Exhibit 10.20
SUBLEASE
THIS SUBLEASE (this "Sublease" or this "Agreement") is made as of June
26, 2000, between APTIS, INC., d/b/a APTIS SOFTWARE, whose address is 0000
Xxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000-0000, hereinafter called
"Sublessor," VIGNETTE CORPORATION, whose address is 000 Xxxxx XxXxx, Xxxxxxxx
XXX, Xxxxxx, Xxxxx 00000, hereinafter called "Sublessee," and BILLING CONCEPTS
CORP., whose address is 0000 Xxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000-
4898 ("Guarantor").
WITNESSETH:
WHEREAS, XXXXXXXX PROPERTIES ACQUISITION PARTNERS, LP (the "Prime Lessor")
and Sublessor executed that certain Lease Agreement dated 11th day of November
1999, herein called the "Prime Lease," for a certain premises in the building
known as Two Xxxxxx Skyway, 0000 Xxxxx XxXxx Xxxxxxxxxx, Xxxxxx, Xxxxx 00000
(the "Building"); and
WHEREAS, Guarantor executed a certain "Guaranty" (herein so called), in
connection with the Prime Lease; and
WHEREAS, Sublessee desires to sublease such premises from Sublessor on the
terms and conditions set forth herein.
Terms used herein which are defined in the Prime Lease, and which are not
otherwise defined herein, shall be given the same meanings herein as are
ascribed to them in the Prime Lease.
NOW, THEREFORE, for and in consideration of the foregoing and for other
good and valuable consideration and of the mutual agreements hereinafter set
forth, Sublessor and Sublessee stipulate, covenant and agree as follows:
Premises 1. Sublessor does hereby agree to sublease to Sublessee, and
Sublessee does hereby agree to sublease from Sublessor, a portion
of the Building located on the fourth (4th) and second (2nd)
floors of the Building (collectively referred to as the "Sublease
Premises"). The Sublease Premises contains a total of 75,449
rentable square feet ("RSF") of space and consists of the
following:
4th Floor - 50,738 RSF (the entire 4th Floor, C & D Wings)
----------------------
2nd Floor - 24,711 RSF (the D Wing of the 0xx Xxxxx)
----------------------
Page 1
Term 2. The Term of this Sublease shall commence (each, a "Sublease
Commencement Date") as follows:
4th Floor The "Commencement Date" as set forth in the Prime
---------
Lease.
2nd Floor The first anniversary of the "Commencement Date"
---------
as set forth in the Prime Lease
The term of this of this Sublease shall continue until the last
day of the calendar month containing the 5th anniversary of the
4th Floor Sublease Commencement Date.
Uses 3. Sublessee shall use and occupy the Sublease Premises for
office purposes and for no other purpose.
Rent and
Additional 4. (a) Sublessee shall pay Sublessor rent (the "Rent") as
Rent follows:
4th Floor $21.40 per RSF, per annum
2nd Floor In the event Sublessee occupies the 2nd Floor
space prior to October 1, 2001, Sublessee shall
pay rent at the rate of $3.00 per RSF, per annum
until October 1, 2001, at which time the Sublessee
shall pay rent at the rate of $21.40 per RSF, per
annum.
Rent shall be payable in advance on the first day of each month
during the term of this Sublease without deduction, set off, or
demand. As to each portion of the Sublease Premises, Rent shall
commence on the applicable Sublease Commencement Date, except as
set forth above. Rent for any portion of a month shall be
prorated on a thirty (30) day basis. Rent payments will be
delivered to Sublessor, or such other place as Sublessor may
designate.
(b) Sublessee shall pay as additional rent "Tenant's Share of
Operating Costs" as defined in the Prime Lease, incurred through
the end of the Term of this Sublease, which are provided for
under Article 5 of the Prime Lease entitled "Operating Costs."
Such Additional Rent will be payable by Sublessee to Sublessor at
the same time and in the same manner as it is payable by
Sublessor to Prime Lessor under the Prime Lease.
