FIRST AMENDMENT TO LEASE
EXHIBIT 10.11(a)
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this “Amendment”) is made as of the 24th day of August, 2004,
between THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation (“Landlord”) and ULTA
SALON, COSMETICS AND FRAGRANCE, INC., a Delaware corporation (“Tenant”).
WHEREAS, Landlord and Tenant entered into that certain lease dated as of September 11, 2002
(the “Lease”) pursuant to which Tenant leases from Landlord approximately 12,532 square feet of
space (the “Existing Premises”) in the building commonly known as The Offices at Xxxxxxx Lakes and
located at 0000 Xxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000; and
WHEREAS, any initially capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to such terms in the Lease.
WHEREAS, the parties hereto now desire to amend the Lease to extend the Term, modify the Rent
payable under the Lease, add additional space to the Premises and amend the Lease in certain other
respects.
NOW THEREFORE, in consideration of the mutual covenants and conditions contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Lease is hereby amended as follows:
1. Extension of Existing Premises Term. The Term of the Lease with respect to the
Existing Premises, currently set to expire on January 31, 2005, is hereby extended to the last day
of the Term of the Lease with respect to the Additional Premises (defined below).
2. The Additional Premises.
(a) Lease of the Additional Premises. Subject to the terms of the Lease and this
Amendment, Landlord agrees to lease to Tenant, and Tenant agrees to lease from Landlord, an
additional 11,047 square feet of rentable area in the Building, located adjacent to the Existing
Premises (such space is hereinafter collectively referred to as the “Additional Premises”), all as
more particularly described on Exhibit A, attached hereto and made a part hereof. The Term
of the Lease with respect to the Additional Premises shall be five (5) years, shall commence on the
Substantial Completion Date (as such term is defined in the Workletter; such date being hereinafter
referred to as the “Additional Premises Commencement Date”) and expire on the last day of the
calendar month in which the fifth (5th) anniversary of the Additional Premises Commencement Date
occurs. Each twelve (12) consecutive month period is hereinafter referred to as an “Additional
Premises Lease Year”; provided however that if the Additional Premises Commencement Date is other
than the first day of any calendar month, the first Additional Premises Lease Year shall consist of
the partial month in which the Additional Premises Commencement Date occurs and the twelve (12)
consecutive month period that follows.
(b) Termination of Amendment. In the event that Landlord cannot deliver the Additional
Premises to Tenant on or before April 1, 2005, Tenant may elect to terminate the Lease with respect
to the Additional Premises upon written notice to Landlord delivered by April 30, 2005, upon which
termination landlord shall have no further liability to Tenant hereunder or
under the Lease with respect to the Additional Premises, but the Lease shall continue in full
force and effect, without regard to the Amendment, with respect to the Existing Premises, as if
this Amendment had never been entered into between Landlord and Tenant.
(c) Improvement of the Additional Premises. Landlord shall improve the Additional
Premises in accordance with the Workletter, attached hereto as Exhibit B.
(d) Definition of Premises; Lease Binding. From and after the Additional Premises
Commencement Date (i) the Premises shall consist of both the Existing Premises and the Additional
Premises constituting 23,579 rentable square feet in the aggregate, (ii) all references in the
Lease to “Premises” shall be deemed to refer to both the Existing Premises and the Additional
Premises, (iii) the Additional Premises shall be deemed to be a part of the Premises and shall be
governed by all the terms of the Lease.
