SUBLEASE AGREEMENT
Exhibit 99.9
THIS
SUBLEASE AGREEMENT (this “Sublease”), dated as of
June 13, 2008, is by and between
Fidelity National Financial, Inc., a Delaware corporation (together with its subsidiaries,
affiliates, successors and assigns, collectively “FNF” or “Sublessor”), and Lender Processing
Services, Inc., a Delaware corporation (“LPS” or “Sublessee”). FNF and LPS are herein referred to
individual as a “Party” and, collectively, the “Parties”.
WHEREAS, Sublessor is the successor party to a synthetic lease financing arrangement for the
office building known as “Building V” located at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx, 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 (as
amended, the “Master Lease Agreement”), all among FNF, as lessee, SunTrust Equity Funding, LLC, as
lessor, certain financial institutions parties thereto, as lenders, and SunTrust Bank, as agent;
and
WHEREAS, in connection with the consummation of the transactions contemplated by that certain
Contribution and Distribution Agreement dated as of June 13, 2008 (as heretofore or hereafter
amended, the “Distribution Agreement”) between Fidelity National Information Services, Inc. (“FIS”)
and LPS, the Parties have agreed to enter into this Sublease, effective as of the consummation of
the Distribution (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, Sublessor and Sublessee agree as follows:
1. Premises.
1.1 Initial Premises. Sublessor hereby subleases to Sublessee office space (collectively, the
“Premises”) located on various floors in 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 FNF, as lessee, SunTrust Equity Funding, LLC, as lessor, certain
financial institutions parties thereto, as lenders, and SunTrust Bank, as agent (collectively, the
“Synthetic Lease”), from time to time that are part of the corporate campus located at 000
Xxxxxxxxx Xxxxxx,
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Xxxxxxxxxxxx, Xxxxxxx but specifically excluding Buildings I, II, III, and IV and the real
property not subject to the Synthetic Lease (collectively, the “Corporate Campus”). The parties
further acknowledge and agree that, initially hereunder, the Premises constitute 159,731 rentable
square feet representing approximately 61.54% (“Sublessee’s Share”) (including a load fact of
37.10% for common/shared space) of the 259,568 rentable square feet of space in Building V, it
being understood that the parties anticipate that Sublessee’s Share shall fluctuate and change
as and when the rentable square feet of space allocated and leased to Sublessee 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 Sublessor and
Sublessee anticipate that there will be reallocations of office space among Sublessor, Sublessee
and FIS, including one or more reallocations during calendar year 2008. The parties hereby agree
that Sublessee’s Share may, by mutual agreement, increase or decrease from time to time during the
term of this Sublease, in which case the parties shall memorialize the changes in (i) rentable
square footage of the Premises, (ii) Sublessee’s Share and (iii) monthly Base Rent. In such event,
Sublessee’s Base Rent and Additional Rent shall be re-calculated based on the rentable square foot
subleased and allocated to Sublessee, 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 Sublease (“Initial Term”) shall be for three (3) years
commencing June 30, 2008 (the “Commencement Date”) and terminate on June 30, 2011.
