1
EXHIBIT 10.12
RENAULT & ▇▇▇▇▇▇▇
INDUSTRIAL & COMMERCIAL REAL ESTATE
This LEASE, executed in duplicate at Palo Alto, California, this 5th
PARTIES day of February, by and between
Zappettini Investment Co.
and
Intuitive Surgical
hereinafter called respectively Lessor and Lessee, without regard
to number or gender,
PREMISES 1. WITNESSETH: That Lessor hereby leases to Lessee, and Lessee hires
from Lessor, those certain premises, hereinafter in this lease
designated as "the Premises", with the appurtenances, situated in the
City of Mountain View, County of Santa ▇▇▇▇▇, State of California,
and more particularly described as follows, to-wit:
An approximate 25,000 square foot industrial building commonly
referred to as ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
together with landscaped areas and parking lot and further described
in Exhibit A attached hereto.
USE 2. The Premises shall be used and occupied by Lessee for the
development and technology in the field of minimum evasive surgery
and for no other purpose without the prior written consent of Lessor.
TERM 3. The term shall be for five (5) years, commencing on 1st day of
April, 1997, and ending on the 28th day of February 2002.
RENTAL 4. Rent shall be payable to the Lessor without deduction or offset at
such place or places as may be designated from time to time by the
Lessor as follows:
Seventeen Thousand Five Hundred and No/100ths Dollars ($17,500.00)
shall be due upon the execution of this Lease representing rental due
April 1, 1997. $17,750.00 shall be due on the 1st day of May 1997 and
on the 1st day of each and every month including September
1997. Twenty Two Thousand Five Hundred and No/100ths Dollars
($22,500.00) shall be due on October 1, 1997 and on the 1st day of
each and every month including March 1, 1998. Thirty Two Thousand
Five Hundred and No/100ths Dollars ($32,500.00) shall be due on April
1, 1998 and on the 1st day of each and every succeeding month
including February 1, 2002.
2
SECURITY 5. Lessee has deposited with Lessor $ - as security
DEPOSIT for the full and faithful performance of each and every term,
provision, covenant and condition of this Lease. In the event Lessee
defaults in respect of any of the terms, provisions, covenants or
conditions of this Lease, including, but not limited to the payment of
rent, Lessor may use, apply or retain the whole or any part of such
security for the payment of any rent in default or for any other sum
which Lessor may spend or be required to spend by reason of Lessee's
default. Should Lessee faithfully and fully comply with all of the
terms, provisions, covenants and conditions of this Lease, the
security of any balance thereof shall be returned to Lessee or, at the
option of Lessor, to the last assignee of Lessee's interest in this
Lease at the expiration of the term hereof. Lessee shall not be
entitled to any interest on said security deposit.
POSSESSION 6. If Lessor, for any reason whatsoever, cannot deliver
possession of the Premises to Lessee at the commencement of the
said term, as hereinbefore specified, this Lease shall not be void
or voidable, nor shall Lessor, or Lessor's agents, be liable to
Lessee for any loss or damage resulting therefrom; but in that
event the commencement and termination dates of the Lease and all
other dates affected thereby shall be revised to conform to the
date of Lessor's delivery of possession. The above is, however,
subject to the provision that the period of delay of delivery of
the Premises shall not exceed- days from the commencement date herein.
If the period of delay of delivery exceeds the foregoing, Lessee,
at his or its option, may declare this Lease null and void.
ACCEPTANCE 7. By entry hereunder, the Lessee accepts and Lessor warrants OF the
OF Premises as being in good and satisfactory working condition, unless
PREMISES within fifteen (15) days after such entry Lessee shall give Lessor
AND CONSENT written notice specifying in reasonable detail the respects in which the
TO Premises were not in satisfactory condition. The Lessee agrees on the last
SURRENDER day of the term hereof, or on sooner termination of this Lease, to
surrender the premises, together with all alterations, additions, and
improvements which may have been made in, to, or on the
Premises by Lessor or Lessee including all HVAC, electrical
and mechanical systems, unto Lessor in the same good condition
as at Lessee's entry into the Premises excepting for such wear
and tear as would be normal for the period of the Lessee's
occupancy. The Lessee, on or before the end of the term or
sooner termination of this Lease, shall remove all Lessee's
personal property and trade fixtures from the premises and all
property not so removed shall be deemed to be abandoned by the
Lessee. If the Premises be not surrendered at the end of the
term or sooner termination of this Lease, the Lessee shall
indemnify the Lessor against loss or liability resulting from
delay by the Lessee in so surrendering the Premises including,
without limitation, any claims made by any succeeding tenant
founded on such delay.
