THIS LEASE
AGREEMENT (this “Lease”), dated as of June 13,
2008, is by and between Lender Processing Services, Inc. , a
Delaware corporation (“LPS” or “Landlord”),
and Fidelity National Financial, Inc. , a Delaware
corporation (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, Tenant
(which was previously known as Fidelity National Title Group,
Inc.), as tenant, entered into an Amended and Restated Lease
Agreement dated as of October 23, 2006 (as previously amended
and restated, the “Prior Lease”), with Fidelity
Information Services, Inc., an Arkansas corporation
(“FIS-ARK”), for the leasing to Tenant of a portion of
certain real property and improvements comprising a corporate
campus located at 601 Riverside Avenue, in the city of
Jacksonville, county of Duval, state of Florida; and
WHEREAS, Tenant
also previously entered into a Telecommunications Services
Agreement dated as of October 23, 2006 (the “Prior
Telecommunications Agreement”; and together with the Prior
Lease, collectively, the “Prior Agreements”) with
FIS-ARK for the provision of telecommunication services at the 601
Riverside Avenue campus; and
WHEREAS, in
connection with the separation and spin-off of LPS from Fidelity
National Information Services, Inc., a Georgia corporation and the
parent company of FIS-ARK (“FIS”), and the consummation
of the transactions contemplated by that certain Contribution and
Distribution Agreement dated as of June 13, 2008 (the
“Distribution Agreement”), between FIS and LPS, FIS-ARK
transferred to Landlord all of FIS-ARK’s right, title and
interest in and to the real property and improvements comprising
the corporate campus located at 601 Riverside Avenue, Jacksonville,
Florida, including the telecommunications rights and campus
equipment; and
WHEREAS, in
connection with the Distribution Agreement, FIS-ARK terminated the
Prior Agreements in contemplation of the simultaneous effectiveness
of this Agreement in its stead, effective as of the Spin-off (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:
1.1 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 601 Riverside Avenue, Jacksonville,
Florida (after taking into account the exclusions hereinafter
described, collectively the “Corporate Campus”), it
being
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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 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 Tenant, 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 Lease, from the definition of
“Corporate Campus”). The parties further acknowledge
and agree that, initially hereunder, the Premises constitute
86,592 rentable square feet representing approximately
17.90% (“Tenant’s Share”) (including a
load fact of 40.76% 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, Tenant and FIS, including one or more reallocations
during calendar year 2008. 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
June 30, 2008 (“Commencement Date”) and
terminating on June 30, 2011 (“Initial
Term”).
3.1 Base
Rent. Tenant shall pay to Landlord base rent (“Base
Rent”), at an annual rate of $10.50 per rentable
square foot, in equal monthly installments of $75,768.00
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, 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. 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, 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”).
Landlord reasonably estimates Tenant’s Additional Rent for
the calendar year 2008 is $16.69 per rentable square foot
per year or $120,435.03 per month, which when combined with
the Base Rent shall result in a monthly Rent payment of
$196,203.03 , which is equal to $27.19 per rentable
square foot per year for 2008. Commencing August 1, 2008, 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 2009, 2010 and 2011
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
Tenant’s Review of Operating Expenses Budget . On or
prior to the first business day of each December, commencing with
calendar year 2008, Landlord shall deliver to Tenant the proposed
budget for the Operating Expenses for the following year (for any
given year, the “Operating Expenses Budget”), setting
forth in reasonable detail a list of the items and categories of
items to be included the Operating Expenses for such year. Within
fifteen (15) business days after receipt thereof,
Tenant’s chief accounting officer (or his/her designee) shall
review the Operating Expenses Budget and the items and categories
to be included, and if he/she does not agree with the Operating
Expenses Budget or the items and categories to be included therein,
then before the fifteenth (15th) business day after receipt, he/she
shall notify Landlord in writing of the nature and basis of his/her
objections and, if known at the time, the amount of the
adjustment(s) requested. In the event of objection(s) to the
Operating Expense Budget, Landlord and Tenant shall use their
reasonable best efforts to resolve Tenant’s objection(s), but
if the Parties are unable to resolve their differences within
twenty (20) business days after Tenant’s receipt of the
Operating Expenses Budget, then the dispute resolution procedures
set forth in Section 28 shall apply, provided that,
during the pendency of such dispute, the Rent for the applicable
year shall be adjusted to reflect the Operating Expenses Budget as
presented, it being understood that if the Operating
Expenses Budget is later revised, then any excess Rent so paid
shall be credited to Tenant’s next payment(s) of Rent. In
connection with Tenant’s review of the Operating Expenses
Budget as well as the resolution of any objections thereto,
Landlord agrees to make available to Tenant all information
(including reasonable access to the personnel who prepared such
information) reasonably necessary or appropriate to assist Tenant
in evaluating the Operating Expenses Budget and the items included
therein.
