EXHIBIT 10.3
3605 XXXXXXX WAY
BURNABY
OFFER TO SUB-LEASE
BETWEEN
XXXXXXXXX.XXX, INC.
(SUB-LANDLORD)
AND
INPHOGENE BIOCOMMUNICATIONS INC.
(SUB-TENANT)
Colliers Xxxxxxxx Xxxxxxx Inc
("Agent")
Xxxx Xxxxxx (000) 000-0000
Office Leasing Division
OFFER TO SUB-LEASE
3605 XXXXXXX WAY
BURNABY, BC
(THE "BUILDING")
TO: XXXxxxxxx.xxx, Inc. ("Sub-Landlord")
300 - 0000 Xxxxxxx Xxx
Xxxxxxx, XX X0X 0X0
WE: Inphogene Biocommunications Inc. ("Sub-Tenant")
309 - 0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX X0X 0X0
hereby offer to sub-lease from the Sub-Landlord, upon the following terms and
conditions, the premises on the second (2nd) floor of the Building, having a
Rentable Area of approximately eight thousand two hundred fifty (8,250) square
feet (the "Sub-Lease Premises"). The floor area of the Sub-Lease Premises is as
shown outlined in heavy black on the plan forming Schedule "A" to the Offer to
Sub-Lease.
1. Term
The Term of the Sub-Lease shall be four (4) years and four (4) months and
thirty (30) days commencing on the 1st day of April, 2001 (the
"Commencement Date") and expiring on the 30th day of August, 2005.
2. Basic Rent
The Basic Rent, plus any applicable Goods and Services Tax, shall be
payable monthly in advance by the Sub-Tenant on the first day of each
month during the Term to the Sub-Landlord. The Basic Rent shall be based
on the Rentable Area of the Sub-Lease Premises and measured in a manner
prescribed by the Lease calculated at the rate of Fifteen Dollars
($15.00) per square foot per annum.
3. Operating Costs and Property Taxes
The Sub-Tenant's Proportionate Share of Operating Costs and Property
Taxes, currently estimated at Nine Dollars ($9.00) per square foot for
the 2000 fiscal year, plus Goods and Services Tax, shall be payable as
additional rent as per the terms of the Lease during the Term in addition
to the Basic Rent.
4. Deposit
A cheque for Thirty-Five Thousand Three Hundred Ten ($35,310.00) (the
"Deposit") payable to Colliers Xxxxxxxx Xxxxxxx Inc., in trust, is
tendered herewith as the Deposit and to be credited in payment firstly
towards the last month's gross rent and thereafter towards the first
months gross rent due, plus any applicable Goods and Services Tax, and to
be returned to the Sub-Tenant if this Offer is not accepted. In the event
the Sub-Tenant defaults under the terms hereof, the Sub-Landlord may
terminate this agreement and retain the Deposit on account of damages and
not as a penalty, without prejudice to any other remedy.
5. Lease
The Sub-Tenant covenants to abide by all the terms of the Sub-Landlord's
Lease (the "Lease") with the exception of the terms set out in this Offer
which differ from the terms of the Lease. The Sub-Tenant acknowledges
having received a copy of the Lease attached hereto as Schedule "B".
The Sub-Tenant shall enter into a Sub-Lease Agreement incorporating the
terms of this Offer and the Lease amended where applicable, if requested
by the Sub-Landlord who shall prepare the Sub-Lease Agreement at its cost
prior to April 1, 2001, otherwise this Offer together with the Lease
shall constitute the Sub-Lease Agreement.
6. Use
The Sub-Lease Premises shall be used only for the purposes of a general
business office that conforms with the City of Burnaby's zoning bylaws.
7. SUBLANDLORD'S WORK
The Sub-Landlord shall provide the Premises in a shell condition of a
clean and smooth concrete floor, installed t-bar ceiling complete tiles,
deep celled parabolic lighting lenses, sprinkler heads and HVAC all
functioning and distributed to an open plan layout. Otherwise the
Premises are accepted "as is". The Sub-Landlord will be responsible for
the costs to construct any required demising walls to building standard
and to install a building entry / exit door, if required, to meet
applicable codes and bylaws.
Notwithstanding anything to the contrary herein contained, the
Commencement Date of the Term shall be postponed until the Premises are
ready for occupancy if labour disruption or other occurrence hinders or
delays the Sub-Landlord from completing the Sub-Landlord's Work prior to
the Commencement Date.
