**EXHIBIT 10.1**

 

**AMENDMENT TO LEASE**

 

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

 

WITNESSETH:-

 

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

 

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

 

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

 

WHEREAS, in August, 2006 Caliper Life Sciences, Inc. purchasedXenogen Corporation, and following such purchase Xenogen Corporation hascontinued 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

 

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

 

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

 

1.             The First Lease andthe 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 SecondLease shall be changed to $30.05 per square foot for the remaining termthereunder.  Thereafter the two leasesshall be combined into one new Lease for a total of 57,763 rentable square feetof leased space, Tenant shall be the tenant under such combined Lease, and theterms and conditions of the Second Lease shall govern the rights andresponsibilities of the parties thereafter, except as modified by thisAmendment.  All defined terms shall havethe same meaning as set forth in the Second Lease.  All references in the Second Lease toFinished Space and Reserved Space shall be deleted.

 

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

 

a.             The initial term ofthis Lease shall be 5 years (“Initial Term”), to commence on October 1,2009  and to end on the last day of themonth in which occurs the 5th anniversary of the Commencement Date.  In the event Landlord provides at Tenant’srequest any Additional Funding for any further Tenant Improvements, in additionto the Allowance set forth below, the Initial Term of the Lease shall beincreased to 7.5 years from the later of the date of Substantial Completion ofsuch Tenant Improvements or October 1, 2009.  In the event Substantial Completion occursbefore October 1, 2009, the rent set forth in the First and Second Leasesshall remain in effect until October 1, 2009, and the Tenant shall alsopay to Landlord, 

 

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from the date of SubstantialCompletion, the additional rent for the amortized portion of the AdditionalFunding provided by Landlord, as set forth in paragraph 3. b. v. below.

 

b.             The Tenant shall havethe option, upon written notice to the Landlord, to extend the Initial Term to10 years.  In such event, the Base Rentshall increase after the 5th year of the Lease term, as set forth in paragraph4 below.

 

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

 

a.             AnyTenant Improvements that Tenant wishes to perform at the Leased Premises may beconstructed by Tenant using a contractor selected by Tenant and reasonablyapproved by Landlord.  Landlord shallprovide no allowance for such construction. Tenant agrees to pay a fee of 3% of the total cost of the work to beperformed, including all construction and materials, equipment attached to theBuilding, and professional fees incurred by Tenant, but excepting therefrom anyof Tenant’s personal property.  The 3%fee shall be paid to Landlord proportionately with each payment that Tenantmakes toward the total cost of the work to be performed.

 

b.             Tenantshall also have the option of having the construction of the TenantImprovements performed by Landlord.  Insuch event, the provisions of paragraph 3 of the Second Lease shall apply, withthe following changes:

 

i.              In 3.1 delete thereference to 9,890 square feet.

 

ii.             In3.2 (a) the Tenant shall use the architect of its choice The last sentenceof the paragraph shall be deleted.

 

iii.            Paragraph 3.2 (c) isdeleted.

 

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iv.            Paragraph3.3 (a) is deleted.

 

v.             In paragraph 3.4 (a) the Allowancefor construction costs shall be $275,800.00. In addition, Tenant shall have the option to request that Landlord fundup 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 overthe term of the Lease by increasing the annual Base Rent by $7.50 per rentablesquare foot of the Leased Premises for every additional $40.00 per rentablesquare foot of construction costs, or part thereof.  Any cost in excess of the Allowance or theAdditional Funding shall be considered Tenant’s Cost Share and shall be paid asset forth in paragraph 3.4 (a).

 

vi.            The reference in paragraph 3.6 to a fourmonth 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.             Theannual Base Rent as of October 1, 2009, for the Leased Premises in its “ASIS” condition, shall be $30.05 per square foot, for an aggregate annual BaseRent of $1,735,778.15, payable monthly in the amount of $144,648.18.

 

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

 

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Initial Term will be extendedto 7.5 years from Substantial Completion of the Tenant Improvements, or October 1,2009, whichever occurs later.  During theInitial Term the Base Rent in year 6 shall increase by 15% over the rent paidin 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 theBase Rent in order to amortize any construction costs funded by Landlordpursuant to paragraph 3. b. v. hereof.

 

c.             Inthe 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 5thyear, but such increase shall only apply to the initial Base Rent of $30.05 persquare foot and not to any additional amount that may be added to the Base Rentin order to amortize any construction costs funded by Landlord pursuant to paragraph3. b. v. hereof.  Such increase shall bein lieu of and not in addition to the 15% increase set forth in paragraph 4. b.above.

 

5.             Paragraph6 shall be amended by adding the following to the end:

 

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

 

6.             Paragraph 8.4 shallbe deleted and replaced with the following:

 

The Tenant covenants and agrees that it will, at its sole cost andexpense, carry liability insurance covering the Leased Premises in the minimumamount of $2,000,000.00 per accident for 1 person, $5,000,000.00 per accidentfor 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 coverageand umbrella or excess coverage.  TheTenant shall add the Landlord as an additional insured on such policy and will 

 

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furnish Landlord with acertificate of said liability insurance prior to the Commencement Date andannually thereafter.  The certificateshall contain a clause that the policy will not be canceled except on 10 dayswritten notice to the Landlord.

 

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

 

8.             Paragraph 11, FIREAND CASUALTY, shall be modified such that the the reference to “Landlord” inthe 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 rentand replace it with 150% of the Rent.  Inaddition, Tenant shall not be responsible for indemnifying Landlord against anyloss or liability resulting from delay by Tenant in surrendering the LeasedPremises 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 TORENEW, shall be modified to provide that the Base Rent for each renewal termshall increase 15% over the Base Rent for the last month of the prior term, butthe 15% increase shall not apply to any additional amount added to the BaseRent in order to amortize any construction costs funded by Landlord pursuant toparagraph 3 (b) iii. hereof.  Inaddition, Paragraph 42.2 is deleted. Notwithstanding the foregoing, if as a result of an extension of theInitial Term pursuant to paragraph 2.a above, the increase pursuant to thisparagraph shall result in more than one 15% increase in any five-year period,then the effective 

 

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

 

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

 

45.  RIGHT OF FIRST OFFER

 

During the term of this Lease Agreement, Tenant shall have a continuingright of first offer to lease additional space in the Building, which space iscontiguous 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 anyDesignated Space that becomes vacant or that Landlord knows will become vacantas of a certain date.  Tenant shall thenhave 10 business days after receipt of Landlord’s offer to notify Landlordwhether it is interested in leasing the Designated Space.  If Tenant does not respond during said 10business day period, then Landlord shall be free to market the Designated Spaceto other tenants.  If Tenant notifiesLandlord, in writing, that it desires to lease said Designated Space then theparties agree to negotiate in good faith to reach an agreement on the terms ofa lease.  In the event the parties havenot entered into a lease after a 30 day period, Landlord shall be free tomarket the Designated Space to other tenants.

 

13.           Tenant shall not berequired to make any further security deposit.

 

14.           Tenant represents thatits current North American Industry Classification System (“NAICS”) number is541711.

 

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

 

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

 

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IN WITNESSWHEREOF, the parties hereto have hereunto set their hands or caused thesepresents to be executed by their proper corporate officers the day and yearfirst 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 |

 

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