Exhibit 10.15
NOVATION
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease"), effective as of September 27,
2005, is by and between FIDELITY INFORMATION SERVICES, INC., an Arkansas
corporation ("Landlord"), and FIDELITY NATIONAL TITLE GROUP, INC., a Delaware
corporation ("Tenant"), with reference to the following recitals.
WHEREAS, Landlord is the owner of certain real property and improvements
comprising a corporate campus located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in the city of
Jacksonville, county of ▇▇▇▇▇, state of Florida; and
WHEREAS, Landlord previously entered into a Lease Agreement dated as of
January 1, 2005 (the "FNF Lease") with Fidelity National Financial, Inc., a
Delaware corporation ("FNF"), for the leasing to FNF of a portion of Landlord's
real property and improvements; and
WHEREAS, pursuant to an Assignment and Assumption Agreement of even date
herewith between FNF and Tenant, Tenant has assumed, with the consent of
Landlord, all of FNF's rights and obligations under the FNF Lease; and
WHEREAS, Landlord and Tenant wish to enter into a novation of the rights
and obligations under the FNF Lease, as assumed by and assigned to Tenant, so
that Tenant is the clear party in interest in the leasing of the applicable
portion of Landlord's real property and improvements as more particularly
described herein;
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
promises set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
agree as follows:
1. PREMISES. Landlord hereby leases to Tenant 121,076 rentable square feet of
office space located on the ground floor, 4th, 10th, 11th and 12th floors of the
13-story office building located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
and 218 rentable square feet of space in the building designated as Building 2
located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (collectively, the
"Premises"). The parties acknowledge that the buildings in which the Premises
are located are two of several buildings comprising a corporate campus at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the "Corporate Campus"). The parties
further acknowledge and agree that, initially hereunder, the Premises
constitutes 25% ("Tenant's Share") of the 484,586 rentable square feet of space
at the corporate campus and for the purposes of this Lease, the term "Buildings"
shall be deemed the entire corporate campus and not just the buildings in which
the Premises are located. The parties understand and acknowledge that Tenant's
Share may by mutual agreement increase or decrease from time to time during the
term of this Lease, in which case the parties shall execute and deliver
amendment(s) hereto memorializing corresponding changes in (i) rentable square
footage of the Premises, (ii) Tenant's Share and (iii) monthly Base Rent.
2. TERM. The initial term of this Lease shall be for three (3) years
commencing January 1, 2005 ("Commencement Date") and terminating on December
31, 2007 ("Initial Term").
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3. RENT.
3.1 BASE RENT. Tenant shall pay to Landlord base rent ("Base Rent"), at an
annual rate of $23.05 per rentable square foot, in equal monthly installments of
$232,566.81 without prior notice or demand, in advance, on the first day of each
calendar month at such place as Landlord may direct, in writing. If the Term
commences on a day other than the first day of a calendar month, Tenant shall
pay to Landlord, on or before the Commencement Date of the Term, a pro rata
portion of the monthly installment of Base Rent, such pro rata portion to be
based on the actual number of calendar days remaining in such partial month
after the Commencement Date of the Term. If the Term shall expire on other than
the last day of a calendar month, such monthly installment of Base Rent shall be
prorated for each calendar day of such partial month. If any portion of Base
Rent or other sum payable to Landlord hereunder shall be due and unpaid for more
than fifteen (15) days after written notice from Landlord to Tenant that such
payment has not been received, it shall thereafter bear interest at a rate equal
to twelve percent (12%) per annum (the "Default Rate").
3.2 ADDITIONAL RENT. In addition to paying Base Rent, for each calendar
year commencing with calendar year 2005, Tenant shall pay as additional rent
("Additional Rent" and, together with Base Rent, collectively, the "Rent")
Tenant's Share of Landlord's reasonable estimate of operating expenses for the
entire Buildings ("Operating Expenses") that are in excess of the Operating
Expenses applicable to the 2004 base year (the "Base Year"), which for the
purposes of this Lease, the Tenant's Share of Operating Expenses in the Base
Year are $23.05 per rentable square foot per year. Landlord reasonably estimates
Tenant's Additional Rent for the calendar year 2005 is $5.44 per rentable square
foot or $54,887.79 per month, which when combined with the Base Rent shall
result in a monthly Rent payment of $287,454.60, which is equal to $28.49 per
rentable square foot for 2005. Commencing January 1, 2005, and otherwise as set
forth herein, Tenant shall pay Additional Rent at the same times and in the same
manner as Base Rent. Landlord shall adjust Additional Rent on an annual basis in
2006 and 2007 based on the same above principles. Tenant shall be liable to
Landlord for the entire cost (as opposed to Tenant's Share) of Landlord's costs
of providing any services or materials exclusively to Tenant.
3.2.1 Calculation and Payment. Landlord shall deliver to Tenant on
or before the first day of March following the end of each year following the
Base Year (an "Expense Year") a statement setting forth (i) the amount Tenant
paid as Rent for the applicable Expense Year, and (ii) the actual amount of
Tenant's Share of Operating Expenses for the applicable Expense Year. If the
amount Tenant paid as Rent for the applicable Expense Year exceeds the actual
amount of Tenant's Share of Operating Expenses for the applicable Expense Year,
then Landlord shall credit such difference on Tenant's next payment(s) of Rent.
