**Exhibit 10.4**

 

**LEASE**

 

**TABLE OF CONTENTS**

 
| 1.     | PREMISES;  CONDITION AND EXPANSION OF PREMISES               |                                                           |
|--------|--------------------------------------------------------------|----------------------------------------------------------------|
| 2.     | LEASE TERM                                                   |                                                           |
| 3.     | BASE RENT                                                    |                                                           |
| 4.     | USE OF PREMISES                                              |                                                           |
| 5.     | PRIVILEGES OF HOSPIRA  EMPLOYEES                             |                                                           |
| 6.     | UTILITIES  AND OTHER SERVICES FURNISHED BY LANDLORD          |                                                           |
| 7.     | EXTRA SERVICES                                               |                                                           |
|   | A.                                                           | Landlord’s  Delivery of Extra Services                    |   |
|   | B.                                                           | Charges for Extra Services                                     |   |
|   | C.                                                           | Changes to Extra Services                                      |   |
|   | D.                                                           | Transitional  Nature of Extra Services                         |   |
|   | E.                                                           | Cooperation                                                    |   |
|   | F.                                                           | Use  of Third Parties to Provide the Extra Services            |   |
|   | G.                                                           | Early Termination  of Extra Services                           |   |
|   | H.                                                           | Information Transmission                                       |   |
|   | I.                                                           | Mutual  Cooperation                                            |   |
|   | J.                                                           | Limitation  on Liability for Failure to Provide Extra Services |   |
|   | K.                                                           | Third  Party Claims                                            |   |
|   | L.                                                           | Title to Intellectual  Property                                |   |
| 8.     | ALTERATIONS  AND REPAIRS                                     |                                                           |
| 9.     | MAINTENANCE  AND REPAIR                                      |                                                           |
| 10.    | ASSIGNMENT  – SUBLEASE                                  |                                                           |
| 11.    | INDEMNIFICATION AND  INSURANCE                               |                                                           |
| 12.    | INSPECTION                                                   |                                                           |
| 13.    | EMINENT DOMAIN                                               |                                                           |
| 14.    | FIRE  AND OTHER CASUALTY                                     |                                                           |
| 15.    | WAIVER  OF SUBROGATION                                       |                                                           |
| 16.    | DEFAULTS  AND REMEDIES                                       |                                                           |
|   | A.                                                           | Defaults  by Tenant                                            |   |
|   | B.                                                           | Landlord’s  Remedies                                      |   |
|   | C.                                                           | Landlord’s  Default and Tenant’s Remedies            |   |
| 17.    | NOTICES                                                      |                                                           |
| 18.    | HOLDING OVER                                                 |                                                           |
| 19.    | SUCCESSORS  OR ASSIGNS                                       |                                                           |
| 20.    | SUBORDINATION                                                |                                                           |
| 21.    | QUIET  ENJOYMENT                                             |                                                           |
| 22.    | PARKING                                                      |                                                           |
| 23.    | SALE BY  LANDLORD                                            |                                                           |
| 24.    | ESTOPPEL  CERTIFICATE                                        |                                                           |
| 25.    | TRANSFER  OF PERSONAL PROPERTY, EQUIPMENT AND TRADE FIXTURES |                                                           |
| 26.    | HAZARDOUS  MATERIALS                                         |                                                           |
| 27.    | CERTAIN RIGHTS  RESERVED TO LANDLORD                         |                                                           |

 

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| 28.      | CONFIDENTIALITY                             |                                 |
|----------|---------------------------------------------|--------------------------------------|
| 29.      | DISBARMENT  AND EXCLUSION                   |                                 |
| 30.      | MISCELLANEOUS                               |                                 |
|     | A.                                          | Time of  the Essence                 |   |
|     | B.                                          | Governing  Law/Compliance with Laws  |   |
|     | C.                                          | Lease  Modification                  |   |
|     | D.                                          | Alternative Dispute  Resolution      |   |
|     | E.                                          | Independent  Contractors             |   |
|     | F.                                          | Force Majeure                        |   |
|     | G.                                          | Limitation  of Liability             |   |
|     | H.                                          | Exclusion from  Liability Limitation |   |
| 31.      | NO  REAL ESTATE BROKERS                     |                                 |
| Exhibits |                                        |                                 |
| A        | Diagram of Premises                         |                                 |
| A-1      | Schedule of Rents                      |                                 |
| B-1      | Included Services                           |                                 |
| B-2      | Additional Services                         |                                 |
| B-3      | Extra Services                              |                                 |
| B-4      | Charges For Services                        |                                 |
| C        | Rules and Regulations                       |                                 |
| D        | Dispute Resolution                          |                                 |
| E        | Hazardous Materials  Disclosure Certificate |                                 |

 

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**LEASE**

 

THIS LEASE (this “Lease”)made this     day of          , 2004 (the “EffectiveDate”), between Abbott Laboratories, an Illinois corporation (hereinafterreferred to as “Landlord”), and Hospira, Inc. a Delaware corporation(hereinafter referred to as “Tenant”). Landlord and Tenant are sometimes collectively referred to herein as the“Parties” or individually as a “Party”.

 

W I T N E S S E T H:

 

The followingschedule (the “Schedule”) is an integral part of this Lease:

 

**SCHEDULE**

 
| 1.     | Tenant:  Hospira, Inc.                                                                                                                                        |
|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                               |
| 2.     | Premises:  239,136 square feet of manufacturing and  laboratory facilities located in North    Chicago, Illinois and known as the M3 Building. |
|   |                                                                                                                                                               |
| 3.     | Effective Date:  May 1, 2004                                                                                                                                  |
|   |                                                                                                                                                               |
| 4.     | Termination Date:  April 30, 2014.  Subject to early termination right set  forth in Paragraph 2.                                                   |
|   |                                                                                                                                                               |
| 5.     | Tenant’s Address for  Notices:                                                                                                                                | Hospira, Inc. |   |   |
|   |                                                                                                                                                               | Attn:  Vice President Administration, |   |   |
|   |                                                                                                                                                               | Purchasing and Real  Estate |   |   |
|   |                                                                                                                                                               | Dept. NRLE; Bldg. 1 |   |   |
|   |                                                                                                                                                               | 275 North Field Drive |   |   |
|   |                                                                                                                                                               | Lake Forest,  Illinois  60045-5045 |   |   |
|   |                                                                                                                                                               | Phone:  (224) 212-2361 |   |   |
|   |                                                                                                                                                               | Fax:  (224) 212-3296 |   |   |
|   |                                                                                                                                                               |   |   |   |
|   |                                                                                                                                                               | with a copy to: |   |   |
|   |                                                                                                                                                               |   |   |   |
|   |                                                                                                                                                               | Hospira, Inc. |   |   |
|   |                                                                                                                                                               | Legal Department |   |   |
|   |                                                                                                                                                               | Attn:  General Counsel |   |   |
|   |                                                                                                                                                               | Dept. NLEG; Bldg. 1 |   |   |
|   |                                                                                                                                                               | 275 North Field Drive |   |   |
|   |                                                                                                                                                               | Lake Forest, Illinois 60045-5045 |   |   |
|   |                                                                                                                                                               | Phone:  (224) 212-2848 |   |   |
|   |                                                                                                                                                               | Fax:  (224) 212-3312 |   |   |
|   |                                                                                                                                                               |   |   |   |
| 6.     | Landlord’s Address for  Notices:                                                                                                                              | Abbott Laboratories |   |   |
|   |                                                                                                                                                               | Corporate Engineering  Division |   |   |
|   |                                                                                                                                                               | Attention:  Vice President, Corporate Real Estate |
|   |                                                                                                                                                               | Department 052T; Bldg.  AP52-S |   |   |

 

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|   |   | 200 Abbott Park Road              |                                           |   |
|--------|--------|-----------------------------------|------------------------------------------------|--------|
|   |   | Abbott Park, Illinois  60064-6212 |                                           |   |
|   |   | Phone:  (847) 938-1301       |                                           |   |
|   |   | Fax:  (847) 937-1533         |                                           |   |
|   |   |                              |                                           |   |
|   |   | with a copy to:                   |                                           |   |
|   |   |                              |                                           |   |
|   |   | Abbott Laboratories               |                                           |   |
|   |   | Attention:                        | Executive Vice  President and General  Counsel |
|   |   | Dept. 364; Bldg. AP6D             |                                           |   |
|   |   | 100 Abbott Park Road              |                                           |   |
|   |   | Abbott Park, Illinois  60064 |                                           |   |
|   |   | Phone:  (847) 937-6100       |                                           |   |
|   |   | Fax:  (847) 938-6277         |                                           |   |
|        |        |                                   |                                                |        |  |

 

That the Partieshereto do hereby mutually agree as follows:

 

1.             Premises; Condition and Expansion of Premises.  

 

A.            Tenant hereby leases from Landlord those certainpremises (hereinafter referred to as the “Premises”) depicted bycross-hatching on the diagram attached hereto as Exhibit A.  As used in this Lease, the “Building” shallmean that certain building located at 1401 Sheridan Road, North Chicago,Illinois  60064, commonly known as theM3 Building, and including the use in common with the Landlord of the Building,the common areas and parking areas serving the Building.  Landlord shall install firewalls to separatethe private networks of the Landlord and Tenant.  These separation firewalls shall be deployed at both theLandlord’s and Tenant’s networks on either end of the Inter-Company Link andGigabit connection.  Other thanLandlord’s installation of the firewalls, Tenant acknowledges that it isleasing the Premises “as is” without any representation or warranty.