Page 2
(c) Sublessee shall pay the "Base Rent" and "Additional Rent"
components of the Sublease Rent directly to Prime Lessor, and the
balance of the Rent shall be paid to Sublessor hereunder.
Pursuant to the Consent to Sublease, as hereinafter defined,
Prime Lessor has agreed to accept payment of the "Base Rent" and
"Additional Rent" components of the Sublease Rent, directly from
Sublessee.
Preparation
for
Occupancy 5. (a) Sublessee shall accept the Sublease Premises in the
"Tenant Finish Ready Condition," as provided for under Article 1
and Attachment 2 to Exhibit C of the Prime Lease.
(b) Sublessor is not responsible for and shall not be required
to perform work of any kind or nature with respect to the
Sublease Premises. Construction of the Leasehold Improvements
shall be the responsibility of Sublessee in accordance with
Exhibit C of the Lease and the Consent to Sublease.
Security
Deposit 6. Sublessee shall pay a security deposit (the "Security
Deposit") as follows:
(a) 1st Month's Rent - Cash or collected funds in the amount of
----------------
$128,536.27, with the Base Rent component thereof to be paid
directly to Prime Lessor and the balance to be paid to
Sublessor upon the execution hereof, and applied to the
payment of the first month's Rent.
(b) Sublease Security Deposit - Cash or collected funds in the
-------------------------
amount of $1,850,000.00 to be paid directly to Prime Lessor
upon the execution hereof, which funds will serve as the
Security Deposit required by Article 21 of the Prime Lease,
and will be deposited and applied or returned to Sublessee
as provided in the Lease, and as modified by the Consent to
Sublease. Sublessor shall have no responsibility for the
Security Deposit
(c) The Security Deposit shall be security for the performance
by Sublessee of its obligations under this Sublease. The
Security Deposit is not an advance payment of Rent or a
measure of Sublessor's damages for a default by Sublessee.
If Sublessee defaults in the performance of any of its
obligations under this
Page 3
Sublease or the Prime Lease, Sublessor may, without
prejudice to any other remedy, instruct the Prime Lessor to
use all or a portion of the Security Deposit to the extent
necessary to make good any shortages in Rent or any other
sum for which Sublessee is in default and any other damage,
injury, expense, or liability caused to Sublessor by the
default, or any default under the Prime Lease. If any part
of the Security Deposit is applied, Sublessee shall pay to
Sublessor or deliver to Sublessor the amount necessary to
restore the Security Deposit to its original amount.
Renewal 7. Sublessee shall have the right to renew this Sublease on the
Sublease Premises for one additional five (5) year term, provided
Sublessee shall provide Sublessor with written notice of its
intent to renew no less than 180 days and no more than 360 days
prior to the expiration of the Term of this Sublease. All
economic terms and conditions shall be the "Fair Market Rental
Rate," as defined in Article 28 of the Prime Lease, determined by
Sublessor and Sublessee in that manner. In no event will the
Rent of the extended term be less than the Rent of the original
term.
Incorporation
of Prime
Lease 8. (a) A true and correct copy of the Prime Lease is attached
as Exhibit "A." Sublessor warrants and represents to Sublessee
that the Prime Lease has not been amended, and no party is in
default under the terms of the Prime Lease.
(b) Sublessor will not modify the Prime Lease in a manner which
affects the use and occupancy of the Sublease Premises without
the consent of Sublessee, which consent shall not be unreasonably
withheld or delayed and shall be deemed given thirty (30) days
after written request if no objection is made in writing
specifically stating how such modification affects the use and
occupancy of the Sublease Premises.