3. Base Rent.
(a) Existing Premises Base Rent. Base Rent for the Existing Premises shall continue to
be paid in the same manner, time and place as provided in the Lease, in the following amounts:
| Annual Base Rent | ||||||||||||
| Period from/to | Per Square Foot | Annual Base Rent | Monthly Base Rent | |||||||||
February 1, 2005- last |
$ | 11.50 | $ | 144,118.00 | $ | 12,009.83 | ||||||
day of Additional Premises Lease Year 1 |
||||||||||||
Additional Premises |
$ | 12.00 | $ | 150,384.00 | $ | 12,532.00 | ||||||
Lease Year 2 |
||||||||||||
Additional Premises |
$ | 12.50 | $ | 156,650.00 | $ | 13,054.17 | ||||||
Lease Year 3 |
||||||||||||
Additional Premises |
$ | 13.00 | $ | 162,916.00 | $ | 13,576.33 | ||||||
Lease Year 4 |
||||||||||||
Additional Premises |
$ | 13.50 | $ | 169,182.00 | $ | 14,098.50 | ||||||
Lease Year 5 |
||||||||||||
(b) Additional Premises Base Rent. Tenant shall commence the payment of Rent for the
Additional Premises on the Additional Premises Commencement Date. Tenant shall pay Base Rent for
the Additional Premises in the same manner, time and place as set forth in the Lease with respect
to the Existing Premises. The amount of Base Rent payable by Tenant for the Additional Premises is
as follows:
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| Annual Base Rent | ||||||||||||
| Period from/to | Per Square Foot | Annual Base Rent | Monthly Base Rent | |||||||||
Additional Premises |
$ | 12.50 | $ | 138,087.50 | $ | 11,507.29 | ||||||
Lease Year 1 |
||||||||||||
Additional Premises |
$ | 13.00 | $ | 143,611.00 | $ | 11,967.58 | ||||||
Lease Year 2 |
||||||||||||
Additional Premises |
$ | 13.50 | $ | 149,134.50 | $ | 12,427.88 | ||||||
Lease Year 3 |
||||||||||||
Additional Premises |
$ | 14.00 | $ | 154,658.00 | $ | 12,888.17 | ||||||
Lease Year 4 |
||||||||||||
Additional Premises |
$ | 14.50 | $ | 160,181.50 | $ | 13,348.46 | ||||||
Lease Year 5 |
||||||||||||
(c) Abatement of Rent on Additional Premises. If Tenant has taken possession of the
Additional Premises for the purpose of carrying on its business therein and if Tenant is not in
default under any of terms, provisions and conditions of the Lease (as described in Section
16 of the Lease) on the date such installment is due, the first monthly installment of Base
Rent and Additional Rent due shall be abated in full and shall not be payable by Tenant.
4. Tenant’s Proportionate Share. From and after the Additional Premises Commencement
Date, Tenant’s Proportionate Share shall be 49.65%.
5. Parking. From and after the Additional Premises Commencement Date, Tenant, its
agents, employees and invitees shall be entitled to utilize up to 118 parking spaces in the Parking
Areas in accordance with Section 25 of the Lease.
6. Termination Right. Subject to the terms of this Section 6, Tenant shall
have the option (the “Termination Option”) to terminate the Lease effective as of the last day of
the third Additional Premises Lease Year (the “Termination Date”), if Tenant is not in default
under any of its obligations under this Lease at the time it exercises such option or on the
Termination Date. To exercise the Termination Option, Tenant must:
(a) give to Landlord written notice of such election prior to the last day of the second
Additional Premises Lease Year; and
(b) pay to Landlord a termination fee, in an amount equal to $250,000 (the “Termination Fee”),
fifty percent of which is to be paid at the time of such notice, and fifty percent of which is to
be paid on or before the Termination Date.
Exercise of the Termination Option shall be irrevocable but shall not excuse Tenant from paying
Rent accruing through the Termination Date. If Tenant fails to exercise the Termination Option
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prior to the last day of the second Additional Premises Lease Year, or fails to pay any portion of
the Termination fee when required, Tenant shall be deemed to have waived all of its rights under
the Termination Option and, thereafter, the Termination Option shall be null and void and of no
further effect.
7. Miscellaneous.
(a) The preambles to this Amendment are incorporated into the body of this Amendment as if
restated herein.
(b) Interpretation of this Amendment shall be governed by the laws of the State of Illinois.
(c) The mutual obligations of the parties as provided herein are the sole consideration for
this Amendment and no representations, promises or inducements have been made by the parties other
than as appear in this Amendment. This Amendment may not be amended except in writing signed by
both parties.
(d) Except as modified herein, the Lease is hereby ratified and confirmed and the terms,
covenants, conditions and agreements contained therein remain in full force and effect.
(e) This Amendment shall not be binding until executed and delivered by both parties.
