THIS INDENTURE made as of the 31st day of March, 2000
BETWEEN:
ALMAD INVESTMENTS LIMITED
(hereinafter called the "Landlord"),
OF THE FIRST PART,
-and-
VIVENTIA BIOTECH INC.
(hereinafter called the "Tenant"),
OF THE SECOND PART
WITNESSETH that in consideration of the rents, covenants and agreements
hereinafter reserved and contained on the part of the Tenant to be paid,
observed and performed, the Landlord has demised and leased, and by these
presents does demise and lease unto the Tenant approximately Twenty One Thousand
Five Hundred (21,500) square feet of Rentable Area (the "Leased Premises")
commonly known as 136-147 Hamelin Street, in the City of Winnipeg, in the
Province of Manitoba forming part of the property (the "Property"), commonly
known as 131-147 Hamelin Street in the City of Winnipeg, in the Province of
Manitoba;
TO HAVE AND TO HOLD the Leased Premises for a term of Three (3) years
commencing on the 1st day of April, 2000 and from thenceforth next ensuing and
fully to be completed and ended on the 31st day of March, 2003, (hereinafter
called the "Term"), and for the minimum rent and additional rent set forth in
Section 1.01 hereof.
1.00 TENANT'S COVENANTS
The Tenant hereby covenants with the Landlord as follows:
1.01 RENT - The Tenant shall pay rent as follows:
(a) MINIMUM RENT - The Tenant shall pay to the Landlord or as the Landlord
may direct in writing, in lawful money of Canada, without set-off,
compensation or deductions except as may otherwise be provided for in
this agreement, yearly in each and every year, Minimum Rent for the
Leased Premises in the amount of One Hundred Thirty Nine Thousand and
Seven Hundred and Fifty Dollars ($139,750.00) per annum, plus goods
and service tax thereon, payable in monthly installments of Eleven
Thousand Six Hundred and Forty Five Dollars and Eighty Three Cents
($11,645.83) plus goods and service tax thereon, on or before the 1st
day of each and every month of the Term. The Minimum Rent is
calculated at a rate of Six Dollars and Fifty ($6.50) per square foot
of Rentable Area.
(b) ADDITIONAL RENT - The Tenant shall pay additional rent as set forth in
Section 1.02 hereof. The Additional Rent is estimated at $7.65 per
square foot of Rentable Area plus goods and service tax thereon for
the fiscal year 2000. The Tenant shall pay the Additional Rent to the
Landlord in equal monthly installments together with the monthly
installments of the minimum rent. At the end of the fiscal year, the
Tenant shall be advised of the actual amount required to be paid and
if necessary, an adjustment shall thereupon be made between the
parties within (15) days of the Landlord so advising.
1.02 ADDITIONAL RENT - The Tenant shall pay to the Landlord as Additional
Rent:
(a) its Proportionate Share of all taxes, rates, charges, local
improvements and assessments whatsoever whether municipal, provincial
or federal that may be levied during the Term hereof upon the Leased
Premises or upon the Landlord on account thereof to the entire
exoneration of the said Landlord save and except as for personal or
corporate income taxes and capital taxes whether assessed by the
Provincial or Federal Government and all Estate and Succession Duties
or Taxes whether assessed by the Federal or Provincial Government, and
save and except for any separate school taxes which may be levied as a
result of any election by the Landlord, without limiting the
generality of the foregoing, the taxes, rates, charges and assessments
to be paid by the Tenant shall include taxes for local improvements or
works assessed upon the Leased Premises, business taxes arising from
the use or occupancy of the Leased Premises by the Tenant or any
subtenant holding under the Tenant, provided that if any taxes, rates,
charges, local improvements and assessments whatsoever as aforesaid
are levied separately in respect of the Leased Premises to pay the
full amount as Additional Rent;
(b) its Proportionate Share of all Operating Costs. Operating Costs means
the total amount paid or payable, whether by the Landlord, for public
utilities, building services, replacement of the Property and
maintenance equipment (excluding additions to the building and
provided that capital costs are amortized in accordance with generally
accepted accounting principles), maintenance and janitorial services
for the Property or any part or parts thereof, such as are in keeping
with maintaining the standard of a first-class building having regard
for its age, location and use, including all repairs and replacements
required for such maintenance, including, without limiting the
generality of the foregoing, repairs and non-structural replacements
to the roof, structure of the Property and the land adjoining the
Property (including the parking area), the cost of providing hot and
cold water, the cost of heating, the cost of window cleaning,
insurance costs (the types and amounts of insurance being at the
Landlord's sole discretion), service contracts with independent
contractor's engineers' wages and all wages, salaries, costs and
expenses incurred in connection with the maintenance and
operation of the Property, and all other wages, salaries, costs and
expenses paid or payable by the Landlord in connection with the
cleaning, operating, servicing and maintaining the Property and its
appurtenances or any part or parts thereof, plus a further sum of
fifteen percent (15%) of the above costs (excluding Building
depreciation and mortgage interest) as an administration charge.
(c) all other sums of money payable by the Tenant to the Landlord
hereunder;
provided that if and so often as the Tenant neglects or omits to pay taxes,
rates, charges and assessments as aforesaid, when the same become due and
payable, the Landlord shall be entitled to pay the same and collect the
same from the Tenant as rent hereby reserved and in arrears; provided,
however, that the Tenant shall have the right at its own expense to take
proceedings in the name of the Landlord to contest the legality of any such
taxes, rates, charges and assessments, the amount thereof and the time or
manner of payment sought to be enforced and in the event that the Tenant
takes any such proceedings in the name of the Landlord, the Tenant hereby
agrees to indemnify and save harmless the Landlord from all costs and
expenses whatsoever with respect to or arising from such proceedings.
In this section, "Proportionate Share" means the proportion that the floor
space of the Leased Premises bears to the aggregate of the floor space,
measured in square feet, of the premises located on the Property (including
the Leased Premises).
1.03 MAINTENANCE OF PREMISES - The Tenant shall at all times during the
Term of this Lease, at its sole cost and expense, well, properly and
sufficiently repair, maintain and keep the Leased Premises with the
appurtenances (including, without restricting the generality of the
foregoing, signs and inside and outside plate glass windows and doors,
including all overhead or exterior doors to be installed) in good and
substantial repair and shall repair, maintain and replace all fixtures and
things which at any time during the Term of this Lease are located or
erected in or upon the Lease Premises, such repair, maintenance and
replacement to be made by the Tenant when, where and so often as need shall
be, except for:
(a) repairs required to be made by the Landlord pursuant to the
provisions of Clause 4.01 hereof; and
(b) reasonable wear and tear;
Unless such excepted repairs are necessitated by the acts or omissions of
the Tenant, its agents, employees, invitees or licensees. The cost of any
repair or replacement required to be made of the Leased Premises as a
result of any act or omission of the Tenant, its employees, servants,
agents or licensees shall be paid in full by the Tenant. Provided further,
notwithstanding anything to the contrary herein contained, the Tenant shall
make all repairs and replacements to the Leased Premises made necessary by
reason of burglary or attempted burglary.
(c) It is understood that the Tenant will organize maintenance for the
grounds and maintenance to keep all sidewalks, roadways and parking areas
bordering on the Building free of ice and snow and the grass, if any,
fronting the Building, cut and properly cared for. All contracts for this
maintenance are to be approved by the Landlord in writing and the Tenant
will be charged back their proportionate share of these costs as Operating
Costs.
