exv10w1



 





Exhibit 10.1



5605 CenterPoint Court, Gurnee, Illinois



INDUSTRIAL BUILDING LEASE

[Build-To-Suit]



THIS LEASE is made between CV II GURNEE LLC, a Delaware limited liability company (“Landlord”), and
AKORN, INC., a Louisiana corporation (“Tenant”), and has an effective date of October 23, 2007 (the
“Effective Date”).




ARTICLE I — LEASE TERMS




     Section 1.1. Definitions. In addition to the other terms, which are elsewhere
defined in this Lease, the following terms and phrases, whenever used in this Lease shall have the
meanings set forth in this Section 1.1, and only such meanings, unless such meanings are expressly
contradicted, limited or expanded elsewhere herein.




     A. Base Rent Schedule:



	 	 	 	 	 	 	 	 	 
	Period	 	Annual Base Rent	 	Monthly Base Rent
	Stub Period

(if applicable)

	 	 	N/A	 	 	Stub Period Base Rent

	Lease Year 1

	 	$	483,272	 	 	$	40,272.67	 
	Lease Year 2

	 	$	494,003	 	 	$	41,166.92	 
	Lease Year 3

	 	$	505,003	 	 	$	42,083.58	 
	Lease Year 4

	 	$	516,277	 	 	$	43,023.08	 
	Lease Year 5

	 	$	527,834	 	 	$	43,986.17	 
	Lease Year 6

	 	$	539,679	 	 	$	44,973.25	 
	Lease Year 7

	 	$	551,820	 	 	$	45,985.00	 
	Lease Year 8

	 	$	564,265	 	 	$	47,022.08	 
	Lease Year 9

	 	$	577,021	 	 	$	48,085.08	 
	Lease Year 10

	 	$	590,096	 	 	$	49,174.65	 







     B. Commencement Date: the Substantial Completion Date.




     C. Concept Plan: the plan attached hereto as Exhibit “A” and by this
reference incorporated herein.




     D. Effective Date: the later date this Lease is signed by Landlord and Tenant.




     E. Estimated Commencement Date: The later of the Substantial Completion Date
or February 15, 2008.



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     F. Force Majeure: any event or circumstance which is beyond the control of
Landlord including, without limitation, any delay in securing a building permit or in
obtaining all required approvals from any Governmental Authority, strikes, lockouts,
picketing (legal or illegal), acts of God or the public enemy, governmental restrictions or
actions, fire or other casualty, accidents, unavailability of fuel, power, supplies or
materials, unusual adverse weather conditions, acts or omissions of any labor or material
contractor, the passage or application of any Legal Requirements or moratorium of any
Governmental Authority not now in effect which have the effect of preventing or delaying
progress on the Initial Improvements, delay caused by Change Orders, delay caused by the
requirements of the TI Plans, and Tenant Delay.




     G. Force Majeure Delay: any interruption or delay in the progress of the
Initial Improvements which is the result of Force Majeure. Any delay which is the result of
Force Majeure shall be deemed to be a Force Majeure Delay notwithstanding that Landlord or
its contractor is being, at the same time, concurrently delayed by events which do not
constitute Force Majeure Delay.




     H. General Contractor: Premier Design & Build Group LLC.




     I. Governmental Authority: any federal, regional, state, county or municipal
government, including, without limitation, any agency, authority, subdivision, department or
bureau thereof.




     J. Guarantor: None.




     K. Initial Improvements: collectively, the improvements contemplated in the
Plans and depicted on the Concept Plan, including the build out of the office area.




     L. Initial Monthly Rent Adjustment Deposit: $8,017.53




	 	(i)	 	Initial Tax Deposit: $5,242.23

	 
	 	(ii)	 	Initial Expense Deposit: $2,775.30






     M. Landlord’s Broker: CB Richard Ellis.




     N. Landlord’s Mailing Address:


1808 Swift Road

Oak Brook, Illinois 60523

Attention: Mr. Sean Maher





     O. Lease Year: the twelve (12) month period commencing (i) as to the first
Lease Year, on the date which is the Commencement Date if same is the first (1st) day of a
calendar month or the first (1st) day of the next full calendar month after the Commencement
Date if same does not occur on the first (1st) day of a calendar month, and (ii) as to
subsequent Lease Years, on the annual anniversary date of the beginning of the first Lease
Year.




     P. Legal Requirements: (i) any and all laws, codes, ordinances, requirements,
standards, plats, plans, criteria, orders, directives, rules and regulations of any
Governmental Authority affecting the improvement, alteration, use, maintenance, operation,
occupancy, security, health, safety and environmental condition of the Premises or any part
thereof (or any occupants therein, as the context requires) including, without limitation
any Environmental Laws (as hereinafter defined), and (ii) any and all covenants,
restrictions, conditions, easements and other agreements of record affecting the Premises,
as amended from time to time, and any documents, rules, regulations,



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standards or criteria set forth or referenced therein or promulgated by the Landlord or any
governing body or entity exercising jurisdiction over the Premises, in any case, whether in
force at the Commencement Date or passed, enacted or imposed at some time in the future, and
shall include all permits, licenses, certificates, authorizations and approvals required in
connection with any of the foregoing.




     Q. Outline Specifications: the outline specifications attached here to as
Exhibit “B” and incorporated herein by this reference.




     R. Plans: the plans and specifications to be prepared by the Project Architect
in substantial conformity with the Concept Plan and the Outline Specifications.




     S. Project Architect: Cornerstone Architects, Ltd.




     T. Property Owners Association: CenterPoint Business Park-Gurnee Property
Owner’s Association.




     U. Stub Period: if the Commencement Date falls other than on the first day of
a calendar month, the period from and including the Commencement Date and ending and
including the last day of the calendar month in which the Commencement Day occurs.




     V. Stub Period Base Rent: an amount equal to $35,770.50 multiplied by a
fraction, the numerator of which is the number of days in the Stub Period and the
denominator of which is the number of days in the calendar month in which the Stub Period
falls.




     W. Substantial Completion: the earlier to occur of: (i) Landlord’s receipt of
a permanent, temporary or conditional certificate of occupancy from the Village (provided
that, if such certificate is not issued solely due to the failure to complete any work or
improvements requested by Tenant which are not a part of the Plans, such certificate shall
be deemed to have issued when the work and improvements set forth in the Plans have been
completed in all material respects); (ii) the Project Architect states in writing that the
Initial Improvements are substantially completed in accordance with the Plans; or (iii)
Tenant’s occupancy of the Premises or any portion thereof, provided, however, that Tenant’s
occupancy of the Premises pursuant to Section 33.1 of this Lease for the purpose of
completing Tenant’s Work (as hereinafter defined) shall not be deemed “occupancy”. In the
event there is a dispute as to Substantial Completion, such dispute shall be resolved in
accordance with the terms of Section 4.10 hereof.




     X. Substantial Completion Date: the date on which Substantial Completion
occurs.




     Y. Security Deposit: $65,000.00




     Z. Tenant’s Broker: CB Richard Ellis




     AA. Tenant Delay: any interruption or delay in the progress of the Initial
Improvements which is the result of: (i) the failure of Tenant to timely approve the Plans
or any portion thereof; (ii) material changes in construction requested by Tenant or any
member of the Tenant Group; (iii) the performance or non-performance of any work at, or
services with respect to, the Premises by Tenant or any member of Tenant Group; or (iv) any
other act or omission of Tenant, any member of the Tenant Group or any person, firm or
entity claiming by, through or under any of them.



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     BB. Tenant Group: any or all of Tenant’s agents, employees, representatives,
contractors, workmen, mechanics, suppliers, customers, guests, licensees, invitees,
sublessees, assignees and all of their respective successors and assigns or any party claiming by,
through or under any of them.




     CC. Tenant’s Mailing Address:


Akorn, Inc.

2500 Millbrook Drive

Buffalo Grove, Illinois 60089

Attention: Neill E. Shanahan





     DD. Tenant’s Proportion: 45.91%.




     EE. Term: The period beginning on the Commencement Date and ending on the
Termination Date, unless sooner terminated by Landlord as provided hereunder.




     FF. Termination Date: The last day of the tenth (10th) Lease Year,
unless sooner terminated as hereinafter provided.




     GG. Use: Warehousing and distribution of pharmaceuticals, and related research
and development laboratory and office uses.




     HH. Village: The Village of Gurnee, Illinois.



     Section 1.2. Significance of Definitions. Each reference in this Lease to any of the
Definitions contained in Section 1.1 of this Article shall be deemed and construed to incorporate
all of the terms provided under each such Definition.



     Section 1.3. Enumeration of Exhibits. The exhibits in this Section and attached to
this Lease are incorporated in this Lease by this reference and are to be construed as a part of
this Lease.


Exhibit “A”: Concept Plan

Exhibit “B”: Outline Specifications

Exhibit “C”: Land

Exhibit “D”: Form of Estoppel Certificate

Exhibit “E”: Tenant’s Building Signage Specifications

Exhibit “F”: Permitted Hazardous Materials

Exhibit “G”: Initial Tenant Improvements




ARTICLE II  — PREMISES




     Section 2.1. Lease. Landlord, for and in consideration of the rents herein reserved
and of the covenants and agreements herein contained on the part of Tenant to be kept, observed and
performed, does by these presents, lease to Tenant, and Tenant hereby leases from Landlord, that
portion of the building commonly known as 5605 CenterPoint Court, Gurnee, Illinois (the “Building”)
consisting of approximately 74,008 square feet of gross Building area (the “Premises”), which
Premises are located on the land legally described on Exhibit “C” attached hereto and made
a part hereof (the “Land”). The Premises is depicted in the Concept Plan attached hereto and made
a part hereof. The Land and the Building are sometimes hereinafter collectively referred to as the
“Project.” The lease of the Premises shall be subject to, and Tenant



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shall at all times during the Term comply with, the covenants, conditions, agreements, easements, encumbrances and
restrictions of record, as well as all applicable laws and ordinances (collectively,
“Restrictions”).




ARTICLE III — TERM




     Section 3.1. Term. The Term of this Lease shall commence on the Commencement Date and
shall end on the Termination Date, or unless sooner terminated as hereinafter provided.



ARTICLE IV — LANDLORD’S CONSTRUCTION




     Section 4.1. Landlord’s Construction of Initial Improvements. Subject to the terms
and conditions of this Article IV, Landlord shall, at its sole cost and expense, cause the General
Contractor to construct the Initial Improvements to the Premises substantially in accordance with
the Plans. Landlord agrees that all services and work performed in connection with the Initial
Improvements shall be done in a good and workmanlike manner using only new material, and shall be
performed in material compliance with applicable Legal Requirements. Landlord represents and
warrants that, on the Commencement Date, the Premises (excluding any Tenant’s Work, as hereinafter
defined) shall be in compliance with all applicable laws, ordinances, codes and regulations,
including fire protection and the Americans with Disabilities Act (collectively, the “Applicable
Laws”), as the same pertain to warehouse/industrial buildings in general. The foregoing
representation does not apply to any Applicable Laws to the extent the same are required due to
Tenant’s specific Use or occupancy of the Premises, as opposed to those required to
warehouse/industrial buildings in general.



     Section 4.2. Preparation and Approval of Plans. Landlord shall, at Landlord’s
expense, cause the Project Architect to prepare the Plans. The Plans are subject to Tenant’s
approval (which shall not be unreasonably withheld or delayed), and if Tenant does not approve
same, Tenant shall advise Landlord in reasonable detail of the reasons for such disapproval.
Tenant’s suggested revisions to the Plans shall not contradict or exceed the requirements of the
Concept Plan or the Outline Specifications. Tenant shall comment on the Plans (or any component
thereof submitted to Tenant) and each revision thereof within five (5) business days after receipt
from Landlord. In the event that Tenant does not disapprove of the Plans (or any component thereof
submitted to Tenant) within said five (5) day period, the Plans (or applicable component thereof)
shall be deemed approved. Tenant may not object to any subsequent changes as may be incorporated
in the Plans necessary to obtain the approval of the Village.



     Section 4.3. Completion of Initial Improvements. Landlord shall diligently proceed
with the construction of the Initial Improvements upon Tenant’s approval of the Plans, approval of
the Plans by the Village, and issuance of all necessary permits for construction. Landlord shall
use good faith efforts to achieve Substantial Completion on or before the Estimated Commencement
Date; provided, however, if construction is delayed because of any Force Majeure Delays, then
Substantial Completion shall be extended for the additional time caused by such Force Majeure
Delays without liability on the part of Landlord.



     Section 4.4. Tenant Inspections. Landlord shall exercise reasonable efforts to keep
Tenant advised with respect to the progress of the construction of the Initial Improvements and the
estimated date of Substantial Completion, and Landlord shall notify Tenant in writing as soon as
Substantial Completion occurs as provided herein. During the construction of the Initial
Improvements and subject to Landlord’s reasonable scheduling requirements, Tenant shall have the
right to inspect the Premises to monitor the progress of construction of the Initial Improvements;
provided, however, that such right may not be exercised unless Tenant has: (i) given Landlord at
least one (1) business days’ prior written notice of the date and time Tenant intends to exercise
such inspection right; (ii) Tenant and/or Tenant’s architect are accompanied at all times



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during the course of said inspection by Landlord and Landlord’s representative or the Project
Architect; and (iii) Tenant complies with the reasonable requirements of Landlord and the General
Contractor.




     Section 4.5. Change Orders. Tenant may propose one or more changes to the Plans to
Landlord any time up to and including thirty (30) days after Landlord commences construction of the
Initial Improvements upon Tenant’s approval of the Plans, and subject to the approval of Landlord
and the Village. As promptly as reasonably practicable after the receipt and approval thereof,
Landlord shall provide Tenant with a “Change Order” containing the proposed revisions to the Plans,
a statement of any Force Majeure Delay resulting from such change, and the amount of the additional
cost to complete the Initial Improvements which will result from such change (whether hard costs or
soft costs), which costs shall be: (i) the cost of all materials, supplies, equipment and labor
used or supplied in making the proposed change, including general conditions and any contractor’s
fees (which general conditions and contractor’s fees shall be seven percent (7%) of such costs);
(ii) any architect and engineer fees; (iii) soft costs; and (iv) fees and expenses of architects,
engineers and other third party consultants in connection with review or approval of changes in
Plans. If Tenant fails to approve of the Change Order in writing within ten (10) days after
delivery of the same, Tenant shall be deemed to have abandoned its request for such Change Order,
and the Initial Improvements shall be constructed in accordance with the then existing Plans. If
Tenant approves the Change Order by signing and returning a copy of the Change Order to Landlord
within said ten (10) day period, Landlord shall cause the Initial Improvements to be constructed in
accordance with the Change Order. Tenant shall pay Landlord the amount of such additional costs
within ten (10) days after Landlord submits to Tenant a bill for such additional costs as are then
due and payable from time to time. In no event shall Landlord have any obligation to commence any
work relating to a Change Order until Landlord has been paid the cost of the estimate in full and
in the event that the additional costs are not paid within said ten (10) day period, Tenant shall
be deemed to have abandoned its request for such Change Order. Unless requested in writing by
Tenant to the contrary, Landlord shall continue with construction of the Initial Improvements
according to the then existing Plans during the pendency of any proposed Change Order until same is
by Landlord and Tenant as provided above. Any cessation in construction requested in writing by
Tenant shall constitute a Tenant Delay hereunder. If Tenant requests a Change Order pursuant to
this Section 4.5 and Tenant does not ultimately approve of the Change Order or pay the cost
thereof, Tenant shall promptly reimburse Landlord for any costs and expenses resulting from such
requested Change Order. Landlord may make changes to the Plans without Tenant’s consent, provided
that: (i) such changes (a) will not create any additional monetary obligation for Tenant under
this Lease, (b) are in material conformity with the Plans (as may have been previously revised by
permissible Tenant and/or Landlord changes thereto), and (c) will not decrease the quality of any
component of the Initial Improvements; or (ii) such changes are required by any applicable Legal
Requirements and Landlord notifies Tenant of the nature of the change.