(f) Tenant represents and warrants to Landlord that neither it nor its officers or agents nor
anyone acting on its behalf has dealt with any real estate broker other than GVA Xxxxxxxx in the
negotiation or making of this Amendment, and Tenant agrees to indemnify and hold harmless Landlord
from any and all claims, liability, costs and expenses (including reasonable attorneys’ fees)
incurred as a result of any inaccuracy in the foregoing representation and warranty. Landlord
represents and warrants to Tenant that neither it nor its officers or agents nor anyone acting on
its behalf has dealt with any real estate broker in the negotiation or making of this Amendment
other than GVA Xxxxxxxx and Landlord agrees to indemnify and hold harmless Tenant from any and all
claims, liability, costs and expenses (including reasonable attorneys’ fees) incurred as a result
of any inaccuracy in the foregoing representation and warranty. Landlord will pay GVA Xxxxxxxx a
commission in connection with this Amendment in accordance with a separate agreement between
Landlord and GVA Xxxxxxxx.
NO FURTHER TEXT ON THIS PAGE
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IN WITNESS WHEREOF, the parties have executed this Amendment on the date first written above.
| LANDLORD | ||||||
| THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation |
||||||
| By: | PDC Properties, Inc., its agent | |||||
| By: | /s/ Xxx Xxxxx | |||||
| Its: | Portfolio Manager | |||||
| TENANT: | ||||
| ULTA SALON, COSMETICS & FRAGRANCE, INC., a Delaware corporation |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Its: | Xxxxxxx X. Xxxxx, CFO | |||
| By: | /s/ Xxxxxx Xxxx | |||
| Its: | Xxxxxx X. Xxxx, Senior Vice President | |||
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EXHIBIT A
Additional Premises
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EXHIBIT B
Workletter
All of the terms and conditions of the Amendment are incorporated herein by reference and, except
as may be expressly set forth to the contrary in this Work Letter or the Amendment, shall apply as
fully to this Work Letter as to the Amendment. The capitalized terms used but not defined in this
Work Letter shall have the meanings ascribed to them in the Amendment.
1. Construction of Tenant Improvements. Except as provided below to the contrary,
Landlord, at Landlord’s sole cost and expense, shall provide the construction material, hardware
and equipment and the labor to construct the Tenant Improvements. “Tenant Improvements” means (i)
the materials, hardware and equipment to be affixed to or incorporated into the Additional Premises
pursuant to the Plans (as defined below and as the same may be modified pursuant to Section 4 of
this Work Letter), and the labor to construct and install such items, (ii) the other building
standard items described in the Plans, as the same may be modified pursuant to Section 4 of this
Work Letter, and (iii) the installation of roof mounted heating and cooling units for reasonable
temperature control in the Additional Premises. Landlord shall proceed diligently to cause the
Tenant Improvements to be substantially completed substantially in accordance with the Plans and
the terms and conditions of the Amendment. The cost to construct the Tenant Improvements, including
but not limited to all costs relating to material, hardware, equipment, labor, applicable
governmental fees and permit cost, taxes, architectural fees, engineering fees, design fees, but
expressly excluding any the cost of Tenant’s furniture, trade fixtures or equipment or other
personal property of Tenant that Tenant is permitted or required to remove from the Additional
Premises upon the expiration or earlier termination of the Lease, is hereinafter referred to as the
“Permitted Costs.” Permitted Costs shall also include a construction management fee of 15% per cent
of all other Permitted Costs payable to Landlord.
2. Contractors. If Tenant elects to engage an interior designer for the Additional
Premises (the “Interior Designer”), Tenant shall have the right to do so, subject to Landlord’s
reasonable approval, and Tenant shall contract directly with the Interior Designer for the
provision of services. All other architects, engineers, contractors, subcontractors, suppliers,
manufacturers or materialmen performing services or supplying materials in connection with the
design and/or construction of the Tenant Improvements (the “Contractors”) shall be selected by
Landlord, and shall enter into contracts directly with Landlord for the provision of services and
materials.
3. The Plans. Landlord and Tenant have approved the preliminary description of the
Tenant Improvements attached to this Work Letter as Schedule 1 and made a part hereof.
