EXHIBIT 10.4
STANDARD FORM OF OFFICE LEASE
THE REAL ESTATE BOARD OF NEW YORK, INC.
AGREEMENT OF LEASE,
made as of this 30th day of September, 1997, between Tov LLC party of the first
part, hereinafter referred to as OWNER, and I.D. Systems, Inc. (a Delaware
corporation currently located at 000 Xxxxxxxx, Xxx Xxxx, XX) party of the second
part, hereinafter referred to as TENANT.
WITNESSETH:
Owner hereby leases to Tenant and Tenant hereby hires from Owner part
of the fourth floor designated as Suite 402 and 403 in the building known as 00
Xxxxxxx Xxxxxx in the Borough of Manhattan, City of New York (the "Building"),
for the term of five (5) years three (3) months and seventeen (17) days (or
until such term shall sooner cease and expire as hereinafter provided) to
commence on the fifteenth (15th) day of December, 1997 and to end on the
thirty-first (31st) day of March, 2003 (the "Expiration Date"), both dates
inclusive, at an annual rate of (see Article 60) which Tenant agrees to pay in
lawful money of the United States which shall be legal tender in payment of all
debts and dues, public and private, at the time of payment, in equal monthly
installments in advance on debts and dues, public and private, at the time of
payment, in equal monthly installments in advance on the first day of each month
during said term, at the office of the Owner or such other place as the Owner
may designate, without any set off or deduction whatsoever, except that Tenant
shall pay the first one (1) monthly installment(s) on the execution hereof
(unless this lease be renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
covenant as follows:
1. Rent: Tenant shall pay the rent as above and as hereinafter
provided (see Article 60).
2. Occupancy: Tenant shall use and occupy demised premises for
(see Article 64).
3. Tenant Alterations:
Tenant shall make no changes in or to the demised premises of
any nature without Owner's prior written consent. Subject to the prior written
consent of Owner (1), and to the
provisions of this article, Tenant, at Tenant's expense, may make alterations,
installations, additions or improvements which are non-structural and which do
not affect utility services or plumbing and electrical lines, in or to the
interior of the demised premises by using contractors or mechanics first
approved in each instance by Owner (2). Tenant shall, before making any
alterations, additions, installations or improvements, at its expense, obtain
all permits, approvals and certificates required by any governmental or
quasi-governmental bodies and (upon completion) certificates of final approval
thereof and shall deliver promptly duplicates of all such permits, approvals and
certificates to Owner and Tenant agrees to carry and will cause Tenant's
contractors and sub-contractors to carry such xxxxxxx'x compensations, general
liability, personal and property damage insurance as Owner may (3) require. If
any mechanic's lien is filed against the demised premises, or the building of
which the same forms a part, for work claimed to have been done for, or
materials furnished to, Tenant, whether or not done pursuant to this article,
the same shall be discharged by Tenant within thirty days thereafter, at
Tenant's expense, by payment or filing the bond required by law. All fixtures
and all paneling, partitions, railings and like installations, installed in the
premises at any time, either by Tenant or by Owner on Tenant's behalf, shall,
upon installation, become the property of Owner and shall remain upon and be
surrendered with the demised premises. Nothing in this Article shall be
construed to give Owner title to or to prevent Tenant's removal of trade
fixtures, moveable office furniture and equipment, but upon removal of any such
from the premises or upon removal of other installations as may be required by
Owner, Tenant shall immediately and at its expense, repair and restore the
premises to the condition existing prior to installation and repair any damage
to the demised premises or the building due to such removal. All property
permitted or required to be removed, by Tenant at the end of the term remaining
in the premises after Tenant's removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner's property or may be removed from
the premises by Owner, at Tenant's expense.
4. Maintenance and Repairs:
Tenant shall, throughout the term of this lease, take good
care of the demised premises and the fixtures and appurtenances therein. Tenant
shall be responsible for all damage or injury to the demised premises or any
other part of the building and the systems and equipment thereof, whether
requiring structural or nonstructural repairs caused by or resulting from
carelessness, omission, neglect or improper conduct of Tenant, Tenant's
subtenants, agents, employees, invitees or licensees, or which arise out of any
work, labor, service or equipment done for or supplied to Tenant of any
subtenant or arising out of installation, use or operation of the property or
equipment of Tenant or any subtenant. Tenant shall also repair all damage to the
building and the demised premises caused by the moving of Tenant's fixtures,
furniture and equipment. Tenant shall promptly make, at Tenant's expense, all
repairs in and to the demised premises for which Tenant is responsible, using
only the contractor for the trade or trades in question, selected from a list of
at least two contractors per trade permitted by Owner. Any other repairs in or
to the building or the facilities and systems thereof for which Tenant is
responsible shall be performed by Owner at the Tenant's expense. Owner shall
maintain in good working order and repair the exterior and the structural
portions of the building, including the structural portions of its demised
premises, and the public portions of the building interior and the building
plumbing, electrical, heating and ventilating systems (to the extent
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such systems presently exist) serving the demised premises.(4) Tenant agrees to
give prompt notice of any defective condition in the premises for which Owner
may be responsible hereunder. There shall be no allowance to Tenant for
diminution of rental value and no liability on the part of Owner by reason of
inconvenience, annoyance or injury to business arising from Owner or others
making repairs, alterations, additions or improvements in or to any portion of
the building or the demised premises or in and to the fixtures, appurtenances or
equipment thereof.(5) It is specifically agreed that Tenant shall not be
entitled to any setoff or reduction of rent by reason of any failure of Owner to
comply with the covenants of this or any other article of this Lease. Tenant
agrees that Tenant's sole remedy at law in such instance will be by way of an
action for damages for breach of contract. The provisions of this Article 4
shall not apply in the case of fire or other casualty which are dealt with in
Article 9 hereof.
5. Window Cleaning:
Tenant will not clean nor require, permit, suffer or allow any
window in the demised premises to be cleaned from the outside in violation of
Section 202 of the Labor Law or any other applicable law or of the Rules of the
Board of Standards and Appeals, or of any other Board or body having or
asserting jurisdiction.
6. Requirements of Law, Fire Insurance, Floor Loads:
Prior to the commencement of the lease term, if Tenant is then
in possession, and at all times thereafter, Tenant, at Tenant's sole cost and
expense, shall promptly comply with all present and future laws, orders and
regulations of all state, federal, municipal and local governments, departments,
commissions and boards and any direction of any public officer pursuant to law,
and all orders, rules and regulations of the New York Board of Fire
Underwriters, Insurance Services Office, or any similar body which shall impose
any premises, arising out of Tenant's manner of use thereof, (including Tenant's
(6) permitted use) or, with respect to the building if arising out of Tenant's
manner of use of the premises or the building (including the (6) use permitted
under the lease). Nothing herein shall require Tenant to make structural repairs
or alterations unless Tenant has, by its manner of use of the demised premises
or method of operation therein, violated any such laws, ordinances, orders,
rules, regulations or requirements with respect thereto. Tenant may, after
securing Owner to Owner's (7) satisfaction against all damages, interest,
penalties and expenses, including, but not limited to, reasonable attorney's
fees, by cash deposit or by surety bond in an amount and in a company (8)
satisfactory to Owner, contest and appeal any such laws, ordinances, orders,
rules, regulations or requirements provided same is done with all reasonable
promptness and provided such appeal shall not subject Owner to prosecution for a
criminal offense or constitute a default under any lease or mortgage under which
Owner may be obligated, or cause the demised premises or any part thereof to be
condemned or vacated. Tenant shall not do or permit any act or thing to be done
in or to the demised premises which is contrary to law, or which will invalidate
or be in conflict with public liability, fire or other policies of insurance at
any time carried by or for the benefit of Owner with respect to the demised
premises or the building of which the demised premises form a part, or which
shall or might subject Owner to any liability or responsibility to any person
for
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property damage. Tenant shall not keep anything in the demised premises except
as now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance Rating Organization or other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable to the building, nor use the
premises in a manner which will increase the insurance rate for the building or
any property located therein over that in effect prior to the commencement of
Tenant's occupancy. Tenant shall pay all costs, expenses, fines, penalties, or
damages, which may be imposed upon Owner by reason of Tenant's failure to comply
with the provisions of this article and if by reason of such failure to the fire
insurance rate shall, at the beginning of this lease or at any time thereafter,
be higher than it the beginning of this lease or at any time thereafter, be
higher than it otherwise would be, then Tenant shall reimburse Owner, as
additional rent hereunder, for that portion of all fire insurance premiums
thereafter paid by Owner which shall have been charged because of such failure
by Tenant. In any action or proceeding wherein Owner and Tenant are parties, a
schedule or"make-up" of rate for the building or demised premises issued by the
New York Fire Insurance Exchange, or other body making fire insurance rates
applicable to said premises shall be conclusive evidence of the facts therein
stated and of the several items and charges in the fire insurance rates then
applicable to said premises. Tenant shall not place a load upon any floor of the
demised premises exceeding the floor load per square foot area which it was
designed to carry and which is allowed by law. Owner reserves the right to
prescribe the weight and position of all safes, business machines and mechanical
equipment. Such installations shall be placed and maintained by Tenant, at
Tenant's expense, in settings sufficient, in Owner's (9) judgement, to absorb
and prevent vibration, noise and annoyance.
7. Subordination:
This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect such
leases or the real property of which demised premises are a part and to all
renewals, modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall from time to time execute promptly any certificate that Owner may
request.
8. Property Loss, Damage:
Owner or its agents shall not be liable for any damage to
property of Tenant or of others entrusted to employees of the building, nor for
loss of or damage to any property of Tenant by theft or otherwise, nor for any
injury or damage to persons or property resulting from any cause of whatsoever
nature, unless caused by or due to the negligence (10) of Owner, its agents,
servants or employees. Owner or its agents will not be liable for any such
damage caused by other tenants or persons in, upon or about said building or
caused by operations in construction of any private, public or quasi public
work. If at any time any windows of the demised premises are temporarily closed,
darkened or bricked up (or permanently closed, darkened or bricked up, if
required by law) for any
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reason whatsoever including, but not limited to Owner's own acts, Owner shall
not be liable for any damage Tenant may sustain thereby and Tenant shall not be
entitled to any compensation therefor nor abatement or diminution of rent nor
shall the same release Tenant from its obligations hereunder nor constitute an
eviction. Tenant shall indemnify and save harmless Owner against and from all
liabilities, obligations, damages, penalties, claims, costs and expenses for
which Owner shall not be reimbursed by insurance, including reasonable attorneys
fees, paid, suffered or incurred as a result of any breach by Tenant, Tenant's
agents, contractors, employees, invitees, or licensees, of any covenant or
condition of this lease or the carelessness, negligence or improper conduct of
the Tenant, Tenant's agents, contractors, employees, invitees or licensees.
Tenant's liability under this lease extends to the acts and omissions of any
sub-tenant, and any agent, contractor, employee, invitee or licensee of any
sub-tenant. In case any action or proceeding is brought against Owner by reason
of any such claim, Tenant, upon written notice from Owner, will, at Tenant's
expense, resist or defend such action or proceeding by counsel approved by Owner
in writing, such approval not to be unreasonably withheld.