 

B.            Tenant shall have the right to reduce thesize of the Premises at any time during the Term upon not less than ninety (90)****days written notice to Landlord, at whichtime Base Rent (as described in Paragraph 3 below) shall beproportionately reduced.  Each reductionof the Premises shall comprise a minimum of 2,000 square feet of spacecontiguous to Abbott space.

 

C.            Upon the written agreement of the Parties, Tenantshall be permitted to add space within the Building or adjacent to the Buildingon the same general terms and conditions of this Lease.

 

2.             Lease Term.  The term (the “Term”)of this Lease shall commence on the Effective Date and shall end on theTermination Date.  Notwithstanding theforegoing, Tenant shall have the right to terminate this Lease at any time uponnot less than one hundred eighty (180) days written notice to Landlord.

 

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3.             Base Rent.  Tenant agrees to pay asannual base rent (“Base Rent”) Landlord’s fully burdened cost per squarefoot of the Premises for each year (“Lease Year”) during the Termpayable in equal monthly installments (“Monthly Base Rent”).  Monthly Base Rent for each  Lease Year is set forth in theSchedule attached hereto as Exhibit A-1.  The obligation to pay Rent (defined below) shall commence on theEffective Date.  The first Lease Yearshall commence on the Effective Date and end on December 31, 2004, andeach succeeding Lease Year shall commence on January 1 of the followingcalendar year.  The final Lease Yearshall commence on January 1, 2014 and end on Termination Date.  Rent shall be paid to Landlord in advance onor before the first day of each month of the Term, and shall be payable toLandlord at the address shown in the Schedule, or at such other place asLandlord may direct from time to time in writing.  If the Term shall commence on a day other than the first day of acalendar month, Tenant shall pay a prorated monthly Rent for such initialpartial month.  Payments not made whendue shall bear interest at a rate per annum equal to the rate which CitibankN.A. (or its successor or another major money center commercial bank agreed toby the Parties) announces as its prime lending rate, as in effect from time totime plus two percent (2%).

 

All Base Rent and thecost of any Additional Services or Extra Services provided pursuant to Paragraphs6 and 7 hereof, together with any other sum required to be paid byTenant pursuant to this Lease (such sums are collectively referred to herein as“Rent”) shall be paid when due, without demand, deduction, offset ordiscount and all in lawful money of the United States.  The payment of Rent hereunder is independentof each and every other covenant and agreement contained in this Lease.  

 

4.             Use ofPremises. The Premises shall be occupied and used only for office, **laboratory andmanufacturing**purposes and for no other purpose.  Without limiting the generality of theforegoing, no use shall be made of the Premises nor acts done which willincrease the existing rate of insurance upon the Building or cause acancellation of any insurance policy covering the Building or any part thereof.  Tenant shall not commit, or suffer to becommitted, any waste upon the Premises, or any public or private nuisance, orother act or thing which may disturb the quiet enjoyment of any other tenant inthe Building, nor, without limiting the generality of the foregoing, shallTenant allow the Premises to be used for any improper, immoral, unlawful orobjectionable purpose.

 

Tenant agrees thatTenant, together with any other Person (as defined below) entering the Premiseswith Tenant’s permission, will comply with (i) all federal, state and municipallaws, ordinances and regulations applicable to Tenant’s use and occupancy ofthe Premises, (ii) all covenants, conditions and restrictions of recordapplicable to Tenant’s use and occupancy of the Premises, and (iii) the rulesand regulations attached hereto as Exhibit C together with all otherreasonable rules and regulations which Landlord may reasonably make from timeto time for the management, safety, care and cleanliness of the Building,consistent with the same rules and regulations which Landlord implements forits other buildings with analogous uses. The violation of any such items shall be deemed a material breach ofthis Lease by Tenant.  “Person”means an individual, a general or limited partnership, a corporation, a trust,a joint venture, an unincorporated organization, a limited liability entity,any other entity and any governmental authority.

 

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5.             Privileges of Hospira Employees.  Tenant, itsemployees and invitees, may use in common with Landlord, its employees andinvitees the conference rooms located in the Building, the cafeteria servingthe Building and the exercise facilities serving the Building.  Tenant’s use of conference rooms shall be inaccordance with Landlord’s reservation procedures.  Tenant’s use of exercise facilities and the cafeteria shall be inaccordance with the rules and procedures applicable to Landlord’s employees.

 

6.             Utilities and Other Services Furnished by Landlord.  On atwenty-four (24) hour and seven (7) days per week basis, Landlord shall furnishto Tenant during the Term:  (i)automatic passenger elevator service; (ii) restroom facilities with hot andcold water; (iii) heating and air conditioning, as appropriate (excluding Tenantprocess areas); (iv) emergency lighting, electricity for lighting, computers,telecommunications equipment but excluding any electricity used in providingthe Additional Services (as defined below) or the Extra Services (as definedbelow); and (v) cold water as required for existing plumbing for the Premises.

 

Consistent withLandlord’s current practice with respect to Landlord’s own buildings which areanalogous to the Building, Landlord shall furnish to Tenant the servicesdescribed in Exhibit B-1 which may be changed from time to time in Landlord’sreasonable discretion upon thirty (30) days advance written notice toTenant.  Upon written request andreasonable written notice, Landlord shall furnish janitorial, cleaning andsecurity services during weekend hours at rates determined in accordance with ExhibitB-5 attached hereto.  During normalbusiness hours and upon written request and reasonable prior notice, Landlordshall furnish freight elevator service to Tenant.  

 

Landlord may, butshall have no obligation to, provide, at Tenant’s request, any other AdditionalServices as it is reasonably possible for Landlord to provide within areasonable period after the time such additional service is requested (each, an“Additional Service”) including, but not limited to, the servicesdescribed in Exhibit B-2 attached hereto.  

 

To the extentLandlord incurs any additional cost or expense as a result of Landlordproviding Additional Services at Tenant’s request, Tenant shall reimburseLandlord for such cost or expense, such amount to be considered additional Renthereunder.  All charges for suchAdditional Services shall be due and payable at the same time as theinstallment of Monthly Base Rent with which they are billed, or if billedseparately, shall be due and payable within thirty (30) days after Tenantreceives Landlord’s bill therefor.  Anysuch billings for Additional Services shall include an itemization of theAdditional Services rendered and the charge for each such service, which chargeshall be calculated as Landlord’s fully burdened cost to perform suchservices.  The Additional Services shallbe performed by Landlord in the same manner Landlord performs such services foritself.

 

If the Tenantfails to promptly pay charges for Additional Services, Landlord, upon not lessthan ten (10) days’ notice, may, in addition to any other remedies available toLandlord, discontinue furnishing Additional Services until such time as Tenanthas made payment therefor.  Suchdiscontinuance shall not be deemed an eviction or disturbance of Tenant’s useof the

 

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Premises, shall not render Landlord liable for damages, nor shall itrelieve Tenant from performance of Tenant’s obligations under this Lease.

 

Landlord shall notbe liable for any loss or damage caused by or resulting from any variation,interruption or failure of any utilities and services to be provided byLandlord hereunder due to any cause whatsoever, other than Landlord’snegligence or willful misconduct, and no temporary interruption or failure ofsuch utilities and services incident to the making of repairs, alterations orimprovements, or due to accident, strike or conditions or events beyondLandlord’s reasonable control shall be deemed an eviction of Tenant or relieveTenant from any of Tenant’s obligations hereunder, including, withoutlimitation, the payment of Rent.  