If the amount Tenant paid as Rent for the applicable Expense Year was less than
the actual amount of Tenant's Share of Operating Expenses for the applicable
Expense Year, then Tenant shall pay such difference as Additional Rent to
Landlord on Tenant's next payment of Rent. Landlord's failure to furnish such
statement for any Expense Year in a timely manner shall not prejudice Landlord
from enforcing its rights hereunder. Even if the Lease term has expired and
Tenant has vacated the Premises, if an excess or shortfall exists when the final
determination is made, Tenant shall immediately pay or receive a credit of such
excess or shortfall.
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3.2.2 Items Included in Operating Expenses. Except as otherwise set
forth herein, the term "Operating Expenses" includes all expenses, costs, and
amounts of every kind that Landlord pays or incurs during any Expense Year
because of or in connection with the ownership, operation, management,
maintenance, or repair of the Buildings, including:
3.2.2.1 Tax expenses (except for excess profits taxes,
franchise taxes, gift taxes, capital stock taxes, inheritance and
succession taxes, estate taxes, federal and state income taxes, and
other taxes applied or measured by Landlord's general or net income;
3.2.2.2 The cost of supplying utilities;
3.2.2.3 The cost of operating, managing, maintaining, and
repairing utility, mechanical, sanitary, storm drainage, and
elevators;
3.2.2.4 The cost of supplies and tools and of equipment,
maintenance, and service contracts in connection with those
systems;
3.2.2.5 The cost of providing telephone-related
telecommunications services and equipment;
3.2.2.6 The cost of providing mail delivery services;
3.2.2.7 The cost of landscaping;
3.2.2.8 The cost of licenses, certificates, permits and
inspections;
3.2.2.9 The cost of contesting the validity or
applicability of government enactments that may affect the
Operating Expenses;
3.2.2.10 The costs incurred in connection with the
implementation and operation of a transportation program;
3.2.2.11 The cost of insurance carried by Landlord in
amounts reasonably determined by Landlord;
3.2.2.12 The cost of parking area maintenance, repair, and
restoration, including resurfacing, repainting, restriping, and
cleaning;
3.2.2.13 The cost of providing security in and around the
Buildings, including but not limited to the installation, operation,
and maintenance of security equipment and the wages, salaries, and
other compensation and benefits of all persons engaged in providing
security in and around the Buildings;
3.2.2.14 The cost of building depreciation and common area
furniture, fixtures, and equipment amortized over the useful life of
such items including, but not limited to, such items located in the
lobbies of the Building and the corporate gym and cafeteria located
on the ground floor of the Building; and
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3.2.2.15 Subject to the provisions of Section 3.2.3, below,
the cost of items considered capital repairs, replacements,
improvements and equipment under generally accepted accounting
principles consistently applied or otherwise ("Capital Items")
amortized over the useful life of such items, including financing
costs, if any, incurred by Landlord after the effective date of the
Lease for any capital improvements installed or paid for by
Landlord.
3.2.2.16 Any other costs of the Landlord included in the
calculation of Operating Expenses for that calendar year and not
otherwise specifically identified herein.
3.2.3 Items Excluded from Operating Expenses. Landlord and Tenant
hereby expressly acknowledge and agree that the following items shall be
excluded from the calculation of Operating Expense items:
3.2.3.1 Repairs or other work occasioned by the exercise
of right of eminent domain;
3.2.3.2 Leasing commissions, attorneys' fees, costs and
disbursements and other expenses, all of which are incurred in the
connection with negotiations or disputes with Tenants, other
occupants or prospective tenants;
3.2.3.3 Renovating or otherwise improving or decorating,
painting or redecorating leased space for tenants or other occupants
or vacant tenant space, other than ordinary maintenance provided to
all tenants, except in all common areas;
3.2.3.4 Landlord's costs of electricity and other services
sold separately to tenants for which Landlord is entitled to be
reimbursed by such tenants as an additional charge over and above
the base rent and operating expense or other rental adjustments
payable under the Lease with such tenant, and domestic water
submetered and separately billed to tenants;
3.2.3.5 Expenses in connection with services or other benefits
of a type which Tenant is not entitled to receive under the Lease
but which are provided to another tenant or occupant;
3.2.3.6 Cost incurred due to violation by Landlord or any
tenant of the terms and conditions of any Lease;
3.2.3.7 Interest on debt or amortization payments on any
mortgage or mortgages and under any ground or underlying leases
or lease;
3.2.3.8 Any compensation paid to clerks, attendants or
other persons in commercial concessions operated by Landlord;
3.2.3.9 Any particular items and services for which Tenant
otherwise reimburses Landlord by direct payment over and above Base
Rent and Operating
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Expense adjustment, including but not limited to any services
covered in any transition services agreement such as data management
services, interexchange services (i.e., private line, paging,
cellular), corporate voicemail, and electronic messaging services
(i.e., Exchange 2000, Active directory, and SMTP routing and
support);
