EX-10.43
LEASE AGREEMENT
This Lease Agreement (the "Lease") dated this 27th day of January,
1995, by and between Scrub Oak, Ltd., a Utah Limited Partnership (the
"Landlord") with a place of business at 75 West Center and Nu Skin
International, Inc. (the "Tenant") with a place of business at 75 West Center
Street, Provo, Utah 84601.
1. Premises. Landlord hereby leases to Tenant and Tenant hires from Landlord for
the term of this Lease upon the conditions set forth below certain commercial
property located at approximately 75 West Center Street, Provo, Utah,
("Premises") and more specifically described on Exhibit A. The lease of the
Premises is subject to all conditions, covenants and restrictions, reciprocal
easements and other matters that are now or that may hereafter become of record
with respect to the Premises.
2. Term. The term of this Lease shall be for twenty (20) years commencing on the
date first above written and ending twenty (20) years thereafter.
3. Rent. Tenant shall pay to Landlord as fixed rent for the first five (5) years
of this lease, the sum of One Million Six Hundred Eighty Thousand and No/100
Dollars ($1,680,000.00) per year payable at the rate of One Hundred Forty
Thousand and No/100 Dollars ($140,000.00) per month. All rent shall be payable
in advance in lawful money of the United States on or before the first business
day of each calendar month of the term, without demand therefore or any
deduction or offset, at the offices of Landlord located at the address set forth
above or such other place as the Landlord may direct by written notice given to
Tenant.
4. Triple Net Lease. As provided hereafter, Tenant is responsible for the
payment of all taxes, utilities, insurance and maintenance incurred with respect
to the use of the leased premises, and hereby releases and holds Landlord
harmless for the payment of the same.
5. Use of Premises. The Premises shall be used and occupied by Tenant solely for
the main and related purposes of office space. Tenant shall, at Tenant's
expense, comply promptly with all applicable statues, ordinances, rules,
regulations, orders and requirements in effect during the term of this Lease
regulating the use by Tenant of the Premises. Tenant shall not use or permit the
use of the Premises in any manner than will tend to create waste or a nuisance
or which shall tend unreasonably to disturb other tenants of the Building.
Notwithstanding any other provision of this Lease, Tenant shall not use, keep or
permit to be used or kept on the Premises any foul or noxious gas or substance,
nor shall Tenant do or permit to be done anything in and above the Premises,
either in connection with activities hereunder expressly permitted or other
wise, which would cause a cancellation of any policy of insurance (including
fire insurance) maintained by Landlord in connection with the Premises or the
Building. Tenant shall forthwith pay to Landlord upon demand therefor the amount
of any additional insurance assessed to Landlord with respect to the Premises
and the Building on account of activities of Tenant or Tenant's vacation of the
Premises, whether or not they are permitted by this Lease. Tenant shall comply
with all restrictive covenants, easements and requirements that may be of record
either presently or in the future and that burden the Premises. Tenant shall
faithfully observe and comply with the rules and regulations that Landlord shall
from time to time promulgate respecting use and occupancy of the Building. Such
rules and regulations shall be binding upon Tenant upon delivery of a copy of
them to Tenant. Landlord shall not be responsible to Tenant for the breach
thereof by any other tenants of the Building or occupants if applicable.
Tenant's occupancy of the Premises shall be deemed to be an acceptance of the
Premises "as is" and an acknowledgement that the Premises have been
satisfactorily completed and are in good condition, except for latent defects.
6. Maintenance, Repairs and Alterations.
a. Landlord's Maintenance Obligations. Subject to the provisions of
paragraph 7 below, and except for damage caused by Tenant, its agents or
invitees, Landlord shall keep in good condition and repair the foundations,
exterior walls and roof of the Building, utility lines to the Premises (but not
including utility distribution services within the Premises), and major repaving
work in parking areas adjacent to the Building, normal wear and tear excepted.