 

7.             ExtraServices.

 

A.            Landlord’s Delivery of Extra Services.  At Tenant’sexpense, Landlord shall furnish the extra services described on Exhibits B-3 and B-4attached hereto (“Extra Services”).

 

1.             Landlord shall perform all Extra Services in a mannerwhich is substantially similar in nature, quality and timeliness to theanalogous services provided by Landlord prior to the Commencement Date.

 

2.             Landlord shall perform its duties and responsibilitieshereunder in good faith based on its past practices.  Landlord shall not be liable or held accountable, in damages orotherwise, for any error of judgment or any mistake of fact or law or foranything that Landlord does or refrains from doing in good faith hereunder,except in the case of its gross negligence or willful misconduct.

 

3.             Nothing in this Lease shall require Landlord toperform any Extra Service in a manner that would constitute a violation ofapplicable laws.

 

4.             Landlord shall not be obligated to perform any ExtraService in a volume or quantity which exceeds the planned 2004 volumes orquantities of analogous services performed for the applicable operation ofTenant, without reference to the transactions contemplated by the Separationand Distribution Agreement dated April 12, 2004, between Landlord andTenant (the “Separation and Distribution Agreement”).  Tenant may request a higher volume orquantity of such historical volumes or quantities of an Extra Service, whichrequest Landlord may accept or reject in its sole discretion.  If Landlord agrees to such a request, theParties shall cooperate and act in good faith to make any modifications to theapplicable Schedule for such Extra Service.

 

5.             (i) Landlord will not be required to perform any ofthe Extra Services for the benefit of any Person other than Tenant, and (ii)EXCEPT AS EXPRESSLY PROVIDED ABOVE IN THIS PARAGRAPH 7A., EACHPARTY ACKNOWLEDGES AND AGREES THAT ALL EXTRA SERVICES AND PRODUCTS ARE PROVIDEDON AN “AS-IS” BASIS AND THAT, LANDLORD MAKES NO WARRANTIES, EXPRESS OR IMPLIED,WITH

 

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RESPECT TO THE EXTRASERVICES AND PRODUCTS, AND HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY OFMERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANYOTHER WARRANTY WHATSOEVER.

 

B.            Chargesfor Extra Services. The charges for the Extra Services (the “Extra Service Charges”)shall be determined in accordance with ExhibitB-5.  If the Tenant fails totimely pay Landlord’s charges for Extra Services, Landlord, upon not less thanten (10) days’ notice, may, in addition to any other remedies available toLandlord, discontinue furnishing such Extra Services until such time as Tenanthas made payment therefor.  No suchdiscontinuance shall be deemed an eviction or disturbance of Tenant’s use of thePremises or render Landlord liable for damages or relieve Tenant fromperformance of Tenant’s obligations under this Lease.

 

C.            Changesto Extra Services. Except as provided in Paragraph 7F. below, the Partiesacknowledge that Landlord may make changes from time to time in the manner ofperforming the Extra Services if Landlord is making similar changes inperforming analogous services for itself and if Landlord furnishes to Tenantsubstantially the same notice (in content and timing, but in any event no lessthan thirty (30) days) as Landlord shall furnish to others in its ownorganization respecting such changes. No such change shall affect the Extra Services Charges for theapplicable Extra Service.

 

D.            Transitional Nature of Extra Services.  The Partiesacknowledge the transitional nature of the Extra Services and agree tocooperate in good faith and to use commercially reasonable efforts toeffectuate a smooth transition of the Extra Services from Landlord to Tenant(or its designee).

 

E.             Cooperation.  In the event that (i) thereis nonperformance of any Extra Service as a result of a Force Majeure event (asdefined in Paragraph 30.F. below), or (ii) the provision of an ExtraService would violate applicable law, the Parties agree to work together in goodfaith to arrange for an alternative means by which Tenant may obtain, atTenant’s sole cost, the Extra Service so affected.

 

F.             Use of Third Parties to Provide the Extra Services.  Landlord mayperform its obligations through its Subsidiaries (as defined below) or, ifLandlord is obtaining analogous services for itself from agents, subcontractorsor independent contractors, through the use of such agents, subcontractors orindependent contractors if Landlord furnishes Tenant substantially the same notice(in content and timing) as Landlord shall furnish to its own organizationrespecting such use of Third Parties. If Landlord is not obtaining analogous services for itself from ThirdParties, Landlord may perform its obligations hereunder through the use ofagents, subcontractors or independent contractors only upon obtaining the priorwritten consent of Tenant. Notwithstanding the foregoing, Landlord shall not be relieved of itsobligations under this Lease by use of such Subsidiaries, agents, subcontractorsor contractors.  “Subsidiary”or  “Subsidiaries” means anotherPerson or Persons directly or indirectly controlled by such first Person.  As used herein, “control” means thepossession, directly or indirectly, of the power to

 

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direct or cause thedirection of the management and policies of such Person(s), whether throughownership of voting securities or other interests, by contract orotherwise.  

 

G.            Early Termination of Extra Services.  Tenant shallhave the right at any time during the Term to terminate its obligation topurchase any individual Extra Service, upon the giving of one hundred eighty(180) days, advance written notice to Landlord.

 

H.            InformationTransmission. On or prior to the last day of the term of an Extra Service, Landlord shalluse reasonable commercial efforts to support any transfer of Information (ashereinafter defined) concerning the relevant Extra Services to Tenant.  If requested by Tenant, Landlord shalldeliver to Tenant, within such time periods as the Parties may reasonablyagree, all Information received or computed for the benefit of Tenant duringthe term of an Extra Service, in electronic and/or hard copy form; provided,however, that (i) Landlord shall not have any obligation to provide Informationin any non-standard format, and (ii) Landlord shall be reimbursed for itsreasonable out-of-pocket costs for providing Information in any format otherthan its standard format.  For purposesof this Lease, “Information” means information, whether or notpatentable or copyrightable, in written, oral, electronic or other tangible orintangible forms, including studies, reports, records, books, contracts,instruments, surveys, discoveries, ideas, concepts, know-how, techniques,designs, specifications, drawings, blueprints, diagrams, models, prototypes,samples, flow charts, data, computer data, disks, diskettes, tapes, computerprograms or other software, marketing plans, customer names, communications byor to attorneys (including attorney-client privileged communications), memosand other materials prepared by attorneys or under their direction (includingattorney work product), and other technical, financial, employee or businessinformation or data.

 

I.              MutualCooperation. The Parties shall cooperate with each other in connection with theperformance of the Extra Services hereunder, including producing on a timelybasis all information that is reasonably requested with respect to theperformance of Extra Services and the transition of such Extra Services at theend of their applicable term; provided, however, that such cooperation shallnot unreasonably disrupt the normal operations of the Parties.

 

J.             Limitations on Liability for Failure to Provide Extra Services.  FOR EACHTWELVE (12) MONTH PERIOD DURING THE TERM, THE FIRST SUCH PERIOD COMMENCING ONTHE EFFECTIVE DATE AND SUBSEQUENT SUCH PERIODS COMMENCING ON EACH YEARLYANNIVERSARY THEREAFTER, THE MAXIMUM LIABILITY OF LANDLORD TO, AND THE SOLEREMEDY OF, TENANT WITH RESPECT TO ANY AND ALL CLAIMS ARISING UNDER OR IN CONNECTIONWITH THE PROVISION OF EXTRA SERVICES UNDER THIS LEASE, REGARDLESS OF THE THEORYUPON WHICH THE LIABILITY IS PREMISED, SHALL NOT EXCEED THE LANDLORD’S PROFITSFOR PERFORMING EXTRA SERVICES HEREUNDER, WHICH SHALL BE DEEMED TO BE EQUAL TOTHE AMOUNT OF THE MARK-UP RECEIVED BY LANDLORD AS SET FORTH ON EXHIBIT B-5AND AS MAY BE ADJUSTED PURSUANT TO THE TERMS OF EXHIBIT-B-5.  IN NO EVENT SHALL LANDLORD, ITS SUBSIDIARIESOR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO THEOTHER PARTY FOR INDIRECT, EXEMPLARY,

 

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INCIDENTAL, CONSEQUENTIALOR PUNITIVE DAMAGES (INCLUDING LOST OR ANTICIPATED PROFITS RELATING TO THESAME) IN CONNECTION WITH THE PERFORMANCE OF EXTRA SERVICES UNDER THIS LEASE,EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND TENANTHEREBY WAIVES ON BEHALF OF ITSELF AND ITS SUBSIDIARIES ANY CLAIM FOR SUCHDAMAGES, INCLUDING ANY CLAIM FOR PROPERTY DAMAGE OR LOST PROFITS, WHETHERARISING IN CONTRACT, TORT OR OTHERWISE. 