-2-
8. SUBTENANT'S WORK
Any items not specifically included in the Sub-Landlord's Work shall be
deemed to be Sub-Tenant's Work or Leasehold Improvements, the Subtenant
shall be required to prepare working drawings of the proposed improvement
work and obtain the written consent of the Sub-Landlord before commencing
the improvement work, such consent not to be unreasonably withheld. It is
agreed and understood that the Sub-Landlord and Sub-Tenant shall work in
consultation regarding the design and layout of all improvements to the
Premises so as to construct improvements to the Premises that will be
useful to both companies. All improvement work shall be done by qualified
and licensed contractors and sub-contractors whom the Sub-Landlord shall
have approved in writing. The Sub-Tenant also agrees to employ the
Landlord's consultant regarding any modifications to the HVAC and
electrical distribution systems beyond the base building system. The
Premises shall be improved to a standard in keeping with the appearance
and character of the Building.
9. PERMITS
It is the Subtenants responsibility to secure all the necessary building
permits and government approvals for the Sub-Tenants Work. Such permits
must be secured before any work shall commence on the Premises. The Sub-
Tenant shall also be responsible for acquisition of the final occupancy
permit as it applies to the Sub-Tenant's Work. The Sub-Tenant shall
provide the Sub-Landlord with copies of all applicable permits and
approvals.
10. EARLY OCCUPATION BY TENANT
During any period prior to the commencement of the Term (including the
period from the date upon which the Premises are ready for the
construction of the Tenants' Work or Leasehold Improvements until the
commencement of the Term) in which the Sub-Tenant is permitted to have
occupancy of the Premises, whether exclusively or in common with the
Landlord, its contractors, sub-contractors, or employees, the Sub-Tenant
shall be bound by all the provisions of the Sub-lease saving those
requiring the payment of Basic Rent or the Sub-Tenant's proportionate
share of the Operating Expenses and Taxes.
11. FIXTURING PERIOD
From the date upon which the Sub-Tenant and Sub-Landlord have an
unconditional, firm and binding Offer of Sub-Lease, the Sub-Tenant shall
have a day fixturing period prior to the Commencement Date of the Lease
term in which to carry out construction of any Sub-Tenant's Work or
Leasehold Improvements. Such fixturing period shall be free of Basic
Rent, Operating Expenses and Taxes. The Sub-Tenant shall be bound by all
other terms of this Offer to Sub-Lease, from the date of first occupancy
of the Premises by the Sub-Tenant for the purpose of fixturing the
Premises. In the event the improvements to the Premises are complete
prior to the Commencement Date the Sub-Tenant may occupy the Premises for
the purpose of running their business free of Basic Rent, Operating
Expenses and Taxes.
-3-
12. LEASEHOLD IMPROVEMENT ALLOWANCE
The Sub-Landlord will reimburse the Sub-Tenant for expenses incurred
completing the Leasehold Improvements, to a maximum amount of Two Hundred
Six Thousand Two Hundred and Fifty Dollars ($206,250.00) based on Twenty
Five Dollars ($25.00) per rentable square foot of the Premises (the
"Leasehold Improvement Allowance") provided the Sub-Landlord is satisfied
that all of the following conditions have been met:
1) all Sub-Lease documentation has been satisfactorily executed by the
Sub-Tenant and returned to the Sub-Landlord;
2) the Sub-Landlord is in receipt of invoices paid by the Sub-Tenant in
an amount equal to or exceeding the amount claimed for reimbursement;
3) the Sub-Tenant provides the Sub-Landlord with statutory declaration
confirming that all of the Sub-Tenant's subtrades and suppliers have
been paid in full and that no liens arising from the Leasehold
Improvements have been or may be placed against the building; and
4) the Sub-Tenant has been granted an occupancy permit concerning the
Premises.
The Sub-Tenant expressly acknowledges and agrees that this section is
personal to InphoGene Biocommunications Inc.
13. SUBTENANT'S CONDITIONS
This offer to Lease is subject to:
(a) the Sub-Tenant's review and approval of the Headlease agreement
between Discovery Parks Incorporated (the "Landlord") and the Sub-
Landord. It is agreed and understood that within 48 hours of
Acceptance of this Offer to Sublease the Sub-Landord shall provide to
the Sub-Tenant a copy of the Lease for the Sub-Tenant's review and
approval.
The above condition is for the sole benefit of the Sub-Tenant and must be
waived unilaterally by the Sub-Tenant within Eight (8) business days of
the date of Acceptance of this Offer to Sub-Lease in order to proceed
with completion of the contract. Should these conditions not be removed
from this Offer to Sub-Lease by notice in writing to the Sub-Landlord or
the Agent within the specified time frames, this Offer to Sub-Lease shall
be null and void and all deposit monies returned to the Sub-Tenant.
