IOGEN CORPORATION, (hereinafter called the Sub-sublandlord), - and - VARIATION BIOTECHNOLOGIES INC., (hereinafter called the Sub-subtenant).

EX-10.1 2 ex10-1.htm EXHIBIT 10.1 ex10-1.htm

Exhibit 10.1

THIS AMENDMENT OF SUB-SUBLEASE (this “Amendment”) made as of the 18th day of March, 2016.

B E T W E E N:

IOGEN CORPORATION,
(hereinafter called the “Sub-sublandlord”),

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VARIATION BIOTECHNOLOGIES INC.,
(hereinafter called the “Sub-subtenant”).

WHEREAS pursuant to a sub-sublease dated September 1, 2014 between the Sub-sublandlord and the Sub-subtenant (the “Sub-sublease”), the Sub-sublandlord leased to the Sub-subtenant the Premises on the terms and conditions described therein;

AND WHEREAS the parties have agreed, subject to the terms and conditions hereinafter set forth, to amend the Sub-sublease as set forth in this Amendment;

AND WHEREAS all capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to them in the Sub-sublease;

NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the demise of the Premises and the mutual covenants, agreements and conditions herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each party, the parties hereby agree as follows:

1. Amendments to Sub-sublease

(a) The fifth recital of the Sub-sublease is hereby deleted in its entirety and replaced with the following:

“AND WHEREAS the Sub-sublandlord has agreed to sub-sublease to the Sub-subtenant certain laboratory and office space on the second floor of the Building having a total area of approximately 9,682 square feet (the “Rentable Area”), with the Rentable Area being comprised of the approximately 6,970 square feet more particularly described and identified as Area 201B on the plan attached hereto as Exhibit B (the “Existing Area”) and, from and after the Possession Date (as defined below), the approximately 2,712 square feet more particularly described and identified as Area201A on the plan attached hereto as Exhibit B (the “New Area” and, together with the Existing Area, the “Premises”), all on the terms and conditions contained in this Sub-sublease;”

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(b) Section 1.1 of the Sub-sublease is hereby deleted in its entirety and replaced with the following:

“1.1 Interpretation

Where used in this Sub-sublease, any word or term which is specifically defined in the Sublease shall have the meaning ascribed to it in the Sublease unless such word or term is otherwise defined in this Sub-sublease, and the following words shall have the following meanings:

“Fixturing Period” means the period from the Possession Date to (and including) the Substantial Completion Date.

“Possession Date” means February 15, 2016, being the date from which the Sub-subtenant shall be permitted to have access to the New Area during normal operating hours (8:00 a.m. – 8:00 p.m., Toronto time) until the Substantial Completion Date, after which time the Sub-subtenant’s access shall be governed by the terms and conditions of this Sub-sublease.

“Substantial Completion Date” means the date on which the Sub-subtenant is entitled to occupy the New Area for the purpose of conducting business therein in accordance with the terms and conditions of this Sub-sublease which, for greater certainty, shall be the earlier of (i) the date upon which all occupancy permits have been obtained and (ii) April 1, 2016.”

“3.1 Sub-sublease Term

The term of this Sub-sublease (the “Term”) shall commence on the date hereof (the “Commencement Date”) and, subject to the next following sentence and subject to Section 3.2, shall end at 11:59 p.m. (Toronto time) on December 31, 2019. In no event shall the Term extend beyond the date of the termination of the Sublease. If the Sublease is terminated in accordance with its terms (whether by expiry or other termination) this Sub-sublease shall be automatically terminated at the same time as the Sublease is terminated.”

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(d) The following shall be added to the Sub-sublease as Section 3.4 thereof:

“3.4 Fixturing Period

(a) During the Fixturing Period, all of the provisions of this Sub-sublease shall apply to the New Area, except that the Sub-Subtenant shall not be required to pay Basic Rent in respect of the New Area during the Fixturing Period, however, Additional Rent (i.e. operating and common area costs) for the following periods will be paid by the Sub-Subtenant for the New Area:

- February 15-29, 2016: $2056.61 (including HST)

- March 1-31, 2016: $4,170.36 (including HST)

For greater certainty, the Sub-subtenant shall be required to obtain and maintain in respect of the New Area, at the Sub-subtenant’s sole cost and expense, the insurance coverage required to be maintained by the Sub-subtenant during the Term pursuant to this Sub-sublease.

(b) During the Fixturing Period, on not less than 24 hours’ written notice from the Sub-subtenant, the Sub-sublandlord agrees to provide the Sub-subtenant with the right to access and use an elevator designated by the Sub-sublandlord, at the Sub-sublandlord’s sole discretion.