Any maintenance costs which are shared with other tenants must have prior
written approval from the Landlord.
1.04 LEASEHOLD IMPROVEMENTS - Prior to the commencement of any improvements
to the Leased Premises by the Tenant, plans for same shall be submitted by
the Tenant to the Landlord, which plans shall be subject to the Landlord's
written approval, not to be unreasonably withheld. No other leasehold
improvements or alterations shall be made to the Leased Premises by the
Tenant, except in accordance with the provisions of section 1.08 hereof.
The Landlord shall not be responsible for any costs of leasehold
improvements made to the Leased Premises during the Term. The Tenant shall
pay or cause to be paid and satisfied promptly, as same shall become due
and payable, all costs and claims for work and labour done and material
supplied and other work and expenses incurred or suffered in connection
with or arising out of any of the leasehold improvements made by the
Tenant.
The leasehold estate or interest of the Landlord in the Leased Premises
shall be free and clear of any and all liens for work done, labour
performed or material supplied or other work or services furnished in
connection with or arising out of any leasehold improvements or other
construction made by the Tenant. The Tenant shall do all things necessary
to prevent, to the extent it is able, the filing of any builders' liens
against the title to the Leased Premises.
1.05 CONDITION OF LEASED PREMISES - The Tenant shall keep the Leased
Premises and every part thereof in a clean and tidy condition and not to
permit waste paper, garbage, ashes or water or objectionable material to
accumulate thereon. The Tenant covenants that it has satisfied itself prior
to the execution of this Lease that its intended use of the Leased Premises
complies with all applicable zoning by-laws. The Tenant acknowledges having
fully inspected the Leased Premises and agrees to accept the Leased
Premises in their present state of condition and repairs.
1.06 INSPECTION AND REPAIR - The Tenant shall permit the Landlord at all
reasonable times, upon reasonable prior written notice, unless in the case
of an emergency, to enter the Leased Premises to inspect the condition
thereof and where such inspection reveals that the repairs are necessary to
make such repairs in a good and workmanlike manner within one (1) calendar
month from the date of delivery of notice from the Landlord requiring such
repair; provided that in the event that the Tenant does not effect the said
repairs within one month, or such longer period as may be reasonable in the
circumstances and agreed to by the Landlord and Tenant in writing within
one week of the delivery of notice requiring such repairs, the Landlord may
effect such repairs and charge the cost thereof to the Tenant as additional
rent.
1.07 OVERLOADING FLOORS - The Tenant shall not bring upon the Leased
Premises or any part thereof any machinery, equipment, article or thing
that by reason of its weight, size or use might damage the Leased Premises,
and not at any time to overload the floors of the Leased Premises, and if
any damage is caused to the Leased Premises by any machinery, equipment,
article or thing or by overloading or by any act, neglect or misuse on the
part of the Tenant or any of its servants, agents or employees or any
person having business with the Tenant, forthwith to repair or pay to the
Landlord the cost of making good such damage.
1.08 ALTERATIONS INVOLVING CHANGE - The Tenant shall not make any
alterations involving structural changes without securing the Landlord's
prior written consent, which consent may be withheld by the Landlord in its
sole discretion, it being understood that upon obtaining such consent,
plans for such structural changes must be submitted by the Tenant to the
Landlord before commencement of the work, which plans shall be subject to
the Landlord's written approval. It is understood between the parties that
the Tenant shall have the right to make any and all non-structural
alterations in and additions to the Leased Premises that may be deemed
necessary for the proper carrying on of its business or that of any
sub-tenant, provided however:
(a) that nothing shall be done to weaken the building;
(b) that the Tenant shall be responsible for any damage caused to
the Leased Premises thereby. It is further understood and agreed
between the parties hereto that the costs of any and all
renovations herein referred to shall be borne by the Tenant.
(c) that the Tenant shall indemnify and save harmless the
Landlord from and against all liens and from and against all
damage and injury to the Leased Premises or to the property of
others and against all liability of the Landlord to any person or
persons which may arise by reason of all such repairs,
alterations, improvements, removals or additions; and
(d) that prior to making any non-structural alterations or
additions to the Leased Premises, the Tenant shall submit
detailed plans to the Landlord and obtain the Landlord's written
approval, such approval not to be unreasonably withheld.
1.09 HEATING - The Tenant shall use the heating equipment supplied by the
Landlord or such other equipment installed by the Tenant, to heat the
Leased Premises at all reasonable times and shall maintain such heat at a
temperature to prevent damage of any nature or kind whatsoever to the
Leased Premises, and if damage does occur to the Leased Premises due to the
Tenants failure to heat, the tenant agrees to pay for the repairs arising
thereby, other than for damages caused as a result of a failure by the
utility to provide gas or electricity, which failure is beyond the control
of the Tenant, to the extent not covered by insurance which the Landlord is
required to maintain hereunder.
1.10 USE OF THE PREMISES -
The Tenant shall:
(a) Subject to the right of the Tenant to assign this lease or sublet
a portion of premises as herein provided, not use or occupy or suffer
or permit the Leased Premises or any part thereof, to be used or
occupied for any purpose other than for research, development and
pilot scale production of human pharmaceuticals or such other uses
which comply with municipal by-laws and are approved in writing by the
Landlord, acting reasonably;
(b) conduct its business upon the Leased Premises in such a manner as
to comply with the statutes, by-laws, rules and regulations as any
Federal, Municipal or other competent authority for the time being in
force and shall not do anything upon the Leased Premises in
contravention of any of them or which will be a nuisance; provided
that nothing contained in this paragraph 1.10(b) shall prohibit the
Tenant from opening for business on such Sundays and holidays as it
sees fit;
(c) at all times promptly comply with all rules, orders, regulations
and requirements of the Insurance Advisory Organization and any
Governmental or Municipal authority from time to time in effect for
the prevention of fires or the correction of hazardous conditions, to
the extent such hazardous condition was caused by the Tenant or for
whom the Tenant is in law responsible.
1.11 (a) ASSIGNMENT - The Tenant will not, and will not permit a subtenant
to, assign this Lease in whole or in part, or sublet all or a part of
the Leased Premises or any part thereof, without the prior written
consent of the Landlord in each case, which consent shall not be
unreasonably withheld. The consent by the Landlord to an assignment or
subletting will not constitute a waiver of its consent to a subsequent
assignment or subletting, or a waiver of the obligation of the
Guarantor as set forth in paragraph 1.1 l(b) herein. Any such
assignment, transfer or subleasing, or otherwise shall be subject to
all the terms and conditions of this lease, and the Tenant will remain
jointly and severally liable with any such transferee, whether such
joint and several responsibility be mentioned or not in any consent to
such transfer, assignment or sub-leasing. An assignment or sub-letting
of this lease or the Leased Premises if consented to by the Landlord
will be prepared by the Landlord's solicitors together with such
additional documents as reasonably required by the said solicitors and
all reasonable legal costs of its preparation will be paid by the
Tenant. If the Tenant or any sub-tenant or assignee of this Lease is a
corporation, then any sale or other disposition resulting in a
substantial sale of its assets or change in the shareholders
controlling such corporation at any time during the Term or any
renewal thereof shall be and be deemed to be an assignment of this
Lease and, accordingly, the prior written consent of the Landlord to
any such sale or disposition shall be required. A change in control of
shareholdings of the Tenant as between the existing shareholders upon
execution of the Lease, shall not be deemed an assignment of the lease
as aforesaid.
