EX-10.42
WAREHOUSE LEASE AGREEMENT
This Warehouse Lease Agreement ("Lease") is entered into on this day of
March, by and between Nu Skin International, Inc. ("Lessee") having a place of
business at 00 Xxxx Xxxxxx Xxxxxx, Xxxxx, Xxxx 00000 and Aspen Investments,
Ltd., having a place of business at 00 Xxxx Xxxxxx Xxxxxx, Xxxxx, Xxxx 00000
("Lessor"). The Lessor and Lessee are collectively hereinafter referred to as
the "Parties."
RECITALS
A. Lessor is the sole owner of the premises described below, having warehouse
space for lease in such premises.
B. Lessee is in the business of marketing and selling personal and health care
products and desires to lease warehouse and office space from Lessor.
AGREEMENT
In consideration of the mutual covenants contained herein, the Parties
agree as follows:
1. Leased Premises.
1.1 Lessor hereby leases to Lessee the premises ("Premises") located
at 000 Xxxx 0000 Xxxxx, Xxxxx, Xxxx 00000, commonly known as the
Nu Skin Warehouse.
1.2 The Premises shall be used as a warehouse and offices.
2. Term.
2.1 The term ("Term") of this Lease shall be two (2) years and shall
commence retroactively on February 1, 1996 and shall terminate
on February 1, 1998 unless otherwise renewed.
2.2 Lessee shall surrender the Premises to Lessor immediately upon
termination of this Lease.
3. Rent.
3.1 Lessee shall pay to Lessor as fixed rent for the term of this
Lease, the sum of Six Hundred Seventy Five Thousand and No/100
Dollars ($675,000.00) per year payable at the rate of Fifty Six
Thousand Two Hundred Fifty Dollars ($56,250.00) per month due on
the first day of each month.
3.2 Lessee acknowledges that the late payment by Lessee to Lessor of
rent or other sums due under this Lease will cause Lessor to
incur costs not contemplated by this Lease, the exact amount of
which would be extremely difficult and impractical to ascertain.
In the event Lessee should fail to pay any installment of rent
or any other sum due under his Lease within 10 days after such
sum is due, Lessee shall pay to Lessor, as additional rent, a
late charge equal to 10 percent (10 %) of each installment or
sum. Waiver of the late charge with respect to any installment
or sum shall not be deemed to constitute a waiver with respect
to any subsequent installment or sum so due.
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4. Triple Net Lease. As provided hereafter, Lessee 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
Lessor harmless for the payment of the same.
5. Use.
5.1 Lessee shall use the Premises solely for the main and related
purposes of inventory storage, shipping, packaging and office
space. Lessee shall comply with all rules, regulations,
ordinances, statutes, and other lawful requirements of
governmental agencies, consistent with Lessee's use thereof.
5.2 Lessee shall not use or permit the Premises, or any part of the
building, to be used for any purposes other than those set forth
in this Lease. Lessee shall neither permit on the Premises any
act, sale, or storage that may be prohibited under standard
forms of fire insurance policies, or use the Premises for any
such purpose. In addition, no use shall be made or permitted to
be made that shall result in hazardous waste, or improper,
unlawful, or objectionable use, including sale, storage, or
preparation, of food, alcoholic beverages, or materials
generating an odor on the Premises.
6. Abandonment. Lessee shall not vacate or abandon the Premises at any time
during the Term of this Lease. If Lessee does vacate or abandon the
Premises or is dispossessed by process of law, any personal property
belonging to Lessee and left on the Premises shall be deemed abandoned
at the option of Lessor and shall become the property of Lessor.
7. Taxes.
7.1 Lessee shall pay prior to delinquency all taxes, assessments,
charges, 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 Lessee
contained in the Premises or elsewhere. 7.2 Lessee shall pay the
total amount of an increase in real property taxes resulting
from any and all improvements of any kind whatsoever placed on
or in the Premises for the benefit of or at the request of
Lessee regardless of whether said improvements were installed of
construction either by Lessor or Lessee.
8. Utilities.
8.1 Heat and Air Conditioning - Lessee shall arrange for and pay all
heat and air conditioning needs throughout the year.
8.2 Electricity - Lessee shall provide for its own electricity
needs.
8.3 Janitorial - Lessee shall provide janitorial service and
maintain the Premises in a clean and orderly manner.
