SECOND AMENDED AND RESTATED INTERCOMPANY NOTE (BKFS)
Exhibit 10.6
SECOND AMENDED AND RESTATED INTERCOMPANY NOTE
(BKFS)
| US $619,200,000 | Dated: March 30, 2015 |
WHEREAS, Fidelity National Financial, Inc., a Delaware corporation (the “Lender”), Black Knight Financial Services, LLC, a Delaware limited liability company (the “Borrower”) and ServiceLink Holdings, LLC, entered into that certain Amended and Restated Intercompany Note, dated as of May 30, 2014 (the “Existing Note”), in an original principal amount owed by the Borrower of $670,800,000;
WHEREAS, after the date of the Existing Note, the Borrower repaid an aggregate principal amount due under the Existing Note equal to $51,600,000 such that after giving effect to such repayment, the aggregate outstanding principal amount owed by the Borrower thereunder was $619,200,000; and
WHEREAS, the Lender and the Borrower have agreed to amend and restate the Existing Note with respect to the obligations of the Borrower thereunder as provided in this Second Amended and Restated Intercompany Note (this “Note”).
FOR VALUE RECEIVED, the Borrower, hereby unconditionally promises to pay to the order of the Lender, the principal sum of six hundred nineteen million, two hundred thousand United States dollars (US $619,200,000) (the “Loan”), on the terms set forth below.
1. Repayment. The Borrower hereby unconditionally promises to repay the Loan to the Lender on January 2, 2024 (the “Maturity Date”), in an amount equal to the remainder of the outstanding principal amount of the Loan together with accrued and unpaid interest on the outstanding principal amount of the Loan to but excluding the date of such payment. The Borrower shall have the option to prepay, at any time and from time to time, all or any portion of the outstanding principal amount Loan, without premium or penalty.
2. Place of Payment. All amounts payable hereunder shall be payable to the Lender by wire transfer of immediately available funds into an account or accounts designated by the Lender in writing from time to time. All payments shall be made in lawful money of United States and shall include all fees and costs, including any currency exchange costs, applicable to such payments.
3. Interest. The principal amount of the Loan remaining from time to time unpaid and outstanding shall bear interest at a rate of 10.0% per annum, calculated on the basis of a year of 365 days. Such interest shall be calculated and payable quarterly on the last day of each March, June, September and December of each fiscal year. For the avoidance of doubt, any interest that accrued on the Tranche A Loan (as defined in the Existing Note) under the Existing Note prior to the date hereof that has not been paid to the Lender shall be due and payable on the interest payment date immediately succeeding the date hereof.
4. Creditor Rights. In the event that (i) the Borrower shall fail to make any scheduled payment of interest hereunder prior to maturity, (ii) the Borrower shall be dissolved or adjudicated insolvent, or (iii) the Borrower shall cease engaging in business operations, (iv) any legal proceeding by any judgment creditor is commenced against the Borrower to attach or levy upon any material property of the Borrower, which has not dismissed within forty-five (45) days, (v) the Borrower shall become the subject of any bankruptcy (including, without limitation, any reorganization under Chapter 11 of Title 11 of the United States Code and /or its foreign equivalent), insolvency, receivership, liquidation (including, without limitation, any liquidation under Chapter 7 of Title 11 of the United States Code and/or its foreign equivalent), or dissolution under applicable law or statute, or (vi) the Borrower shall make a general assignment for the benefit of its creditors, then, in each case of clauses (i) through (vi) above, the Lender,
[NOTE]
at its option, shall have the right to declare the Loan owed by the Borrower outstanding hereunder to be immediately due and payable without notice or demand. In such event, the Borrower shall be required to make immediate payment of the entire outstanding principal balance of Loan, together with all accrued and unpaid interest thereon.
5. Miscellaneous.
(a) Submission to Jurisdiction; Waivers; Amendments. THE LENDER AND THE BORROWER HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN THE STATE OF DELAWARE, AND THEY HEREBY IRREVOCABLY AGREE THAT ANY ACTION MAY BE HEARD AND DETERMINED IN SUCH DELAWARE STATE OR FEDERAL COURT. THE LENDER AND THE BORROWER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST THE BORROWER RISING OUT OF THIS NOTE OR BY REASON OF ANY OTHER CAUSE OR DISPUTE WHATSOEVER BETWEEN THE BORROWER AND THE LENDER OF ANY KIND OR NATURE. No delay or failure on the part of the Lender in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by the Lender of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy. The rights, remedies, powers and privileges provided herein are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. Time is of the essence in respect of the performance of all payment obligations under this Note. The Borrower hereby waives presentment and demand for payment, notice of dishonour, protest and notice of protest of this Note. No modification or waiver of any provision of this Note or consent to departure therefrom shall be effective unless in writing and signed by the Borrower and the Lender.
(b) Governing Law. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE AND NO CONFLICTS OF LAW PRINCIPLES WILL APPLY TO THIS NOTE.
(c) Severability. In the event that any provision of this Note would be held in any jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Note or affecting the validity or enforceability of such provision in any jurisdiction.
(d) Counterparts; ▇▇▇▇▇▇▇ Effect; Successors and Assigns. This Note may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract. This Note shall be assignable by the Borrower without the prior written consent of the Lender. Subject to the foregoing, this Note and every part hereof shall be binding upon the undersigned and their respective successors and assigns, and shall inure to the benefit of and be enforceable by the Lender and any of its successors and assigns.
6. Amendment and Restatement. With respect to the Tranche A Loan, the terms and conditions of the Existing Note are amended as set forth in, and restated in their entirety and superseded by, this Note. Nothing in this Note shall be deemed to be a novation of any of the obligations under the Existing Note. Notwithstanding any provisions of this Note, the execution and delivery of this Note and the incurrence of the obligations hereunder shall be in substitute for, but not in payment of, the obligations owed by the Borrower with respect to the Tranche A Loan under the Existing Note.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have executed this Note as of the date first written above,
| THE BORROWER: | ||
| BLACK KNIGHT FINANCIAL SERVICES, LLC | ||
| By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Name: |
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Title: |
Senior Vice President | |
| THE LENDER: | ||
| FIDELITY NATIONAL FINANCIAL, INC. | ||
| By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Name: |
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Title: |
President | |
[Second Amended and Restated Intercompany Note (FNF and BKFS)]