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Exhibit 99.13
BASIC LEASE INFORMATION
CANYON PARK TECHNOLOGY CENTER
EXECUTIVE OFFICE BUILDING LEASE AGREEMENT
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"Lease Date":
July 26, 2005.
"Tenant":
Vista, Inc.
"Address of Tenant/Premises": 1569 N. Technology Way Orem,
Utah 84097
"Contact":
Curtis R. Porritt
"Telephone":
801-902-9500
"Landlord":
Canyon Park Management Company
Agents for: TCU Properties II, LLC, a Utah
limited liability company
"Address of Landlord":
1501 North Technology Way
Building A, Suite 3300
Orem. Utah 84097
"Contact":
Allen Finlinson - Vice President/GM
"Telephone":
801-764-0005 Ext 399
"Agency":
None
"Annual Increases":
$0.50 annual increase on each one-year
anniversary of Lease Commencement.
"Base Year":
2005
"Basic Rental":
$6,194.25 per month. The Security Deposit shall
be equal to the last month's rent.
"Building":
Building A on the site plan of the Park attached
hereto as Exhibit A.
"Building J Auditorium":
Subject to availability and scheduling. Landlord
shall allow Tenant four (4) hours of free use of
the auditorium in Building J each year. Tenant's
free use of such auditorium does not include an
A/V technician or additional A/V equipment
requested over and above that equipment already
available in the auditorium.
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"Building Services":
Landlord shall provide heating, ventilating and
air conditioning (HVAC), electrical, janitorial
and security services, and all other services
typically provided by Landlords in a "Class A"
environment
"Commencement Date":
July 1, 2005
"Expansion Rights":
Tenant will have on-going expansion rights on
all space on the 1st floor as it at Canyon Park
Technology Center.
"Adjusted Rental":
The sum of the annual Basic Rental and the
annual Excess operating Expenses and Excess
Taxes.
"Excess Operating Expenses": (i) The amount by
which the Operating Expenses
Per Square Foot of RA (defined in Exhibit E
attached) for any calendar year or portion
thereof during the Lease Term exceeds the
Operating Expenses Per Square Foot of RA
(defined in Exhibit E attached) during the Base
Year multiplied by (ii) the RA of the Premises.
"Excess Taxes":
The product of (i) the amount by which the Taxes
per Square Foot of RA for any calendar year or
portion thereof during the Lease Term exceeds
the Taxes Per Square Foot of RA during the Base
Year, multiplied by (ii) the RA of the Premises.
"Executive Boardroom":
Subject to availability and scheduling, Landlord
shall allow Tenant three (3) days of free use
(Monday through Friday during business hours) of
the executive board room in Building L annually,
for company executive use.
"Furniture":
Landlord shall allow Tenant to use the furniture
currently in the Premises at no charge to
Tenant, and upon Tenant's reasonable advance
request, shall provide at no charge additional
furniture from existing inventor) in the Park,
provided such furniture is not being used by
Landlord or other tenants and subject to
availability. Tenant is responsible for all
additional setup costs to reconfigure
furniture from the current set up and for
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any damage to the furniture, normal wear and
tear excepted.
"Lease Rate":
$13.50 per square foot
"Option to Expand":
Provided that Tenant is not in breach of the
Lease and no amount of Basic Rental is past due,
Tenant shall have the Option to Expand into
35,000 RSF on the Park at the then market rates.
With ninety (90) days written notice from Tenant
if Landlord is unable to provide reasonably
similar expansion space, Landlord will allow
Tenant to Terminate this lease.
"Parking":
Parking shall be open and available on an
unreserved basis in the parking areas shown on
Exhibit E. Landlord may in its sole discretion
designate parking spaces as reserved parking for
individual tenants based on each tenant's
proportionate premises square footage.
"Permitted Use":
Tenant shall use and occupy the Premises for
general and executive offices and for no other
use or purpose.