9. Destruction Fire and Other Casualty:
(a) If the demised premises or any part thereof shall be
damaged by fire or other casualty, Tenant shall give immediate notice thereof to
Owner and this lease shall continue in full force and effect except as
hereinafter set forth.
(b) If the demised premises are partially damaged or rendered
partially unusable (11) by fire or other casualty, the damages thereto shall be
repaired by and at the expense of Owner and the rent and other items of
additional rent, until such repair shall be substantially completed, shall be
apportioned form the day following the casualty according to the part of the
premises which is usable.
(c) If the demised premises are totally damaged or rendered
wholly unusable (11) by fire or other casualty, then the rent and other items of
additional rent as hereinafter expressly provided shall be proportionately paid
up to the time of the casualty and thenceforth shall cease until the date when
the premises shall have been repaired and restored by Owner (or sooner
reoccupied in part by Tenant then rent shall be apportioned as provided in
subsection (b) above), subject to Owner's right to elect not to restore the same
as hereinafter provided.
(d) If the demised premises are rendered wholly unusable or
(whether or not the demised premises are damaged in whole in part) if the
building shall be so damaged that Owner shall decide to demolish it or to
rebuild it, then, in any of such events, Owner may elect to terminate this lease
by written notice to Tenant, given within 90 days after such fire or casualty,
or 30 days after adjustment of the insurance claim for such fire or casualty,
whichever is sooner, specifying a date for the expiration of the lease, which
date shall not be more than 60 days after the giving of such notice, and upon
the date specified in such notice the term of this lease shall expire as fully
and completely as if such date were the date set forth above for the termination
of this lease and Tenant shall forthwith quit, surrender and vacate the premises
without prejudice however, to Landlord's rights and
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remedies against Tenant under the lease provisions in effect prior to such
termination, any rent owning shall be paid up to such date and any payments of
rent made by Tenant which were on account of any period subsequent to such date
shall be returned to Tenant. Unless Owner shall serve a termination notice as
provided for herein, Owner shall make the repairs and restorations under the
conditions of (b) and (c) hereof, with all reasonable expedition, subject to
delay s due to adjustment of insurance claims, labor troubles and causes beyond
Owner's control.(12) After any such casualty, Tenant shall cooperate with
Owner's restoration by removing from the premises as promptly as reasonably
possible, all of Tenant's salvageable inventory and moveable equipment,
furniture, and other property. Tenant's liability for rent shall resume five (5)
days after written notice form Owner that the premises are substantially ready
for Tenant's occupancy.
(e) Nothing contained hereinabove shall relieve Tenant from
liability that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, including Owner's obligation to restore under
subparagraph (b) above, each party shall look first to any insurance in its
favor before making any claim against the other party for recovery for loss or
damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted by law, Owner
and Tenant each hereby releases and waives all right of recovery with respect to
subparagraphs (b), (d), and (e) above, against the other or any one claiming
through or under each of them by way of subrogation or otherwise. The release
and waiver herein referred to shall be deemed to include any loss or damage to
the demised premises and/or to any personal property, equipment, trade fixtures,
goods and merchandise located therein. The foregoing release and waiver shall be
in force only if both releasors' insurance policies contain a clause providing
that such a release or waiver shall not invalidate the insurance. If, and to the
extent, that such waiver can be obtained only by the payment of additional
premiums, then the party benefiting form the waiver shall pay such premium
within ten days after written demand or shall be deemed to have agreed that the
party obtaining insurance coverage shall be free of any further obligation under
the provisions hereof with respect to waiver of subrogation. Tenant acknowledges
that Owner will not carry insurance on Tenant's furniture and/or furnishings or
any fixtures or equipment, improvements, or appurtenances removable by Tenant
and agrees that Owner will not be obligated to repair any damage thereto or
replace the same.
(f) Tenant hereby waives the provisions of Section 227 of the
Real Property Law and agrees that the provisions of this article shall govern
and control in lieu thereof.
10. Eminent Domain:
If the whole or any part of the demised premises shall be
acquired or condemned by Eminent Domain for any public or quasi public use or
purpose, then and in that event, the term of this lease shall cease and
terminate from the date of title vesting in such proceeding and Tenant shall
have no claim for the value of any unexpired term of said lease and assigns to
Owner, Tenant's entire interest in any such award. Tenant shall have the right
to make an independent claim to the condemning authority for the value of
Tenant's moving expenses and personal property, trade fixtures and equipment,
provided Tenant is entitled pursuant to the terms of the lease to remove such
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property, trade fixture and equipment at the end of the term and provided
further such claim does not reduce Owner's award (13).
11. Assignment, Mortgage, Etc.:
Tenant, for itself, its heirs, distributees, executors,
administrators, legal representative, successor and assigns, expressly covenants
that it shall not assign, mortgage or encumber this agreement, nor underlet, or
suffer or permit the demised premises or any part hereof to be used by others,
without the prior written consent of Owner in each instance. Transfer of the
majority of the stock of a corporate Tenant or the majority partnership interest
of a partnership Tenant shall be deemed an assignment. If this lease be
assigned, or if the demised premises or any part thereof be underlet or occupied
by anybody other than Tenant, Owner may, after default by Tenant, collect rent
from the assignee, under-tenant or occupant, and apply the net amount collected
to the rent herein reserved, but not such assignment, underletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the
assignee, under-tenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Owner to an assignment or underletting shall not in
any wise be construed to relieve Tenant from obtaining the express consent in
writing of Owner to any further assignment or underletting.
12. Electric Current:
Rate and conditions in respect to submetering or rent
inclusion, as the case may be, to be added in RIDER attached hereto. Tenant
covenants a agrees that at all times its use of electric current shall not
exceed the capacity of existing feeders to the building or the risers or wiring
installations and Tenant may not use any electorial equipment which, in Owner's
opinion, reasonably exercised, will overload such installations or interfere
with the use thereof by other tenants of the building. The change at any time of
the character of electric service shall in no wise make Owner liable or
responsible to Tenant, for any loss, damages or expenses which Tenant may
sustain.
13. Access to Premises:
Owners or Owner's agents shall have the right (but shall not
be obligated) to enter the demised premises in any emergency at any time, and,
at other reasonable times, to examine the same and make such repairs,
replacements and improvements as Owner may deem necessary and reasonably
desirable to the demised premises or to any other portion of the building or
which Owner may elect to perform.(14) Tenant shall permit Owner to use and
maintain and replace pipes and conduits in and through the demised premises and
to erect new pipes and conduits therein provided they are concealed within the
walls, floor, or ceiling. Owner may, during the progress of any work in the
demised premises, take all necessary materials and equipment into said premises
without the same constituting an eviction nor shall the Tenant be entitled to
any abatement of rent while such work is in progress nor to any damages by
reason of loss or interruption of business or otherwise. Throughout the term
hereof Owner shall have the right to enter the demised premises at reasonable
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hours for the purpose of showing the same to prospective purchasers or
mortgagees of the building, and during the last six months of the term for the
purpose of showing the same to prospective tenants. If Tenants is not present to
open and permit an entry into the demised premises, Owner or Owner's agents may
enter the same whenever such entry may be necessary or permissible by master key
or forcibly (15) and provided reasonable care is exercised to safeguard Tenant's
property, such entry shall not render Owner or its agents liable therefor, nor
in any event shall the obligations of Tenant hereunder be affected. If during
the last month of the term Tenant shall have removed all or substantially of
Tenant's property therefrom Owner may immediately enter, alter, renovate or
redecorate the demised premises without limitation or abatement of rent, or
incurring liability to Tenant for any compensation and such act shall have no
effect on this lease or Tenant's obligations hereunder.
14. Vault, Vault Space, Area:
No Vaults, vault space or area, whether or not enclosed or
covered, not within the property line or the building is leased hereunder,
anything contained in or indicated on any sketch, blue print or plan, or
anything contained elsewhere in this lease to the contrary notwithstanding.
Owner makes no representation as to the location of the property line of the
building. All vaults and vault space and all such areas not within the property
line of the building, which Tenant may be permitted to use and/or occupy, is to
be used and/or occupied under a revocable license, and if any such license be
revoked, or if the amount of such space or area be diminished or required by any
federal, state or municipal authority or public utility, Owner shall not be
subject to any liability nor shall Tenant be entitled to any compensation or
diminution or requisition be deemed constructive or actual eviction. Any tax,
fee or charge of municipal authorities for such vault or area shall be paid by
Tenant.
15. Occupancy:
Tenant will not at any time use or occupy the demised premises
in violation of the certificate of occupancy issued for the building of which
the demised premises are a part. Tenant has inspected the premises and accepts
them as is, subject to the riders annexed hereto with respect to Owner's work,
if any. In any event, Owner makes no representation as to the condition of the
premises and Tenant agrees to accept the same subject to violations, whether or
not of record.
16. Bankruptcy:
(a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be cancelled by Owner by the sending of a
written notice to Tenant within a reasonable time after the happening of any one
or more of the following events: (1) the commencement of a case in bankruptcy or
under the laws of any state naming Tenant as the debtor; or (2) the making by
Tenant of an assignment or any other arrangement for the benefit of creditors
under any state statute. Neither Tenant nor any person claiming through or under
Tenant, or by reason of any statute or order of court, shall thereafter be
entitled to possession of the premises demised but shall forthwith quit and
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surrender the premises. If this lease shall be assigned in accordance with its
terms, the provisions of this Article 16 shall be applicable only to the party
then owning Tenant's interest in this lease.
(b) it is stipulated and agreed that in the event of the
termination of this lease pursuant to (a) hereof, Owner shall
forthwith,notwithstanding any other provisions of this lease to the contrary, be
entitled to recover from Tenant as and for liquidated damages an amount equal to
the difference between the rent reserved hereunder for the unexpired portion of
the term demised and the fair and reasonable rental value of the demised
premises for the same period. In the computation of such damages the difference
between any installment of rent becoming due hereunder after the date of
termination and the fair and reasonable rental value of the demised premises for
the period for which such installment was payable shall be discounted to the
date of termination at the rate of four percent (4%) per annum. If such premises
or any part thereof be re-let by the Owner for the unexpired term of said lease,
or any part thereof, before presentation of proof of such liquidated damages to
any court, commission or tribunal, the amount of rent reserved upon such
re-letting shall be deemed to be the fair and reasonable rental value for the
part or the whole of the premises so re-let during the term of the re-letting.
Nothing herein contained shall limit or prejudice the right of the Owner to
prove for and obtain as liquidated damages by reason of such termination, an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, such damages are to be
proved, whether or not such amount be greater, equal to, or less than the amount
of the difference referred to above.