3.2.3.10 Advertising and promotional expenditures;
3.2.3.11 Any expenses for which Landlord is compensated
through proceeds of insurance;
3.2.3.12 Any and all costs arising from the release of
hazardous materials or substances (as defined by applicable laws in
effect on the date the Lease is executed) in or about the Premises,
the Buildings or the Land in violation of applicable law including,
without limitation, hazardous substances in the ground water or
soil, not placed by Tenant in the Premises, the Buildings, or the
land on which the Buildings are situated;
3.2.3.13 Costs incurred in connection with upgrading the
Buildings to comply with violations of disability, life, fire and
safety codes, ordinances, statutes, or other laws in effect prior to
the effective date of the Lease, including, without limitation, the
Americans with Disabilities Act (42 U.S.C. 12101 et seq.) ("ADA")
and any penalties or damages incurred due to such non-compliance;
provided, however, Tenant shall pay Tenant's share of the amortized
costs incurred by Landlord to comply with ADA violations cited
during the term of this Lease; and provided further however, Tenant
shall bear one hundred percent (100%) of the costs associated with
ADA violations cited with respect to alterations made by Tenant;
3.2.3.14 Any and all costs associated with the maintenance and
operation of the data center located on the Corporate Campus
provided, however, that Tenant shall pay Tenant's Share of
landscaping and parking costs associated with such data center; and
3.2.3.15 Any and all costs associated with the telephone
switch space leased by Landlord to Alltel Corporation, provided,
however, that Tenant shall pay Tenant's Share of landscaping and
parking costs associated with such space.
3.3 AUDIT. Tenant shall have the right at all reasonable times within
sixty (60) days after Landlord has provided Tenant with a statement of the
actual Operating Expenses, and at its sole expense, to audit Landlord's books
and records relating to this Lease for that Expense Year. Should such an audit
disclose a discrepancy between actual Operating Expense and what Tenant paid for
Tenant's Share of such Operating Expenses and such discrepancy is equal to or
greater than two percent (2%), Landlord shall not only refund the discrepancy
amount to Tenant but also pay for the actual cost of such audit upon being
billed therefor by Tenant.
4. USE OF PREMISES. Tenant shall have the right to use and occupy the Premises
for the purpose of general office. Landlord covenants and agrees that throughout
the term of this Lease,
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Tenant shall be entitled to a reasonable number of parking spaces for its
employees, customers and visitors.
5. QUIET ENJOYMENT. Landlord warrants to Tenant that Landlord is the
owner of the Buildings, and that Landlord may rightfully enter into this
Lease. Landlord shall protect, defend and indemnify Tenant against any
interference with Tenant's use and quiet enjoyment of the Premises.
6. TAXES. Landlord shall be responsible for the payment of all taxes assessed on
the Premises during the Term, subject to Tenant's obligation to reimburse
Landlord for Tenant's Share thereof, and Tenant shall be responsible for the
payment of taxes assessed upon any of Tenant's personal property located on the
Premises. Notwithstanding any contrary provision herein, Tenant shall pay prior
to delinquency any rent tax, sales tax or service tax generated as result of
this Lease.
7. INSURANCE. Tenant shall pay its pro rata share of all premiums for fire
insurance, extended coverage insurance, liability insurance, "other perils"
insurance, and other insurance carried by Landlord on or with respect to the
Premises. Tenant's pro rata share of the insurance premiums, regardless of the
manner in which they are to be paid, shall be deemed to be additional rental due
under this Lease. If the premiums should increase or decrease at any time,
Tenant's pro rata share and Tenant's payments shall be appropriately adjusted.
7.1 LIABILITY INSURANCE. Tenant and Landlord shall each separately
maintain at all times during the Initial Term and any Renewal Term and keep in
force for their mutual benefit, commercial general liability insurance against
claims for personal injury, death or property damage occurring in, on or about
the Premises or sidewalks or areas adjacent to the Premises to afford protection
to the limit of not less than $5,000,000 combined single limit. Such insurance
may be covered under a blanket policy covering the Premises and other locations
of Tenant or an affiliate corporation or entity. Certificates of all policies of
insurance shall be delivered to the party requesting the certificates or parties
designated by the party requesting the certificates upon written request.
7.2 WAIVER OF SUBROGATION. Both Tenant and Landlord agree to seek a waiver
of subrogation clause from their respective insurers which establishes a waiver
of the insurer's subrogation against Landlord or Tenant as the case may be for
any property loss (real/personal property or improvements/betterments) caused by
the other. Any policy or policies of insurance procured by Landlord or Tenant,
covering direct or indirect property loss, shall include a waiver of subrogation
clause in favor of the other party as the case may be.
8. UTILITIES. Landlord and Tenant agree that the Buildings are already connected
for sewer, water, gas, and electricity. Subject to Tenant's obligations to pay
Tenant's Share of the cost Landlord incurs in supplying utilities to the common
areas, Tenant shall pay all utility expenses incurred by Tenant in connection
with Tenant's use of the Premises (collectively, "Tenant's Utility Expenses").
