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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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. Fai
