RENAULT & XXXXXXX
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 Xxxxx, State
of California, and more particularly described as follows, to-wit:
An approximate 25,000 square foot industrial building commonly
referred to as 0000 X. Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx,
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.
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 Premises as being in good and satisfactory working condition,
PREMISES unless within fifteen (15) days after such entry Lessee shall give
AND Lessor written notice specifying in reasonable detail the respects
CONSENT TO in which the Premises were not in satisfactory condition. The
SURRENDER 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
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 to the Premises or any part
ADDITIONS 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 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.
XXXXXX- 00. Lessee shall, at Lessee's sole cost, keep and maintain the
XXXXX OF Premises and appurtenances and every part thereof, including but
PREMISES not 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.
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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
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 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 xxxx for the entire property covered by said
xxxx 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
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
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REVISED INSURANCE CLAUSE
This Lease Clause replaces the Insurance clause (11.) in the
Renault & Xxxxxxx 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.
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
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
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
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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.
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 & XXXXXXX IS NOT
AUTHORIZED TO GIVE LEGAL AND TAX ADVICE. NO REPRESENTATION OR
RECOMMENDATION IS MADE BY RENAULT & XXXXXXX 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. XxXxx /s/ Xxxxxx X. Xxxxx
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3/4/97 3/4/97
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5 of 5
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 0000 X. Xxxxxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx.
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 Xxxxx Fire Department, the Santa Xxxxx 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. XxXxx