3. Rent.
3.1 Base Rent. Sublessee shall pay to Sublessor base rent (“Base Rent”), at an annual rate of
$10.50 per rentable square foot, in equal monthly installments of $139,764.63, without prior notice
or demand, in advance, on the first day of each calendar month at such place as Sublessor may
direct, in writing. If the Term commences on a day other than the first day of a calendar month,
Sublessee shall pay to Sublessor, 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 Sublessor hereunder shall be due and unpaid for more than fifteen (15) days after
written notice from Sublessor to Sublessee 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, Sublessee shall pay as additional rent
(“Additional Rent” and, together with Base Rent and the Furnishings Rent (defined herein),
collectively, the “Rent”) Sublessee’s Share of Sublessor’s reasonable estimate of operating
expenses for the entire Corporate Campus (“Operating Expenses”). Sublessor reasonably estimates
Sublessee’s Additional Rent for the calendar year 2008 is $16.69 per rentable square foot per year
or $222,159.20 per month, which when combined with the Base Rent shall result in a monthly Rent
payment of $361,923.82, which is equal to $28.44 per rentable square foot per year for 2008. In
addition to the Base Rent and the Additional Rent, Sublessee shall also pay $52,274.57 per month
for certain furniture and furnishings leased by
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Sublessee and used on the Premises. Sublessee shall pay Additional Rent and Furnishings Rent
at the same times and in the same manner as Base Rent. Sublessor shall adjust Additional Rent on
an annual basis in 2009, 2010, and 2011 based on the same above
principles. Sublessor shall adjust Furnishings Rent on an annual
basis in 2009, 2010, and 2011 to reflect the actual amount of
furniture and fixture depreciation costs as well as the purchase of
additional furnishings for use by Sublessee on the Premises. Sublessee shall be
liable to Sublessor for the entire cost (as opposed to Sublessee’s Share) of Sublessor’s costs of
providing any services or materials exclusively to Sublessee.
3.2.1 [intentionally omitted].
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”), Sublessor shall deliver to Sublessee a
statement setting forth (i) the amount Sublessee paid as Rent for the applicable Expense Year, and
(ii) the amount of Sublessee’s Share of actual Operating Expenses for the applicable Expense Year.
If the amount Sublessee paid as Rent for the applicable Expense Year exceeds the amount of
Sublessee’s Share of actual Operating Expenses for the applicable Expense Year, then Sublessor
shall credit such difference on Sublessee’s next payment(s) of Rent. If the amount Sublessee paid
as Rent for the applicable Expense Year was less than the actual amount of Sublessee’s Share of
Operating Expenses for the applicable Expense Year, then Sublessee shall pay such difference as
Additional Rent to Sublessor on Sublessee’s next payment of Rent. Sublessor’s failure to furnish
such statement for any Expense Year in a timely manner shall not prejudice Sublessor from enforcing
its rights hereunder. Even if the Sublease term has expired and Sublessee has vacated the
Premises, if an excess or shortfall exists when the final determination is made, Sublessee 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 Sublessor
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 Sublessor’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;
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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 Sublessor in amounts reasonably
determined by Sublessor;
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 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 Sublessor after the effective date of the Sublease for any capital
improvements installed or paid for by Sublessor.
3.2.3.16 Any other costs of the Sublessor 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. Sublessor and Sublessee 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;
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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 sublessees, 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 Sublessor’s costs of electricity and other services sold separately to
tenants for which Sublessor 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 Sublease 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
Sublessee is not entitled to receive under the Sublease but which are provided to
another tenant or occupant;
3.2.4.6 Cost incurred due to violation by Sublessor or any tenant of the terms
and conditions of any Sublease;
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 Sublessor;
3.2.4.9 Any particular items and services for which Sublessee otherwise
reimburses Sublessor 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 Sublessor 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 Sublease 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
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Sublessee 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 Sublease, 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, Sublessee shall pay
Sublessee’s share of the amortized costs incurred by Sublessor to comply with ADA
violations cited during the term of this Sublease; and provided further however,
Sublessee shall bear one hundred percent (100%) of the costs associated with ADA
violations cited with respect to alterations made by Sublessee;
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 Sublessee shall
pay Sublessee’s Share of landscaping and parking costs associated with such data
center; and
3.2.4.15 Any and all costs associated with the telephone switch space leased by
Sublessor to Alltel Corporation, provided, however, that Sublessee shall pay
Sublessee’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 Sublease, 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 among Sublessor, Sublessee, FIS and/or
other parties.
