EXHIBIT 10.19
EIGHTH ADDITIONAL SPACE AGREEMENT
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AGREEMENT made as of the 16th day of April, 1998 between 00 XXXXX
XXXXXX COMPANY, a New York partnership having its principal office at 000 Xxxx
Xxxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New York, as landlord
(referred to herein as "Owner"), and N2K INC., a Delaware corporation authorized
to transact business in the State of New York, having an office at 00 Xxxxx
Xxxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New York, as tenant
(referred to herein as "Tenant").
W I T N E S S E T H :
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WHEREAS:
(1) Under date of September 7, 1995, Owner and N2K Inc., a New York
corporation, Tenant's predecessor in interest, entered into a lease affecting
portions of the tenth (10th) and eleventh (11th) floors in the building
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(referred to herein as the "Building") known as 00 Xxxxx Xxxxxx, Xxxxxxx xx
Xxxxxxxxx, Xxxx, Xxxxxx and State of New York; and
(2) N2K Inc., a New York corporation, merged into N2K Inc., a
Pennsylvania corporation, by statutory merger effective February 13, 1996 and,
thereafter, N2K Inc., said Pennsylvania corporation, merged into Tenant by
statutory merger effective June 5, 1996 as amended and restated as of October
16, 1997; and
(3) Said lease, as modified by written agreements dated December 31,
1995, April 1, 1996 (said agreement dated April 1, 1996 is referred to as the
"First Additional Space Agreement"), April 2, 1996 (said agreement dated April
2, 1996 is referred to as the "Second Additional Space
Agreement"), April 3, 1996 (said agreement dated April 3, 1996 is referred to as
the "Third Additional Space Agreement"), October 15, 1996 (said agreement dated
October 15, 1996 is referred to as the "Fourth Additional Space Agreement"), May
13, 1997 (said agreement dated May 13, 1997 is referred to as the "Fifth
Additional Space Agreement"), January 5, 1998 (said agreement dated January 5,
1998 is referred to as the "Sixth Additional Space Agreement") and January 5,
1998 (said agreement dated January 5, 1998 is referred to as the "Seventh
Additional Space Agreement") is for a term (referred to herein as the "Demised
Term") which shall now end on August 31, 2002, unless said Demised Term with
respect to any Additional Space affected by any such Additional Space Agreement
expires sooner or is further extended pursuant to the provisions of the First,
Second, Third, Fourth, Fifth, Sixth and/or Seventh Additional Space Agreements,
or sooner terminated pursuant to any of the terms, covenants or conditions of
said lease or pursuant to law, and is referred to herein as the "Lease"; and the
premises so leased to Tenant pursuant to the provisions of the Lease, together
with all appurtenances, fixtures, improvements, additions and other property
attached thereto or installed therein at any time during the Demised Term other
than Tenant's Personal Property (as defined in the Lease), are referred to
herein, collectively, as the "Demised Premises"; and
(4) Tenant now desires to lease and add to the Demised Premises that
portion of the seventeenth (17th) floor of the Building known as Unit F,
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which is indicated by outlining and diagonal markings on the floor plan,
identified as Exhibit "1," initialed by the parties, annexed hereto and made a
part hereof, and Owner is willing to lease said portion of the seventeenth
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(17th) floor to Tenant, subject to the provisions of this Agreement (said
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portion of the seventeenth (17th) floor of the Building, together with all
appurtenances, fixtures, improvements, additions and other property attached
thereto or installed therein at any time during the Demised Term, other than
Tenant's Personal Property as defined in the Lease, is referred to herein as the
"Eighth Additional Space"); and
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(5) Subject to the provisions of this Agreement, the Demised Term of
the Lease applicable to the Eighth Additional Space shall commence on a date
(referred to as the "Eighth Additional Space Commencement Date") fixed by Owner
in a notice to Tenant, not sooner than two (2) business days next following the
date of the giving of such notice, which notice shall state that Owner has, or
prior to the Eighth Additional Space Commencement Date will have, substantially
completed the Eighth Additional Space Initial Work (as hereinafter defined); and
(6) All capitalized terms shall have the same meanings ascribed to
them in the Lease, unless otherwise set forth herein; and
(7) The parties desire to record herein their understandings with
respect to the foregoing.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties agree as follows:
FIRST : The Lease is hereby modified as follows:
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A. Owner hereby leases to Tenant and Tenant hereby hires from
Owner the Eighth Additional Space for a term to commence upon the Eighth
Additional Space Commencement Date and to end on the last day of the calendar
month which is five (5) years and two (2) months next following the Eighth
Additional Space Commencement Date, unless the Demised Term shall sooner
terminate or be extended pursuant to any of the terms, covenants or conditions
of this Agreement, the Lease or pursuant to law.