Unless otherwise agreed in writing Landlord shall not be obligated to make any
repairs under this subparagraph until a reasonable time after receipt of written
notice of the need for such repairs; and Tenant shall not be entitled to any
damages or abatement of rent during the period of such repairs.
b. Tenant's Alteration of Premises. Tenant shall not, without
Landlord's prior written consent , make any alterations, improvements or
additions in or about the Premises, including, without limitation, the extension
of any utility lines within the Premises. As a condition to giving consent,
Landlord may require that Tenant remove any such alterations, improvements or
additions at the expiration of the term, and restore the Premises to their prior
condition. Before commencing any work relating to alterations, additions, or
improvements affecting the Premises, Tenant shall notify Landlord in writing of
the of the expected date of commencement thereof and shall, at Landlord's
option, and at Tenant's expense, provide Landlord a payment and performance bond
in an amount equal to one and one-half times the estimated cost of such
improvements to insure completion of the work. Tenant shall provide workmen's
compensation, public liability and property damage insurance that are
satisfactory to Landlord during the period of construction. Landlord shall then
have the right at any time and from time to time to stop and maintain on the
Premises such notices as Landlord reasonably deems necessary to protect the
Premises and Landlord from mechanics' liens, or any other liens. In any event,
Tenant shall pay, when due, all claims for labor or materials furnished to or
for Tenant at or for use in the Premises. Tenant shall not permit any mechanics'
or materialsmen's liens to be levied against the Premises for any labor or
material furnished to Tenant or claimed to have been furnished to Tenant or to
Tenant's agents or contractors in connection with work of any character
performed or claimed to have been performed on the Premises by or at the
direction of Tenant and shall indemnify Landlord against its costs (including
attorneys fees) for defending against the same. If Tenant defaults under any of
its obligations hereunder, then Landlord may, but shall not be required to, pay
any lien or claim and any costs (including a reasonable attorney's fee)
associated therewith, whereupon Tenant shall immediately pay Landlord the entire
amount that is so advanced by Landlord. Unless Landlord requires their removal,
as set forth above, all alterations, improvements or additions which may be on
the Premises shall become the property of Landlord and remain upon and be
surrendered with the Premises at the expiration of the term; provided, however,
that Tenant's machinery, equipment and trade fixtures, other than any which may
be affixed to the premises so that they cannot be removed without material
damage to the Premises, shall remain the property of Tenant and may be removed
by Tenant, if Tenant is not then in default hereunder.
7. Indemnity.
a. Indemnification by Tenant. Tenant shall indemnify, defend, and hold
Landlord harmless from any and all claims arising from Tenant's use of the
Premises or from the conduct of its business or from any activity, work, or
thing, which may be permitted or suffered by Tenant in or about the Premises and
shall further indemnify, defend, and hold Landlord harmless from and against any
and all claims from any breach or default in the performance of any obligation
or Tenant's part to be performed under the provisions of this Lease or assigning
from any negligence of Tenant of any of its agents, contractors, employees, or
invitees and from any all cost, attorney's fees, expenses, and liabilities
incurred in the defense of any claim or any action or proceeding brought
thereon, including negotiations in connection therewith. Tenant hereby assumes
all risk of damage to property or injury to persons in or about the Premises
from any cause, and Tenant hereby waives all claims in respect thereof against
Landlord, excepting where said damage arises out of Landlord's negligence or
intentional acts.
b. Landlord's Obligation. Tenant hereby agrees Landlord shall not be
liable for injury to Tenant's business or any loss of income therefrom or for
damage to the goods, wares, merchandise or other property of Tenant, Tenant's
employees, invitees, customers, or any other person in or about the Premises;
nor, unless through Landlord's negligence or intentional torts, shall Landlord
be liable for injury to the person of Tenant, Tenant's employees, agents or
contractors and invitees, whether such damage or injury is caused by or results
from fire, steam, electricity, gas, water or rain, or from the breakage,
leakage, obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures, or from any other cause,
whether the said damage or injury results from condition arising upon the
Premises or upon other portions of the Building, or from other sources or
places, and regardless of whether the cause of such damage or injury of the
means of repairing the same is inaccessible to Landlord or Tenant. Landlord
shall not be liable for any damages arising from any act or neglect of any other
tenant, if any, of the Building, or such other Tenant's agents, contractors,
employees or invitees.