3.3 Audit. Sublessee shall have the right at all reasonable times within sixty (60) days
after Sublessor has provided Sublessee with a statement of the actual Operating Expenses, and at
its sole expense, to audit Sublessor’s books and records relating to this Sublease for that Expense
Year. Should such an audit disclose a discrepancy between actual Operating Expense and what
Sublessee paid for Sublessee’s Share of such Operating Expenses and such discrepancy is equal to or
greater than two percent (2%), Sublessor shall not only refund the discrepancy amount to Sublessee
but also pay for the actual cost of such audit upon being billed therefor by Sublessee.
4. Use of Premises. Sublessee shall have the right to use and occupy the Premises for the purpose
of general office. Sublessor covenants and agrees that throughout the term of this Sublease,
Sublessee shall be entitled to a reasonable number of parking spaces for its employees, customers
and visitors.
5. Quiet Enjoyment. Sublessor warrants to Sublessee that Sublessor is the owner of the Premises
and the buildings that the Premises are located in on the Corporate Campus, and that
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Sublessor may rightfully enter into this Sublease. Sublessor shall protect, defend and indemnify
Sublessee against any interference with Sublessee’s use and quiet enjoyment of the Premises.
6. Taxes. Sublessor shall be responsible for the payment of all taxes assessed on the Premises
during the Term, subject to Sublessee’s obligation to reimburse Sublessor for Sublessee’s Share
thereof, and Sublessee shall be responsible for the payment of taxes assessed upon any of
Sublessee’s personal property located on the Premises. Notwithstanding any contrary provision
herein, Sublessee shall pay prior to delinquency any rent tax, sales tax or service tax generated
as result of this Sublease.
7. Insurance. Sublessee 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
Sublessor on or with respect to the Premises. Sublessee’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 Sublease. If the premiums should increase or decrease at any time,
Sublessee’s pro rata share and Sublessee’s payments shall be appropriately adjusted.
7.1 Liability Insurance. Sublessee and Sublessor 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 Sublessee 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 Sublessee and Sublessor agree to seek a waiver of subrogation
clause from their respective insurers which establishes a waiver of the insurer’s subrogation
against Sublessor or Sublessee 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
Sublessor or Sublessee, 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. Sublessor and Sublessee agree that the Corporate Campus (including the buildings
located thereon) is already connected for sewer, water, gas, and electricity. Subject to
Sublessee’s obligations to pay Sublessee’s Share of the cost Sublessor incurs in supplying
utilities to the common areas, Sublessee shall pay all utility expenses incurred by Sublessee in
connection with Sublessee’s use of the Premises (collectively, “Sublessee’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, Sublessor 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
Sublessor shall fail to make such repairs after written notice from Sublessee, Sublessee may do so
at Sublessor’s expense. Additionally, should there be an interruption in the utilities for more
than 24 hours due to the Sublessor’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 Sublessor
except to the extent repairs are made necessary by the acts of Sublessee. Except for the repairs
and maintenance Sublessor is specifically obligated to make under this Section, Sublessee 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 Sublessee. To the extent an HVAC system serves the Premises exclusively,
Sublessee shall be responsible for maintaining an HVAC service contract for routine filter changing
and general upkeep. Sublessor may disapprove the contractor, provided however, its approval may
not be unreasonably withheld, conditioned or delayed.
10. Common Area Maintenance. Sublessor shall keep the common area in good repair during the term
or extension thereof, reasonable wear and tear excepted.