(b) GUARANTEE - In the event that the Tenant assigns this Lease or
sublets all or part of the Leased Premises during the initial term
with the consent of the Landlord, in consideration of the premises and
other valuable consideration, the receipt whereof and the sufficiency
whereof is hereby acknowledged by the Tenant, the Tenant as Guarantor
does hereby unconditionally guarantee all obligations of the then
Tenant under this Lease and accordingly covenants with the Tenant that
all the covenants, agreements and other obligations of the then Tenant
herein shall be fully performed, the guarantee being upon the
following terms:
(i) The liability of the Guarantor to the Landlord is for all
purposes as if the Guarantor was primary obligor herein, and not only
sureties for the obligations of the then Tenant, and the Landlord is
not obliged to resort to or exhaust any recourse which it has against
the then Tenant or any other person before being entitled to claim
against the Guarantor;
(ii) Any account settled or stated or any other settlement made
between the Tenant and the Landlord, and any determination made
pursuant to the provisions of this Lease which is expressed to be
binding upon the then Tenant is binding upon the Guarantor;
(iii) The Guarantor shall make payment to the Landlord of any amount
properly payable by the then Tenant to the Landlord but unpaid upon
demand, and shall upon demand perform any other obligations under this
Lease which the then Tenant has failed to perform, and any demand made
by the Landlord upon the Guarantor is deemed to have been effectually
made if notice thereof is sent as provided in paragraph 4.07;
(iv) No assignment of the Lease, sublease or any other dealings
therewith by the then Tenant, whether with or without the consent of
the Landlord, affects the guarantee;
(v) Nothing except the performance in full of all the obligations
of the then Tenant under this Lease throughout the Term shall, except
as provided in paragraph 1.11(c), discharge the Guarantor of this
guarantee;
(vi) If during the Term the then Tenant makes an assignment for the
general benefit of its creditors, or an order is made for the winding
up of the then Tenant, or a receiving order in bankruptcy is made by
or against the Landlord, and the assignee, liquidator or trustee
surrenders possession of the Premises or any part of them or disclaims
the lease, the Guarantor shall forthwith upon the demand of the
Landlord at the Guarantor's expense, accept from the Tenant a lease of
the Premises (the "New Lease") for a period equal in duration to the
residue of the
term remaining unexpired from the date of surrender or disclaimer at
the same Minimum Rent and Additional Rent and with the same covenants
and provisos as are reserved and contained in the Lease.
(c) This guarantee and all the liabilities and obligations of the
Guarantor hereunder shall forthwith cease and terminate upon the
completion of the Initial or Renewal Term.
1.12 NUISANCE - The Tenant shall not do or omit to do or permit to be done
or omitted anything upon or in respect of the Leased Premises the doing or
omission or which (as the case may be) shall be or result in a nuisance.
1.13 INDEMNITY - The Tenant shall keep the Landlord indemnified against all
claims, demands, costs, counsel fees, expenses and liabilities whatsoever
by any person, firm or firms, corporation or corporations and whether in
respect of damage to person or property arising out of or occasioned by the
maintenance, use or occupancy of the Leased Premises, or the subletting or
assignment of the same or any part thereof, except where same is caused by
the failure of the Landlord to repair pursuant to paragraph 2.02 hereof or
by the willful acts or negligence of the Landlord, and except to the extent
covered by insurance which the Landlord is required to maintain under this
Lease.
1.14 PROSPECTIVE PURCHASERS - The Tenant shall permit the Landlord to show
the Leased Premises to prospective purchasers at reasonable times, upon 24
hours prior notice.
1.15 INTEREST ON OVERDUE AMOUNTS - On all rents, payments and charges which
the Tenant herein covenants to pay or which the Landlord shall pay on
behalf of the Tenant, the Landlord shall be entitled to receive interest at
the rate of prime plus three (3) percentage points per annum from the date
all such amounts are due. Such interest charges shall be payable by the
Tenant to the Landlord within ten (10) days of receipt of demand from the
Landlord and shall be treated as Additional Rent due by the Tenant
hereunder; provided however that the payment of interest by the Tenant
shall not operate or be deemed to operate to waive or excuse breach of any
covenant by the Tenant.
2.00 LANDLORD'S COVENANTS
The Landlord hereby covenants with the Tenant as follows:
2.01 QUIET ENJOYMENT - The Tenant, by paying the rent hereby reserved and
observing and performing the several covenants and stipulations herein on
its part contained, shall peacefully hold and enjoy the Leased Premises
during the Term without any interruption by the Landlord or by any person
rightfully claiming under or in trust for it. The Tenant shall have
uninhibited ingress and egress to the docking facilities of the Leased
Premises subject only to any necessary repairs to the roadway and asphalt
services as completed from time to time by the Landlord, which repairs, if
necessary,
shall be completed by the Landlord as expeditiously as possible, and after
reasonable prior written notice to the Tenant.
2.02 TRADE FIXTURES OF TENANT - All trade fixtures installed by the Tenant and
or its directly related predecessor companies on the Leased Premises shall
remain the property of the Tenant at its sole risk during the Term hereof.
At the termination of the Term by the effluxion of time, the Tenant shall
remove the same; provided however that where such removal is undertaken,
the Tenant shall make good any damage occasioned by such removal, thereby
returning the Leased Premises to their original state as at the time of the
commencement of the original term (January 1993), reasonable wear and tear
excepted.
2.03 PARKING - The Tenant shall be entitled to the use of 24 energized parking
stalls at no additional cost located in or near the front of the Leased
Premises and such additional parking spaces along side the Leased Premises
as the Landlord in its sole discretion shall determine. If such additional
parking spaces shall be provided, the use thereof shall be such as will not
interfere with loading at the rear of the premises.
2.04 LANDLORD'S OBLIGATIONS - The Landlord in the same manner and to the same
extent as prudent and reputable owner and operator of a similar property
shall:
(a) keep or cause the Property to be kept in good repair and in a clean,
orderly and safe condition;
(b) keep or cause to be kept in good repair the base building equipment
installed by the Landlord to heat, ventilate and air-condition the
Property and for the distribution of utilities (any additional
equipment installed by or on behalf of the Tenant, for the Tenant's
sole benefit is the responsibility of the Tenant to maintain); and
(c) effect as expeditiously as possible all repairs which it is required
to make.
2.05 ACCESS - The Tenant shall be permitted to access the Leased Premises 24
hours per day, 7 days per week throughout the Term, as same may be renewed
or extended, and the Landlord shall provide, upon request by the Tenant and
at the Tenant's sole cost, after hours lighting, heating, ventilation and
air conditioning.