"Premises":
Offices located on the first floor of the
Building. The Premises are shown cross-hatched
on the floor plan attached hereto as Exhibit B.
"Rentable Area of the
Approximately 5,506 rentable square feet.
Premises":
"First Right of Refusal":
Provided that Tenant is not in material breach
of the Lease and no amount of Basic Rental is
past due, Tenant shall have the First Right of
Refusal on any space that is vacant or space as
it becomes available on the 1st floor (the
"First Right of Refusal Space") of Building A
during the Lease Term. Tenant's Upon Tenant's
receipt of written notice that Landlord has
received a bona fide offer (the "Offer") for the
lease of any First Right of Refusal Space by a
third party, which notice shall include the
principal terms of the Offer and shall be
delivered
by Landlord promptly following
Landlord's receipt of an Offer, Tenant shall
have
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five (5) business days to provide Landlord with
an unequivocal, irrevocable, written commitment
to lease said space in the Building. In the
event Tenant elects to exercise its First Right
of Refusal, such space shall be leased to Tenant
upon the terms and conditions set forth in the
Offer. If Tenant fails to provide Landlord with
such notice within such five (5) business day
period, Landlord shall be free to lease the
subject First Right of Refusal Space to the
third party pursuant to the Offer.
"Security Deposit":
$6,423.67 payable upon execution of the Lease.
Tenant currently has a security Deposit of
$1,013.54 which will be applied to the Security
Deposit above.
"Security Services":
Landlord currently provides basic security
services and limited camera surveillance.
Landlord shall provide access cards, without
charge but subject to a $25.00 deposit for each
access card issued to Tenant or Tenant's
employees. Cost of access cards are subject to
adjustment without notice to Tenant. Each card
that needs to be replaced or changed for any
reason and that is not returned at the end of
the Lease, Landlord shall retain the $25.00
deposit on each access card and or bill Tenant
for the access cards not returned at the end or
termination of the Lease. Landlord will provide
one key to the locks on the corridor doors
entering the Premises, with additional keys to
be furnished by the Landlord at Tenant's
expense. The Landlord at Tenant's expense shall
provide any keys or lock needed within the
Premises. Landlord reserves the right to change
these services upon notice.
"Signage":
Tenant shall have the right to placement on the
building monument sign and suite signage to
Canyon Park Standard. Tenant shall not place any
signs in the lobby or on the building without
receiving prior written approval from the
Landlord. This shall be consistent with the
guidelines and standards established for Canyon
Park. Tenant shall have signage rights on the
exterior
building monument sign, main level
lobby directory and
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additional premise entry signage placed there by
Landlord only.
"Tenant Improvements":
Tenant accepts the space "As Is" with no Tenant
Improvements provided.
"Term":
The Period commencing on the Commencement Date
(as defined below) and, subject to and upon the
terms and conditions set forth herein, or in any
exhibit or addendum hereto, continuing for 36
calendar months thereafter, provided, however,
that if the Commencement Date falls on a date
other than (he first day of a calendar month,
the expiration date of the primary term shall be
extended so as to give effect to the full term
specified above in addition to the remainder of
the calendar month during which the Commencement
Date falls.
Termination Rights:
Tenant shall have the right to terminate this
Lease after the twenty fourth month of Basic
Lease payment, provided Landlord has received
three (3) months prior written notice of
unequivocal and irrevocable termination.
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The foregoing Basic Lease Information is
hereby incorporated into and made a
part of the Lease attached hereto (the
"Lease").
Each reference in the Lease to any of the
information and definitions set forth
in the Basic Lease Information shall mean
and refer to the information and
definitions hereinabove set forth and shall
be used in conjunction with and
limited by all references thereto in the
provisions of the Lease. In the event
of any conflict between any Basic Lease
Information and the Lease, the Lease
shall control.