8.4 Water, Sewer, and Garbage - Lessee shall provide for hot and
cold water, sewer service and garbage service.
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8.5 Snow Removal - Lessee shall ensure the removal of snow in the
parking and walkway areas during applicable seasons. Lessee
shall further keep walkways salted and free from snow buildup.
9. Alterations, Modifications, and Repairs.
9.1 Lessee shall take good care of the Premises and shall not alter,
repair, or change the Premises, including, but not limited to
addition of cables, electrical wires, etc. that may damage the
walls, without the prior, express, and written consent of
Lessor.
9.2 All alterations, improvements, and changes that Lessee may
desire shall be done either by or under the direction of Lessor,
but at the expense of Lessee and shall become the property of
Lessor and remain on the Premises, except that at the option of
Lessor, Lessee shall, at its expense, remove from the Premises
all such alterations, improvements, and changes.
9.3 All damage or injury done to the Premises by Lessee, its agents
or employees, or any person who may be in or on the Premises
with the consent of Lessee shall be paid for by Lessee.
9.4 Lessee shall, at the termination of this Lease, surrender the
Premises to Lessor in as good condition or same condition as
when entered upon by Lessee except for ordinary wear and tear.
9.5 Lessor shall be responsible for making all routine repairs,
maintaining the landscape, and for performing routine
maintenance. Lessee shall permit Lessor and Lessor's agent to
enter the Premises at all reasonable times to inspect and
maintain the building and Premises, make repairs, alterations,
or additions to the Premises, or any portion of the building,
including the erection of scaffolding, props, or other
mechanical devices, to post notices of nonliability for
alterations, additions, or repairs, or to place on the premises
any usual or ordinary "For Sale" signs, without any rebate of
rent to Lessee or damages for any loss of occupation or quiet
enjoyment of the Premises. Lessor may place "To Let" or "to
Lease" signs wherever Lessor sees fit. Lessor and Lessor's
agents may, during the last-mention period, enter on the
Premises at reasonable hours, and exhibit them to prospective
tenants.
10. Insurance.
10.1 Lessee shall obtain and keep in force during the Term of this
Lease, a policy of comprehensive general liability insurance
insuring Lessee and Lessor (as an additional named insured
thereon) against any liability arising out of the ownership,
use, occupancy or maintenance of the premises. Such insurance
shall have a combined single limit of at least One Million
($1,000,000.00) dollars, including both liability and property
damage and insure against any liability for personal injury,
death or property damage, as set forth above, and shall be
written on and "occurrence basis." The limits of said insurance
shall not, however, limit the liability of the Lessee hereunder.
Lessee shall provide to Lessor a certificate of insurance and
keep said policy current.
11. Liability of Lessor.
11.1 Lessee will indemnify Lessor on account of any damage or injury
to any person, or to the goods of any person, arising from the
use of the Premises by Lessee, or arising from the failure of
Lessee to keep the Premises in good condition as provided in
this Lease.
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11.2 Lessor shall not be liable to Lessee for any damage by or from
any act or negligence of any other occupant of the same
building, or by any owner or occupant of adjoining or contiguous
property.
11.3 Lessee agrees to pay for all damage to the building, as well as
all damage or injury suffered by tenants or occupants of the
building caused by the misuse or neglect of the Premises by
Lessee.
12. Assignment and Sublease.
12.1 Lessee shall not assign any rights or duties under this Lease
nor sublet the Premises or any part of the Premises, nor allow
any other person to occupy or use the Premises without the
prior, express, and written consent of Lessor. A consent to one
assignment, sublease, or occupation or use by any other person
shall not be a consent to any subsequent assignment, sublease,
or occupation or use by another person. Any assignment or
subletting without consent shall be void.
12.2 This Lease shall not be assignable without the written consent
of Lessor.
13. Breach or Default.
13.1 The occurrence of any one or more of the following events shall
constitute a material default in breach of this Lease by Lessee:
13.1.1 Vacation or abandonment of the Premises. Vacation and
abandonment includes, but is not limited to, any absence
of Lessee from the Premises for 30 business days or
longer.
13.1.2 Failure by Lessee to make any payment required under
this Lease as and when due, where such failure shall
continue for a period of 15 days after written notice
from Lessor.