17. Default:
(1) If Tenant defaults in fulfilling any of the covenants of
this lease including the covenants for the payment of rent or additional rent;
or if the demised premises become vacant or deserted; or if any execution or
attachment shall be issued against Tenant or nay of Tenant's property whereupon
the demised premises shall be taken or occupied by someone other than Tenant; or
if this lease be rejected under ss.235 of Title 11 of the U.S. Code (bankruptcy
code); or if Tenant shall fail to move into or take possession of the premises
within thirty (30) days after the commencement of the term of this lease, then,
in any one or more of such events, upon Owner serving a written fifteen (15)
days notice upon Tenant specifying the nature of said default and upon the
expiration of said fifteen (15) days, if Tenant shall have failed to comply with
or remedy such default, or if the said default or omission complained of shall
be of a nature that the same cannot be completely cured or remedied within said
fifteen (15) day period, and if Tenant shall not have diligently commenced
curing such default within such fifteen (15) day period, and shall not
thereafter with reasonable diligence and in good faith, proceed to remedy or
cure such default, then Owner may serve a written five (5) days' notice of
cancellation of this lease upon Tenant, and upon the expiration of said five (5)
days this lease and the term thereunder shall end and expire as fully and
completely as if the expiration of such five (5) day period were the day herein
definitely fixed for the end and expiration of this lease and the term thereof
and Tenant shall then quit and surrender the demised premises to Owner but
Tenant shall remain liable as hereinafter provided.
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(2) If the notice provided for in (1) hereof shall have been
given, and the term shall expire as aforesaid; or if Tenant shall make default
in the payment of the rent reserved herein or any item of additional rent herein
mentioned or any part of either or in making any other payment herein required;
then and in any of such events Owner may without notice, re-enter the demised
premises either by force or otherwise, and dispossess Tenant by summary
proceedings or otherwise, and the legal representative of Tenant or other
occupant of demised premises and remove their effects and hold the premises as
if this lease had not been made, and Tenant hereby waives the service of notice
of intention to re-enter or to institute legal proceedings to that end. If
Tenant shall make default hereunder prior to the date fixed as the commencement
of any renewal or extension of this lease, Owner may cancel and terminate such
renewal or extension agreement by written notice.
18. Remedies of Owner and Waiver of Redemption:
In case of any such default, re-entry, expiration and/or
dispossess by summary proceedings or otherwise, (a) the rent shall become due
thereupon and be paid up to the time of such re-entry, dispossess and/or
expiration, (b) Owner may re-let the premises or any part or parts thereof,
either in the name of Owner or otherwise, for a term or terms, which may at
Owner's option be less than or exceed the period which would otherwise have
constituted the balance of the term of this lease and may grant concessions or
free rent or charge a higher rental than that in this lease, and/or (c) Tenant
or the legal representatives of Tenant shall also pay Owner as liquidated
damages for the failure of Tenant to observe and perform said Tenant's covenants
herein contained, any deficiency between the rent hereby reserved and/or
covenanted to be paid and the net amount, if any, of the rents collected on
account of the lease or leases of the demised premises for each month of the
period which would otherwise have constituted the balance of the term of this
lease. The failure of Owner to re-let the premises or any part or parts thereof
shall not release or affect Tenant's liability for damages. In computing such
liquidated damages there shall be added to the said deficiency such expenses as
Owner may incur in connection with re-letting, such as legal expenses,
reasonable attorneys' fees, brokerage, advertising and for keeping the demised
premises in good order or preparing the same for re-rental may, at owner's
option, make such alterations, repairs, replacements, and/or decorations in the
demised premises in good order or for preparing the same for re-letting. Any
such liquidated damages shall be paid in monthly installments by Tenant on the
rent day specified in this lease and any suit brought to collect the amount of
the deficiency for any month shall not prejudice in any way the rights of Owner
to collect the deficiency for any subsequent month by a similar proceeding.
Owner, in putting the demised premises in good order or preparing the same for
re-rental may, at Owner's option, make such alterations, repairs, replacements,
and/or decorations in the demised premises as Owner, in Owner's sole judgement,
considers advisable and necessary for the purpose of re-letting the demised
premises, and the making of such alterations, repairs, replacements, and/or
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Owner shall in no event be liable in any way whatsoever
for failure to re-let the demised premises, or in the event that the demised
premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof, Owner shall
-10-
have the right of injunction and the right to invoke any remedy allowed at law
or in equity as if re-entry, summary proceedings and other remedies were not
herein provided for. Mention in this lease of any particular remedy, shall not
preclude Owner from any other remedy, in law or in equity. Tenant hereby
expressly waives any and all rights of redemption granted by or under any
present or future laws in the event of Tenant being evicted or dispossessed for
any cause, or in the event of Owner obtaining possession of demised premises, by
reason of the violation by Tenant of any of the covenants and conditions of this
lease, or otherwise.
19. Fees and Expenses:
If Tenant shall default in the observance or performance of
any term or covenant on Tenant's part to be observed or performed under or by
virtue of any of the terms or provisions in any article of this lease after
notice if required and upon expiration of any applicable grace period if any,
(except in an emergency), then, unless otherwise provided elsewhere in this
lease, Owner may immediately or at any time thereafter and without notice
perform the obligation of Tenant thereunder. If Owner, in connection with the
foregoing or in connection with any default by Tenant in the covenant to pay
rent hereunder, makes any expenditures or incurs any obligations for the payment
of money, including but not limited to reasonable attorneys' fees, in
instituting, prosecuting or defending any action or proceeding, and prevails in
any such action or proceeding then Tenant will reimburse Owner for such sums so
paid or obligations incurred with interest and costs. The foregoing expenses
incurred by reason of Tenant's default shall be deemed to be additional rent
hereunder and shall be paid by Tenant to Owner within ten (10) days of rendition
of any xxxx or statement to Tenant therefore. If Tenant's lease term shall have
expired at the time of making of such expenditures or incurring of such
obligations, such sums shall be recoverable by Owner, as damages.
20. Building Alterations and Management:
Owner shall have the right at any time without the same
constituting an eviction and without incurring liability to Tenant therefore to
change the arrangement and/or location of public entrances, passageways, doors,
doorways, corridors, elevators, stairs, toilets or other public parts of the
building and to change the name, number or designation by which the building may
be known. There shall be no allowance to Tenant for diminution of rental value
and no liability on the part of Owner by reason of inconvenience, annoyance or
injury to business arising from Owner or other tenants making any repairs in the
building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's imposition of
such controls of the manner of access to the building by Tenant's social or
business visitors as the Owner may deem necessary for the security of the
building and its occupants.
21. No Representations by Owner:
Neither Owner nor Owner's agents have made any representations
or promises with respect to the physical condition of the building, the land
upon which it is erected or demised premises, the rents, leases, expenses of
operation or any other matter or thing affecting or related to
-11-
the premises except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this lease. Tenant has inspected the building and
the demised premises and is thoroughly acquainted with their condition and
agrees to take the same "as is" and acknowledges that the taking of possession
of the demised premises by Tenant shall be conclusive evidence that the said
premises and the building of which the same form a part were in good and
satisfactory condition at the time such possession was so taken, except as to
latent defects. All understandings and agreements heretofore made between the
parties hereto are merged in this contract, which alone fully and completely
expresses the agreement between Owner and Tenant and any executory agreement
hereafter made shall be ineffective to change, modify, discharge or effect an
abandonment of it in whole or in part, unless such executory agreement is in
writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
22. End of Term:
Upon the expiration or other termination of the term of this
lease, Tenant shall quit and surrender to Owner the demised premises, broom
clean, in good order and condition, ordinary wear and damages which Tenant is
not required to repair as provided elsewhere in this lease excepted, and Tenant
shall remove all its property. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of this lease. If the
last day of the term of this Lease or any renewal thereof, falls on Sunday, this
lease shall expire at noon on the preceding Saturday unless it be a legal
holiday in which case it shall expire at noon on the preceding business day.
23. Quiet Enjoyment:
Owner covenants and agrees with Tenant that upon Tenant paying
the rent and additional rent and observing and performing all the terms,
covenants and conditions, on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the premises hereby demised, subject,
nevertheless, to the terms and conditions of this lease including, but not
limited to, Article 31 hereof and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.
24. Failure to Give Possession:
If Owner is unable to give possession of the demised premises
on the date of the commencement of the term hereof, because of the holding-over
or retention of possession of any tenant, undertenant or occupants or if the
demised premises are located in a building being constructed, because such
building has not been sufficiently completed to make the premises ready for
occupancy or because of the fact that a certificate of occupancy has not been
procured or for any other reason, Owner shall not be subject to any liability
for failure to give possession on said date and the validity of the lease shall
not be impaired under such circumstances, nor shall the same be construed in any
wise to extend the term of this lease, but the rent payable hereunder shall be
abated (provided Tenant is not responsible for Owner's inability to obtain
possession or complete
-12-
construction) until after Owner shall have given Tenant written notice that the
Owner is able to deliver possession in condition required by this lease. If
permission is given to Tenant to enter into the possession of the demised
premises or to occupy premises other than the demised premises prior to the date
specified as the commencement of the term of this lease, Tenant covenants and
agrees that such possession and/or occupancy shall be deemed to be under all the
terms, covenants, conditions and provisions of this lease except the obligation
to pay the fixed annual rent set forth in the preamble to this lease. The
provisions of this article are intended to constitute "an express provision to
the contrary" within the meaning of Section 223-a of the New York Real Property
Law.
25. No Waiver:
The failure of Owner to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition of this lease or
of any of the Rules or Regulations, set forth or hereafter adopted by Owner,
shall not prevent a subsequent act which would have originally constituted a
violation from having all the force and effect of an original violation. The
receipt by Owner of rent and/or additional rent with knowledge of the breach of
any covenant of this lease shall not be deemed a waiver of such breach and no
provision of this lease shall be deemed to have been waived by Owner unless such
waiver be in writing signed by Owner. No payment by Tenant or receipt by Owner
of a lesser amount than the monthly rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement of any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Owner may accept such check or
payment without prejudice to Owner's right to recover the balance of such rent
or pursue any other remedy in this lease provided. No act or thing done by Owner
or Owner's agents during the term hereby demised shall be deemed an acceptance
of a surrender of said premises, and no agreement to accept such surrender shall
be valid unless in writing signed by Owner. No employee of Owner or Owner's
agent shall have any power to accept the keys of said premises prior to the
termination of the lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the lease or a surrender of the premises.
26. Waiver of Trial by Jury:
It is mutually agreed by and between Owner and Tenant that the
respective parties hereto shall and they hereby do waive trial by jury in any
action proceeding or counterclaim brought by either of the parties hereto
against the other (except for personal injury or property damage) on any matters
whatsoever arising out of or in any way connected with this lease, the
relationship of Owner and Tenant, Tenant's use of or occupancy of said premises,
and any emergency statutory or any other statutory remedy. It is further
mutually agreed that in the event Owner commences any proceeding or action for
possession including a summary proceeding for possession of the premises, Tenant
will not interpose any counterclaim of whatever nature or description in any
such proceeding including a counterclaim under Article 4 except for statutory
mandatory counterclaims.
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27. Inability to Perform:
This Lease and the obligation of Tenant to pay rent hereunder
and perform all of the other covenants and agreements hereunder on part of
Tenant to be performed shall in no wise be affected, impaired or excused because
Owner is unable to fulfill any of its obligations under this lease or to supply
or is delayed in supplying any service expressly or impliedly to be supplied or
is unable to make, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment,
fixtures, or other materials if Owner is prevented or delayed from so doing by
reason of strike or labor troubles or any cause whatsoever including, but not
limited to, government preemption or restrictions or by reason of any rule,
order or regulation of any department or subdivision thereof of any government
agency or by reason of the conditions which have been or are affected, either
directly or indirectly, by war or other emergency.