8. Lessee shall not commit, or suffer to be committed, any
USES PROHIBITED waste upon the Premises, or any nuisance, or other
act or thing which may disturb the quiet enjoyment of any other
tenant in oraround the buildings in which the Premises may be
located, or allow any sale by auction upon the Premises, or
allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose, or place any loads upon the
floor, walls, or roof which endanger the structure, or place
any harmful liquids in the drainage system of the building. No
waste materials or refuse shall be dumped upon or permitted to
remain upon any part of the Premises outside of the building
proper. No materials, supplies, equipment, finished products
or semi-finished products, raw materials or articles of any
nature shall be stored upon or permitted to remain on any
portion of the Premises outside of the buildings proper.
unless they are in approved enclosures.
3
ALTERATIONS 9. The lessee shall make no alterations, additions or
AND improvements in excess of $10,000 to the Premises or any part thereof
ADDITIONS without first obtaining the prior written consent of the
Lessor. The Lessor may impose as a condition to the aforesaid
consent such requirements as Lessor may deem necessary in
Lessor's sole discretion, including without limitation thereto,
the manner in which the work is done, a right of approval of the
contractor by whom the work is to be performed, the times during
which it is to be accomplished, and the requirements that upon
written request of Lessor prior to the expiration or earlier
termination of the Lease, Lessee will remove any or all
improvements or additions to the Premises installed at Lessee's
expense. All such alterations, additions or improvements not
specified to be removed shall at the expiration of earlier
termination of the lease become the property of the Lessor and
remain upon and be surrendered with the Premises. All movable
furniture, business and trade fixtures, and machinery equipment
and all special electrical, mechanical or HVAC systems installed
by Lessee and used solely for the purpose of Lessee's
manufacturing process, shall remain the property of the Lessee
and may be removed by the Lessee at any time during the Lease
term when Lessee is not in default hereunder. Items which are not
to be deemed as movable furniture, business and trade fixtures,
or machinery and equipment shall include heating, lighting,
electrical systems, air conditioning, partitioning, carpeting, or
any other installation which as become an integral part of the
Premises. The Lessee will at all times permit notices of
non-responsibility to be posted and to remain posted until the
completion of alterations or additions which have been approved
by the Lessor.
▇▇▇▇▇▇- ▇▇. Lessee shall, at Lessee's sole cost, keep and maintain the
▇▇▇▇▇ OF Premises and appurtenances and every part thereof, including but not
PREMISES limited to, glazing, sidewalks, parking areas including resealing
when necessary, plumbing, electrical systems, heating and air
conditioning installations, any store front, roof covering-unless it
is not feasible to repair the existing roof covering and a new roof
covering is required, and the interior of the Premises in good order,
condition, and repair. Lessor at Lessor's sole cost and expense
shall maintain the exterior of the walls, and structural portions of
the roof, foundations, walls, and floors except for any repairs
caused by the wrongful act of the Lessee and Lessee's agents. The
Lessor will replace the roof covering if repairs to said covering are
no longer economically feasible in the judgment of roofing experts,
and provided that said replacement is not made necessary by acts of
the Lessee and Lessee's agents. The Lessee shall water, maintain and
replace, when necessary, any shrubbery and landscaping provided by
the Lessor on the Premises. The Lessee expressly waives the benefits
of any statute now or hereafter in effect which would otherwise
afford the Lessee the right to make repairs at Lessor's expense or to
terminate this lease because of Lessor's failure to keep the Premises
in good order, conditions or repair.