 

K.            ThirdParty Claims. Tenant shall indemnify, defend and hold harmless Landlord, itsSubsidiaries and each of their directors, officers and employees, and each ofthe successors and assigns of any of the foregoing (collectively, the “LandlordIndemnitees”), from and against any and all claims of any Person other thanLandlord, any Landlord Subsidiary, Tenant and any Tenant Subsidiary (eachherein a “Third Party”) relating to, arising out of or resulting fromLandlord’s furnishing or failing to furnish the Extra Services provided for inthis Lease, other than Third Party claims arising out of the gross negligenceor willful misconduct of any Landlord Indemnitee.  

 

L.             Title to Intellectual Property.  Tenantacknowledges that it will acquire no right, title or interest (including any licenserights or rights of use) in any intellectual property which is owned orlicensed by Landlord, by reason of the provision of the Extra Services providedhereunder.  Tenant will not remove oralter any copyright, trademark, confidentiality or other proprietary noticesthat appear on any intellectual property owned or licensed by Landlord, andshall reproduce any such notices on any and all copies thereof.  Tenant will not attempt to decompile,translate, reverse engineer or make excessive copies of any intellectualproperty owned or licensed by Landlord, and shall promptly notify Landlord orany such attempt, regardless of whether by Tenant or any Third Party, of whichTenant becomes aware.

 

8.             Alterationsand Repairs. Tenant shall not make a structural change or changes which can be seenfrom the exterior of the Building without Landlord’s prior writtenconsent.  For purposes of this Lease,hot work, work requiring core drilling and surface penetration and work involvingpressurized lines shall automatically be deemed a structural change requiringLandlord’s prior written consent. Tenant shall not do any painting or decorating, erect any non-moveablepartitions or make any additions, improvements, alterations or repairs to thePremises costing in each case more than $50,000.00 without Landlord’s priorwritten consent, which consent shall not be unreasonably withheld ordelayed.  In the event Tenant proposesto make any addition, improvement, alteration or repair requiring Landlord’sprior written approval, Tenant shall, prior to commencing any such activity,submit to Landlord for its prior written approval:  (i) detailed plans and specifications; (ii) all necessarygovernmental permits evidencing compliance with all applicable governmentalrules, regulations and requirements; (iii) certificates of insurance in formand amounts reasonably required by Landlord, naming Landlord and any otherparties designated by Landlord as additional insureds; and (iv) all otherdocuments and information as Landlord may reasonably request in connection withsuch work.  Neither approval of theplans and specifications nor supervision of the addition, improvement oralteration by Landlord shall constitute a representation or warranty byLandlord as to the accuracy, adequacy, sufficiency or propriety of such plansand specifications or as to the quality

 

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of workmanship or thecompliance of such alteration with applicable law.  Tenant shall pay the entire cost of the addition, improvement oralteration.  Each addition, improvement,alteration and repair shall be performed in a good and workmanlike manner, inaccordance with the plans and specifications approved by Landlord, and shallmeet or exceed the standards for construction and quality of materialsestablished by Landlord for the Building. In addition, each addition, improvement, alteration and repair shall beperformed in compliance with all applicable governmental laws, ordinances,codes, orders, rules and regulations. Each addition, improvement, alteration and repair shall be performed bycontractors approved by Landlord and all contractors shall act in harmony withLandlord’s employees and contractors.

 

Tenant agrees toprotect, defend and indemnify the Landlord Indemnitees, the Premises and theBuilding from and against any and all liabilities of every kind and descriptionwhich may arise out of or be connected in any way with said additions,alterations, improvements or repairs or the like, whether performed by or underthe direction of Tenant and at the cost of Tenant.  Upon completion of any addition, improvement, alteration orrepair, if Landlord requests, Tenant shall promptly furnish Landlord with swornowner’s and contractors’ statements and full and final waivers of lien coveringall labor and materials included in such work. Tenant shall not permit any mechanic’s lien to be filed against theBuilding, or any part thereof, arising out of any alteration performed, oralleged to have been performed, by or on behalf of Tenant.  If any such lien is filed, Tenant shallwithin thirty (30) days thereafter have such lien released of record or deliverto Landlord a bond in form, amount, and issued by a surety satisfactory toLandlord, indemnifying Landlord against all costs and liabilities resultingfrom such lien and the foreclosure or attempted foreclosure thereof.  If Tenant fails to have such lien soreleased or to deliver such bond to Landlord, Landlord, without investigatingthe validity of such lien, may pay or discharge the same; and Tenant shallreimburse Landlord upon demand for the amount so paid by Landlord, includingLandlord’s reasonable expenses and attorneys’ fees.

 

Unless otherwiseprovided in this Paragraph or by written agreement, all additions,improvements,  alterations, repairs andfixtures (except Tenant’s furniture, trade fixtures and equipment) installed byTenant during the Term shall be surrendered with the Premises and shall becomeLandlord’s property without compensation to Tenant.  Landlord shall have the option at the time of granting consent toadditions, improvements and alterations to require their removal and therestoration of the Premises to the condition existing immediately prior totheir installation at the expiration or early termination of the Lease.  For any such installations which do notrequire Landlord’s consent, Landlord shall have the option of requiring theirremoval and the restoration of the Premises to the condition existingimmediately prior to their installation at the expiration or early terminationof the Lease. 

 

Tenant shallremove its furniture, trade fixtures and equipment and all other items ofpersonal property from the Premises prior to the end of the Term or anyextension thereof, or at the termination of right of possession, however ended.  Tenant shall repair any damages caused bythe removal of such items.  If Tenantdoes not remove such items, Tenant shall be conclusively presumed to haveconveyed the same to Landlord under this Lease as a bill of sale withoutfurther payment or credit by Landlord to Tenant, or at Landlord’s sole option,Landlord may cause the items covered in this Paragraph to be removed and storedat the risk and cost of

 

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Tenant.  Tenant shall pay toLandlord, upon demand, any and all reasonable expenses incurred in such removaland all reasonable storage charges against such property so long as the sameshall be in Landlord’s possession or under Landlord’s control.  Any such property of Tenant not removed fromthe Premises or retaken from storage by Tenant within thirty (30) days after theend of the Term, however terminated or any extension thereof, at Landlord’ssole option, shall be conclusively deemed to have been forever abandoned byTenant.

 

9.             Maintenanceand Repair.

 

A.            Landlord shall at its own expense, maintain and keepin good repair and in a manner consistent with the maintenance and standards ofother similar buildings owned by Landlord the foundation, walls (load bearingand wall surfaces in common corridors), exterior doors and doors through loadbearing walls, floors, flooring (building standard carpet and tile), ceilings(excluding false ceilings not located in common areas), roof, elevators andother structural portions of the Building and common areas, and shall maintainthe fire mains and sprinkler system in the Building and the Building’smechanical, electrical, plumbing, heating, ventilating and air conditioningequipment and systems.  Landlord shall,also, at its sole cost and expense, maintain the following infrastructures servingthe Premises:

 

Distribution piping up tothe first isolation valve upstream of any Tenant process for fresh water andsteam plant;

 

Distribution pipingdownstream of the utilities backflow preventer for Nitrogen, Carbon Dioxide,Compressed Air and Plant Air;

 

Distribution pipingdownstream of the utilities isolation valve for distilled water and lake water;

 

WFI stills, tanks andrecirculation loop;

 

ACW water line up to theinlet of the ACW’s back flow preventer;

 

Condensate distributionpiping downstream of first isolation valve from the first trap;

 

Power Distribution up toMCC panels; and 

 

Nine (9) break tankslocated within the basement of the Premises and all associated pipingdischarging from the break tanks only.

 

Landlord shall performits maintenance in a manner designed to minimize interference with Tenant’s useof the Premises to the extent such is reasonably possible without incurringadditional costs.  Landlord shallperform its maintenance obligations in accordance with the laws of the UnitedStates, the State of Illinois and all directions and regulations ofgovernmental agencies having jurisdiction over the Premises.  Landlord shall have no obligation forTenant’s personal property, furniture, trade fixtures and equipment, whichshall be Tenant’s responsibility.

