Exhibit 10.5
FOURTH AMENDMENT TO LEASE
THIS FOURTH AMENDMENT TO LEASE (this "Fourth Amendment") dated as of the 19th day of August 2022 (the "Effective Date") is between Deming Way Property Group LLC, a Wisconsin limited liability company ("Landlord"), and Accuray Incorporated, a Delaware corporation ("Tenant").
Recitals:
WHEREAS, Landlord is the current landlord under the Lease (defined herein), and Tenant is the current tenant under the Lease; and
WHEREAS, pursuant to the Lease, Tenant occupies certain premises consisting of approximately 61,410 rentable square feet of office space plus ( ) below grade bunkers in Landlord's building located at 1240 Deming Way, City of Madison, Dane County, Wisconsin (the "Premises"); and
WHEREAS, Landlord and Tenant desire to enter into this Fourth Amendment in connection with the extension of the term of the Lease, all as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Landlord and Tenant agree as follows:
1. Interpretation: Capitalized Terms. As used in this Fourth Amendment, the term "Lease" means those documents identified on Exhibit A attached hereto and incorporated herein as modified by this Fourth Amendment. Undefined capitalized terms used in this Fourth Amendment shall have the meanings given to them in the Lease. References in this Amendment to the “Original Lease” shall mean the October 22, 2001 Office Lease Agreement identified as No. 1 in Exhibit A.
PREMISES (61,410 Rentable Square Feet)
Extension Term | Monthly Base Rent | PRSF | Annual Base Rent |
July 1, 2025 through June 30, 2026 | $104,908.75 | $20.50 | $1,258,905.00 |
July 1, 2026 through June 30, 2027 | $107,467.50 | $21.00 | $1,289,610.00 |
July 1, 2027 through June 30, 2028 | $110,026.25 | $21.50 | $1,320,315.00 |
July 1, 2028 through June 30, 2029 | $112,585.00 | $22.00 | $1,351,020.00 |
July 1, 2029 through June 30, 2030 | $115,143.75 | $22.50 | $1,381,725.00 |
July 1, 2030 through June 30, 2031 | $117,702.50 | $23.00 | $1,412,430.00 |
July 1, 2031 through June 30, 2032 | $120,261.25 | $23.50 | $1,443,135.00 |
July 1, 2032 through June 30, 2033 | $122,820.00 | $24.00 | $1,473,840.00 |
July 1, 2033 through June 30, 2034 | $125,378.75 | $24.50 | $1,504,545.00 |
July 1, 2034 through June 30, 2035 | $127,937.50 | $25.00 | $1,535,250.00 |
be in writing and counterparts thereof shall be delivered to Landlord and Tenant within said forty-five (45) day period. The Neutral Arbitrator shall have no right or ability to determine the fair market rental rate in any other manner. The Final Determination shall be binding upon the parties hereto. The costs and fees of the Neutral Arbitrator shall be split equally by Landlord and Tenant. If Tenant’s Arbitrator and Landlord’s Arbitrator fail to appoint the Neutral Arbitrator within the time and in the manner prescribed herein, then Landlord and Tenant shall jointly and promptly apply to the local office of the American Arbitration Association for the appointment of the third arbitrator.
Lease to the following address:
If to Landlord: | Deming Way Property Group LLC c/o SARA Investment Real Estate LLC 1955 Atwood Avenue Madison, WI 53704 |
and attornment agreement in customary form assuring that, so long as Tenant is not in default under the Lease beyond any applicable notice and cure period, no foreclosure or deed in lieu of foreclosure or other disposition of the Premises will result in any disturbance to Tenant’s right to possession and will require the Holder or foreclosure purchaser to recognize the Lease, subject to customary exclusions for liabilities of Landlord accruing prior to the foreclosure or like disposition.
(iii) such other financial information as Landlord may reasonably request. Tenant may condition the delivery of such financial information upon the due execution by both Landlord and its lender or prospective lender, and the delivery to Tenant, of one or more non-disclosure agreements in commercially reasonable form obligating each such person to preserve and protect the confidentiality of financial information supplied by Tenant. Tenant is not required to supply any financial information duplicating that previously furnished by Tenant under this section or which pertains to a period when Tenant’s shares were publicly traded.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, Landlord and Tenant have executed this Fourth Amendment as of the date first set forth above.
Landlord: DEMING WAY PROPERTY GROUP LLC a Wisconsin limited liability company By: Sara Investment Real Estate LLC, Manager By: /s/ Eric M. Schwartz Eric M. Schwartz, President & CEO | Tenant: ACCURAY INCORPORATED, a Delaware corporation
By: /s/ Jesse Chew |
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Exhibit A
The Lease
The "Lease" as used in this Fourth Amendment, means collectively, the following documents, as amended by the Fourth Amendment:
Exhibit B Form of SNDA
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
1240 Deming Way, Madison, Wisconsin
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this “Agreement”) is made as of , 2022 (the “Effective Date”), among Bell Bank, a North Dakota banking corporation (“Lender”), Deming Way Property Group LLC, a Wisconsin limited liability company (“Landlord”), and Accuray Incorporated, a Delaware corporation (“Tenant”).