8. Damage or Destruction.
a. Complete Insurance Coverage. If during the term of this Lease the
Premises are totally or partially destroyed, or any other portion of the
Building is damaged in such a way that Tenant's use of the Premises is
materially interfered with, from a risk which is wholly covered by insurance,
then Landlord shall proceed with reasonable diligence to repair the damage or
destruction and the Lease shall not be terminated; provided, however, that if in
the opinion of the Landlord's architect, contractor, or engineer, the work of
repair cannot be completed in ninety (90) days, then Landlord may at its
election terminate the Lease upon written notice given to Tenant.
b. Partial Insurance Coverage. If during the term of this Lease the
Premises are totally or partially destroyed, or any other portion of the
Building is damaged in such a way that Tenant's use of the Premises is
materially interfered with, from a risk which is wholly covered by Landlord's
insurance, then Landlord may at its election restore the Premises or terminate
this Lease.
c. Abatement of Rent. In case of destruction or damage which materially
interferes with the Tenant's use of the Premises, where the Lease is not
terminated as above provided, and in case such damage was not caused or
contributed to be the act of negligence of Tenant, its agents, employees,
invitees or those from whom Tenant is responsible, rent shall be abated during
the period required for the work of repair as to that portion of the Premises
that is rendered untenantable. Except for abatement of rent, Tenant shall have
no claim against Landlord for any loss suffered by Tenant due to damage or
destruction of the Premises or any work of repair undertaken as herein provided.
d. Insurance Proceeds. In no event shall Tenant be entitled to receive
any insurance proceeds that are payable to Landlord as a result of damage to the
Premises, whether or not Landlord elects to make any repairs pursuant to this
paragraph.
9. Real and Personal Property Taxes.
a. Tenant's Obligation. Tenant shall pay the prior to delinquency all
taxes, assessments, and fees assessed against and levied upon the real property
as well as personal property including trade fixtures, furnishings, equipment
and all other personal property of Tenant contained in the Premises or
elsewhere.
b. Tax Increase Due to Tenant's Improvements. Tenant shall pay the
total amount of any increase in real property taxes resulting from any and all
improvements of any kind whatsoever placed on or in the Premises or the Building
for the benefit of or at the request of Tenant regardless of whether said
improvements were installed or constructed either by Landlord or Tenant, except
those items included with the original Premises.
10. Assignments and Subletting.
a. Tenant shall not voluntarily or by operation of law assign,
transfer, mortgage, sublet, or otherwise transfer or encumber all or any part of
Tenant's interest in this Lease or in the Premises without Landlord's prior
written consent, which consent Landlord shall not unreasonably withhold. Any
attempted assignment, transfer, mortgage, encumbrance, or subletting without
such consent shall be void and shall constitute a breach of the Lease.
b. Landlord's Costs. Tenant shall pay all costs and expenses, including
reasonable attorney's fees, incurred by Landlord in connection with Landlord's
review of and participation in any proposed assignment, subletting, encumbrance
or other transfer.
c. Landlord's Assignment. Regardless of Landlord's consent, no
subletting or assignment shall release Tenant of Tenant's obligation to pay the
rent and perform all other obligations to be performed by Tenant hereunder for
the Term of this Lease. The acceptance of rent by Landlord from any other person
shall not be deemed to be a waiver by Landlord of any provision hereof. Consent
to one assignment or subletting shall not be deemed consent to any subsequent
assignment of subletting.
d. Landlord's Assignment. Landlord shall have the right to transfer,
encumber, and assign, in whole or part, its right, title estate and obligations
in the Premises and the Building. From and after the date of such assignment or
transfer, Landlord shall be released from all liability with respect to
Landlord's obligations hereunder; provided however, that any security deposits
with respect to the Premises shall be delivered to Landlord's assignee, and
provided that the terms herein shall be binding upon transferees and assignees
for the term of this Lease. Tenant shall be bound to such assignee in accordance
with the provisions of this Lease and shall attorn to such assignee.