11. Alterations and Improvements. Sublessee shall have the right at any time throughout the term
of this Sublease 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
Sublessee may deem necessary or suitable with Sublessor’s prior written approval, which approval
shall not be unreasonably withheld or delayed so long as the requested improvements do not violate
the terms and conditions of the Master Lease Agreement. Upon the expiration of the Initial Term of
this Sublease, Sublessee 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 Sublease, Sublessee if requested
by Sublessor shall remove any signs and repair any damages to the Premises resulting from such
removal. During the term, Sublessee shall not make any alterations, additions, improvements,
non-cosmetic changes or other material changes to the Premises without the prior written approval
of Sublessor, which approval shall not be unreasonably withheld or delayed so long as the request
does not violate the terms and conditions of the Master Lease Agreement. Notwithstanding the
foregoing, Sublessee shall be permitted to make Minor Alterations (as defined below) without
Sublessor’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 Sublessor approves any
alterations, additions, improvements, etc., Sublessor shall notify Sublessee, in writing, along
with Sublessor’s approval notice, of whether Sublessee shall, upon termination of this Sublease,
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 Sublessor 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,
Sublessee may in its reasonable discretion terminate this Sublease. If less than twenty-five
percent (25%) of the Premises shall be destroyed in whole or in part by fire or casualty, the
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Rent due during the remainder of the Sublease 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, Sublessor must inform Sublessee if the Premises and the buildings in which the
Premises are located will be rebuilt. If the Premises is to be rebuilt and Sublessee elects not to
terminate the Sublease, 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. Sublessor and Sublessee 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 Sublease shall be binding whether or not such damage or
destruction is caused by negligence of either Party or their agents, employees or visitors.
Sublessor 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 Sublessor.
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 Sublessee may in its discretion terminate the Sublease 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 Sublessee elects not to terminate this Sublease, the Rent due
during the remainder of the Sublease 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 Sublessee cannot reasonably operate its business at the Premises due to such
partial taking, Sublessee shall be permitted to terminate this Sublease by written notice to
Sublessor.
14. Sublessee’s Default.
14.1 Any other provisions in this Sublease notwithstanding, it shall be an event of default
(“Event of Default”) under this Sublease if: (i) Sublessee fails to pay any installment of rent or
any other sum payable by Sublessee hereunder when due and such failure continues for a period of
ten (10) days after written notice from Sublessor to Sublessee that such payment has not been
received, or (ii) Sublessee fails to observe or perform any other material covenant or agreement of
Sublessee herein contained and such failure continues after written notice given by or on behalf of
Sublessor to Sublessee for more than thirty (30) days, provided, however, that if
such non-monetary Event of Default by Sublessee cannot reasonably be cured within such thirty (30)
day period, and provided further that Sublessee is proceeding with due diligence to effect a cure
of said Event of Default, no Event of Default hereunder shall be declared by Sublessor if Sublessee
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 Sublessor of such violation, default or
breach, or (iii) Sublessee 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
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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 Sublessee consents or acquiesces in the filing thereof, or
(iv) a custodian, receiver, trustee or liquidator of Sublessee or of all or substantially all of
Sublessee’s property or of the Premises shall be appointed in any proceedings brought by or against
Sublessee and, in the latter case, such entity shall not be discharged within sixty (60) days after
such appointment or Sublessee consents to or acquiesces in such appointment, or (v) Sublessee shall
generally not pay Sublessee’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 Sublessee shall fail to make any payment of rent when due or if Sublessee shall fail
to keep and perform any express written covenant of this Sublease and shall continue in default for
a period of ten (10) days after Sublessee has received written notice of such default and demand of
performance from Sublessor, Sublessor 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 Sublessee, 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, Sublessor 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, Sublessor at any time thereafter may at its
option exercise any remedies available to Sublessor at law or in equity, including, without
limitation, one or more of the following remedies:
(i) Termination of Sublease. Sublessor may terminate this Sublease, by written notice
to Sublessee, without any right by Sublessee to reinstate its rights by payment of rent due or
other performance of the terms and conditions hereof. Upon such termination Sublessee shall
immediately surrender possession of the Premises to Sublessor, and Sublessor shall immediately
become entitled to receive from Sublessee an amount equal to the difference between the aggregate
of all rent reserved under this Sublease 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 Sublessor may obtain upon reletting, discounted
to present value at the rate of ten percent (10%).