In the event utility service is interrupted to the Premises due to the need for
maintenance and repair to the utility lines, Landlord shall immediately commence
restoration and repairs of the lines and conduits in order that said utility
service shall be resumed at the earliest possible time. If Landlord shall fail
to make such repairs after written notice from Tenant,
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Tenant may do so at Landlord's expense. Additionally, should there be an
interruption in the utilities for more than 24 hours due to the Landlord's gross
negligence, rent shall be abated until the utilities are restored.
9. MAINTENANCE AND REPAIRS. Structural portions of the Premises, including the
roof, foundation, exterior walls and load bearing interior walls, shall be
maintained and repaired by Landlord except to the extent repairs are made
necessary by the acts of Tenant. Except for the repairs and maintenance Landlord
is specifically obligated to make under this Section, Tenant shall maintain and
keep the entire Premises including all partitions, doors, ceiling, fixtures,
equipment and appurtenances thereof in good order, condition and repair,
reasonable wear and tear excepted at the sole expense of Tenant. To the extent
an HVAC system serves the Premises exclusively, Tenant shall be responsible for
maintaining an HVAC service contract for routine filter changing and general
upkeep. Landlord may disapprove the contractor, provided however, its approval
may not be unreasonably withheld, conditioned or delayed.
10. COMMON AREA MAINTENANCE. Landlord shall keep the common area in good repair
during the term or extension thereof, reasonable wear and tear excepted.
11. ALTERATIONS AND IMPROVEMENTS. Tenant shall have the right at any time
throughout the term of this Lease and any extensions hereof, to make or cause to
be made, any alterations, additions, or improvements, or install or cause to be
installed any trade fixture, signs, floor covering, interior or exterior
painting or lighting, plumbing fixtures, shades or awnings, as Tenant may deem
necessary or suitable with Landlord's prior written approval, which approval
shall not be unreasonably withheld or delayed. Upon the expiration of the
Initial Term of this Lease, Tenant shall have the option to remove such
alterations, decorations, additions or improvements made by it, provided any
damage to Premises resulting from such removal is repaired. Also, upon the
expiration of the Initial Term of this Lease, Tenant if requested by Landlord
shall remove any signs and repair any damages to the Premises resulting from
such removal. During the term, Tenant shall not make any alterations, additions,
improvements, non-cosmetic changes or other material changes to the Premises
without the prior written approval of Landlord, which approval shall not be
unreasonably withheld or delayed. Notwithstanding the foregoing, Tenant shall be
permitted to make Minor Alterations (as defined below) without Landlord's prior
written consent. Minor Alterations, as used herein, shall be defined as any
alterations, improvements, etc. made to the Premises (excluding the facade
thereof) which do not affect the structure of the Building, their systems or
equipment. If Landlord approves any alterations, additions, improvements, etc.,
Landlord shall notify Tenant, in writing, along with Landlord's approval notice,
of whether Tenant shall, upon termination of this Lease, either: (i) remove any
such alterations or additions and repair any damage to the Buildings or the
Premises occasioned by their installation or removal and restore the Premises to
substantially the same condition as existed prior to the time when any such
alterations or additions were made, or (ii) reimburse Landlord for the cost of
removing such alterations or additions and the restoration of the Premises.
12. FIRE OR CASUALTY. If more than twenty-five percent (25%) of the Premises or
the use, occupancy or access to or of the Premises shall be destroyed in whole
or in part by fire or other casualty, Tenant may in its reasonable discretion
terminate this Lease. If less than twenty-five percent (25%) of the Premises
shall be destroyed in whole or in part by fire or casualty, the Rent
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due during the remainder of the Lease term shall be reduced in proportion to the
area destroyed, effective on the date of the casualty. Within thirty (30) days
after the date of a fire or other casualty, Landlord must inform Tenant if the
Premises and the office buildings will be rebuilt. If the Premises is to be
rebuilt and Tenant elects not to terminate the Lease, the Premises and office
buildings must be rebuilt and ready for occupancy within ninety (90) days of
date of fire or other casualty. Landlord and Tenant agree and covenant that
neither shall be liable to the other for loss arising out of damage to or
destruction of the Premises or contents thereof when such loss is caused by any
perils included within, and covered by, standard fire and extended coverage
insurance policy of the state of Florida. This agreement shall be binding
whether or not such damage or destruction be caused by negligence of either
party or their agents, employees or visitors. Landlord agrees to carry fire and
extended coverage to the extent required by its lender, and if there is no
lender, in an amount satisfactory to Landlord.
13. EMINENT DOMAIN. If more than twenty-five percent (25%) of the Premises (or
the use, occupancy or access to or of the Premises) shall be taken or condemned
by any governmental or quasi-governmental authority for any public or
quasi-public use or purpose (including sale under threat of such a taking), or
if the owner elects to convey title to the condemnor by a deed in lieu of
condemnation, then Tenant may in its discretion terminate the Lease and be
relieved from further liability hereunder. If less than twenty -five percent
(25%) of the Premises (or the use, occupancy or access to or of the Premises)
shall be taken or condemned by any governmental or quasi-governmental authority
for any public or quasi-public use or purpose (including sale under threat of
such a taking), or if Tenant elects not to terminate this Lease, the Rent due
during the remainder of the Lease term shall be reduced in proportion to the
area taken, effective on the date physical possession is taken by the condemning
authority; provided, however, that in the event Tenant cannot reasonably operate
its business at the Premises due to such partial taking, Tenant shall be
permitted to terminate this Lease by written notice to Landlord.