3.00 INSURANCE
3.01 TENANT'S INSURANCE
(a) The Tenant shall take out and maintain the following insurance at the
Tenant's sole expense, in such form and with such companies as the
Landlord may reasonably approve:
(i) comprehensive general liability insurance against claims for
bodily injury, including death, property damage or loss arising out of
the use and/or occupation of the Leased Premises, or the Tenant's
business on or about the Leased Premises; such insurance shall
identify the Landlord as an additional insured so as to indemnify and
protect both the Tenant and the Landlord and shall contain a "cross
liability" or "severability of interests" clause so that the Landlord
and the Tenant may be insured in the same manner and to the same
extent as if individual policies had been issued to each, and shall be
for an amount of not less than Two Million ($2,000,000.00) Dollars in
respect of any one accident and not less than Two Hundred Thousand
($200,000.00) Dollars in respect of property damage for any one
accident;
(ii) all risks insurance upon its merchandise, stock-in-trade,
furnitures, fixtures and improvements and upon all other property in
the Leased Premises owned by the Tenant or for which the Tenant is
legally liable, and insurance upon all glass and plate glass in the
Leased Premises against breakage and damage from any cause, all in an
amount equal to the full replacement value thereof, which amount in
the event of a dispute shall be determined by the decision of the
Landlord, acting reasonably;
(iii) boiler and machinery insurance on such boilers and pressure
vessels as may be installed by, or under the exclusive control of, the
Tenant in the Leased Premises; and
(b) The policies of insurance referred to above shall contain the
following:
(i) provisions such that the Landlord is protected notwithstanding any
act, neglect, or misrepresentation of the Tenant which might otherwise
result in the avoidance of a claim under such policies and such that
such policies shall not be affected or invalidated by any act,
omission or negligence of any third party which is not within the
knowledge or control of the insured(s);
(ii) provisions that such policies and the coverage evidenced thereby
shall be primary and non-contributing with respect to any policies
carried by the Landlord and that any coverage carried by the Landlord
shall be excess coverage;
(iii) all property and boiler insurance referred to above shall
provide for waiver of the insurer's rights of subrogation as against
the Landlord;
(iv) policies of insurance shall not be cancelled without the insurer
providing the Landlord thirty (30) days written notice stating when
such cancellation shall be effective.
3.02 LANDLORD'S INSURANCE - the Landlord shall take out or cause to be
taken out and keep or cause to be kept in full force and effect:
(a) standard fire, extended coverage, riot, vandalism, and malicious
mischief insurance, on the buildings and improvements located on the
Property, on a replacement cost basis, in an amount such as would be
carried by a prudent owner, subject to such deductions and exceptions
as the Landlord may determine; such insurance shall be in a form or
forms normally in use from time to time for buildings and improvements
of a similar nature similarly situated, including, should the Landlord
so elect, insurance to cover any loss of rental income which may be
sustained by the Landlord;
(b) boiler and machinery insurance on such boilers and pressure
vessels as may be installed by, or under the exclusive control of, the
Landlord on the Property (other than such boilers and pressure
vessels to be insured by the Tenant hereunder);
The Landlord's and Tenant's insurance policies shall contain a waiver by
the insurer of any rights of subrogation or indemnity or any other claim
over which such insurer might otherwise be entitled against the
Landlord/Tenant and for those for whom in law they are responsible.
Provided that nothing herein shall prevent the Landlord from providing or
maintaining such broader coverage as the Landlord may determine. The Tenant
shall pay to the Landlord as Additional Rent the Tenant's Proportionate
Share of insurance premiums paid by the Landlord. The Landlord's
Proportionate Share shall be calculated on the basis set out under Section
1.02 of this Lease provided that if the Leased Premises are insured
separately from any other premises located on the Property the Tenant shall
pay to the Landlord as Additional Rent the full insurance premiums paid by
the Landlord in respect of the Leased Premises.
3.03 INCREASE IN INSURANCE RATE - the Tenant will not do or permit to be
done upon the Leased Premises anything which shall result in a nuisance or
which shall cause the rate of insurance upon the Leased Premises to be
increased, and if the insurance rate shall be increased as aforesaid, the
Tenant shall pay to the Landlord the amount by which the insurance premium
shall be so increased. If notice of cancellation shall be given respecting
any insurance policy or if any insurance policy upon the Leased Premises or
any part thereof shall be cancelled or refused to be renewed by the insurer
by reason of the Tenant's use other than the permitted use provided for
herein or occupation of the Leased Premises or any part thereof, the Tenant
shall remedy or rectify such use or occupation upon being requested to do
so in writing by the Landlord, and if the Tenant shall fail to do so within
fifteen (15) days of receipt of such writing, the Landlord, at its option,
may terminate this lease forthwith by leaving upon the Leased Premises
notice in writing of its intention to do so, and thereupon rent and any
other payments for which the Tenant is liable under the Lease shall be
apportioned and paid in frill to the date of such termination of the Lease
and the Tenant shall immediately deliver up possession of the Leased
Premises to the Landlord.
4.00 PROVISOES
Provided always, and it is hereby agreed between the parties as follows:
4.01 DESTRUCTION OR DAMAGE OF LEASED PREMISES - If and whenever during the
Term of this Lease the Leased Premises shall be destroyed or damaged by
fire, lightning or tempest or any other perils, then and in every such
event:
(a) if the damage or destruction is such that the Leased Premises are
rendered wholly unfit for occupancy, or it is impossible or unsafe to
use and occupy them, and if in either event the damage cannot be
repaired with reasonable diligence within 120 days from the happening
of such damage, then either party may within thirty (30) days of the
happening of such damage or destruction terminate this Lease by giving
to the other notice in writing of such termination in which event this
Lease shall cease and be at an end as of the date of such damage and
the rent and all other payments for which the Tenant is liable under
the terms of this Lease shall be apportioned and paid in full to the
date of such damage. If neither the Landlord nor the Tenant so
terminates this Lease, then the Landlord shall repair the building
with all reasonable speed and the rent hereby reserved shall abate
from the date of the happening of the damage until the damage shall be
made good and the Tenant can again use and occupy the Leased Premises;
(b) if the damage be such as the Leased Premises are wholly unfit for
occupancy, or if it is impossible or unsafe to use or occupy them, but
in either event the damage can be repaired with reasonable diligence
within 90 days from the happening of such damage, then the rent hereby
reserved shall abate from the date of the happening of such damage
until the damage shall be made good and the Tenant can again use and
occupy the Leased Premises and the Landlord shall repair the damage
with all reasonable speed;
(c) if the damage can be made good as aforesaid within 90 days of the
happening of such damage and the damage is such that the Leased
Premises are capable of being partially used for the purposes for
which they are hereby demised, then until such damage has been
repaired the rent shall be reduced by the fraction that the part of
the Leased Premises which is rendered unfit for occupancy is of the
whole of the Leased Premises and the Landlord shall repair the damage
with all reasonable speed.
(d) In the event that the Landlord and Tenant shall be unable to agree
as to the state of fitness of the Leased Premises and its condition,
the question in dispute shall be referred to arbitration in accordance
with Section 4.23 hereof but the certificate of an Architect selected
by the Landlord, duly qualified to practice as such in the Province of
Manitoba, shall bind the parties as to the length of time reasonably
required to make any necessary repairs.