LANDLORD:
TCU Properties II, LLC, a Utah limited
liability company
Date: July 26, 2005
By: /s/ Allen Finlinson
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Name: Allen Finlinson
Title: Vice President-GM
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TENANT:
10x Marketing, a Utah LLC
Date: July 26, 2005
By: /s/ Curtis R. Porritt
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Name: Curtis R. Porritt
Title: President
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CANYON PARK TECHNOLOGY CENTER
OFFICE BUILDING LEASE
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THIS LEASE is
entered into as of this 26th day of July, 2005 (the "Lease
Date") among l0x Marketing ("Tenant"), and
TCU Properties II, LLC, a Utah
limited liability company ("Landlord").
1. Lease Grant and Term. Landlord, in
consideration of the rent to be paid and
the other covenants and agreements to be
performed by Tenant, dose hereby lease,
demise and let unto Tenant certain premises
(the "Premises") located in Building
A (the "Building") of Canyon Park
Technology Center (the "Park") as shown in
Exhibit A and Exhibit B hereto commencing
on the 1st day of July 2005 (the
"Commencement Date") and ending on midnight
on the last day of the month of June
30, 2008 (the "Term"). In addition to the
Premises, Tenant shall have reasonable
access to and use of all access ways,
lobbies, lavatories, hallways, and parking
areas common to the Premises and other
areas of the Building (the "Common
Areas"), provided that any use of the
Common Areas shall he subject to the rules
and regulations set forth in Exhibit C
hereto and any other reasonable rules and
regulations as Landlord may establish from
time to time and provide to Tenant in
writing.
2. Rent. Tenant shall pay to Landlord the
sum of $6,194.25 (the "Rent") each
month in advance on the first day of each
month in lawful money of the United
States to Landlord at 1501 N technology way
Building A, Suite 3300 Orem, Utah
84097 (or such other address as Landlord
shall designate in writing to Tenant)
without notice or demand and without any
abatement, deduction or set-off, for
each month of the entire Term. The Rent for
the first month shall be payable by
Tenant to Landlord upon the execution of
this Lease. The next monthly
installment of Rent shall be due and
payable without demand beginning on the
first day of the calendar month immediately
following the month in which the
Commencement Date occurs and continuing
thereafter on or before the first day of
each succeeding calendar month during the
Lease Term. Rent for any fractional
month at the beginning of the Lease Term
shall be prorated based on one-three
hundred sixty fifth (1/365) of the current
annual Rent for each day of the
partial month this Lease is in effect. If
all of any sum due under this Lease is
not received by its due date, then Tenant
shall pay, in addition to the sum
owed, a late payment charge equal to ten
percent (10%) of the sum (or portion
thereof) which is overdue. If a check
remitted to pay any sum due to Landlord
hereunder shall not be honored upon
presentment for payment, then Tenant in
addition to the amount owed, shall pay to
Landlord on demand a fee of five
percent (5%) of the amount owed.
3. Security Deposit. The Security Deposit
equal to $6,423.67 month of Rent is
due upon execution of the Lease. Landlord
shall hold the Security Deposit
without liability for interest and as
security for the performance by Tenant of
Tenant's obligations under this Lease.
Tenant agrees that such deposit will not
be considered an advance payment of rental
or a measure of Landlord's damages in
case of default by Tenant. Landlord may,
from time to time, without prejudice to
any other remedy, use such deposit to make
good any arrearage in any amount due
hereunder and to reimburse Landlord for any
other damage, injury, expense or
liability caused to Landlord by any breach
of this Lease. Following any such
application of the Security Deposit, Tenant
shall pay to
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Landlord on demand the amount so applied in
order to restore the Security
Deposit to its original amount.