 

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B.            Tenant shall at its own expense, maintain and keep ingood repair and in a manner consistent with the current standards of theBuilding, the process HVAC systems and controls, the flooring (excludingbuilding standard carpet and tile), false ceilings, interior doors and non-loadbearing walls within the Premises. Tenant shall also, at its sole cost and expense maintain the followingcomponents of system infrastructure list:

 

Above grade chemicalsewer piping; storm sewer other than below grade piping and grade roof drainspiping;

 

Power Distribution fromthe MCC panels and beyond;

 

Nitrogen, carbon dioxideand distilled water systems up to the inlet isolation valve to the secondarybackflow preventer or up to the first isolation valve upstream of any processtakeoff;

 

WFI inlet control valveto the break tank and beyond; and

 

ACW system from thebackflow preventer and beyond.

 

C.            Tenant shall, at its expense, maintain its furniture,trade fixtures and equipment, at all times in good condition and repair.  Tenant shall be responsible for the cleaningand maintenance of all Tenant’s furniture, trade fixtures and equipment.  Tenant shall commit no waste of any kind onor about the Premises and Tenant shall pay for all damage to the Building, aswell as damage to tenants or occupants thereof, caused by misuse or neglect ofthe Premises, by Tenant or Tenant’s employees, agents or invitees.  At the expiration of the Term, Tenant shallsurrender the Premises in good condition, normal wear and tear and damage byfire or other insured casualty excepted.

 

10.           Assignment-Sublease.  This Leaseshall be binding upon and inure to the benefit of the Parties hereto and theirrespective successors and permitted assigns; provided, however,that neither Party may assign its rights or delegate its obligations under thisLease without the express prior written consent of the other Party (whichconsent shall not be unreasonably withheld, delayed or conditioned hereto. Notwithstanding the foregoing, this Lease shall be assignable by either Partyin whole with the prior written consent of the other Party (which consent shallnot be unreasonably withheld, delayed or conditioned) in connection with: (i) amerger or consolidation of such Party if (a) such Party is not the survivingentity, or (b) such Party’s shareholders constitute less than 70% of thesurviving shareholders; (ii) the sale of all or substantially all of the assetsof such Party; or (iii) the acquisition by a Third Party of at least 30% of thecombined voting power of the then-outstanding securities of such Party entitledto vote generally in the election of directors (each such occurrence a “Changeof Control Event”), in each case so long as the resulting, surviving ortransferee Person assumes all the obligations of the assignor hereunder byoperation of law or pursuant to an agreement in form and substance reasonablysatisfactory to the other Party.  It shall not be deemed to beunreasonable for a Party to withhold consent to assignment in connection with aChange of Control Event on the basis that the proposed assignee is a competitorof such Party.  In the event a Partyeffects a Change of Control Event without the other Party’s prior writtenconsent to assign this Lease as set forth

 

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above, the latter Partymay terminate this Lease, in its sole discretion, with effect immediately uponthe occurrence of such Change of Control Event.

 

11.           Indemnification and Insurance.  Landlordshall not be liable to Tenant or to any other Persons for any injury to ordeath of any Person or for loss or damage to property (including property ofTenant) occurring in the Building or the Premises from any cause whatsoever,except to the extent caused by Landlord’s negligence or willfulmisconduct.  Tenant agrees to indemnifyand save Landlord harmless from all loss, damage, liability and expense(including expense of defending claims) relating to any actual or allegedinjury to or death of any Person or loss or damage to property caused by orresulting from any occurrence on the Premises, except to the extent caused byLandlord’s negligence or willful misconduct. Tenant shall, at Tenant’s expense, maintain liability insurance and “AllRisk” insurance with insurers, coverages, amounts and waiver of subrogation andcancellation clauses acceptable to Landlord. The liability insurance coverageshall include, without limitation, minimum limits of $2,000,000.00 (combinedsingle limit per occurrence and $10,000,000.00 annual aggregate) for propertydamage.  For bodily injuries and death,Tenant’s insurance carrier should be licensed to do business in Illinois andmaintain a minimum Best’s rating of “A”, category “X”.  Tenant’s “All Risk” insurance coverage shallinclude coverage of its moveable fixtures, office equipment, furniture, tradefixtures and all other items of Tenant’s property on the Premises.  Such policy or policies shall name Landlordas an additional insured and shall be noncancellable as to Landlord and notsubject to material change except upon at least thirty (30) days’ prior writtennotice given to Landlord.  Tenant shallfurnish Landlord with a copy of said policy or policies or other acceptableevidence that said insurance is in effect on the date hereof and at leastfifteen (15) days prior to the expiration of the then current policies.  Landlord shall maintain commercial generalliability insurance and “All Risk” insurance for the full replacement value ofthe Building and all improvements, machinery and fixtures.  Each Party may self-insure its insuranceobligations hereunder.

 

12.           Inspection.  Landlord may retain a key tothe Premises and Landlord and its employees and agents shall have the right toinspect the Premises at all reasonable times and to enter the same wheneverreasonably necessary to exercise any right or privilege of Landlord under thisLease.

 

13.           EminentDomain. If the entire Premises (or a material portion thereof such that theremainder of the Premises is no longer suitable for Tenant’s use) shall betaken by any public or governmental authority under the power of eminentdomain, the Term shall cease as of the date possession is taken by suchauthority and the Rent shall be paid up to that date.  If only a part of the Premises shall be taken and the remainderremains tenantable for the purposes for which Tenant has been using thePremises, then this Lease shall continue in effect, except that the Rent shallbe reduced in proportion to the amount of square footage of the Premises sotaken, and Landlord, at its expense, shall make all necessary repairs andalterations to the Premises required by such taking.  However, Landlord shall not be required to make such repairs andalterations, and this Lease shall terminate on the date possession is taken bythe applicable authority, if so much of the Building is taken by eminent domainso as to make such repairs and alterations, in Landlord’s reasonable judgment,economically disadvantageous.  Alldamages

 

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awarded for such takingmay be retained by Landlord, whether such damage is awarded as compensation fordiminution in the value of the leasehold or to the fee of the Premises.  Tenant shall be entitled to make a separateclaim for cost of removal of equipment and fixtures and Landlord shall not beentitled to any separate award arising out of such claim.  The term “eminent domain” as used hereinshall include the exercise of any similar governmental power and any purchaseor other acquisition in lieu thereof.

 

14.           Fireand Other Casualty. Should the Building or the Premises be damaged by fire or othercasualty, and if the damage is repairable within ninety (90) days from the dateof such casualty (with the repair work and the preparation therefor to be doneduring regular working hours on regular working days), as determined byLandlord’s architect, then the damage shall be repaired with due diligence byLandlord.  In the meantime, Rent shallbe abated in the same proportion that the untenantable portion of the Premisesbears to the whole thereof.  Should thePremises or the Building be completely destroyed by fire or other casualty, orshould they be damaged to such an extent that the damage cannot be repairedwithin ninety (90) days from the date of the casualty, as determined byLandlord’s architect, Landlord and Tenant shall each have the option ofterminating this Lease and shall so advise the other within thirty (30) daysafter the date of the casualty.  Ifneither Party has elected to terminate this Lease within said thirty (30) dayperiod, Landlord shall commence and prosecute with reasonable diligence anywork necessary to restore or repair the Premises.  For the period from the occurrence of any damage to the Premisesto the date of completion of the repairs (or to the date of termination of thisLease) the Rent shall be abated in the same proportion as the untenantableportion of the Premises bears to the whole thereof.  Rent hereunder shall not abate if Tenant’s negligence was thecause of the damage or casualty.

 

15.           Waiverof Subrogation. Tenant and Landlord hereby mutually release each other from liabilityand waive all right of recovery against each other for any loss from perilsinsured against under their respective “All Risk” insurance policies, includingany extended coverage and endorsements thereto, and agree to cause theirrespective insurers to do the same.