e. Landlord's Lien. As security for Tenant's performance of its
obligations hereunder, Tenant, hereby grants Landlord a security interest in all
equipment inventory and other personal property that is owned in whole or in
party by Tenant and that is located either presently or subsequently upon the
Premises. To the extent that this paragraph grants Landlord greater rights then
are provided by the Utah Lessor's Liens law, Utah Code Annotated ss. 38-3-1 to
ss. 38-3-8 (1974, Supp. 1981, 1987 and as amended from time to time), this
paragraph shall be construed as a security agreement under the Utah Uniform
Commercial Code. At Landlord's request shall execute and deliver to Landlord a
Financing Statement for the purpose of perfecting Landlord's security interest
under this Lease.
11. Tenant's Default. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Tenant:
a. Abandonment. The vacating or abandonment of the Premises by Tenant.
b. Failure to Pay Amounts Due. The failure by Tenant to make any
payment of rent or any other payment required to be made by Tenant hereunder, as
and when due
c. Failure to Perform Other Covenants. The failure by Tenant to observe
or to perform any of the covenants, conditions or provision of this Lease to be
observed or performed by Tenant, where such failure continues for a period of
thirty (30) days after written notice thereof from Landlord to Tenant; provided,
that if the nature of Tenant's default is such that more than thirty (30) days
are reasonably required for its cure, then Tenant shall not be deemed to be in
default if Tenant commences such cure within said thirty (30) day period and
thereafter diligently prosecutes such cure to completion.
d. Tenant's Insolvency. The making by Tenant of any general assignment,
or general arrangement for the benefit of creditors; the filing by or against
Tenant of a petition to have Tenant adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy (unless, in
the case of a petition filed against Tenant, the same is dismissed within (60)
days); the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets or of Tenant's interest in this Lease,
where possession is not restored to Tenant within thirty (30) days; or the
attachment, execution or other judicial seizure of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease, where such
seizure is not discharged within thirty (30) days.
12. Landlord's Remedies. In the event of any such default or breach of Tenant,
Landlord at any time thereafter, with or without notice or demand and without
limiting Landlord in the exercise of any other right or remedy which Landlord
may have by reason of such default or breach, shall have the following rights
and remedies:
a. Termination of Lease. Landlord may terminate this Lease and all
rights of Tenant hereunder by giving Tenant written notice of such termination.
If Landlord so terminates this Lease, then Tenant shall immediately surrender
the Premises to Landlord and Landlord may recover from Tenant the sum of:
(1) Past Due Rent. The worth at the time of award of any
unpaid rent which had been earned at the time of termination;
(2) Rent From Termination to Time of Award. The worth at the
time of award of the amount by which the unpaid rent which would have
been earned after termination until the time of award exceeds the
amount of such rental loss that Tenant proves could have been
reasonably avoided;
(3) Rent After Time of Award. The worth at the time of award
of the amount by which the unpaid rent for the balance of the term
after the time of award exceeds the amount of such rental loss that
Tenant proves could be reasonably avoided;
(4) Landlord's Detriment. Any other amount necessary to
compensate Landlord for all the detriment proximately caused by
Tenant's failure to perform Tenant's obligations hereunder or which,
the ordinary course of things, would be likely to result therefrom,
including leasing commissions, attorney's fees, and Tenant improvement
expenses incurred in reletting the Premises.
(5) Miscellaneous Amounts. All such other amounts in addition
to or in lieu of the foregoing as may be permitted from time to time by
applicable Utah law, and
(6) Calculation of Rental Amounts. As used in subparagraph
12(a)(2), the "worth at the time of award" shall be computed by
allowing interest at the rate of eighteen percent (18%) per annum. As
used in subparagraph 12(a)(3) above, the "worth at the time of award"
shall be computed by discounting such amount at the rate of the Federal
Reserve Bank of San Francisco at the time of award plus one percent
(1%). As used in this paragraph the term "rent" shall include both
charges equivalent to rent and any other periodic payments to be made
by Tenant hereunder (including, without limitation, Tenant's share of
parking lot, common area and landscape maintenance cost; utility costs
and real property taxes).
