**Exhibit10.54.2**

 

FOURTH AMENDMENTTO LEASE

 

This FOURTH AMENDMENT TOLEASE made as of the 5th day of October, 2001 by and between 225 FOURTH, LLC aDelaware limited liability company whose address is c/o Orda ManagementCorporation, 225 Park Avenue South, New York, New York 10003 (hereinafter  referred to as “Landlord”) and ACTV, INC., a Delaware corporation, whose addressis 225 Park Avenue South, New York, New York 10003 (hereinafter referred to as“Tenant”).

 

WITNESSETH

 

                WHEREAS, by lease dated as of December 1, 1999, asamended by that First Amendment to Lease dated May 23, 2000 (the “FirstAmendment”), that Second Amendment to Lease dated as of October 23, 2000 (the“Second Amendment”), and that Third Amendment dated as of December 11, 2000(the “Third Amendment”), (said lease, as same has been amended, is hereinafterreferred to as the “Lease”), Landlord leased to Tenant, the entire 18th floor(the “18th Floor”), the entire 19th floor (the “19th Floor”), and the.l9thFloor Mezzanine (the “19th Floor Mezzanine”) (the 18th Floor, the 19th Floorand the 19th Floor Mezzanine hereinafter collectively referred to as the “225 Premises”) in the building known as225 Park Avenue South, New York, New York (hereinafter referred to as the“Building”), as well as the entire tenth (10th) floor (the “10th Floor”) in thebuilding known as 233 Park Avenue South, New York, New York (the “223Building”; the 225 Premises and the 10th Floor hereinafter collectively knownas the “Original Premises”), upon terms and conditions more fully set forth inthe Lease; and

 

                WHEREAS, Tenant desires to decrease the size of theOriginal Premises by the surrender and return to Landlord of a portion of theOriginal Premises consisting of the 225 Premises and Landlord has agreed toaccept the surrender of the 225 Premises subject to and upon the terms andconditions set forth herein.

 

                NOW, THEREFORE, in consideration of the mutualcovenants herein contained and good and valuable consideration, thereceipt  and sufficiency of which arehereby acknowledged, Landlord and Tenant agree as follows:

 

                1. Defined Terms. All capitalized terms used hereinbut not defined shall have the meanings ascribed to them in the Lease.

 

                2. 18th Floor. Effective as of October 15, 2001 (the“Surrender Date”), (a) Tenant shall surrender the 225 Premises to Landlord, (b)the Lease and the term thereof shall end and expire with respect to the 225Premises, as fully and completely as if the Surrender Date were the date fixedin the Lease for the end and expiration of the Lease and the term thereof withrespect to the 225 Premises, (c) all options (to renew the term, for additionalspace or otherwise), if any, contained in the Lease or with respect to the 225Premises are extinguished and (d) neither Tenant nor Landlord shall have anyfurther liability to the other in connection with the 225 Premises, except forany matters accruing under the Lease on or before the Surrender Date. At alltimes prior to the Surrender Date and Tenant’s actual delivery of the 225Premises to Landlord in the condition required hereunder and under the Lease,Tenant shall continue to pay Base Rent and Additional Charges in the amount andin the manner set forth in the Lease.

 

 

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                3. Delivery of Space. On the Surrender Date, Tenantshall deliver to Landlord vacant possession of the 225 Premises, free and clearof all tenancies, broom clean and otherwise in the condition required by theLease for delivery to Landlord at the end of the Term. Upon possession of the225 Premises by the New Tenant (as defined below) Tenant shall be deemed to bein compliance with the foregoing sentence. Notwithstanding the foregoingLandlord acknowledges that Tenant has advised Landlord that Tenant has enteredinto an agreement (the “PA Agreement”) with the Port Authority of New York andNew Jersey, the new tenant of the 225 Premises (the “New Tenant”), to purchasecertain installations, equipment and furniture owned by Tenant (“PA AgreementItems”) and located in the 225 Premises. Provided that Tenant furnishes Landlordwith a true and correct copy of the PA Agreement, Tenant shall be permitted toleave in the 225 Premises those items being purchased pursuant to the PAAgreement.

 

                4. Representations and Warranties. Tenant herebyrepresents and warrants that, as of the date hereof and as of the dates Tenantsurrenders the 225 Premises in accordance with the provisions of thisAgreement:

 

                (a) Tenant is the holder of all of the tenant’sright, title and interest in, to and under the Lease, and the Lease is in fullforce and effect and has not been modified or amended except as describedherein;

 

                (b) The interest of the tenant under the Lease hasnot been assigned, transferred, pledged, mortgaged or otherwise encumbered andTenant has not sublet all or any part of the 225 Premises;

 

                (c) Tenant has not sublet, underlet, or otherwisetransferred, in any manner whatsoever, any present or future possession, use oroccupancy right in or to all or any portions of the Lease or the 225 Premises;

 

                (d) This Agreement has been duly and validlyauthorized, executed and delivered by Tenant and is valid, binding andenforceable against Tenant in accordance with its terms. Tenant has the fullpower and authority to consummate the transactions contemplated hereby; and

 

                (e) Tenant has no claims against Landlord for anyliability arising under the Lease. To the best of Tenant’s knowledge, no otherparty has a claim against Landlord for any liability arising under the Lease.

