EXHIBIT 10.1


 


AMENDMENT TO LEASE


 


THIS AMENDMENT TO LEASE (“Amendment”) dated June 27, 2008 by and
between CEDAR BROOK 5 CORPORATE CENTER, L.P. having an office at 1000 Eastpark
Boulevard, Cranbury, N J  08512,
(hereinafter called the “Landlord”); and XENOGEN BIOSCIENCES CORPORATION,
having an office at 5 Cedar Brook Drive, Cranbury NJ 08512 (hereinafter called
the “Tenant”).


 


W  I  T  N  E  S
S  E  T  H  :-


 


WHEREAS,  The Landlord entered
into a Lease dated August 31, 1998 
with Chrysalis DNX Transgenic Science Corp. (“First Lease”), for 41,200
square feet of space representing a portion of the Building located at 5 Cedar
Brook Drive, Cranbury, NJ 08512; and


 


WHEREAS, Chrysalis DNX Transgenic Science Corp. was subsequently
purchased by Xenogen Corporation, and following such purchase Chrysalis DNX
Transgenic Science Corp. changed its name to Xenogen Biosciences Corporation
and operated as a wholly owned subsidiary of Xenogen Corporation; and


 


WHEREAS, Xenogen Corporation then entered into a second Lease (“Second
Lease”) with Landlord dated December 29, 2004 for 16,563 square feet of
space in the same Building; and


 


WHEREAS, in August, 2006 Caliper Life Sciences, Inc. purchased
Xenogen Corporation, and following such purchase Xenogen Corporation has
continued to operate as a wholly owned subsidiary of Caliper Life Sciences, Inc.;
and


 


WHEREAS, the initial term of the each lease expires on September 30,
2009; and


 

















 


WHEREAS, the
parties now wish to extend the lease term, amend certain portions of the Second
Lease and add additional provisions to the Second Lease.


 


NOW,
THEREFORE, the parties hereto covenant and agree as follows:


 


1.             The First Lease and
the Second Lease shall remain in effect until their expiration dates of September 30,
2009 except that the annual Base Rent under the First Lease and the Second
Lease shall be changed to $30.05 per square foot for the remaining term
thereunder.  Thereafter the two leases
shall be combined into one new Lease for a total of 57,763 rentable square feet
of leased space, Tenant shall be the tenant under such combined Lease, and the
terms and conditions of the Second Lease shall govern the rights and
responsibilities of the parties thereafter, except as modified by this
Amendment.  All defined terms shall have
the same meaning as set forth in the Second Lease.  All references in the Second Lease to
Finished Space and Reserved Space shall be deleted.


 


2.             Paragraph 2, TERM OF
LEASE, shall be replaced by the following:


 


a.             The initial term of
this Lease shall be 5 years (“Initial Term”), to commence on October 1,
2009  and to end on the last day of the
month in which occurs the 5th anniversary of the Commencement Date.  In the event Landlord provides at Tenant’s
request any Additional Funding for any further Tenant Improvements, in addition
to the Allowance set forth below, the Initial Term of the Lease shall be
increased to 7.5 years from the later of the date of Substantial Completion of
such Tenant Improvements or October 1, 2009.  In the event Substantial Completion occurs
before October 1, 2009, the rent set forth in the First and Second Leases
shall remain in effect until October 1, 2009, and the Tenant shall also
pay to Landlord, 


 

















 


from the date of Substantial
Completion, the additional rent for the amortized portion of the Additional
Funding provided by Landlord, as set forth in paragraph 3. b. v. below.


 


b.             The Tenant shall have
the option, upon written notice to the Landlord, to extend the Initial Term to
10 years.  In such event, the Base Rent
shall increase after the 5th year of the Lease term, as set forth in paragraph
4 below.