28. Bills and Notices:
Except as otherwise in this lease provided, a xxxx, statement,
notice or communication which Owner may desire or be required to give to Tenant,
shall be deemed sufficiently given or rendered if, in writing, delivered to
Tenant personally or sent by registered or certified mail addressed to Tenant at
the building of which the demised premises form a part or at the last known
residence address or business address of Tenant or left at any of the aforesaid
premises addressed to Tenant, and the time of the rendition of such xxxx or
statement and of the giving of such notice or communication shall be deemed to
be the time when the same is delivered to Tenant, mailed, or left at the
premises as herein provided. Any notice by Tenant to Owner must be served by
registered or certified mail addressed to Owner at the address first hereinabove
given or at such other address as Owner shall designate by written notice.
29. Services Provided by Owners:
As long as Tenant is not in default under any of the covenants
of this lease beyond the applicable grace period provided in this lease for the
curing of such defaults, Owner shall provide: (a) necessary elevator facilities
on business days from 8 a.m. to 6 p.m. and have one elevator subject to call at
all other times; (b) heat to the demised premises when and as required by law,
on business days from 8 a.m. to 6 p.m.; (c) water for ordinary lavatory
purposes, but if Tenant uses or consumes water for any other purposes or in
unusual quantities (of which fact Owner shall be the sole judge), Owner may
install a water meter at Tenant's expense which Tenant shall thereafter maintain
at Tenant's expense in good working order and repair to register such water
consumption and Tenant shall pay for water consumed as shown on said meter as
additional rent as and when bills are rendered; (d) cleaning service for the
demised premises on business days at Owner's expense provided that the same are
kept in order by Tenant. If, however, said premises are to be kept clean by
Tenant, it shall be done at Tenant's sole expense, in a manner reasonably
satisfactory to Owner and no one r than persons approved by Owner shall be
permitted to enter said premises or the building of which they are a part for
such purpose. Tenant shall pay Owner the cost of removal of any of Tenant's
refuse and rubbish from the building; (e) If the demised premises are serviced
by Owner's air
-14-
conditioning/cooling and ventilating system, air conditioning/cooling will be
furnished to Tenant from May 15th through September 30th on business days
(Mondays through Fridays, holidays excepted) from 8:00 a.m. to 6:00 p.m., and
ventilation will be furnished on business days during the aforesaid hours except
when air conditioning/cooling is being furnished as aforesaid. If Tenant
requires air conditioning/cooling or ventilation for more extended hours or on
Saturdays, Sundays or on holidays, as defined under Owner's contract with
Operating Engineers Local 94-94A, Owner will furnish the same at Tenant's
expense. RIDER to be added in respect to rates and conditions for such
additional service; (f) Owner reserves the right to stop services of the
heating, elevators, plumbing, air-conditioning, electric, power systems or
cleaning or other services, if any, when necessary by reason of accident or for
repairs, alterations, replacements or improvements necessary or desirable in the
judgment of Owner for as long as may be reasonably required by reason thereof.
If the building of which the demised premises are a part supplies manually
operated elevator service, Owner at any time may substitute automatic control
elevator service and proceed diligently with alterations necessary therefor
without in any wise affecting this lease or the obligation of Tenant hereunder.
30. Captions:
The Captions are inserted only as a matter of convenience and
for reference and in no way define, limit or describe the scope of this lease
nor the intent of any provisions thereof.
31. Definitions:
The term "office", or "offices", wherever used in this lease,
shall not be construed to mean premises used as a store or stores, for the sale
or display, at any time, of goods, wares or merchandise, of any kind, or as a
restaurant, shop, booth, bootblack or other stand, xxxxxx shop, or for other
similar purposes or for manufacturing. The term "Owner" means a landlord or
lessor, and as used in this lease means only the owner, or the mortgagee in
possession, for the time being of the land and building (or the owner of a lease
of the building or of the land and building) of which the demised premises form
a part, so that in the event of any sale or sales of said land and building or
of said lease, or in the event of a lease of said building, or of the land and
building, the said Owner shall be and hereby is entirely freed and relieved of
all covenants and obligations of Owner hereunder, and it shall be deemed and
construed without further agreement between the parties or their successors in
interest, or between the parties and the purchaser, at any such sale, or the
said lessee of the building, or of the land and building, that the purchaser or
the lessee of the building has assumed and agreed to carry out any and all
covenants and obligations of Owner, hereunder. The words "re-enter" and
"re-entry" as used in this lease are not restricted to their technical legal
meaning. The term "business days" as used in this lease shall exclude Saturdays,
Sundays and all days as observed by the State or Federal Government as legal
holidays and those designated as holidays by the applicable building service
union employees service contract or by the applicable Operating Engineers
contract with respect to HVAC service. Wherever it is expressly provided in this
lease that consent shall not be unreasonably withheld, such consent shall not be
unreasonably delayed.
-15-
32. Adjacent Excavation-Shoring:
If an excavation shall be made upon land adjacent to the
demised premises, or shall be authorized to be made, Tenant shall afford to the
person causing or authorized to cause such excavation, license to enter upon the
demised premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the building of which demised premises form a
part from injury or damage and to support the same by proper foundations without
any claim for damages or indemnity against Owner, or diminution or abatement of
rent.
33. Rules and Regulations:
Tenant and Tenant's servants, employees, agents, visitors, and
licensees shall observe faithfully, and comply strictly with, the Rules and
Regulations and such other and further reasonable Rules and Regulations as Owner
or Owner's agents may from time to time adopt. Notice of any additional rules or
regulations shall be given in such manner as Owner may elect. In case Tenant
disputes the reasonableness of any additional Rule or Regulation hereafter made
or adopted by Owner or Owner's agents, the parties hereto agree to submit the
question of the reasonableness of such Rule or Regulation for decision to the
New York office of the American Arbitration Association, whose determination
shall be final and conclusive upon the parties hereto. The right to dispute the
reasonableness of any additional Rule or Regulation upon Tenant's part shall be
deemed waived unless the same shall be asserted by service of a notice, in
writing upon Owner within fifteen (15) days after the giving of notice thereof.
Nothing in this lease contained shall be construed to impose upon Owner any duty
or obligation to enforce the Rules and Regulations or terms, covenants or
conditions in any other lease, as against any other tenant and Owner shall not
be liable to Tenant for violation of the same by any other tenant, its servants,
employees, agents, visitors or licensees.
34. Security:
Tenant has deposited with Owner the sum of $_________ as
security for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this lease; it is agreed that in the event Tenant
defaults in respect of any of the terms, provisions and conditions of this
lease, including, but not limited to, the payment of rent and additional rent,
Owner may use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of any rent and additional rent
or any other sum as to which Tenant is in default or for any sum which Owner may
expend or may be required to expend by reason of Tenant's default in respect of
any of the terms, covenants and conditions of this lease, including but not
limited to, any damages or deficiency in the re-letting of the premises, whether
such damages or deficiency accrued before or after summary proceedings or other
re-entry by Owner. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this lease, the
security shall be returned to Tenant after the date fixed as the end of the
Lease and after delivery of entire possession of the demised premises to Owner.
In the event of a sale of the land and building or leasing of the building, of
which the demised premises form a part, Owner shall have the right to transfer
the security to the vendee or lessee and Owner shall thereupon be released by
Tenant from
-16-
all liability for the return of such security; and Tenant agrees to look to the
new Owner solely for the return of said security, and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to a new Owner. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security and that neither Owner nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted encumbrance.
35. Estoppel Certificate:
Tenant, at any time, and from time to time, upon at least 10
days' prior notice by Owner, shall execute, acknowledge and deliver to Owner,
and/or to any other person, firm or corporation specified by Owner, a statement
certifying that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), stating the dates to which the rent and
additional rent have been paid, and stating whether or not there exists any
default by Owner under this Lease, and, if so, specifying each such default.
36. Successors and Assigns:
The covenants, conditions and agreements contained in this
lease shall bind and inure to the benefit of Owner and Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this lease, their assigns. Tenant shall look
only to Owner's estate and interest in the land and building, for the
satisfaction of Tenant's remedies for the collection of a judgment (or other
judicial process) against Owner in the event of any default by Owner in the
event of any default by Owner hereunder, and no other property or assets of such
Owner (or any partner, member, officer of director thereof, disclosed or
undisclosed), shall be subject to levy, execution or other enforcement procedure
for the satisfaction of Tenant's remedies under or with respect to this lease,
the relationship of Owner and Tenant hereunder, or Tenant's use and occupancy of
the demised premises.
IN WITNESS WHEREOF, Owner and Tenant have respectively signed
and sealed this lease as of the day and year first above written.
Tov, LLC
Witness for Owner: By:
-------------------------------------
------------------------------
Witness for Tenant: I.D. Systems, Inc.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx 10-28-97
-------------------------------------
-17-
ACKNOWLEDGMENTS
CORPORATE TENANT
STATE OF NEW YORK, ss.:
County of New York
On this 28th day of October 28, 1997, before me personally
came Xxxxxxx X. Xxxxx, to me know, who being by me duly sworn, did depose and
say that he resides in 000 Xxxxxx Xxxxxx, XX, XX; that he is the Executive V.P.
of I.D. Systems, Inc. the corporation described in and which executed the
foregoing instrument as OWNER; that he knows the seal of said corporation; the
seal affixed to said instrument is such corporate seal; that it was so affixed
by order of the Board of Directors of said corporation, and that he signed his
name thereto by like order.
/s/ Xxxx X. Xxxxx
-----------------------
INDIVIDUAL OWNER
STATE OF NEW YORK, ss.:
County of
On this _________ day of ___ Commission expires May 22, 1999
before me personally came _______________________________ to be known and known
to me to be the individual described in and who, as OWNER, executed the
foregoing instrument and acknowledged to me that __________________ he executed
same.
-----------------------
CORPORATE TENANT
STATE OF NEW YORK, ss.:
County of
On this _________ day of ___, 19__, before me personally came
_____________ to me known, who being by me duly sworn, did depose and say that
he resides in ____________ that he is the ___________________ of
___________________ the corporation described in and which executed the
foregoing instrument, as TENANT; that he knows the seal of said corporation; the
seal affixed to said instrument is such corporate seal; that it was so affixed
by order of the Board of Directors of said corporation, and that he signed his
name thereto by like order.
-----------------------
-18-
INDIVIDUAL TENANT
STATE OF NEW YORK, ss.:
County of
On this _________ day of ___, 19__, before me personally came
_____________ to me known to me to be the individual described in and who, as
TENANT, executed the foregoing instrument and acknowledged to me that
_________________ he executed the same.
-19-
GUARANTY
FOR VALUE RECEIVED, and in consideration for, and as an
inducement to Owner making the within lease with Tenant, the undersigned
guarantees to Owner, Owner's successors and assigns, the full performance and
observance of all the covenants, conditions and agreements, therein provided to
be performed and observed by Tenant, including the "Rules and Regulations" as
therein provided, without requiring any notice of non-payment, non-performance,
or non-observance, or proof, or notice, or demand, whereby to charge the
undersigned therefor, all of which the undersigned hereby expressly waives and
expressly agrees that the validity of this agreement and the obligations of the
guarantor hereunder shall in no wise be terminated, affected or impaired by
reason of the assertion by Owner against Tenant of any of the rights or remedies
reserved to Owner pursuant to the provisions of the within lease. The
undersigned further covenants and agrees that this guaranty shall remain and
continue in full force and effect as to any renewal, modification or extension
of this lease and during any period when Tenant is occupying the premises as a
"statutory tenant." As a further inducement to Owner to make this lease and in
consideration thereof, Owner and the undersigned covenant and agree that in any
action or proceeding brought by either Owner or the undersigned against the
other on any matters whatsoever arising out of, under, or by virtue of the terms
of this lease or of this guarantee that Owner and the undersigned shall and do
hereby waive trial by jury.