     Section 4.6. Punchlist. Before Tenant takes occupancy of the Premises, Landlord, the
Project Architect and Tenant shall conduct an inspection of the Premises, and work in good faith to
jointly prepare a punchlist (hereinafter referred to as the “Punchlist”). Except as otherwise
expressly provided in this Lease, any items not on the Punchlist shall be deemed accepted by
Tenant. Tenant shall provide reasonable access to Landlord, its employees, agents and contractors
for purposes of the repair and correction of any Punchlist items. Landlord shall complete all
Punchlist items as soon as is reasonably practicable, subject to extension due to any Force Majeure
Delays. Landlord shall use good faith efforts to complete all Punchlist items within thirty (30)
days after the date of such Punchlist, subject to extension due to any Force Majeure Delays;
provided, however, in the absence of Force Majeure Delays, with respect to any Punchlist items that
are not reasonably capable of being completed within said thirty (30)-day period, Landlord shall be
deemed in compliance with this Section 4.6 as long as Landlord commences the correction of the
applicable Punchlist items within said thirty (30)-day period and thereafter diligently prosecutes
such items to completion..



     Section 4.7. Representatives. Landlord designates Edward R. Harrington as its
representative for all purposes of this Article IV. Tenant designates Neill Shanahan, Vice
President, Human Resources, its



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representative for all purposes of this Article IV. Wherever the
terms of this Article IV require 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 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 substitute representatives for all or a specified portion of the provisions of this
Article IV, subject to notice to the other party of the identity of such substitute representative.




     Section 4.8. Warranties. Landlord represents that it shall obtain and use reasonable
efforts to enforce on behalf of Tenant (i) a warranty against defective materials and workmanship
with respect to the Initial Improvements from the General Contractor for a period of one (1) year
from Substantial Completion of the Initial Improvements; and (ii) a warranty against defects in the
roof from the roof manufacturer for such portion of the existing fifteen (15) year roof warranty
that falls within the Term of this Lease (the existing fifteen (15) year roof warranty term began
approximately May 1, 2007). Tenant shall notify Landlord in writing of any defective condition
occurring with respect to the Initial Improvements promptly following Tenant’s discovery thereof
and Landlord shall request that the party issuing the warranty perform any remedial work required
to be performed under such warranty.



     Section 4.9. Allowances. The Base Rent has been calculated based on the inclusion of
an allowance in the aggregate amount of $322,222.00 (collectively, the “Landlord’s Allowance”), to
be applied toward the following:




     A. $182,222.00 (the “Generator Allowance”)for work associated with the installation of
a back-up generator and screening at the Premises (the “Generator Installation”);




     B. $65,000.00 (the “Project Manager Allowance”)for the fees of any project manager
used by Tenant in connection with the construction of the Premises (“Tenant’s Project
Manager”);




     C. $17,500.00 (the “Temperature Mapping Allowance”)for work associated with warehouse
temperature mapping (the “Temperature Mapping”);




     D. $42,500.00 (the “Commissioning Allowance”) for commissioning of the lab and
warehouse (the “Commissioning”); and




     E. $15,000.00 (the “Cooler Allowance”) for cooler hookups (the “Cooler Hookups”).



     Landlord shall notify Tenant in the event the cost of any of the above-referenced items
exceeds the applicable allowance for such item by more than ten percent (10%). If the aggregate
costs for the Generator Installation, Tenant’s Project Manager, the Temperature Mapping, the
Commissioning and the Cooler Hookups exceed the amount of the Landlord’s Allowance, the Tenant
shall, within fifteen (15) days after receipt of the General Contractor’s statement of such actual
costs, pay such excess to Landlord.



     Section 4.10. Substantial Completion Determination. In that Tenant notifies Landlord,
within ten (10) days after receipt of notice from Landlord that Substantial Completion has
occurred, that Tenant disagrees with Landlord’s determination of Substantial Completion, and if the
parties cannot agree upon Substantial Completion within ten (10) days thereafter, then such dispute
shall be determined by arbitration as hereinafter provided. Landlord and Tenant will each select
an arbitrator who shall be disinterested and shall be a person that has been actively engaged in
the development or leasing of property comparable to the Premises in the Gurnee, Illinois area for
a period not less than seven (7) years immediately preceding his or her appointment. Landlord and
Tenant shall each simultaneously submit to the arbitrators all relevant data used by each such
party in arriving at its determination of Substantial Completion or the lack thereof. The
arbitrators shall be directed as promptly as possible to reach a determination as to Substantial
Completion. If the two arbitrators so appointed fail to agree upon a determination as to
Substantial Completion, the two



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arbitrators shall appoint a third arbitrator, using the criteria
described above, to decide upon Substantial Completion. If no determination is made prior to the
Commencement Date (based on the Substantial Completion Date per Landlord’s determination of
Substantial Completion), then Landlord’s determination shall be used until the arbitration is
completed. If the determination later agreed upon by the arbitrators is later than the Substantial
Completion Date determined by Landlord, then the Commencement Date shall be deemed to be such later
date, the parties shall execute an agreement stating that the Commencement Date is the date
determined by the arbitrators as the date of Substantial Completion, and Landlord shall apply any
Rent Adjustment Deposits paid by Tenant for the periods prior to such date to the Rent Adjustment
Deposits first due after such date. The arbitrators’ decision shall be binding on Landlord and
Tenant. Landlord and Tenant, respectively, shall pay the fees and out-of-pocket expenses of any
individual appointed as arbitrator hereunder by Landlord and Tenant, respectively, and Landlord and
Tenant shall each pay one-half (1/2) of the fees and out-of-pocket expenses of any third arbitrator
appointed pursuant to this Section 4.10.




     Section 4.11. Termination Option. Provided that Tenant shall have signed off on the
final Plans no later than November 1, 2007, then if Substantial Completion (which, for purposes of
this Section 4.11 shall not include the installation of the generator at the Premises) has not
occurred by June 1, 2008 (the “Outside Delivery Date”), Tenant shall have the option (“Termination
Option”) to terminate the Lease without penalty effective as of the Outside Delivery Date upon the
following terms and provisions:



     (a) Tenant gives Landlord written notice (“Termination Notice”) of Tenant’s exercise of the
Termination Option, provided, however, the Termination Notice shall not be effective unless
received by Landlord within ten (10) days after the Outside Delivery Date.



     (b) There is no uncured Event of Default in existence under the Lease on the date Tenant
delivers the Termination Notice.



     (c) The Termination Option herein granted shall automatically terminate upon the failure of
Tenant to timely or properly exercise the Termination Option.



     (d) In the event the Tenant sign off on the Final Plans occurs after November 1, 2007, then
the Outside Delivery Date shall be extended by two (2) days for each day after November 1, 2007 on
which Tenant signs off on the final Plans.



ARTICLE V — RENT




     Section 5.1. Base Rent. Tenant agrees to pay to Landlord, monthly in advance, without
offset or deduction, base rent for the Term (“Base Rent”) in the amount of the Monthly Base Rent
set forth in the Base Rent Schedule commencing on the Commencement Date and continuing on the first
day of each month thereafter for the balance of the Term of this Lease. In addition thereto,
Tenant shall pay all such other amounts as are herein described as “Additional Rent” in the manner
and at the time specified in this Lease. The term “Rent” when used in this Lease shall include all
Base Rent payable under this Section 5.1, as well as the charges herein described as Additional
Rent. All Rent payable hereunder shall be payable to Landlord at LOCKBOX 2023 Paysphere Circle,
Chicago, IL 60674, or as Landlord may otherwise from time to time designate in writing.



     Notwithstanding the foregoing, but provided there is then no continuing Event of Default under
the Lease, a portion of the monthly Base Rent, in the amount of $35,770.50, shall abate for the
first four (4) full calendar months of the Lease Term (the “Abatement Period”). If the
Commencement Date does not fall on the first day of a calendar month, then Tenant shall pay the
Stub Period Base Rent during any such partial



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month and the Abatement Period shall begin on the
first day of the first full calendar month following the Commencement Date. After the expiration
(or earlier termination) of the Abatement Period, Tenant shall commence to pay full monthly Base
Rent throughout the remainder of the Term when due, and without notice or demand therefor, as
provided herein. During the Abatement Period, Tenant shall be responsible for the payment of the
remainder of the monthly Base Rent, in the amount of $4,502.17, plus all monthly Rent Adjustment
Deposits and all costs, expenses and other amounts payable hereunder and all other amounts incurred
or in connection with Tenant’s use and occupancy of the Premises. In the event Tenant breaches or
defaults in the performance of any its covenants or obligations under this Lease and such breach or
default continues beyond the expiration of any applicable notice and cure period, all abated
monthly Base Rent shall thereupon become immediately due and payable (without limiting Landlord’s
other rights and remedies hereunder, at law and in equity), and if such breach or default shall
occur during the Abatement Period and such breach or default continues beyond the expiration of any
applicable notice and cure period, the Abatement Period shall automatically be deemed terminated as
of such breach or default.




     Section 5.2. Base Rent Adjustment. In addition to the Base Rent payable by Tenant
hereunder, Tenant shall pay to Landlord, as Additional Rent, the Rent Adjustment described in this
Section 5.2 without set off or deduction. Until such time as Tenant receives the first Adjustment
Statement provided for in clause (C) of this Section 5.2, Tenant shall, commencing on the
Commencement Date and on the first day of each and every month thereafter, make the Initial
Monthly Rent Adjustment Deposit specified in Article I hereof.




     A. For the purposes of this Lease:




     (1) The term “Calendar Year” shall mean each calendar year or a portion thereof
during the Term.




     (2) The term “Expenses” shall mean and include all expenses paid or incurred by
Landlord for managing, owning, maintaining, operating, insuring, replacing and
repairing the Premises and all appurtenances and personal property used in
conjunction therewith, including, but not limited to a management fee in an amount
equal to two percent (2%) of Rent, whether the management services are performed by
Landlord, an affiliate of Landlord, or by a third party.




     Notwithstanding the foregoing, Expenses shall not include the costs of the
following: (a) repairs, replacements and general maintenance paid or payable by
proceeds of insurance or other third parties; (b) interest, principal, amortization
or other payments on loans to Landlord; (c) real estate brokerage and/or leasing
commissions and marketing expenses; (d) renovations, alterations, improvements,
installations and/or decorations to the space of other tenants or occupants of the
Building or any vacant space available for lease to tenants in the Building ; (e)
real estate taxes; (f) transfer, gains, franchise, gift, corporation, profit and
income taxes imposed upon Landlord; (g) costs incurred with respect to a sale or
transfer of all or any portion of the Building or any interest therein, or in any
person of whatever tier owning an interest therein; (h) financing and refinancing
costs; (i) the cost of electricity furnished to any space leased or available for
lease to tenants in the Building; (j) lease takeover costs incurred by Landlord in
connection with leases in the Building; (k) any cost for which Landlord receives
compensation or reimbursement through proceeds of insurance; (l) expenses incurred
in connection with services or other benefits of a type that are not provided
to Tenant (or are provided at separate or additional charge) but which are
provided to another tenant or occupant of the Building; (m) advertising and
promotional expenditures; (n) legal fees, expenses and disbursements (including,
without limitation, those incurred in connection with leasing, sales, financings or
refinancings or disputes with current or prospective tenants); (o) amounts otherwise
includable in Expenses (including any increased



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insurance costs) but reimbursed to
Landlord directly by Tenant or other tenants of the Building; (p) to the extent any
costs includable in Expenses are incurred with respect to both the Building and
other properties (including, without limitation, salaries, fringe benefits and other
compensation of Landlord’s personnel who provide services to both the Building and
other properties), there shall be excluded from Expenses a fair and reasonable
percentage thereof which is properly allocable to such other properties as
determined by Landlord; (q) the cost of any judgment, settlement or arbitration
award resulting from any liability of Landlord (other than a liability for amounts
otherwise includable in Expenses hereunder) and all expenses incurred in connection
therewith; (r) any interest, fine, penalty or other late charges payable by
Landlord, unless and only to the extent that such late charge or amount results from
Tenant’s failure to pay to Landlord in a timely fashion any amounts required under
this Lease; (s) costs incurred by Landlord which result from Landlord’s breach of a
lease or Landlord’s tortious or negligent conduct; (t) the cost of repairs,
replacements or restorations by reason of fire or other casualty or condemnation;
(u) costs and expenses incurred by Landlord in connection with any obligation of
Landlord to indemnify any Building tenant (including Tenant) pursuant to its lease
or otherwise; and (v) except as otherwise provided in Section 8.1 or in Section 8.2,
the cost of any Capital Item (as hereinafter defined).




     (3) The term “Rent Adjustments” shall mean all amounts owed by Tenant as
Additional Rent on account of Expenses or Taxes, or both.




     (4) The term “Rent Adjustment Deposit” shall mean an amount equal to Landlord’s
estimate of Rent Adjustments due for any Calendar Year made from time to time during
the Term.




     (5) The term “Taxes” shall mean real estate taxes, assessments, sewer rents,
rates and charges, transit taxes, taxes based upon the receipt of rent, and any
other federal, state or local governmental charge, general, special, ordinary or
extraordinary, which accrue during the Term and are levied or assessed or become a
lien against the Premises or any portion thereof in any Calendar Year during the
Term and any tax in substitution of any of the foregoing. Taxes also include
Landlord’s reasonable costs and expenses (including reasonable attorney’s fees) in
contesting or attempting to reduce any taxes.




     B. Tenant shall pay to the Landlord as Additional Rent Tenant’s Proportion of Expenses
and Taxes attributable to each Calendar Year of the Term. The amount of Taxes attributable
to a Calendar Year shall be the amount assessed for any such Calendar Year, even though the
assessment for such Taxes may be payable in a different Calendar Year.




     C. As soon as reasonably feasible after the expiration of each Calendar Year, Landlord
will furnish Tenant a statement (“Adjustment Statement”) showing the following:




     (1) Expenses and Taxes for the Calendar Year last ended and the amount of
Expenses and Taxes payable by Tenant for such Calendar Year;




     (2) The amount of Rent Adjustments due Landlord for the Calendar Year last
ended, less credits for Rent Adjustment Deposits paid, if any; and




     (3) The Rent Adjustment Deposit due in the current Calendar Year.



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     D. Within thirty (30) days after Tenant’s receipt of each Adjustment Statement, Tenant
shall pay to Landlord:




     (1) The amount of Rent Adjustment shown on said statement to be due Landlord
for the Calendar Year last ended; plus




     (2) The amount, which when added to the Rent Adjustment Deposit theretofore
paid in the current Calendar Year, would provide that Landlord has then received
such portion of the Rent Adjustment Deposit as would have theretofore been paid to
Landlord had Tenant paid one twelfth of the Rent Adjustment Deposit, for the current
Calendar Year, to Landlord monthly on the first day of each month of such Calendar
Year.




     Commencing on the first day of the first month after Tenant’s receipt of each
Adjustment Statement, and on the first day of each month thereafter until Tenant receives a
more current Adjustment Statement, Tenant shall pay to Landlord one twelfth of the Rent
Adjustment Deposit shown on said statement. Landlord shall not issue more than one
Adjustment Statement during any Calendar Year. During the last complete Calendar Year,
Landlord may include in the Rent Adjustment Deposit its estimate of the Rent Adjustment
which may not be finally determined until after the expiration of the Term. The Tenant’s
obligation to pay the Rent Adjustment shall survive the Term.




     E. Tenant’s payment of the Rent Adjustment Deposit for each Calendar Year shall be
credited against the Rent Adjustments for such Calendar Year. All Rent Adjustment Deposits
may be co mingled, and no interest shall be paid to Tenant thereon.