 


3.             Paragraph 3,
CONSTRUCTION OF TENANT IMPROVEMENTS, shall be amended as follows:


 


a.             Any
Tenant Improvements that Tenant wishes to perform at the Leased Premises may be
constructed by Tenant using a contractor selected by Tenant and reasonably
approved by Landlord.  Landlord shall
provide no allowance for such construction. 
Tenant agrees to pay a fee of 3% of the total cost of the work to be
performed, including all construction and materials, equipment attached to the
Building, and professional fees incurred by Tenant, but excepting therefrom any
of Tenant’s personal property.  The 3%
fee shall be paid to Landlord proportionately with each payment that Tenant
makes toward the total cost of the work to be performed.


 


b.             Tenant
shall also have the option of having the construction of the Tenant
Improvements performed by Landlord.  In
such event, the provisions of paragraph 3 of the Second Lease shall apply, with
the following changes:


 


i.              In 3.1 delete the
reference to 9,890 square feet.


 


ii.             In
3.2 (a) the Tenant shall use the architect of its choice The last sentence
of the paragraph shall be deleted.


 


iii.            Paragraph 3.2 (c) is
deleted.


 

















 


iv.            Paragraph
3.3 (a) is deleted.


 


v.             In paragraph 3.4 (a) the Allowance
for construction costs shall be $275,800.00. 
In addition, Tenant shall have the option to request that Landlord fund
up to an additional 25% to 33% of the construction costs (“Additional Funding”),
such allowable percentage amount to be determined by Landlord’s lender.  The Additional Funding will be amortized over
the term of the Lease by increasing the annual Base Rent by $7.50 per rentable
square foot of the Leased Premises for every additional $40.00 per rentable
square foot of construction costs, or part thereof.  Any cost in excess of the Allowance or the
Additional Funding shall be considered Tenant’s Cost Share and shall be paid as
set forth in paragraph 3.4 (a).


 


vi.            The reference in paragraph 3.6 to a four
month period to complete construction, and the date of April 1, 2005,
shall be deleted.


 


4.             Paragraph 4.1, RENT,
shall be deleted and replaced with the following:


 


a.             The
annual Base Rent as of October 1, 2009, for the Leased Premises in its “AS
IS” condition, shall be $30.05 per square foot, for an aggregate annual Base
Rent of $1,735,778.15, payable monthly in the amount of $144,648.18.


 


b.             In
the event Landlord provides at Tenant’s request any Additional Funding for any
further Tenant Improvements in addition to the Allowance, the Base Rent shall
be increased in accordance with the formula set forth in paragraph 3. b. v.
above.  In addition, the 


 

















 


Initial Term will be extended
to 7.5 years from Substantial Completion of the Tenant Improvements, or October 1,
2009, whichever occurs later.  During the
Initial Term the Base Rent in year 6 shall increase by 15% over the rent paid
in the 5th year, but such increase shall only apply to the initial Base Rent of
$30.05 per square foot and not to any additional amount that may be added to the
Base Rent in order to amortize any construction costs funded by Landlord
pursuant to paragraph 3. b. v. hereof.


 


c.             In
the event Tenant exercises its option to increase the Lease term to 10 years,
the Base Rent in year 6 shall increase by 15% over the rent paid in the 5th
year, but such increase shall only apply to the initial Base Rent of $30.05 per
square foot and not to any additional amount that may be added to the Base Rent
in order to amortize any construction costs funded by Landlord pursuant to paragraph
3. b. v. hereof.  Such increase shall be
in lieu of and not in addition to the 15% increase set forth in paragraph 4. b.
above.


 


5.             Paragraph
6 shall be amended by adding the following to the end:


 


Tenant shall have access to the Building and its respective parking
lots 7 days per week and 24 hours per day.


 


6.             Paragraph 8.4 shall
be deleted and replaced with the following:


 


The Tenant covenants and agrees that it will, at its sole cost and
expense, carry liability insurance covering the Leased Premises in the minimum
amount of $2,000,000.00 per accident for 1 person, $5,000,000.00 per accident
for 2 or more persons, and a minimum amount of $500,000.00 for property damage,
with a deductible of no more than $20,000.00.   
The foregoing limits may be carried in a combination of primary coverage
and umbrella or excess coverage.  The
Tenant shall add the Landlord as an additional insured on such policy and will 


 

















 


furnish Landlord with a
certificate of said liability insurance prior to the Commencement Date and
annually thereafter.  The certificate
shall contain a clause that the policy will not be canceled except on 10 days
written notice to the Landlord.