Dated:
Guarantor
Witness
Guarantor's Residence
Business Address
Firm Name
-00-
XXXXX XX XXX XXXX ) SS.:
COUNTY OF )
On this __ day of _____________, 19 __, before me personally
came _________ to me known and known to me to be the individual described in,
and who executed the foregoing Guaranty and acknowledged to me that he executed
the same.
--------------------------
Notary
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IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND
MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 33
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress or egress from the
demised premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery by
Owner. There shall not be used in any space, or in the public hall of the
building, either by any Tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and sideguards. If said premises are situated on the ground floor of the
building, Tenant thereof shall further, at Tenant's expense, keep the sidewalk
and curb in front of said premises clean and free from ice, snow, dirt and
rubbish.
2. The water and wash closets and plumbing fixtures shall not be used
for any purposes other than those for which they were designed or constructed
and no sweepings, rubbish, rags, acids or other substances shall be deposited
therein, and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any
window of the building and no Tenant shall sweep or throw or permit to be swept
or thrown from the demised premises any dirt or other substances into any of the
corridors or halls, elevators, or out of the doors or windows or stairways of
the building and Tenant shall not use, keep or permit to be used or kept any
foul or noxious gas or substance in the demised premises, or permit or suffer
the demised premises to be occupied or used in a manner offensive or
objectionable to Owner or other occupants of the building by reason of noise,
odors, and/or vibrations, or interfere in any way with other Tenants or those
having business therein, nor shall any bicycles, vehicles, animals, fish, or
birds be kept in or about the building. Smoking or carrying lighted cigars or
cigarettes in the elevators of the building is prohibited.
4. No awnings or other projections shall be attached to the outside
walls of the building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any Tenant on any part of the
outside of the demised premises or the building or on the inside of the demised
premise if the same is visible from the outside of the premises without the
prior written consent of Owner, except that the name of Tenant may appear
-22-
on the entrance door of the premises. In the event of the violation of the
foregoing by any Tenant, Owner may remove same without any liability, and may
charge the expense incurred by such removal to Tenant or Tenants violating this
rule. Interior signs on doors and directory tablet shall be inscribed, painted
or affixed for each Tenant by Owner at the expense of such Tenant and shall be
of a size, color and style acceptable to Owner.
6. No Tenant shall xxxx, paint, drill into, or in any way deface any
part of the demised premises or the building of which they form a part. No
boring, cutting or stringing of wires shall be permitted, except with the prior
written consent of Owner, and as Owner may direct. No Tenant shall lay linoleum,
or other similar floor covering, so that the same shall come in direct contact
with the floor of the demised premises, and, if linoleum or other similar floor
covering is desired to be used an interlining of builder's deadening felt shall
be first affixed to the floor, by a paste or other material, soluble in water,
the use of cement or other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any Tenant, nor shall any changes be made in existing
locks or mechanism thereof. Each Tenant must, upon the termination of his
Tenancy, restore to Owner all keys of stores, offices and toilet rooms, either
furnished to, or otherwise procured by, such Tenant, and in the event of the
loss of any keys, so furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter
of any description shall be delivered to and removed from the premises only on
the freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease or which these Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited
and each Tenant shall cooperate to prevent the same.
10. Owner reserves the right to exclude from the building all persons
who do not present a pass to the building signed by Owner. Owner will furnish
passes to persons for whom any Tenant requests same in writing. Each Tenant
shall be responsible for all persons for whom he requests such pass and shall be
liable to Owner for all acts of such persons. Tenant shall not have a claim
against Owner by reason of Owner excluding from the building any person who does
not present such pass.
11. Owner shall have the right to prohibit any advertising by any
Tenant which in Owner's opinion, tends to impair the reputation of the building
or its desirability as a building for offices, and upon written notice from
Owner, Tenant shall refrain from or discontinue such advertising.
-23-
12. Tenant shall not bring or permit to be brought or kept in or on the
demised premises, any inflammable, combustible, explosive, or hazardous fluid,
material, chemical or substance, or cause or permit any odors of cooking or
other processes, or any unusual or other objectionable odors to permeate in or
emanate from the demised premises.
13. If the building contains central air conditioning and ventilation,
Tenant agrees to keep all windows closed at all times and to abide by all rules
and regulations issued by Owner with respect to such services. If Tenant
requires air conditioning or ventilation after the usual hours, Tenant shall
give notice in writing to the building superintendent prior to 3:00 p.m. in the
case of services required on week days, and prior to 3:00 p.m. on the day prior
in case of after hours service required on weekends or on holidays. Tenant shall
cooperate with Owner in obtaining maximum effectiveness of the cooling system by
lowering and closing venetian blinds and/or drapes and curtains when the sun's
rays fall directly on the windows of the demised premises.
14. Tenant shall not move any safe, heavy machinery, heavy equipment,
bulky matter, or fixtures into or out of the building without Owner's prior
written consent. If such safe, machinery, equipment, bulky matter or fixtures
requires special handling, all work in connection therewith shall comply with
the Administrative Code of the City of New York and all other laws and
regulations applicable thereto and shall be done during such hours as Owner may
designate.
15. Refuse and Trash. (1) Compliance by Tenant. Tenant covenants and
agrees, at its sole cost and expense, to comply with all present and future
laws, orders, and regulations of all state, federal, municipal, and local
governments, departments, commissions and boards regarding the collection,
sorting, separation and recycling of waste products, garbage, refuse and trash.
Tenant shall sort and separate such waste products, garbage, refuse and trash
into such categories as provided by law. Each separately sorted category of
waste products, garbage, refuse and trash shall be placed in separate
receptacles reasonably approved by Owner. Such separate receptacles may, at
Owner's option, be removed from the demised premises in accordance with a
collection schedule prescribed by law. Tenant shall remove, or cause to be
removed by a contractor acceptable to Owner, at Owner's sole discretion, such
items as Owner may expressly designate. (2) Owner's Rights in Event of
Noncompliance. Owner has the option to refuse to collect or accept from Tenant
waste products, garbage, refuse or trash (a) that is not separated and sorted as
required by law or (b) which consists of such items as Owner may expressly
designate for Tenant's removal, and to require Tenant to arrange for such
collection at Tenant's sole cost and expense, utilizing a contractor
satisfactory to Owner. Tenant shall pay all costs, expenses, fines, penalties,
or damages that may be imposed on Owner or Tenant by reason of Tenant's failure
to comply with the provisions of this Building Rule 15, and, at Tenant's sole
cost and expense, shall indemnify, defend and hold Owner harmless (including
reasonable legal fees and expenses) from and against any actions, claims and
suits arising from such noncompliance, utilizing counsel reasonably satisfactory
to Owner.
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RIDER TO LEASE, DATED AS OF SEPTEMBER 30, 1997 BETWEEN TOV, LLC,
OWNER AND I.D. SYSTEMS, INC. TENANT FOR A TERM OF FIVE (5) YEARS,
THREE (3) MONTHS AND SEVENTEEN (17) DAYS COMMENCING DECEMBER 15,
1997 AND TERMINATING ON MARCH 31, 2003.
37. CONFLICTING LANGUAGE
If any conflict shall arise between any of the provisions of this Rider
and any of the terms, printed or typewritten, of the printed portion of the
Lease to which this Rider is attached, all such conflicts shall be resolved in
favor of the provisions of this Rider.
38. INTENTIONALLY OMITTED
39. REAL ESTATE TAX ESCALATION
(a) For the purposes of this Lease, the following terms shall
have the following meanings:
i. "Real Estate Taxes" shall mean all taxes,
assessments, and special assessments levied, assessed
or imposed at any time by the City of New York or by
any other governmental authority or any business
improvement district upon or against the land and/or
building of which the demised premises form a part
and any rights or interests appurtenant thereto,
including air rights (hereinafter referred to as the
"real property"), and also all taxes and assessments
levied, assessed or imposed at any time by any
governmental authority in connection with the receipt
of income or rents from the real property only to the
extent that same shall be in lieu of, as a substitute
for, or as a substitute for any increase in, all or a
portion of any of the aforesaid taxes or assessments
upon or against the real property but shall not
include capital gains, transfer, transfer gains,
inheritance, estate, succession and give taxes. If,
due to a future change in the method of taxation or
in the taxing authority, a franchise, license,
income, transit, profit or other tax, fee, or
governmental imposition, however designated, shall be
levied, assessed or imposed against Owner in lie of,
as a substitute for, or as a substitute for any
increase in, all or any part of said real estate
taxes then such franchise, license, income, transit,
profit, or other tax, fee, or governmental imposition
shall be deemed to be included within the definition
of Real Estate Taxes for the purposes hereof.
ii. "Tax Year" shall mean each 12-month fiscal period
commencing July 1 and ending June 30 (or any other
such period as may be adopted by the City of
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New York as its fiscal year for computing taxes), any
portion of which occurs during the term of the Lease.
iii. "Base Tax Amount" shall mean one half of the sum of
the Real Estate Taxes due with respect to (A) the Tax
Year commencing July 1, 1997 and (B) the Tax Year
commencing July 1, 1998.
iv. "Subsequent Year" shall mean each Tax Year commencing
within the term of this Lease which shall be
subsequent to the Base Tax Year.
v. "Tenant's Proportionate Share" shall mean 3.62%. If
the total floor area of the building shall be
increased or decreased, Tenant's Proportionate Share
shall be adjusted accordingly. Solely for the
purposes of this clause (v) and of Article 52 of this
Lease, the floor area of the demised premises is
deemed to be 5,650 square feet and the total floor
area of the building containing the demised premises
is deemed to be 156,026 feet.
(b) (1) If, in any Subsequent Year, Real Estate Taxes shall be
greater than the Base Tax Amount, then Tenant shall pay, in addition to the
annual rent set forth in Article 60 of this Lease (the "fixed minimum rent") and
as additional rent for such Subsequent Year, an amount (hereinafter called
"Tenant's Tax Payment") equal to Tenant's Proportionate Share of such increase.
Such tax payment shall be paid by Tenant notwithstanding the fact that Tenant
may be exempt, in whole or in part, from the payment of any Real Estate Taxes by
reason of Tenant's diplomatic, charitable, or otherwise tax exempt status, or
for any other reason whatsoever.
(2) At any time during or after any Subsequent Year, Owner may
furnish Tenant with a statement setting forth the amount of Real Estate Taxes
and Tenant's Tax Payment for such Subsequent Year. Tenant shall pay Tenant's Tax
Payment within fifteen (15) days of presentation by Owner of such statement
calculating Tenant's Proportionate Share of the charge for the entire Tax Year.
Owner shall furnish Tenant with a copy of any relevant xxxx for Real Estate
Taxes within fifteen (15) days of Tenant's request therefor.