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B. (1) Tenant acknowledges that Owner has made no
representations to Tenant as to the condition of the Eighth Additional Space and
Tenant agrees to accept possession of the Eighth Additional Space in the
condition which shall exist on the Eighth Additional Space Commencement Date "as
is" and further agrees that Owner shall have no obligation to perform any work
or make any installations in order to prepare the Eighth Additional Space for
Tenant's occupancy, except that, prior to the Eighth Additional Space
Commencement Date, Owner agrees, at Owner's expense, to perform and make the
following work and installations in the Additional Space (referred to herein as
the "Eighth Additional Space Initial Work"):
(i) Paint the painted surfaces in the Eighth Additional Space, with
a single coat of paint in flat finish, in colors selected by Tenant from
Building standard colors, but not more than one color in any room or area; and
(ii) Clean existing carpeting; and
(iii) Broom clean Eighth Additional Space.
(2) Said Eighth Additional Space Initial Work shall be
equal to standards adopted by Owner for the Building and shall constitute a
single non-recurring obligation on the part of Owner. In the event this Lease is
renewed or extended for a further term by agreement or operation of law, Owner's
obligation to perform such work shall not apply to such renewal or extension.
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(3) At any time after the Eighth Additional Space
Commencement Date, Owner may enter the Eighth Additional Space to perform said
work, and entry by Owner, its agents, servants, employees or contractors for
such purpose shall not constitute an actual or constructive eviction, in whole
or in part, or entitle Tenant to any abatement or diminution of rent, or relieve
Tenant from any of its obligations under this Lease, or impose any liability
upon Owner, or its agents by reason of inconvenience or annoyance to Tenant, or
injury to or interruption of Tenant's business or otherwise. Owner agrees to
employ reasonable diligence to avoid such inconvenience or annoyance to Tenant
in the performance of such work without an obligation, however, to employ labor
at overtime or other premium pay rates.
C. From and after the Eighth Additional Space Commencement
Date, the Lease shall be deemed modified, as follows:
(1) The Demised Premises shall include the Eighth
Additional Space for all purposes of the Lease;
(2) a. The Fixed Rent reserved in the Lease shall be
further increased by the sum of FORTY-FIVE THOUSAND NINE HUNDRED EIGHT and
00/100 ($45,908.00) DOLLARS per annum from the Eighth Additional Space
Commencement Date to the last day of the calendar month three hundred sixty-five
(365) days next following the Eighth Additional Space Commencement Date, both
dates inclusive, FORTY-SEVEN THOUSAND NINE HUNDRED FOUR and 00/100 ($47,904.00)
DOLLARS per annum with respect to the next year of the Demised Term applicable
to the Eighth Additional Space, both dates inclusive, and FORTY-NINE THOUSAND
NINE HUNDRED and 00/100 ($49,900.00) DOLLARS per annum with respect to the
remainder of the Demised Term applicable to the Eighth Additional Space, both
dates inclusive, and the monthly installments of Fixed Rent shall be increased
accordingly.
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b. In the event that the Eighth Additional Space
Commencement Date shall occur on a date other than the first (1st) day of any
calendar month, then the increase in the Fixed Rent for the month in which the
Eighth Additional Space Commencement Date shall occur shall be prorated.
