Exhibit 10.38

AMENDMENT OF LEASE

THIS AMENDMENT OF LEASE (this "Amendment"), made as of the 27th day of March, 2017, by and between ESRT EMPIRE STATE BUILDING, L.L.C., a Delaware limited liability company, having an office c/o ESRT MANAGEMENT, L.L.C., 111 West 33^rd Street, New York, New York 10120 ("Landlord"), and HELIOS AND MATHESON ANALYTICS INC., f/k/a/ Helios and Matheson Information Technology Inc. a Delaware corporation, having an office at 350 Fifth Avenue, New York, New York 10120 ("Tenant").

W I T N E S S E T H:

WHEREAS, by Agreement of Lease, dated as of January 10, 2012 (which Lease, as modified by that certain Commencement Date Agreement, dated as of January 19, 2012, is hereinafter referred to as the “Lease”), between Landlord and Tenant, Landlord did demise and let unto Tenant and Tenant did hire and take from Landlord, a portion of the rentable area located on the seventy-fifth (75^th) floor (Suite 7520), of the building known as the Empire State Building and by the street address of 350 Fifth Avenue, New York, New York 10118 (the "Building"), as more particularly described therein (the "Premises");

WHEREAS, the term of the Lease is scheduled to expire on April 30, 2017; and

WHEREAS, Landlord and Tenant desire to extend the term of the Lease and to otherwise modify the Lease as set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged, the parties hereto, for themselves, their legal representatives, successors and assigns, hereby agree as follows:

1.     Recitals; Definitions. The recitals set forth above are true and correct and by this reference are incorporated herein in their entirety. All capitalized terms used herein shall have the meanings ascribed to them in the Lease, unless otherwise defined herein.

2.     Lease Term.     The term of the Lease (the "Term") is hereby extended on all of the same terms and conditions set forth in the Lease, as hereinafter modified, so that the Term shall expire at 11:59 PM on June 30, 2022 (the "Extended Expiration Date"), unless it shall sooner expire pursuant to any of the terms, covenants or conditions of the Lease, as amended by this Amendment, or pursuant to law. Accordingly, the expiration date of the Term, for all purposes under the Lease, as amended hereby, shall be deemed to be the Extend Expiration Date.

3.     Amendment of Lease from and after Renewal Effective Date. From and after May 1, 2017 (the "Renewal Effective Date"), the Lease is hereby modified and amended as follows:

(A)     The fixed annual rent shall be an amount equal:

(i)     Two Hundred Twenty-Two Thousand Five Hundred Eighty-Five Dollars and No Cents ($222,585.00) per annum, for the period commencing on the Renewal Effective Date and ending on November 31, 2019 ($18,548.75 per month), payable in advance in equal monthly installments at the times and in the manner provided in the Lease; provided, however, that if no default beyond applicable notice and cure periods has occurred and is then continuing, the monthly installments of fixed annual rent for the period commencing on the Renewal Effective Date and ending on June 30, 2017 shall be abated; and

(ii)     Two Hundred Thirty-One Thousand Nine Hundred Ninety Dollars and No Cents ($231,990.00) per annum, for the period commencing on December 1, 2019 and ending on the Extended Expiration Date ($19,332.50 per month), payable in advance in equal monthly installments at the times and in the manner provided in the Lease.

(B)     The term "base tax year" (as such term is defined in Section 2.C.(i)(c) of the Lease) shall mean the second (2^nd) half of the New York City real estate tax year commencing on July 1, 2016 and ending on June 30, 2017 and the first (1^st) half of the New York City real estate tax year commencing on July 1, 2017 and ending on June 30, 2018.

(C)     The term “base tax year assessment” shall mean the taxable assessed value (i.e. the lesser of the actual assessment and the transitional assessment designated by the City of New York) (giving effect to any abatement, exemption or credit) of the building project (as such term is defined in Section 2.C.(i)(e) of the Lease) for the base tax year.

(D)     The term "comparative year" (as such term is defined in Section 2.C.(i)(f) of the Lease) shall mean the calendar year 2018 and each succeeding year.

(E)     The term “The Percentage” (as such term is defined in Section 2.C.(i)(i) of the Lease) shall mean .11 (.11%) percent.