(3) In the event this Lease shall expire or be terminated on a
day other than the last day of a Subsequent Year, Tenant's Tax Payment for such
subsequent Year shall be prorated as of the date of such expiration or
termination, so that Tenant shall be required to pay only such proportion
thereof as the portion of such Subsequent Year prior to such expiration or
termination bears to the entire Subsequent Year.
(4) In the event that, as a result of a tax appeal, the Base
Tax Amount shall be reduced, the Tenant's Tax Payment shall be computed by using
the Real Estate Taxes levied according to such reduced Base Tax Amount.
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40. INTENTIONALLY OMITTED
41. INTENTIONALLY OMITTED
42. ADDITIONAL RENT
(a) Any statement sent to Tenant with respect to Real Estate
Taxes shall be binding upon Tenant, unless, within sixty (60) days after such
statement is sent, Tenant shall send a written notice to Owner objecting to such
statement and specifying the respects in which such statement is claimed to be
incorrect. Pending the determination of such dispute, Tenant shall pay all
additional rent shown on such statement, and such payment and acceptance shall
be without prejudice to Tenant's position. If such dispute is resolved in
Tenant's favor, any overpayment to Owner will be refunded by Owner to Tenant
within 15 days after such dispute is resolved.
(b) Additional rent payable by reason of increases in Real
Estate Taxes shall be computed separately and shall not be aggregated.
(c) The expiration or termination of this Lease during any
Subsequent Year for any part or all of which there is additional rent payable
under this Lease shall not affect the rights or obligations of the parties
thereto respecting such increase, and any statement relating to such increase
may be sent to Tenant subsequent to, and all such rights and obligations shall
survive, any such expiration or termination.
(d) Any additional rent due under this Lease shall be
collectible by Owner in the same manner as the fixed minimum rent, and Owner
shall have all rights with respect thereto as he has with respect to the fixed
minimum rent, including all the remedies available under Article 17 with respect
to rent.
(e) Anything in this Lease to the contrary, under no
circumstances shall any rent adjustment hereunder result in a decrease in the
annual rent below the fixed minimum rent set forth in this Lease.
43. PERSONAL LIABILITY
Anything in this Lease to the contrary notwithstanding, Owner shall
have no personal liability with respect to any of the terms and obligations of
this Lease or Tenant's occupancy of the demised premises, and Tenant shall look
solely to Owner's interest in the real property for the satisfaction of each and
every one of the Tenant's remedies in the event of any default or breach by
Owner of any of the terms, covenants and conditions of this Lease and no other
property or assets of Owner shall be subject to levy, execution or other
enforcement procedure for the satisfaction of Tenant's remedies.
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44. SIGNS
Tenant shall not install or affix or permit the installation or
affixation of any signs, temporary or permanent, to the exterior of the demised
premises or of the building, or which are visible from the outside of the
demised premises, without Owner's prior written consent which consent shall not
be unreasonably withheld or delayed. Tenant may place a sign on the exterior of
the door to the demised premises bearing Tenant's name and logo. In the event
that Owner elects to place signs in any elevator lobby or elevator of the
Building referring to any tenant, Owner shall at its expense install a similar
sign referring to Tenant in the 4th floor elevator lobby and/or the elevators
stopping at the 4th floor, as the case may be.
45. TENANT'S REMEDY
If Owner has agreed with respect to any provision of this Lease not to
unreasonably withhold or delay Owner's consent or approval and it shall be
determined by appropriate judicial proceedings that Owner has violated such
provisions, Tenant's sole remedy shall be an action or proceeding to enforce any
such provision, or for specific performance, injunction or declaratory judgment
and Tenant hereby waives any claim for money damages for such violation,
including any claim by way of set-off, counterclaim or defense except that
Tenant shall be entitled to recover its reasonable legal fees in any judicial
proceeding which determines that Owner unreasonably withheld its consent or
approval with respect to such provision provided Owner does not successfully
appeal such judgment. Notwithstanding anything herein to the contrary, in the
event that Tenant obtains a judgment against Owner in a judicial proceeding
which is not successfully appealed determining that Owner engaged in willful
misconduct in any breach of its obligations under this lease, Tenant may recover
actual damages (but not consequential or punitive damages) resulting from such
breach.
46. INSURANCE
(a) Tenant shall provide on or before the commencement date of
the term hereof, for the benefit of Tenant a policy of Comprehensive General
Liability Insurance with a Bodily Injury limit of One Million Dollars
($1,000,000.00) per individual, Two Million Dollars ($2,000,000.00) per
occurrence and a property damage limit of One Hundred Thousand Dollars
($100,000.00), protecting Tenant against claims for bodily injury, or death, and
property damage, including water damage, occurring in, upon, or about the
demised premises or any appurtenances thereto. Such policy is to be written by
good and solvent insurance companies satisfactory to Owner. Such insurance may
be carried under a blanket policy covering the demised premises and other
locations of Tenant, if any. Prior to the time much insurance is first required
to be carried by Tenant, and thereafter at least fifteen (15) days prior to the
expiration of any such policy, Tenant agrees to deliver to Owner either a
duplicate original of the aforesaid policy or a certificate evidencing such
insurance, together with evidence of payment for the policy.
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(b) All of the aforesaid insurance shall be in the name of
Tenant and shall name Owner as additional insured, and shall contain
endorsements that: (i) such insurance may not be canceled or amended with
respect to Owner, except upon twenty (20) days' written notice by certified mail
to Owner by the insurance company; and (ii) Tenant shall be solely responsible
for payment of premiums and that Owner shall not be required to pay any premiums
for such insurance. The minimum limits of the comprehensive general liability
policy of insurance shall in no way limit or diminish Tenant's liability under
other provisions of this Lease.
(c) Tenant's failure to provide and keep in force the
aforementioned insurance shall be regarded as a material default hereunder,
entitling Owner to exercise any or all of the remedies provided in this Lease in
the event of Tenant's default.
(d) Owner shall have the right to reasonably require Tenant to
increase the amount of coverage under such policy or policies.
(e) Any delay by Owner in exercising, or failing to exercise,
any right hereunder shall not be deemed a waiver of such right or of any future
obligation of Tenant under this Article.
(f) Owner shall cause the Building to be insured for an amount
and in a manner similar to the insurance carried by owners of similar office
building in downtown Manhattan. Any insurance policies of Owner shall, if
offered by Owner's insurer at no additional cost, contain a waiver of
subrogation against Tenant.
47. INTENTIONALLY OMITTED
48. NOISE, ODOR, NUISANCE
(a) Tenant shall, within ten (10) days after written notice
from Owner, at its own cost and expense, install control devices or adopt
procedures to eliminate any unreasonable noise, odor and vibrations emanating
from the demised premises.
(b) If such condition is not remedied within ten (10) days,
Owner may, at its sole discretion, either (1) cure such condition and add the
reasonable cost and expense incurred by Owner to the next monthly rental to
become due as additional rent or (2) treat such failure on the part of Tenant as
a material default hereunder entitling Owner to all of its remedies under this
Lease and at law. In the event Owner requires Tenant to install such control
devices or to adopt such procedures, the material, size and location of such
installations and the procedures adopted shall be subject to the Owner's prior
written consent.
(c) In addition to the above, Tenant agrees to install
sufficient rubber matting, or any other material or padding approved by Owner,
underneath any machinery operated by
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Tenant on the premises to prevent any noise and vibration from affecting any
other tenant or tenants in the building.
49. OWNER'S EXPENSES
Any costs or expenses incurred by Owner which arise out of any
violation by Tenant of any of the provisions of this Lease, including reasonable
legal fees and court costs, shall be added to the next installment of rent due
hereunder and shall be treated in all respects as rent. Any default by Tenant in
the payment of such damages, costs or expenses shall be treated as a default in
the payment of rent, and Owner shall have the same remedies with respect thereto
as it has with respect to any default in payment of rent.
50. LATE CHARGE
(a) It is clearly understood and an essential element of this
lease that the installments of fixed minimum rent and/or any additional rent
must be paid on or before the first day of each month. Accordingly, if Tenant
shall fail to pay all or any part of any installment of fixed minimum rent or
additional rent by the tenth day of the month (except with respect to the first
such failure during the term of the Lease for which payment is made no later
than the last day of the calendar month in which the payment which was not
timely paid shall have been due), Tenant shall pay to Owner, as additional rent,
a late charge in an amount equal to six percent (6%) of the total amount of
fixed minimum rent and/or additional rent owed.
(b) The late charge payable pursuant to paragraph (a) above
shall be (i) payable on demand and (ii) without prejudice to any of Owner's
rights and remedies hereunder, at law or in equity, for non-payment or late
payment of rent or other sums, but shall be in addition to any such rights and
remedies, available to Owner. No failure by Owner to insist upon the strict
performance by Tenant of Tenant's obligations to pay late charges as provided in
this Article shall constitute a waiver by Owner of its right to enforce the
provisions of this Article in any such instance or in any instance thereafter
occurring. The provisions of this Article shall not be construed in any way to
extend the grace periods or notice period provided for in Article 17 of this
Lease.
51. BROKER
Tenant covenants, represents and warrants that Tenant has had no
dealings with any broker or agent in connection with negotiations or
consummation of this Lease other than Newmark & Co. Real Estate, Inc. and Tenant
covenants and agrees to hold harmless and indemnify Owner from and against any
and all costs, expenses (including without limitation, attorneys' fees and
expenses) or liabilities arising in connection with any claim for compensation,
commissions or charges claimed by any other broker or agent with respect to this
Lease or the negotiation thereof.
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52. ELECTRIC
It is agreed and understood that Owner shall provide the electric
current for the subject premises. The charge for the electric current is
included in the fixed minimum rent at an annual rate of $15,537.50, said amount
being computed on the basis of $2.75 per square foot. It is, however, agreed and
understood that, in the event that there is an increase in the electric usage in
the demised premises (determined by survey conducted by Owner at Owner's
expense) or the Owner's cost in obtaining electric service for the premises, the
aforesaid $2.75 per square foot rate for computing electric charge shall be
adjusted commensurate with the percentage increase in the usage or cost for
electricity. The Tenant acknowledges that the current electrical service
provided to the demised premises, including the risers and feeders, is adequate
to meet the Tenant's needs. If Tenant disputes Owner's adjustment, Tenant shall
pay the adjusted electric charge reflected in Owner's adjustment pending its own
audit of its electricity use which it shall have the right to conduct within 180
days of such adjustment. Tenant shall furnish Owner with its auditor's report
within such 180-day period. If the electrical consultants of Owner and Tenant
cannot agree on the adjustment within 30 days of the submission of such report,
said consultants shall, within such 30-day period, choose a mutually acceptable
consultant whose decision as to the adjustment shall be binding on both parties.
Owner represents that the electrical service to the demised premises is 5 xxxxx
per square foot.
53. FAILURE TO SURRENDER POSSESSION
Should Tenant remain in possession of the demised premises after the
expiration of the term of this Lease or any extended term thereof, such
possession shall not be deemed to extend the term of or to renew the Lease. In
the event that Owner, at its option, permits Tenant to continue to occupy the
demised premises as a month-to-month Tenant, Tenant shall continue in possession
subject to the covenants and conditions set forth in this Lease. During any such
month-to-month tenancy, or in the event of a holdover, the charge for use and
occupancy of the demised premises in each calendar month or any part thereof
shall be one and one-half (1.5) times the monthly rent payable by Tenant at the
end of the term or any extended or modified term of the Lease, including all
items of additional rent and increases in the fixed minimum rent payable
pursuant to this Lease.
