THIRD AMENDMENT TO LEASE
Exhibit 10.5 (c)
Tallgrass Office Lease
[hvac Equipment]
[hvac Equipment]
THIRD AMENDMENT TO LEASE
This
Third Amendment to Lease (this “Amendment”) is made
and entered into as of this 24th
day of March 2008 by and between BOLINGBROOK INVESTORS, LLC, an Illinois limited liability company
(“Landlord”), and ULTA SALON, COSMETICS & FRAGRANCE, INC., a Delaware corporation (“Tenant”).
Recitals
A. Tenant has leased those certain Premises consisting of 82,468 rentable square feet (the
“Premises”) in the Building located at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxx (the
“Building”), pursuant to the terms and conditions contained in that certain Office Lease entered
into by and between Tenant and Landlord dated April 17, 2007 as amended by that Amendment to Lease
dated November 2007 and that Second Amendment to Lease dated February 20, 2008 (as hereby amended,
referred to herein as the “Lease”) by and between Landlord and Tenant.
B. Landlord and Tenant desire to amend the Lease to allow installation of HVAC Equipment (as
hereinafter defined) and for certain other purposes.
Agreements
Now, Therefore, in consideration of the recitals, rent paid and to be paid to
Landlord and the covenants to be performed in accordance with the terms and conditions hereinafter
contained, Landlord and Tenant do hereby agree as follows:
1. Access to Roof and Installation of HVAC Equipment. So long as the Lease is in
effect, Landlord grants to Tenant the right to install and maintain heating, ventilation and air
conditioning equipment, as more particularly described on Exhibit A attached hereto and
made a part hereof (the “Equipment”), and cables, conduit, and other related incidental items
within utility chases and risers between the Premises and the roof as approved by Landlord
(collectively referred to herein as the “HVAC Equipment”), in accordance with all the terms and
provisions of this Amendment.
(a) Tenant shall bear all costs of installation of the HVAC Equipment, including
Landlord-approved modifications required for the installation and costs of fulfilling all the
requirements set forth in this Amendment.
(b) Landlord shall approve the actual location of the HVAC Equipment. Notwithstanding the
foregoing, Landlord acknowledges that it has already approved and shall allow Tenant to install
said HVAC Equipment in the location referenced on Exhibit A.
(c) Before commencing construction of the HVAC Equipment, Tenant shall provide Landlord with
plans and specifications for the HVAC Equipment, its location, and its means of attachment to the
Building, which plans shall be subject to the approval of Landlord in its sole and absolute
discretion. Notwithstanding the foregoing, Landlord acknowledges that it has already received and
approved Tenant’s plans and specifications with respect to the HVAC Equipment prepared by
Technology Management, Inc. dated February 20, 2008. In no event shall any approvals given by
Landlord with respect to the construction or the installation of the HVAC Equipment, or which
Landlord has the right to give, nor the right of Landlord to supervise the installation of the HVAC
Equipment, constitute any warranty by Landlord of the adequacy, workmanship or quality of the HVAC
Equipment, nor impose upon Landlord any liability in connection with the HVAC Equipment. Landlord
makes no representation and shall have no obligation with respect to the suitability of the roof
for the installation
and use of the HVAC Equipment. Landlord shall be entitle to supervise Tenant’s installation
of the HVAC Equipment.
(d) Access to the roof, cables, mechanical rooms or other areas of the Building and all work
undertaken by Tenant shall be, in each instance, with reasonable prior notice to Landlord and in
the presence of an employee or agent of Landlord, and shall otherwise be in accordance with
Landlord’s required procedures and regulations.
(e) Tenant shall secure all necessary building permits, consents and any other approvals of
federal, state or local agency or government authority required for the HVAC Equipment
installation, shall provide copies of same to Landlord, and shall comply with all requirements of
any such agency or authority and all other legal requirements, including, but not limited to,
height restrictions and screening requirements. Tenant shall provide Landlord all installation
specifications and drawings required for the securing of said permits, consents and approvals.
(f) Installation of the HVAC Equipment shall be performed so as to cause no structural damage
to the Building and in a manner that will not affect any roof or other warranty. Any damage to the
Building caused by such installation or by the operation or existence of the HVAC Equipment shall
be repaired by Tenant immediately. At the termination of the Lease by expiration of time or
otherwise, at the option of Landlord given by written notice thereof to Tenant no later than sixty
(60) days prior to the expiration of the Term, Tenant, at its sole cost and expense, shall remove
the HVAC Equipment and all related equipment and shall restore the Building to its condition
existing prior to the installation of the HVAC Equipment. Tenant shall further immediately repair,
at its sole cost and expense, any damage or destruction caused by the removal of the HVAC
Equipment. Restoration and repair hereby required to be performed by Tenant shall be completed
under the supervision of Landlord or Landlord’s agent at such time and in such manner as is
acceptable to Landlord. If Tenant fails to perform any required repairs or remove any HVAC
Equipment required to be removed within thirty (30) days (or such longer time period as may be
reasonably necessary so long as Tenant has commenced such repairs within said thirty (30) day
period) after written notice thereof, then Landlord shall have the right to perform any repairs and
removal and restoration, at Tenant’s sole cost and expense, and such expense shall be reimbursed to
Landlord promptly upon demand together with an administrative charge of fifteen percent (15%) of
the cost thereof. Notwithstanding anything contained herein, Tenant shall not remove, and shall
not be reimbursed for the cost of, any component of the HVAC Equipment or ancillary equipment which
is affixed to, embedded in or permanently attached in or to the Building including, but not limited
to, cables and other wiring, unless Landlord so directs otherwise.