(3) The Demised Premises Area, as set forth in Section
23.01, shall be further increased by 1,996 square feet, except that the
provisions of Article 23 solely insofar as said provisions relate to the Eighth
Additional Space shall be modified to provide for Base Operating Expenses with
respect to the Eighth Additional Space shall mean a sum equal to Operating
Expenses for the calendar year 1998 solely with respect to such Eighth
Additional Space.
(4) With respect to the Eighth Additional Space only,
the following new Section 29.13 entitled "Electricity: Eighth Additional Space"
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shall be deemed added to the Lease as of the date hereof, and Section 29.05
shall continue to apply to the previously leased portions of the Building by
Tenant:
"A. Owner shall redistribute or furnish electrical energy to
or for the use of Tenant in the Eighth Additional Space for the operation of the
lighting fixtures and the electrical receptacles installed in the Eighth
Additional Space on the Eighth Additional Space Commencement Date and the
operation of the Building heating, ventilating and air conditioning system unit
serving the floor of the Building on which the Eighth Additional Space is
located. If either the quantity or character of electrical service is changed by
the corporation(s) and/or other entity(ies) selected by Owner to supply
electrical service to the Building or is no longer available or suitable for
Tenant's requirements, or if any equipment supplementing or ancillary to such
electrical service which is installed in the Building by or on behalf of said
corporation(s) and/or other entity(ies) malfunctions or fails to operate for any
reason while Tenant has made any connections to said equipment, no such change,
unavailability, unsuitability, malfunction or failure to operate shall
constitute an actual or constructive eviction, in whole or in part,
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or entitle Tenant to any abatement or diminution of rent, or relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Owner, or
its agents, by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business or otherwise, unless such change,
unavailability or unsuitability is caused by Owner's negligence or willful
misconduct or the negligence or willful misconduct of Owner's agents, employees
or contractors. In the event the corporation(s) and/or other entity(ies)
selected by Owner shall be different from such corporation(s) and/or other
entity(ies) presently providing electrical service to the Building as of the
date hereof, any such new or replacement corporation(s) and/or other entity(ies)
selected by Owner shall be reputable and provide competitive rates.
B. Owner represents that the electrical feeder or riser
capacity serving the Eighth Additional Space on the Eighth Additional Space
Commencement Date shall be adequate to serve the lighting fixtures and
electrical receptacles installed in the Eighth Additional Space on the Eighth
Additional Space Commencement Date. Any additional feeders or risers to supply
Tenant's additional electrical requirements, and all other equipment proper and
necessary in connection with such feeders or risers shall be installed by Owner
upon Tenant's request, at the sole cost and expense of Tenant; provided that, in
Owner's judgment, such additional feeders or risers are necessary and are
permissible under applicable laws and insurance regulations and the installation
of such feeders or risers will not cause permanent damage or injury to the
Building or the Eighth Additional Space or cause or create a dangerous or
hazardous condition or entail excessive or unreasonable alterations or repairs
to or interfere with or disturb other tenants or occupants of the Building.
Tenant covenants that at no time shall the use of electrical energy in the
Eighth Additional Space exceed the capacity of the existing feeders or risers or
wiring installations then serving the Eighth Additional Space.
