FOURTH AMENDMENT TO LEASE









Exhibit

10.54.2




 




FOURTH AMENDMENT

TO LEASE




 




This FOURTH AMENDMENT TO

LEASE made as of the 5th day of October, 2001 by and between 225 FOURTH, LLC a

Delaware limited liability company whose address is c/o Orda Management

Corporation, 225 Park Avenue South, New York, New York 10003 (hereinafter  referred 

to as “Landlord”) and ACTV, INC., a Delaware corporation, whose address

is 225 Park Avenue South, New York, New York 10003 (hereinafter referred to as

“Tenant”).




 




WITNESSETH




 




                WHEREAS, by lease dated as of December 1, 1999, as

amended by that First Amendment to Lease dated May 23, 2000 (the “First

Amendment”), 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 hereinafter

referred to as the “Lease”), Landlord leased to Tenant, the entire 18th floor

(the “18th Floor”), the entire 19th floor (the “19th Floor”), and the.l9th

Floor Mezzanine (the “19th Floor Mezzanine”) (the 18th Floor, the 19th Floor

and the 19th Floor Mezzanine hereinafter 

collectively referred to as the “225 Premises”) in the building known as

225 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 the

building known as 233 Park Avenue South, New York, New York (the “223

Building”; the 225 Premises and the 10th Floor hereinafter collectively known

as the “Original Premises”), upon terms and conditions more fully set forth in

the Lease; and




 




                WHEREAS, Tenant desires to decrease the size of the

Original Premises by the surrender and return to Landlord of a portion of the

Original Premises consisting of the 225 Premises and Landlord has agreed to

accept the surrender of the 225 Premises subject to and upon the terms and

conditions set forth herein.




 




                NOW, THEREFORE, in consideration of the mutual

covenants herein contained and good and valuable consideration, the

receipt  and sufficiency of which are

hereby acknowledged, Landlord and Tenant agree as follows:




 




                1. Defined Terms. All capitalized terms used herein

but 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 225

Premises, as fully and completely as if the Surrender Date were the date fixed

in the Lease for the end and expiration of the Lease and the term thereof with

respect to the 225 Premises, (c) all options (to renew the term, for additional

space or otherwise), if any, contained in the Lease or with respect to the 225

Premises are extinguished and (d) neither Tenant nor Landlord shall have any

further liability to the other in connection with the 225 Premises, except for

any matters accruing under the Lease on or before the Surrender Date. At all

times prior to the Surrender Date and Tenant’s actual delivery of the 225

Premises to Landlord in the condition required hereunder and under the Lease,

Tenant shall continue to pay Base Rent and Additional Charges in the amount and

in the manner set forth in the Lease.




 




 





























 




                3. Delivery of Space. On the Surrender Date, Tenant

shall deliver to Landlord vacant possession of the 225 Premises, free and clear

of all tenancies, broom clean and otherwise in the condition required by the

Lease for delivery to Landlord at the end of the Term. Upon possession of the

225 Premises by the New Tenant (as defined below) Tenant shall be deemed to be

in compliance with the foregoing sentence. Notwithstanding the foregoing

Landlord acknowledges that Tenant has advised Landlord that Tenant has entered

into an agreement (the “PA Agreement”) with the Port Authority of New York and

New Jersey, the new tenant of the 225 Premises (the “New Tenant”), to purchase

certain installations, equipment and furniture owned by Tenant (“PA Agreement

Items”) and located in the 225 Premises. Provided that Tenant furnishes Landlord

with a true and correct copy of the PA Agreement, Tenant shall be permitted to

leave in the 225 Premises those items being purchased pursuant to the PA

Agreement.




 




                4. Representations and Warranties. Tenant hereby

represents and warrants that, as of the date hereof and as of the dates Tenant

surrenders the 225 Premises in accordance with the provisions of this

Agreement:




 




                (a) Tenant is the holder of all of the tenant’s

right, title and interest in, to and under the Lease, and the Lease is in full

force and effect and has not been modified or amended except as described

herein;




 




                (b) The interest of the tenant under the Lease has

not been assigned, transferred, pledged, mortgaged or otherwise encumbered and

Tenant has not sublet all or any part of the 225 Premises;




 




                (c) Tenant has not sublet, underlet, or otherwise

transferred, in any manner whatsoever, any present or future possession, use or

occupancy right in or to all or any portions of the Lease or the 225 Premises;




 




                (d) This Agreement has been duly and validly

authorized, executed and delivered by Tenant and is valid, binding and

enforceable against Tenant in accordance with its terms. Tenant has the full

power and authority to consummate the transactions contemplated hereby; and




 




                (e) Tenant has no claims against Landlord for any

liability arising under the Lease. To the best of Tenant’s knowledge, no other

party has a claim against Landlord for any liability arising under the Lease.