b. Recovery of Rent if Lease Not Terminated. If Tenant vacates,
abandons, or surrenders the Premises without Landlord's consent, of if Landlord
re-enters the Premises as provided below or takes possession of the Premises
pursuant to legal proceedings (less the net proceeds, if any, of reletting the
Premises after deducting Landlord's expenses in connection with such reletting,
including without limitation attorneys' fees, lease commissions and alteration
costs) and if Landlord may, from time to time recover all rent and other amounts
payable hereunder as they become due and/or relet the Premises, any part thereof
or the Premises and additional portions of the Building on behalf of Tenant for
such term (which may be shorter or longer than the original term thereof) at
such rent and pursuant to such other provisions (which may include the
alteration and repair of the Premises) as Landlord in its sole discretion may
deem advisable. Landlord reserves the right following such re-entry and/or
reletting to exercise its right to terminate this Lease upon giving Tenant
written notice.
c. Removal of Property From Premises. Upon an event of default
hereunder, Landlord shall also have the right, with or without terminating this
Lease, to re-enter the Premises and to remove all persons and property
therefrom. Landlord may cause property so removed from the Premises to be stored
in a public warehouse or elsewhere at the expense and for the amount of Tenant
and may cause the same to be disposed of in accordance with the provisions of
Utah law.
d. Non-Termination of Lease. None of the foregoing remedial actions,
singly or in combination, shall be construed as an election by Landlord to
terminate this Lease unless Landlord has in fact given Tenant written notice
that this Lease is terminated or unless a court of competent jurisdiction
decrees termination of this Lease: any act by Landlord to maintain or preserve
the Premises; any efforts by Landlord to relet the Premises; any re-entry,
repossession or reletting of the Premises by Landlord pursuant to the foregoing
provisions; the appointment of a receiver, upon the initiative of Landlord's
interest under this Lease; or a notice from Landlord under a forcible entry and
unlawful detainer statute.
e. Default by Landlord. If Tenant fails to perform any of its
obligations hereunder, then Landlord, in its sole discretion, may advance sums
or take action that may be necessary to cure Tenant's breach. Tenant shall repay
Landlord all such amounts, together with interest thereon, as herein provided,
immediately upon Landlord's making demand therefore.
13. Default by Landlord. Landlord shall not be in default hereunder unless
Landlord fails to perform obligations required of Landlord hereunder within a
reasonable time, but in no event later than thirty (30) days after written
notice is given by Tenant to Landlord specifying wherein Landlord has failed to
perform such obligation; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required for performance,
then Landlord shall not be in default if Landlord commences performance within
such thirty (30) day period and thereafter diligently prosecutes the same to
completion.
14. Condemnation.
a. Definitions.
(1) "Condemnation" means the exercise of any governmental
power, whether by legal proceedings or otherwise, by a condemnor and
(b) a voluntary sale or transfer by Landlord to any condemnor, either
under threat of condemnation or while legal proceedings for
condemnation are pending.
(2) "Date of taking" means the date the condemnor has the
right to possession of the property being condemned.
(3) "Award" means all compensation, sums, or anything of value
awarded, paid, or received on a total or partial condemnation.
(4) "Condemnor" means any public or quasipublic authority, or
private corporation, or individual, having the power of condemnation.
b. Total Taking. If during the Term of this Lease the Building is
totally taken by Condemnation, then this Lease shall terminate on the date of
taking.
c. Partial Taking. If during the Term of this Lease any portion of the
Building or attached parking facility, if any, is taken by Condemnation, then
this Lease shall remain in effect, except that Tenant may elect to terminate
this Lease if such taking renders the Premises unsuitable for Tenant's continued
use and occupation. If Tenant elects to terminate the Lease pursuant to this
provision, then Tenant must do so by written notice given to the Landlord no
later than (30) days after the date of taking. If Tenant does not terminate the
Lease within such period, then the Lease shall continue in full force and
effect, subject to abatement of rent as provided below.
d. Abatement of Rent. If any portion of the Building or the attached
parking facility, if any, is taken by condemnation and if this Lease is not
terminated then as of the date of taking the monthly rental otherwise payable
hereunder shall be abated as to that portion of the Premises that is rendered
untenantable.
e. Right to Award. The award shall belong to and be paid over to
Landlord. Tenant waives any interest therein based upon the value of its
leasehold interest thereunder, excepting any claim that Tenant may have against
Condemnor only for Tenant's moving expenses.