-4-
14. SUBLANDLORD'S CONDITIONS
This offer to Lease is subject to:
(a) the Sub-Landlord being satisfied with the financial covenant of the
Sub-Tenant. Within eight (8) business days of the date of acceptance
of this Offer to Sub-Lease, the Sub-Landlord shall notify the Sub-
Tenant of what information it requires. The Sub-Tenant shall provide
the Sub-Landlord with any credit information requested, including
suppliers, bank and auditor's references, and financial statements
within two (2) business days of receipt of the Sub-Landlord's request
for the information. The Landlord shall have a further period of Five
(5) business days from the date of receipt of the aforesaid
information from the Tenant to determine whether or not the Tenant is
financially responsible.
The above condition is for the sole benefit of the Sub-Landlord and must
be waived unilaterally by the Sub-Landlord in order to proceed with
completion of the contract. Should these conditions not be removed from
this Offer to Sub-Lease by notice in writing to the Sub-Tenant or the
Agent within the specified time frames, this Offer to Sub-Lease shall be
null and void and all deposit monies returned to the Sub-Tenant.
15. FIRST OPPORTUNITY TO SUBLEASE
The Sub-Landlord covenants with the Sub-Tenant that if the Sub-Tenant is
not in default under the Sub-Lease and has not frequently or persistently
been in default under the Sub-Lease, then if the Sub-Landlord wishes to
let, from time to time, all or any part of the space on the 3rd floor of
the Building, the Sub-Tenant will have a first opportunity to take all of
such space or, subject to the proviso at the end of this Section 15, such
portion of the space as the Sub-Tenant may select, on sublease in an "as
is" condition. Such first opportunity to sublease shall be exercisable as
follows: When the Sub-Landlord wishes to let from time to time such
space, the Sub-Landlord will advise the Sub-Tenant of the amount of space
that it wishes to let, the date it will be available for occupancy and
the Basic Rent and the term for which the Sub-Landlord intends to let the
space. The Sub-Tenant will have Seven (7) days following its receipt of
the Sub-Landlord's notice in which to decide whether or not it wishes to
take all of such space or, if permitted as hereinafter provided, a
portion of that space, on lease on the terms and conditions set out in
the Sub-Landlord's notice. If within the seven (7) day period the Sub-
Tenant does not enter into an agreement to sub-lease for all of such
space or, if permitted as hereinafter provided, a portion becoming
available, the Sub-Landlord will be free within the six months following
the termination of the Seven (7) day period to let all or any part of
that space to a third party. The Sub-Tenant may elect to sublease a
portion of that space that the Sub-Landlord wishes to let only if each of
that portion of the space and the remaining space would, in the Sub-
Landlord's opinion, be readily marketable, usable and suitable for
subleasing, without additional costs including additional demising costs,
having regard to such things as configuration, size and all applicable
by-laws, regulations and recommendations and prudent building management
practice.
-5-
The Sub-Tenant expressly acknowledges and agrees that this First
Opportunity to Sub-Lease clause is personal to InphoGene
Biocommunications Inc.
16. OPTION TO RENEW
In the event the Sub-Landlord exercise it's Option to Renew in the
headlease the Sub-Landlord covenants with the Sub-Tenant that in the
event the Sub-Landlord does not require the Premises and if the Sub-
Tenant is not in default under the Sub-Lease and has not frequently or
persistently been in default under the Sub-Lease, the Sub-Tenant shall
have the option of renewing the Sub-Lease by notice in writing given to
the Sub-Landlord at least five (5) months prior to the expiry of the
Term, for an additional term of sixty (60) months on the same terms and
conditions as set forth in the Sub-Lease, save and except that there
shall be no further right of renewal, no leasehold improvement allowance
and except that the Basic Rent reserved during the renewal term shall be
the same rate as the Sub-Landlord has negotiated with the Landlord on
renewing the headlease.
The Sub-Tenant expressly acknowledges and agrees that this Option to
Xxxxx clause is personal to InphoGene Biocommunications Inc. and is
subject to the Landlord's consent.
17. PARKING
The Sub-Landlord shall provide twenty one (21) parking stalls to be
located within the secured underground parkade of the building upon the
same rental terms as outlined in the headlease.
18. SIGNAGE
Provided that the Sub-Landlord chooses not to utilize its building
signage rights, the Sub-Landlord agrees to provide the Sub-Tenant
exterior building signage and directory signage subject the City of
Burnaby's and the Landlord's approval. All costs associated with such
signage including, design, construction, installation, maintenance and
removal shall be the sole responsibility of the Sub-Tenant.