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C. Prior to the Eighth Additional Space Commencement Date,
Owner, at Owner's expense, shall have installed a submeter or submeters in the
Eighth Additional Space to measure Tenant's actual consumption of electricity in
the entire Eighth Additional Space. Tenant shall pay to Owner, from time to
time, upon demand, for the electricity consumed in the Eighth Additional Space,
as determined by such submeter or submeters, the actual cost to Owner of
purchasing electricity for the Eighth Additional Space (as such actual cost is
hereinafter defined) plus all applicable taxes thereon. Owner's actual cost for
Tenant's KW and KWH shall be determined by the application of the Building's
electric rate schedule per month from the corporation(s) and/or other
entity(ies) selected by Owner to supply electrical service to the Building to
Tenant's usage. With respect to any period when any such submeter is not in good
working order, Tenant shall pay Owner for electricity consumed in the portion of
the Eighth Additional Space served by such submeter at the rate paid by Tenant
to Owner during the most recent comparable period when such submeter was in good
working order. Tenant shall take good care of any such submeter and all
submetering installation equipment, at Tenant's sole cost and expense, and make
all repairs thereto occasioned by any acts, omissions or negligence of Tenant or
any person claiming through or under Tenant as and when necessary to insure that
any such submeter is, at all times during the Demised Term, in good working
order. With respect to the period (referred to as the "Interim Period"), if any,
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from the Eighth Additional Space Commencement Date through the date immediately
prior to the date upon which the submeter or submeters shall be operable, Tenant
shall pay to Owner monthly on demand of Owner, for the electricity consumed in
the Eighth Additional Space, a sum equal to one-twelfth (1/12th) of the product
of (x) $1.50 multiplied by (y) 1,996. With respect to any period during the
Interim Period constituting less than a full calendar month, the monthly payment
referred to in the preceding sentence shall be appropriately prorated.
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D. (1) Owner may, at any time, elect to discontinue the
redistribution or furnishing of electrical energy. In the event of any such
election by Owner, (i) Owner agrees to give reasonable advance notice of any
such discontinuance to Tenant, (ii) Owner agrees to permit Tenant to receive
electrical service directly from the corporation(s) and/or other entity(ies)
selected by Owner to supply electrical service to the Building and to permit the
existing feeders, risers, wiring and other electrical facilities serving the
Eighth Additional Space to be used by Tenant for such purpose to the extent they
are suitable and safely capable, (iii) Owner agrees to pay such charges and
costs, if any, as such corporation(s) and/or other entity(ies) may impose in
connection with the installation of Tenant's meters, (iv) the provisions of
Subsection C of this Section 29.13 shall be deemed deleted from this Lease, and
(v) this Lease shall remain in full force and effect and such discontinuance
shall not constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of rent, or relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Owner or
its agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise.
(2) Notwithstanding anything to the contrary contained in
subsection D(1) of this Section 29.13, Owner agrees that Owner shall not
voluntarily discontinue the redistribution or furnishing of electrical energy
until Owner shall have made or paid for all installations required to provide
Tenant with electrical service similar to the electrical service which Tenant
had in the Eighth Additional Space immediately prior to such discontinuance and
the public utility corporation(s) and/or other entity(ies) supplying electrical
service to the Building has agreed to furnish such service so that Tenant shall
immediately upon such discontinuance be able to receive electrical service
directly from
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such public utility corporation(s) and/or other entity(ies). Unless a shorter
time is required by the public utility corporation(s) and/or other entity(ies)
supplying electrical service to the Building, Owner shall give Tenant at least
ninety (90) days prior notice of any such discontinuance.
E. Notwithstanding anything to the contrary set forth in this
Lease, any sums payable or granted in any way by the corporation(s) and/or other
entity(ies) selected by Owner to supply electricity to the Building resulting
from the installation in the Eighth Additional Space of energy efficient
lighting fixtures, lamps, special supplemental heating, ventilation and air
conditioning systems or any other Alterations, which sums are paid or given by
way of rebate, direct payment, credit or otherwise, shall be and remain the
property of Owner, and Tenant shall not be entitled to any portion thereof,
unless such lighting fixtures, lamps, supplemental heating, ventilation and air
conditioning systems or other Alterations were installed by Tenant, solely at
Tenant's expense, without any contribution, credit or allowance by Owner, in
accordance with all of the provisions of this Lease. Nothing contained in the
foregoing sentence, however, shall be deemed to obligate Owner to supply or
install in the Eighth Additional Space any such lighting fixtures, lamps,
supplemental heating, ventilation and air conditioning systems or other
Alterations.