     F. Tenant at its cost may examine and audit the books and records of Landlord
pertaining to the Expenses, for the purposes of verifying that such costs and expenses were
paid, the amounts thereof and the accuracy of Landlord’s accounting and billing for such
matters subject to execution of a confidentiality agreement acceptable to Landlord, and
provided that if Tenant utilizes an independent accountant to perform such review it shall
be one of national standing which is reasonably acceptable to Landlord, is not compensated
on a contingency basis and is also subject to such confidentiality agreement. If Tenant
fails to object to Landlord’s Adjustment Statement within ninety (90) days after receipt of
the same, Tenant shall be deemed to have approved such Adjustment Statement and shall have
no further right to object to or contest such Adjustment Statement. Any overpayment or
underpayment of such costs and expenses correctly shown by such audit shall be promptly
reconciled by a payment equal to the amount thereof by Landlord to Tenant, or by Tenant to
Landlord, as the case may be. If the results of such audit correctly show that the amount
billed by Landlord to Tenant has been overpaid by four percent (4%) or more, Landlord shall
reimburse Tenant for the reasonable cost of such audit in addition to the amount overpaid.
Not more than one such audit shall be conducted for each Calendar Year during the term
hereof.



     Section 5.3. Interest Charge and Late Charge. Tenant acknowledges that its late
payment of any Rent will cause Landlord to incur certain costs and expenses not contemplated under
this Lease, the exact amount of which is extremely difficult or impractical to fix. Therefore, if
any payment of Rent, or any portion thereof, is not received by Landlord within five (5) days
after written notice that the same was not paid
when due, Tenant shall immediately pay to Landlord a late charge equal to three percent (3%)
of the unpaid amount (“Late Charge"). Notwithstanding the foregoing, however, if any payment of
Rent, or any portion thereof, is late more than two (2) times in any twelve (12) month period, then
no written notice of non-receipt shall be required and the Late Charge shall become immediately due
and payable if the same is not paid within five (5) days after the date when due. In the event
that any overdue payment of Rent is not paid within one month of the due date thereof, an
additional Late Charge equal to three percent of the unpaid



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amount may be charged by Landlord, and
Landlord may charge an additional three percent of the unpaid amount so over due for each
additional month, or fraction thereof, during which any such payment remains past due. Landlord
and Tenant agree that the Late Charge represents a reasonable estimate of costs and expenses
incurred by Landlord from, and is fair compensation to Landlord for, its loss suffered by such non
payment by Tenant.




     Any amount due from Tenant to Landlord under this Lease, other than the payment of Rent, not
paid when due shall bear interest from the date when the same is payable under the terms of this
Lease until the same shall be paid at an annual rate of interest equal to eighteen percent per
annum (the “Delinquency Rate”).



ARTICLE VI — UTILITIES




     Section 6.1. Utilities. Tenant shall pay, directly to the appropriate supplier, all
costs of natural gas, electricity, heat, light, power, sewer service, telephone, water, refuse
disposal and other utilities and services supplied to the Premises. If at any time, any services
or utilities are jointly metered, Landlord shall make a reasonable determination of Tenant’s share
thereof and Tenant shall pay its share, as Additional Rent hereunder, within fifteen (15) days
after receipt of an invoice from Landlord.



     The current utility service providers (each such company shall hereinafter be referred to as a
“Current Service Provider”) are utility companies selected by Landlord to provide service for the
Premises. Notwithstanding the foregoing, if permitted by law, Landlord shall have the right at any
time and from time to time during the Term to either contract for service from a different company
or companies providing service (each such company shall hereinafter be referred to as an “Alternate
Service Provider” provided that such Alternate Service Provider provides equal or better service at
a comparable cost and the change does not result in an interruption of service) or continue to
contract for service from the Current Service Provider.



     Tenant shall cooperate with Landlord, the Current Service Provider and any Alternate Service
Provider at all times and, as reasonably necessary, shall allow Landlord, Current Service Provider
and any Alternate Service Provider reasonable access to the Premises’ electric lines, feeders,
risers, wiring, and any other machinery within the Premises.



     Landlord shall in no way be liable or responsible for any loss, damage, or expense that Tenant
may sustain or incur by reason of any change, failure, interference, disruption, defect,
unavailability or unsuitability in the supply or character of the energy furnished to the Premises,
and no such change, failure, interference disruption, defect, unavailability, or unsuitability
shall relieve Tenant from any of its obligations under the Lease. Notwithstanding the foregoing,
in the event such failure, interference, disruption, defect, unavailability or unsuitability: (i)
is directly caused by the negligence or willful misconduct of Landlord or Landlord’s agents,
employees or contractors, (ii) causes the Premises to be untenantable, and (iii) causes Tenant to
be unable to conduct its business at the Premises for three (3) consecutive business days, the Base
Rent and Additional Rent shall abate from the date of the untenantability until the earlier of the
date Premises are again tenantable or the date Tenant begins conducting its business from the
Premises.



ARTICLE VII — USE




     Section 7.1. Use. The Premises shall be used for the Use only, and for no other purpose.



     Section 7.2. Prohibited Uses. Tenant shall not permit the Premises, or any portion
thereof, to be used in such manner which impairs Landlord’s right, title or interest in the
Premises or any portion thereof, or in such manner which gives rise to a claim or claims of adverse
possession or of a dedication of the Premises,



12









 




or any portion thereof, for public use. Tenant
shall not use or occupy the Premises or permit the Premises to be used or occupied (i) contrary to
any Restriction or any statute, rule, order, ordinance, requirement, regulation or restrictive
covenant applicable thereto, and shall at all times comply with same, (ii) in any manner which
would violate any certificate of occupancy, (iii) in any manner which would render the insurance
void or the insurance risk more hazardous, (iv) in any manner which would cause structural injury
to the Building, (v) in any manner which would cause the value or usefulness of the Premises or any
part thereof to diminish or (vi) in a manner which would constitute a public or private nuisance or
waste. Tenant agrees that it will, promptly upon discovery of any such use, immediately notify
Landlord and take all necessary steps to compel the discontinuance of such use.




ARTICLE VIII — MAINTENANCE, REPAIR AND REPLACEMENTS OF PREMISES




     Section 8.1. Tenant’s Obligations. Except as set forth in Section 8.2 below, Tenant
assumes full and sole responsibility for condition, operation, repair, alteration, improvement,
replacement, maintenance and management of the Premises. Tenant agrees, at Tenant’s sole cost and
expense, to take good care of the Premises and keep same and all parts thereof, together with any
and all alterations and additions thereto, in good order, condition and repair, suffering no waste
or injury. Tenant shall, at its sole cost and expense, promptly perform all maintenance and make
all necessary repairs and replacements, ordinary as well as extraordinary, foreseen as well as
unforeseen, in and to any equipment now or hereafter located in the Premises, including, without
limitation, water, sewer, gas, HVAC and electricity connections, pipes, mains and all other
fixtures, machinery, apparatus, equipment, overhead cranes and appurtenances now or hereafter
belonging to, connected with or used in conjunction with the Premises. All such repairs and
replacements shall be of first class quality and sufficient for the proper maintenance and
operation of the Premises. Tenant shall keep and maintain the Premises safe, secure and clean,
specifically including, but not by way of limitation, removal of waste and refuse matter. Tenant
shall not permit anything to be done upon the Premises (and shall perform all maintenance and
repairs thereto so as not) to invalidate, in whole or in part, or prevent the procurement of any
insurance policies which may, at any time, be required under the provisions of this Lease. Tenant
shall not obstruct or permit the obstruction of any parking area, adjoining street or sidewalk.
Landlord shall assign to Tenant the warranty for the rooftop HVAC units serving the Premises.
Tenant shall use commercially reasonable efforts to perform all required maintenance, repairs and
replacements under this Section 8.1 as soon as possible.



     Tenant at its own cost and expense also shall promptly comply with any and all governmental
requirement to or affecting the Premises or any part thereof, irrespective of the nature of the
work required to be done, extraordinary as well as ordinary, whether or not the same involve or
require any structural changes or additions in or to the Building and irrespective of whether or
not such changes or additions be required on account of any particular use to which the Premises or
any part thereof are being put.



     In the event that, in the reasonable judgment of both Landlord and Tenant, Tenant is required
to make any repair or replacement pursuant to this Section 8.1 which would be considered a capital
repair or replacement under generally accepted accounting principles (each, a “Capital Item”) and
which is not caused by the negligence of Tenant or any member of the Tenant Group or Tenant’s
failure to maintain or repair such
item as required hereby, then Tenant shall only be responsible for the cost of any such
Capital Item, amortized at 8.5% over the manufacturer’s estimated useful life of such Capital Item,
as reasonably determined by Landlord in accordance with generally accepted accounting principles,
for that portion of the Term remaining at the time such Capital Item is repaired or replaced, and
Landlord shall pay the balance of such cost.



     Section 8.2. Landlord’s Obligations. Subject to the provisions of Articles X and XIII
hereof, Landlord shall, at its sole cost and expense, and without reimbursement by Tenant, except
for any



13









 




maintenance, repair and replacement cause by the act or omission of Tenant or any member of
the Tenant Group, maintain, repair and replace, as necessary, the roof and structural portions
(including the structural integrity of the exterior walls) of the Building in which the Premises is
located (the “Structural Items”). Landlord shall also maintain, repair and replace, as necessary,
the common areas of the Building, the landscaping, parking lot, sidewalks and appurtenances
thereto, including, as necessary, snow and ice removal and all costs incurred by Landlord in
connection therewith shall be deemed Expenses. In the event that Landlord is required to make any
repair or replacement pursuant to this Section 8.2 which would be considered a Capital Item (other
than Structural Items, which shall be at Landlord’s sole cost and expense), then the cost of such
Capital Item shall be amortized at 8.5% over the manufacturer’s estimated useful life of such
Capital Item, as reasonably determined by Landlord in accordance with generally accepted accounting
principles, and Expenses shall include, on an annual basis, that portion of said amortized cost
which relates to the portion of the Term (including any Renewal Term) remaining on the date of such
repair or replacement. Landlord shall use commercially reasonable efforts to perform all required
maintenance, repairs and replacements under this Section 8.2 as soon as possible.




ARTICLE IX — TENANT’S INSURANCE




     Section 9.1. Coverage Required. Tenant shall procure and maintain, or cause to be
maintained, at all times during the term of this Lease, at Tenant’s sole cost and expense, and
until each and every obligation of Tenant contained in the Lease has been fully performed, the
types of insurance reasonably required by Landlord, with insurance companies authorized to do
business in the State of Illinois covering all operations under this Lease, whether performed by
Tenant or by its contractors and subcontractors:



     Section 9.2. Policies. All insurance policies shall be written with insurance
companies acceptable to Landlord with a minimum A.M. Best rating of A-VII. All insurance policies
shall name Landlord and Landlord’s mortgagee, if any, as additional insured and loss payee as their
respective interests may appear and shall provide that they may not be terminated or modified
without thirty (30) days advance written notice to Landlord and its mortgagee, if any. Tenant
shall furnish to Landlord, prior to the Commencement Date, such insurance required to be carried by
Tenant, and thereafter at least fifteen days prior to the expiration of each such policy,
certificates of insurance for any required insurance.



     Section 9.3. Subrogation. Landlord and Tenant agree to have all property insurance
which may be carried by either of them endorsed to provide that the insurer waives all rights of
subrogation which such insurer might have against the other party and Landlord’s mortgagee, if any.
Without limiting any release or waiver of liability or recovery contained in any other Section of
this Lease but rather in confirmation and furtherance thereof, Landlord waives all claims for
recovery from Tenant, and Tenant waives all claims for recovery from Landlord, and their respective
agents, partners and employees, for any loss or damage to any of its property insured under valid
and collectible insurance policies to the extent of any recovery collectible under such insurance
policies.



     Section 9.4. Miscellaneous Insurance Provisions. Landlord and Tenant further agree as
follows : (i) any and all deductibles on referenced insurance coverages shall be borne by Tenant;
(ii) Tenant expressly understands and agrees that any insurance maintained by Landlord shall apply
in excess of and not contribute with insurance provided by the Tenant under the Lease; and (iii)
all insurance companies shall have a Best rating of not less than A/VII, or an equivalent rating in
the event Best ceases to exist or provide a rating.



ARTICLE X — DAMAGE OR DESTRUCTION




     Section 10.1. Damage: Lease to Terminate. In the event that the Building or any
portion thereof is so damaged by fire or other casualty that Landlord shall decide to demolish or
not rebuild the same, then, in



14









 




such event, Landlord shall have the right to terminate this Lease by
notice to Tenant given within sixty (60) days after the date of such fire or other casualty. In
such event Rent shall be apportioned on a per diem basis and paid to the date of such termination.




     Section 10.2. Damage: Lease to Continue. In the event the Premises are damaged by
fire or other casualty and Landlord chooses to rebuild, then Landlord shall proceed with reasonable
diligence to repair and restore the Premises. In such event, Rent shall abate in proportion to the
non usability of the Premises during the period while repairs are in progress.



     Notwithstanding the foregoing, if Landlord determines, in its commercially reasonable
judgment, that the time required to adjust the loss with the insurer and to thereafter commence and
substantially complete the repair and restoration of Premises will exceed two hundred and seventy
(270) days from the date of the fire or other casualty, Landlord shall so notify Tenant, within
sixty (60) days after the date of such fire or other casualty, and either Landlord or Tenant shall
have the right to terminate this Lease by written notice to the other party with fourteen (14) days
after Tenant’s receipt of Landlord’s notice described in the preceding sentence.



ARTICLE XI — LIENS




     Section 11.1. Lien Claims. Tenant shall not do any act which shall in any way
encumber the title of Landlord in and to the Premises or the Building, nor shall any interest or
estate of Landlord in the Premises or the Building be in any way subject to any claim by way of
lien or encumbrance, whether by operation of law or by virtue of any express or implied contract by
Tenant, and any claim to or lien upon the Premises or the Building arising from any act or omission
of Tenant shall accrue only against the leasehold estate of Tenant and shall in all respects be
subject and subordinate to the paramount title and rights of Landlord in and to the Premises or the
Building. Tenant will not permit the Premises or the Building to become subject to any mechanics’,
laborers’ or materialmen’s lien on account of labor or material furnished to Tenant or claimed to
have been furnished to Tenant in connection with work of any character performed or claimed to have
been performed on the Premises by or at the direction or sufferance of Tenant.



ARTICLE XII — TENANT ALTERATIONS




     Section 12.1. Alterations. Tenant shall not make any alterations, additions or
improvements to the Premises or any portion thereof (collectively, “Alterations”) without in each
instance, the prior written consent of Landlord; provided, however, upon notice to, but without the
consent of Landlord, Tenant shall have the right to make any Alterations where same are non
structural, do not require openings on the roof or exterior walls of the Building, do not affect
any Building system, and the cost of same does not exceed $10,000.00 in the aggregate in any twelve
month period. Any Alteration by Tenant hereunder shall be done in a good and workmanlike manner
in compliance with any applicable governmental laws, statutes, ordinances and regulations. Before
commencing any Alterations requiring Landlord’s consent: (a) plans and specifications
therefor, prepared by a licensed architect, shall be submitted to and approved by Landlord
(such approval shall not be unreasonably withheld or delayed); (b) Tenant shall furnish to
Landlord an estimate of the cost of the proposed work, certified by the architect who
prepared such plans and specifications; (c) all contracts for any proposed work shall be
submitted to and approved by Landlord; (d) Tenant shall have furnished Landlord with a
satisfactory certificate or certificates from an insurance company acceptable to Landlord
reflecting insurance coverage reasonably acceptable to Landlord; and (e) Tenant shall either
furnish to Landlord a bond in form and substance satisfactory to Landlord, or such other
security reasonably satisfactory to Landlord to insure payment for the completion
of all work free and clear of liens.  Upon completion of any Alteration by Tenant
hereunder, Tenant shall furnish Landlord with a copy of the “as
built” plans
covering such construction.