Landlord will cause to be prepared, and Landlord and Tenant shall act in good faith and cooperate
with each other to finalize and approve as soon as reasonably possible, the plans, drawings and
specifications for the Tenant Improvements based on the description in Schedule 1. If
Landlord and Tenant have not approved the final plans, drawings and specifications for the Tenant
Improvements within thirty (30) days after the execution and delivery of the Lease by Landlord and
Tenant, at the request of either party, any disagreements regarding such final plans, drawings and
specifications shall be submitted to and resolved by arbitration in accordance with under the
Expedited Procedures of the Commercial Arbitration Rules of the American
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Arbitration Association then in force except as provided below. Any such arbitration
proceedings shall be conducted through the American Arbitration Association in Chicago, Illinois
and the cost of such arbitration proceedings shall be split evenly between Landlord and Tenant,
provided that each party shall be solely responsible for its own costs and expenses incurred in
connection with any arbitration proceedings. The final plans, drawings and specifications for the
Tenant Improvements approved by Landlord and Tenant prior to the commencement of construction are
collectively referred to as the “Plans”.
4. Changes to the Plans.
(a) Tenant Changes to the Plans.
(i) Tenant may propose one or more changes to the Plans to Landlord at any time before the
Substantial Completion Date (as defined below), and, as promptly as reasonably practicable after
the receipt and approval thereof by Landlord (which approval may be withheld in Landlord’s
reasonable discretion), Landlord shall provide Tenant with a written estimate of the delay (if any)
in the Substantial Completion Date (which delay shall be a Tenant Delay [as defined below]) and the
additional cost (if any) to complete the Tenant Improvements which will result from such change
(whether hard costs or soft costs), which costs shall include, without limitation: (A) the actual
cost of all materials, supplies, equipment and labor used or supplied in making the proposed
change, including general conditions and any contractor’s fees; (B) any architect and engineer
fees; and (C) a construction management fee payable to Landlord equal to fifteen percent (15%) of
such additional costs (collectively, “Change Order Costs”). If Tenant fails to approve the estimate
of Change Order Costs within five (5) business days after delivery of same, Tenant shall be deemed
to have abandoned its request for such change, and the Tenant Improvements shall be constructed
substantially in accordance with the then existing Plans. If Tenant approves the estimate of Change
Order Costs within said 5-day period by signing and returning a copy of Landlord’s estimate,
Landlord shall cause the Tenant Improvements to be constructed substantially in accordance with the
Plans as so revised. Unless requested in writing by Tenant to the contrary, Landlord shall continue
with construction of the Tenant Improvements according to the then existing Plans during the
pendency of any proposed change in the Plans until such change is approved by Landlord and Tenant
as provided above. Any delay resulting from a halt in construction requested in writing by Tenant
shall constitute a Tenant Delay.
(ii) If Tenant approves Landlord’s estimate of the time and Change Order Costs of a proposed
change to the Plans: (A) Tenant shall be liable for the actual Change Order Costs, whether or not
such actual cost exceeds Landlord’s estimate, and (B) Landlord shall not be liable for any delay in
the Substantial Completion Date resulting from the requested change, whether or not the delay
exceeds Landlord’s estimate, and any such delay shall be a Tenant Delay. Upon Tenant’s request,
Landlord shall provide Tenant with reasonable evidence of the actual Change Order Costs and the
basis for any delay in the Substantial Completion Date resulting from such change.
(iii) lf Tenant requests a change to the Plans pursuant to this Section 4(a), and
Tenant does not ultimately approve the resulting revised Plans or estimate, Tenant shall promptly
reimburse Landlord, as Rent, for any reasonable costs and expenses resulting from such requested
changes incurred by Landlord.
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(b) Landlord Changes to the Plans. Landlord may make changes to the Plans without
Tenant’s consent, provided that such changes (i) are necessary to address field conditions, (ii)
will not create any additional monetary obligation for Tenant under the Lease, (iii) are in
material conformity with the Plans (as they may have been previously revised by permissible Tenant
and/or Landlord changes thereto), and (iv) will not result in the use of materials or equipment
which are of a materially lesser quality than those specified in the Plans. Landlord will notify
Tenant of any changes made pursuant to this Section 4(b).
5. Payment of Costs. Tenant shall deposit with Landlord the amount of any Change Order
Costs within ten (10) days after Tenant’s approval of the estimate of such Change Order Costs in
accordance with Section 4(a) of this Work Letter. Thereafter, in the event that at any time
the actual Change Order Costs exceed the estimated Change Order Costs, Tenant shall deposit with
Landlord the amount of such excess within ten (10) days after written demand therefor by Landlord.
Upon Tenant’s request, Landlord shall provide Tenant with reasonable evidence of the actual Change
Order Costs.