19. Sole Agreement
There are no agreements, covenants, representations, warranties or
conditions in any way relating to the subject matter of this agreement
expressed or implied, collateral or otherwise, except as expressly set
forth herein.
20. Time of the Essence
Time is of the essence of this agreement with respect to the covenants
contained herein.
-6-
21. Definitions
Words defined in the Lease and used herein shall have the same meaning
ascribed to them by the Lease.
22. Consent of Landlord
This Offer is subject to the consent of the Landlord in accordance with
the terms of the Lease.
23. Agent's Commission
Agent's commission equating to two (2) month's Gross Rent, plus any
applicable Goods and Services Tax, shall be payable by the Sub-Landlord,
and is to be deducted from the Deposit on the Commencement Date or
occupancy by the Sub-Tenant, whichever first occurs, and the excess
Deposit remitted to the Sub-Landlord, or any commission balance due to
the Agent remitted by the Sub-Landlord.
24. Offer Provisions
All terms of this Offer shall survive the completion of this transaction
and shall not merge. In the event of any conflict between the terms of
this Offer and the terms of the Lease, the terms of this Offer shall
prevail.
25. Disclosure
The Sub-Landlord and the Sub-Tenant acknowledge and agree that:
(a) in accordance with the Code of Ethics of the Canadian Real Estate
Association, Colliers Xxxxxxxx Xxxxxxx Inc. (the "Agent") has
disclosed that it is representing the Sub-Landlord and the Sub-Tenant
in the transaction described in this Agreement;
(b) the Agent, in order to accommodate the transaction described in this
Agreement, was and is entitled to pass any relevant information it
receives from either party or from any other source to either of the
parties as the Agent sees fit, without being in conflict of its
duties to either party; and
(c) the Sub-Landlord shall pay the commission and compensation of two (2)
months Gross Rent, plus any applicable Goods and Services Tax, due to
the Agent pursuant to the transaction described in this Agreement.
26. FACSIMILE TRANSMISSION
A party hereto may signify its agreement to the terms hereof by facsimile
transmission. A telecopy facsimile of this agreement received by a party
hereto which shows the signature(s) of the authorized signatory(ies) of
the other party will be good proof of execution by that other party.
-7-
27. Acceptance
This counter Offer shall be irrevocable and open for acceptance until
4:00 p.m. on the 8th day of January, 2001, after which time if not
accepted this Offer shall be null and void and the Deposit shall be
returned in full to the Sub-Tenant. This Offer may be accepted by signing
and returning one duplicate copy or facsimile of this Offer.
DATED this 2 day of January, 2001.
Inphogene Biocommunications Inc.
SUB-TENANT
Per: /s/ Xxxxx Xxxxxx
--------------------------------------
Per:
--------------------------------------
ACCEPTANCE
The Sub-Landlord hereby accepts the above Offer this 3rd day of January, 2001.
XXXXXXXXX.XXX, INC.
SUB-LANDLORD
Per: /s/ Xxxxx X. Xxxxx
--------------------------------------
Per:
--------------------------------------
LANDLORD'S CONSENT
The Landlord hereby consents to the attached Offer this ______ day of December,
2000.
Discovery Parks Incorporated
LANDLORD
Per:
--------------------------------------
Per:
--------------------------------------
-8-
SCHEDULE "A"
PLAN
This Amendment/Addendum shall be attached to and become a part of the Offer to
Sub-Lease between XXXXXXXXX.XXX, INC. (Sublandlord) and INPHOGENE
BIOCOMMUNICATIONS (Canada) INC. (SubTenant)
--------------------------------------------------------------------------------
Address: 0000 Xxxxxxx Xxx, Xxxxxxx, XX
The Subtenant hereby removes the Condition Precedent as contained in Clause 13
of the above noted Offer to Sublease as follows:
13. SUBTENANT'S CONDITIONS
This Offer to Lease is subject to:
(a) the Subtenant's review and approval of the Headlease agreement
between Discovery Parks Incorporated (the "Landlord") and the
Sublandlord. It is agreed and understood that within 48 hours of
Acceptance of this Offer to Sublease the Sublandlord shall
provide to the Subtenant a copy of the Lease for the Subtenant's
review and approval.
The Sublandlord hereby removes the Condition Precedent as contained in Clause 13
of the above noted Offer to Sub-Lease as follows:
14. SUBLANDLORD'S CONDITIONS
This Offer to Lease is subject to:
(a) the Sublandlord being satisfied with the financial covenant of
the Subtenant. Within eight (8) business days of the date of
acceptance of this Offer to Sublease, the Sublandlord shall
notify the Subtenant of what information it requires. The
Subtenant shall provide the Sublandlord with any credit
information requested, including suppliers, bank and auditor's
references, and financial statements within two (2) business days
of receipt of the Sublandlord's request for the information. The
Landlord shall have a further period of five business days from
the date of receipt of the aforesaid information from the Tenant
to determine whether or not the Tenant is financially
responsible.