4. Utilities, Services and Furniture.
Subject to the following limitations,
landlord shall furnish Tenant while Tenant
is occupying the Premises and
performing all of its obligations under
this Lease (i) heating, ventilation, and
air conditioning ("HVAC") in season, during
customary business hours as
reasonably defined by Landlord, and at such
temperatures and in such amounts as
are reasonably considered by Landlord to be
standard; (ii) janitorial service to
the Common Areas and Premises as is
reasonably considered by Landlord to be
standard on weekdays other than Holidays
(as hereinafter defined) and such
window-washing as may from time to time in
Landlord's judgment reasonably be
required; (iii) elevator service in common
with other tenant; (iv) replacement
of Building standard light bulbs and
fluorescent tubes; and (v) electric power
in the Premises sufficient to furnish power
for lighting, personal computers,
typewriters, voice writers, calculating
machines and other machines of similar
low electrical consumption standard to
executive offices. Also, Landlord shall
maintain the Common Areas of the Building
in reasonably good order and
condition; provided, however, that Tenant
shall reimburse Landlord for the cost
of repairing any damage to such areas
occasioned by Tenant, or its employees,
contractors, agents or invitees. Landlord's
Obligation to make available the
utilities described in this paragraph 4 is
subject to the rules and regulations
of the suppliers of utilities and of any
municipal or other governmental
authority regulating the business of
providing utility services. Landlord shall
not be responsible or liable to Tenant for
any loss, damage or expense that
Tenant may sustain or incur if either the
quality or character of any utility
services is changed. Landlord failure to
any extent to make available, or any
slowdown, stoppage or interruption of, the
service set forth in this Paragraph 4
resulting from any cause beyond Landlord's
control shall not render Landlord
liable in any respect for damage to person,
property or business, nor be
construed an eviction of Teanat or work an
abatement of Rent, nor relive Tenant
from fulfilling any covenant or agreement
hereof; however, Landlord shall use
reasonable efforts (and shall not be
required to employ any workers at overtime
rates) to resume said services in a timely
manner. Subject to availability,
Landlord shall provide furniture for the
Premises at no additional cost from
existing inventory in the Park, provided
such furniture is not being used by
Landlord or other tenants or is not
reasonably reserved for other tenants.
Tenant is responsible for any damage to
such furniture used by Tenant, normal
wear and tear excepted
5. Condition of Premises. TENANT EXPRESSLY
ACKNOWLEDGES THAT (A) TENANT HAS
THOROUGHLY EXAMINED THE PREMISES AND TAKES
AND ACCEPT THE PREMISES IN ITS "AS
IS" CONDITION ON THE COMMENCEMENT DATE, (B)
LANDLORD AND LANDLORD'S AGENTS AND
EMPLOYEES HAVE MADE NO REPRESENTATIONS OR
WARRANTIES AS TO THE CONDITION OF THE
PREMISES, THE BUILDING, THE PROPERTY OR THE
PARK NOR HAS LANDLORD MADE ANY
COMMITMENTS TO REMODEL, REPAIR OR
REDECORATE, EXCEPT AS EXPRESSLY SET FORTH
HEREIN AND (C) LANDLORD EXPRESSLY DISCLAIMS
ANY IMPLIED WARRANTY THAT THE
PREMISES ARE SUITABLE FOR TENANTS INTENDED
COMMERCIAL PURPOSE. TENANT EXPRESSLY
WAIVES AND RELEASES LANDLORD FROM ANY
IMPLIED WARRANTY NOT SET HEREIN
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6. Permitted Use. Tenant shall use the
Premises only for executive offices (the
"Permitted Use"). Tenants shall not occupy
or use the Premises, or permit any
portion of the Premises to be occupied or
used, for any business or purpose
other than the permitted Use or for any use
or purpose which is unlawful in part
or in whole or deemed by Landlord to be
disreputable in any manner, nor permit
anything to be done that will in any way
invalidate or increase the rate of
insurance on the Building or its contents.
Tenants shall promptly upon demand
reimburse Landlord for any additional
premium charged for any such insurance by
reason of Tenant's failure to comply with
the provisions of this Paragraph.