6. Punchlist Items. Before Tenant takes occupancy of the Additional Premises, but no
later than five (5) business days after the Substantial Completion Date, Landlord, Landlord’s
architect, Tenant and at Tenant’s election, Tenant’s consulting architect or other construction
consultants shall conduct an inspection of the Additional Premises and shall work in good faith to
jointly prepare a punchlist for the Tenant Improvements. Any items not on such punchlist shall be
deemed accepted by Tenant. Landlord shall complete all punchlist items as soon as reasonably
practicable after such punchlist items are finally determined.
7. Representatives of Landlord and Tenant. Landlord designates Xxxx Xxxxxxxx as its
representative for all purposes of this Work Letter. Tenant designates Xxxxxx Xxxx as its
representative for all purposes of this Work Letter. Wherever this Work Letter requires any notice
to be given to or by a party, or any determination or action to be made or taken by a party, the
representative(s) of each party shall act for and on behalf of such party, and the other party
shall be entitled to rely thereon. Either party may designate one or more additional or substitute
representatives for all or a specified portion of the provisions of this Work Letter, subject to
notice to the other party of the identity of such additional or substitute representative(s).
8. Delay in the Additional Premises Commencement Date.
(a) The Substantial Completion Date. The “Substantial Completion Date” shall mean (i)
the later to occur of (A) the date on which Landlord receives the approval from the City of
Romeoville authorizing occupancy of the Additional Premises by Tenant, which approval may take the
form of a conditional or temporary certificate of occupancy so long as Tenant may occupy the
Additional Premises, and (B) the date on which Landlord’s architect issues a certificate to
Landlord and Tenant stating that the Tenant Improvements have been substantially completed
substantially in accordance with the Plans, or (ii) if the substantial completion of the Tenant
improvements has been delayed as a result of one or more Tenant Delays (as defined below), the date
on which Landlord would have substantially completed the Tenant Improvements but for such Tenant
Delays, as so certified by the Landlord’s architect.
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(b) Tenant Delays. “Tenant Delay” shall mean any interruption or delay at any time in the
progress of the Tenant Improvements which is the result of: (a) Tenant changes to the Plans,
including, in addition to delays resulting from the actual execution of such changes to the Plans,
any delay occurring because the change to the Plans requested by Tenant expressly requires the
design or construction of the Additional Premises to be halted or delayed pending resolution of any
request by Tenant for a change to the Plans, whether or not the requested change is ultimately
approved by Landlord and/or Tenant; (b) the performance or non-performance of any work at the
Additional Premises by Tenant or any person, firm or corporation employed by Tenant; or (c) any
other act or omission of Tenant (for example, but not by way of limitation, failure to timely
respond to requests for information or approval of construction related matters submitted by
Landlord).
(c) Force Majeure Delays. “Force Majeure Delay” shall mean any interruption or delay at any
time in the progress of the Tenant Improvements which is not a Tenant Delay and is the result of
any Events of Force Majeure. Any delay shall be deemed to be a Force Majeure Delay notwithstanding
that Landlord or its agent or Contractor with respect to which the time period for the Force
Majeure Delay is being claimed is concurrently delayed by events within its control.
(d) Notice of Tenant Delays and Force Majeure Delays. Landlord agrees that it shall exercise
reasonable efforts to provide Tenant with written notice of any Tenant Delay or Force Majeure Delay
(and the expected length of the applicable delay) as soon as reasonably practicable following the
date Landlord has been notified of any such delay; provided, however, that Landlord’s failure to
furnish such notice shall in no event be deemed to a waiver by Landlord of the Tenant Delay or
Force Majeure Delay or otherwise affect the operation of this Section 8 Landlord shall be deemed to
have notified Tenant of a Tenant Delay or a Force Majeure Delay f the applicable delay is noted in
the written job meeting minutes, if any, prepared by Landlord or any Contractor and furnished to
Tenant.
9. Governmental Approvals. Landlord shall use reasonable efforts to obtain all
governmental licenses, permits and approvals necessary for the construction of the Tenant
Improvements and to achieve Substantial Completion of the Tenant Improvements in a timely manner.