15. Notices. Any notice to be given by either party hereto shall be in writing
and shall be either personally delivered or mailed by certified mail, postage
prepaid to Landlord at the office where rent is payable as provided above and to
Tenant at the Premises. Such notice shall be deemed to be given at the time of
delivery if delivered personally, or three (3) business days after the date of
the postmark, if mailed, as to the case may be.
16. Estoppel Certificate.
a. Tenant's Execution of Certificate. Tenant shall at any time upon not
less than five (5) days prior to written notice from Landlord execute,
acknowledge and deliver to Landlord a statement in writing (1) certifying that
this Lease is unmodified and in full force and effect (or, if modified, stating
the nature of such modification and certifying that this Lease, as so modified,
is in full force and effect) and the date to which the rent, security deposit,
and other charges are paid in advance, if any, and (2) acknowledging that there
are not, to Tenant's knowledge, any uncured defaults on the part of Landlord
hereunder, or specifying such defaults, if any, which are claimed. Any such
statement may be conclusively relied upon by any prospective purchaser or
encumbrancer of the Premises.
b. Failure of Tenant to Execute Certificate. Tenant's failure to
deliver such statement within such time shall be conclusive upon Tenant (1) that
this Lease is in full force and effect, without modification except as may be
represented by Landlord, (2) that there are no uncured defaults in Landlord's
performance and (3) that not more than one (1) month's rent has been paid in
advance.
c. Delivery of Financial Statements. If Landlord desires to finance or
refinance the Premises or the whole or a portion of the Building, then Tenant
shall deliver to any lender designated by Landlord such financial statements of
Tenant as may be reasonably required by such lender. All such financial
statements shall be received by Landlord in confidence and shall be used for the
purposes herein set forth.
17. Subordination.
a. Subordination. This Lease, at Landlord's option, shall be shall be
subordinate to any ground lease, mortgage, deed of trust, or any other
hypothecation for security now or hereafter placed upon the real property of
which Premises are part and to any and all advances made on the security thereof
and to all renewals, modifications, consolidations, replacements and extensions
thereof. Notwithstanding such subordination, Tenant's right to quiet possession
of the Premises shall not be disturbed if Tenant is not in default and so long
as Tenant shall pay the rent and observe and perform all of the provisions of
this Lease, unless this Lease is otherwise terminated pursuant to its terms. If
any mortgagee, trustee or ground lessor shall elect to have this Lease prior to
the lien of its mortgage, deed of trust or ground lease, and shall give written
notice thereof to tenant, then this Lease shall be deemed prior to such
mortgage, deed of trust, or ground lease, whether this Lease is dated prior or
subsequent on the date of said mortgage, deed of trust, or ground lease or the
date of recording thereof.
b. Documentation. Tenant shall execute any documents required to
effectuate such subordination or to make this lease prior to the lien of any
mortgage, deed of trust or ground lease, as the case may be, and Tenant's
failing to do so within ten (10) days after receiving Landlord's written demand
does hereby make, constitute and irrevocably appoint Landlord as Tenant's
attorney in fact and in Tenant's name, place and stead, to do so.
18. Attorney's Fees. If any legal action is taken to interpret or enforce any
provision of this Lease or on account of a breach thereof, then the prevailing
party shall be entitled, in addition to any other remedy available in law or
equity, to recover its costs, expenses and reasonable attorney's fees actually
incurred in connection therewith or in connection with negotiations prior
thereto, whether such costs, expenses or fees are incurred with or without suit,
at trial or on appeal.