Tenant will conduct its business and
control its agents, employees and invitees
in such a manner as not to create any
nuisance, interfere with, annoy or disturb
other tenants or interfere with Landlord in
the management of the Building, the
Property or the Park. Tenant will maintain
the Premises in a clean, healthful
and safe condition and will comply with all
laws, ordinances, orders, rules,
regulations, or restrictions of or recorded
by all state, federal, municipal and
other agencies or bodied having
jurisdiction over the Premises and governing the
use, condition or occupancy of the
Premises, whether existing as of the
Commencement Date or enacted subsequent
thereto.
7. Repairs and Alterations. Tenants shall
keep and maintain the Premises in a
good, clean condition of repair and
maintenance. Tenant shall not damage or
injure the Premises. Tenant further agrees
not to commit or allow any waste or
damage to be committed on any portion of
the Building or Premises, and at the
termination of this Lease, by lapse of time
or otherwise. Tenant shall deliver
up the Premises to Landlord in as good
condition as at the Commencement Date.,
ordinary wear and tear expected. Tenant
shall not, without the prior written
consent of Landlord, paint, install
lightning or decorations (except wall
hangings), or install any signs, window or
door lettering or advertising media
of any type on or about the Building or
Premises, or any part thereof, or make
any other alterations, improvements or
physical additions in or to the Building
or Premises, or any part thereof. At the
termination of the Lease, at Landlord's
option and subject to the Landlord's right
to retain improvements desired by
Landlord, Tenant shall remove its
alterations, additions, and improvements, and
restore any portions of the Premises
altered, added to, or improved by Tenant to
the original condition.
8. Assignment and Subletting. Tenant shall
not, either voluntarily or by
operation of law, assign all or any portion
of this Lease, nor sublet the
Premises or any part thereof, nor permit
the Premises or any part thereof to be
occupied by any person other than Tenant or
Tenant's employees, without the
Prior written consent of Landlord.
9. Indemnity. Landlord shall not be liable
or responsible to Tenant for any loss
or damage to any property or person
occasioned by theft, act of a God, public
enemy, injunction, riot, strike,
insurrection, war, court order, requisition or
order of governmental body or authority, or
for any damage or inconvenience that
may arise through repair or alteration of
any part of the Building or any part
of the Park, or failure to make any such
repairs unless caused by the gross
negligence or willful misconduct of
Landlord. In addition, Landlord shall not be
liable to Tenant, or to Tenant's agents,
servants, employees, customers or
invitees for, and Tenant shall indemnify,
defend and hold harmless Landlord of
and form, all fines, suits, claims, demand,
losses,
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liabilities, actions and costs (including
court costs and attorneys' fees, at
trial and on appeal) arising in whole or in
part from (i) any injury to person
or damage to property caused by any act,
omission or neglect of Tenant, Tenant's
agents, servants, employees, customers or
invitees, (ii) Tenant's use of the
Premises or the conduct of Tenant's
business or profession, (iii) any activity,
work, or thing done, permitted or suffered
by Tenant in or about the Premises or
(iv) any breach or default in the
performance of any obligation on Tenant's part
to be performed under the terms of this
lease.
(a) Tenant shall defend, indemnify and hold harmless Landlord,
its
affiliates and its or their officers,
directors, employees and agents,
("Landlord's Indemnities") from and against
any and all claims arising from or
in connection with (i) any act or any
condition created in the Premises by
Tenant or Tenant's agents, employees,
invitees or contractors, or (ii) any
accident, bodily injury (including death)
or damage to property, including
damage to property or injury of Tenant or
its employees, agents, contractors, or
invitees occurring in the Premises, unless
(i) caused by the gross negligence of
Landlord, its agents, employees, or
contractors, or (ii) caused by or relating
to any breach or default by Landlord in the
full and prompt performance of
Landlord's obligations under this Lease
which remains uncured beyond a
reasonable period of time after Landlord is
given notice thereof by Tenant.