(c) This Sublease is subject to all of the terms of the Prime
Lease with the same force and effect as if fully set forth herein
at length, excepting only as otherwise specifically provided
herein. Subject to Sublessee's performance of this Sublease,
Sublessor covenants and agrees to pay to Prime Lessor all rents
and additional rents due and payable to Prime Lessor under the
Prime Lease. All of the terms with which Sublessor is bound to
comply under the Prime Lease shall, to the extent only that they
apply to the Sublease Premises and except as otherwise provided
herein, be binding upon
Page 4
Sublessee, and all of the obligations of Prime Lessor set forth
in the Prime Lease shall, to the extent that they apply to the
Sublease Premises, be binding upon Sublessor, and inure to
Sublessee's benefit. It is the intention of the parties that,
except as otherwise provided in this Sublease, the relationship
between Sublessor and Sublessee shall be governed by the language
of the various articles of the Prime Lease as if they were typed
out in this Sublease in full, and the words "Landlord," "Tenant"
and "Lease" as used in the Prime Lease, shall read, respectively,
"Sublessor," "Sublessee" and "Sublease."
(d) For the purposes of this Sublease, the following provisions
of the Prime Lease, and the reference to them in the body of the
Prime Lease are not applicable, or are modified by the terms of
this Sublease:
- Article 1, Basic Lease Information and Certain
Definitions:
- subparagraph F, entitled "Commencement Date" to the
extent in conflict with this Sublease is modified by
this Sublease.
- subparagraph G, entitled "Expiration Date" to the
extent in conflict with this Sublease is modified by
this Sublease.
- subparagraph L, entitled "Rent" to the extent in
conflict with this Sublease is modified by this
Sublease.
- subparagraph Q, entitled "Basic Rent" to the extent
in conflict with this Sublease is modified by this
Sublease.
- Article 28, entitled "Renewal Options" is deleted;
provided, however, that the procedure set forth therein
to determine "Fair Market Rental Rate" will still be
employed should Sublessee exercise its right to renew
this Sublease in accordance with Section 7 hereof.
Quiet
Enjoyment 9. (a) Sublessor covenants and agrees with Sublessee that upon
Sublessee paying the Rent and additional rent reserved in this
Sublease and observing and performing all of the other
obligations, terms, covenants and conditions of this Sublease on
Sublessee's part to be observed and performed, Sublessee may
peaceably and quietly enjoy the Sublease
Page 5
Premises (and all rights and appurtenances thereto provided in
the Prime Lease) during the term; provided, however, that, except
as hereafter expressly provided to the contrary, this Sublease
shall automatically terminate upon termination of the Prime
Lease. Sublessee shall have no claim against Sublessor unless
such termination was caused by the default of Sublessor in the
performance of its obligations under the Prime Lease which have
been assumed by Sublessor under this Sublease and have not been
assumed by Sublessee hereunder; provided, however, if the Prime
Lease is terminated as the result of a default by Prime Lessor,
then Sublessee shall have the right to bring a claim against
Prime Lessor and Sublessor hereby appoints Sublessee as its
attorney in fact under the Prime Lease for the purpose of
bringing such a claim, but only to the extent such claim relates
to the Sublease Premises, and Sublessor shall cooperate with
Sublessee in any such claim.
(b) Sublessee covenants and agrees that Sublessee shall not do
or suffer or permit anything to be done which would constitute a
default under the Prime Lease or would cause the Prime Lease to
be canceled, terminated or forfeited by virtue of any rights of
cancellation, termination, or forfeiture reserved or vested in
Prime Lessor under the Prime Lease, and that Sublessee will
indemnify and hold harmless Sublessor from and defend Sublessor
against all claims, liabilities, losses and damages of any kind
whatsoever (excepting special and consequential damages) that
Sublessor may incur by reason of, resulting from or arising out
of any such cancellation, termination or forfeiture.
Notices 10. Any notice, demand or request under this Sublease shall be
in writing and shall be considered property delivered when
addressed as herein provided and delivered by registered or
certified mail (return receipt requested) which is deposited in
the United States general or branch post office, or delivered by
private express mail service. Any notice, demand or request by
Sublessor to Sublessee shall be addressed to Sublessee and
Sublessor at the addresses above, until either shall direct
otherwise in writing.
Rejection or other refusal to accept or the inability to deliver
because of a changed address of which no notice was given shall
be deemed to be receipt of the notice, demand or request sent.