If Landlord is unable to obtain any permit, license or approval from any governmental authority
necessary for the construction of the Tenant Improvements, Landlord may elect to terminate the
Lease with respect to the Additional Premises upon written notice to Tenant delivered within thirty
(30) days after the date hereof, upon which termination Landlord shall have no further liability to
Tenant hereunder or under the Lease with respect to the Additional Premises, but the Lease shall
continue in full force and effect, without regard to the Amendment, with respect to the Existing
Premises.
10. Access by Tenant Prior to Commencement Date. Landlord will permit Tenant and
Tenant’s agents, suppliers, contractors and workmen to enter the Additional Premises prior to the
completion of the Tenant Improvements to enable Tenant to do such other things as may be required
by Tenant to make the Additional Premises ready for Tenant’s occupancy, provided that Tenant shall
fully perform and comply with each of the following covenants, conditions and requirements:
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(a) Tenant and Tenant’s agents, contractors, workmen, mechanics, suppliers and invitees, shall
work in harmony and not interfere with Landlord and Landlord’s agents in performing the Tenant
Improvements or work for other tenants and occupants of the Building, and if at any time such entry
shall in the judgment of Landlord cause or threaten to cause disharmony or interference, Landlord
shall have the right to withdraw such permission upon twelve (12) hours written notice.
(b) Tenant agrees that any such entry into the Additional Premises shall be deemed to be under
all of the terms, covenants, conditions, and provisions of the Lease except the covenant to pay
Rent, and further agrees that in connection therewith Landlord shall not be liable in any way for
any injury, loss or damage which may occur to any of Tenant’s work or installations made in the
Additional Premises or to property placed therein prior to the Additional Premises Commencement
Date (except to the extent caused by the gross negligence or willful misconduct of Landlord), the
same being at Tenant’s sole risk. In addition, Tenant shall require all entities performing work on
behalf of Tenant to provide protection for existing improvements to an extent that is satisfactory
to Landlord and shall allow Landlord access to the Additional Premises, for inspection purposes, at
all times during the period when Tenant is undertaking construction activities therein. In the
event any entity performing work on behalf of Tenant causes any damage to the Tenant Improvements
or the property of Landlord or others, Tenant shall cause such damage to be repaired at Tenant’s
expense, and if Tenant fails to cause such damage to be repaired immediately upon Landlord’s demand
therefor, Landlord may in addition to any other rights or remedies available to Landlord under the
Lease or at law or equity cause such damage to be repaired, in which event Tenant shall immediately
upon Landlord’s demand pay to Landlord the cost of such repairs as Rent.
(c) All contractors and subcontractors shall use only those entrances designated by Landlord
for ingress and egress of personnel, and the delivery and removal of equipment and material through
or across any common areas of the Building or parking areas on the Property shall only be permitted
with the written approval of Landlord and during hours determined by Landlord. Landlord shall have
the right to order Tenant or any contractor or subcontractor that violates the above requirements
to cease work and remove it, its equipment, and its employees from the Building or the Property.
(d) During the performance of Tenant’s work and Tenant’s fixturing, Landlord may provide trash
removal service from a location designated by Landlord. Tenant shall be responsible for breaking
down boxes and placing trash in Landlord’s containers at such designated location. Tenant shall
accumulate its trash in containers supplied by Tenant and Tenant shall not permit trash to
accumulate within the Additional Premises or in the corridors or public areas adjacent to the
Additional Premises. Tenant shall cause each entity employed by it to perform work on the
Additional Premises to abide by the provisions of this Work Letter as to the storage of trash and
shall require each such entity to perform its work in a way that dust and dirt is contained
entirely within the Additional Premises and not within any other portion of the Building or the
Property and shall cause Tenant’s contractors to leave the Additional Premises broom clean at the
end of each day. Should Landlord deem it necessary to remove Tenant’s trash because of
accumulation, an additional charge to Tenant will be on a time and material basis.
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(e) Tenant agrees that all services and work performed on the Additional Premises by, on
behalf of, or for the account of Tenant, including installation of materials and personal property
delivered to the Additional Premises shall be done in a first-class workmanlike manner using only
good grades of material, shall be performed in accordance with Laws, and shall be performed only by
persons covered by a collective bargaining agreement with the appropriate trade union.