(ii) Reletting. With or without terminating this Sublease, as Sublessor may elect,
Sublessor 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 Sublessor shall deem reasonable, for a term
within or beyond the term of this Sublease; provided, that any such reletting prior to
termination shall be for the account of Sublessee, and Sublessee shall remain liable for (i) all
rent and other sums which would be payable under this Sublease by Sublessee in the absence of such
expiration, termination or repossession, less (ii) the net proceeds, if any, of any reletting
effected for the account of Sublessee after deducting from such proceeds all of Sublessor’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
Sublessee’s breach of this Sublease. Sublessor shall use commercially reasonable efforts to relet
10
the Premises. If the Premises are at the time of default sublet or leased by Sublessee to
others, Sublessor may, as Sublessee’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
Sublessee’s obligation to Sublessor hereunder.
(iii) Injunction. In the event of breach by either party of any provision of this
Sublease, 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
Sublessor or Sublessee 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 Sublessor or Sublessee 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. Sublessor’s Default. If Sublessor shall be in default or shall fail or refuse to perform or
comply with any of its obligations under this Sublease and shall continue in default for a period
of thirty (30) days after Sublessee has given Sublessor written notice of such default and demand
of performance, Sublessee may remedy the same and deduct the cost thereof from subsequent
installments of rent or terminate the Sublease and recover from Sublessor any and all damages
Sublessee may have incurred due to such default or failure. Upon any default by Sublessor under
this Sublease, Sublessee may, except as otherwise specifically provided in this Sublease to the
contrary, exercise any of its rights provided at law or in equity.
16. Assignment and Sub-letting. Sublessee shall not have the right to assign, sublet, transfer, or
encumber this Sublease or its rights hereunder or any part thereof at any time without the
Sublessor’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 Sublessee (a “Sublessee Affiliate”) or a Sublessee Affiliate, or (ii) any
entity with which Sublessee or a Sublessee Affiliate may merge or consolidate, which acquires all
or substantially all of the assets or shares of stock of Sublessee or a Sublessee Affiliate, or
(iii) any entity that is the successor in the event of a reorganization. In instances other than
Permitted Transfers, Sublessor agrees not to withhold or delay its written consent if to do so
would be commercially unreasonable so long as the proposed assignment or sublet does not violate
the terms and conditions of the Master Lease Agreement. In the event of any assignment of this
Sublease by Sublessee, Sublessee 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 Sublease arising out of any
act, occurrence or omission occurring after said assignment; provided, however that the Sublessee’s
assignee assumes all obligations of Sublessee hereunder and attorns to Sublessor for such
obligations. Sublessor may assign this Sublease in connection with the sale or financing of the
Demised Premises provided that (i) no such assignment may impose upon Sublessee any obligations
greater than set forth in the Sublease; and (ii) Sublessor gives notice to Sublessee 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
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handling the affairs relating to this Sublease. Any rents received by Sublessor hereunder, which
in fact belong to the assignee of Sublessor, shall be held in trust by Sublessor and forwarded
immediately to the assignee of Sublessor. In the event of any assignment or sublease, Sublessee
shall remain responsible for the payment of rent and for the performance of all terms, covenants
and conditions undertaken by Sublessee pursuant to this Sublease unless otherwise agreed to by
Sublessor in writing.
17. Holding Over. In the event Sublessee remains in possession of the Premises after the
expiration of the Initial Term or a Renewal Term without executing a new Sublease, Sublessee 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 Sublease insofar as
consistent with such a tenancy. The provisions of this Section shall not be deemed to limit or
constitute a waiver of any other rights or remedies of Sublessor provided herein or at law.