15











 





     Section 12.2. Ownership of Alterations. Upon Tenant’s written request prior to
such time as Tenant intends to make any Alteration, Landlord shall indicate to Tenant whether or
not such Alteration must be removed upon surrender of the Premises. To the extent Tenant does not
request such an indication from Landlord at the time Tenant intends to make an Alteration, then at
the termination of this Lease, Landlord shall have the option of requiring removal of such
Alteration or requiring that such Alteration become the property of Landlord and remain upon and be
surrendered with the Premises as part thereof. Landlord agrees that Tenant’s initial improvements
to the Premises, as described on Exhibit “G” attached hereto, will not have to be removed
at the termination of the Lease.



     Section 12.3. Signs. Tenant shall not place any signs on any part of the Land without
the prior consent of Landlord which consent shall not be unreasonably withheld. Tenant shall have
the right subject to the prior consent of Landlord which consent shall not be unreasonably
withheld, to install wall signage on the Building at Tenant’s sole cost and expense, which wall and
wall signage shall remain subject to the requirements of the Property Owners Association and the
Village of Gurnee Zoning Department. Landlord hereby approves Tenant’s wall signage in accordance
with the specifications set forth on Exhibit “E” attached hereto and made a part hereof.
Landlord shall install at its sole cost and expense a building monument sign, and Tenant shall have
the right to be listed on the sign along with other tenants in the Building; provided, however,
that Tenant shall be listed at the top of such monument sign.



ARTICLE XIII — CONDEMNATION




     Section 13.1. Taking: Lease to Terminate. If a portion of the Premises shall be
lawfully taken or condemned for any public or quasi public use or purpose, or conveyed under threat
of such condemnation and as a result thereof the Premises cannot be used for the same purpose as
before such taking, sale or condemnation, the Tenant’s right to possession under this Lease shall
end upon the date of the taking, sale or condemnation by the condemning authority. Tenant hereby
assigns to Landlord, Tenant’s interest in such award, if any. If any part of the Premises shall be
so taken or condemned, or if the grade of any street or alley adjacent to the Premises is changed
by any competent authority and such taking or change of grade makes it necessary or desirable to
demolish, substantially remodel, or restore the Building, Landlord shall also have the right to
terminate this Lease upon written notice given not less than sixty days prior to the date of
termination designated in such notice.



     Section 13.2. Taking: Lease to Continue. If a portion of the Premises shall be
lawfully taken or condemned for any public or quasi public use or purpose or conveyed under threat
of such condemnation and Landlord does not terminate the Lease as permitted by Section 13.1 or as a
result of such taking, sale or condemnation, the balance of the Premises can be used for the same
purpose as before such taking, sale or condemnation, this Lease shall not terminate. In such
event, Landlord, at its sole cost and expense up to the amount of any award, shall, to the extent
practical, promptly (subject to extension due to delay because of matters beyond the control of
Landlord and Landlord’s receipt of insurance proceeds) repair and restore the Premises. Any award
paid as a consequence of such taking, sale or condemnation, shall be paid to Landlord and any sums
not disbursed by Landlord in connection with the repair or restoration of the Premises shall be
retained by Landlord. In the event of a taking of any portion of land only, this Lease shall not
terminate and Landlord shall not be obligated to repair or restore the Premises.



ARTICLE
XIV —  ASSIGNMENT SUBLETTING BY TENANT




     Section 14.1. No Assignment, Subletting or Other Transfer. Tenant shall not sublet or
permit the use or occupancy of the Premises or any part thereof by anyone other than Tenant,
without the express prior written consent of Landlord, which consent shall not be unreasonably
withheld or delayed. Consent by
Landlord pursuant to this Article shall not be deemed, construed or held to be consent to any
additional assignment or subletting, but each successive act shall require similar consent of
Landlord. Landlord shall be



16









 




reimbursed by Tenant for any reasonable costs or expenses incurred
pursuant to any request by Tenant for consent to any such assignment or subletting. In connection
with any request for a sublease, Tenant shall provide Landlord with a copy of the proposed sublease
agreement and financial information from the proposed subtenant acceptable to Landlord.




     Section 14.2. Operation of Law. Tenant shall not allow or permit any transfer of this
Lease, or any interest hereunder, by operation of law, or convey, mortgage, pledge or encumber this
Lease or any interest hereunder.



     Section 14.3. Excess Rental. If Tenant shall, with Landlord’s prior written consent
as herein required, sublet the Premises, fifty percent (50%) of the rental in excess of the Base
Rent and any Additional Rent herein provided, after deduction of Tenant reasonable expenses related
to such subletting, shall be paid by Tenant to Landlord promptly when due under any sublease as
Additional Rent due hereunder.



     Section 14.4. Merger or Consolidation. If Tenant is a corporation whose stock is not
publicly traded, any transaction or series of transactions (including, without limitation, any
dissolution, merger, consolidation or other reorganization of Tenant, or any issuance, sale, gift,
transfer or redemption of any capital stock of Tenant, whether voluntary, involuntary or by
operation of law, or any combination of any of the foregoing transactions) resulting in the
transfer of control of Tenant, shall be deemed to be a voluntary assignment of this Lease by Tenant
subject to the provisions of this Article XIV. If Tenant is a partnership or limited liability
company, any transaction or series of transactions (including without limitation any withdrawal or
admittance of a partner or member or a change in any partner’s or member’s interest in Tenant,
whether voluntary, involuntary or by operation of law, or any combination of any of the foregoing
transactions) resulting in the transfer of control of Tenant, shall be deemed to be a voluntary
assignment of this Lease by Tenant subject to the provisions of this assignment of this Lease by
Tenant subject to the provisions of this Article XIV. As used in this Section 14.4, the term
“control” means possession of the power to vote not less than a majority interest of any class of
voting securities and partnership or limited liability company interests or to direct or cause the
direction (directly or indirectly) of the management or policies of a corporation, or partnership
or limited liability company through the ownership of voting securities, partnership interests or
limited liability company interests, respectively.



     Section 14.5. No Release of Liability. No assignment or subletting shall relieve
Tenant of its obligations hereunder, and Tenant shall continue to be liable as a principal and not
as a guarantor or surety, to the same extent as though no assignment or sublease had been made.



ARTICLE
XV — ANNUAL STATEMENTS




     Section 15.1. Financial Statements. Tenant agrees to furnish Landlord annually, upon
Landlord’s request, a copy of the most recent annual report or annual audited financial statements
for Tenant. So long as Akorn’s most recent annual reports or annual audited financial statements
are available at its website, www.akorn.com, such financial information shall be deemed delivered.
Tenant agrees that Landlord may deliver such report to any mortgagee, prospective mortgagee or
prospective purchaser of the premises on a confidential basis.



     In the event that Tenant is no longer a publicly traded corporation, then Tenant agrees to
timely provide financial information as requested by Landlord, including, but not limited to,
annual financial statements audited by independent certified public accountants within 90 days
after the end of each fiscal year and any other financial information reasonably requested by
Landlord (collectively, “Financial
Information”). Tenant agrees that Landlord may deliver the Financial Information to any
lender, prospective lender or prospective purchaser of the Premises. Tenant hereby further agrees
that the Financial Information submitted by it to Landlord, whenever furnished to Landlord and
whether or not requested by Landlord, are



17









 




material inducements to the execution by Landlord of this
Lease. Tenant represents and warrants that such Financial Information is, and all Financial
Information, whenever furnished to Landlord and whether or not requested by Landlord, are true,
correct and complete in all material respects and fairly present the financial condition of Tenant
for the respective periods covered thereby, and that since the date thereof there has been no
material adverse change in such financial condition or operations of the applicable party.




ARTICLE
XVI — COSTS AND EXPENSES OF LITIGATION




     Section 16.1. Costs and Expenses of Litigation. Tenant and Landlord agree to pay, and
to indemnify and defend the other against, all costs and expenses (including reasonable attorney’s
fees) incurred by or imposed upon such indemnified party by or in connection with any litigation
regarding the Premises or this Lease, to which such indemnified party becomes or is made a party
without fault on its part, or may be incurred by such indemnified party in enforcing any of the
covenants and agreements of this Lease with or without the institution of any action or proceeding
relating to the Premises or this Lease, or, in Landlord’s case, in obtaining possession of the
Premises after an Event of Default hereunder or upon expiration or earlier termination of this
Lease. The foregoing notwithstanding, Tenant’s and Landlord’s respective responsibilities under
this Section 16.1 to pay the indemnified party’s costs and expenses (including reasonable
attorneys’ fees) shall not extend to such costs and expenses incurred in defending an action
brought by the indemnified party to enforce the terms of this Lease in which there is a court
determination that the indemnified party failed to perform its obligations under this Lease. The
provisions of this Section 16.1 shall survive the expiration or earlier termination of this Lease.



ARTICLE XVII — ESTOPPEL CERTIFICATES




     Section 17.1. Estoppel Certificate. Tenant agrees that on the Commencement Date and
at any time and from time to time thereafter, upon not less than ten (10) days’ prior written
request by Landlord, Tenant will execute, acknowledge and deliver to Landlord, Landlord’s
mortgagee, purchaser, or any other third party designated by Landlord, to the extent factually
accurate, a statement in writing in the form of Exhibit “D” attached hereto and made a part
hereof. Tenant further agrees to certify to any prospective purchaser or mortgagee any other
reasonable information specifically requested by such prospective purchaser or mortgagee.



ARTICLE XVIII — INSPECTION OF PREMISES




     Section 18.1. Inspections. Tenant agrees to permit Landlord and any authorized
representatives of Landlord, to enter the Premises at all reasonable times, upon at least
twenty-four (24) hours advance notice, for the purpose of inspecting the Premises. During any such
inspections, Landlord will endeavor to minimize any disruption of Tenant’s business operations.
Notwithstanding the foregoing, in the case of an Emergency Situation (as defined in Section 22.1)
or upon the occurrence of an Event of Default (as defined in Section 20.1) no notice shall be
required. Any such inspections shall be solely for Landlord’s purposes and may not be relied upon
by Tenant or any other person.



     Section 18.2. Signs. Tenant agrees to permit Landlord and any authorized
representative of Landlord to enter the Premises at all reasonable times during business hours on
reasonable advance notice to exhibit the same for the purpose of sale or mortgage, and during the
final six month period of the Term for lease, and during the final six month period of the Term
hereof, Landlord may display on the Premises customary “For Sale” or “For Rent” signs.



18









 





ARTICLE XIX— FIXTURES




     Section 19.1. Building Fixtures. The Building and all other improvements located on
the Land, including, but not limited to, all structural components of the Building and all
plumbing, heating, lighting, electrical and air conditioning fixtures and equipment, and other
articles of personal property used in the operation of the Premises, whether or not attached or
affixed to the Premises, together with all Alterations and Tenant’s Property which by the terms of
this Lease become the property of Landlord (collectively, “Building Fixtures”), shall be and remain
a part of the Premises and shall constitute the property of Landlord.



     Section 19.2. Tenant’s Property. Except as otherwise expressly provided by the terms
of this Lease, all of Tenant’s trade fixtures and other personal property, fixtures, apparatus,
machinery and equipment now or hereafter located upon the Premises, other than Building Fixtures,
shall be and remain the personal property of Tenant, and the same are herein referred to as
“Tenant’s Property.”



ARTICLE XX— DEFAULT




     Section 20.1. Tenant’s Default. Tenant agrees that the occurrence of any one or more
of the following events shall be considered an “Event of Default” as said term is used herein:




     A. Entry of an order, judgment or decree shall be entered by any court adjudicating
Tenant a bankrupt or insolvent, or approving a petition seeking reorganization of Tenant or
appointing a receiver, trustee or liquidator of Tenant , or of all or a substantial part of
its assets, if such order, judgment or decree shall continue unstayed and in effect for any
period of sixty days; or




     B. Tenant shall file an answer admitting the material allegations of a petition filed
against Tenant in any bankruptcy, reorganization or insolvency proceeding or under any laws
relating to the relief of debtors, readjustment or indebtedness, reorganization,
arrangements, composition or extension; or




     C. Tenant shall make any assignment for the benefit of creditors or shall apply for or
consent to the appointment of a receiver, trustee or liquidator of Tenant, or any of the
assets of Tenant; or




     D. Tenant shall file a voluntary petition in bankruptcy, or shall admit in writing its
inability to pay its debts as they come due, or shall file a petition or an answer seeking
reorganization or arrangement with creditors or take advantage of any insolvency law; or




     E. A decree or order appointing a receiver of the property of Tenant shall be made and
such decree or order shall not have been vacated within sixty days from the date of entry or
granting thereof; or




     F. Tenant shall default in making any payment of Rent and such default shall continue
for five (5) days after the date such payment of Rent was due; or Tenant shall default in
making of any other payment required to be made by Tenant hereunder when due and such
default shall continue for five (5) days after written notice thereof; or




     G. Tenant shall fail to carry all required insurance under this Lease; or




     H. Tenant has made any material misrepresentation, or failed to disclose a material
fact, under the Lease or in connection with any information (including, without limitation,
Financial Information) submitted or furnished to Landlord by Tenant; or



19









 






     I. Without Landlord’s prior written consent, Tenant shall enter into any transaction of
merger or consolidation in which it is not the surviving entity or sell, transfer or dispose
of all or substantially all of its assets; or




     J. If Tenant shall default in the performance of any covenant, promise or agreement on
the part of Tenant contained in this Lease not otherwise specified in this Section 20.1 and
such default shall continue for thirty (30) days after notice thereof in writing by Landlord
to Tenant, or if such default or condition which gives rise thereto cannot with due
diligence and good faith be cured within such thirty (30) day period, if Tenant shall not in
good faith and within the period of thirty (30) days commence the curing of such default and
pursue the curing of such default continuously and diligently and in good faith to the end
that such default shall be cured within such minimum period in excess of thirty (30) days as
may be reasonably necessary to cure such default through pursuing such cure promptly,
diligently, continuously and in good faith; provided, however, that such additional period
beyond thirty (30) days shall not apply to a default that creates a clear and present danger
to persons or property or materially adversely affects the Premises, or if the failure or
default by Tenant is one for which Landlord (or any officer or other agent or beneficial or
other owner thereof) may be subject to fine or imprisonment.



ARTICLE XXI— REMEDIES




     Section 21.1. Landlord’s Remedies. Upon the occurrence of any Event of Default and at
any time thereafter, Landlord may, at its election, exercise any one or more of the following
described remedies, in addition to all other rights and remedies provided at law, in equity or
elsewhere herein:




     A. Landlord may terminate this Lease by giving to Tenant written notice of Landlord’s
election to do so, in which event the Term and all right, title and interest of Tenant
hereunder shall end on the date stated in such notice;




     B. Landlord may terminate the right of Tenant to possession of the Premises without
terminating this Lease, by giving written notice to Tenant that Tenant’s right of possession
shall end on the date stated in such notice, whereupon the right of Tenant to possession of
the Premises or any part thereof shall cease on the date stated in such notice;




     C. Landlord may enforce the provisions of this Lease and may enforce and protect the
rights of Landlord by a suit or suits in equity or at law for the performance of any
covenant or agreement herein, and for the enforcement of any other appropriate legal or
equitable remedy, including without limitation (i) injunctive relief, (ii) recovery of all
moneys due or to become due from Tenant under any of the provisions of this Lease, and (iii)
any other damages incurred by Landlord by reason of Tenant’s default under this Lease; and




     D. Landlord may reenter and take possession of the Premises or any part of the
Premises, repossess the same, expel Tenant and those claiming through or under Tenant, and
remove the effects of both or either, in accordance with applicable law, without being
liable for prosecution, without being deemed guilty of any manner of trespass, and without
prejudice to any remedies for arrears of Rent or other amounts payable under this Lease or
as a result of any other breach of this Lease.