Assignment
Page 6
and
Subletting 11. (a) Sublessee may not, without the prior written consent of
Sublessor and Prime Lessor (which consent shall not be
unreasonably conditioned, withheld, or delayed): (1) assign or
transfer this Sublease or any interest therein; (2) permit any
assignment of this Sublease or any interest therein by operation
of law; (3) sublet the Subleased Premises or any part thereof;
(4) grant any license, concession, or other right of occupancy of
any portion of the Subleased Premises; or (5) mortgage, pledge,
or otherwise encumber its interest in this Sublease. Sublessor's
consent to any assignment or subletting is not a waiver of
Sublessor's right to approve or disapprove any subsequent
assignment or subletting. Sublessee shall remain jointly and
severally liable for the payment of Rent and performance of all
other obligations under this Sublease after any assignment or
subletting. The time periods for Sublessor's and Prime Lessor's
review and consent to any proposed assignment or subletting by
Sublessee, as provided in Section 8.04 of the Prime Lease, shall
run concurrently.
(b) If Sublessor shall consent to an assignment or subletting,
without implying or requiring the granting of such consent, then
one half (1/2) of any excess consideration payable to Sublessee
as a result of such assignment or sublease (less brokerage
commissions, attorneys' fees and other disbursements reasonably
incurred by Sublessee for such assignment and subletting) shall
be payable to Sublessor.
(c) If an default occurs after an assignment or subletting, in
addition to any other remedies available to Sublessor hereunder
or provided by law, Sublessor may at its option collect directly
from the assignee or sublessee all rents payable to Sublessee
under the assignment or sublease and apply the sums so received
against any sums due to Sublessor under this Sublease. Sublessee
authorizes and directs any assignee or sublessee to make such
payments directly to Sublessor upon receipt of notice from
Sublessor. No direct collection of rent by Sublessor shall be a
novation or a release of Sublessee from the performance of its
obligations under this Sublease. Receipt by Sublessor of rent
from any assignee or sublessee is not a waiver of the covenant
against assignment and subletting or a release of Sublessee.
Prime Lessor's
Responsi-
bilities 12. Sublessee recognizes that Sublessor is not in a position to
furnish the services set forth in the Prime Lease, obtain an
agreement of nondisturbance, or perform certain other obligations
which are not within
Page 7
the control of Sublessor, such as, without limitation,
maintenance, repairs and replacements to the Building and
Sublease Premises, compliance with laws, and restoration of the
Premises and Building after casualty or condemnation. Therefore,
notwithstanding anything to the contrary contained in this
Sublease, Sublessee agrees that Sublessee shall look solely to
Prime Lessor to furnish all services and to perform all
obligations agreed upon by Prime Lessor under the Prime Lease to
furnish and perform. Sublessor shall not be liable to Sublessee
or be deemed in default hereunder for failure of Prime Lessor to
furnish or perform the same. However, whenever under the terms of
the Prime Lease, Prime Lessor shall fail to perform any of its
Prime Lease obligations pertaining to the Sublease Premises,
Sublessee may, at its option, enforce performance thereof if and
to the extent authorized by the terms of the Prime Lease, and
Sublessor shall cooperate with Sublessee in such enforcement.
Casualty and
Condem-
nation 13. Article 15, entitled "Damage by Fire or Other Cause," and
Article 16, entitled "Condemnation" of the Prime Lease are
modified to provide that if by operation of either of these two
provisions the Prime Lease is not terminated and continues in
full force and effect, this Sublease shall not be terminated but
shall also continue in full force and effect, except that until
the Sublease Premises are restored in accordance with these two
provisions there shall be a proportionate abatement of annual
rent and additional rent payable hereunder to the extent of
damage to the Sublease Premises as determined by Prime Lessor,
Sublessor and Sublessee; provided, however, that such abatement
shall in no event exceed the abatement granted to Sublessor under
the Prime Lease as to the Sublease Premises only, and, provided
further, that no compensation or claim or reduction will be
allowed or paid by Sublessor by reason of inconvenience,
annoyance or injury to Sublessee's business arising from the
necessity of effecting repairs to the Premises or any portion of
the Building, whether such repairs are required by operation of
these two provisions or any other provision of the Prime Lease.