(b) Notwithstanding any provision to the contrary, Tenant shall
look
solely to Landlord's interests in the Park
in the event of any claim against
Landlord arising out of this Lease. No
other properties or assets of Landlord or
any agent or employee of Landlord shall be
subject to levy, execution or other
enforcement procedures for the satisfaction
of any remedy of Tenant arising out
of this Lease. Landlord in no event shall
be liable for consequential damages
arising out of any loss of use of the
Demised Premises or any equipment or
facilities therein by Tenant or any person
claiming through Tenant.
(c) Tenant shall maintain a policy of comprehensive general
liability
insurance pertaining to its use and
occupancy of the Premises hereunder, with
the premiums thereof fully paid in advance,
issued by and binding upon a solvent
insurance company qualified to do business
in the State of Utah, such insurance
to name Landlord as an additional insured.
Such policy shall afford minimum
protection of not less One Million and
No/100 Dollars ($1,000,000.00) combined
single limit for bodily injury, death to
any one person, or property damage in
any one occurrence. Additionally, Tenant
shall obtain and maintain "all risk"
insurance in respect to Tenant's stock in
trade, fixtures, furnishings, floor
covering, equipment and all other property
of Tenant in the Premises, insuring
100% insurable value of such property.
Landlord and the Tenant hereby waive any
and all rights of recovery against the
other or against the officers, agents,
employees, and representatives of loss or
damage occasioned to the Tenant or its
property of others under its control, to
the extent that such loss or damage is
covered under any insurance policies
carried by the Landlord or the Tenant, as
the case may be, and in force at the time
of such loss or damage.
10. Subordination. This Lease and all
rights of Tenant hereunder are and shall
be subject and subordinate to any deeds of
trust, mortgages or other instruments
of security ("Security
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Instruments"), as well as to any ground
leases or primary leases ("Master
Leases"), that now or hereafter cover any
of the Property or any interest of
Landlord therein, and to any and all
advances made on the security thereof, and
to any and all increases, renewals,
modifications, consolidations, replacements
and extensions thereof. Landlord hereby
expressly reserves the right, at its
option and declaration, to place Security
Instruments and Master Leases on and
against any of the Building or Premises or
any interest of Landlord therein,
superior in effect to this Lease and the
estate created hereby. This clause
shall be self-operative and no further
instrument of subordination need be
required, however, upon Landlord's request,
or upon the request of any holder (a
"Holder") under any Security Instrument, or
of any lessor (a "Lessor") under any
Master Lease, Tenant shall execute promptly
any instrument (including without
limitation an amendment to this Lease that
does not materially and adversely
affect Tenant's rights or duties under this
Lease) or instruments intended to
subordinate this Lease or to evidence the
subordination of this Lease to any
such Security Instrument or Master Lease.
Tenant hereby appoints Landlord
Tenant's attorney in fact to execute any
such instrument for and on behalf of
Tenant. In the event of the enforcement by
a Holder under any Security
Instrument of the remedies provided for by
law or by such Security Instrument,
or in the event of the termination of any
Master Lease, the Holder or the Lessor
may terminate this Lease or may continue
this Lease in full force and effect as
a direct lease between such Holder or
Lessor and Tenant. If the Holder or Lessor
continues this lease, Tenant will attorn to
and automatically become the tenant
of such successor in interest without
change in the terms or other provisions of
this Lease (Tenant hereby waiving any right
Tenant may have to terminate this
Lease or surrender possession of the
Premises) and this Lease shall continue in
full force and effect; provided, however,
that such successor in interest shall
not be bound by or liable for (i) any
payment of Rent for more than one month in
advance, (ii) any amendment or modification
of this Lease made without the
written consent of such Holder, Lessor or
successor in interest, or (iii) any
offset, claim or cause of action which
Tenant may have against Landlord relating
to the period which is prior to the time
Tenant becomes the tenant of such
successor in interest. Upon request by any
Holder, Lessor or successor in
interest to either, Tenant shall execute
and deliv