18. Signage. Sublessee shall retain, throughout the term of the Sublease, the signage rights it
presently has on the exterior of Building V, as well as joint signage rights with Sublessor to the
monument signage at Riverside Avenue, the directory and suite entry signage. Unless otherwise
consented to by FNF, LPS and FIS, the only other signage that may appear on the exterior of
Building V (or any other buildings or properties that may become a part of or otherwise included in
this Sublease) and on the exterior monument signage during the Term shall be that of FNF, LPS or
FIS. Any proposed change of the monument signage, or the signage on Building V, from that existing
on the Commencement Date shall require the mutual agreement of FNF, LPS and FIS. Any proposed
change of the signage on any other building or properties that may become a part of or otherwise
included in this Sublease in which Sublessee occupies space from that existing on the Commencement
Date shall require the mutual agreement of Sublessor and Sublessee, it being understood
that other than Building V, if Sublessee does not occupy space therein, Sublessee shall have no
signage rights or right to consent to any change thereto. 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 the Chief Executive Officers of each of FNF, LPS and FIS.
19. Hazardous Materials. Sublessor and Sublessee 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 sublease 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. Sublessee 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
12
prohibited by any insurance policy in force from time to time covering the buildings in which the
Premises are located, nor shall Sublessee 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
“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 Sublessor and Sublessee 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 Sublessor in this paragraph to obtain
nondisturbance and attornment agreements with any mortgage or beneficiary of a deed of trust
encumbering the property, Sublessee agrees that this Sublease is and shall remain subject and
subordinate to any mortgage given by Sublessor on the property or the buildings in which the
Premises are located, and Sublessor’s interest in this Sublease 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, Sublessor shall enter only into
financing and mortgage agreements which allow Sublessee to retain its leasehold interest in the
Premises provided Sublessee is not in default under this Sublease and which obligates Sublessee to
abide by all the terms, covenants and conditions of this Sublease 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 Sublessor to Sublessee,
Sublessee shall, without charge, execute, acknowledge and deliver to Sublessor a statement prepared
by Sublessor, in a form for Sublessee to fill in and sign, certifying whether (i) this sublease 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, Sublessor
is in default in performance of any of the terms of this Sublease and, if so, specifying each such
default of which the signer may have knowledge, (iv) Sublessee has accepted possession of the
Premises, (v) Sublessee has made any claim against Sublessor under this Sublease and, if so, the
nature thereof and the dollar amount, if any, of such claim, (vi) Sublessee then claims any offsets
or defenses against enforcement of any of the terms of this Sublease upon the part of Sublessee to
be performed, and, if so, specifying the same, and (vii) such further information with respect to
the Sublease or the Premises as Sublessor 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 Sublessor 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 Sublease, the
prevailing party, Sublessee or Sublessor, 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 sublease 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,
Sublessor is not liable for flood water damage unless Sublessor is grossly negligent or willful
misconduct. Sublessor shall not be liable to Sublessee or to Sublessee’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 Sublessee, its employees, or of any other person entering the buildings
in which the Premises are located under the express or implied invitation of Sublessee, or arising
out of the use of the Subleased Premises by Sublessee and the conduct of its business therein, or
arising out of any breach or default by Sublessee in the performance of its obligations under this
Sublease or resulting from any other cause whatsoever, except Sublessor’s gross negligence; and
Sublessee hereby agrees to indemnify Sublessor and hold it harmless from any loss, cost, expense or
claims arising out of any such damage or injury.
24. Services Provided by Sublessor.
24.1 Security. Sublessee shall adhere to Sublessor’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 Sublessor in the investigation of
security related matters. Sublessor and Sublessee acknowledge that Sublessee is obligated to
provide security services throughout the Corporate Campus, and Sublessor is not obligated to
provide any additional security at or for the Premises.
24.2 Mail Services. Sublessor and Sublessee acknowledge that Sublessee is obligated to
provide mail delivery services within the Corporate Campus, and Sublessor is not obligated to
provide any additional mail delivery services at or for the Premises.