     Section 21.2. Reentry to Premises. Should Landlord elect to reenter as provided
herein with or without terminating this Lease, or should Landlord take possession pursuant to legal
proceedings or pursuant to any notice provided by law, Landlord may, from time to time, without
terminating this Lease, rent the Premises or any part of the Premises, for such term or terms
(which may be greater or less than the period



20









 




which would
otherwise have constituted the balance of the Term) and on such conditions and upon such other
terms (which may include concessions of free rent and alteration and repair of the Premises) as
Landlord, in its discretion, may determine, and Landlord may collect and receive the Rent due in
connection therewith. Landlord shall not be required to accept any tenant offered by Tenant or any
third party or observe any instruction given by Tenant relative to such reletting. Landlord shall
however use commercially reasonable efforts to relet the Premises, to the extent required by Law.
Landlord will in no way be responsible or liable for any failure to relet the Premises, or any part
of the Premises, or for any failure to collect any rent due upon such reletting. No such reentry
or taking possession by Landlord will be construed as an election on Landlord’s part to terminate
this Lease unless a written notice of such intention is given to Tenant. No written notice from
Landlord under this Article XXI or under a forcible or unlawful entry and detainer statute or
similar law will constitute an election by Landlord to terminate this Lease unless such notice
specifically so states. Landlord reserves the right following any such reentry or reletting to
exercise its right to terminate this Lease by giving Tenant such written notice, in which event
this Lease will terminate as specified in such notice.




     Section 21.3. Damages Without Lease Termination. In the event that Landlord does not
elect to terminate this Lease, but on the contrary elects to take possession of the Premises, then,
in addition to all other rights and remedies of Landlord, Tenant shall pay to Landlord (i) Rent and
other sums as provided in this Lease that would be payable under this Lease if such repossession
had not occurred, less (ii) the net proceeds, if any, of any reletting of the Premises after
deducting all of Landlord’s reasonable expenses in connection with such reletting, including
without limitation all repossession costs, brokerage commissions, attorneys’ fees, expenses of
employees, alteration and repair costs, and expenses of preparation for such reletting. If, in
connection with any reletting, the new lease term extends beyond the Term, or the Premises covered
by such new lease includes other premises not part of the Premises, a fair apportionment of the
rent received from such reletting will be made in determining the net proceeds from such reletting.
Tenant will pay such Rent and other sums to Landlord monthly on the day on which such sums would
have been payable under this Lease if possession had not been retaken, and Landlord shall be
entitled to receive such Rent and other sums from Tenant on each such day.



     Section 21.4. Damages Upon Lease Termination. In the event that Landlord elects to
terminate this Lease, then, in addition to all other rights and remedies of Landlord, Tenant shall
remain liable to pay to Landlord as damages an amount equal to (i) all Rent due hereunder accrued
and unpaid for the period up to and including the Termination Date, plus (ii) all other additional
sums payable by Tenant or for which Tenant is liable or in respect of which Tenant has agreed to
indemnify Landlord under any of the provisions of this Lease, which may then be owing and unpaid,
plus (iii) all costs and expenses, including, without limitation, court costs and reasonable
attorneys’ fees incurred by Landlord in the enforcement of any of its rights and remedies
hereunder, plus (iv) the present value (based upon a discount rate of five percent per annum) of
the Rent provided to be paid for the remainder of the Term, plus (v) interest on the foregoing
amounts at the Delinquency Rate from the date of Landlord’s notice to Tenant demanding payment
therefor until paid.



     In the alternative, Landlord shall have the right, from time to time, to recover from Tenant
upon demand, and Tenant shall remain liable to pay Landlord for, (i) all Rent and other amounts due
and owing under this Lease not previously paid pursuant to the provisions of this Lease, plus (ii)
damages equal to the sum of (y) all Rent and all other sums which would have accrued under this
Lease after the date of termination had it not been terminated, such damages to be due and payable
as such sums would have become due, less (z) such amounts as Landlord may actually receive from
reletting after first paying all costs of such reletting, including, without limitation, the
expenses enumerated in Section 21.3 and the net amounts of rent collected remaining after such
expenses shall operate only as an off setting credit against the amount due hereunder with any
excess or residue belonging solely to Landlord, plus interest on the foregoing sum at the
Delinquency Rate from the date of Landlord’s notice to Tenant demanding payment therefor until
paid.



21









 





     Section 21.5. Survival of Tenant Obligations. No termination of this Lease and no
taking possession of and/or reletting the Premises or any part thereof, shall relieve Tenant of its
liabilities and obligations hereunder, except as specifically provided herein, all of which shall
survive such expiration, termination, repossession or reletting except as otherwise specifically
provided.



     Section 21.6. Tenant Waiver. To the extent not prohibited by law, Tenant hereby
waives and releases all rights now or hereafter conferred by statute or otherwise which would have
the effect of limiting or modifying any of the provisions of this Article XXI. Landlord and Tenant
waive and shall waive trial by jury in any action, proceeding or counterclaim brought by either of
the parties hereto against the other on any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant’s use or occupancy of
the Premises, or any claim of injury or damage. No failure by either party to insist upon the
strict performance by the other party of any covenant, agreement, term or condition of this Lease
or to exercise any right or remedy consequent upon a breach thereof, and no payment or acceptance
of full or partial Rent during the continuance of any such breach, shall constitute a waiver of any
such breach or of such covenant, agreement, term or condition. No covenant, agreement, term or
condition of this Lease to be performed or completed with by either party, and no breach thereof,
shall be waived, altered or modified except by a written instrument executed by the other party.
No waiver of any breach shall affect or alter this Lease, but each and every covenant, agreement,
term and condition of this Lease shall continue in full force and effect with respect to any other
then existing or subsequent breach thereof.



     Section 21.7. Suits to Recover Damages. Suit or suits for the recovery of damages, or
for a sum equal to any installment or installments of Rent payable hereunder or any other sums
payable by Tenant to Landlord pursuant to this Lease, may be brought by Landlord at any time and
from time to time at Landlord’s election, and nothing herein contained shall be deemed to require
Landlord to await the date whereon this Lease or the Term would have expired had there been no
Event of Default by Tenant.



     Section 21.8. Receipt of Payment after Termination. No receipt of moneys by Landlord
from Tenant after the termination of this Lease or Tenant’s right to possession, or after the
giving of any notice of the termination of this Lease or Tenant’s right to possession, shall
reinstate, continue or extend the Term or affect any notice theretofore given to Tenant, or operate
as a waiver of the right of Landlord to enforce the payment of Rent payable by Tenant hereunder or
thereafter falling due, or operate as a waiver of the right of Landlord to recover possession of
the Premises or any part thereof by proper remedy, it being agreed that after the service of notice
to terminate this Lease or Tenant’s right to possession or the commencement of any suit or summary
proceedings, or after a final order or judgment for the possession of the Premises, or any part
thereof or interest therein, Landlord may demand, receive and collect any moneys due or thereafter
falling due without in any manner affecting such notice, proceeding, order, suit or judgment, all
such moneys collected being deemed payments on account of the Tenant’s liability hereunder.



     Section 21.9. Cumulative Remedies. No remedy contained herein or otherwise conferred
upon or reserved to Landlord, shall be considered exclusive of any other remedy, but the same shall
be cumulative and shall be in addition to every other remedy given herein, now or hereafter
existing at law or in equity or by statute, and every power and remedy given by this Lease to
Landlord may be exercised from time to time and as often as occasion may arise or as may be deemed
expedient. No delay or omission of Landlord to exercise any right or power arising from any
default shall impair any such right or power or shall be construed to be a waiver of any such
default or an acquiescence therein.



ARTICLE XXII — LANDLORD’S PERFORMANCE OF TENANT’S COVENANTS




     Section 22.1. Landlord’s Right to Perform Tenant’s Obligations. In the event Tenant
shall fail to perform any of its obligations hereunder, Landlord may (but shall not be obligated to
do so), and without
waiving or releasing Tenant from any obligation of Tenant hereunder, make any payment or
perform any



22









 




other act which Tenant is obligated to make or perform under this Lease. All sums so
paid and all liabilities so incurred by Landlord, together with interest thereon at the Delinquency
Rate, shall be payable to Landlord upon demand as Additional Rent. Except in the case of an
Emergency Situation, Landlord shall use reasonable efforts to give prior notice (which may be oral)
of its performance, if reasonably feasible under the circumstances. Nothing contained herein shall
be construed to require Landlord to advance monies for any purpose. In exercising its rights
hereunder, Landlord shall use reasonable efforts not to interfere with the normal operation of the
Premises. The term “Emergency Situation” shall mean a situation which has caused or is likely to
cause bodily injury to persons, contamination of or physical damage to the Premises (or any portion
thereof) or adjoining property or economic liability or criminal jeopardy to Landlord.




ARTICLE XXIII — SUBORDINATION TO MORTGAGES




     Section 23.1. Subordination. Landlord acknowledges that, as of the date hereof,
there is no mortgage encumbering the Premises. Landlord may hereafter execute and deliver a
mortgage or trust deed in the nature of a mortgage (both sometimes referred to as “Mortgage”)
against the Premises or any portion thereof. Tenant agrees, upon Landlord’s request, to
subordinate this Lease to any future Mortgage provided the holder thereof agrees to execute and
deliver a commercially reasonable subordination, non-disturbance and attornment agreement whereby
the holder thereof agrees to recognize and not to disturb the rights of Tenant hereunder so long as
Tenant is not in default under this Lease. Notwithstanding anything to the contrary contained
herein, any mortgagee under a Mortgage may, by notice in writing to the Tenant, subordinate its
Mortgage to this Lease.



ARTICLE XXIV — INDEMNITY AND WAIVER




     Section 24.1. Indemnity. Tenant shall not do or permit any act or thing to be done or
omit to do any act or thing upon the Premises which may subject Landlord to any liability or
responsibility for injury, damage to persons or property, or to any liability by reason of any
violation of applicable laws and shall exercise such control over the Premises so as to fully
protect Landlord against any such liability. Tenant shall defend, indemnify and save Landlord, and
any official, agent, beneficiary, assignee, contractor, director, employee, lessor, mortgagee,
officer, parent, partner, shareholder and trustee of Landlord together with their representatives,
successors and assigns (each an “Indemnified Party”) harmless from and against any and all
liabilities, suits, judgments, settlements, obligations, fines, damages, penalties, claims, costs,
charges and expenses, including, without limitation, engineers’, architects’ and attorneys’ fees,
court costs and disbursements, which may be imposed upon or incurred by or asserted against any
Indemnified Party by reason of any one or more of the following occurring during or after (but
attributable to a period of time falling within) the Term: (i) any use, nonuse, possession,
occupation, alteration, repair, condition, operation, maintenance or management of the Premises or
any part thereof by Tenant or any member of the Tenant Group (as defined in Section 30.1H); (ii)
any act or failure to act on the part of Tenant or any member of the Tenant Group; (iii) any
accident, injury (including death) or damage to any person or property occurring in, on or about
the Premises or any part thereof as a result of the act or neglect of Tenant or any member of the
Tenant Group; (iv) any failure to perform or comply with any of the covenants, agreements, terms or
conditions in this Lease on Tenant’s part to be performed or complied with.



     Section 24.2. Waiver of Claims. Tenant waives all claims it may have against Landlord
and Landlord’s agents for damage or injury to person or property sustained by Tenant or any persons
claiming through Tenant or by any occupant of the Premises, or by any other person, resulting from
any part of the Premises becoming out of repair, or resulting from any accident on or about the
Premises or resulting directly or indirectly from any act or neglect of any person. All of
Tenant’s Property and other personal property belonging to Tenant or any occupant of the Premises
that is in or on any part of the Premises shall be there at
the risk of Tenant or of such other person only, and Landlord shall not be liable for any
damage thereto or for the theft or misappropriation thereof. Nothing herein contained shall be
deemed to waive or release Landlord



23









 




from any claims for damage to person or property arising out of
or related to the gross negligence or willful misconduct of Landlord, its employees, agents or
contractors and Landlord shall indemnify and save Tenant harmless from and against any and all
liabilities, suits, fines, damages, penalties, claims, costs, charges and disbursements incurred by
Tenant to the extent the same result from such gross negligence or intentional misconduct.




ARTICLE XXV— SURRENDER




     Section 25.1. Condition of Premises. Upon the termination of this Lease whether by
forfeiture, lapse of time or otherwise, or upon the termination of Tenant’s right to possession of
the Premises, Tenant will at once surrender and deliver up the Premises to Landlord, broom clean,
in good order, condition and repair, reasonable wear and tear excepted. “Broom clean” means free
from all debris, dirt, rubbish, personal property of Tenant, oil, grease, tire tracks or other
substances, inside and outside of the Building and on the grounds comprising the Premises.



     Section 25.2. Removal of Tenant’s Property and Alterations. Upon the termination of
this Lease by forfeiture, lapse of time, or otherwise, Tenant shall remove Tenant’s Property and
Alterations designated by Landlord, subject to the terms of Section 12.2 hereof. Tenant shall
repair any injury or damage to the Premises which may result from such removal. If Tenant does not
remove Tenant’s Property or such Alterations from the Premises prior to the end of the Term,
however ended, Landlord may, at its option, remove the same and deliver the same to any other place
of business of Tenant or warehouse the same, and Tenant shall pay the cost of such removal
(including the repair of any injury or damage to the Premises resulting from such removal),
delivery and warehousing to Landlord on demand, or Landlord may treat Tenant’s Property and
Alterations as having been conveyed to Landlord with this Lease as a Bill of Sale, without further
payment or credit by Landlord to Tenant.



     Section 25.3. Holdover. If Tenant retains possession of the Premises or any part
thereof after the termination of the Term, by lapse of time or otherwise, then Tenant shall pay to
Landlord Rent, at one hundred fifty percent (150%) of the rate payable for the month immediately
preceding said holding over (including increases for Additional Rent which Landlord may reasonably
estimate), computed on a per month basis, for each month or part thereof (without reduction for any
such partial month) that Tenant remains in possession. In addition thereto, but only if Tenant’s
possession is in excess of one hundred twenty (120) days following such termination, Tenant shall
pay Landlord all damages, consequential as well as direct, sustained by reason of Tenant’s
retention of possession. The provisions of this paragraph do not limit the Landlord’s rights of re
entry or any other right hereunder.



ARTICLE XXVI — COVENANT OF QUIET ENJOYMENT




     Section 26.1. Covenant of Quiet Enjoyment. Landlord covenants that Tenant, on paying
the Rent and all other charges payable by Tenant hereunder, and on keeping, observing and
performing all the other terms, covenants, conditions, provisions and agreements herein contained
on the part of Tenant to be kept, observed and performed, all of which obligations of Tenant are
independent of Landlord’s obligations hereunder, shall, during the Term, peaceably and quietly
have, hold and enjoy the Premises subject to the terms, covenants, conditions, provisions and
agreement hereof free from hindrance by Landlord or any person claiming by, through or under
Landlord.



ARTICLE XXVII — NO RECORDING




     Section 27.1. No Recording. Neither this Lease nor a memorandum hereof shall be
recorded.



24









 





ARTICLE XXVIII— NOTICES




     Section 28.1. Notices. All notices, consents, approvals to or demands upon or by
Landlord or Tenant desired or required to be given under the provisions hereof, shall be in writing
and shall be deemed properly given (i) on the date sent, if delivered by hand, (ii) one day after
the date such notice is deposited with an overnight delivery service; (iii) on the date sent, if
delivered via facsimile at the number(s) set forth below, with a hard copy to follow by overnight
delivery service; (iv) on the date when received with proof of receipt to the party to whose
attention it is directed or when such party refuses to accept receipt if sent, postage prepaid, by
registered or certified mail, return receipt requested, postage prepaid, addressed as follows:



	 	 	 	 	 
	 

	 	If intended for Landlord:
	 	c/o CenterPoint Properties Trust
	 

	 	 	 	1808 Swift Drive
	 

	 	 	 	Oak Brook, Illinois 60523-1501
	 

	 	 	 	Attention: Sean Maher
	 

	 	 	 	Facsimile Number: 630-586-8010
	 
	 	 	 	 
	 

	 	If intended for Tenant:
	 	Akorn, Inc.
	 