 


7.             Paragraph 10,
ASSIGNMENT AND SUBLETTING, shall be modified to provide that Landlord’s reasonable
consent shall be limited to determining the compatibility of the subtenant to
the Building.


 


8.             Paragraph 11, FIRE
AND CASUALTY, shall be modified such that the the reference to “Landlord” in
the first sentence shall be changed to “either party” and the reference to “Tenant”
in the first sentence shall be changed to “other”.


 


9.             Paragraph 27,
SURRENDER OF PREMISES, shall be modified to remove the reference to double rent
and replace it with 150% of the Rent.  In
addition, Tenant shall not be responsible for indemnifying Landlord against any
loss or liability resulting from delay by Tenant in surrendering the Leased
Premises for the first 60 days of the holdover period.


 


10.           Paragraph 37,
BROKERAGE, shall be modified to remove the reference to CB Richard Ellis, Inc.
and replace it with Lincoln Property Company.


 


11.           Paragraph 42, OPTION TO
RENEW, shall be modified to provide that the Base Rent for each renewal term
shall increase 15% over the Base Rent for the last month of the prior term, but
the 15% increase shall not apply to any additional amount added to the Base
Rent in order to amortize any construction costs funded by Landlord pursuant to
paragraph 3 (b) iii. hereof.  In
addition, Paragraph 42.2 is deleted. 
Notwithstanding the foregoing, if as a result of an extension of the
Initial Term pursuant to paragraph 2.a above, the increase pursuant to this
paragraph shall result in more than one 15% increase in any five-year period,
then the effective 


 

















 


date of the increase under this
paragraph shall be delayed until the sixth year following the prior 15%
increase.


 


12.           A new paragraph 45
shall be added to the Lease as follows:


 


45.  RIGHT OF FIRST OFFER


 


During the term of this Lease Agreement, Tenant shall have a continuing
right of first offer to lease additional space in the Building, which space is
contiguous to the Leased Premises and is, as of the date of this Amendment,
currently leased to other tenants (“Designated Space”).  Landlord shall first offer to Tenant any
Designated Space that becomes vacant or that Landlord knows will become vacant
as of a certain date.  Tenant shall then
have 10 business days after receipt of Landlord’s offer to notify Landlord
whether it is interested in leasing the Designated Space.  If Tenant does not respond during said 10
business day period, then Landlord shall be free to market the Designated Space
to other tenants.  If Tenant notifies
Landlord, in writing, that it desires to lease said Designated Space then the
parties agree to negotiate in good faith to reach an agreement on the terms of
a lease.  In the event the parties have
not entered into a lease after a 30 day period, Landlord shall be free to
market the Designated Space to other tenants.


 


13.           Tenant shall not be
required to make any further security deposit.


 


14.           Tenant represents that
its current North American Industry Classification System (“NAICS”) number is
541711.


 


15.           Except as set forth
above, all other terms and conditions of the Lease shall remain in full force
and effect, unimpaired and unmodified.


 


16.           This Amendment shall be
binding upon the parties hereto, their heirs, successors and assigns.


 

















 


IN WITNESS
WHEREOF, the parties hereto have hereunto set their hands or caused these
presents to be executed by their proper corporate officers the day and year
first above written.


 


 


	
   

  	
  CEDAR BROOK 5 CORPORATE CENTER, L.P.

  
	
   

  	
  By Cedar Brook 5, Inc., its General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
         /s/ Joseph Stern

  
	
   

  	
            A. Joseph
  Stern, President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  XENOGEN BIOSCIENCES CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
         /s/ Peter McAree

  
	
   

  	
            Peter
  McAree, Chief Financial Officer