25. Memorandum of Sublease. Sublessee shall not record this Sublease or a Memorandum of Sublease.
26. Confidentiality. Each Party shall keep confidential any and all information concerning the
other Party which it may obtain pursuant to this Sublease, and agrees not to disclose such
information to any person unless authorized to do so by the Party in question. The provisions of
this Section 26 shall not, however, apply to information made generally available to the public by
any Party or by third parties through lawful channels, or information which is obtained from a
third person who (insofar as is known to the recipient of such information) is lawfully in
possession of such information and not in violation of any contractual, legal or fiduciary
obligation to a Party with respect to such information.
27. Limitation of Liability. EACH PARTY SHALL BE LIABLE TO THE OTHER FOR ALL DIRECT DAMAGES
ARISING OUT OF OR RELATED TO ANY CLAIMS, ACTIONS, LOSSES, COSTS, DAMAGES AND EXPENSES RELATED TO,
IN CONNECTION WITH
14
OR ARISING OUT OF THIS AGREEMENT. EXCEPT TO THE EXTENT ARISING FROM GROSS NEGLIGENCE, WILLFUL
MISCONDUCT, OR BY REASON OF A BREACH OF WARRANTY, ANY PARTY’S LIABILITY FOR ANY CLAIM OR CAUSE OF
ACTION WHETHER BASED IN CONTRACT, TORT OR OTHERWISE WHICH ARISES UNDER OR IS RELATED TO THIS
AGREEMENT SHALL BE LIMITED TO THE OTHER PARTY’S DIRECT OUT-OF-POCKET DAMAGES, ACTUALLY INCURRED.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER.
28. Dispute Resolution
28.1 Amicable Resolution. The Parties mutually desire that friendly collaboration will
continue between them. Accordingly, they will try to resolve in an amicable manner all
disagreements and misunderstandings connected with their respective rights and obligations under
this Sublease, including any amendments hereto. In furtherance thereof, in the event of any
dispute or disagreement (a “Dispute”) between the Parties in connection with this Sublease, then
the Dispute, upon written request of either Party, will be referred for resolution to the General
Counsels of the Parties, which General Counsels will have ten (10) days to resolve such Dispute.
28.2 Mediation. In the event any Dispute cannot be resolved in a friendly manner as set forth
in Section 28.1, the Parties intend that such Dispute be resolved by mediation. If the General
Counsels of the Parties are unable to resolve the Dispute as contemplated by Section 28.1, either
Party may demand mediation of the Dispute by written notice to the other, in which case the two
Parties will select a single mediator within ten (10) days after the demand. Neither Party may
unreasonably withhold consent to the selection of the mediator. Each Party will bear its own costs
of mediation but both Parties will share the costs of the mediator equally.
28.3 Arbitration. In the event that the Dispute is not resolved pursuant to Section 28.1 or
through mediation pursuant to Section 28.2, the latter within thirty (30) days of the submission of
the Dispute to mediation, either Party involved in the Dispute may submit the dispute to binding
arbitration pursuant to this Section 28.3. All Disputes submitted to arbitration pursuant to this
Section 28.3 shall be resolved in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, unless the Parties involved mutually agree to utilize an alternate set of
rules, in which event all references herein to the American Arbitration Association shall be deemed
modified accordingly. Expedited rules shall apply regardless of the amount at issue. Arbitration
proceedings hereunder may be initiated by either Party making a written request to the American
Arbitration Association, together with any appropriate filing fee, at the office of the American
Arbitration Association in Orlando, Florida. All arbitration proceedings shall be held in the city
of Jacksonville, Florida in a location to be specified by the arbitrators (or any place agreed to
by the Parties and the Arbitrators). The arbitration shall be by a single qualified arbitrator
experienced in the matters at issue, such arbitrator to be mutually agreed upon by the Parties. If
the Parties fail to agree on an arbitrator thirty (30) days after notice of commencement of
arbitration, the American Arbitration Association shall, upon the request of any Party to the
dispute or difference, appoint the arbitrator. Any order or determination of the arbitral tribunal
shall be final and binding upon the Parties to the arbitration as to matters submitted and may be
enforced by any Party to the Dispute in any court having
15
jurisdiction over the subject matter or over any of the Parties. All costs and expenses
incurred in connection with any such arbitration proceeding (including reasonable attorneys’ fees)
shall be borne by the Party incurring such costs. The use of any alternative dispute resolution
procedures hereunder will not be construed under the doctrines of laches, waiver or estoppel to
affect adversely the rights of either Party.