	 	 	 	2500 Millbrook Drive
	 

	 	 	 	Buffalo Grove, Illinois 60089
	 

	 	 	 	Attention: Neill E. Shanahan
	 

	 	 	 	Facsimile Number:                                         





or such other address or to such other party which any party entitled to receive notice hereunder
designates to the others in writing by a notice duly given hereunder.




ARTICLE XXIX — COVENANTS, SUCCESSORS AND ASSIGNS




     Section 29.1. Covenants. All of the covenants, agreements, conditions and
undertakings in this Lease contained shall extend and inure to and be binding upon the heirs,
executors, administrators, successors and assigns of the respective parties hereto, the same as if
they were in every case specifically named, and shall be construed as covenants running with the
Land, and wherever in this Lease reference is made to either of the parties hereto, it shall be
held to include and apply to, wherever applicable, the heirs, executors, administrators, successors
and assigns of such party. Nothing herein contained shall be construed to grant or confer upon any
person or persons, firm, corporation or governmental authority, other than the parties hereto,
their heirs, executors, administrators, successors and assigns, any right, claim or privilege by
virtue of any covenant, agreement, condition or undertaking in this Lease.



     Section 29.2. Sale of Premises. Landlord shall at all times during the Term have the
right to sell the Premises or any part thereof and in connection therewith, to assign Landlord’s
rights and obligations under this Lease to any such purchaser. The term “Landlord”, as used in
this Lease, so far as covenants or obligations on the part of Landlord are concerned, shall be
limited to mean and include only the owner or owners at the time in question of title to the
Premises, and in the event of any transfer or transfers of title to the Premises or any part
thereof, Landlord herein named (and in the case of any subsequent transfers or conveyances, the
then grantor) shall be automatically freed and relieved of all liability as respects the
performance of any covenants or obligations on the part of Landlord contained in this Lease to be
performed provided the Landlord’s transferee assumes this Lease.



ARTICLE XXX — ENVIRONMENTAL MATTERS




     Section 30.1. Defined Terms.



25









 






     A. “Hazardous Material” shall include but shall not be limited to any substance,
material, or waste that is regulated by any federal, state, or local governmental authority
because of toxic, flammable, explosive, corrosive, reactive, radioactive or other properties
that may be hazardous to human health or the environment, including without limitation
asbestos and asbestos containing materials, radon, petroleum and petroleum products, urea
formaldehyde foam insulation, methane, lead based paint, polychlorinated biphenyl compounds,
hydrocarbons or like substances and their additives or constituents, pesticides,
agricultural chemicals, and any other special, toxic, or hazardous substances, materials, or
wastes of any kind, including without limitation those now or hereafter defined, determined,
or identified as “hazardous substances,” “hazardous materials,” “toxic substances,” or
“hazardous wastes” in any Environmental Law.




     B. “Environmental Law” shall mean any federal, state, or local law, statute, ordinance,
code, rule, regulation, policy, common law, license, authorization, decision, order, or
injunction which pertains to health, safety, any Hazardous Material, or the environment
(including, but not limited to, ground, air, water, or noise pollution or contamination, and
underground or aboveground tanks) together with all rules, regulations, orders, and decrees
now or hereafter promulgated under any of the foregoing, as any of the foregoing now exist
or may be changed or amended or come into effect in the future.




     C. “Environmental Claim” shall mean and include any demand, notice of violation,
inquiry, cause of action, proceeding, or suit for damages (including reasonable attorneys’,
consultants’, and experts’ fees, costs or expenses), losses, injuries to person or property,
damages to natural resources, fines, penalties, interest, cost recovery, compensation, or
contribution resulting from or in any way arising in connection with any Hazardous Material
or any Environmental Law.




     D. “Pre Existing Condition” shall mean the presence of any Hazardous Material on the
Premises, to the extent such Hazardous Material was not introduced onto the Premises after
the Commencement Date.




     E. “Environmental Condition” shall mean (i) the presence on the Premises of one or more
underground storage tanks or (ii) the existence of any Hazardous Material on the Premises,
other than a Pre Existing Condition,




     (i) in violation of or requiring cleanup under any Environmental Law or the
provisions of this Article XXX, or




     (ii) in concentrations or at levels exceeding applicable federal, state, or
local standards for soil, groundwater, or waste on residential properties,


either of which subjects Landlord to liability for any Environmental Claim or which must be
remediated to prevent Landlord from incurring loss of any kind.





     F. “Environmental Remediation” shall mean any investigation, cleanup, removal,
containment, remediation, or other action relating to an Environmental Condition (i)
required pursuant to any Environmental Law, or (ii) necessary to prevent Landlord from
incurring, or relieve Landlord from, loss of any kind as a result of an Environmental Claim.




     G. “Remediating Party” shall mean the party which has elected (or is deemed to have
elected) to perform any Environmental Remediation.



26









 






     H. “Permitted Materials” shall mean Hazardous Materials used by Tenant in the normal
course of its business in compliance with the terms of this Lease and any applicable
Environmental Law and in amounts not in violation of any Environmental Law. A list of
Permitted Materials is attached hereto as Exhibit “F”.



     Section 30.2. Tenant’s Covenants with Respect to Environmental Matters. During the
Term, Tenant, at its sole cost and expense, shall:




     A. comply with all Environmental Laws relating to the use and operation of the
Premises;




     B. keep the Premises free of any Hazardous Material except for Permitted Materials,
which Permitted Materials shall be stored and used in strict compliance with all applicable
Environmental Laws;




     C. not exacerbate a Pre Existing Condition;




     D. upon the discovery of an Environmental Condition:




     (i) promptly, but not later than three (3) business days after the discovery of
the Environmental Condition, notify Landlord of the Environmental Condition;




     (ii) furnish a letter of credit, personal guaranty, escrow of funds, or other
security reasonably acceptable to Landlord to secure performance of Environmental
Remediation and to assure Landlord that all necessary funds are readily available to
Landlord to pay the costs and expenses of Environmental Remediation;




     (iii) prior to commencement of any Environmental Remediation, submit a proposed
scope of work for the Environmental Remediation, together with a timetable and a
cost estimate, to Landlord for review and approval;




     (iv) after obtaining Landlord’s approval, diligently perform the approved
Environmental Remediation;




     (v) submit to Landlord in a timely manner for Landlord’s review and comment the
documentation and information required by Sections 30.6 and 30.7 of this Lease
relating to each phase of the Environmental Remediation, and pay all costs of
Landlord described in Section 30.7 C;




     (vi) comply with applicable release reporting requirements and provide Landlord
with any information necessary for Landlord to comply with Environmental Law; and




     (vii) obtain a so called “no further remediation letter” or other
acknowledgment from the federal, state, or local governmental agency with
jurisdiction over the Environmental Condition that the Premises have been fully
remediated without reliance on institutional controls (including but not limited to
deed restrictions) or engineered barriers;




     E. not install or operate any above or below ground tank, sump, pit, pond, lagoon, or
other storage or treatment vessel or device on the Premises without first obtaining
Landlord’s prior written consent;



27









 






     F. not handle, use, generate, treat, dispose of, or permit the use, handling,
generation, treatment, storage, or disposal of any Hazardous Material in, on, under, around,
or above the Premises at any time during the Term except for Permitted Materials, which
Permitted Materials shall be handled, used and stored in strict compliance with all
applicable Environmental Laws;




     G. not use any above ground tank (including barrels and drums), of any size within or
without the Premises, except (i) in compliance with all Environmental Laws, and (ii) if
secondary containment approved by Landlord is provided. Empty tanks, barrels and drums
shall be presumed to have one (1) inch of product remaining when declared empty.



     Section 30.3. Exacerbation. Tenant shall not be responsible to remediate a
Pre-Existing Condition. If Tenant exacerbates a Pre Existing Condition (as a result of Tenant’s
investigative or remedial activities or otherwise) during the Term, the provisions of this Article
XXX shall apply to such exacerbation of the Pre Existing Condition as if it were an Environmental
Condition, and Tenant shall perform Environmental Remediation as to such exacerbation.



     Section 30.4. Rights of Inspection. In addition to Landlord’s other rights of entry,
access and inspection contained in this Lease, Landlord and its agents and representatives shall
have a right of entry and access to the Premises at any time in Landlord’s discretion for the
purposes of (i) inspecting the documentation relating to Hazardous Materials or environmental
matters maintained by Tenant or any occupant of the Premises; (ii) ascertaining the nature of the
activities being conducted on the Premises and investigating whether Tenant is in compliance with
its obligations under Article XXX of this Lease; (iii) determining the type, kind, and quantity of
all products, materials, and substances brought onto the Premises, or made or produced thereon, and
(iv) performing such environmental investigations and assessments as Landlord may desire to
perform. The investigation and assessments may also include reasonable subsurface or other
invasive investigation of the Premises, including, but not limited to, soil borings and sampling of
site soil and ground or surface water for laboratory analysis, as may be recommended by the
Landlord’s consultant as part of its inspection of the Premises or based upon such other reasonable
evidence of Environmental Conditions warranting such subsurface or other invasive investigation.
Tenant will cooperate with Landlord and Landlord’s consultants and will supply, promptly upon
request, any information reasonably requested to facilitate the completion of the environmental
assessments and investigations. Landlord and its agents and representatives shall have the right
to take samples in quantities sufficient for analysis of all products, materials, and substances
present on the Premises and shall also have the right to conduct other tests and studies as may be
reasonably determined by Landlord to be appropriate in order to investigate whether Tenant is in
compliance with its obligations under Article XXX.



     Section 30.5. Copies of Notices. During the Term, Tenant shall promptly provide
Landlord with copies of all summons, citations, directives, information inquiries or requests,
notices of potential responsibility, notices of violation or deficiency, orders or decrees,
Environmental Claims, complaints, investigations, judgments, letters, notices of environmental
liens or response actions in progress, and other communications, written or oral, actual or
threatened, received by Tenant or any occupant of the Premises, from any federal, state, or local
agency or authority, or any other entity or individual (including both governmental and non
governmental entities and individuals), concerning (a) any actual or alleged release of any
Hazardous Material on, to, or from the Premises; (b) any actual or alleged violation of or
responsibility under Environmental Laws; or (c) any actual or alleged liability under any theory of
common law tort or toxic tort, including without limitation, negligence, trespass, nuisance, strict
liability, or ultrahazardous activity.



     Section 30.6. Tests and Reports. Upon written request by Landlord, Tenant shall
provide Landlord, at Tenant’s expense, with (i) copies of all environmental reports and tests
prepared or obtained by or for Tenant or any occupant of the Premises; (ii) copies of
transportation and disposal contracts (and related manifests, schedules, reports, and other
information) entered into or obtained by Tenant with respect to any



28









 




Hazardous Material; (iii)
copies of any permits issued to Tenant under Environmental Laws with respect to the Premises; (iv)
prior to filing, copies of any and all reports, notifications, and other filings to be made by
Tenant or any occupant of the Premises to any federal, state, or local environmental authorities or
agencies, and after filing, copies of such filings; and (v) any other relevant documents and
information with respect to environmental matters relating to the Premises. Tenant shall be
obligated to provide such documentation only to the extent that the documentation is within
Tenant’s possession or control.




     Section 30.7. Indemnification. Tenant shall reimburse, defend with counsel chosen by
Landlord, indemnify, and hold Landlord and any other Indemnified Party free and harmless from and
against any and all Environmental Claims, response costs, losses, liabilities, damages, costs, and
expenses, including without limitation loss of rental income, loss due to business interruption,
and reasonable attorneys’ and consultants’ fees, costs and expenses arising out of or in any way
connected with any or all of the following:




     A. any Hazardous Material (other than a Pre Existing Condition) which is or was
actually or allegedly generated, stored, treated, released, disposed of, or otherwise
located on or at the Premises as a result of the act or omission of Tenant or any member of
the Tenant Group (regardless of the location at which such Hazardous Material is now or may
in the future be located or disposed of), including, but not limited to any and all (i)
liabilities under any common law theory of tort, nuisance, strict liability, ultrahazardous
activity, negligence, or otherwise based upon, resulting from or in connection with any
Hazardous Material; (ii) obligations to take response, cleanup, or corrective action
pursuant to any Environmental Laws; and (iii) the costs and expenses of investigation or
remediation in connection with the decontamination, removal, transportation, incineration,
or disposal of any of the foregoing; and




     B. any actual or alleged illness, disability, injury, or death of any person, in any
manner arising out of or allegedly arising out of exposure to any Hazardous Material or
other substances or conditions present at the Premises as a result of the act or omission of
Tenant or any member of the Tenant Group (including, but not limited to, ownership,
operation, and disposal of any equipment which generates, creates, or uses electromagnetic
files, x rays, other forms of radiation and radioactive materials), regardless of when any
such illness, disability, injury, or death shall have occurred or been incurred or
manifested itself; and




     C. any failure by Tenant to comply with any obligation under this Article XXX relating
to an Environmental Condition for which Tenant is Remediating Party;




     D. the imposition of any lien for damages caused by, or the recovery of any costs for,
the remediation or cleanup of any Hazardous Material as a result of the act or omission of
Tenant or any member of the Tenant Group;




     E. costs of removal of any and all Hazardous Materials from all or any portion of the
Premises, which Hazardous Materials came to be present at the Premises as a result of the
act or omission of Tenant or any member of the Tenant Group;




The obligations of Tenant under this Section 30.7 shall survive any termination or
expiration of this Lease.



     Section 30.8. No Liability of Landlord.




     A. To the Landlord’s actual knowledge, except as may otherwise be set forth in the
Environmental Report (as hereinafter defined), the Land does not contain any Hazardous
Material or Pre-Existing Condition. For the purpose of this Section 30.8, the term “to
Landlord’s actual



29









 







knowledge” or words of similar import means the current, actual knowledge
only, and not any implied, imputed or constructive knowledge, of Edward Harrington, Vice
President of Development for CenterPoint Properties Trust, who is familiar with the Land.




     B. Landlord shall not have any liability to Tenant or any of its employees, agents,
shareholders, officers or directors, or any other persons as a result of any Hazardous
Material now or hereafter located on the Premises, except: (i) as provided in Section
30.8.C below, (ii) to the extent that Landlord’s Warranty and Representation, as set forth
in Section 30.8.A above, is materially incorrect, or (iii) to the extent directly caused by
the gross negligence or willful misconduct of Landlord.




     C. Subject to Tenant’s obligation in Section 30.2.C, Landlord shall be obligated to
remediate all Pre-Existing Conditions, if any, in such manner as required by Environmental
Laws.




     D. Landlord has delivered to Tenant a copy of the existing Phase I Environmental
Assessment dated June 13, 2007 prepared by Carlson Environmental (the “Environmental
Report”).



ARTICLE
XXXI — SECURITY DEPOSIT




     Section 31.1. Security Deposit. Tenant agrees to deposit with Landlord, upon the
execution of this Lease, the Security Deposit as security for the full and faithful performance by
Tenant of each and every term, provision, covenant and condition of this Lease. If an Event of
Default occurs, Landlord may use, apply or retain the whole or any part of the Security Deposit for
the payment of any sum then due hereunder or which Landlord may expend or be required to expend by
reason of Tenant’s breach including, without limitation, any damages or deficiency in the reletting
of the Premises, whether such damages or deficiency shall have accrued before or after re entry by
Landlord. If any of the Security Deposit shall be so used, applied or retained by Landlord at any
time or from time to time, Tenant shall promptly, in each such instance, within five (5) days of
written demand therefor by Landlord, pay to Landlord such additional sums as may be necessary to
restore the Security Deposit to the original amount set forth in the first Section of this Lease.
If Tenant shall fully and faithfully comply with all the terms, provisions, covenants and
conditions of this Lease, the Security Deposit, or the balance thereof, shall be returned to Tenant
after all of the following: (a) the time fixed as the expiration of the Term of this Lease; (b)
the removal of Tenant from the Premises; (c) the surrender of the Premises by Tenant to Landlord in
accordance with this Lease; and (d) final determination of all amounts payable by Tenant hereunder
and payment of same.



