SURRENDER OF LEASE
Exhibit 10.44
WHEREAS THE WESTAIM CORPORATION (“Lessor”) and NUCRYST PHARMACEUTICALS CORP. (“Lessee”)
entered into a Memorandum of Lease Agreement dated July 1, 2005 (the” Original Lease Agreement”)
which was amended by Letter Agreement dated November 14, 2005 (the “First Amending Lease
Agreement”), by a second amending lease agreement dated April 27, 2006 (the “Second Amending Lease
Agreement”), by a third amending lease agreement dated August 8, 2006 (the “Third Amending Lease
Agreement”), and by a fourth amending lease agreement dated April 30, 2007 (the “Fourth Amending
Lease Agreement”), collectively the “Lease Agreement”;
AND WHEREAS the Lessor assigned all of its interest in the Lease Agreement to Sherritt
International Corporation, the purchaser of the lands of which the Leased Premises form part, by
virtue of an Assignment and Assumption of Leases dated May 7, 2007;
AND WHEREAS pursuant to the Fourth Amending Lease Agreement the parties hereto wish to confirm the
terms under which the Lessee will surrender the 1st Floor Surrendered Premises;
NOW THEREFORE in consideration of the mutual covenants and agreements herein contained and for
other good and valuable consideration now exchanged by and between the parties (the receipt and
sufficiency of which consideration is hereby irrevocably acknowledged by the parties), the parties
hereto agree as follows:
1. The Lessee hereby surrenders and yields up to the Lessor from June 30, 2007 (the “Effective
Date”) any and all interest of the Lessee to the 1st Floor Surrendered Premises and the
Lease Agreement as it pertains to the 1st Floor Surrendered Premises, and the surrender
of the 1st Floor Surrendered Premises is hereby accepted by the Lessor.
2. The Lessor hereby accepts the condition of the 1st Floor Surrendered Premises in the
manner in which it was vacated by the Lessee.
3. From and after the Effective Date, and subject only to section 5 hereof, the Lessee shall be and
is hereby released from all future obligations owing to the Lessor under the Lease Agreement
pertaining to the
1st Floor Surrendered Premises, including but not limited to
obligations to pay Basic Rent and Additional Rent. Moreover, the Lessee’s obligation to pay its
proportionate share of operating costs of the Complex Common Facilities shall xxxxx according to
square footage of the 1st Floor Surrendered Premises. The Lessee acknowledges that it
will remain liable to the Lessor for payment and performance of all obligations under the Lease
Agreement pertaining to the 1st Floor Surrendered Premises accruing up to the Effective
Date that have not been satisfied or discharged.
4. From and after the Effective Date, and subject only to section 5 hereof, the Lessor shall be and
is hereby released from any and all future obligations under the Lease Agreement pertaining to the
1st Floor Surrendered Premises.
5. Notwithstanding the surrender of the 1st Floor Surrendered Premises, the Lessee shall
continue to be entitled to retain its server in the server room on
the 1st Floor of the
AIMS I Building and have non-exclusive access to, in and from the server room for all uses
incidental to its server until December 31, 2007. The Lessee agrees to exercise its rights
hereunder so as to minimize disruption of the Lessor and any of its lessees that may hereafter
occupy the 1st Floor Surrendered Premises.
6. Except as herein amended, all other provisions, terms and conditions of the Lease Agreement
shall remain the same and in full force and effect.
7. All capitalized terms used herein but not defined shall have the meanings defined therefore in
the Lease Agreement.
8. This Agreement may be executed in one or more counterpart, each of which shall be deemed to be
the original, but all of which together shall constitute one and the same instrument. Counterparts
may be executed either in original or facsimile form.
IN WITNESS WHEREOF the parties have executed this Agreement by the hands of their duly authorized
officers in that regard, whose signatures alone are sufficient to bind the parties to the terms
hereof, effective the 30th Day of June, 2007.
| SHERRITT INTERNATIONAL CORPORATION | NUCRYST PHARMACEUTICALS CORP. | |||||||||
Per:
|
/s/ Cresia Rosichuk for Xxxxx Xxxxxxxxxx | Per: | /s/ Xxxxx X. Xxxxxx | |||||||
| Name: Cresia Rosichuk | Xxxxx X. Xxxxxx | |||||||||
| Title: Purchasing Supervisor | Vice President, Finance & Administration, Chief Financial Officer | |||||||||
| Per: | /s/ Xxxxx X. Xxxxxx | |||||||||
| Xxxxx X. Xxxxxx | ||||||||||
| Vice President, General Counsel & Corporate Secretary | ||||||||||