19. Signs. Tenant shall no place or suffer to be placed or maintained on any
exterior door, wall, or window of the Premises or the Building, any sign,
awning, or canopy, or advertising matter or other thing of any kind, and will
not place or maintain any decoration , lettering, or advertising matter on the
glass of any window or door of the Premises without first obtaining Landlord's
written approval. Tenant shall maintain any such sign, awning, canopy,
decoration, lettering, advertising matter, or other things as may be approved in
good condition and repair at all times and at Tenant's expense shall remove such
signs and advertising matter at the termination of this Lease. Tenant's
installation, maintenance and removal of said signs and advertising matter shall
be made in such manner so as to avoid any damage to the Premises and the
Building.
20. General Provisions.
a. Interpretation. This Lease shall be governed by and construed in
accordance with the laws of the State of Utah. The captions that precede the
paragraphs of this Lease are for convenience of reference only and shall in no
way affect the manner in which any provision herein is construed as if such
covenant is independent, and Tenant shall not be entitled to any offset of the
amounts that are due to Landlord hereunder if Landlord does not perform its
obligations hereunder.
b. Invalidity. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
c. Complete Agreement. This Lease contains all agreements of the
parties with respect to any matter mentioned herein. This Lease may be modified
only in writing signed by the parties hereto. No representations have been made
to induce the parties to enter into this Lease except as are set forth herein.
d. Waiver. No waiver by Landlord of any provision hereof shall be
deemed a waiver of any provision hereof or of any subsequent breach by Tenant of
the same or any other Provision. Landlord's consent to or approval of any act
shall be deemed to render unnecessary the obtaining of Landlord's consent to or
approval of any subsequent act by Tenant. The acceptance of rent hereunder by
Landlord shall not be a waiver of any proceeding breach by Tenant of any
provision hereof, other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent. No failure or delay of Landlord in the exercise
of any rights shall constitute a waiver thereof, nor shall any single or partial
exercise of any rights preclude other or further exercises thereof or of any
other right.
e. Recordation. Tenant shall not record this Lease. Any such
recordation shall be a breach hereof.
f. Holding Over. If Tenant remains in possession of the Premises or any
part thereof after the expiration of the Term hereof with the consent of
Landlord then such occupancy shall be a tenancy from month to month at a rental
in the amount of the last month's rental during the Term hereof plus all other
charges payable hereunder, and upon all other terms hereof.
g. Remedies. No remedy or election hereunder shall be deemed exclusive,
but shall, wherever possible, be cumulative with all other remedies at law or in
equity, by statute or otherwise and including without limitation, injunctive
relief and specific performance.
h. Covenants and Conditions. Each provision of this Lease that is
performable by Tenant shall be deemed both a covenant and a condition.
i. Investment. Subject to the provisions of this Lease restricting
assignment or subletting by Tenant, this Lease shall bind and shall inure to the
benefit of the parties hereto, their personal representatives, successors and
assigns.
j. Inspection of Premises. Landlord and Landlord's agent shall have the
right to enter the Premises at all reasonable times for the purpose of
inspecting the same, showing the same to prospective purchasers, or lenders and
making such alterations, repairs, improvements or additions to the premises or
to the Building or which they are a part as Landlord may deem necessary or
desirable. Landlord may at any time place on or about the Premises any ordinary
"For Sale" signs and Landlord may at any time during the last one hundred twenty
(120) days of the term hereof place on or about the Premises any ordinary "For
Sale or Lease" signs, all without rebate of rent or liability to Tenant.
k. Auctions. Tenant shall not conduct any auction at the Premises,
without Landlord's prior written consent.
l. Merger. The voluntary or other surrender of this Lease by Tenant, or
a mutual cancellation thereof, shall not work a merger, and shall, at the option
of Landlord, terminate all or any existing subtenancies or may, at the option of
Landlord, operate as an assignment to Landlord of any or all of such
subtenancies.
m. Authority. If Tenant is a corporation, then each individual
executing this Lease on behalf of said corporation represents and warrants that
he or she is duly authorized to execute and deliver this Lease on behalf of said
corporation and that this Lease is binding upon said corporation in accordance
with its terms.