28.4 Non-Exclusive Remedy. Each of the Parties acknowledges and agrees that money damages
would not be a sufficient remedy for any breach of this Sublease by either Party. Accordingly,
nothing in this Section 28 will prevent either Party from immediately seeking injunctive or interim
relief in the event of any actual or threatened breach of any confidentiality provisions of this
Sublease. All actions for such injunctive or interim relief shall be brought in a court of
competent jurisdiction. Such remedy shall not be deemed to be the exclusive remedy for breach of
this Sublease.
28.5 Commencement of Dispute Resolution Procedure. Notwithstanding anything to the contrary
in this Sublease, the Parties, but none of their respective Subsidiaries, are entitled to commence
a dispute resolution procedure under this Sublease, whether pursuant to this Section 28 or
otherwise, and each Party will cause its respective subsidiaries not to commence any dispute
resolution procedure other than through such Party as provided in this Section 28.
29. 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:
| SUBLESSOR: | Fidelity National Financial, Inc. | |||
| 000 Xxxxxxxxx Xxxxxx | ||||
| Xxxxxxxxxxxx, Xxxxxxx 00000 | ||||
| Attn: General Counsel | ||||
| Phone: 000-000-0000 | ||||
| SUBLESSEE: | Lender Processing Services, Inc. | |||
| 000 Xxxxxxxxx Xxxxxx | ||||
| Xxxxxxxxxxxx, Xxxxxxx 00000 | ||||
| Attn: General Counsel | ||||
| Phone: 000-000-0000 |
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.
30. Miscellaneous.
30.1 Successors and Assigns. This Sublease shall be binding upon and shall inure to the
benefit of Sublessor, Sublessee and their respective successors and assigns.
16
30.2 Governing Law. This Sublease shall be construed under the laws of the State of Florida,
without application of the conflict of law provisions thereof.
30.3 Merger Clause. This Sublease contains the entire agreement between Sublessor and
Sublessee regarding the Premises which are the subject of this Sublease and may only be altered by
a written agreement executed by both Sublessor and Sublessee. Without limiting the foregoing, the
parties expressly acknowledge that this Sublease, together with the Exhibits and Schedules hereto,
shall not violate the terms of the Master Lease Agreement.
30.4 Severability. If any term or provision of this Sublease or the application hereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Sublease shall not be affected thereby.
30.5 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.
30.6 Counterparts. The Sublease 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.
30.7 No Partnership Created. The Sublessor and Sublessee 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.
30.8 Headings. The titles to the paragraphs of this Sublease 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 Sublease, nor in any way affect this Sublease.
30.9 Modification. No modifications, alterations, or amendments of this Sublease or any
agreements in connection therewith shall be binding or valid unless in writing and duly executed by
both Sublessor and Sublessee.
30.10 Effectiveness. Notwithstanding the date hereof, this Sublease shall become effective as
of the date and time that the Distribution becomes effective pursuant to the terms of the
Distribution Agreement.
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IN WITNESS WHEREOF, Sublessor and Sublessee have executed this Sublease as of the day and year
above first written.
| SUBLESSOR: | ||||
| FIDELITY NATIONAL FINANCIAL, INC., | ||||
| a Delaware corporation | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Xxxxxxx X. Xxxxxxxx | ||||
| Executive Vice President, Legal | ||||
| SUBLESSEE: | ||||
| LENDER PROCESSING SERVICES, INC., | ||||
| a Delaware corporation | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Xxxxxxx X. Xxxxxxxxx | ||||
| President and Chief Executive Officer | ||||
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