4
SEE REVISED INSURANCE CLAUSE ATTACHED
ABANDON- 12. Lessee shall not vacate or abandon the Premises at
MENT any time during the term; and if Lessee shall abandon, vacate
or surrender the premises, or be dispossessed by process of law,
or otherwise, any personal property belonging to Lessee and left
on the Premises shall be deemed to be abandoned, at the option
of Lessor, except such property as may be mortgaged to Lessor.
Abandonment shall be defined as outlined in Section 1951.3 of
the California Civil Code.
FREE FROM 13. Lessee shall keep the Premises and the property in
LIENS which the Premises are situated, free from any liens arising
out of any work performed, materials furnished, or
obligations incurred by Lessee.
COMPLIANCE 14. Lessee shall, at his sole cost and expense, comply
WITH with all of the requirements of all Municipal, State and
GOVERN- Federal authorities now in force, or which may hereafter be
MENTAL in force, pertaining to Lessee's specific use the Premises,
REGULATIONS and shall faithfully observe in the use of the Premises all
Municipal ordinances and State and Federal statutes now in force
or which may hereafter be in force. The judgment of any court of
competent jurisdiction, or the admission of Lessee in any action
or proceeding against Lessee, whether Lessor be a party thereto
or not, that Lessee has violated any such ordinance or statute in
the use of the Premises, shall be conclusive of that fact as
between Lessor and Lessee.
INDEMNI- 15. The Lessee, as a material part of the consideration to be
FICATION OF rendered to the Lessor, hereby waives all claims against the
LESSOR AND Lessor for damages to goods, wares and merchandise, and all other
LESSEE'S personal property in, upon, or about the Premises and for
LIABILITY injuries to persons in or about the Premises, from any cause
INSURANCE arising at any time, excepting claims arising from the Lessor's
negligence, and the Lessee will hold the Lessor exempt and
harmless from any damage or injury to any person, or to the
goods, wares and merchandise and all other personal property of
any person, arising from the use of the Premises by the Lessee,
or from the failure of the Lessee to keep the Premises in good
condition and repair, as herein provided.
SEE REVISED INSURANCE CLAUSE ATTACHED
ADVERTISE- 16. Lessee will not place or permit to be placed, in, upon or
MENTS AND about the Premises any unusual or extraordinary signs, or any
SIGNS signs not approved by the city or other governing authority. The
Lessee will not place, or permit to be placed, upon the
Premises, any signs, advertisements or notices without the
written consent of the Lessor first had and obtained. Any sign so
placed upon the Premises shall be so placed upon the
understanding and agreement that Lessee will remove same at the
termination of the tenancy herein created and repair any damage
or injury to the Premises caused thereby, and if not so removed
by Lessee then Lessor may have same so removed at Lessee's
expense.
UTILITIES 17. Lessee shall pay for all water, gas, heat, light, power,
telephone service and all other service supplied to the Premises.
If the premises are not served by a separate water meter, the
Lessee shall pay to the Lessor 100 percent of the water ▇▇▇▇ for
the entire property covered by said ▇▇▇▇ and of which the
Premises are a part.
ATTORNEY'S 18. In case suit should be brought for the possession of the
FEES Premises, for the recovery of any sum due hereunder, or because
of the breach of any other covenant herein, the losing party
shall pay to the prevailing party a reasonable
5
attorney's fee, which shall be deemed to have accrued on the
commencement of such action and shall be enforceable whether
or not such action is prosecuted to judgment.
DEFAULT 19. In the event of any breach of this Lease by the
Lessee, or an abandonment of the Premises by the Lessee, the
Lessor has the option of 1) removing all persons and property
from the Premises and repossessing the Premises in which case
any of the Lessee's property which the Lessor removes from the
Premises may be stored in a public warehouse or elsewhere at
the cost of, and for the account of Lessee, or 2) allowing the
Lessee to remain in full possession and control of the
Premises. If the Lessor chooses to repossess the Premises, the
Lease will automatically terminate in accordance with
provisions of the California Civil Code, Section 1951.2. In
the event of such termination of the Lease, the Lessor may
recover from the Lessee: 1) the worth at the time of award of
the unpaid rent which had been earned at the time of
termination including interest at 7% per annum; 2) the worth
at the time of award of the amount by which the unpaid rent
which would have been earned after termination until the time
of award exceeds the amount of such rental loss that the
Lessee proves could have been reasonably avoided including
interest at 7% per annum; 3) the worth at the time of award of
the amount by which the unpaid rent for the balance
of the term after the time of award exceeds the amount of such
rental loss that the Lessee proves could be reasonably
avoided; and 4) any other amount necessary to compensate the
Lessor for all the detriment proximately caused by the
Lessee's failure to perform his obligations under the Lease or
which in the ordinary course of things would be likely to
result therefrom. If the Lessor chooses not to repossess the
premises, but allows the Lessee to remain in full possession
and control of the Premises, then in accordance with
provisions of the California Civil Code, Section 1951.4, the
Lessor may treat the Lease as being in full force and effect,
and may collect from the Lessee all rents as they become due
through the termination date of the lease as specified in the
lease. For the purposes of this paragraph, the following do
not constitute a termination of Lessee's right to possession:
a) Acts of maintenance or preservation or efforts to relet the
property.
b) The appointment of a receiver on the initiative of the
Lessor to protect his interest under this Lease.
LATE 20. Lessee hereby acknowledges that late payment by
CHARGES Lessee to Lessor of rent and other sums due hereunder will
cause Lessor to incur costs not contemplated by this lease,
the exact amount of which will be extremely difficult to
ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may
be imposed on Lessor by the terms of any mortgage or trust
deed covering the Premises. Accordingly, if any installment of
rent or any other sum due from Lessee shall not be received by
Lessor or Lessor's designee within ten (10) days after such
amount shall be due, Lessee shall pay to Lessor a late charge
equal to ten percent (10%) of such overdue amount. The parties
hereby agree that such late charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason
of late payment by Lessee. Acceptance of such late charge by
Lessor shall in no event constitute a waiver of
6
REVISED INSURANCE CLAUSE
This Lease Clause replaces the Insurance clause (11.) in the
Renault & ▇▇▇▇▇▇▇ Net Lease Form.
11. Lessee shall not use, or permit the Premises, or any part
thereof, to be used, for any purposes other than that for
which the Premises are hereby leased; and no use shall be made
or permitted to be made on the Premises, nor acts done, which
will cause a cancellation of any insurance policy covering
said building, or any part thereof, nor shall Lessee sell or
permit to be kept, used or sold, in or about the premises, any
article which may be prohibited by the standard form of fire
insurance policies. Lessee shall, at his sole cost and
expense, comply with any and all requirements, pertaining to
the Lessee's use and occupancy of the Premises, of any
insurance organization or company, necessary for the
maintenance of reasonable fire and public liability insurance,
covering said building and appurtenances.
11.1 Lessee shall, at its expense, obtain and keep in force
during the term of this Lease a policy of comprehensive public
liability insurance insuring Lessee, Lessor agents, invitees
and contractors including, Lessor's lender, against any
liability arising out of the Lessee's use, occupancy or
maintenance of the Premises. Such insurance policy shall have
a combined single limit for both bodily injury and property
damage in an amount not less than ONE MILLION Dollars
($1,000,000.00). The limits of said insurance shall not limit
the liability of Lessee hereunder.
INSURANCE 11.2 Lessee shall, at its expense, keep in force during the
term of this Lease, a policy of fire and property damage
insurance in an "all risk" form with a sprinkler leakage
endorsement, insuring Lessee's inventory, fixtures, equipment
and personal property within the Premises for the full
replacement value thereof.
11.3 Lessor shall maintain a policy or policies of fire and
property damage insurance in an "all risk" form, with
sprinkler and, at the option of the Lessor, earthquake
endorsements, covering loss or damage to the building,
including Lessee's leasehold improvements installed with the
written consent of the Lessor, in such amounts and with such
coverage as Lessor deems advisable.
11.4 Lessee shall pay to Lessor as additional rent, during the
term hereof within 10 days after receipt of an invoice
therefore, 100 percent of the premiums for any insurance
obtained by Lessor pursuant to 11.3 above. Lessor may obtain
such insurance for the Building separately, or together with
other buildings and improvements which Lessor elects to insure
together under blanket policies of insurance. In such case
Lessee shall be liable for only such portion of the premiums
for such blanket policies as are allocable to the Premises. It
is understood and agreed that Lessee's obligation under this
paragraph shall be prorated to reflect the Commencement Date
and Expiration Date of the Lease.
11.5 Lessee and Lessor each hereby waives any and all rights
of recovery against the other, or against the officers,
directors, employees, partners, agents and representatives of
the other, for loss of or damage to the property of the
waiving party or the property of others under its control, to
the extent such loss or damage is insured against under any
insurance policy carried by Lessor or Lessee hereunder. Each
party shall notify their respective insurance carriers of this
waiver, and obtain from the respective insurer a waiver by
such insurer of all rights of subrogation or assignment of
claims in connection with a claim against Lessor or Lessee, as
the case may be, covered by such insurance.
7
Lessee's default with respect to such overdue amount, nor
prevent Lessor from exercising any of the other rights and
remedies granted hereunder.
SURRENDER OF 21. The voluntary or other surrender of this Lease by
LEASE Lessee, or a mutual cancellation thereof, shall not work a
merger, and shall, at the option of Lessor, terminate all or
any existing subleases or subtenancies, or may, at the option
of Lessor, operate as an assignment to him of any or all such
subleases or subtenancies.
TAXES 22. The Lessee shall be liable for all taxes levied
against personal property and trade or business fixtures.
The Lessee also agrees to pay, as additional rental,
during the term of this Lease and any extensions thereof,
all real estate taxes plus the yearly installments of any
special assessments which are of record or which may
become of record during the term of this lease. If said
taxes and assessments are assessed against the entire
building and building site, and this Lease does not cover
the entire building or building site, the taxes and
assessment installments allocated to the Premises shall be
prorated on a square footage or other equitable basis, as
calculated by the Lessor. It is understood and agreed
that the Lessee's obligation under this paragraph will be
pro-rated to reflect the commencement and termination
dates of this Lease.
NOTICES 23. All notices to be given to Lessee may be given in writing
personally or by depositing the same in the United States
mail, postage prepaid, and addressed to Lessee at the said
Premises, whether or not Lessee has departed from, abandoned
or vacated the Premises.
ENTRY BY 24. Lessee shall permit Lessor and his agents to enter
LESSOR into and upon and with prior written notice the Premises
at all reasonable times for the purpose of inspecting the
same or for the purpose of maintaining the building in which
the Premises are situated, or for the purpose of making
repairs, alterations or additions to any other portion of
said building, including the erection and maintenance of such
scaffolding, canopies, fences and props as may be required
without any rebate of rent and without any liability to
Lessee for any loss of occupation or quiet enjoyment of the
Premises thereby occasioned; and shall permit Lessor and his
agents, at any time within ninety days prior to the
expiration of this Lease, to place upon the Premises any
usual or ordinary "For Sale" or "To Lease" signs and exhibit
the Premises to prospective tenants at reasonable hours.
DESTRUCTION 25. In the event of a partial destruction of the Premises
OF during the said term from any cause, Lessor shall forthwith
PREMISES repair the same, provided such repairs can be made within
ninety (90) days from date of destruction under the laws and
regulations of State, Federal, County or Municipal
authorities, but such partial destruction shall in no way
annul or void this Lease, except that Lessee shall be
entitled to a proportionate reduction of rent while such
repairs are being made, such proportionate reduction to be
based upon the extent to which the making of such repairs
shall interfere with the business carried on by Lessee in the
Premises. If such repairs cannot be made in ninety (90) days
from date of destruction Lessor may, at his option, make same
within a reasonable time, this Lease continuing in full force
and effect and the rent to be proportionately reduced as
aforesaid in this paragraph provided. In the event that
Lessor does not so elect to make such repairs which cannot be
made in ninety (90) days, or such repairs cannot be made
under such laws and
8
regulations, this Lease may be terminated at the option of
either party. In respect to any partial destruction which
Lessor is obligated to repair or may elect to repair under
the terms of this paragraph, the provision of Section 1932,
Subdivision 2, and of Section 1933, Subdivision 4, of the
Civil Code of the State of California are waived by Lessee.