3.2.2
True-Up of Actual Operating Expenses . On or before the
first day of March following the end of each calendar year (an
“Expense Year”), Landlord shall deliver to Tenant a
statement setting forth (i) the amount Tenant paid as Rent for
the applicable Expense Year, and (ii) the amount of
Tenant’s Share of actual Operating Expenses for the
applicable Expense Year. If the amount Tenant paid as Rent for the
applicable Expense Year exceeds the amount of Tenant’s Share
of actual 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
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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.
3.2.3
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 actually and reasonably pays or incurs during any Expense
Year as a direct result of or in connection with the ownership,
operation, management, maintenance, or repair of the Corporate
Campus (including the buildings thereon), including:
3.2.3.1 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;
3.2.3.2 The cost
of supplying utilities;
3.2.3.3 The cost
of operating, managing, maintaining, and repairing utility,
mechanical, sanitary, storm drainage, and elevators;
3.2.3.4 The cost
of supplies and tools and of equipment, maintenance, and service
contracts in connection with those systems;
3.2.3.5 The cost
of providing telephone-related telecommunications services and
equipment;
3.2.3.6 The cost
of providing mail delivery services;
3.2.3.7 The cost
of landscaping;
3.2.3.8 The cost
of licenses, certificates, permits and inspections;
3.2.3.9 The cost
of contesting the validity or applicability of government
enactments that may affect the Operating Expenses;
3.2.3.10 The costs
incurred in connection with the implementation and operation of a
transportation program, if any;
3.2.3.11 The cost
of insurance carried by Landlord in amounts reasonably determined
by Landlord;
3.2.3.12 The cost
of parking area maintenance, repair, and restoration, including
resurfacing, repainting, restriping, and cleaning;
3.2.3.13 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
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security
equipment and the wages, salaries, and other compensation and
benefits of all persons engaged in providing security in and around
the Corporate Campus;
3.2.3.14 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
3.2.3.15 Subject
to the provisions of Section 3.2.4, 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.
3.2.3.16 Any other
costs of the Landlord reasonably included in the calculation of
Operating Expenses for that calendar year and not otherwise
specifically identified herein that directly relate to or arise out
of the ownership, operation, management, maintenance, or repair of
the Corporate Campus (including the buildings thereon).
3.2.4
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:
3.2.4.1 Repairs or
other work occasioned by the exercise of right of eminent
domain;
3.2.4.2 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;
3.2.4.3 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;
3.2.4.4
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;
3.2.4.5 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;
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3.2.4.6 Cost
incurred due to violation by Landlord or any tenant of the terms
and conditions of any Lease;
3.2.4.7 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;
3.2.4.8 Any
compensation paid to clerks, attendants or other persons in
commercial concessions operated by Landlord;
3.2.4.9 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 corporate and transitional 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);
3.2.4.10
Advertising and promotional expenditures;
3.2.4.11 Any
expenses for which Landlord is compensated through proceeds of
insurance;
3.2.4.12 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;
3.2.4.13 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;
3.2.4.14 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
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3.2.4.15 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.
3.2.5
Cost Allocation Agreement . Without limiting the foregoing
or any other provision of this Lease, 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.
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
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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.
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
repa
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