EXHIBIT 10.65.1
THIS NOTE, AND THE INDEBTEDNESS EVIDENCED HEREBY, IS SUBJECT TO THE TERMS OF A
SUBORDINATED AGREEMENT DATED AS OF ________, 20__, BY AND AMONG FIDELITY
NATIONAL FINANCIAL, INC., FIDELITY NATIONAL INFORMATION SOLUTIONS, INC. AND
WACHOVIA BANK, NATIONAL ASSOCIATION AS ADMINISTRATIVE AGENT FOR THE LENDERS
PARTY TO THE CREDIT AGREEMENT (AS SUCH TERM IS DEFINED IN THE SUBORDINATION
AGREEMENT), AS SUCH SUBORDINATION AGREEMENT MAY BE AMENDED, RESTATED, REPLACED
OR OTHERWISE MODIFIED FROM TIME TO TIME.
FIDELITY NATIONAL INFORMATION SOLUTIONS, INC.
REVOLVING SUBORDINATED PROMISSORY NOTE
$25,000,000.00 December 19, 2002
FOR VALUE RECEIVED, FIDELITY NATIONAL INFORMATION SOLUTIONS, INC., a
Delaware corporation (the "Company"), promises to pay to the order of FIDELITY
NATIONAL FINANCIAL, INC., a Delaware corporation ("FNF"), or holder (either, the
"Holder"), on the Maturity Date (as defined below), unless sooner paid as
provided in Section 4 hereof, the principal sum of TwentyFive Million Dollars
($25,000,000.00), or such lesser amount as shall equal the aggregate of the
Revolving Advances made or deemed made by the Holder to the Company hereunder,
plus accrued unpaid interest thereon. The outstanding principal balance of each
Revolving Advance made pursuant to this Note shall bear interest at the Interest
Rate from the date of such Revolving Advance to the date the principal sum of
such Revolving Advance is paid in full. Payments of interest shall be due on
each March 31, June 30, September 30 and December 31. All payments under this
Note shall be made to the order of the Holder at the Payment Office, or such
other address as Holder may designate in writing to the Company, and shall be
applied first to accrued unpaid interest, if any, and then to principal.
1. Amended and Restated Revolving Credit Agreement. This Note is issued
pursuant to that certain Amended and Restated Revolving Credit Agreement, dated
December 19, 2002 (the "Credit Agreement"), by and between FNF and the Company.
Any Holder, by taking possession hereof, shall be entitled to the benefits and
bound by the obligations set forth in the Credit Agreement. Capitalized terms
used herein without definition shall have the meanings given them in the Credit
Agreement.
2. Revolving Note. The Company may make draw-downs ("Revolving
Advances") under this Note from time to time in an aggregate amount not to
exceed the principal amount of this Note. Such Revolving Advances shall be
recorded by the Holder on the Borrower's Account, and absent manifest error, the
Revolving Advances and other disbursement dates shown on the Borrower's Account
shall be conclusive and binding on the Holder.
3. Maturity Date. The date that this Note shall mature, and the
principal amount outstanding hereunder, plus accrued unpaid interest thereon and
any charges pertaining thereto, shall become due and payable (the "Maturity
Date") shall be September 24, 2007.
4. Prepayments. The Company may voluntarily prepay this Note either in
whole or in part without penalty or premium. The principal amount of Revolving
Advances made hereunder and repaid may be re-borrowed. Such repayments shall be
recorded by the Holder on the Borrower's Account, and, absent manifest error,
the repayments and repayment dates shown on the Borrower's Account shall be
conclusive and binding on the Holder.
5. Waivers. The Company hereby waives diligence, presentment for
payment, demand, protest, notice of non-payment, notice of dishonor, notice of
protest, and any and all other notices and demands whatsoever. The Company shall
remain bound under this Note until all principal and interest and any other
amounts that are payable hereunder have been paid in full, notwithstanding any
extensions or renewals granted with respect to this Note or the release of any
party liable hereunder. The Company, and any and all endorsers hereof, also
waive the right to plead any and all statutes of limitations as a defense to any
demand on this Note or any and all obligations or liabilities arising out of or
in connection with this Note, to the fullest extent permitted by law.
6. Events of Default. Any of the following events shall constitute an
event of default by the Company under this Note (an "Event of Default"):
(a) the failure of the Company to pay to Holder, on the Maturity
Date, any and all principal amounts due and owing under this Note;
(b) the failure of the Company to pay to Holder interest
payments when due; or
(c) the occurrence of any other Event of Default pursuant to the
Credit Agreement.
Upon the occurrence of any Event of Default, as defined hereinabove, at
Holder's option, Holder may declare immediately due and payable, and on any such
declaration there shall become immediately due and payable, the entire unpaid
principal balance of this Note, together with all accrued and unpaid interest
under this Note and any other sums owing at the time of such declaration
pursuant to this Note, and Holder shall be entitled to exercise all rights and
remedies available to Holder hereunder and under applicable law, all of which
rights and remedies shall be cumulative. Without limiting the generality of the
foregoing, upon the occurrence of an Event of Default, the interest rate at
which interest shall accrue on the principal sum and any other amounts that are
due under this Note shall increase to the Default Rate until all such amounts
have been paid in full.
7. Subordination. The repayment of any and all Revolving Advances
hereunder is hereby expressly subordinated to the extent and in the manner
specified in that certain Subordination Agreement dated December ___, 2002 by
and among the Company, FNF and Wachovia Bank, National Association as
administrative agent for the lenders party to the Credit Agreement (as such
terms is defined in the Subordination Agreement).
8. No Waiver by Holder. Any delay or omission on the part of Holder to
exercise any of Holder's rights or remedies hereunder or under applicable law,
including, without limitation, the right to accelerate amounts owing under this
Note, shall not be deemed a waiver of that right or remedy or of any other right
or remedy of Holder in respect thereof. The acceptance by Holder of any payment
pursuant to the terms of this Note which is less than payment in full of all
amounts due and payable at the time of such payment shall not constitute a
waiver of the right to exercise any of the Holder's rights or remedies under
this Note or under applicable law at that time or at any subsequent time or
nullify any prior exercise of any such rights or remedies without the express
written consent of Holder, except as and to the extent provided to the contrary
by applicable law.
9. Governing Law. This Note shall be governed by and construed according
to and enforced under the internal laws of the State of California without
giving effect to its choice of laws rules.
10. Binding Nature. The provisions of this Note shall be binding on the
Company and shall inure to the benefit of the Holder.
11. Usury Savings Provisions. In the event Holder receives any sums
under this Note which constitute interest in an amount in excess of that
permitted by any applicable law, then, all such sums constituting interest in
excess of that permitted to be paid under applicable law shall, at Holder's
option, either be credited to the payment of principal owing hereunder or
returned to the Company.
12. Severability. If, but only to the extent that, any provision of this
Note shall be invalid or unenforceable, then, such offending provision shall be
deleted from this Note, but only to the extent necessary to preserve the
validity and effectiveness of this Note to the fullest extent permitted by
applicable law.
FIDELITY NATIONAL INFORMATION SOLUTIONS, INC.
By:
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Its: Executive Vice President -
Chief Financial Officer