(c) The Sub-subtenant hereby acknowledges and agrees that the installation of the Sub-subtenant’s improvements to the New Area described in Section 3.5 below during the Fixturing Period shall be managed by Sub-subtenant and the Sub-sublandlord will retain, at Sub-sublandlord’s own cost and expense, Inside Edge Properties Ltd. to supervise such work on behalf of the Sub-sublandlord all as further set out in Exhibit A hereto.

(e) The following shall be added to the Sub-sublease as Section 3.5 thereof:

“3.5 New Area Leasehold Improvement Costs

(a) The Sub-sublandlord acknowledges and agrees that the Sub-subtenant shall be permitted to perform or cause to be performed, at its sole cost and expense, the leasehold improvements in the New Area as further described in Exhibit C attached hereto prior to the Substantial Completion Date (the “Sub-subtenant’s Work”).

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(b) Notwithstanding Section 3.5(a) hereof, the Sub-sublandlord hereby agrees to pay the costs (which cost is not to be charged back to the Sub-subtenant as Additional Rent or otherwise) associated with the preparation of the New Area for occupancy by the Sub-subtenant by completing certain work as further described in Exhibit D, and including the installation of an electric strike on the second door entrance to the suite in the New Area. The installation of an electric strike shall be completed no later than April 1, 2016.

(c) In addition to the foregoing, the Sub-sublandlord hereby acknowledges and agrees to provide, and the Sub-subtenant hereby accepts, at no additional cost to the Sub-subtenant for use during the Term, the existing office furniture in the New Area as of February 15, 2016, including the two cubicles removed to accommodate construction in the Existing Area and the original kitchenette cupboards, sink, dishwasher, refrigerator and counter-top, all in an as-is condition. For the purposes of this Sub-sublease, all of the items being provided by the Sub-sublandlord pursuant to this Section 3.5(c) shall be included as part of the Landlord’s FF&E.”

(f) Section 4.1 of the Sub-sublease is hereby deleted in its entirety and replaced with the following:

“4.1 Basic Rent

Subject to Sections 3.4 and 4.3 hereof, for the period beginning on the Commencement Date and ending on December 31, 2019, the Sub-subtenant shall pay to the Sub-sublandlord, without any deduction, set-off or abatement whatsoever, except as may be otherwise provided herein, a basic rent (the “Basic Rent”) for the Premises in the amount of $14.50 per square foot of Rentable Area of the Existing Area per year and $13.50 per square foot of Rentable Area of the New Area per year. Subject to Sections 3.4 and 4.3, the Basic Rent shall be payable monthly in advance in equal, consecutive instalments, on the first day of each and every calendar month, from and after the Commencement Date, the first such payment to be made on the Commencement Date, together with all HST (as defined below) thereon. If any year of the Term commences on any day other than the first day, or ends on any day other than the last day, of a calendar month, all Rent and other sums payable by the Sub-subtenant for the fractions of a month at the commencement or expiration of the applicable year of the Term, as the case may be, shall be calculated on a per diem basis based on a period of three hundred and sixty-five (365) days. The parties hereby acknowledge that the Rentable Area includes a maximum non-negotiable gross-up factor of 18.8%.”

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Effective April 1, 2016 until December 31, 2019, monthly Basic Rent shall be $12,964.58 (including HST)

For the period of February 15-29, 2016, the incremental increase in Basic Rent is $334.66 (including HST) and for the period of March 1-31, 2016, monthly Basic Rent shall be $9,516.96 (including HST).

(g) Section 4.2(a) of the Sub-sublease is hereby amended by deleting the final two sentences thereof in their entirety and replacing them with the following:

“The Additional Rent shall be adjusted annually based on the actual amounts determined at the end of each calendar year, up to a maximum of $18.00 per square foot of the Rentable Area of the Premises for the calendar years 2014, 2015, 2016 and 2017 and a maximum of $19.50 per square foot of the Rentable Area of the Premises for the calendar years of 2018 and 2019 (the “Additional Rent Cap”). Annual reconciliation shall be provided within 120 days after each calendar year-end although the Sub-landlord will make reasonable efforts to provide an estimate within 45 days of calendar year-end.”

(h) Section 5.2 of the Sub-sublease is hereby amended by deleting the phrase “any 26 parking spaces” therefrom and replacing such phrase with “any 36 parking spaces”.

(i) Section 10.12 of the Sub-sublease is hereby deleted in its entirety and replaced with the following:

“10.12 Signage

The Sub-sublandlord hereby agrees to install a multi-tenant sign outside the Building within six (6) months of receipt of consent from OMCIAA with respect to the installation of same. The Sub-subtenant hereby agrees to pay for any reasonable costs arising in connection with its insert in such sign but not the sign itself.”

(j) Schedule B of the Sub-sublease is hereby deleted in its entirety and replaced with the contents of Exhibit B attached hereto.