 

16.           Defaultsand Remedies.

 

A.            Defaultsby Tenant. The occurrence of any of the following shall constitute a default (“Default”)by Tenant hereunder:

 

1.             If Tenant defaults in the payment of Rent, and if thedefault is not remedied within five (5) days after written notice thereof byLandlord to Tenant;

 

2.             If Tenant defaults in the prompt and full performanceof any term, covenant or provision of this Lease (except those specified in Subparagraphs(1), (3), (4), (5), (6) and (7) of this SubparagraphA of Paragraph 16) and if such default is not remedied within thirty(30) days after notice thereof by the Landlord; provided, however, if suchdefault is capable of being cured but cannot by its nature be cured withinthirty (30) days, Tenant shall have such longer period as is reasonablynecessary (not to exceed ninety (90) days from the date of

 

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the initial default) tocure such default, provided Tenant has promptly commenced and is diligentlypursuing such cure;

 

3.             If the leasehold interest of Tenant is levied uponunder execution or is attached under process of law, which levy or attachmentcontinues for a period of thirty (30) days;

 

4.             If Tenant shall generally not pay its debts as theybecome due or shall admit in writing its inability to pay its debts or shallmake a general assignment for the benefit of creditors;

 

5.             If Tenant shall commence any case, proceeding or otheraction seeking reorganization, arrangement, adjustment, liquidation,dissolution or composition of it or its debts under any law relating tobankruptcy, insolvency, reorganization or relief of debtors, or seekingappointment of a receiver, trustee, custodian or other similar official for itor for all or any substantial part of its property;

 

6.             If Tenant shall take any corporate or other action toauthorize any of the actions set forth above in Subparagraphs A(4) and A(5)of this Paragraph 16; or

 

7.             If any case, proceeding or other action against Tenantshall be commenced seeking to have an order for relief entered against it as debtor,or seeking reorganization, arrangement, adjustment, liquidation, dissolution orcomposition of it or its debts under any law relating to bankruptcy,insolvency, reorganization or relief of debtors, or seeking appointment of areceiver, trustee, custodian or other similar official for it or for all or anysubstantial part of its property, and such case, proceeding or other action (i)which results in the entry of an order for relief against it which is not fullystayed within seven (7) business days after the entry thereof or (ii) which isnot dismissed for a period of thirty (30) days.

 

B.            Landlord’sRemedies.

 

1.             Upon the occurrence of any one or more Defaults byTenant, Landlord may elect to terminate this Lease and Tenant’s right topossession of the Premises.  Upon anytermination of this Lease, whether by lapse of time or otherwise, Tenant shallsurrender possession and vacate the Premises and deliver possession thereof toLandlord.  In such event, Tenant herebygrants to Landlord full and free license (a) to enter into and upon thePremises with or without process of law, (b) to repossess the Premises, (c) toexpel or remove Tenant and any others who may be occupying or be within thePremises, and (d) to remove any and all property therefrom using such force asmay be necessary without being deemed in any manner guilty of trespass,eviction or forcible entry or

 

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detainer, and withoutrelinquishing Landlord’s rights to Rent or any other right given to Landlordhereunder or by operation of law.

 

2.             Landlord may but shall not be obligated to cure anyDefault by Tenant hereunder.  IfLandlord so elects, all costs and expenses paid by Landlord in curing suchDefault and reasonable legal fees in connection therewith shall be additionalrent due on the next rent date.

 

3.             Notwithstanding anything in the Lease to the contrary,any and all remedies set forth in this Lease (i) shall be in addition to anyand all other remedies Landlord may have at law or in equity, (ii) shall becumulative, and (iii) may be pursued successively or concurrently as theLandlord may elect.  The waiver byLandlord of any breach of any term, covenant or condition herein containedshall not be deemed to be a waiver of such term, covenant or condition or anysubsequent breach of the same, or any other term, covenant or condition hereincontained.  Neither the acceptance ofRent nor any other action or omission of Landlord at any time or times afterthe happening of any breach by Tenant of any term, covenant or condition ofthis Lease, shall operate as a waiver of any past or future breach of any term,covenant or condition hereof or to deprive Landlord of its right to exerciseits remedies on account of such breach, or be construed so as to at any futuretime estop Landlord from promptly exercising any other option, right or remedythat it may have under any term or provision of this Lease.

 

C.            Landlord’s Default and Tenant’s Remedies.  If Landlordfails to observe or perform any material covenant, agreement or obligation tobe performed by Landlord under this Lease, and if such failure shall continuefor more than thirty (30) days after notice thereof from Tenant to Landlord(unless such failure requires work to be performed, acts to be done, orconditions to be removed which, by their nature, cannot reasonably beperformed, done or removed, as the case may be, within such period, in whichevent, if the Landlord shall have commenced curing or correcting the samewithin such period and shall have diligently prosecuted such cure, or correction,such thirty (30) day period shall be extended by such additional time period asmay be reasonably required for Landlord to cure or correct such failure), thenTenant shall have and may exercise such rights and remedies to which it may beentitled at law or in equity upon such default of Landlord, including, but notlimited to, the right to expend amounts necessary to cure such Default and todeduct such amounts from Rent payments due Landlord.

 

17.           Notices.  All notices or othercommunications under this Lease must be in writing and shall be deemed to beduly given (a) when delivered in person, (b) upon transmission via confirmedfacsimile transmission, provided that such transmission is followed by deliveryof a physical copy thereof in person, via U.S. first class mail, or via aprivate express mail courier, or (c) two (2) days after deposit with a privateexpress mail courier, in any such case addressed as provided in Paragraphs 5and 6 of the Lease Schedule.  AnyParty may, by notice to the other Party, change the address to which suchnotices are to be given.

 

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18.           Holding Over.  In the event Tenant remainsin possession of the Premises or any part thereof after the expiration of thisLease, without a written lease, Tenant shall be deemed to be occupying thePremises as a tenant from month-to-month subject to all of the conditions,provisions and obligations of this Lease insofar as they may be applicable tosuch month-to-month tenancy, except as provided in this Paragraph 18.  During such holding over, Tenant shall payRent at one hundred twenty five percent (125%) the rate payable for the yearimmediately preceding said holding over computed on a monthly basis for thetime Tenant thus remains in possession. The provisions of this Paragraph do not waive Landlord’s rights ofre-entry or right to regain possession by actions at law or in equity or by anyother rights hereunder.

 

19.           Successorsor Assigns. This Lease shall be binding upon and inure to the benefit of the Partieshereto, and their respective successors and permitted assigns.

 

20.           Subordination.  Tenantagrees that this Lease shall be subordinate in interest to any mortgage orground lease covering the Building now in effect or hereafter given by Landlordor others provided that so long as Tenant is not in default hereunder, thisLease shall remain in full force and effect and Tenant’s possession of thePremises shall not be disturbed.  Tenantagrees at Landlord’s request to execute an appropriate instrument confirmingits subordination in exchange for a written non-disturbance agreement executedby any such lender or ground lessor in a form as may be reasonably acceptableto Tenant.

 

21.           QuietEnjoyment. Landlord covenants that Tenant, on paying the Rent and performingTenant’s obligations under this Lease, shall peaceably have, hold and enjoy thePremises for the Term without any hindrance by or through Landlord, or itssuccessors or assigns.

 

22.           Parking.  Tenant and its employees,guests and visitors shall be permitted to park, along with other tenants of theBuilding, their employees, guests and visitors in parking areas adjacent to theBuilding in accordance with Landlord’s standard parking procedures.

 

23.           Sale byLandlord. In the event of an arms length sale or conveyance by Landlord to anunrelated Third Party of Landlord’s interest in the Building or in this Lease,the same shall operate to release Landlord from any future liability under thisLease accruing from and after such transfer. Tenant agrees to look solely to the successor in interest of Landlord inand to this Lease for the performance of Landlord’s covenants and obligations.

 

24.           EstoppelCertificate. Tenant shall, at the request of Landlord at any time and from time totime upon not less than ten (10) business days’ prior written notice, furnishto Landlord, or an entity designated by Landlord, a certificate stating (i)that this Lease is unmodified and in full force and effect (or, if modified,stating the nature of such modification and certifying that this Lease, as somodified, is in full force and effect), (ii) the dates to which the Rent andother charges are paid, (iii) that Tenant is in possession and paying Rent on acurrent basis with no offsets, defenses or claims, (iv) that there are not anyuncured defaults on the part of Tenant and to Tenant’s knowledge, on the partof Landlord, under the Lease (or specifying such defaults, if any are claimed)and (v) such other matters as Landlord may reasonably require or that anyprospective purchaser, mortgagee or ground lessor may require.

 

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25.           Transfer of Personal Property, Equipment and Trade Fixtures. In consideration of Tenant’s obligations and covenants hereunder,Landlord hereby sells, assigns, transfers and conveys to Tenant all of itsright, title and interest in and to the personal property, equipment and tradefixtures located on the Premises as of the Effective Date.  From and after the Effective Date, allpersonal property, equipment and trade fixtures located on the Premises shallbe deemed the property of Tenant.  TheParties have executed a Bill of Sale as of the date hereof regarding suchtransfer.