RECITALS:
AGREEMENT:
NOW, THEREFORE, the parties hereby agree as follows:
Notwithstanding anything in this Agreement to the contrary, if Lender becomes the owner of the Property through foreclosure of the Mortgage, deed in lieu of foreclosure or by other exercise of Lender’s remedies under the Mortgage, the liability of Lender shall be limited to its interest in the Property and in no event shall Lender have any personal liability to Tenant. Upon any sale or transfer by a New Owner of its interest in the Leased Premises after acquiring title to the same, said New Owner shall thereupon be automatically released and discharged from all liability accruing under the Lease from and after the Acquisition Date provided that the transferee expressly assumes the obligations under the Lease.
If to Lender: | Bell Bank The Colonnade 5500 Wayzata Boulevard Minneapolis, MN 55416 Attention: Kelly Manke Facsimile: 952-746-1404 |
If to Landlord: | Deming Way Property Group LLC 1955 Atwood Avenue Madison, WI 53704 Attention: Eric M. Schwartz Facsimile: 608-237-7695 |
If to Tenant: | Accuray Incorporated 1310 Chesapeake Terrace Sunnyvale, CA 94089 Attention: CFO, General Counsel |
[Signature page follows.]
IN WITNESS WHEREOF, this Subordination, Non-Disturbance and Attornment Agreement has been duly executed as of the day and year first above written.
LENDER: |
BELL BANK, a North Dakota banking corporation |
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By:______________________________________ |
Name: Kelly Make |
Title: Senior Vice President |
STATE OF______________________________ |
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COUNTY OF______________________________ |
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The foregoing was acknowledged before me this day of , 2022, by Kelly Manke, a Senior Vice President of Bell Bank, a North Dakota banking corporation, on behalf of the corporation.
Notary Public
Subordination, Non-Disturbance and Attornment Agreement (1240 Deming Way, Madison, WI)
LANDLORD: |
DEMING WAY PROPERTY GROUP LLC By Sara Investment Real Estate, LLC, its Manager |
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By:___________________________________ |
Name: Eric M. Schwartz |
Title: President & CEO |
STATE OF WISCONSIN |
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COUNTY OF DANE_____________________ |
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The foregoing was acknowledged before me this day of , 2022, by Eric M. Schwartz, the President & CEO of Sara Investment Real Estate LLC, the manager of Deming Way Property Group LLC, on behalf of such entity.
___________________________
Notary Public
My commission:___________________
Subordination, Non-Disturbance and Attornment Agreement (1240 Deming Way, Madison, WI)
TENANT: |
ACCURAY INCORPORATED
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By:_____________________________________ |
Name:_________________________________ |
Its: _____________________ |
STATE OF______________________________ |
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COUNTY OF______________________________ |
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The foregoing was acknowledged before me this day of , 2022, by
, the of , a
on behalf of such entity.
________________________________
Notary Public
My commission:___________________
Subordination, Non-Disturbance and Attornment Agreement (1240 Deming Way, Madison, WI)
EXHIBIT A
Lease
Office Lease dated October 22, 2001 between Landlord (as successor in interest to Old Sauk Trails Park Limited Partnership, a Wisconsin limited partnership) and Tenant (as successor in interest to Tomotherapy Incorporated, a Wisconsin corporation), as accompanied by that certain Addendum to Lease dated October 22, 2001 between Landlord and Tenant, as further memorialized by that certain Reference Data (No. 1) dated October 22, 2001 executed by Landlord and Tenant, as further memorialized by that certain Reference Data (No. 2) dated March 8, 2002 executed by Landlord and Tenant, as further memorialized by that certain Reference Data (No. 3) dated May 2002 executed by Landlord and Tenant, as further memorialized by that certain Reference Data (No. 4) dated January 30, 2004 executed by Landlord and Tenant, as further memorialized by that certain Reference Data (No. 5) dated April 2004 executed by Landlord and Tenant, as amended by that certain First Amendment to Lease dated May 1, 2004, as further memorialized by that certain Reference Data (No. 6) dated January 26, 2005 executed by Landlord and Tenant, as further memorialized by that certain Reference Data (No. 7) dated November 16, 2012 executed by Landlord and Tenant, as assigned by that certain 1240 Deming Way, Madison, WI, Assignment of Lease to Accuray Incorporated effective June 1, 2013, as further amended by that certain Second Amendment to Lease dated October 19, 2016, as further memorialized by that certain Reference Data (No. 8) dated October 19, 2016 executed by Landlord and Tenant, as further amended by that certain Third Amendment to Lease dated March 27, 2020, as further amended by that certain Fourth Amendment to Lease dated [ ], 2022.
EXHIBIT B
Legal Description
PARCEL A:
LOTS SIXTY-FIVE (65) AND SIXTY-SIX (66) OLD SAUK TRAILS PARK SIXTH ADDITION, IN THE CITY OF MADISON, DANE COUNTY, WISCONSIN.
PARCEL B:
TOGETHER WITH EASEMENT ESTABLISHED IN ENCROACHMENT AGREEMENT RECORDED MAY 16, 2006 AS DOCUMENT NO. 4192227 AND BY FIRST AMENDMENT TO ENCROACHMENT AGREEMENT RECORDED MAY 16, 2007 AS DOCUMENT NO. 4309999.
FOR INFORMATIONAL PURPOSE ONLY:
PROPERTY ADDRESSES: 1240 DEMING WAY & 1425 N. PLEASANT VIEW ROAD, MADISON WI TAX PARCEL NO. 251/0708-152-0103-6 & 251/0708-152-0102-8