4.02 EXPROPRIATION - If the whole or any part of the Lease Premises shall
be taken by any public authority under the power of eminent domain, the
Term hereby granted shall cease from the day possession shall be taken for
such public purposes insofar as the premises so taken comprise part of the
Leased Premises; and the Tenant shall be liable
only for rent in respect of the Leased Premises or part thereof so taken to
the day of the taking, and if less than the whole be so taken, the Landlord
or Tenant may at its option cancel and terminate this agreement with
respect to the remainder of the Leased Premises, but notice of such
cancellation must be given to the other within thirty (30) days after
notice of such taking has been received by the Landlord; but if the
Landlord or Tenant shall not elect to cancel the said Lease, the Tenant
shall remain in possession of the remainder of the Leased Premises and the
rent thereof shall be reduced in proportion that the space remaining
possessed of the Landlord bears to the total ground floor space of the
Leased Premises at the date of the commencement of this Lease. All
compensation or damages awarded in respect of such taking of the Leased
Premises and any diminution in value of the remainder thereof shall be the
property of the Landlord but the Tenant shall be entitled to receive such
compensation or damages as it may be able to establish against such public
authority in respect to loss of its business, depreciation of and cost of
removal of stock and fixtures.
4.03 HOLDING OVER - If the Tenant shall remain in possession of the Leased
Premises after termination of the Term hereby granted, or any renewal
thereof as herein provided, without other special agreement, a tenancy from
year to year shall not be created by implication of law, but the Tenant
shall be deemed to be a monthly tenant only at a rent payable monthly in
advance at a rate of One Hundred and Fifty (150%) percent of the annual
rent payable immediately prior to such termination, and otherwise upon and
to the same terms and conditions as are herein contained, except provisions
for renewal, and nothing, including acceptance of any rent by the Landlord,
operates to extend any tenancy except a specific agreement in writing
between the Landlord and Tenant.
4.04 RE-ENTRY - If the Tenant shall default in making payment of the rents
hereby reserved or any part thereof, when due and fails to pay same within
five (5) days after notice to do so is provided by the Landlord or if the
Tenant shall default in performance of observance of any of its other
covenants herein contained, the Landlord, after ten (10) days written
notice to the Tenant of such default and any default not being cured within
the said period or such longer period as may reasonably be required in the
circumstances (such period to be agreed upon in writing by the Landlord
within the 10 days), may at its option at any time thereafter re-enter upon
the Leased Premises or any part thereof in the name of the whole, and
thereupon this Lease shall absolutely determine but without prejudice to
the right of action of the Landlord in respect of any breach of the
Tenant's covenants herein contained.
4.05 WAIVER - No condoning, excusing or overlooking by the Landlord of any
default, breach or non-observance by the Tenant at any time or times in
respect of any covenant, proviso or condition herein contained shall
operate as a waiver of the Landlord's rights hereunder in respect of any
covenant, proviso or condition hereunder in respect of any continuing or
subsequent default, breach or non-observance, or so as to defeat or affect
in any way the right of the Landlord herein in respect of any such
continuing or subsequent default or breach, and no waiver shall be inferred
from or implied by anything done or omitted by the Landlord save only
express waiver in writing. All rights and remedies of the Landlord in this
Lease contained shall be cumulative and not alternative.
4.06 REMEDIES OF LANDLORD AS IN THE CASE OF DEFAULT OF RENT - The Landlord
shall have (in addition to any other right or remedy of the Landlord) the
same rights and remedies in the event of default by the Tenant in payment
of any amount payable by the Tenant hereunder, as the Landlord would have
in the case of default in payment of rent.
4.07 NOTICE - Any notice required or contemplated by this Lease shall be
sufficiently given if mailed by prepaid registered mail addressed to the
proper party as follows:
The Landlord at: 305 Milner Ave., Suite 309
Toronto, Ontario
M1B 3V4
The Tenant at: 147 Hamelin Street
Winnipeg, Manitoba
R3T 3Z1
The date of the giving of any such notice shall be deemed conclusively to
be two (2) days following the date upon which it was mailed. The above
address may be changed by either party at any time hereafter by giving
fifteen (15) days written notice to the other party.
4.08 UNAVOIDABLE DELAYS - In the event that either the Landlord or the Tenant
shall be delayed, hindered or prevented from the performance of any act or
covenant required hereunder, by reasons of any Unavoidable Delay (as herein
defined) not the fault of the party delayed, then performance or such act
or covenant shall be excused for the period during which such performance
is rendered impossible, and the time for the performance thereof shall be
extended accordingly, but this shall not operate to excuse the Tenant from
the prompt payment of rent or any other payments required under this Lease.
"Unavoidable Delay" means a delay caused by fire, strike or other casualty
or contingency beyond the reasonable control of a party who is, by reason
thereof, delayed in the performance of such party's covenants and
obligations under this Lease in circumstances where it is not within the
reasonable control of such party to avoid such delay (but does not include
any insolvency, lack of funds or other financial cause of delay).
4.09 EXECUTION BY CREDITOR OF TENANT/BANKRUPTCY OF TENANT - The Tenant
covenants and agrees that if at any time during the Term, any of the goods
and chattels of the Tenant on the Leased Premises are seized or taken in
execution or attachment by any creditor of the Tenant, or if the Tenant
shall make any assignment for the benefit or creditors or any bulk sale or
becomes bankrupt or insolvent, it shall take the benefit of any Act now or
hereafter in force for bankrupt or insolvent debtors, or if any order shall
be made for the winding up of the Tenant, or if the Leased Premises shall
be used for any other purpose than as permitted under the terms of this
Lease, or if the Tenant shall without the written consent of the Landlord
abandon the Leased Premises, then and in every such case the then current
month's Minimum Rent and Additional Rent and the
next ensuring three (3) months Minimum Rent and Additional Rent shall
immediately become due and be paid and the Landlord may re-enter and take
possession of the Leased Premises as though the Tenant or the servants of
the Tenant or any other occupant of the Leased Premises were holding over
after the expiration of the said term, and the said term shall, at the
option of the Landlord forthwith become forfeited and determined, and in
everyone of the cases above such accelerated rent shall be recoverable by
the Landlord in the same manner as the rent hereby reserved and as if the
rent were in arrears and the said option shall be deemed to have been
exercised if the Landlord or its agents shall give notice to such effect to
the Tenant.
4.10 NON-LIABILITY OF LANDLORD - Provided the Landlord and those for whom
in law the Landlord is liable are not negligent, the Landlord shall not be
liable nor responsible in any way for any personal or consequential injury
of any nature whatsoever that may be suffered or sustained by the Tenant or
any employee, agent or customer of the Tenant or any other person who may
be upon the Leased Premises, or for any loss of or damage or injury to any
property belonging to the Tenant or its employees or to any person while
such property is on the Leased Premises and in particular (but without
limiting the generality of the foregoing) the Landlord shall not be liable
for any damage or damages of any nature whatsoever to any such property
caused by the failure, by reason of breakdown or other cause, to supply
adequate drainage, snow or ice removal or by reason of the interruption of
any public utility or service or in the event of steam, water, rain or snow
which may leak into, issue or flow from any part of the said building, or
from the water, steam, gas, sprinkler or drainage pipes of plumbing works
of the same or from any other place or quarter or for any damage caused by
anything done or omitted by any tenant, but the Tenant shall use all
reasonable diligence to remedy such condition, failure or interruption of
service when not directly or indirectly attributable to the Tenant, after
notice of same, when it is within its power and obligation to do so. Nor
shall the Tenant be entitled to any abatement of rent in respect of any
such condition, failure or interruption of service as aforesaid.