14. TENANT'S DEFAULT.
14.1 Any other provisions in this Lease notwithstanding, it shall be an
event of default ("Event of Default") under this Lease if: (i) Tenant fails to
pay any installment of rent or any other sum payable by Tenant hereunder when
due and such failure continues for a period of ten (10) days after written
notice from Landlord to Tenant that such payment has not been received, or (ii)
Tenant fails to observe or perform any other material covenant or agreement of
Tenant herein contained and such failure continues after written notice given by
or on behalf of Landlord to Tenant for more than thirty (30) days, provided,
however, that if such non-monetary Event of Default by Tenant cannot reasonably
be cured within such thirty (30) day period, and provided further that Tenant is
proceeding with due diligence to effect a cure of said Event of Default, no
Event of Default hereunder shall be declared by Landlord if Tenant continues to
proceed with diligence to cure said Event of Default, but in no event shall such
cure period extend beyond ninety (90) days following notice from Landlord of
such violation, default or breach, or (iii) Tenant files a petition commencing a
voluntary case, or has filed against it a petition commencing an involuntary
case, under the Federal Bankruptcy Code (Title 11 of the United States Code), as
now or hereafter in effect, or under any similar law, or files or has filed
against it a petition or answer in bankruptcy or for reorganization or for an
arrangement pursuant to any state bankruptcy law or any similar state law, and,
in the case of any such involuntary action, such action shall not be dismissed,
discharged or denied within sixty (60) days after the
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filing thereof, or Tenant consents or acquiesces in the filing thereof, or (iv)
a custodian, receiver, trustee or liquidator of Tenant or of all or
substantially all of Tenant's property or of the Premises shall be appointed in
any proceedings brought by or against Tenant and, in the latter case, such
entity shall not be discharged within sixty (60) days after such appointment or
Tenant consents to or acquiesces in such appointment, or (v) Tenant shall
generally not pay Tenant's debts as such debts become due, or shall make an
assignment for the benefit of creditors, or shall admit in writing its inability
to pay its debts generally as they become due. The notice and grace period
provisions in clauses (i) and (ii) above shall have no application to the Events
of Default referred to in clauses (iii) through (v) above.
14.2 If Tenant shall fail to make any payment of rent when due or if
Tenant shall fail to keep and perform any express written covenant of this Lease
and shall continue in default for a period of ten (10) days after Tenant has
received written notice of such default and demand of performance from Landlord,
Landlord may commence judicial proceedings, provided, however, if any default
shall occur (other than in the payment of rent) which cannot be cured within a
period of thirty (30) days and Tenant, prior to the expiration of thirty (30)
days from and after the giving of notice as aforesaid, commences to eliminate
such default and proceeds diligently to take steps to cure the same, Landlord
shall not have the right to declare the term ended by reason thereof for an
additional period of sixty (60) days.
14.3 In the event of any such Event of Default, Landlord at any time
thereafter may at its option exercise any remedies available to Landlord at law
or in equity, including, without limitation, one or more of the following
remedies:
(i) Termination of Lease. Landlord may terminate this Lease, by
written notice to Tenant, without any right by Tenant to reinstate its rights by
payment of rent due or other performance of the terms and conditions hereof.
Upon such termination Tenant shall immediately surrender possession of the
Premises to Landlord, and Landlord shall immediately become entitled to receive
from Tenant an amount equal to the difference between the aggregate of all rent
reserved under this Lease for the balance of the Initial Term or Renewal Term,
as the case may be, and the fair rental value of the Premises for that period,
determined as of the date of such termination, and reduced by the amount
Landlord may obtain upon reletting, discounted to present value at the rate of
ten percent (10%).
(ii) Reletting. With or without terminating this Lease, as Landlord
may elect, Landlord may, by summary proceedings, re-enter and repossess the
Premises, or any part thereof, and lease them to any other person upon such
terms as Landlord shall deem reasonable, for a term within or beyond the term of
this Lease; provided, that any such reletting prior to termination shall be for
the account of Tenant, and Tenant shall remain liable for (i) all rent and other
sums which would be payable under this Lease by Tenant in the absence of such
expiration, termination or repossession, less (ii) the net proceeds, if any, of
any reletting effected for the account of Tenant after deducting from such
proceeds all of Landlord's actual expenses, attorneys' fees, employees'
expenses, reasonable alteration costs, expenses of preparation for such
reletting and all other actual costs and expenses incurred as a result of
Tenant's breach of this Lease. Landlord shall use commercially reasonable
efforts to relet the Premises. If the Premises are at the time of default sublet
or leased by Tenant to others, Landlord may, as Tenant's agent, collect rents
due from any subtenant or other tenant and apply such rents to the
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rent and other amounts due hereunder without in any way affecting Tenant's
obligation to Landlord hereunder.