n. Landlord. The term "Landlord" as used herein means the owner of the
Building for the time being only and in the event of a sale of such Building,
Landlord shall be automatically relieved of all obligations of Landlord
hereunder, except for acts or omissions of Landlord theretofore occurring.
o. Interest and Service Charge. If Tenant fails to pay any rent,
additional rent or other sum that is due hereunder when the same is due, then
Tenant shall pay Landlord interest on such unpaid amounts at the rate of
eighteen percent (18%) per annum from the due date thereof to the date of
payment. In addition thereto, at Landlord's option, Tenant shall pay Landlord a
sum of Fifty Dollar ($50.00) for each delinquent payment as a service fee.
p. Additional Documents. The parties thereto shall do such further acts
and things and shall execute, acknowledge and deliver such additional documents
and instruments as may be necessary or desirable to carry out the intent of the
Lease or as the other party, or its counsel, may reasonably require to
consummate, evidence or confirm the provisions contained herein.
q. Time of the Essence. Time is the essence of this Lease.
r. Force Majeure. Landlord and Tenant shall be excused for the period
of any delay in the performance of any obligations hereunder when prevented from
so doing by cause of causes beyond Landlord's or Tenant's control, including
labor disputes, civil commotion, war, governmental regulations or controls, fire
or other casualty, inability to obtain any materials or services, or acts of
God.
s. Recourse by Tenant. Notwithstanding anything contained in this Lease
to the contrary, Tenant shall look solely to the estate and property of Landlord
in the land and buildings comprising the Building, subject to prior rights of
any mortgagee of the Building, or any part thereof, for the collection of any
judgment or other judicial process requiring the payment of money by Landlord
with respect to any of the terms, covenants and conditions of this Lease to be
observed and/or performed by Landlord, and no other assets of Landlord shall be
subject to levy, execution, or other procedures for the satisfaction of Tenant's
remedies.
t. Joint and Several Liability. If there is more than one Tenant, then
all liability of Tenant hereunder shall be joint and several.
u. Authority of Signatories. Each person executing this individually
and personally represents and warrants that he is duly authorized to execute and
deliver the same on behalf of the entity for which he is signing (whether it be
a corporation, general or limited partnership, or otherwise), and that his Lease
is binding upon said entity in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed as of the day and year first above written.
LANDLORD: SCRUB OAK, LTD.
BY: NU SKIN INTERNATIONAL, INC. (General Partner)
By: /s/Michael D. Smith
Name: Michael D. Smith
Its: General Counsel
TENANT: NU SKIN ENTERPRISES, INC.
By: /s/Michael D. Smith
Name: Michael D. Smith
Its: General Counsel
EXHIBIT A - LEGAL DESCIPTION OF THE PREMISES
State of Utah, County of Utah:
PARCEL 1: Commencing at the Southwest corner of Block 66, Plat "A",
Provo City Survey of Building Lots; and running thence North
396.00 feet, more or less to the Northwest corner of said
Block 66; thence East 110.00 feet; thence South 396.00 feet
more or less, to a point due East of the point of beginning;
thence West 110.00 feet to the place of beginning.
PARCEL 2: Commencing at a point 110.00 feet East of the Northwest
corner of Block 66, Plat "A", Provo City survey of Building
lots; and running thence East 60.00 feet; thence South 233.00
feet; thence West 60.00 feet; thence North 233.00 feet to the
point of beginning.
PARCEL 3: Commencing at a point South 89(degree)38'45" East 110.00
feet from the Southwest corner of Block 66, Plat "A", Provo
City survey of Building Lots; thence North 00(degree)18'34"
East 165.675 feet; thence South 89(degree)30'01" East 15.0
feet; thence South 00(degree)18'34" West 165.74 feet; thence
North 89(degree)38'52" West 15.0 feet to the point of
beginning.
Together with all buildings, fixtures, and improvements thereon and all
water rights, easements, rents, issues, profits, income, tenements,
hereditaments, privileges and appurtenances thereto belonging now, or hereafter
used, or enjoyed with said property or any parts thereof ("Premises").