F. Tenant acknowledges that the Building heating, ventilating
and air conditioning system unit serving the floor of the Building on which the
Eighth Additional Space is located (referred to herein as the "Floor HVAC Unit")
shall not be connected to the submeter(s) serving the Eighth Additional Space,
but, instead, shall be connected to a separate meter(s) measuring the electrical
energy consumed by such Floor HVAC Unit. Accordingly, Tenant agrees that,
during the
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Demised Term, Tenant shall pay to Owner, from time to time upon demand of Owner
and submission by Owner to Tenant of invoices or bills therefor, nineteen and
96/100 (19.96%) percent (hereinafter, "Tenant's Electrical Share") of all
amounts shown on said separate meter(s) for such Floor HVAC Unit.
G. Tenant acknowledges that the light and power systems serving
the public areas of the floor of the Building on which the Eighth Additional
Space is located (referred to herein as the "Floor Public Light and Power")
shall not be connected to the submeter(s) serving the Eighth Additional Space,
but, instead, shall be connected to a separate meter(s) measuring the electrical
energy consumed by such Floor Public Light and Power. Accordingly, Tenant
agrees that, during the Demised Term, Tenant shall pay to Owner, from time to
time upon demand of Owner and submission by Owner to Tenant of invoices or bills
therefor, Tenant's Electrical Share of all amounts shown on said separate
meter(s) for such Floor Public Light and Power.
SECOND: Present Occupant: Tenant acknowledges that Owner has
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advised Tenant that the Eighth Additional Space is presently affected by a
letting agreement with Warp 10 Technologies, Inc. (referred to as the "Present
Occupant") for a term to expire on April 30, 1998, unless sooner terminated
pursuant to any of the terms, covenants or conditions of the lease with the
Present Occupant or pursuant to law. Notwithstanding anything to the contrary
contained herein, if the Present Occupant does not vacate and surrender the
Eighth Additional Space to Owner on or prior to April 30, 1998, then (i) the
Demised Term applicable to the Eighth Additional Space shall not commence on May
1, 1998, but, instead, shall commence in accordance with paragraph (5) of the
WHEREAS provisions hereof after the Present Occupant has vacated and surrendered
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possession of the Eighth Additional Space, (ii) the Demised Term shall end in
accordance with the provisions of this Agreement, unless sooner terminated
pursuant to any of the terms, covenants or conditions of this Lease or pursuant
to law, (iii) except as set
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forth in this sentence, neither the validity of this Lease nor the obligations
of Tenant under this Lease shall be affected thereby, (iv) Tenant waives any
right under Section 223-a of the Real Property or any successor law of like
import to rescind the Lease or this Agreement or rescind its obligations with
respect thereto and (v) Tenant further waives the right to recover any damages
which may result from the failure of Owner to deliver possession of the Eighth
Additional Space to Tenant on May 1, 1998.
THIRD: Owner and Tenant each represent and warrant to the other
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that Xxxxxxxxxxx & Company, LLC is the sole broker with whom either party has
negotiated or otherwise dealt with in connection with the Eighth Additional
Space or in bringing about this Agreement. Owner and Tenant shall indemnify
each other from all loss, cost, liability, damage and expenses, including, but
not limited to, reasonable counsel fees and disbursements, arising from any
breach of the foregoing representation and warranty. Owner shall pay any
commission or compensation due hereunder pursuant to a separate agreement with
such broker.
FOURTH: Eighth Additional Space Rent Holiday: Provided Tenant is
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not then in default in the observance and performance of any of the terms,
covenants and conditions of this Lease on Tenant's part to be observed and
performed, Tenant, with respect to the Eighth Additional Space only, shall be
entitled to a conditional rent holiday and shall not be required to pay any
portion of the Fixed Rent applicable to the Eighth Additional Space with respect
to the period (the "Eighth Additional Space Rent Holiday Period") from the
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Eighth Additional Space Commencement Date to and including the date which is
sixty (60) days next following the Eighth Additional Space Commencement Date,
but, during such period, Tenant shall otherwise be required to comply with all
of the other terms, covenants and conditions of this Lease on Tenant's part to
be observed and performed (including the provisions of Article 29 as modified
hereby), other than the obligation to make any payments pursuant to the
provisions of
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Article 23 applicable to the Eighth Additional Space. If, at any time during the
Demised Term, Tenant shall be in default in the observance and performance of
any of the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed, then the total sum of the Fixed Rent so conditionally
excused by operation of the foregoing provisions hereof shall become immediately
due and payable by Tenant to Owner. If, as of the Expiration Date, Tenant shall
not then be in default in the observance and performance of any of the terms,
covenants and conditions of this Lease on Tenant's part to be observed and
performed, Owner shall waive payment of all such Fixed Rent so conditionally
excused.
