have no
liability or responsibility for their correctness.
Section 7. This Supplemental Indenture shall become effective with
respect to each series of the Securities upon, and simultaneously with, the
consummation of the exchange offer in connection with that series.
Section 8. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 9. This Supplemental Indenture may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Section 10. Capitalized terms used but not otherwise defined herein
have the meanings assigned to them in the Original Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first written above.
FIDELITY NATIONAL FINANCIAL, INC.
By:
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Name:
Title:
Attest:
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Name:
Title:
THE BANK OF NEW YORK
By:
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Name:
Title: