1
EXHIBIT 10.11
RENAULT & ▇▇▇▇▇▇▇
INDUSTRIAL & COMMERCIAL REAL ESTATE
This LEASE, executed in duplicate at Palo Alto, California,
PARTIES this 9th day of September, 1996, 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:
Approximate 25,000 square feet of R & D buildings 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 of 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 the 1st
day of January, 1997, and ending on the 31st day of December
2001.
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:
Thirty-Eight Thousand and Seven Hundred Fifty Dollars
($38,750.00) shall be due upon the execution of this Lease
representing rental due January 1, 1997. $38,750.00 shall be
due on February 1, 1997 and on the 1st day of each and every
succeeding month through December 2001.
2
SECURITY
DEPOSIT 5. Lessee has deposited with Lessor $38,750.00 as security
for the full and faithful performance of each and every term,
provision, covenant and condition of this ▇▇▇▇▇.▇▇ 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 30 (thirty) 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. If
such a delay occurs, and Lessee agrees to extend possession
date, rent will commence on tenant occupancy.
ACCEPTANCE 7. By entry hereunder, the Lessee accepts and Lessor
OF warrants the Premises as being in good and satisfactory
PREMISES working condition, including all HVAC, electrical and
AND mechanical systems unless within fifteen (15) days after such
CONSENT TO entry Lessee shall give Lessor written notice specifying in
SURRENDER reasonable detail the respects in which the Premises were not
in satisfactory condition. The Lessee agrees on the last 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.
USES 8. Lessee shall not commit, or suffer to be committed, any
PROHIBITED waste upon the Premises, or any nuisance, or other act or
thing which may disturb the quiet enjoyment of any other
tenant in or around 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
3
portion of the Premises outside of the buildings proper,
unless they are in approved enclosures.
ALTERATIONS 9. The Lessee shall make no alterations, additions or
AND improvements in excess of $10,000.00 to the Premises or any
ADDITIONS part thereof 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 requirement 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 has 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
▇▇▇▇▇ OF the Premises and appurtenances and every part thereof,
PREMISES including but not limited to, glazing, sidewalks, parking
areas, including resealing when necessary except for initial
resealing to be performed by Lessor prior to January 1, 1997,
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
FIRE AND 11.
EXTENDED
COVERAGE
INSURANCE
AND
SUBROGATION
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.
5
SEE REVISED INSURANCE CLAUSE ATTACHED
ABANDONMENT 12. Lessee shall not vacate or abandon the Premises at
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 the Lessee's specific use, and shall
REGULATIONS 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
FICATION OF to be rendered to the Lessor, hereby waives all claims
LESSOR AND against the Lessor for damages to goods, wares and
LESSEE'S merchandise, and all other personal property in, upon, or
LIABILITY about the Premises and for injuries to persons in or about
INSURANCE the Premises, from any cause 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,
MENTS AND upon or about the Premises any unusual or extraordinary
SIGNS signs, or any 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 on 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
FEES the 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
6
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
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 LEASE 21. The voluntary or other surrender of this Lease by
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
pro-rated 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 into
LESSOR and upon and with prior 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 OF 25. In the event of a partial destruction of the Premises
PREMISES during the said term from any cause, Lessor shall forthwith
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
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
8
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 AND 26. The Lessee shall not assign, transfer, or hypothecate
SUBLETTING the leasehold estate under this Lease, or any 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 herein above 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 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
9
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.
CONDEMNATION 27. If any part of the premises shall be taken for any
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.
SUBORDINATION 29. Lessee agrees that this Lease may, at the option of
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, and
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 OVER 31. Any holding over after the expiration of the said term,
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
ASSIGNS the 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.
11
MARGINAL 34. The marginal headings or titles to the paragraphs
CAPTIONS of this 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.
PARAGRAPHS 35, 36 & 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------- --------------------
Subject to Board approval
V.P., Medical Director
12
ADDITIONAL PARAGRAPHS
The following additional paragraphs are hereby made a part of that certain Lease
dated September 9, 1996, 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 governmental 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. Quite 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.