(iii) Injunction. In the event of breach by either party of any
provision of this Lease, the other party shall have the right of injunction and
the right to invoke any remedy allowed at law or in equity in addition to other
remedies provided for herein.
(iv) No Exclusive Right. No right or remedy herein conferred upon or
reserved to Landlord or Tenant is intended to be exclusive of any other right or
remedy herein or by law provided, but each shall be cumulative and in addition
to every other right or remedy given herein or now or hereafter existing at law
or in equity or by statute.
(v) Expenses. In the event that either Landlord or Tenant exercises
any of the remedies provided herein, the wrongful party shall pay to the other
all actual expenses incurred in connection therewith, including reasonable
attorneys' fees.
15. LANDLORD'S DEFAULT. If Landlord shall be in default or shall fail or refuse
to perform or comply with any of his obligations under this Lease and shall
continue in default for a period of thirty (30) days after Tenant has given
Landlord written notice of such default and demand of performance, Tenant may
remedy the same and deduct the cost thereof from subsequent installments of rent
or terminate the Lease and recover from Landlord any and all damages Tenant may
have incurred due to such default or failure. Upon any default by Landlord under
this Lease, Tenant may, except as otherwise specifically provided in this Lease
to the contrary, exercise any of its rights provided at law or in equity.
16. ASSIGNMENT AND SUB-LETTING. Tenant shall not have the right to assign,
sublet, transfer, or encumber this Lease or its rights hereunder or any part
thereof at any time without the Landlord's prior written consent, except for the
Permitted Transfers (defined below). A "Permitted Transfer" means an assignment
or sublet to (i) any entity controlled by, controlling, or under common control
with Tenant (a "Tenant Affiliate") or a Tenant Affiliate, including without
limitation FNF, or (ii) any entity with which Tenant or a Tenant Affiliate may
merge or consolidate, which acquires all or substantially all of the assets or
shares of stock of Tenant or a Tenant Affiliate, or (iii) any entity that is the
successor in the event of a reorganization. In instances other than Permitted
Transfers, Landlord agrees not to withhold or delay its written consent if to do
so would be commercially unreasonable. In the event of any assignment of this
Lease by Tenant, Tenant shall not be and is not relieved of any liability under
any and all of its covenants and obligations contained in or derived from this
Lease arising out of any act, occurrence or omission occurring after said
assignment; provided, however that the Tenant's assignee assumes all obligations
of Tenant hereunder and attorns to Landlord for such obligations. Landlord may
assign this Lease in connection with the sale or financing of the Demised
Premises provided that (i) no such assignment may impose upon Tenant any
obligations greater than set forth in the Lease; and (ii) Landlord gives notice
to Tenant within thirty (30) days following the effective date of the assignment
which contains the assignee's name, address, telephone number, and the name of
the individual handling the affairs relating to this Lease. Any rents received
by Landlord hereunder, which in fact belong to the assignee of Landlord, shall
be held in trust by Landlord and forwarded immediately to the assignee of
Landlord. In the event of any assignment or sublease, Tenant shall remain
responsible for the
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payment of rent and for the performance of all terms, covenants and conditions
undertaken by Tenant pursuant to this Lease unless otherwise agreed to by
Landlord in writing.
17. HOLDING OVER. In the event Tenant remains in possession of the Premises
after the expiration of the Initial Term or a Renewal Term without executing a
new Lease, Tenant shall occupy the Premises from month to month at a rental rate
of 150% of the applicable rental rate during the last month of the term, subject
to all of the covenants of this Lease insofar as consistent with such a tenancy.
The provisions of this Section 17 shall not be deemed to limit or constitute a
waiver of any other rights or remedies of Landlord provided herein or at law.
18. SIGNAGE. Landlord and Tenant hereby agree that FNF has retained and shall
retain, throughout the term of the Lease, the signage rights it presently has on
the exterior of the Buildings, the monument signage at Riverside Avenue,
directory and suite entry signage. Landlord and Tenant agree that the only other
signage that may appear on the exterior of the Buildings and on the exterior
monument signage during the term hereof shall be that of Landlord, Tenant or
FNF. Until such time as Landlord is a publicly traded company or experiences a
change of control (i.e., another person or entity other than FNF possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of Landlord, whether through the ownership of voting
securities, by contract, or otherwise), any proposed change by Landlord of the
monument and building signage as it exists on the Commencement Date of this
Lease shall require Tenant's prior written consent, which may be withheld by
Tenant in its sole and absolute discretion, and Landlord if granted such consent
shall solely bear the cost of any such change. Until such time as Landlord is a
publicly traded company or experiences a change of control (as defined above),
Landlord agrees that it shall not, without Tenant's prior written consent (which
may be withheld in Tenant's sole and absolute discretion), cause any impairment
to the visibility of Tenant's existing signage, if any, or install any
additional signage on the monument or any of the Buildings. Beginning within a
reasonable time of prior to Landlord becoming a public company or experiencing a
change of control, Landlord and Tenant shall discuss and agree upon reasonable
Landlord signage rights so that as of the date that Landlord is a public company
or experiences a change of control it will be able to affix its name and/or logo
in one or more locations on the building and monuments in a manner that is
reasonably acceptable to Tenant.