ARTICLE
XXXII — MISCELLANEOUS




     Section 32.1. Captions. The captions of this Lease are for convenience only and are
not to be construed as part of this Lease and shall not be construed as defining or limiting in any
way the scope or intent of the provisions hereof.



     Section 32.2. Severability. If any covenant, agreement or condition of this Lease or
the application thereof to any person, firm or corporation or to any circumstances, shall to any
extent be invalid or unenforceable, the remainder of this Lease, or the application of such
covenant, agreement or condition to
persons, firms or corporations or to circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby. Each covenant, agreement or condition of this
Lease shall be valid and enforceable to the fullest extent permitted by law.




30












 







     Section 32.3. Applicable Law. This Lease shall be construed and enforced in
accordance with the laws of the state where the Premises are located.



     Section 32.4. Amendments in Writing. None of the covenants, terms or conditions of
this Lease, to be kept and performed by either party, shall in any manner be altered, waived,
modified, changed or abandoned, except by a written instrument, duly signed, acknowledged and
delivered by the other party.



     Section 32.5. Relationship of Parties. Nothing contained herein shall be deemed or
construed by the parties hereto, nor by any third party, as creating the relationship of principal
and agent or of partnership, or of joint venture by the parties hereto, it being understood and
agreed that no provision contained in this Lease nor any acts of the parties hereto shall be deemed
to create any relationship other than the relationship of Landlord and Tenant.



     Section 32.6. Brokerage. Tenant warrants that it has no dealings with any real estate
broker or agent in connection with this lease other than Landlord’s Broker and Tenant’s Broker, if
any, and Tenant covenants to pay, hold harmless and indemnify Landlord from and against any and all
cost, expense or liability for any compensation, commissions and charges claimed by any other
broker or other agent with respect to this Lease or the negotiation thereof arising out of any acts
of Tenant. Landlord shall pay the brokerage commission due Landlord’s Broker and Tenant’s Broker,
if any, pursuant to any written agreement between Landlord and such parties.



     Section 32.7. No Accord and Satisfaction. No payment by Tenant or receipt by Landlord
of a lesser amount than the full amount stipulated herein as then required to be paid by Tenant in
respect of Tenant’s obligations under this Lease for Rent or any other payments shall be deemed to
be other than on account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment of any such amount be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord’s right to recover the
balance of such amount or pursue any other remedy provided in this Lease.



     Section 32.8. Joint Effort. The preparation of this Lease has been a joint effort of
the parties hereto and the resulting documents shall not, solely as a matter of judicial
construction, be construed more severely against one of the parties than the other.



     Section 32.9. Counterclaims. If Landlord commences any proceeding for nonpayment of
Rent or any other sum due to be paid by Tenant under this Lease, Tenant hereby agrees that Tenant
will not impose any non-mandatory counterclaim of any nature or description in any such proceeding,
provided however, that such agreement of Tenant shall not be construed as a waiver of the right of
Tenant to assert such claim in a separate action or actions brought by Tenant.



     Section 32.10. Time. Time is of the essence of this Lease, and all provisions herein
relating thereto shall be strictly construed.



     Section 32.11. Landlord’s Consent. Landlord’s granting of any consent under this
Lease, or Landlord’s failure to object to any action taken by Tenant without Landlord’s consent
required under this Lease, shall not be deemed a waiver by Landlord of its rights to require such
consent for any further similar act by Tenant. Notwithstanding anything in this Lease to the
contrary, with respect to any provision of this Lease which requires Landlord’s consent or
approval, Tenant shall not be entitled to make, nor shall Tenant
make, any claim for (and Tenant hereby waives any claim for) money damages as a result of any
claim by Tenant that Landlord has unreasonably withheld or unreasonably delayed any consent or
approval, but Tenant’s sole remedy shall be an action or proceeding to enforce such provision, or
for specific performance, injunction or declaratory judgment.



31









 





     Section 32.12. Landlord’s Liability. Notwithstanding anything to the contrary herein
contained, there shall be absolutely no personal liability asserted or enforceable against Landlord
or on any persons, firms or entities who constitute Landlord with respect to any of the terms,
covenants, conditions and provisions of this Lease, and Tenant shall, subject to the rights of any
mortgagee, look solely to the interest of Landlord, its successors and assigns in the Premises for
the satisfaction of each and every remedy of Tenant in the event of any default by Landlord
hereunder; such exculpation of personal liability is absolute and without any exception whatsoever.



     Section 32.13. Landlord Rights. Excepting the signage rights granted to Tenant under
this Lease, this Lease does not grant any rights to light or air over or about the Premises.
Landlord specifically excepts and reserves to itself the use of any roofs, the exterior and
structural components of the Building, all rights to the land and improvements below the improved
floor level of the Building, to the improvements and air rights above the Building and to the
improvements and air rights located outside the demising walls of the Building and to such areas
within the Building and Land required for installation of utility lines and other installations and
to such portions of the Premises necessary to access, maintain and repair same, and no rights with
respect thereto are conferred upon Tenant.



     Section 32.14. Entire Agreement. It is understood and agreed that all understandings
and agreements heretofore had between the parties hereto are merged in this Lease, the exhibits
annexed hereto and the instruments and documents referred to herein, which alone fully and
completely express their agreements, and that no party hereto is relying upon any statement or
representation, not embodied in this Lease, made by the other. Each party expressly acknowledges
that, except as expressly provided in this Lease the other party and the agents and representatives
of the other party have not made, and the other party is not liable for or bound in any manner by,
any express or implied warranties, guaranties, promises, statements, inducements, representations
or information pertaining to the transactions contemplated hereby.



     Section 32.15. [Intentionally Deleted.]



     Section 32.16. Application of Payments. Landlord shall have the exclusive right to
determine how, and in what amounts, payments received from Tenant (or any Guarantor) are applied to
amounts due and past due hereunder, and such determination shall be conclusive upon the Tenant and
any Guarantor.



     Section 32.17. Tenant Authority. Tenant represents and warrants that it is duly
formed and in good standing, and has full corporate, partnership or limited liability company power
and authority, as the case may be, to enter into this Lease and has taken all corporate,
partnership or limited liability company action, as the case may be, necessary to carry out the
transaction contemplated herein, so that when executed, this Lease constitutes a valid and binding
obligation of Tenant enforceable in accordance with its terms.



     Section 32.18. Parking. Tenant, its employees, agents and invitees shall have the
non-exclusive right to use, in common with other tenant’s of the Building and their respective
employees, agents and invitees, Tenant’s proportionate share of the automobile parking spaces at
the Building.



ARTICLE XXXIII

Tenant Improvements




     Section 33.1. Tenant Improvements.




     A. Commencing on the date which is approximately thirty (30) days prior to the
Substantial Completion Date (the “Early Access Date”), Tenant may begin furnishing and
installing certain fixtures, equipment, and other items for the Premises (“Tenant’s FF&E”).
Tenant’s



32









 







installation of Tenant’s FF&E is hereinafter referred to as “Tenant’s Work.” Prior
to beginning Tenant’s Work, Tenant shall submit to Landlord: (i) such information as may be
reasonably requested by Landlord regarding the nature and location of the Tenant’s FF&E; and
(ii) the names of the separate contractors who will provide and install Tenant’s FF&E (the
“Tenant’s Contractors”). Tenant shall not commence actual construction within the Premises
until Tenant and Tenant’s Contractors have submitted to Landlord the insurance required by
Landlord. All Tenant’s Work shall be constructed in a good and workmanlike manner and only
new and good grades of material shall be used. Such work performed by Tenant’s Contractors
shall comply with all applicable insurance requirements, laws, statutes, ordinance and
regulations of the Village, the State of Illinois and the United States of America. Tenant
shall permit Landlord to observe all construction operations within the Premises, however
Landlord shall not charge Tenant any supervisory or construction management fees in
connection with the Tenant’s Work. No silence or statement by Landlord or any Landlord
representative shall be deemed or construed as an assumption by Landlord or any Landlord
representative of any responsibility for or in relation to the construction of the Tenant’s
Work or any guarantee that the Tenant’s Work completed within the Premises complies with
laws, complies with Tenant’s plans, is suitable or acceptable to Tenant for Tenant’s
intended business purposes or complies with the terms of this Lease.




     B. Tenant, at its sole cost and expense, shall file all necessary plans with the
appropriate governmental authorities having jurisdiction over Tenant’s Work. Tenant shall
be responsible for obtaining all permits, authorizations and approvals necessary to perform
and complete Tenant’s Work, however, Landlord shall cooperate with Tenant in connection with
Tenant’s permit applications. Tenant shall not commence Tenant’s Work until the required
permits authorizations and approvals for the performance and completion of Tenant’s Work are
obtained and delivered to Landlord.




     C. Tenant and Tenant’s Contractors shall coordinate access and Tenant’s Work with
Landlord and General Contractor in order to prevent any delay or disruption in the on-time
completion of the Landlord’s construction obligations pursuant to the terms of Article IV
hereof. Tenant shall insure that any of Tenant’s Work being performed at the Premises by
Tenant’s Contractors shall not cause any problems with the labor unions in connection with
the construction work being performed at the Premises pursuant to Landlord’s construction
obligations. In the event that Tenant’s Contractors are non-union employees and this issue
causes or threatens to cause a delay or stoppage in the work being performed at the Premises
by Landlord, Tenant shall immediately stop all of Tenant’s Work at the Premises until such
time as Landlord’s construction obligations are substantially complete.




     D. Tenant shall at all times keep the Premises and adjacent areas free from
accumulations of waste materials or rubbish caused by its suppliers, contractors or workmen.
Landlord reserves the right to do clean-up at the expense of Tenant if Tenant fails to
comply with Landlord’s reasonable cleanup requirements. At the completion of Tenant’s Work,
Tenant’s Contractors shall forthwith remove all rubbish and all tools, equipment and surplus
materials from
and about the Premises. Any damage caused by Tenant or Tenant’s Contractors to any
portion of the Premises or to any property of Landlord shall be repaired forthwith by Tenant
at its expense to the condition prior to such damage.




     E. Tenant and Tenant’s Contractors shall assume responsibility for the prevention of
accidents and shall take all reasonable safety precautions with respect to Tenant’s Work and
shall comply with all reasonable safety measures initiated by Landlord and General
Contractor (including performing all Tenant’s Work in accordance with General Contractor’s
safety program) and with all applicable laws, ordinances, rules, regulations and orders
applicable to Tenant’s Work including those



33









 







of any public authority for the safety of persons or property. Tenant shall advise Tenant’s Contractors to report to Landlord any
injury to any of its agents or employees and shall furnish Landlord a copy of the accident
report filed with its insurance carrier within three (3) days of its occurrence.




     F. Tenant shall procure and maintain or cause Tenant’s Contractors to maintain the
kinds and amounts of insurance as reasonably required by Landlord and otherwise in
accordance with the requirements set forth in Article 9 of this Lease. Prior to the
commencement of any construction activity on the Premises, certificates evidencing such
insurance required herein shall be delivered to Landlord. Such policies shall be renewed
and new certificates shall be deposited with Landlord at least thirty (30) days prior to the
expiration of the existing policies. All insurance policies shall be written with insurance
companies and shall be in form reasonably satisfactory to Landlord and shall name Landlord
as an additional insured and loss payee as its interests may appear and shall provide that
they may not be terminated or materially modified without thirty (30) days’ advance written
notice to Landlord. The minimum limits of insurance shall not limit or diminish Tenant’s
liability under the Lease. The failure of Landlord to obtain such evidence from Tenant or
Tenant’s Contractors before permitting construction to commence shall not be deemed to be a
waiver by Landlord of any requirement herein, and Tenant shall remain under continuing
obligation to maintain and cause Tenant’s Contractors to maintain the specified insurance
coverage. Any and all deductibles on referenced insurance coverages shall be borne by
Tenant and, if applicable, Tenant’s Contractors. Tenant expressly understands and agrees
that any insurance maintained by Landlord shall apply in excess of and not contribute with
insurance provided by Tenant or Tenant’s Contractors.




     G. Tenant shall not be required to pay Base Rent or Additional Rent during the period
commencing on the Early Access Date through the day prior to the Commencement Date.



[The balance of this page is intentionally blank]




34









 








     IN WITNESS WHEREOF, the parties have executed this Lease as of the date set forth above.



	 	 	 	 	 	 	 	 	 
	TENANT:	 	 	 	AKORN, INC., a Louisiana corporation
	 
	 	 	 	 	 	 
	 

	 	 
	 	By:
	 	/s/ Jeffrey A. Whitnell
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: 	 	Jeffrey A. Whitnell

	 

	 	 	 	 	 	Title: 	 	Chief Financial Officer
	 
	 	 	 	 	 	 
	 	 	 	 	Attest:
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Neill E. Shanahan
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: 	 	Neill E. Shanahan

	 

	 	 	 	 	 	Title: 	 	Vice president, Human Resources
	 
	 	 	 	 	 	 
	LANDLORD:	 	 	 	CV II GURNEE LLC, a Delaware limited liability company
	 
	 	 	 	 	 	 
	 	 	 	 	By:  	 	CENTERPOINT PROPERTIES TRUST, a Maryland trust, its
Property Manager
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Paul S Fisher
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: 	 	Paul S Fisher
	 

	 	 	 	 	 	Title: 	 	President
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Michael Tortonci
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: 	 	Michael Tortonci
	 

	 	 	 	 	 	Title: 	 	Vice President, Treasurer






35









 






EXHIBIT “A”




CONCEPT PLAN









 









 













2









 








EXHIBIT “B”




OUTLINE SPECIFICATIONS




[SEE ATTACHED]




 









 










Akorn
74,008 sf Tenant Improvement

5605 CenterPoikt Court

Gurnee, Illinois



CenterPoint Properties





GENERAL BUILDING SPECIFICATIONS

June 15, 2007




Prepared by:
PREMIER DESIGN + BUILD GROUP, LLC





 




2









 









			
	GENERAL BUILDLNG SPECIFICATIONS	 	 
	AKORN TENANT IMPROVEMENT — GURNEE, ILLINOIS	 	2 
	 





SECTION 1 — PROTECT OVERVIEW



The purpose of these General Building Specifications is to clarify the details and
requirements for the construction of a 74,008 SF tenant improvement project to be
located in central portion of 5605 Centerpoint Court, Gurnee, IL. These
specifications have been developed in conjunction with the following drawing(s):



Floor
Plan, dated May 17, 2007 prepared by Cornerstone Architects, LTD.



The design scope includes preparation of certified, final working drawings comprised of
Design./Build Electrical, Mechanical, Plumbing, Fire Sprinkler drawings and
corresponding specifications. These drawings shall be used to both obtain a permit
and complete
construction.



The following is a brief summary of the facility, which shall be further defined
throughout these General Building Specifications.