 

26.           HazardousMaterials. Prior to executing this Lease, Tenant has completed, executed anddelivered to Landlord a Hazardous Materials Disclosure Certificate (“InitialDisclosure Certificate”) a fully completed copy of which is attached heretoas Exhibit E and incorporated herein by this reference.  Tenant covenants, represents and warrants toLandlord that the information on the Initial Disclosure Certificate is true andcorrect and accurately describes all Hazardous Materials (as defined below)which will be manufactured, treated, used, handled, transported or stored on orabout the Premises by Tenant or Tenant’s agents.  Tenant shall on each anniversary of the Commencement Date and atsuch other times as Tenant desires to manufacture, treat, use, handle,transport or store on or about the Premises new or additional HazardousMaterials which were not listed on the Initial Disclosure Certificate, complete,execute and deliver to Landlord an updated Disclosure Certificate (each, an “UpdatedDisclosure Certificate”) describing the then current and proposed futurepresence of Hazardous Materials on or about the Premises, which UpdatedDisclosure Certificate shall be in the same format as that which is set forthin Exhibit E or in such updated format as Landlord may require from timeto time.  Tenant shall deliver anUpdated Disclosure Certificate to Landlord not less than thirty (30) days priorto the date Tenant intends to commence the manufacture, treatment, use,handling, transportation or storage of new or additional Hazardous Materials onor about the Premises, and Landlord shall have the right to approve ordisapprove such new or additional Hazardous Materials in its sole and absolutediscretion.  Tenant shall not allow thepresence of Hazardous Materials on or about the Premises except as described inthe Initial Disclosure Certificate or as otherwise approved by Landlord inwriting in accordance with this Paragraph  26, which approvalshall not be withheld if consistent with Landlord’s past practice on thePremises.

 

Tenant shall notcause or permit any Hazardous Material to be generated, produced, brought upon,used, stored, treated or disposed of in or about the Premises by Tenant, itsagents, employees, contractors, sublessees or invitees without (a) the priorwritten consent of Landlord, which consent shall not be unreasonably withheld,and (b) complying with all applicable federal, state and local laws andordinances pertaining to the transportation, storage, use, treatment, handling,manufacture or disposal of such Hazardous Materials, including but not limitedto obtaining and complying with proper licenses and permits (collectively,“Environmental Requirements”).  Landlordshall be entitled to take into account such other factors or facts as Landlordmay reasonably determine to be relevant in determining whether to grant orwithhold consent to Tenant’s proposed activity with respect to Hazardous Material.  In no event, however, shall Landlord berequired to consent to the installation or use of any underground storagetanks.

 

If, during theTerm, the treatment, handling, manufacture, transportation, storage, use,release or disposal of Hazardous Materials on the Premises results in thecontamination of

 

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leasehold improvements (including buildings), equipment, soil orsurface or ground water or loss or damage to Person(s) or property, then Tenantagrees to:  (a) notify Landlordimmediately of any contamination, claim of contamination, loss or damage, (b)after consultation with the Landlord, clean up the contamination in fullcompliance with all applicable statutes, regulations and standards, and (c)indemnify, defend and hold Landlord harmless from and against any claims,suits, causes of action, costs and fees, including attorney’s fees and costs(all such losses, collectively, “Losses”), arising from or connectedwith any such contamination, claim of contamination, loss or damage.  Tenant agrees to fully cooperate withLandlord and provide such documents, affidavits and information as may berequested by Landlord (a) to comply with any Environmental Requirements (asdefined below), (b) to comply with the request of any lender, purchaser, tenant,or government agency and/or (c) for any other reason deemed necessary byLandlord in its sole discretion.  Tenantfurther shall:  (a) notify Landlordpromptly in the event of any spill or other release of any Hazardous Materialat, in, on, under or about the Premises which is required to be reported to agovernmental authority under any Environmental Requirements (as defined below),(b) promptly forward to Landlord copies of any notices received by Tenantrelating to alleged violations of any Environmental Requirements, (c) promptlypay when due any fine, penalty or assessment against Landlord, Tenant or thePremises relating to any such spill or release or any violation of anyEnvironmental Requirements during the Term, and (d) indemnify, defend and holdLandlord harmless from and against any and all Losses relating to or arisingfrom any such spill or release or any violation of an EnvironmentalRequirement.

 

If a lien is filedagainst the Premises by any governmental authority resulting from the need to expendor the actual expending of monies arising from an act or omission, whetherintentional or unintentional, of Tenant, its agents, employees or invitees orfor which Tenant is responsible, resulting in the releasing, spilling, leaking,leaching, pumping, emitting, pouring, emptying or dumping of any HazardousMaterial into the waters or onto land located within or without the State wherethe Premises is located, then Tenant shall, within thirty (30) days from thedate that Tenant is first given notice that such lien has been placed againstthe Premises (or within such shorter period of time as may be specified byLandlord if such governmental authority has commenced steps to cause thePremises to be sold pursuant to such lien) either (a) pay the claim and removethe lien, or (b) furnish a cash deposit, bond, or such other security withrespect thereto as is satisfactory in all respects to Landlord and issufficient to effect a complete discharge of such lien on the Premises.

 

Landlord shallhave the right, but not the obligation, without in any way limiting Landlord’sother rights and remedies under this Lease to enter upon the Premises, or totake such other actions as it deems necessary or advisable, to investigate,clean up, remove or remediate any Hazardous Materials or contamination byHazardous Materials present on, in, at, under or emanating from the Premises orthe Building in violation of Tenant’s obligations under this Lease or under anylaws regulating Hazardous Materials. Notwithstanding any other provision of this Lease, Landlord shall havethe right, at its election, in its own name or as Tenant’s agent, to negotiate,defend, approve and appeal, at Tenant’s expense, any action taken or orderissued by any governmental agency or authority with any governmental agency orauthority against Tenant, Landlord or the Premises relating to any HazardousMaterials or under any related law or the occurrence of any event or existenceof any condition that would case a breach of any of the

 

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covenants set forth in this Paragraph 26.  Prior to or promptly after the expiration ortermination of this Lease, Landlord may conduct or require an environmentalaudit, assessment or investigation of the Premises by a qualified environmentalconsultant.  Landlord and Tenant shallequally share the reasonable costs of such an environmental audit and shall, atits sole cost and expense, take all actions recommended in such audit toremediate any environmental conditions. The provisions of this Paragraph 26 shall survive the expirationor earlier termination of this Lease.

 

As used in thisLease, the term “Hazardous Material” shall mean any flammable items,explosives, radioactive materials, oil, hazardous or toxic substances, materialor waste, including any substances defined as or included in the definition of“hazardous substances”, “hazardous wastes”, “hazardous materials” or “toxicsubstances” now or subsequently regulated under any applicable federal, stateor local laws or regulations, including without limitation petroleum-basedproducts, asbestos, PCBs, mold, radioactive materials and similar compounds.

 

As used in thisLease, the term “Environmental Requirements” shall mean all federal,state, local and foreign statutes, regulations, ordinances and other provisionshaving the force or effect of law, all judicial and administrative orders anddeterminations, all contractual obligations and all common law concerningpublic health and safety, worker health and safety, and pollution or protectionof the environment, including without limitation all those relating to thepresence, use, production, generation, handling, transportation, treatment,storage, disposal, distribution, labeling, testing, processing, discharge,release, threatened release, control, or cleanup of any Hazardous Materials,each as amended and as in effect prior to, on, or after the date of this Lease.

 

27.           Certain Rights Reserved to Landlord.  Landlordreserves the following rights:  (a) tochange the name or street address of the Building or the suite number of thePremises; (b) to install, affix and maintain any and all signs on the exterioror interior of the Building; (c) to make repairs, decorations, alterations,additions, or improvements, whether structural or otherwise, in and about theBuilding, and for such purposes to enter upon the Premises, temporarily closedoors, corridors and other areas in the Building and interrupt or temporarilysuspend services or use of common areas; (d) to install, use and maintain inand through the Premises pipes, conduits, wires and ducts serving the Building,provided that such installation, use and maintenance does not unreasonablyinterfere with Tenant’s use of the Premises; (e) to approve or disapprove theweight, size or location of heavy equipment in and about the Premises; and (f)to take any other action which Landlord deems reasonable in connection with theoperation, maintenance or preservation of the Building.  The exercise of any such rights shall not bedeemed to constitute an eviction or disturbance of Tenant’s use or possessionof the Premises and shall not give rise to any claim for set-off or abatementof Rent or any other claim.