ALL OTHER TERMS AND CONDITIONS TO REMAIN IN FULL FORCE AND EFFECT.
/s/ Xxxxx Xxxxxx
--------------------------------- --------------------------------------------
Witness INPHOGENE BIOCOMMUNICATIONS
INC. (Subtenant) (Authorized Signatory)
Jan 16, 2001
--------------------------------------------
Date
/s/ Xxxxx X. Xxxxx
--------------------------------- --------------------------------------------
Witness XXXXXXXXX.XXX, INC. (Sublandlord)
(Authorized Signatory)
17 Jan 01
--------------------------------------------
Date
AMENDMENT TO OFFER TO SUB-LEASE
This Agreement is made as of January 15, 2001,
BETWEEN:
XXXXXXXXX.XXX, INC. with an address at 000 - 0000 Xxxxxxx Xxx,
Xxxxxxx, X0X 0X0
("Sub-Landlord")
AND:
INPHOGENE BIOCOMMUNICATIONS INC. with an address at 000 - 0000
Xxxxxxxx Xxxxx, Xxxxxxx, XX X0X 0X0
("InphoGene")
WHEREAS:
A. On January 2, 2001, InphoGene made an offer to the Sub-Landlord to
sublease certain premises situated at 0000 Xxxxxxx Xxx, Xxxxxxx, X.X. ("Offer to
Sublease");
B. On January 3, 2001, the Sub-Landlord accepted the Offer to Sublease on the
condition that InphoGene deposits an additional CDN$16,500;
C. InphoGene wishes to correct an error in the Offer to Sublease to reflect
that the sub-tenant will be InphoGene Biocommunications (Canada) Inc., a wholly
owned subsidiary of InphoGene, and not InphoGene, a holding company; and
D. The parties wish to enter into this Agreement to record their agreement to
amend the Offer to Sublease as set out in this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
mutual covenants contained herein, the parties agree as follows:
1. The reference to "InphoGene Biocommunications Inc." as being the "Sub-
Tenant" should be deleted and be replaced with "InphoGene Biocommunications
(Canada) Inc."
2. Section 4 of the Offer to Sublease should be deleted in its entirety and
be replaced as follows:
"A cheque for a total of Fifty-One Thousand Eight Hundred and Ten
($51,810.00) (the "Deposit") payable to Colliers Xxxxxxxx Xxxxxxx Inc., in
trust, is tendered herewith as the Deposit and will be applied as follows:
(a) $35,310 of such total amount will be credited in payment
firstly towards the last month's gross rent and thereafter towards
the first month's gross rent due, plus any applicable Goods and
Services Tax, and
(b) $16,500 of such total amount will be credited in payment
towards the second-to-last month's gross rent plus any applicable
Goods and Services Tax, unless the Sub-Tenant is able to provide
the Sub-Landlord with satisfactory evidence that at least
$5,000,000 has been raised and received by the Sub-Tenant or
InphoGene Biocommunications Inc. during the Term of the Sub-Lease,
in which case, such amount will be returned to the Sub-Tenant
promptly upon receipt by the Sub-Landlord of such evidence, and
and will be returned to the Sub-Tenant in full if the Offer to Sublease,
as amended, has not been accepted by either the Sub-Landlord or the head
landlord, Discovery Parks Incorporated."
3. The reference to "InphoGene Biocommunications Inc." in the second
paragraph of both Sections 15 and 16 should be deleted and be replaced with the
words "the Sub-Tenant".
4. A new Section 28 be added, which reads as follows: "All references to
monetary amounts in this Offer to Sublease shall be in Canadian currency."
5. All other terms and conditions set out in the Offer to Sublease shall
remain unchanged.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first written above.
INPHOGENE BIOCOMMUNICATIONS INC.
Per: /s/ Xxxxx Xxxxxx
------------------------------
Xxxxx Xxxxxx, President
Sub-Tenant:
INPHOGENE BIOCOMMUNICATIONS (CANADA) INC.
Per: /s/ Xxxxx Xxxxxx
-------------------------------
Xxxxx Xxxxxx, President
Sub-Landlord:
XXXXXXXXX.XXX, INC.
Per: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X.Xxxxx
------------------------------
Head Landlord:
DISCOVERY PARKS INCORPORATED
Per:
-------------------------------
Name:
------------------------------