In the event that the building in which the Premises may be
situated be destroyed to the extent of not less than 33-1/3%
of the replacement cost thereof, Lessor may elect to
terminate this Lease, whether the Premises be injured or not.
A total destruction of the building in which the Premises may
be situated shall terminate this Lease. In the event of any
dispute between Lessor and Lessee relative to the provisions
of this paragraph, they shall each select an arbitrator, the
two arbitrators so selected shall select a third arbitrator
and the three arbitrators so selected shall hear and
determine the controversy and their decision thereon shall be
final and binding upon both Lessor and Lessee, who shall bear
the cost of such arbitration equally between them.
ASSIGNMENT 26. The Lessee shall not assign, transfer, or
AND SUBLET- hypothecate the leasehold estate under this Lease, or any
TING interest therein, and shall not sublet the Premises, or
any part thereof, or any right or privilege appurtenant
thereto, or suffer any other person or entity to occupy or
use the Premises, or any portion thereof, without, in each
case, the prior written consent of the Lessor. Lessor agrees
not to unreasonably withhold consent to sublet or assign. As
a condition for granting its consent to any subletting the
Lessor may require the Lessee to agree to pay to the Lessor,
as additional rental, all rents received by the Lessee from
its Sublessee which are in excess of the amount payable by
the Lessee to the Lessor hereunder. The Lessee shall, by
sixty (60) days written notice, advise the Lessor of its
intent to sublet the Premises or any portion thereof for any
part of the term hereof. Within thirty (30) days after
receipt of Lessee's notice, Lessor shall either give approval
to Lessee to sublease the portion of the Premises described
in Lessee's notice, or Lessor shall terminate this Lease as
to the portion of the Premises described in Lessee's notice
on the date specified in Lessee's notice. If Lessee intends
to sublet the entire Premises and Lessor elects to terminate
this Lease, this Lease shall be terminated on the date
specified in Lessee's notice. If, however, this Lease shall
terminate pursuant to the foregoing with respect to less than
all the Premises, the rent, as defined and reserved
hereinabove shall be adjusted on a prorata basis to the
number of square feet retained by Lessee, and this Lease as
so amended shall continue in full force and effect. If the
Lessor approves a subletting, the Lessee may sublet
immediately after receipt of the Lessor's written approval.
In the event Lessee is allowed to assign, transfer or sublet
the whole or any part of the Premises, with the prior written
consent of Lessor, no assignee, transferee or sublessee shall
assign or transfer this Lease, either in whole or in part, or
sublet the whole or any part of the Premises, without also
having obtained the prior written consent of the Lessor. A
consent of Lessor to one assignment, transfer, hypothecation,
subletting, occupation or use by any other person shall not
release Lessee from any of Lessee's obligations hereunder or
be deemed to be a consent to any subsequent similar or
dissimilar assignment, transfer, hypothecation, subletting,
occupation or use by any other person. Any such assignment,
transfer, hypothecation, subletting, occupation or use
without such consent shall be void and
9
shall constitute a breach of this Lease by Lessee and shall,
at the option of Lessor exercised by written notice to
Lessee, terminate this Lease. The leasehold estate under this
Lease shall not, nor shall any interest therein, be
assignable for any purpose by operation of law without the
written consent of Lessor. As a condition to its consent,
Lessor may require Lessee to pay all expense in connection
with the assignment, and Lessor may require Lessee's assignee
or transferee (or other assignees or transferees) to assume
in writing all of the obligations under this Lease.
CONDEM- 27. If any part of the premises shall be taken for any
NATION public or quasi-public use, under any statute or by right
of eminent domain or private purchase in lieu thereof, and a
part thereof remains which is susceptible of occupation
hereunder, this Lease shall, as to the part so taken,
terminate as of the date title shall vest in the condemnor or
purchaser, and the rent payable hereunder shall be adjusted
so that the Lessee shall be required to pay for the remainder
of the term only such portion of such rent as the value of
the part remaining after such taking bears to the value of
the entire
10
Premises prior to such taking; but in such event Lessor shall
have the option to terminate this Lease as of the date when
title to the part so taken vests in the condemnor or
purchaser. If all of the premises, or such part thereof be
taken so that there does not remain a portion susceptible for
occupation hereunder, this Lease shall thereupon terminate. If
a part or all of the Premises be taken, all compensation
awarded upon such taking shall go to the Lessor and the Lessee
shall have no claim thereto.