 

28.           Confidentiality.  Each Party,on behalf of itself and each of its Subsidiaries, agrees to hold, and to causeits respective directors, officers, employees, agents, accountants, counsel andother advisors and representatives to hold, in strict confidence, with at leastthe same degree of care that applies to Landlord’s confidential and proprietaryinformation pursuant to policies in effect as of the Effective Date, allinformation concerning the other and the other’s Subsidiaries

 

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that is either in itspossession (including information in its possession prior to the EffectiveDate) or furnished by the other or the other’s Subsidiaries or their respectivedirectors, officers, employees, agents, accountants, counsel and other advisorsand representatives at any time pursuant to this Lease, and shall not use anysuch Information other than for such purposes as may be expressly permittedhereunder or thereunder, except, in each case, to the extent that suchInformation has been (i) in the public domain through no fault of such Party orits Subsidiaries or any of their respective directors, officers, employees,agents, accountants, counsel and other advisors and representatives; (ii) laterlawfully acquired from other sources by such Party (or any of its Subsidiaries)which sources are not themselves bound by a confidentiality obligation; or(iii) independently generated without reference to any proprietary orconfidential information of the other Party.

 

29.           Debarmentand Exclusion. Landlord represents and warrants that neither it, nor any of itsemployees or agents working on Tenant’s behalf, has ever been, is currently, oris the subject of a proceeding that could lead to that Party becoming, asapplicable, a Debarred Entity or Debarred Individual.  Landlord further covenants, represents and warrants that if,during the Term, it, or any of its employees or agents working on Tenant’sbehalf, becomes or is the subject of any FDA investigation or debarmentproceeding that could lead to that Party becoming, as applicable, a DebarredEntity or Debarred Individual, Landlord shall immediately notify Tenant andreassign such employees such that they no longer work on Tenant’s behalf.  For purposes of this provision, thefollowing definitions shall apply:

 

(a)           A “Debarred Individual” is an individual who has beendebarred by the FDA pursuant to 21 U.S.C. §335a (a) or (b) from providingservices in any capacity to a Person that has an approved or pending drugproduct application.

 

(b)           A “Debarred Entity” is a corporation, partnership orassociation that has been debarred by the FDA pursuant to 21 U.S.C. §335a (a)or (b) from submitting or assisting in the submission of any abbreviated drugapplication, or a subsidiary or affiliate of a Debarred Entity.

 

30.           Miscellaneous.

 

A.            Time ofthe Essence. Time is of the essence of this Lease and each and all of its provisions.

 

B.            Governing Law/Compliance with Laws.  This Leaseshall be governed by and construed and interpreted in accordance with the lawsof the State of Illinois irrespective of the choice of laws principles of theState of Illinois, as to all matters, including matters of validity,construction, effect, enforceability, performance and remedies.  Each Party shall comply with all applicablelaws, rules and regulations in the performance of its obligations under thisLease.

 

C.            LeaseModification. Should any mortgagee or ground lessor require a modification of thisLease, which modification will not bring about any increased cost or expense toTenant or in any other way substantially change the rights and obligations ofTenant hereunder, Tenant agrees that this Lease may be so modified.

 

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D.            Alternative Dispute Resolution.  The Partiesacknowledge that, from time to time after the Effective Date, a controversy,dispute or claim may arise relating to either Party’s rights or obligationsunder this Lease.  The Parties agreethat any such controversy, dispute or claim (whether arising in contract, tortor otherwise) arising out of or relating in any way to this Lease (shall beresolved by the Alternative Dispute Resolution (“ADR”) provisions setforth in Exhibit D attached hereto, the result of which shall bebinding upon the Parties.  Unlessotherwise agreed in writing, the Parties shall continue to provide services andhonor all other commitments under this Lease during the course of disputeresolution pursuant to the provisions of Exhibit D with respect to allmatters subject to such dispute, controversy or claim.

 

E.             IndependentContractors. It is understood that both Parties hereto are independent contractorsand engage in the operation of their own respective businesses and neitherParty hereto is to be considered the agent of the other Party for any purposewhatsoever and neither Party has any authority to enter into any contract orassume any obligation for the other Party or to make any warranty orrepresentation on behalf of the other Party.  Each Party shall be fullyresponsible for its own employees, servants and agents, and the employees,servants and agents of one Party shall not be deemed to be employees, servantsand agents of the other Party for any purpose whatsoever.

 

F.             ForceMajeure. Neither Party shall be deemed in default of this Lease to the extentthat any delay or failure in the performance of its obligations under thisLease results from any cause beyond its reasonable control and without itsfault or negligence, such as acts of God, acts of civil, military or governmentauthority, embargoes, epidemics, war, riots, insurrections, acts of terrorism,fires, explosions, earthquakes, floods, unusually severe weather conditions,labor problems or unavailability of parts, or, in the case of computer systems,any failure in electrical or air conditioning equipment.  In the event of any such excused delay, thetime for performance shall be extended for a period equal to the time lost byreason of the delay.

 

G.            Limitationson Liability. All obligations of Landlord under this Lease will be binding uponLandlord only during the period of its ownership of the Premises and notthereafter.  The term “Landlord” in thisLease shall mean only the owner, for the time being of the Premises, and in theevent of the transfer by such owner of its interest in the Premises, such ownershall thereupon be released and discharged from all obligations of Landlordthereafter accruing, but such obligations shall be binding during the Term uponeach new owner for the duration of such owner’s ownership.  EXCEPT AS OTHERWISE SET FORTH IN PARAGRAPH7J ABOVE, ANY LIABILITY OF LANDLORD UNDER THIS LEASE SHALL BE LIMITEDSOLELY TO ITS INTEREST IN THE PREMISES, AND IN NO EVENT SHALL ANY PERSONAL LIABILITYBE ASSERTED AGAINST LANDLORD IN CONNECTION WITH THIS LEASE NOR SHALL ANYRECOURSE BE HAD TO ANY OTHER PROPERTY OR ASSETS OF LANDLORD.  IN NO EVENT SHALL EITHER PARTY, ITSSUBSIDIARIES OR ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO THEOTHER PARTY FOR INDIRECT, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVEDAMAGES IN CONNECTION WITH THE PERFORMANCE OF THIS LEASE, EVEN IF THE PARTY HASBEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EACH PARTY HEREBY WAIVESON

 

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BEHALF OF ITSELF AND ITSSUBSIDIARIES ANY CLAIM FOR SUCH DAMAGES, INCLUDING ANY CLAIM FOR PROPERTYDAMAGE OR LOST PROFITS, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE.

 

H.            Exclusion from Liability Limitation.  Theforegoing limitations on liability in Paragraph 30G. shall not applyto:  either Party’s liability forbreaches of confidentiality under Paragraph 28 (Confidentiality).

 

31.           NoReal Estate Brokers. Landlord and Tenant each represent and warrant that it has had nodealings with any real estate broker or agent in connection with thenegotiation of this Lease and that it knows of no real estate broker, agent orfinder which is or might be entitled to a commission or fee in connection withthe Lease.  If any claim for broker’s orfinder’s fees or commissions in connection with the Lease, Landlord shallindemnify, hold harmless and defend Tenant from and against any and allliability, claims, demands, damages and costs (including, without limitation,reasonable attorneys’ fees and other litigation expenses) on account of suchclaim if it shall be based upon any statement, representation or agreementclaimed to have been made by Landlord, and Tenant shall indemnify, holdharmless and defend Landlord from and against any and all liability, claims,demands, damages and costs (including, without limitation, reasonableattorney’s fees and other litigation expenses) on account of such claim if itshall be based upon any statement, representation or agreement claimed to havebeen made by Tenant.

 

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IN WITNESS WHEREOF, the Parties hereto have executed this Lease on thedate first above written.

 
|   | Landlord:               |
|--------|-------------------------|
|   |                    |
|   | **ABBOTT LABORATORIES** |
|   |                    |
|   | By:                     |   |   |
|   | Title:                  |   |   |
|   |                    |
|   |                    |
|   | Tenant:                 |
|   |                    |
|   | **HOSPIRA, INC.**       |
|   |                    |
|   | By:                     |   |   |
|   | Title:                  |   |   |
|        |                         |  |  |  |  |  |

 

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