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Square	 	 	Clear	 	 	Exterior	 
	 	 	Footage	 	 	Height	 	 	Wall Material	 
	 
	 	 	 	 	 	 	 	 
	Warehouse
	 	 	71,682	 	 	 	30’-0 ”	 	 	Precast	 	 
	Office
	 	 	2,326	 	 	 	9’-0”	 	 	Precast/Glass	 	 
	Total
	 	 	74,008sf	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Exterior Track Docks:
	 	 	11	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Interior Truck Docks:
	 	 	0	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Compactor Positions:
	 	 	1	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Drive-in Doors:
	 	 	1	 	 	 	 	 	 	 	 	 






SECTION 2 — WAREHOUSE AREA INTERIOR FINISHES




A. Walls





The tenant demising wall shall be constructed of CMU up to 10’ AFF and then
drywall up to the underside of the roof deck. The interior side of the precast
walls, vault walls and exposed drywall partitions in the warehouse shall be
painted with one (1) coat of flat white paint. The CMU block wall shall receive
one (1) coat of block filler and flat white paint. Office demising walls shall be insulated.



B. Ceilings





The metal roof deck is factory primed painted white as part of the base building
construction.




			
	 
	PREMIER DESIGN + BUILD 

GROUP, LLC
	 	 







 



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	General
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Akorn Tenant Improvement
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C. Floor





The concrete floor slab is hardened with two (2) coats of Lapidolith as part
of the base building construction. All exposed floor slab joints shall be
in-filled with a Polyurea joint compound.



D. Doors, Frames and Hardware





Warehouse doors are 18-gauge hollow metal face. Exterior doors shall be insulated.
Frames shall be 16-gauge hollow metal with rubber insert silencers. Hollow
metal doors and frames will be painted,




Door hardware will be lever handle design (manufacturer to match existing
building). A complete keying system allowing doors within a given area to be
keyed alike will be provided.




Five (5) new 9’ x 10’ manual overhead doors with vision lites shall be
installed at the west side of the building,




One (1) new 12’ x 14’ motor operated overhead door shall be installed at the
new drive in ramp.



E. Miscellaneous Metals





Each new mechanical unit will be framed with a metal angle as required.




Four (4) new levelers shall be installed at the new dock positions. The trash
compactor position shall not be furnished with dock equipment..



F. Vaults





Accommodations for vaults are not included at this time.



SECTION 3 — WAREHOUSE AREA MECHANICAL




A. Warehouse HVAC





The warehouse shall be heated by means of the existing make-up air unit with
a separately metered gas service. The heating and cooling systems shall be
designed to meet the latest ASHREA 1% design parameters and ASHREA 90-1. The
heating system shall maintain 70c at 0° F outside. The warehouse
shall be cooled by means of roof top units capable of maintaining
74o
at 93o
F outside with a relative humidity of 50% to 55% in summer conditions.
Humidification of the warehouse for the winter season has been designed to
maintain 35% (+/- 5%). All ductwork sealed, insulated and installed per
latest SMACNA standards and 2004 IEEC (International Energy Efficiency Code).




			
	 
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	General
Building Specifications

Akorn Tenant Improvement
 — Gurnee, Illinois
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HVAC control shall have a Direct Digital Control (DDC) System complete with front
end computer, monitor, software, programming, graphics, optimal start/stop,
remote monitoring, alarms logs, alarm notification, and remote access
capabilities (phone or internet). The HVAC system in the space shall have the
ability to be controlled by the DDC System.




An allowance has been provided for temperature mapping of the warehouse HVAC
system.



B. Electrical System





1. Main Power Distribution




A new 800 amp 277/480 volt breaker and 800 amp feeder from the building
switchgear will be provided (to be located adjacent to the existing
building electrical room). Step down transformers and panels will be
installed to provide general power for the warehouse as outlined
below and general office power along the warehouse /office
demising wall (run overhead). No other distribution has been included.




2. Power to Building Equipment and Outlets




Power shall be provided for:




	 	•	 	Warehouse HVAC units
	 
	 	•	 	Warehouse Lighting
	 
	 	•	 	Dock Lights (1 per dock position)






A $15,000 allowance has been provided for tenant supplied equipment
hookups / power,




3. Generator




A
$165,000 allowance has been included for a back-up generator.




4. Interior Lighting




Lighting systems shall be designed and installed utilizing 2’x4’ T5
fluorescent fixtures with electronic ballast to provide approximately
25 foot-candles (initial) of general lighting, based on an un-racked
floor plan, utilizing the base buildings fixtures. Lighting shall be
controlled by circuit breaker design for switch-on in the warehouse
area.




5. Fire Alarm




Pull
stations, and audiovisual horns are existing exit doors.
Additional devices may be required once the warehouse layout is
finalized.



			
	 
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	General Building Specifications

Akorn Tenant Improvement
 — Gurnee, Illinois
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C. Fire Sprinkler System





Additional sprinkler heads shall be installed, as needed, to accommodate for
the new tenant demising wall. Once a warehouse floor plan is solidified it
can be determined if additional hose valves will be required. (Currently not
included)



D. Tenant Provided Coolers





An allowance
for electrical feeds and fire protection shall be provided for 4
tenant-provided coolers.



E. Warehouse Commissioning





A $42,500 allowance has been provided for commissioning of the warehouse area of
the space.



SECTION 4 — OFFICE/RESTROOM INTERIOR IMPROVEMENTS





The following items are a brief description of standards that will be
incorporated into the office/laboratory areas. Tenant shall choose colors for
flooring, wall paint, door and frame paint, toilet partitions, blinds and
plastic laminate millwork.



A. Floors





Vinyl Composite Tile (VCT) will be 12” x 12” x 1/8” as manufactured by
Armstrong, Kentile or GAF shall be installed in the break room and IT room.




Carpet shall be a direct glue down application. Carpet shall be selected from
an overall $20/square yard allowance for the general and private office
areas.




The base at carpet and VCT areas shall be 4” high vinyl, coved at VCT and
straight at the carpeted areas.




Porcelain tile with a porcelain base shall be provided at the
vestibule/reception and office bathrooms. Wet walls in the office bathrooms
shall receive a 4’-6” wainscot.



B. Interior office walls





The interior wall surface in the office at the exterior precast walls shall
be furred and receive gypsum wallboard.




Sheetrock walls will be constructed of one (1) layer 5/8” gypsum wallboard
applied to each side of 25-gauge metal stud framing members spaced at 24“ on
center. All interior office sheet rock walls will extend from the floor to 6”
above the finished ceiling height. The office /warehouse demising wall shall
run to the underside of the




			
	 
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	General Building Specifications

Akorn Tenant Improvement
 — Gurnee, Illinois
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roof deck. Fire-rated gypsum wallboard will be used as required by code.
Green board shall be used in wet installations (i.e., restrooms, janitor
sinks, etc.). Drywall control joints will be placed according to
manufacturer’s recommendations.




Painted sheet rock will receive two coats premium flat latex paint (while or
off-white colors; deep tone colors are not included) equal to Benjamin Moore,
Sherwin Williams, Glidden or Pratt & Lambert.



C. Ceilings





Acoustical ceilings shall consist of 1” exposed white suspension grid system.
Tiles shall be 2’ x 4’x 5/8” thick second look.



D. Exterior Windows





Three (3) new full height exterior office window (to match base building)
with Levelor window blinds shall be installed at the front entrance.



E. Doors, Frames, Hardware, Glass and Glazing





Interior
3’-0” x 7’-0” office doors will be installed. Frames for doors will be
16-gauge hollow metal. Rubber insert silencers shall be provided.
Hollow7 metal doors and frames will be painted. Fire rated doors
bearing the UL label of proper designation shall be installed where required
by cod., Interior office doors shall be solid oak doors with color selection
by tenant. Door hardware shall be approved by tenant.




Door hardware will be lever handle design as manufactured by Schlage,
Sargent, Falcon or equal. A complete keying system, allowing doors within a
given area to be keyed alike will be provided.




A new aluminum framed glass curtain wall system shall be installed at the
building entrance to match the existing entrances.



F. Toilet Accessories and Mirrors





Handicapped toilet stalls will be provided with grab bars as required by
code. A toilet paper dispenser will be installed for each toilet stall, with
a sanitary napkin disposal for each woman’s toilet stall. A combination paper
towel dispenser/waste paper basket will be installed in each bathroom.
Bathroom mirrors will be 1/4” silver float glass the full length of the sink.



G. Millwork





Plastic
laminate millwork shall be provided at the break room area. Sink tops
shall be provided to accommodate drop-in sinks in washrooms.



			
	 
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	General Building Specifications

Akorn Tenant Improvement
 — Gurnee, Illinois
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H. Plumbing





A complete plumbing system shall be installed to local code. This shall
consist of all necessary, sanitary waste, vent and hot and cold water piping
systems. Water closets shall be wall-mounted flush-valve units. Lavatories
shall be drop-in type at restrooms. Stop valves shall be provided at each
fixture and unions and isolating valves shall be provided as required for an
easily serviceable system. One (1) electric water heater shall be provided to
service the hot water needs.



I. HVAC





A complete heating, ventilating and air conditioning system for the office
area shall be designed and installed. This area shall be heated and air
conditioned by means of package type RTU gas fired heat/air handling units.




The
design will feature a fully ducted supply with a plenum return. Air
distribution to be distributed by means of overhead supply ductwork and 2’ x
2’ aluminum ceiling diffusers and perimeter registers. The system shall be
controlled by thermostats that will be tied into the DDC system. An exhaust
system shall be provided for the washrooms.




The I.T. room shall be separately controlled by means of a conditioning unit
with humidity control.



J. Fire Protection





The office area shall be provided with an automatic fire protection sprinkler
system and shall be designed for light hazard densities of .12 gpm in the most
remote 1,500 square feet in accordance with NFPA 13.




The main lines shall be furnished and installed under the base building while
the drops from the lines to the ceiling shall be provided as part of the
office finish.




Conventional white plated semi-recessed sprinkler heads shall be provided for
the office areas.



K. Electrical





1. Lighting




All lighting systems shall be designed and installed using the fixture types
outlined below, utilizing high power factor energy saving ballasts. Wall
switches in the office shall control lighting. Light levels to be measured
at 32” above finished floor. Exit
and emergency lights shall be provided as required per code.



			
	 
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	General Building Specifications

Akorn Tenant Improvement
 — Gurnee, Illinois
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In general, the lighting systems shall be as follows:



	 	 	 	 	 	 	 
	Location	 	Size	 	Type	 	Lighting Level
	General Office:

	 	2’ X 4’
	 	Parabolic Fixture
	 	55 foot-candles
	Washrooms:

	 	2’ X 4’
	 	Parabolic Fixture
	 	50 foot-candles







2. Electrical Devices/Fixtures




Power
wiring for the office area shall be provided for as required by code.
Duplex outlets shall be installed per code. GFI outlets shall be provided at
the restroom areas as required by code. Private offices shall have at least
two (2) electrical receptacles and larger work areas shall have at least (4)
receptacles. Distribution of power to the cubicles is not included.




3. Fire Alarm




A code approved fire alarm system shall be provided, consisting of all
required pull stations, audio and visual alarms. The devices shall be tied
into the base building fire alarm control panel.




4. Telephone and Data Wiring




Telephone and Data wiring is not included in this
proposal.



SECTION 5 — LABORATORY





Accommodations for the laboratory are not included at this
time.



SECTION 6 — GENERAL REQUIREMENTS




A. Guarantees





Materials and equipment incorporated into this project shall be new. Premier
Design + Build Group, LLC shall guarantee work to be free from defects of
workmanship and materials for one (1) year.



B. As-Built Drawings & Manuals





At the completion of the project, two (2) complete sets of blue-lines and two
(2) electronic copies on CD of project plans shall be provided to the Owner.
In addition, two (2) complete sets of operations manuals shall be provided.
The name, address and phone number of each subcontractor and vendor shall
also be provided.


 
			
	 
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	General Building Specifications

Akorn Tenant Improvement
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SECTION 7 — EXCLUDED ITEMS





The following items are specifically excluded from this proposal:




	 	a)	 	Office furniture including demountable partitions
	 
	 	b)	 	Muzak, paging or security systems.

	 
	 	c)	 	Low voltage wiring
	 
	 	d)	 	Distribution of power for anything not specifically referenced above.
	 
	 	e)	 	Conveying systems, storage racks, in-rack sprinklers.
	 
	 	f)	 	Impact fees, Bonds, Letters of Credit, Utility Fees or Excess Utility Charges

	 
	 	g)	 	Smoke evacuation or exhaust systems
	 
	 	h)	 	Distribution of power for office furniture
	 
	 	i)	 	Fire protection and lighting modifications for caging or racking (lack of
information).
	 
	 	j)	 	Work related to Vaults, Generators or the Laboratory.





 
			
	 
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EXHIBIT “C”




LEGAL DESCRIPTION OF LAND



LOT 9 IN CENTERPOINT BUSINESS CENTER — GURNEE, BEING A SUBDIVISION OF PART OF SECTIONS 15, 16, 21
AND 22, TOWNSHIP 45 NORTH, RANGE 11, EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT OF
RECORDED AS DOCUMENT 5652955 ON SEPTEMBER 27, 2004, IN LAKE COUNTY, ILLINOIS.




P.I.N: 07-22-101-003




Address: 5605 CenterPoint Court, Gurnee, Illinois 60031




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EXHIBIT “D”




TENANT ESTOPPEL CERTIFICATE



    
               
            
          (the “Tenant”)
hereby certifies to CENTERPOINT 
                   
      , a
               
      (the “Landlord”) and  
              
             
              
                  , a(n)                                         
(“Purchaser/Lender”) as follows:



1. Pursuant to that certain Lease dated                                         ,                      (the “Lease”
) with Tenant, Tenant
leases the land, building and other improvements commonly known as                                                             
                                        
(the “Premises”). The Lease, as amended, modified and supplemented, is in full force and effect,
and represents the entire agreement between Tenant and Landlord for the Property. There are not
amendments, modifications or supplements to the Lease, whether oral or written except as follows
(include the date of each amendment, modification or supplement):                                         . A true
and correct copy of the Lease, as amended, modified and supplemented, is attached hereto as
Exhibit “A”.



2. The term of the Lease began on 
               
              
           ,    
                
  and will end on                                         ,
                    .



3. The Lease [does] [does not] provide for an option to extend the term of the Lease for
                     years. Except as expressly provided in the Lease, Tenant does not have any right or
option to renew or extend the term of the Lease, to lease other space at the Property, nor any
preferential right to purchase all or any part of the Premises.



4. Tenant has neither sent nor received any notice of default under the Lease which remains uncured
and has no knowledge that either Landlord or Tenant are in default under the Lease except as
follows:              
            
               
               
              
                                                   .



5. Tenant is currently paying [Base Monthly] Rent under the Lease in the amount of
$                                         and Tax Deposits in the amount of $                     and Expense Deposits in the
amount of $                    .



6. Tenant has not prepaid any rent or other charge under the Lease to Landlord other than the
following:            
             
               
              
              
                                                     .



7. A [cash][letter of credit] security deposit in the amount of $                     has been paid to and
is presently held by Landlord under the Lease, and Tenant has not given Landlord any other security
or similar deposit.




Dated this                      day of                     , 200                    .




[NAME OF TENANT]




	 	 	 	 	 
	 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



 









 






	 	 	 	 	 



EXHIBIT “E”




TENANT’S WALL SIGNAGE SPECIFICATIONS




[TO FOLLOW]




 









 





EXHIBIT “F”




LIST OF PERMITTED HAZARDOUS MATERIALS




NONE.




 









 





EXHIBIT “G”




LIST OF INITIAL TENANT IMPROVEMENTS WHICH MAY REMAIN IN PREMISES UPON LEASE TERMINATION





	1.	 	Specialty equipment for Reverse Osmosis water purification.
	 
	2.	 	Plumbing (gas and water), utility connections and electrical components.
	 
	3.	 	HVAC.
	 
	4.	 	Laboratory walls and ceiling.
	 
	5.	 	Lighting, controls and switches.




Equipment such as casework, hoods, sinks, ovens, HPLC’s, GC’s and stability chambers will be
removed at Tenant’s sole cost and expense. If a mezzanine is constructed in the Premises, it will
also be de-constructed at Tenant’s sole cost and expense.