FIFTH: A. The parties agree that the Demised Term shall expire on
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August 31, 2002 with respect to the entire Demised Premises, other than the
Sixth Additional Space and the Seventh Additional Space and, with respect
thereto, the Demised Term shall expire, with respect to the Sixth Additional
Space, on January 31, 2003 and, with respect to the Seventh Additional Space, on
December 31, 2002. Accordingly, on or prior to August 31, 2002, Tenant shall
vacate and surrender to Owner the original Demised Premises and the First,
Second, Third, Fourth and Fifth Additional Spaces, free of all tenancies and
occupancies, and Tenant shall fully comply with the provisions of Article 21 of
this Lease with respect to the original Demised Premises and such Additional
Spaces on or prior to the applicable dates upon which the Demised Term
applicable thereto shall expire. Tenant acknowledges that the Lease shall
continue to apply to the Sixth, Seventh and Eighth Additional Spaces thereafter.
Tenant hereby expressly waives any rights which Tenant may have under the
provisions of Section 2201 of the New York Civil Practice Law and Rules and of
any successor law of like import then in force in connection with any holdover
proceedings which Owner may institute to enforce the foregoing provisions of
this Article FIFTH. If requested by either party, the parties agree to execute
and deliver to each other after August 31, 2002 a further agreement, in form
reasonably satisfactory to both parties,
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evidencing the surrender of the original Demised Premises and such Additional
Spaces to Owner; however, neither the failure of either party to request such
execution of such instrument nor the failure of either party to execute and
deliver such instrument shall vitiate the provisions of this Article FIFTH. As
of September 1, 2002, the Fixed Rent shall be reduced by that portion thereof
allocable to the original Demised Premises and the First, Second, Third, Fourth
and Fifth Additional Spaces and Tenant's Proportionate Share shall be reduced by
that portion thereof allocable to all remaining portions of the Demised Premises
other than the original Demised Premises and such Additional Spaces. From and
after August 31, 2002, notwithstanding anything contained in Section 11.03C to
the contrary, at no time shall there be more than one (1) occupant, including
Tenant, in the Sixth, Seventh or Eighth Additional Spaces.
SIXTH: As of the date hereof, the seventeenth (17th) floor of the
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Building contains an Americans with Disabilities Act-compliant core toilet.
SEVENTH: Except to the extent expressly modified by the foregoing
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provisions of this Agreement, the Lease is hereby ratified and confirmed in all
respects.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals as of the day and year first above written.
00 XXXXX XXXXXX COMPANY, Owner
BY:_______________________________
Partner
N2K INC., Tenant
BY: /s/ Xxxxxx Xxxxxx
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its General Counsel
00
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On the 17/th/ day of April, 1998, before me personally came Xxxxxx
Xxxxxx to me known, who, being by me duly sworn, did depose and say that he
resides at 000 X. 00/xx/ Xxxxxx, Xxx Xxxx, XX, that he/she is the General
Counsel of N2K INC., the corporation described in and which executed the
foregoing instrument; and that he/she signed his/her name thereto by authority
of the Board of Directors of said corporation.
XXXXXX X. XXXXXXX /s/ [SIGNATURE ILLEGIBLE]
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Notary Public, State of New York Notary Public
No. 00-0000000
Qualified in Nassau County
Commission Expires March 29, 1999
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