 

 

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                5. Failure to Surrender and Vacate. (a) If Tenantfails to vacate and deliver possession of the 225 Premises on or before thedate set forth herein for such surrender and otherwise in accordance with thisAgreement, without limiting any rights or remedies to which Landlord may beentitled under the Lease, at law or in equity with respect to such failure byTenant, Tenant hereby agrees that it (a) will accept service of a notice ofpetition and petition in a summary proceeding in the Civil Court of the City of New York; (b) consents tothe jurisdiction of said Court; (c) shall not enter any appearance or interposeany defense or counterclaim in any such proceeding; (d) consents to the entryof a final judgment in said proceeding awarding Landlord immediate  possession of the 225–Premises; (e)consents to the immediate issuance of a warrant of eviction by the Clerk of theCivil Court; and (f) waives (i) any stay of execution of said warrant ofeviction and (ii) all rights to appeal or collaterally attack the aforesaidfinal judgment or the issuance and execution of a warrant of eviction.

 

                (b) If Tenant does not surrender possession of andvacate the 225 Premises on the date set forth herein for such surrender andotherwise in accordance with this Agreement, then, in addition to and withoutlimiting any other rights and/or remedies to which Landlord may be entitledunder the Lease or this Agreement, at law or in equity, Landlord may, withoutnotice to Tenant, (i) enter the 225 Premises, (ii) remove all of Tenant’s furniture,equipment, furnishings, removable fixtures and other personal property (otherthan the “PA Agreement Items”) in the 225 Premises (collectively, the “PersonalProperty”), (iii) store or dispose of such Personal Property in Landlord’s solediscretion without liability to Tenant, (iv) change the locks on the entrydoors to the 225 Premises and all other doors within the 225 Premises and (v)prohibit the entry into the 225 Premises by Tenant and/or any officer,director, shareholder, principal, employee, invitee, licensee or otherrepresentative of Tenant. In connection with the exercise by Landlord of any orall of its rights under this paragraph, (1) any costs and expenses incurred byLandlord shall be deemed to be “additional rent” under the Lease and shall bepayable by Tenant on demand and (2) Landlord shall have no liability to Tenantwhatsoever, including, without limitation, for any damage to any of thePersonal Property. Nothing contained in this Paragraph 4(b) or elsewhere inthis Agreement is intended or shall be construed to give Tenant the right toremain in or occupy the 225 Premises.

 

                (c) Tenant acknowledges and agrees that Landlord hasentered into a lease with the New Tenant for occupancy of the 225 Premisescommencing immediately after the Surrender Date and that, in entering into suchlease, Landlord is relying upon Tenant’s agreement to vacate and surrender the225 Premises on the dates and in accordance with the terms set forth herein.Accordingly, if Tenant shall hold–over, or remain in possession of anyportion of the 225 Premises beyond the Surrender Date, Tenant shall be subjectnot only to summary proceeding and all damages related thereto, but also to anydamages, including without limitation consequential damages, arising out of anylost opportunities (and/or new leases) by Landlord to re–let the 225Premises (or any part thereof). All damages to Landlord by reason of suchholding over by Tenant may be the subject of a separate action and need not beasserted by Landlord in any summary proceedings against Tenant.

 

 

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                6. Tenant Improvements. (a) Landlord and Tenant haveagreed that certain improvements made by Tenant to the 225 Premises shallremain in the 225 Premises following the Surrender Date. In considerationtherefor, Landlord agrees to pay Tenant the sum of *** Dollars ($***) for suchimprovements, installations and fixtures within two (2) Business Days afterTenant has complied with the first sentence of Paragraph 3 hereof. Tenant shallbe responsible for and shall indemnify Landlord for all sales taxes or othertaxes imposed by any federal, state or local governmental authority or underany law arising from the purchase of these improvements or the transactionshereunder. Such payment shall be due from Landlord to Tenant only after Tenanthas surrendered the 225 Premises in accordance with the terms herein andprovided that Tenant is not otherwise in default under the Lease, as amendedhereby. Landlord shall have the right to set off against such payment, any sumsowed by Tenant to Landlord under the Lease.

 

                7. Tenant agrees that Landlord shall continue toretain the Expansion Space Letter of Credit in the amount of $484,000 and thatLandlord shall return the additional letters of credit heretofore delivered toLandlord (copies of which are attached hereto as Exhibit A) to Tenant withinten (10) Business Days after the Surrender Date provided that Tenant hassurrendered the 225 Premises on the Surrender Date in accordance with the termsof this Agreement.