(g) Tenant agrees that the use of the HVAC Equipment will not endanger or interfere with
persons or equipment in the Building or surrounding property. Tenant shall hold the Landlord
harmless and shall indemnify and defend the Landlord, its officers, directors, shareholders,
partners, members, managers, affiliates, employees and agents from and against all loss, cost,
injury, claims, demands and expenses of every kind (including reasonable attorneys’ fees) which
arise from or are alleged with respect to Tenant’s exercise of the rights granted under this
Amendment or actions pursuant hereto or any breach by Tenant of its obligations under this
Amendment.
(h) Tenant shall insure that the installation is accomplished so that the HVAC Equipment is
securely attached to the Building, and Tenant assumes full responsibility for any physical damage
to the Building which may be caused in whole or in part by the HVAC Equipment or its support
equipment.
(i) Landlord and its officers, directors, shareholders, partners, members, members,
affiliates, agents and employees shall not be liable or responsible to Tenant for any loss or
damage to the
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HVAC Equipment or person occasioned by theft, fire, act of God, public enemy, injunction,
riot, strike, insurrection, war, court order, or for any damage or inconvenience which may arise
through the maintenance, repair or alteration of any part of the Building, or the failure to make
such repair. Tenant agrees and acknowledges that Landlord has made no representations or
warranties with respect to the physical condition of the roof or any other portion of Building,
their suitability for the purpose intended hereunder or any other matter hereunder. Landlord shall
not be liable to Tenant for any interference with Tenant’s operation of the HVAC Equipment caused
by Landlord’s maintenance, repair or replacement of the roof or any other part of the Building, and
Landlord and Tenant shall cooperate with each other so that Landlord can perform its obligations
under this Lease.
(j) The HVAC Equipment shall be used only by Tenant in connection with Tenant’s Premises and
shall not include any equipment or be used for the benefit of any other part of the Building.
(k) The rights of Tenant under this Amendment are not assignable by Tenant and shall benefit
only Tenant and not any successors, assigns or sublessees.
(l) After the initial installation of the HVAC Equipment, Landlord may from time to time cause
Tenant to relocate the HVAC Equipment to another portion of the roof of the Building at the sole
cost of Tenant.
(m) HVAC Equipment Relocation. In the event that Landlord requires Tenant to relocate
the HVAC Equipment at any time, Tenant, at Tenant’s sole cost and expense, shall so relocate the
HVAC Equipment to a location acceptable to Landlord and otherwise in compliance with the
requirements of this Amendment within thirty (30) days after a written request by Landlord. If
Tenant fails to comply with any relocation request as stated above Landlord may cause the HVAC
Equipment to be relocated at Tenant’s expense, and Tenant shall pay any and all costs incurred by
Landlord to effectuate such relocation, plus a fifteen percent (15%) administrative fee within ten
(10) days after notice from Landlord; provided, however, that in the event Tenant commences to
relocate such HVAC Equipment within said thirty (30) day period, it shall have such longer period
of time to complete such relocation as is reasonably necessary so long as Tenant is diligently
pursuing such relocation.
(n) Insurance. Tenant hereby agrees to extend its insurance required under the Lease
to cover the HVAC Equipment and installation thereof in compliance with the Lease.
2. Landlord and Tenant Authorization. Landlord and Tenant each represents and
warrants to the other that this Amendment has been duly authorized, executed and delivered by and
on behalf of each of Landlord and Tenant, as applicable, and constitutes the valid and binding
agreement of Landlord and Tenant, as applicable, in accordance with the terms hereof.
3. Ratification and Construction. The terms and provisions of the Lease as hereby
amended are hereby ratified and confirmed in all respects. The definitions of all defined terms as
set forth in the Lease shall apply to such terms used in this Amendment except as specifically
provided herein to the contrary. The captions and headings used herein are for convenience only and
shall not be deemed to limit the terms and provisions of this Amendment.
4. Counterparts. This Amendment may be executed in multiple counterparts, each of
which taken together shall constitute one instrument.
[Signatures Appear on the Following Page]
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IN WITNESS WHEREOF, the parties have caused this Third Amendment to Lease to be executed as of
the date first above written.
| LANDLORD: | TENANT: | |||||||
| BOLINGBROOK INVESTORS, LLC, an Illinois limited liability company |
ULTA SALON, COSMETICS & FRAGRANCE, INC., a Delaware limited liability company | |||||||
By:
|
/s/ Xxxxxx X. Xxxxxxxxxxx | By: | /s/ Xxxx X. Xxxxx, Xx. | |||||
Name:
|
Xxxxxx X. Xxxxxxxxxxx | Name: | Xxxx X. Xxxxx, Xx. | |||||
Title:
|
Senior Vice President | Title: | Senior Vice President | |||||
| Growth & Development | ||||||||
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EXHIBIT A
EQUIPMENT
[See Attached]
A-1
Exhibit A