 




 




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                5. Failure to Surrender and Vacate. (a) If Tenant

fails to vacate and deliver possession of the 225 Premises on or before the

date set forth herein for such surrender and otherwise in accordance with this

Agreement, without limiting any rights or remedies to which Landlord may be

entitled under the Lease, at law or in equity with respect to such failure by

Tenant, Tenant hereby agrees that it (a) will accept service of a notice of

petition and petition in a summary 

proceeding in the Civil Court of the City of New York; (b) consents to

the jurisdiction of said Court; (c) shall not enter any appearance or interpose

any defense or counterclaim in any such proceeding; (d) consents to the entry

of 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 the

Civil Court; and (f) waives (i) any stay of execution of said warrant of

eviction and (ii) all rights to appeal or collaterally attack the aforesaid

final judgment or the issuance and execution of a warrant of eviction.




 




                (b) If Tenant does not surrender possession of and

vacate the 225 Premises on the date set forth herein for such surrender and

otherwise in accordance with this Agreement, then, in addition to and without

limiting any other rights and/or remedies to which Landlord may be entitled

under the Lease or this Agreement, at law or in equity, Landlord may, without

notice to Tenant, (i) enter the 225 Premises, (ii) remove all of Tenant’s furniture,

equipment, furnishings, removable fixtures and other personal property (other

than the “PA Agreement Items”) in the 225 Premises (collectively, the “Personal

Property”), (iii) store or dispose of such Personal Property in Landlord’s sole

discretion without liability to Tenant, (iv) change the locks on the entry

doors 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 other

representative of Tenant. In connection with the exercise by Landlord of any or

all of its rights under this paragraph, (1) any costs and expenses incurred by

Landlord shall be deemed to be “additional rent” under the Lease and shall be

payable by Tenant on demand and (2) Landlord shall have no liability to Tenant

whatsoever, including, without limitation, for any damage to any of the

Personal Property. Nothing contained in this Paragraph 4(b) or elsewhere in

this Agreement is intended or shall be construed to give Tenant the right to

remain in or occupy the 225 Premises.




 




                (c) Tenant acknowledges and agrees that Landlord has

entered into a lease with the New Tenant for occupancy of the 225 Premises

commencing immediately after the Surrender Date and that, in entering into such

lease, Landlord is relying upon Tenant’s agreement to vacate and surrender the

225 Premises on the dates and in accordance with the terms set forth herein.

Accordingly, if Tenant shall hold–over, or remain in possession of any

portion of the 225 Premises beyond the Surrender Date, Tenant shall be subject

not only to summary proceeding and all damages related thereto, but also to any

damages, including without limitation consequential damages, arising out of any

lost opportunities (and/or new leases) by Landlord to re–let the 225

Premises (or any part thereof). All damages to Landlord by reason of such

holding over by Tenant may be the subject of a separate action and need not be

asserted by Landlord in any summary proceedings against Tenant.




 




 




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                6. Tenant Improvements. (a) Landlord and Tenant have

agreed that certain improvements made by Tenant to the 225 Premises shall

remain in the 225 Premises following the Surrender Date. In consideration

therefor, Landlord agrees to pay Tenant the sum of *** Dollars ($***) for such

improvements, installations and fixtures within two (2) Business Days after

Tenant has complied with the first sentence of Paragraph 3 hereof. Tenant shall

be responsible for and shall indemnify Landlord for all sales taxes or other

taxes imposed by any federal, state or local governmental authority or under

any law arising from the purchase of these improvements or the transactions

hereunder. Such payment shall be due from Landlord to Tenant only after Tenant

has surrendered the 225 Premises in accordance with the terms herein and

provided that Tenant is not otherwise in default under the Lease, as amended

hereby. Landlord shall have the right to set off against such payment, any sums

owed by Tenant to Landlord under the Lease.