54. SUBLET, ASSIGNMENT, CONVEYANCE OF STOCK
Supplementing Article 11 hereof, it is understood and agreed as
follows:
(a) Subject to Owner's right to cancel and terminate the Lease
as set forth in subparagraph (e) of this Article, Owner covenants and agrees
that it will not unreasonably withhold or delay its consent to Tenant's
assignment of this Lease or subletting of all or any portion of the demised
premises to any other person, firm, or corporation, provided all of the
following requirements are met:
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i. Such assignee or subtenant shall use and occupy the
demised premises for the purposes set forth in
Article 64 hereof and provided said use shall not
lower the value or dignity of the building.
ii. Tenant submits a written request to Owner for Owner's
consent to such assignment or subletting prior to the
assignment or sublet. The request shall set out (a)
the name and address of the proposed subtenant or
assignee, (b) the terms and conditions of the
proposed assignment or sublease, (c) the nature and
character of the business of the proposed subtenant
or assignee, and (d) current financial information on
the proposed subtenant or assignee.
iii. Tenant supplies Owner with such additional
information as Owner may reasonably request.
iv. Tenant shall not assign or sublet to anyone who at
the time is a tenant, subtenant, or assignee in
possession of premises in the Building or who is then
negotiating with Owner for space in the Building
unless there is no comparable space available at such
time or anticipated to be available within the next
ensuing six (6) months.
v. In the event of an assignment or sublet, Tenant shall
remain liable for the performance of all the terms,
covenants and conditions of this Lease, including the
payment of fixed minimum rent and additional rent.
vi. In the event of an assignment, the assignee shall
assume, by written instrument, in form and content
reasonably satisfactory to Owner, the due performance
of all of Tenant's obligations under the Lease,
including any accrued obligations at the time of the
assignment. In the event of a sublet, the subtenant
shall execute a sublease, in form and content
reasonably satisfactory to Owner, which shall provide
that the subtenant shall be bound by the terms,
covenants and conditions of this Lease (except with
respect to the amount of rent payable under such
sublease.)
vii. At the time of such assignment and/or sublet, this
Lease must be in full force and effect without any
breach or default thereunder beyond the expiration of
all applicable grace and notice periods on the part
of the Tenant.
viii. A copy of the assignment or sublease and the original
assumption agreement (both in form and content
reasonably satisfactory to Owner), fully executed and
acknowledged by the assignee and/or sublease,
together with, where appropriate a certified copy of
a properly executed corporate
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resolution authorizing such agreement, shall be
mailed to Owner within ten (10) days from the date of
execution of such assignment or sublease.
ix. The rental (for a sublet) and/or consideration (for
an assignment) payable by such subtenant or assignee
shall not be less than the fair rental value of the
demised premises (in the case of a sublet) and/or the
fair market value of the leasehold (in the case of an
assignment) at the time of such sublease or
assignment.
x. Tenant shall reimburse Owner on demand for any
reasonable costs that may have been incurred by Owner
in connection with said assignment or sublease
including the costs of investigating the proposed
assignee or subtenant and Owner's reasonable legal
costs.
(b) Notwithstanding anything contained in this Lease to the
contrary and notwithstanding any consent by Owner to any assignment or sublease
of the demised premises, no assignee or subtenant shall further assign this
Lease or further sublet all or part of the demised premises without the prior
written consent of Owner in each such case, which consent Owner shall not
unreasonably withhold or delay.
(c) Tenant's failure to comply with all of the provisions and
conditions of the Article shall, at Owner's option, render any purported
assignment or subletting null and void and of no force and effect.
(d) Consent by Owner to any assignment or sublease shall not
be deemed a waiver or relinquishment for the future of the covenant against
assignment and subletting, nor shall the acceptance of any assignee as tenant be
construed as releasing Tenant from the full performance of the provisions of
this Lease.
(e) Notwithstanding anything to the contrary set forth in this
Article, or elsewhere in the Lease, in the event Tenant exercises its right to
assign its interest in this Lease or to sublease all or part of the demised
premises as set forth in this Article, then upon receipt by Owner by certified
mail, return receipt requested, of Tenant's request for Owner's consent to such
assignment or sublet, together with a copy of the proposed assignment or
sublease and assumption agreement as set forth in this Article, Owner shall have
the following rights:
i. To notify Tenant within fifteen (15) days of such
receipt, of Owner's (1) consent to such assignment or
subletting, or (2) denial of consent, or (3) exercise
of its right, herein granted, to cancel and terminate
the Lease; except that if Owner requests additional
information with respect to the subtenant or assignee
Owner shall have fifteen (15) days from receipt of
such information to make such election.
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ii. If Tenant exercises its right to request Owner to
consent to an assignment or sublet, Owner shall have
the unilateral right to cancel this Lease in
accordance with the provisions of this paragraph.
Owner shall have the right to terminate this Lease,
as of a date chosen by Owner, no earlier than two (2)
months and no later than four (4) months after the
date of Tenant's notification to Owner of Tenant's
election to sublease or assign. If Owner exercises
its option to terminate this Lease, then this Lease
shall cease and terminate on the date set forth by
Owner in its notice without any further liability on
the part of either party to the other, except for
accrued obligations to the date of termination.
(f) If Owner shall reasonably withhold its consent to any
assignment or sublet, or exercise any of its option under this Article, Tenant
shall indemnify, defend and hold Owner harmless from and against any and all
loss, liability, damages, costs and expenses (including reasonable attorneys'
fees) resulting from any claims that may be made against Owner by the proposed
assignee or sublessee, or by any brokers or other persons claiming compensation
or commissions in connection with the proposed assignment or sublease.
(g) Any transfer, by operation of law or otherwise, of
Tenant's (or any subtenant's or assignee's) interest in this Lease (in whole or
in part) or of a fifty percent (50%) or greater interest in Tenant (whether
stock, partnership interest, or otherwise) shall be deemed an assignment of this
Lease and subject to the provisions of Article 11 hereof. It is understood and
agreed that if Tenant is a corporation, a transfer by the corporation or any
shareholder(s) thereof of a majority of the issued or outstanding capital stock
of Tenant, however accomplished (including a transfer accomplished by the
corporation's issuance of shares in an amount greater than 50% of the
outstanding shares), and whether or not in a single transaction, shall be deemed
an assignment of this Lease requiring Owner's consent.
(h) Notwithstanding anything in the foregoing to the contrary,
upon ten (10) days' notice and a copy of any relevant assignment and assumption
agreement or sublease, as the case may be, Owner will consent to the assignment
of this Lease or the subletting of all or any demisable part of the demised
premises to any "subsidiary", "affiliate" or "successor" of Tenant provided that
such subsidiary, affiliate or successor together with Tenant shall have as their
combined net worth as certified by a certified public accountant in accordance
with generally accepted accounting principles, consistently applied, of not less
than an amount equal to the net worth of Tenant (a) at the time of execution of
this Lease or (b) immediately prior to such assignment of subletting (whichever
is greater). A "successor" entity shall mean any entity which succeeds by
merger, consolidation or otherwise at law to all or substantially all of
Tenant's business and assets. A "subsidiary" shall mean any entity 51% or more
of which is owned, directly or indirectly, by Tenant. An "affiliate" shall mean
any entity or group of entities which controls, is controlled by or is under
common control with Tenant, control being defined for the purposes of this
sentence as ownership of 51% or more of the beneficial interest in an entity or
group of entities. The sale or transfer by public offering of the common stock
of tenant shall not
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constitute an assignment under the terms of this Lease nor shall the sale of all
or substantially all of the issued and outstanding voting stock constitute such
an assignment.
55. CORPORATE AUTHORITY
In the event that Tenant is a corporation, Tenant represents that the
individual who is executing this Lease on behalf of Tenant is an officer of said
corporation and is duly authorized by the other officers and/or the Board of
Directors of the corporation to execute this Lease on behalf of the corporation
and, upon execution, is authorized to bind the corporation to the terms and
conditions set forth in this Lease.
56. ACCEPTANCE OF PREMISES
Owner is not required to perform any work on the demised premises, and
Tenant accepts the demised premises in their "as is" condition (except for the
separate work letter annexed hereto).
(A) POSSESSION
The "Commencement Date" shall be the earlier of the following: A) the
date upon which Tenant or any subtenant takes occupancy of the demised premises
or any portion thereof for the conduct of its business; or B) December 15, 1997.
(B) CONDITION OF THE DEMISED PREMISES
Tenant has examined the demised premises and agrees to accept
possession of the demised premises in the condition which shall exist on the
date hereof "as is", and further agrees that Owner shall have no obligation to
perform any work, supply any materials, incur any expenses or make any
installations, in order to prepare the demised premises for Tenant's occupancy,
other than work performed by Owner as described in the separate work letter
annexed hereto ("Owner's Work"). The taking of possession of the demised
premises by Tenant shall be conclusive evidence as against Tenant, that, at the
time such possession was so taken, the demised premises and the building were in
good and satisfactory condition, and that substantial completion of Owner's
Work, if any has occurred subject to "punch list" items and latent defects.
Owner's Work shall be substantially completed prior to the Commencement Date.
57. CONTINUATION OF DEFAULT PROVISIONS
Those provisions on the front page of this Lease and otherwise in this
Lease concerning defaults by Tenant under any other Lease between Tenant and
Owner shall apply to any and all other leases between Owners and Tenant, whether
or not such leases are subsidiary to this Lease or for space adjacent to the
premises.
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58. AIR CONDITIONING
Prior to installing any new or additional mechanical air conditioning
unit or units in the premises, Tenant shall first obtain Owner's written consent
which shall not be unreasonably withheld or delayed. Under penalty of damages
and forfeiture, the Tenant herein shall not install any mechanical air
conditioning plant or individual or collective units using water unless the unit
or units are equipped with a water conserving device, such as an evaporative
condenser, water xxxxxxx tower, or other similar apparatus. Tenants shall also
warrant and ensure that the air conditioner and any connections thereto, will be
free of leaks and will be maintained solely by Tenant.
59. SIGNATURE OF OWNER
It is specifically understood and agreed that this Lease is offered to
the Tenant for signature by the managing agent of the building, solely in its
capacity as such agent and subject to the Owner's acceptance and approval, and
that the Tenant has hereunto affixed its signature with the understanding that
the said Lease shall not in any way bind the Owner or its agent until such time
as the same had been approved and executedb by the Owner and delivered to the
Tenant.