EFFECT OF 28. The term "Lessor" as used in this Lease, means only the
CONVEYANCE owner for the time being of the land and building containing the
Premises, so that, in the event of any sale of said land or
building, or in the event of a lease of said building, the
Lessor shall be and hereby is entirely freed and relieved of
all covenants and obligations of the Lessor hereunder, and it
shall be deemed and construed, without further agreement
between the parties and the purchaser at any such sale, or the
Lessee of the building, that the purchaser or lessee of the
building has assumed and agreed to carry out any and all
covenants and obligations of the Lessor hereunder. If any
security be given by the Lessee to secure the faithful
performance of all or any of the covenants of this Lease on
the part of the Lessee, the Lessor may transfer and deliver
the security, as such, to the purchaser at any such sale or
the lessee of the building, and thereupon the Lessor shall be
discharged from any further liability in reference thereto.
SUBORDI- 29. Lessee agrees that this Lease may, at the option of
NATION Lessor, be subject and subordinate to any mortgage, deed of trust
or other instrument of security which has been or shall be
placed on the land and building or land or building of which
the Premises form a part, and this subordination is hereby
made effective without any further act of Lessee. The Lessee
shall, at any time hereinafter, on demand, execute any
instruments, releases, or other documents that may be required
by any mortgagee, mortgagor, or trustor or beneficiary under
any deed of trust for the purpose of subjecting and
subordinating this Lease to the lien of any such mortgage,
deed of trust or other instrument of security.
WAIVER 30. The waiver by Lessor of any breach of any term, covenant
or condition, herein contained shall not be deemed to be a
waiver of such term, covenant or condition or any subsequent
breach of the same or any other term, covenant or condition
therein contained. The subsequent acceptance of rent hereunder
by Lessor shall not be deemed to be a waiver of any preceding
breach by Lessee of any term, covenant or condition of this
Lease, other than the failure of Lessee to pay the particular
rental so accepted, regardless of Lessor's knowledge of such
preceding breach at the time of acceptance of such rent.
HOLDING 31. Any holding over after the expiration of the said term,
OVER with the consent of Lessor, shall be construed to be a tenancy
from month to month, at a rental to be negotiated by Lessor
and Lessee prior to the expiration of said term, and shall
otherwise be on the terms and conditions herein specified, so
far as applicable.
SUCCESSORS 32. The covenants and conditions herein contained shall,
AND subject to the provisions as to assignment, apply to and bind the
ASSIGNS heirs, successors, executors, administrators and assigns of all of
the parties hereto; and all of the parties hereto shall be jointly
and severally liable hereunder.
TIME 33. Time is of the essence of this Lease.
MARGINAL 34. The marginal headings or titles to the paragraphs of this
CAPTIONS Lease are not a part of this Lease and shall have no effect upon
the construction or interpretation of any part thereof. This
instrument contains all of the agreements and conditions made
between the parties hereto and may not be modified orally or
in any other manner than by an agreement in writing signed by
all of the parties hereto or their respective successors in
interest.
11
PARAGRAPHS #35, 36 AND 37 ATTACHED HERETO ARE HEREBY MADE A PART OF
THIS LEASE.
THIS LEASE HAS BEEN PREPARED FOR SUBMISSION TO YOUR ATTORNEY WHO WILL
REVIEW THE DOCUMENT AND ASSIST YOU TO DETERMINE WHETHER YOUR LEGAL
RIGHTS ARE ADEQUATELY PROTECTED. RENAULT & ▇▇▇▇▇▇▇ IS NOT AUTHORIZED
TO GIVE LEGAL AND TAX ADVICE. NO REPRESENTATION OR RECOMMENDATION IS
MADE BY RENAULT & ▇▇▇▇▇▇▇ OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL
SUFFICIENCY, LEGAL EFFECT OR TAX CONSEQUENCES OF THIS DOCUMENT OR ANY
TRANSACTION RELATING THERETO. THESE ARE QUESTIONS FOR YOUR ATTORNEY
WITH WHOM YOU SHOULD CONSULT BEFORE SIGNING THIS DOCUMENT.