4.11 INSPECTION OF PREMISES - The Tenant shall examine the Leased Premises
before taking possession hereunder and such taking of possession shall be
conclusive evidence against the Tenant that at the time thereof the Leased
Premises were in good order and satisfactory condition except for defects
not apparent on inspection; and that the Tenant shall make no claim for nor
hold the Landlord liable for or bound by any promise, representation or
undertaking with respect to any alteration, remodelling or redecorating of
or installation of equipment or fixtures in the Leased Premises, except
such, if any, as is expressly set forth in this Lease; and that in case of
any such express provision, unless same provides for completion of
alteration, remodelling or decorating, or such installation after the
Tenant's taking of possession hereunder, such taking of possession shall
constitute conclusive evidence as against the Tenant that said alteration,
remodelling, or decorating, or installation of equipment or fixtures has
been satisfactorily completed.
4.12 SIGNS - The Tenant may, at its sole cost and expense, manufacture,
maintain and install an exterior facia sign on the Leased Premises, subject
to the Landlord's approval
as to size, location and suspension of said sign, which said approval shall
not be unreasonably or arbitrarily withheld, provided that the said sign
complies with all of the regulations and/or by-laws of the City of Winnipeg
or any other governing authority in force at the time of this demise, or
which may come into force, and the Tenant hereby agrees, firstly: to
indemnify and save harmless the Landlord from any and all causes of action
which might arise from the erection and maintenance of such sign, and
secondly: to pay to the Landlord upon written demand for same any
Encroachment License fee that may be assessed against the Landlord by the
City of Winnipeg or any other governing authority in force at the same time
of this demise, in connection with the erection and maintenance of said
sign. The Tenant shall, with respect to any signs painted on the Leased
Premises, repaint or remove any such signage upon the termination of the
Lease at its own expense. The Landlord will co-operate with the Tenant in
obtaining any necessary consents from the said City. The Tenant shall
repair any and all damage to the Leased Premises resulting from removal of
the signage.
4.13 PLACE FOR PAYMENTS - All payments required to be made by the Tenant
herein shall be made to the Landlord at the Landlord's office at 305 Milner
Ave., Suite 309 Toronto, ON, M1B 3V4 or to such agent or agents of the
Landlord or at such other place as the Landlord shall hereafter from time
to time direct in writing.
4.14 "FOR SALE" SIGN - The Landlord may place upon the Leased Premises, a
notice of reasonable dimensions and reasonably placed so as to not
interfere with the Tenant's business, stating that the Leased Premises are
for sale or, during the last six (6) months of the Term, to let, which
notice the Tenant shall not remove or permit to be removed.
4.15 SUBORDINATION OF LEASE - Subject to the provisoes hereinafter
contained, upon the request of the Landlord, the Tenant shall subordinate
its rights hereunder to the charge of any mortgage or mortgages or the
charges resulting from any other method of financing or refinancing,
declaration of trust, debenture issue or any such method of financing or
refinancing, now or hereafter in force against the land and building, and
to all advances made or hereafter to be made upon the security thereof.
Notwithstanding the foregoing, the Landlord shall not at any time encumber
the title to the Leased Premises and the Tenant shall not be required to
subordinate its rights hereunder as aforesaid without the Landlord first
obtaining a non-disturbance agreement from the encumbrancer, mortgagee,
chargee or trustee, as the case may be, in favour of the Tenant whereby the
encumbrancer, mortgagee, chargee or trustee agrees that so long as the
Tenant is not in default under the terms of this Lease, the Tenant shall be
entitled to remain undisturbed in its possession of the Leased Premises and
to enjoy peaceful possession thereof pursuant to the terms of this Lease
notwithstanding the exercise of any or all rights of any such encumbrancer,
mortgagee, chargee or trustee, as the case may be, under their security
documents.
4.16 ACKNOWLEDGMENT BY TENANT - The Tenant or the Landlord shall promptly,
whenever requested by the other from time to time, execute and deliver to
the Landlord (and if required by the other, to any mortgagee, including any
trustee under Deed of Trust and mortgage designated by the Landlord) a
certificate in writing as to the then status of
this Lease, including as to whether it is in full force and effect, is
modified or unmodified, confirming the rental payable hereunder and the
state of the accounts between the Landlord and the Tenant, the existence or
nonexistence of default or any other reasonable matters pertaining to this
Lease as to which the other shall request a certificate.
4.17 MODIFICATION OF LEASE - This Lease may not be modified or amended
excepting only by an instrument in writing signed by the parties hereto.
4.18 RENEWAL - Provided that the Tenant has not been and is not currently
in default of any of its obligations herein contained for which it has
received notice and failed to remedy within the applicable cure period and
provided this Lease shall not have terminated for any cause whatsoever, the
Tenant shall have the right to renew this Lease for a further period of one
(1) year as and from the expiration of the Term, on the same terms and
conditions as herein contained subject, however, to the following:
(a) The Tenant shall notify the Landlord in writing at least 180 days
prior to the expiration of the Term that it elects to renew the Lease
for a further one year period.
(b) The Minimum Rent payable for the Renewal Term shall be determined
by mutual agreement by no later than 90 days prior to the expiration
of the current Term, but in any event shall not be less than the
minimum rental payable during the current Term.
(c) In the event that the parties are unable to agree as to the
Minimum Rent payable for the Renewal Term at least 90 days prior to
the expiration of the current Term, the Minimum Rent payable shall be
determined by arbitration pursuant to clause 4.23 hereof.
4.19 "GST" - The Tenant will pay to the Landlord (acting as agent for the
taxing authority if applicable) or directly to the taxing authority (if
required by the applicable legislation) the full amount of all goods and
services taxes, sales taxes, value added taxes, multi-stage taxes, business
transfer taxes, and other taxes imposed on the Tenant in respect of the
Rent and any other consideration payable by the Tenant under this Lease, or
in respect of the rental of premises by the Tenant under this Lease
(collectively and individually "GST"). GST is payable by the Tenant whether
it is characterized as a good and services tax, sales tax, value-added tax,
multi-stage tax, business transfer tax or otherwise. GST so payable by the
Tenant will be: (i) calculated and paid in accordance with the applicable
legislation; (ii) paid by the Tenant at the same time as the amounts to
which the GST apply is payable to the Landlord under the terms of this
Lease (or upon demand at such other time or times as the Landlord from time
to time determines); and (iii) considered not to be Rent, despite anything
else in this Lease, but the Landlord will have all of the same remedies for
and rights of recovery with respect to such amounts as it has for
non-payment of Rent under this Lease or at law and any other consideration
of any nature or kind.
4.20 CAVEATS - Subject to the provisions of clause 4.15 herein, the Tenant
agrees with the Landlord not to file a caveat under The Real Property Act
(Manitoba) against the land in respect of this lease unless it be in such
form as the Landlord shall have approved in writing, which approval shall
not be unreasonably withheld.
4.21 PARTIAL INVALIDITY - If a term, covenant or condition of this Lease or
the application thereof to any person or circumstances is held to any
extent to be invalid or unenforceable, the remainder of this Lease or the
application of the said term, covenant or condition to persons or
circumstances other than those to which or to whom it is held invalid or
unenforceable will not be effected.