 

                8. Certain Lease Provisions. From and after theSurrender Date, provided that Tenant has surrendered the 225 Premises toLandlord in the condition required hereunder and under the Lease, theprovisions of Article 10 of the Lease shall govern with respect to the mattersset forth therein notwithstanding any other provision of the Lease to thecontrary.

 

                9. Landlord and Tenant agree that upon execution ofthis Amendment by each party, this Amendment shall be placed in escrow withMessrs. Fried, Frank, Harris, Shriver & Jacobson (“Escrowee”) and shall notbe deemed delivered and/or effective until Landlord has notified Tenant andEscrowee that the lease of the 225 Premises to the New Tenant (the “New Lease”)has been released from escrow, and is in full force and effect (the “EffectiveDate of the New Lease”) whereupon Escrowee shall be instructed by Landlord todate this Amendment and to deliver an original counterpart of this Amendment toeach party. Upon the date this Amendment is so delivered it shall be deemed tobe in full force and effect and binding on both parties. In the event thatLandlord shall not have notified Tenant and Escrowee that the Effective Date ofthe New Lease has occurred by the close of business October 12, 2001 thisAmendment shall be deemed null and void and neither party shall have anyobligation to the other under the terms of the Amendment.

 

                10. Miscellaneous. (a) Time is of the essence withregard to Tenant’s obligations under this Agreement.

 

 

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                (b) This Agreement shall inure to the benefit of andbe binding on Landlord and Tenant, and their respective successors and assigns.Nothing in this Agreement, express or implied, is intended to confer on anyperson other than the parties hereto and their respective successors andassigns any rights, remedies or obligations or liabilities under or by reasonof this Agreement.

 

                (c) Tenant represents to Landlord that Tenant hasdealt with no broker other than Peter Turchin in his capacity as Landlord’sagent in connection with this Agreement or the Building and Tenant shallindemnify and hold Landlord harmless from and against all loss, cost, liabilityand expense (including reasonable attorneys’ fees and disbursements), arisingout of any claim for a commission or other compensation by any broker whoalleges that it has dealt with Tenant in connection with this Agreement or theBuilding.

 

                (d) This Agreement shall be construed and enforcedaccording to the laws of the State of New York.

 

                 (e) Nothingcontained in this Agreement shall be construed to modify the terms on whichTenant is leasing the 1Oth Floor, including without being limited to Article 10thereof, which shall continue to be leased by Tenant pursuant to the terms ofthe Lease, without modification. Except as modified by this Fourth Amendment ofLease, the Lease and all covenants, agreements, terms and conditions thereofshall remain in full force and effect and are hereby in all respects ratified andconfirmed..

 

                (f) Neither this Agreement nor any provision hereofmay be waived, modified, amended, discharged or terminated except by aninstrument signed by the party against whom the waiver, modification,amendment, discharge or termination is sought and then only to the extent setforth in such instrument.

 

                (g) No waiver by either party or failure or refusalby the other party to comply with its obligations shall be deemed to be awaiver of any other or subsequent failure or refusal to so comply.

 

                (h) If any term or provision of this Agreement or theapplication thereof to any person or circumstance shall to any extent beinvalid or unenforceable, the remainder of this Agreement or the circumstancesother than those as to which it is held invalid or unenforceable shall not beaffected thereby and each term and provision of this Agreement shallnevertheless be valid and be enforced to the fullest extent permitted by law.

 

                (i) The captions in this Agreement are inserted forthe convenience of reference only and do not define, describe or limit thescope or the intent of this Agreement of any of the provisions hereof and shallnot be considered in interpreting or construing this Agreement.

 

                (j) Tenant hereby represents that the officerexecuting this Amendment on behalf of Tenant has all necessary licenses,authorizations, permits and approvals, and full power and authority to executeand deliver this Amendment on behalf of Tenant and perform any action inconnection therewith.

 

 

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                (k) This Agreement may be executed in counterparts,each of which shall be an original and all of which counterparts taken togethershall constitute one and the sarne agreement.

 

IN WITNESS WHEREOF,Landlord and Tenant have executed this Agreement as of the day and year firstabove written.

 
|   | LANDLORD: | 225 FOURTH LLC                                            |
|--------|-----------|-----------------------------------------------------------|
|   |      | By:  Orda  Management Corporation, a general partner |
|   |      |                                                      |
|   |      |                                                      |
|   |      | By:  /s/  Morton F. Sliver                           |
|   |      | President                                                 |
|   |      |                                                      |
|   | TENANT:   | ACTV, INC.                                                |
|   |      |                                                      |
|   |      |                                                      |
|   |      | By: /s/ Christopher Cline                                 |
|   |      | Senior Vice President                                     |

 

 

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