 




                7. Tenant agrees that Landlord shall continue to

retain the Expansion Space Letter of Credit in the amount of $484,000 and that

Landlord shall return the additional letters of credit heretofore delivered to

Landlord (copies of which are attached hereto as Exhibit A) to Tenant within

ten (10) Business Days after the Surrender Date provided that Tenant has

surrendered the 225 Premises on the Surrender Date in accordance with the terms

of this Agreement.




 




                8. Certain Lease Provisions. From and after the

Surrender Date, provided that Tenant has surrendered the 225 Premises to

Landlord in the condition required hereunder and under the Lease, the

provisions of Article 10 of the Lease shall govern with respect to the matters

set forth therein notwithstanding any other provision of the Lease to the

contrary.




 




                9. Landlord and Tenant agree that upon execution of

this Amendment by each party, this Amendment shall be placed in escrow with

Messrs. Fried, Frank, Harris, Shriver & Jacobson (“Escrowee”) and shall not

be deemed delivered and/or effective until Landlord has notified Tenant and

Escrowee 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 “Effective

Date of the New Lease”) whereupon Escrowee shall be instructed by Landlord to

date this Amendment and to deliver an original counterpart of this Amendment to

each party. Upon the date this Amendment is so delivered it shall be deemed to

be in full force and effect and binding on both parties. In the event that

Landlord shall not have notified Tenant and Escrowee that the Effective Date of

the New Lease has occurred by the close of business October 12, 2001 this

Amendment shall be deemed null and void and neither party shall have any

obligation to the other under the terms of the Amendment.




 




                10. Miscellaneous. (a) Time is of the essence with

regard to Tenant’s obligations under this Agreement.




 




 




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                (b) This Agreement shall inure to the benefit of and

be binding on Landlord and Tenant, and their respective successors and assigns.

Nothing in this Agreement, express or implied, is intended to confer on any

person other than the parties hereto and their respective successors and

assigns any rights, remedies or obligations or liabilities under or by reason

of this Agreement.




 




                (c) Tenant represents to Landlord that Tenant has

dealt with no broker other than Peter Turchin in his capacity as Landlord’s

agent in connection with this Agreement or the Building and Tenant shall

indemnify and hold Landlord harmless from and against all loss, cost, liability

and expense (including reasonable attorneys’ fees and disbursements), arising

out of any claim for a commission or other compensation by any broker who

alleges that it has dealt with Tenant in connection with this Agreement or the

Building.




 




                (d) This Agreement shall be construed and enforced

according to the laws of the State of New York.




 




                 (e) Nothing

contained in this Agreement shall be construed to modify the terms on which

Tenant is leasing the 1Oth Floor, including without being limited to Article 10

thereof, which shall continue to be leased by Tenant pursuant to the terms of

the Lease, without modification. Except as modified by this Fourth Amendment of

Lease, the Lease and all covenants, agreements, terms and conditions thereof

shall remain in full force and effect and are hereby in all respects ratified and

confirmed..




 




                (f) Neither this Agreement nor any provision hereof

may be waived, modified, amended, discharged or terminated except by an

instrument signed by the party against whom the waiver, modification,

amendment, discharge or termination is sought and then only to the extent set

forth in such instrument.




 




                (g) No waiver by either party or failure or refusal

by the other party to comply with its obligations shall be deemed to be a

waiver of any other or subsequent failure or refusal to so comply.




 




                (h) If any term or provision of this Agreement or the

application thereof to any person or circumstance shall to any extent be

invalid or unenforceable, the remainder of this Agreement or the circumstances

other than those as to which it is held invalid or unenforceable shall not be

affected thereby and each term and provision of this Agreement shall

nevertheless be valid and be enforced to the fullest extent permitted by law.




 




                (i) The captions in this Agreement are inserted for

the convenience of reference only and do not define, describe or limit the

scope or the intent of this Agreement of any of the provisions hereof and shall

not be considered in interpreting or construing this Agreement.




 




                (j) Tenant hereby represents that the officer

executing this Amendment on behalf of Tenant has all necessary licenses,

authorizations, permits and approvals, and full power and authority to execute

and deliver this Amendment on behalf of Tenant and perform any action in

connection 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 together

shall constitute one and the sarne agreement.




 




IN WITNESS WHEREOF,

Landlord and Tenant have executed this Agreement as of the day and year first

above 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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