EXHIBIT 99.7
Execution Version
AMENDED AND RESTATED LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease"), dated as of October 23, 2006, is by
and between FIDELITY INFORMATION SERVICES, INC., an Arkansas corporation
("Landlord"), and FIDELITY NATIONAL TITLE GROUP, INC., a Delaware corporation
that, after the consummation of the Transactions (as hereinafter defined), will
be known as "Fidelity National Financial, Inc." (together with its subsidiaries,
affiliates, successors and assigns, collectively "FNF" or ("Tenant"). Landlord
and Tenant are herein referred to individual as a "Party" and, collectively, the
"Parties".
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 ( as previously amended and restated, and assigned to and
assumed by Tenant, 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, in connection with the consummation of the transactions (the
"Transactions") contemplated by that certain Securities Exchange and
Distribution Agreement dated as of June 25, 2006, as amended and restated as of
September 18, 2006 (as so amended and restated, the "Distribution Agreement"),
between Fidelity National Financial, Inc., a Delaware corporation ("Old FNF"),
and FNF, and the consummation of the transactions contemplated by that certain
the Agreement and Plan of Merger dated as of June 25, 2006 as previously amended
and as amended and restated as of September 18, 2006 (as so amended and
restated, the "FIS Merger Agreement"), between Old FNF and FIS, Landlord and
Tenant have agreed to amended and restate this Lease, effective as of the
consummation of the Asset Contribution (as defined in the Distribution
Agreement);
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.
1.1 INITIAL PREMISES. Landlord hereby leases to Tenant office space
(collectively, the "Premises") located on various floors in the 13-story main
office building generally designated as "Building I" and in the building
generally designated as "Building II", as well as use of certain designated
space in the buildings generally designated as "Building III and Building IV"
and/or in any of the other buildings that Landlord owns or leases from time to
time that are part of the corporate campus located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (after taking into account the exclusions hereinafter
described, collectively the "Corporate Campus"), it being understood that the
building generally designated as "Building V", as well as the parking garage and
the real property that is subject to that certain synthetic lease financing
arrangement, as set
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forth on various documents dated on our about June 29, 2004, including the
Master Lease Agreement, dated as of June 29, 2004, and the Master Agreement
dated as of June 29, 2004, as amended by the First Omnibus Amendment dated as of
November 5, 2004, the First Amendment to Master Agreement dated as of September
24, 2004, the Second Omnibus Amendment dated as of February 15, 2005, the Third
Omnibus Amendment dated as of December 2, 2005, the Waiver Amendment to
Operative Documents dated as of April 2005, and the Fourth Omnibus Amendment
dated as of March 16, 2006, all among FNF, as lessee, SunTrust Equity Funding,
LLC, as lessor, certain financial institutions parties thereto, as lenders, and
SunTrust Bank, as agent, are hereby specifically excluded from provisions of
this Lease (and, for purposes of this Agreement, the definition of "Corporate
Campus"). The parties further acknowledge and agree that, initially hereunder,
the Premises constitute 89,754 rentable square feet representing approximately
19% ("Tenant's Share") (including a load fact of 38%for common/shared space) of
the 483,889 rentable square feet of space at the Corporate Campus, it being
understood that the parties anticipate that Tenant's Share shall fluctuate and
change as and when the rentable square feet of space allocated and leased to
Tenant hereunder changes.
1.2 REALLOCATIONS OF SPACE. Notwithstanding any other provision herein or
in any other agreement or instrument to the contrary, the parties understand and
acknowledge that Landlord and Tenant anticipate that there will be reallocations
of office space among Landlord and Tenant, including one or more reallocations
during calendar year 2006 and 2007. The parties hereby agree 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 memorialize the changes in (i)
rentable square footage of the Premises, (ii) Tenant's Share and (iii) monthly
Base Rent. In such event, Tenant's Base Rent and Additional Rent shall be
re-calculated based on the rentable square foot leased and allocated to Tenant,
determined as a percentage of the total rentable square foot of office space
available at the Corporate Campus.
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").
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
$172,402.42 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").
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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 Corporate Campus ("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 $8.66 per rentable square foot per year. Landlord reasonably estimates
Tenant's Additional Rent for the calendar year 2006 is $8.66 per rentable square
foot per year or $64,772.50 per month, which when combined with the Base Rent
shall result in a monthly Rent payment of $237,174.92, which is equal to $31.71
per rentable square foot per year for 2006. 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.