(f) Tenant agrees to protect, indemnify, defend and hold harmless the Landlord Parties from
and against any and all losses, damages, liabilities, claims, liens, costs and expenses, including
reasonable attorneys’ fees, of whatever nature, including those to the person and property of
Tenant, its employees, agents, invitees, licensees and others arising out of or in connection with
the activities of Tenant or Tenant’s contractors or subcontractors in or about the Additional
Premises and the Property, and the cost of any repairs to the Additional Premises and the Property
necessitated by activities of Tenant or Tenant’s contractors or subcontractors.
(g) Tenant shall secure, pay for, and maintain during the continuance of its work within the
Additional Premises, policies of insurance with such coverages and such amounts as Landlord may
reasonably require, which policies shall be endorsed to include Landlord and its contractors and
their respective employees and agents and any Mortgagee as additional insured parties, and which
shall provide thirty (30) days prior written notice of any alteration or termination of coverage.
Tenant shall not permit Tenant’s contractors to commence any work until all required insurance has
been obtained by Tenant and certificates evidencing such coverage have been delivered to and
approved by Landlord in writing.
11. Warranties. Landlord shall assign to Tenant and Tenant shall have the benefit of
any guaranties and warranties Landlord receives from contractors with respect to the Tenant
Improvements.
12. Termination of Work Letter; Survival of Terms. Landlord and Tenant acknowledge and
agree that the provisions of this Work Letter are intended and designed to govern certain rights
and obligations of the parties relating to the construction of the Tenant Improvements and other
matters prior to the Additional Premises Commencement Date. Accordingly, except as hereinafter set
forth in this Section 12, from and alter the Additional Premises Commencement Date, the
terms and provisions of this Work Letter shall become null and void and of no further force or
effect. Notwithstanding anything to the contrary in this Section 12, however, the following
provisions shall not terminate and shall continue in full force and effect after the Additional
Premises Commencement Date, and shall survive the Additional Premises Commencement Date:
Sections 1 and 6 (both of which shall terminate at such time as all punchlist items have
been completed and all claims in connection therewith have been satisfied in full); Sections
10(b), 10(e), 10(f), 12 and 13 (which shall remain in effect for the duration of the Term); and
Section 14 (which shall terminate at such time as the parties have executed the
Confirmatory Memorandum).
13. Application of Work Letter. This Work Letter shall not be applicable to any space
added to the Premises other than the Additional Premises or in the event of a renewal or extension
of the Term of the Lease or the exercise of any expansion option granted to Tenant pursuant to the
Lease.
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14. Confirmatory Memorandum. At the request of either party, at such time as the
Substantial Completion Date has been finally determined, the parties shall jointly execute a
written memorandum in the form attached to this Work Letter as Schedule 2, and such
memorandum shall be attached to and become a part of the Lease.
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SCHEDULE 1
The Plans
Space Plan Prepared by Interwork Architects dated .June 28,2004, last revised August 6, 2004,
attached hereto as Schedule 1-A, and modified as follows:
Landlord and Tenant acknowledge that the 8 x 8 workstations shown on the Plans are not built
in partitions, and Landlord is not obligated to supply workstations.
All materials shall be building standard finishes, comparable to the finishes used in the
Existing Premises, including without limitation the installation of inset glass in all perimeter
offices.
SCHEDULE 1-A
Space Plan
SCHEDULE 2
Form of Confirmatory Memorandum
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA (“Landlord”) and
(“Tenant”)
hereby execute and deliver this Confirmatory memorandum pursuant to Section 13 of the Work
Letter attached as Exhibit B to that certain Amendment between Landlord and Tenant dated
2004.
1. This Confirmatory Memorandum is for the convenience and reference of the parties. The
provisions of the Amendment and the Work Letter shall be valid and given their full force and
effect with respect to the terms contained in this Confirmatory Memorandum, notwithstanding the
failure or refusal of either party to execute this document.
2. Landlord and Tenant further agree and acknowledge as follows:
(a) the Substantial Completion Date occurred on
,
2004; and
(b) the Additional Premises Commencement Date occurred on
, 2004.
Executed and
delivered as of
,
2004.
| LANDLORD: | ||||||
| THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation |
||||||
| By: | PDC Properties, Inc., its agent | |||||
| By: | ||||||
| Its: | ||||||
| TENANT: | ||||
| ULTA SALON, COSMETICS & FRAGRANCE, INC., a Delaware corporation |
||||
| By: | ||||
| Its: | ||||
| By: | ||||
| Its: | ||||