4.22 NET LEASE - The Lease shall be deemed and construed to be a "net
lease" and, except as herein otherwise expressly provided, the Landlord
shall receive all Minimum Rent and Additional Rent and all other payments
hereunder to be made by the Tenant free from any charges, assessments,
impositions, expenses or deductions of any and every kind or nature
whatsoever except as otherwise herein expressly provided.
4.23 ARBITRATION - If at any time a dispute, difference of question shall
arise among the parties hereby concerning any question relating to this
Lease, the right or liabilities of any of the parties hereof, or any other
dispute involving either the interpretation of this Lease or anything
contained herein, then any such dispute, difference or question shall be
decided by arbitration, such arbitration to be initiated by one (1) party
serving written notice to the other party of his desire to have the matter
arbitrated. The matter requiring arbitration shall be referred to a single
arbitrator if one can be mutually agreed upon by the parties within seven
(7) days of the notice of desire for arbitration being served. In the event
that the parties cannot agree upon a single arbitrator, then each party
shall name one arbitrator within a further period of seven (7) days
therefrom and the arbitrators so named shall appoint one more arbitrator.
If one of the parties refuses or neglects to appoint an arbitrator within
the period herein set out, then the arbitrator appointed by the other party
together with the additional arbitrator appointed by the arbitrator so
named as above provided, shall sit and hear the arbitration. In the event
that the arbitrators named by the parties to the arbitration cannot agree
upon the additional arbitrator as above provided within seven (7) days of
the date of appointment of the last of them, then after the expiry of such
seven (7) day period, any one of the parties may apply to a Judge of the
Court of Queen's Bench of Manitoba or its successor to appoint the
additional arbitrator to sit and hear the arbitration. The decision arrived
at by a single arbitrator or a majority of the arbitrators, as the case may
be, shall be binding upon all the parties and no appeal shall lie
therefrom. The provisions of this section shall be deemed to be a
submission to arbitration within the provisions of The Arbitration Act
(Manitoba) and any statutory modification or re-enactment thereof.
4.24 HEADINGS AND CAPTIONS - The headings herein are inserted for the
convenience of reference only and are not to be considered when
interpreting this Lease.
4.25 TIME - Time shall be of the essence hereof.
4.26 LEASE CONTAINS ENTIRE AGREEMENT - This Lease contains the entire agreement
between the parties and it is admitted, so that they shall be forever
estopped from asserting to the contrary, that there is no condition
precedent or warranty of any nature whatsoever and no collateral condition
or covenant whatsoever to the within Lease.
4.27 ENUREMENT - It is further agreed and declared that this lease shall extend
to, be binding upon and enure to the benefit of the parties hereto, and
their respective successors and assigns.
4.28 GOVERNING LAW - This Lease will be interpreted under and is governed by the
laws of the Province of Manitoba.
IN WITNESS WHEREOF the parties hereto executed this Agreement as of the day and
year first above written.
ALMAD INVESTMENTS LIMITED
)
)
) Per: /s/
) ----------------------------------
)
)
)
)
) Per:
) ----------------------------------
I/We have the authority to bind the
corporation.
VIVENTIA BIOTECH INC.
)
)
) Per: /s/ Michael A. Byrne
) ----------------------------------
) MICHAEL A. BYRNE
) CHIEF FINANCIAL OFFICER
)
)
)
) Per: /s/
) ----------------------------------
I/We have the authority to bind the
corporation.
LEASE AMENDING AGREEMENT
THIS AGREEMENT made as of the 26th day of June, 2003
BETWEEN:
131-149 HAMELIN STREET LEASEHOLDS LIMITED
(the "Landlord")
OF THE FIRST PART,
AND:
VIVENTIA BIOTECH INC.
(the "Tenant")
OF THE SECOND PART,
WHEREAS:
A. By a Lease dated the 31st day of March, 2000 between Almad Investments
Limited, the Landlord and Viventia Biotech Inc., the Tenant, the Landlord leased
to the Tenant the premises at 131-147 Hamelin Street, Winnipeg, Manitoba, namely
136-147 Hamelin Street comprising of Twenty One Thousand Five Hundred (21,500)
square feet of Rentable Area, and more particularly described in the Lease (the
"LEASED PREMISES");
B. And whereas Almad Investments Limited transferred legal title to the property
to 131-149 Hamelin Holdings Limited;
C. And whereas 131-149 Hamelin Holdings Limited entered into a building lease
with 131-149 Hamelin Street Leaseholds Limited pursuant to which all existing
leases were assigned to 131-149 Hamelin Street Leaseholds Limited, as Landlord;
D. And Whereas 131-149 Hamelin Street Leaseholds Limited has agreed to enter
into this Lease Amending Agreement on the terms and conditions set forth herein.
E. And Whereas the Tenant has been in overhold from April 1, 2003 through to
June 30, 2003 on the same terms and conditions as contained in the Lease dated
the 31st day of March, 2000.
NOW THEREFORE in consideration of the mutual covenants contained herein and in
the Lease, the parties hereby agree as follows:
1. The execution of this Agreement shall constitute an extension of the Lease
between the parties hereto and extend the termination date of the Lease to
June 30, 2008. The term July 1, 2003 through June 30, 2008 shall be
referred to as the renewal Term (the "Renewal Term"). This Renewal Term
shall be governed on all the terms and conditions contained in the Lease,
except as follows:
(a) Premises shall consist of approximately Twenty Seven Thousand Five
Hundred (27,500) square feet of Rentable Area, as shown on the attached
floor plan. Schedule "A". For further clarification the Premises will
consist of
approximately 21,500 square feet of Rentable Area known as 147 Hamelin
Street and approximately 6,000 square feet of Rentable Area known as 133
Hamelin Street.
(b) The annual Minimum Rent for the Renewal Term shall be based as follows:
On the Premises known as 147 Hamelin Street:
Years 1-3: $ 6.50 per square foot of Rentable Area per annum
Years 4-5: $ 7.00 per square foot of Rentable Area per annum
On the Premises known as 133 Hamelin Street:
Years 1-2: $ 4.50 per square foot of Rentable Area per annum
Year 3: $ 5.00 per square foot of Rentable Area per annum
Years 4-5: $ 5.50 per square foot of Rentable Area per annum
Payable in equal monthly installments plus any additional charges, without
deductions, in advance on the first day of each month during the Renewal
Term.
(c) There shall be no tenant inducements or special conditions under the
Renewal Term, including but not limited to free rent and tenant
improvements, unless otherwise stated herein.
(d) The Landlord shall grant the Tenant the months of July 2003 and August
2003 Minimum Rent free on 133 Hamelin Street.
(e) The following is added to Article 1.01 (b) of the Lease. "It is
understood and agreed by the Tenant and the Landlord that the Tenant is
currently paying gas and water directly to the utilities and that the
Landlord is billing the Tenant for the entire Hydro usage for the Building.
The Landlord will issue quarterly credits to the Tenant for any Hydro usage
consumed by 131 Hamelin Street. The usage for 131 Hamelin Street is
determined by the reading of two electrical panels and an electricians
estimate of a third electrical panel. All three panels provide electrical
power to 131 Hamelin Street."