19. HAZARDOUS MATERIALS. Landlord and Tenant agree to indemnify and hold
harmless the other from any and all claims, damages, fines, judgments,
penalties, costs, liabilities or losses (including, without limitation, any and
all sums paid for settlement of claims, attorneys fees, consultant and expert
fees) arising during or after the lease term from or in connection with the
presence or suspected presence of hazardous substances in, on or beneath the
Premises, unless the hazardous substances are present as the result of
negligence, willful misconduct or other acts of the party otherwise so
indemnified, its agents, employees, contractors or invitees. Without limitation
of the foregoing, this indemnification shall include any and all costs incurred
due to any investigation by a federal, state or local agency or political
subdivision, unless the hazardous substances are present solely as the result of
negligence, willful misconduct or other acts of the party otherwise so
indemnified, its agents, employees, contractors or invitees. This
indemnification shall specifically include any and all costs due to hazardous
substances which flow, diffuse, migrate or percolate into, ontoor under the
Premises after the Commencement Date. Each of the parties agree to comply with
all laws, codes, rules, and regulations of the
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United States, the State of Florida. Tenant agrees that it will not store, keep,
use, sell, dispose of or offer for sale in, upon or from the Premises any
article or substance which may be prohibited by any insurance policy in force
from time to time covering the Buildings nor shall Tenant keep, store, produce
or dispose of on, in or from the Premises or the Buildings any substance which
may be deemed a hazardous substance or infectious waste under any state, local
or federal rule, statute, law, regulation or ordinance as may be promulgated or
amended from time to time. As used herein, "hazardous substance" means any
substance which is toxic, ignitable, reactive, or corrosive and which is
regulated by any local government, the state in which the Premises is located,
or the United States government or poses a threat to human health or the
environment, and includes any and all material and substances which are defined
as "hazardous waste", "toxic substances" or a "hazardous substance" pursuant to
state, federal or local governmental law, including, but not restricted to,
asbestos, polychlorobiphenyls and petroleum.
20. AMERICANS WITH DISABILITIES ACT. Each of Landlord and Tenant represents and
warrants that any alterations, modifications, upfit or construction performed by
it shall be performed in compliance with the ADA.
21. SUBORDINATION. Subject to the covenant given by Landlord in this paragraph
to obtain nondisturbance and attornment agreements with any mortgage or
beneficiary of a deed of trust encumbering the property, Tenant agrees that this
Lease is and shall remain subject and subordinate to any mortgage given by
Landlord on the property or buildings, and Landlord's interest in this Lease may
be assigned as security for any present and future mortgages or deeds of trust
attaching the property and all renewals, modifications, replacements and
extensions thereof. However, Landlord shall enter only into financing and
mortgage agreements which allow Tenant to retain its leasehold interest in the
Premises provided Tenant is not in default under this Lease and which obligates
Tenant to abide by all the terms, covenants and conditions of this Lease in the
event the mortgagee takes title to the Premises through foreclosure or accepts a
deed in lieu of foreclosure. At any time and from time to time upon not less
than fifteen (15) days' prior notice by Landlord to Tenant, Tenant shall,
without charge, execute, acknowledge and deliver to Landlord a statement
prepared by Landlord, in a form for Tenant to fill in and sign, certifying
whether (i) this lease is unmodified and in full force and effect (or if there
have been modifications, whether the same is in full force and effect as
modified and stating the modifications), (ii) the Term has commenced and Base
Rent and Additional Rent have become payable hereunder and, if so, the dates to
which they have been paid, (iii) whether or not, to the knowledge of the signer
of such certificate, Landlord is in default in performance of any of the terms
of this Lease and, if so, specifying each such default of which the signer may
have knowledge, (iv) Tenant has accepted possession of the Premises, (v) Tenant
has made any claim against Landlord under this Lease and, if so, the nature
thereof and the dollar amount, if any, of such claim, (vi) Tenant then claims
any offsets or defenses against enforcement of any of the terms of this Lease
upon the part of Tenant to be performed, and, if so, specifying the same, and
(vii) such further information with respect to the Lease or the Premises as
Landlord may reasonably request. Any such statement delivered pursuant hereto
may be relied upon by any prospective purchaser of the Premises or any part
thereof or of the interest of Landlord in any part thereof, by any mortgagee or
prospective mortgagee thereof, by any lessor or prospective lessor thereof, by
any lessee or prospective lessee thereof, or by any prospective assignee of any
mortgage thereof.
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22. ATTORNEY'S FEES. In connection with any litigation arising out of this
Lease, the prevailing party, Tenant or Landlord, shall be entitled to recover
all costs incurred, including reasonable attorney's fees.
23. LIMITATION ON LIABILITY. Neither party is liable to the other for under this
lease for any special, incidental, punitive or consequential damages of any kind
or nature, including, without limitation, any lost profits or loss of business.