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 Corporate Campus (including the buildings
thereon), 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;
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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, if any;
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
Corporate Campus (including security for the buildings on the
Corporate Campus), 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 Corporate Campus;
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 buildings and the corporate gym and cafeteria located
on the ground floor of the buildings; and
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.
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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 with
respect to the Premises;
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 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;
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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
Corporate Campus (including the buildings thereon), 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 on the Corporate Campus, or the land on which
the Corporate Campus is situated;
3.2.3.13 Costs incurred in connection with upgrading the
Corporate Campus (including 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.
3.2.4 Cost Allocation Agreement. Without limiting the foregoing or any
other provision of this Agreement, the Parties agree that they may from time to
time enter into cost allocation agreements or other contractual arrangements
with respect to the allocation of the operating costs of the buildings on the
Corporate Campus as between Landlord, Tenant, and/or other parties.
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, Tenant shall be entitled to a reasonable number of
parking spaces for its employees, customers and visitors.
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5. QUIET ENJOYMENT. Landlord warrants to Tenant that Landlord is the owner of
the Premises and the buildings that the Premises are located in on the Corporate
Campus, 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 Corporate Campus (including the
buildings located thereon) is 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, 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.
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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 buildings, 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 Premises (or the
buildings in which the Premises are located) 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 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 buildings in which the Premises are located will be rebuilt. If
the Premises is to be rebuilt and Tenant elects not to terminate the
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Lease, the Premises (including the office buildings in which the Premises are
located, 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 is 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 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
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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 rent and
other amounts due hereunder without in any way affecting Tenant's obligation to
Landlord hereunder.
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(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, 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 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.
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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 Tenant shall retain,
throughout the term of the Lease, the signage rights it presently has on the
exterior of the buildings on the Corporate Campus, 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 on
the Corporate Campus and on the exterior monument signage during the term hereof
shall be that of Landlord or Tenant. Landlord and Tenant agree that any proposed
change of the monument and building signage from that existing on the
Commencement Date of this Lease shall require the mutual agreement of both
Landlord and Tenant. If the parties are unable to reach agreement on any such
proposed change to the monument or building signage, then the matter shall be
referred to (i) so long as the Executive Chairman of each of Landlord and Tenant
are the same individual, to the Executive Chairman, (ii) if the Executive
Chairman of each of Landlord and Tenant are not the same individual, then to the
Chief Executive Officers of each of Landlord and 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, onto or under the
Premises after the Commencement Date. Each of the parties agrees to comply with
all laws, codes, rules, and regulations of the United States and 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 in which the Premises are located, nor shall Tenant keep, store,
produce or dispose of on, in or from the Premises or the buildings in which the
Premises are located 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
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"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 the buildings in which the Premises are located, 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.
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
13
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 in which the Premises are located 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 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. All notices, demands or requests which may be given by either party
to the other party shall be in writing and shall be deemed to have been duly
given on the date delivered in person, or sent via telefax or electronic
transmission (provided that in any such case, such telefax or electronic
transmission is immediately thereafter confirmed by telephone), or on the next
business day if sent by overnight courier, and in each case addressed as set
forth below:
LANDLORD: Fidelity Information Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Executive Vice President
Phone: ▇▇▇-▇▇▇-▇▇▇▇
TENANT: Fidelity National Title Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇ ▇▇▇▇▇, Executive Vice President
Phone: ▇▇▇-▇▇▇-▇▇▇▇
The address to which such notices, demands, requests, elections or other
communications are to be given by either party may be changed by written notice
given by such party to the other party pursuant to this Section.
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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. Without limiting the foregoing, the parties expressly acknowledge that
this Agreement, together with the Exhibits and Schedules hereto, is intended to
amend and restate the Prior Lease Agreement in its entirety, and upon the
effectiveness of this Agreement, the Prior Lease Agreement shall be deemed to
have been superseded and replaced in its entirety by this Agreement.
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.
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.
27.10 EFFECTIVENESS. Notwithstanding the date hereof, this Agreement shall
become effective as of the date and time that the merger becomes effective
pursuant to the terms of the Merger Agreement.
[signature page to follow]
15
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year above first written.
LANDLORD:
FIDELITY INFORMATION SERVICES, INC.,
an Arkansas corporation
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
TENANT:
FIDELITY NATIONAL TITLE GROUP, INC.,
a Delaware corporation
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President and Chief
Financial Officer
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