(k) Schedule C of the Sub-sublease is hereby deleted in its entirety and replaced with the contents of Exhibit E attached hereto.

2. Sublandlord’s Consent

The entering into of this Amendment and the agreement resulting therefrom is expressly conditional upon the Sub-sublandlord obtaining the Sublandlord’s written consent to this Amendment in accordance with Article 13 of the Sublease. Should the preceding condition not be met on or before March 31, 2016, this Amendment shall be null and void and of no further force or effect and the parties shall have no further obligations hereunder.

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3. Affirmation of Sub-sublease

Except as specifically amended pursuant to this Amendment, all other terms and conditions set forth in the Sub-sublease remain unamended and in full force and effect (including, without limitation, Section 3.3 of the Sub-sublease), and the Sub-sublease, as amended hereby, is hereby ratified and confirmed by the Sub-sublandlord and the Sub-subtenant. For greater certainty, the Sub-sublandlord and Sub-subtenant acknowledge and agree that the option to extend the Term for two (2) periods of three (3) years each have not been exercised through this Amendment and remains available to the Tenant as further provided in the Sub-sublease.

4. Paramountcy

In the event of any conflict or inconsistency between the provisions of the Sub-sublease and the provisions of this Amendment, the latter shall prevail.

5. Number, Gender, Liability

The grammatical changes required to make the provisions of this Amendment apply in the plural sense where the Sub-subtenant comprises more than one person and to corporations, firms, partnerships or individuals, male or female, will be assumed as though in each case fully expressed.

6. Headings and Captions

The Section numbers and headings contained herein are inserted for convenience of reference only and are not to be considered when interpreting this Amendment.

7. Further Assurances

The Sub-sublandlord and the Sub-subtenant shall from time to time hereafter and upon any reasonable request of the other, execute and deliver, make or cause to be made all such further acts, deeds, assurances and things as may be required or necessary to more effectually implement and carry out the true intent and meaning of this Amendment.

8. Successors and Assigns

This Amendment shall benefit and bind the successors and assigns of the Sub-sublandlord and the permitted successors and assigns of the Sub-subtenant.

9. Time of the Essence

Time is of the essence of this Amendment and every part hereof.

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10. Governing Law

This Amendment shall be interpreted under and is governed by the laws of the Province of Ontario and all federal laws of Canada applicable therein.

11. Counterparts

This Amendment may be executed in counterparts, each of which shall be an original and all counterparts together shall constitute a single document. The fact of execution of this Amendment may be communicated to the other parties by facsimile or e-mail (with a pdf attachment) transmission of the signature page of this Amendment.

12. Registration

The Sub-subtenant may, at is discretion, register this Amendment or any other instrument or notice pertaining to this Amendment against the Land, upon receipt of Sub-sublandlord’s consent.

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IN WITNESS WHEREOF the parties hereto have executed this Amendment of Sub-sublease as of the date first written above.

	IOGEN CORPORATION


		/s/ Brian Foody
	by:
		Name:Brian Foody
		Title:President & Chief Executive Officer

	I have authority to bind the Corporation


	VARIATION BIOTECHNOLOGIES INC.

		/s/ Jeff Baxter
	by
		Name:Jeff Baxter
		Title: President & CEO

	I have authority to bind the Corporation

Signature Page - Amendment to Sub-sublease

EXHIBIT A

Outline of Responsibilities for Renovation of New Area

Inside Edge Properties Ltd. (“Inside Edge”) will:

a) Review 4Te’s designs and the engineering designs and will provide a list of comments, to reflect the Sub-sublandlord’s perspective and impact to the base building;

b) Provide a list to 4Te of approved vendors for the Premises. Inside Edge will provide two contractor names for major systems such as HVAC, Electrical, Controls, Fire/Life Safety and Security. Inside Edge will also provide a recommendation for a minimum of two general contractors to allow Sub-subtenant and 4Te flexibility in their tendering process. Vendors must be selected from Inside Edge’s approved list, or alternatives discussed and pre-approved by Inside Edge and Sub-sublandlord;

c) Review all drawings and permit applications for base building concerns prior to work starting;

d) Review all engineering field reports;

e) Conduct field reviews and ensure final closeout is complete on Sub-sublandlord’s behalf; and

f) Inside Edge and Sub-sublandlord will select the carpet vendor, painter and electric strike installer.

Sub-subtenant will engage 4Te and pay for all other aspects including:

a) Design costs and engineering costs;

b) Tendering and selecting the contractors for Sub-subtenant specific renovation items;

c) Obtain all permits;

d) Construction management and schedule;

e) All costs of Sub-subtenant’s renovations; and

f) Project close out

EXHIBIT B