60. MINIMUM RENTAL
The basic minimum rental for the subject premises shall be throughout
the entire term of the Lease:
i. $4,826.04 per month from the Commencement Date
through and including June 14, 1998;
ii. $8,357.29 per month from June 15, 1998 thought and
including December 31, 1998;
iii. $108,480.00 per annum ($9,040.00 per month) from
January 1, 1999 (the "First Change Date") through and
including the day preceding the first anniversary of
the First Change Date;
iv. $116,898.50 per annum ($9,741.54 per month) from the
first anniversary of the First Change Date through
and including the day preceding the second
anniversary of the First Change Date;
v. $125,599.50 per annum ($10,466.63 per month) from the
second anniversary of the First Change Date through
and including the day preceding the third anniversary
of the First Change Date;
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vi. $128,901.36 per annum ($10,741.74 per month) from the
third anniversary of the First Change Date through
and including the Expiration Date;
all of which shall be paid in equal monthly installments due on the first (1st)
day of each month in advance. Said annual rate includes the charge for electric
service at the subject premises at an annual rate of $15,537.50. Owner
represents that Tenant shall not be obligated to pay its proportionate share of
any operating expenses of Owner as part of any escalation provision pursuant to
this lease.
61. INTENTIONALLY OMITTED
62. ADVANCE RENT
Tenant shall pay to Owner, on or before the execution of this lease (a)
the sum of $4,826.04, being the first monthly installment of basic minimum
rental hereunder, and (b) the sum of $21,483.48 which shall, barring any default
in any respect by Tenant, be applied to the basic monthly rental for the last
two months of the term of this lease. If Tenant defaults under this lease, then
Owner may opt to otherwise apply the aforesaid sum of $21,483.48, in whole or in
part, to losses or expenses incurred by Owner as a result of Tenant's default,
and, in such case, Owner shall preserve its right to collect the fixed minimum
rent for the last two months of the term in addition to all other losses or
expenses incurred by Owner.
Notwithstanding the foregoing, in lieu of paying Owner $21,483.48 upon
execution of this lease, Tenant may furnish Owner with an unconditional, clean,
irrevocable "evergreen" letter of credit, payable on sight, in form and
substance satisfactory to Owner issued by a bank which is a member of the New
York City Clearing House Association and delivered to Owner. Owner may present
such letter of credit for payment on the occurrence of any default by Tenant
hereunder after notice and the expiration of any cure period herein set forth
(except if such default shall be due to Tenant's failure to deposit a subsequent
or extension letter of credit in accordance with the terms of this Article in
which case no notice need be given and no cure or grace period need be allowed).
Such letter of credit shall have an expiration date that is not earlier than
forty-five (45) days after the expiration of this lease. If, notwithstanding
that the letter of credit on deposit with Owner is to be an "evergreen" letter
of credit, same shall for any reason whatsoever expire or have an expiration
date earlier than forty-five (45) days after the expiration date to this lease,
then a subsequent or extension letter of credit in the amount of the then
existing letter of credit and otherwise in form and substance reasonably
acceptable to Owners shall be delivered by Tenant to Owner at least thirty (30)
days prior to the expiration date of the letter of credit it is replacing (time
being of the essence). The failure to deliver any subsequent or extension letter
of credit shall constitute a material default hereunder for which no notice need
be given, and for which no grace or cure period be allowed (notwithstanding
anything herein to the contrary) and the letter of credit then in effect may be
presented for payment and negotiated notwithstanding that no other default may
then exist under this lease and upon such presentment and negotiation the
default for
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Tenant's failure to so deliver shall have been cured. The proceeds of the letter
of credit that is so negotiated shall be held by Owner in accordance with
Article 34 hereof.
63. DISHONORED PAYMENTS
(a) If any payment of fixed minimum rent, additional rent or
any other payment payable hereunder by Tenant is tendered by check and said
check is dishonored for any reason whatsoever, Tenant shall pay to Owner, upon
demand, the sum of $150.00 representing the administrative charge for processing
the check.
(b) If during any 12-month period three (3) checks for any
payment of rent, additional rent or any other payment payable hereunder tare
dishonored for any reason whatsoever, then, in addition to any and all other
remedies set forth in this Lease, Owner may demand that Tenant pay, as
additional advance rent, an amount equal to one month's fixed minimum rent at
the time of the dishonoring of the check on each occasion that a check is
dishonored during the 12-month period commencing on the day the first such check
is dishonored. If, upon demand, said additional advance rent is not paid, same
shall constitute a serious and substantial default under this Lease permitting
Owner to pursue any appropriate default remedies as set forth herein or as
otherwise may be permissible under law.
64. USE
It is expressingly agreed and understood that Tenant shall use the
demised premises only as executive and administrative offices, for an
engineering laboratory and for conduct of Tenant's business and for no other
purpose. Particularly, under no circumstances shall the demised premises be
used, at any time, for residential purposes.
65. CLEANING AND RUBBISH REMOVAL
Tenant agrees to be responsible for the cleaning and removal of rubbish
from the demised premises to the place on the floor containing the same
designated by Owner. Owner shall cause such rubbish to be regularly removed from
such designated place to the outside of the building.
66. INTENTIONALLY OMITTED
67. PRE-WIRING
Tenant acknowledges that the pre-wiring of Tenant's space for all
services including Telecom, LAN and electricity was done by Owner for
convenience purposes only. Owner does not warrant that the wiring systems will
work with Tenant's systems nor does the Owner take responsibility for any repair
that may become necessary during Tenant's occupancy. In addition, Owner takes no
responsibility for loss or damage to Tenant's business, services or systems due
to the non-functioning of errors caused by the wiring systems in the space or
the Building.
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68. TAX INCENTIVE PROGRAM
Owner shall reasonably cooperate with Tenant in the event that Tenant
seeks to apply for a real property tax abatement or other tax or expense
reduciton pursuant to the Lower Manhattan Plan (1995 NY A.B. 8028) provided,
however, that Owner shall not be required to incur any costs in connection
therewith. Tenant agrees that it shall pay all reasonable fees and expenses
incurred or to be in connection with such application including, without
limitation, any application fees and/or filing fees and all fees and
disbursements for professional services utilized by Owner in connection
therewith including, without limitation, legal, accountant's and clerical fees.
69. DIRECTORY LISTINGS
Tenant shall be entitled to ten (10)) line directory listings on any
tenants' directory in the lobby of the building.
70. OVERTIME A/C
Tenant shall be entitled to the use of after hours air conditioning.
Tenant must advise Owner at least four (4) hours in advance of the time it shall
be required. Tenant agrees to pay Owner's established charge for providing such
after hours air conditioning. Owner represents that its current charges for such
air conditioning is $40 per hour.
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WORK LETTER ANNEXED TO LEASE, DATED AS OF SEPTEMBER 30, 1997 BETWEEN TOV,
LLC, OWNER AND I.D. SYSTEMS, INC. TENANT FOR A TERM OF FIVE (5) YEARS, THREE
(3) MONTHS AND SEVENTEEN (17) DAYS COMMENCING DECEMBER 145, 1997 AND
TERMINATING ON MARCH 31, 2003
IT IS AGREED AND UNDERSTOOD that the following work will be
provided by the Owner in a xxxxxxx-like and building standard manner in
connection with the annexed Lease:
1. Install doors (including closet doors) throughout the demised
premises.
2. Remove wall between rooms 9 and 10 to create conference room.
All existing, small and angled walls in this new conference
room shall be removed.
3. Install a door below room 4 and install a glass panel next to
door. This glass panel may be one of the glass panels that is
existing in the premises.
4. Install main entry double doors and second entry double doors.
5. Install a new counter top and new sink in room 8 and remove
all old cabinets in this room.
6. Remove cabinets and shelves in room 12. Tenant will reuse
shelves and brackets from this room in another location in
premises.
7. Salvage all existing wood doors and install matching wood
doors to offices that do not have doors.
8 Remove all built-in cabinets in rear of space.
9. In room 11, install door where the closet would have been, as
per plan.
10. Install clear glass windows looking into LAB in rooms 1,2, 11
& 12 as per spaces on the fifth floor of building.
11. Install a coat closet in main reception as per plan.
12. Repair and paint and existing ceiling tiles white.
13. Install new parabolic lighting throughout the entire premises.
14. Paint the entire premises with building standard paint in
Owner's standard colors (as selected by Tenant).
15. Carpet the entire premises except for LAB area labeled on plan
using building standard carpet in Owner's standard colors (as
selected by Tenant). In this uncarpeted LAB area, Landlord
shall clean cement floor and apply a clear laminate. (Shared
area on plan represents uncarpeted area.)
16. Remove the extended angled wall outside room 12.
17. Install building standard blinds through the premises.
18. Pre-wire the entire space for LAN for phones and computers
(exact locations to be determined by Tenant).
19. Upgrade common hallway consistent in appearance and quality
with work on the 5th floor of building.
IT IS AGREED AND UNDERSTOOD that Owner shall provide not other
work in connection with the annexed Lease unless otherwise agreed to by and
between the parties in writing.
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SECOND RIDER TO LEASE, as of September 30, 1997
BETWEEN Tov, L.L.C. Owner and
I.D. Systems, Tenant
INSERTS TO PRINTED FORM
The following language is hereby inserted where indicated by letters in
the printed form;
1. , which consent shall not be unreasonably withheld or delayed,
2. , which approval shall not be unreasonably withheld or
delayed. The foregoing notwithstanding, Owner's consent shall
not be required with respect to painting, wall coverings,
floor coverings and similar type decorations.
3. reasonably
4. Owner shall comply with all laws, orders and regulations or
governmental entities in effect on the Commencement Date
affecting buildings generally and the Unit specifically which
require structural repairs or alterations to the Unit or the
demised premised.
5. Owner shall use commercially reasonably efforts to minimize
interference with Tenant's business operations by reason of
such repairs, alterations, additions or improvements performed
by Owner.
6. manner of
7. reasonable
8. reasonably
9. reasonable
10. (or with respect to injury or damage to persons or property,
the willful misconduct of Owner)
11. or inaccessible
12. notwithstanding the foregoing, if, any time, 50% or more of
the demised premises is damaged or destroyed by such casualty
and if the demised premises are not substantially repaired
prior to the date that is 180 days after the date of such
casualty (the "Substantial Completion Date"), Tenant may, upon
thirty (30) days' prior notice to Owner given within 30 days
after the Substantial Completion Date, terminate this lease,
in which event this lease shall terminate 30 days after the
giving of such notice if the demised premises are not
substantially repaired within such thirty (30) day notice
period.
13. , but Tenant may make a separate claim for moving expenses and
its trade fixtures and personal property provided that same
does not reduce Owner's recovery
14. Except in the event of emergency or where entry is required by
law, Owner shall give Tenant reasonable advance notice which
may, without limitation, be by fax or delivery to the
premises. Owner agrees that while exercising said right of
entry it will use reasonable efforts not to unreasonably
interfere with Tenant's use of the premises.
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15. (but Owner shall only use force in an emergency or if Tenant
shall refuse entry (and if such use of force shall be lawful)
or if Tenant shall have vacated the premises)
16. reasonable
17. beyond the expiration of all applicable notice and grace
periods
18. , except to the extent expressly provided herein. Owner shall
use commercially reasonable efforts to minimize interference
with Tenant's business operations by reason of such repairs,
alterations, additions or improvements (but Owner shall have
no obligation to employ labor at premium overtime rates in
connection therewith).
19. subject to the completion and Tenant's inspection of the work
to be performed by Owner pursuant to the Work Letter attached
hereto
20. or Tenant
21. Owner represents that the Building and the demised premises
will be accessible (and that the Building will be manned by
security personnel) 24 hours per day, 7 days per week.
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