FOURTH AMENDMENT OF
LEASE
THIS FOURTH
AMENDMENT OF LEASE (“Fourth Amendment”) is made and
entered into effective as of 4th day of August, 2008 by and between
CSM INVESTORS, INC. , a Minnesota corporation
(“Landlord”) and SYNOVIS LIFE TECHNOLOGIES, INC.
, a Minnesota corporation (“Tenant”).
|
A.
|
|
Landlord and Tenant are parties to a
Lease dated February 28, 1995, as amended by that certain
First Amendment of Lease dated September 23, 2002, as further
amended by that certain Second Amendment of Lease dated
January 1, 2004, and as further amended by that certain Third
Amendment of Lease dated August 1, 2005 (collectively, the
“Lease”), pursuant to which Tenant leases from Landlord
the Premises, consisting of approximately 65,022 square feet
(comprised of 40,120 square feet of office space, 18,436 square
feet of lab space, and 6,466 square feet of warehouse space) within
the WESTGATE BUSINESS CENTER PHASE IV located at 2575
University Avenue West, Suite 180, St. Paul, Minnesota ,
as more particularly described in the Lease.
|
|
|
|
|
|
B.
|
|
The
parties wish to amend certain terms and conditions of the Lease as
more particularly set forth herein.
|
NOW,
THEREFORE , in
consideration of the foregoing recitals, the mutual covenants
herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged,
Landlord and Tenant agree that the Lease is hereby amended as
follows:
|
1.
|
|
Section 1.4 Lease
Term: The
term of the Lease shall be extended for an additional sixty
(60) month period, commencing January 1, 2009 and
expiring December 31, 2013.
|
|
|
|
|
|
2.
|
|
Option Terms; Market
Rate: Landlord and Tenant acknowledge and
agree that execution of this Fourth Amendment by both parties is in
lieu of Tenant’s election to exercise its second and final
option to extend the term of the Lease, as set forth in
Section 14.14 of the initial Lease dated February 28,
1995.
|
|
|
A.
|
|
Option Term . Tenant shall have the option
(“Option”) to extend the term of the Lease for either:
(i) one (1) additional consecutive thirty-six
(36) month term; or (ii) one (1) additional
consecutive sixty (60) month term (“Option Term”)
under the same terms and conditions contained herein, provided
however, that upon Tenant’s exercise of the Option, the Base
Rent shall be adjusted in each instance to equal the then current
market rate for similar space in the “midway” area of
Minneapolis/St. Paul, “mid-city” area of Minneapolis,
and Roseville areas (“Market Area”) determined in
accordance with Section 2.B. below; provided,
however, that in no case shall the market rate be less than the
Base Rental rate then in effect at the time of expiration of the
initial term of the Lease. Tenant may exercise its Option by
delivering written notice to Landlord, stating its irrevocable
intent to exercise the Option and specifying the preferred length
of the Option (as described above), not less than two hundred forty
(240) days and not more than
|
|
|
|
|
three hundred
sixty-five (365) days prior to the expiration of the initial
Lease Term. Tenant’s failure to specify the desired length
within its written notice will result in an automatic sixty
(60) month long Option Term. In the event that Tenant fails to
deliver timely notice of its intent to exercise its Option,
Tenant’s right to the Option shall be deemed null and void.
Conditions of the exercise of the Option shall be that Tenant is
not in Default pursuant to Article 11 of the
Lease and that the Lease is in full force and effect.
|
|
|
B.
|
|
Market Rate Determination
. If the market rate
must be determined in accordance with the provisions of
Section 2.A. above, the parties hereto agree as
follows:
|
|
|
|
|
|
|
|
(1)
|
|
Within fifteen (15) days
following receipt of Tenant’s Renewal Notice for the Option
Term, Landlord will submit to Tenant Landlord’s proposed
market rate determination (“Landlord’s Proposed Market
Rate”).
|
|
|
|
|
|
|
|
(2)
|
|
If
Tenant does not notify Landlord within fifteen (15) days after
receipt of Landlord’s Proposed Market Rate that Tenant
disagrees with Landlord’s Proposed Market Rate, then
Landlord’s Proposed Market Rate shall be deemed approved and
accepted by Tenant. If Tenant timely notifies Landlord of
Tenant’s disagreement with Landlord’s Proposed Market
Rate, then the parties agree to negotiate in good faith for a
period of thirty (30) days following Landlord’s receipt
of Tenant’s notice of disagreement (the “Negotiation
Period”) in an attempt to reach agreement on the market rate.
In connection therewith, each party shall submit to the other party
such evidence as it then has to substantiate its proposed market
rate; including, but not limited to rental rates, tenant
improvements, and abated rent associated with other lease renewal
transactions completed within the Market Area. If the market rate
is not mutually agreed upon by the parties within the Negotiation
Period, the Renewal Notice shall remain in full force and effect
and the market rate shall be determined by arbitration in
accordance with the remaining provisions of this
Section 2.B.
|
|
|
|
|
|
|
|
(3)
|
|
If
the market rate is not mutually agreed upon within the Negotiation
Period, then within ten (10) days after the expiration of the
Negotiation Period, the parties shall choose a neutral individual
having at least ten (10) years recognized brokerage experience
with first-hand knowledge in the determination of commercial rental
rates in the Market Area (“Expert”), and the Expert
shall determine the market rate within twenty (20) business
days after expiration of the Negotiation Period. If the parties
cannot mutually agree on an Expert within ten (10) days after
expiration of the Negotiation Period, each party shall notify the
other as to the name, address, and telephone number of an
arbitrator (having similar experience and qualifications required
of the Expert) it has selected to serve on the board of arbitration
(“Board”). The two (2) arbitrators will appoint a
third arbitrator having such experience and qualifications as
promptly as reasonably possible and the three (3) arbitrators
will
|
|