13.1.3 Failure by Lessee to observe or to perform any of the
covenants, conditions, or provisions of this Lease,
other than the making of any payment, where such failure
shall continue for a period of 15 days after notice of
such failure from Lessor or such additional period of
time as is reasonably necessary to cure such failure,
provided Lessee diligently prosecutes such cure.
13.2 In the event of any default by Lessee, in addition to any other
remedies available to Lessee at law or in equity, Lessor shall
have the immediate option to terminate this Lease and all rights
of Lessee under this Lease. In the event that Lessor shall so
elect to terminate this Lease, then Lessor may recover from
Lessee the worth at the time of the award of any unpaid rent
that was due and owing at the time of termination
13.3 In the event of any such default by Lessee, Lessor shall also
have the right, adhering to applicable legal processes, with or
without terminating this Lease, to reenter the demised premises
and remove all persons and property from the Premises. Such
property may be removed and stored in a public warehouse or
elsewhere at the cost of or on the account of Lessee.
13.4 In the event of any such default by Lessee, Lessor shall also
have the right, adhering to applicable legal processes, with or
without terminating this Lease, to reenter the Premises and to
relet them.
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14. Indemnification.
14.1 Lessee shall indemnify, defend, and hold Lessor harmless from
any and all claims and damages (including reasonable attorney
fees and costs) arising from Lessee's use of the Premises or the
conduct of its business or from any activity, work, or thing
done, permitted, or suffered by Lessee, in or about the Premises
and/or the building in which the Premises are located, unless
caused by the negligent acts of Lessor or Lessor's agents or
employees.
14.2 Lessee shall further indemnify, defend, and hold Lessor harmless
from any and all claims and damages (including reasonable
attorney fees and costs) arising from any breach or default in
any of the terms or conditions of this Lease, or arising from
any act of negligence, faulty, or omission of Lessee or Lessee's
agents, employees, or invitees, and from and against any and all
cost, reasonable attorney fees, expenses, and liabilities
incurred in or about such claim or any action or proceeding
brought on such claim.
15. General.
15.1 Governing Law. It is agreed that this Lease shall be governed
by, construed, and enforced in accordance with the laws of the
State of Utah.
15.2 Waivers. Waivers by Lessor of any breach of any covenant or duty
of Lessee under this Lease is not a waiver of a breach of any
other covenant or duty of Lessee, or of any subsequent breach of
the same covenant or duty.
15.3 Entire Agreement. This Lease shall constitute the entire
agreement between the parties. Any prior understanding or
representation of any kind preceding the date of this Lease
shall not be binding upon either party except to the extent
incorporated in this Lease Agreement.
15.4 Modification of Agreement. Any modification of this Lease or
additional obligation assumed by either party in connection with
this Lease shall be binding only if evidenced in a writing
signed by each party.
15.5 Notices. All notices, demands, or other writing in this Lease
provided to be given, made, or sent, or which may be given,
made, or sent, by either party to the other, shall be deemed to
have been fully given, made, or sent when made in writing and
either personally delivered or deposited in the United States
mail, return receipt requested, and addressed to the applicable
party at the address set forth at the beginning of this Lease.
15.6 Lessor covenants that no conveyances, encumbrances, assignment
or other change of interest of Lessor in the Premises whether
recorded or unrecorded, shall be binding upon Lessee.
15.7 Unless exempt under the rules and regulations of the Secretary
of Labor or other proper authority, this Lease is subject to
applicable laws and executive orders relating to equal
opportunity and non-discrimination in employment.
15.8 The conditions and provisions of this Lease shall inure to the
benefit of and be binding upon the parties; the personal
representatives, executors, administrators of Lessor; and the
receivers, trustees in bankruptcy, successors and assigns of
both Lessor and Lessee.
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15.9 The invalidity or illegality of any provision of this Lease
shall not affect the remainder of this Lease.
IN WITNESS WHEREOF, the Parties hereto have executed this Lease on the
date first above written.
NU SKIN INTERNATIONAL, INC. ASPEN INVESTMENTS, LTD.
For Nu Skin International, Inc. the General
Partner for Aspen Investments, Ltd.
By: Xxxxxxx X. Xxxxx By: Xxxxx Halls, a General Vice President
Its: General Counsel for Nu Skin International, Inc.
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