(f) The following is added to Article 1.02 (b) of the Lease. "It is agreed
that the consumption of utilities by the Tenant is in excess of normal
usage and therefore the Tenant will pay for utilities based on consumption
and not on Proportionate Share."
(g) The Premises known as 133 Hamelin Street are to be taken in "as is"
condition. It is acknowledge that the Tenant in 131 Hamelin Street has use
of 100 amps of the 200 amps currently available in 133 Hamelin Street.
2. This Agreement shall be attached to the Lease and shall become a part
thereof as if originally included therein.
3. The Landlord and the Tenant covenant and agree with each other that, save
and except as specifically provided herein, this Lease Amending Agreement
shall be on the same terms, conditions, covenants, agreements, obligations
and provisos contained in the Lease insofar as the same shall be deemed to
be incorporated herein and shall be binding upon the
Landlord and the Tenant as though the "Landlord" and "Tenant" referred to
in the Lease were the Landlord and the Tenant respectively herein, and that
the Landlord and the Tenant will respectively duly observe and perform the
same. If there shall be any conflict between the terms of the Lease and the
terms hereof, the terms hereof shall apply.
4. The parties hereto covenant and agree that they have good right, full power
and authority to enter into this Agreement in the manner as aforesaid.
IN WITNESS WHEREOF the parties hereto executed this Agreement as of the day and
year first above written.
SIGNED, SEALED AND DELIVERED ) 131-149 HAMELIN STREET
) LEASEHOLDS LIMITED
in the presence of: ) Landlord
)
/s/ B. McCarthy )
)Per: /s/ Aubrey Dan
) -------------------------------
) AUBREY DAN, PRESIDENT
) I/We have the authority to bind
the corporation.
SIGNED, SEALED AND DELIVERED ) VIVENTIA BIOTECH INC.
)
in the presence of: ) Tenant
)
)
)Per: /s/ Michael A. Byrne
) -------------------------------
) MICHAEL A. BYRNE
) CHIEF FINANCIAL OFFICER
) I/We have the authority to bind
the corporation.
SCHEDULE "A"
131-149 HAMELIN STREET
BUILDING PLAN
(FLOOR PLAN)
LEASE AMENDING AGREEMENT
THIS AGREEMENT made as of the 26th day of January, 2004
BETWEEN:
131-149 HAMELIN STREET LEASEHOLDS LIMITED
(the "Landlord")
OF THE FIRST PART,
AND:
VIVENTIA BIOTECH INC. (the "Tenant")
OF THE SECOND PART,
WHEREAS:
A. By a Lease dated the 31st day of March, 2000 between Almad Investments
Limited, the Landlord and Viventia Biotech Inc., the Tenant, the Landlord leased
to the Tenant the premises at 131-147 Hamelin Street, Winnipeg, Manitoba, namely
136-147 Hamelin Street comprising of Twenty One Thousand Five Hundred (21,500)
square feet of Rentable Area, and more particularly described in the Lease (the
"LEASED PREMISES");
B. And whereas Almad Investments Limited transferred legal title to the property
to 131-149 Hamelin Holdings Limited;
C. And whereas 131-149 Hamelin Holdings Limited entered into a building lease
with 131-149 Hamelin Street Leaseholds Limited pursuant to which all existing
leases were assigned to 131-149 Hamelin Street Leaseholds Limited, as Landlord;
D. And Whereas 131-149 Hamelin Street Leaseholds Limited has agreed to enter
into this Lease Amending Agreement on the terms and conditions set forth herein.
E. And Whereas the Tenant has been in overhold from April 1, 2003 through to
June 30, 2003 on the same terms and conditions as contained in the Lease dated
the 31st day of March, 2000.
F. And Whereas by a Lease Amending Agreement dated the 26th of June, 2003 the
Landlord leased to the Tenant an additional Six Thousand (6,000) square feet and
the Landlord and Tenant agreed to extend the termination date of the Lease to
June 30, 2008.
NOW THEREFORE in consideration of the mutual covenants contained herein and in
the Lease, the parties hereby agree as follows:
1. The execution of this Agreement shall constitute an expansion of leased
space. The Landlord agrees to lease to the Tenant and the Tenant agrees to
lease from the Landlord an additional Three Thousand Six Hundred (3,600)
square feet, commonly known as 131 Hamelin Street, in the City of Winnipeg
(the "Expansion Premises") The Expansion Premises shall be governed on all
the terms and conditions contained in the Lease, except as follows:
(a) The Expansion Premises shall consist of approximately Three Thousand
Six Hundred (3,600) square feet of Rentable Area.
(b) The annual Minimum Rent for the Expansion Premises shall be based as
follows:
February 1, 2004 through June 30, 2005:
$ 4.50 per square foot of Rentable Area per annum
July 1, 2005 through June 30, 2006:
$ 5.00 per square foot of Rentable Area per annum
July 1, 2006 through June 30, 2008:
$ 5.50 per square foot of Rentable Area per annum
Payable in equal monthly installments plus any additional charges, without
deductions, in advance on the first day of each month during the Renewal
Term.
(c) There shall be no tenant inducements or special conditions for the
Expansion Premises, including but not limited to free rent and tenant
improvements, unless otherwise stated herein.
(d) The following is deleted from Article 1.01 (b) of the Lease. "The
Landlord will issue quarterly credits to the Tenant for any Hydro usage
consumed by 131 Hamelin Street. The usage for 131 Hamelin Street is
determined by the reading of two electrical panels and an electricians
estimate of a third electrical panel. All three panels provide electrical
power to 131 Hamelin Street"
(e) The Premises known as 131 Hamelin Street are to be taken in "as is"
condition.
2. This Agreement shall be attached to the Lease and shall become a part
thereof as if originally included therein.
3. The Landlord and the Tenant covenant and agree with each other that, save
and except as specifically provided herein, this Lease Amending Agreement
shall be on the same terms, conditions, covenants, agreements, obligations
and provisos contained in the Lease insofar as the same shall be deemed to
be incorporated herein and shall be binding upon the
Landlord and the Tenant as though the "Landlord" and "Tenant" referred to
in the Lease were the Landlord and the Tenant respectively herein, and that
the Landlord and the Tenant will respectively duly observe and perform the
same. If there shall be any conflict between the terms of the Lease and the
terms hereof, the terms hereof shall apply.
4. The parties hereto covenant and agree that they have good right, full power
and authority to enter into this Agreement in the manner as aforesaid.
IN WITNESS WHEREOF the parties hereto executed this Agreement as of the day and
year first above written.
SIGNED, SEALED AND DELIVERED ) 131-149 HAMELIN STREET
) LEASEHOLDS LIMITED
in the presence of: ) Landlord
)
)
/s/ B. McCarthy )Per: /s/ Aubrey Dan
) -------------------------------
) AUBREY DAN, PRESIDENT
) I/We have the authority to bind
the corporation.
SIGNED, SEALED AND DELIVERED ) VIVENTIA BIOTECH INC.
)
in the presence of: ) Tenant
)
)
March 5, 2004 )Per: /s/ Michael A. Byrne
) -------------------------------
) MICHAEL A. BYRNE
) CHIEF FINANCIAL OFFICER
/s/ Nick Glover
-------------------------------
NICK GLOVER
PRESIDENT AND CEO
I/We have the authority to bind
the corporation.