Parking 14. Sublessor hereby assigns Sublessor's parking spaces and
parking rights under the Prime Lease to Sublessee, to use and
enjoy during the term hereof.
Binding and
Page 8
Entire
Agreement 15. This Sublease shall be binding on Sublessor and Sublessee
and their respective successors and assigns. This Sublease
contains the entire agreement of the parties with respect to the
subject matter herein and may not be modified except by
instrument in writing which is signed by both parties.
Consent of
Prime Lessor 16. This Sublease is conditioned upon Prime Lessor's execution
of a consent to this Sublease (the "Consent to Sublease") as
required by the Prime Lease, in form reasonably satisfactory to
Sublessor and Sublessee.
Broker
Agreement 17. The parties warrant and represent to each other that no
Person has negotiated or brought about this transaction other
than The Pinnacle Group (who will be compensated according to a
separate agreement with Sublessor) and Colliers Oxford
Commercial, Inc. (who will be compensated according to a separate
agreement with Sublessor) ("Broker"). No other or additional
commissions shall be payable. Sublessee and Sublessor shall
defend, indemnify, and save harmless one another from and against
any claim which may be asserted against one of them by any Person
other than the Person named above if the claim is made in
connection with this transaction claiming under such party. This
section shall survive the expiration or earlier termination of
this Sublease.
Attorney's
Fees 18. If it becomes necessary for either party to secure the
services of an attorney in order to collect any amount due
hereunder or to enforce any of the provisions hereof, the
defaulting party agrees and binds itself to pay to the other
reasonable attorney's fees and court costs.
General 19. (a) this Sublease Shall Be Construed and Interpreted under
the Laws of the State of Texas and All Obligations of the Parties
Hereunder Are Performable in Xxxxxx County, Texas.
(b) Time is of the essence in the performance of all obligations
of the parties.
(c) Any number of counterparts of this Sublease may be executed
by the parties hereto, and each executed counterpart shall be
deemed an original agreement.
Page 9
IN WITNESS WHEREOF, duly authorized representatives of the parties hereto
have executed this Sublease as of the day and year first above written.
[The remainder of this page is intentionally left blank. Signatures appear on
the following signature pages, attached hereto and made a part hereof.]
Page 10
SIGNATURE PAGE
TO
SUBLEASE AGREEMENT
BETWEEN
APTIS, INC., d/b/a APTIS SOFTWARE
AND
VIGNETTE CORPORATION
SUBLESSOR:
APTIS, INC., d/b/a APTIS SOFTWARE
WITNESS:
----------------------
By: /s/ Xxxxx Xxxx
---------------------- --------------------------------------
Name: Xxxxx Xxxx
---------------------- -------------------------------------
Title: Senior Vice President
and Chief Financial Officer
------------------------------------
Page 11
SIGNATURE PAGE
TO
SUBLEASE AGREEMENT
BETWEEN
APTIS, INC., d/b/a APTIS SOFTWARE
AND
VIGNETTE CORPORATION
SUBLESSEE:
VIGNETTE CORPORATION
WITNESS:
----------------------
By: /s/ Xxxx X. Xxxx
---------------------- --------------------------------------
Name: Xxxx X. Xxxx
---------------------- -------------------------------------
Title: Chief Financial Officer
------------------------------------
WITNESS:
Page 12
SIGNATURE PAGE
TO
SUBLEASE AGREEMENT
BETWEEN
APTIS, INC., d/b/a APTIS SOFTWARE
AND
VIGNETTE CORPORATION
GUARANTOR:
WITNESS: BILLING CONCEPTS CORP.
------------------- By: /s/ Xxxxx Xxxx
---------------------------------
------------------- Name: Xxxxx Xxxx
Title: Senior Vice Prsident
------------------- and Chief Financial Officer
Page 13