IN WITNESS WHEREOF, Lessor and Lessee have executed these presents,
the day and year first above written.
LESSOR LESSEE
ZAPPETTINI INVESTMENT CO. INTUITIVE SURGICAL
/s/ G. O. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------- -------------------
3/4/97 3/4/97
12
ADDITIONAL PARAGRAPHS
The following additional paragraphs are hereby made a part of that certain
Lease dated February 5, 1997, by and between Zappettini Investment Co.,
Lessor, and Intuitive Surgical, Lessee, covering the Premises located at
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
35. Lessor will indemnify Lessee from and against all costs of response,
corrective action, remedial action, claims, demands, losses and liabilities
arising from any pre-existing environmental contamination which may have
occurred prior to the Lessee taking possession of the Premises.
Lessee will only be responsible for contamination of the Premises or the
soils or ground water thereon or thereunder in violation of Hazardous
Materials Laws, that is caused by Lessee or Lessee's agents or contractors
during the term as may be extended. All hazardous materials and toxic
wastes that Lessee brings on the Premises shall be stored according to
Hazardous Materials' Laws.
All hazardous materials and toxic wastes that Lessee brings on the site
shall be stored according to all local, state and national government
regulations. Hazardous Materials shall be defined as those substances that
are recognized as posing a risk of injury to health or safety by the Santa
▇▇▇▇▇ Fire Department, the Santa ▇▇▇▇▇ County Health Department, the
Regional Water Quality Control Board, the State of California or the
Federal Government.
For purposes of this Lease, "Hazardous Materials' Laws" shall mean all
local, state and federal laws, statutes, ordinances, rules, regulations,
judgements, injunctions, stipulations, decrees, orders, permits, approvals,
treaties or protocols now or hereafter enacted, issued or promulgated by
any governmental authority which relate to any Hazardous Material or the
use, handling, transportation, production, disposal, discharge, release,
emission, sale or storage of, or the exposure of any person to, a Hazardous
Material.
36. Quiet Enjoyment. Landlord covenants and agrees that Tenant, so long as
it shall not be in default hereunder, shall and may, at all times during
the term of this Lease and any extension and renewal hereof, peacefully and
quietly have, hold, occupy, and enjoy the Premises without any hindrance or
molestation whatever.
37. Option. Lessor hereby grants to Lessee the option to renew this Lease
for 1 (one) additional 3 (three) year term commencing on the termination
date of the Lease. Said option shall be exercised by letter and no later
than 60 (sixty) days and no earlier than 120 (one hundred twenty) days
prior to the termination date of this Lease. All the terms and conditions
contained in the original Lease shall govern the extension period excepting
the monthly rental shall be 95% of the then fair market value for similar
buildings within a one mile radius from the above location.
38. Lessor recognizes that Lessee intends to sublease some or all of the
Premises in one or more portions prior to use of the Premises by Lessee for
research development and manufacturing in connection with minimally
invasive surgical instrument systems. Lessor therefore agrees not to
unreasonably withhold consent for Lessee to sublease the Premises in one or
more portions. Notwithstanding paragraph 26 of this lease, in the event
that Lessor withholds consent to sublease a portion of the Premises, Lessor
shall not terminate the lease with respect to the portion of the Premises
specified in Lessee's notice without the prior written consent of Lessee.
Lessor recognizes that Sublessees of Lessee will use the Premises for
purposes other than research and development of minimally invasive surgery
systems. Lessor therefore agrees not to unreasonably withhold consent for
use of the Premises for purposes other than research, development and
manufacturing minimally invasive surgical instrument systems. Lessee
recognizes that use of the Premises may be reasonably limited to office
space, research, development, storage and light manufacturing as is typical
in similar buildings in the immediate vicinity.
/s/ G. O. ▇▇▇▇▇