Notwithstanding anything to the contrary, Landlord is not liable for flood water
damage unless Landlord is grossly negligent or willful misconduct. Landlord
shall not be liable to Tenant or to Tenant's employees, agents or invitees, or
to any other person or entity, whomsoever, for any injury to person or damage to
or loss of property on or about the Premises or the common area caused by the
negligence, acts or omissions, or misconduct of Tenant, its employees, or of any
other person entering the Buildings under the express or implied invitation of
Tenant, or arising out of the use of the Leased Premises by Tenant and the
conduct of its business therein, or arising out of any breach or default by
Tenant in the performance of its obligations under this Lease or resulting from
any other cause whatsoever, except Landlord's gross negligence; and Tenant
hereby agrees to indemnify Landlord and hold it harmless from any loss, cost,
expense or claims arising out of any such damage or injury.
24. SERVICES PROVIDED BY LANDLORD.
24.1 SECURITY. Tenant shall adhere to Landlord's security procedures as
they pertain to the Premises. This may include, but not be limited to, proper
display of security badges, maintaining accurate employee access rosters, and
assisting Landlord in the investigation of security related matters. Landlord
agrees to provide Tenant with the same security services that Landlord provides
throughout the Corporate Campus, subject to Tenant's compliance with Landlord's
security procedures and subject to Tenant's obligation to pay Tenant's share of
the cost thereof.
24.2 TELECOMMUNICATIONS. Landlord shall provide to Tenant and its
affiliates phone and voicemail equipment system, together with services for such
system, for its operations at the Premises, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇, and any airplane hangar used by Tenant or FNF at
Jacksonville International Airport, in accordance with the terms set forth in
Schedule A attached hereto.
24.3 MAIL SERVICES. Landlord covenants and agrees that throughout the term
of this Lease Landlord shall provide Tenant with mail delivery services within
the Corporate Campus.
25. MEMORANDUM OF LEASE. Tenant shall not record this Lease or a Memorandum of
Lease.
26. NOTICES. Any notice, report, statement, approval, consent, designation,
demand or request to be given under this Lease shall be effective when made in
writing, deposited for mailing with the United States Postal Service and
addressed to Landlord or Tenant at the following addresses:
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LANDLORD: Fidelity Information Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Vice President
Phone: ▇▇▇-▇▇▇-▇▇▇▇
TENANT: Fidelity National Title Group, Inc.
c/o Orion Realty Group
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇, President
Phone: ▇▇▇-▇▇▇-▇▇▇▇
27. MISCELLANEOUS.
27.1 SUCCESSORS AND ASSIGNS. This Lease shall be binding upon and shall
inure to the benefit of Landlord, Tenant and their respective successors and
assigns.
27.2 GOVERNING LAW. This Lease shall be construed under the laws of
the State of Florida, without application of the conflict of law provisions
thereof.
27.3 MERGER CLAUSE. This Lease contains the entire agreement between
Landlord and Tenant regarding the Premises which are the subject of this Lease
and may only be altered by a written agreement executed by both Landlord and
Tenant.
27.4 SEVERABILITY. If any term or provision of this Lease or the
application hereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease shall not be affected
thereby.
27.5 FORCE MAJEURE. In the event the performance by either party of any of
its obligations hereunder, except with the respect of payment of money, is
delayed by reason of an act of God, strike, governmental restrictions, war,
terrorist threats or acts, or any other cause, similar or dissimilar, beyond the
reasonable control of the party from whom such performance is due, the period
for the commencement of completion thereof shall be extended for a period equal
to the period during which performance is so delayed.
27.6 COUNTERPARTS. The Lease may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but such counterparts together shall constitute but one and the same
instrument.
27.7 NO PARTNERSHIP CREATED. The Landlord and Tenant are not and shall not
be considered joint venturers, not partners, and neither shall have power to
bind or obligate the other except as set forth herein.
27.8 HEADINGS. The titles to the paragraphs of this Lease are inserted
only as a matter of convenience and for reference and in no way confine, limit
or describe the scope or intent of any section of this Lease, nor in any way
affect this Lease.
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27.9 MODIFICATION. No modifications, alterations, or amendments of this
Lease or any agreements in connection therewith shall be binding or valid unless
in writing and duly executed by both Landlord and Tenant. Notwithstanding the
foregoing, this Lease may not be amended without the prior written consent of
THL and TPG, not to be unreasonably withheld, conditioned or delayed, if such
amendment (i) decreases the base rental rate (as expressed on a rentable square
foot basis) provided hereunder in a manner not otherwise specifically authorized
by this Lease, (ii) changes the term of the Lease, (iii) materially affects the
scope of any service provided hereunder in a manner that is detrimental to
Landlord, or (iv) changes any other material term or condition of the Lease in a
manner that is materially adverse to Landlord. For the purposes hereof, the term
"THL" shall mean ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund V, L.P. and the term "TPG" shall mean
TPG Partners III, L.P.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease effective
as of the day and year above first written.
LANDLORD:
FIDELITY INFORMATION SERVICES, INC.,
an Arkansas corporation
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President, General Counsel, &
Secretary
TENANT:
FIDELITY NATIONAL TITLE GROUP, INC.,
a Delaware corporation
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
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