(F)     The term “real estate taxes” (as such term is defined in Section 2.C(i)(j) of the Lease) shall be deemed to be, and hereby is, modified so to include, without limitation, any taxes, fees and assessments that are levied based on the use of water or energy by Landlord and/or the Building.

(G)     Article 2B of the Lease shall be deemed to be, and hereby is, deleted from the Lease and replaced with a new Article 2B (in the form attached hereto and made a part hereof as Exhibit A). Effective as of the Renewal Effective Date, Tenant shall pay to Landlord operating expense escalation additional rent for the Premises in accordance with the provisions of said new Article 2B.

(H)     For all purposes of the Lease, as amended hereby, the parties agree that the square foot area of the Premises shall be deemed to be Three Thousand One Hundred Thirty-Five (3,135) rentable square feet.

(I)     Landlord shall continue to furnish electricity to the Premises on a submetering basis, subject to and in accordance with the provisions of Article 3 of the Lease, except that the reference therein to “ten (10%) percent” shall be deemed to be, and hereby is, changed to eight (8%) percent”.

4.     Amendment of Lease from and after the date hereof. From and after the date hereof, the Lease is modified and amended as follows:

(A)     Paragraph 1G of the Lease shall be deemed to and hereby is modified so Tenant shall not use the premises demised under the Lease, as amended hereby, for any pornographic or obscene purpose, any commercial sex establishment, any pornographic, obscene, nude or semi-nude performances, modeling or sexual conduct of any kind.

(B)     Landlord and Tenant acknowledge and agree that Tenant’s obligations under Article 15A and Article 31A of the Lease include the obligation, at Tenant’s sole cost and expense, to comply with (a) Local Law 88 of the City of New York for the year 2009, or a similar or successor local law thereto, and (b) all applicable laws, orders and regulation applicable to recycling of waste generated or stored by Tenant or any Person claiming by, through or under Tenant.

(C)     The following additional conditions shall be deemed to be, and hereby are, added to paragraph 8B of the Lease: (x) all alterations shall be performed in compliance with all applicable rules and regulations of the Building and Building design guidelines; and (xi) all alterations shall be performed using an expediter designated by Landlord.

(D)     Without further consent by Tenant, Landlord, its managing agent or Landlord’s designee may, after reasonable written or oral notice, at reasonable times, enter the premises demised under the Lease, as amended hereby, (whether prior or subsequent to the Renewal Effective Date) to take photographs of the interior thereof (which may also include either or both of Tenant’s name and logo) for use in print and electronic marketing materials for any one or more of the Building, Landlord, Landlord’s managing agent or any affiliate thereof. Tenant hereby consents to such use. Notwithstanding the foregoing, no such material shall contain the image or likeness of any individual without first obtaining such individual’s consent thereto. Tenant represents and warrants that the use of such photographs will not violate any copyright or trademark rights of any person with respect to the design, furnishing, layout or construction of the premises demised under the Lease, as amended hereby.

(E)     (i)     Article 4 of the Lease, shall be deemed to be, and hereby is modified so that no sublease of less than the entirety of the premises demised under the Lease is permitted.

(ii)     Notwithstanding anything to the contrary contained in the Lease (as amended hereby) including, without limitation, Article 4 of the Lease, Tenant shall not, and Tenant shall not permit any other party permitted to occupy the premises demised under the Lease, as amended hereby, to, enter into any lease, sublease, license, concession or other agreement for use or occupancy of the premises demised under the Lease, as amended hereby or any portion thereof which provides for a rental or other payment for such use or occupancy based in whole or in part on the net income or profits derived by any person or entity from the property leased, occupied or used, or which would require the payment of any consideration that would not qualify as “rents from real property,” as that term is defined in Section 856(d) of the Internal Revenue Code of 1986, as amended.

(F)     Article 47 of the Lease is hereby amended to also provide that Tenant shall not be permitted to use, or permit others to use vaporizers for the consumption of tobacco products or any other substances in the premises demised under the Lease, as amended hereby.

(G)     The reference in Article 11 of the Lease to “twenty-four (24) months” shall be deemed to be, and hereby is, changed to “twelve (12) months”.

(H)     Article 5 of the Lease shall be deemed to be, and hereby is, modified so that the Lease shall terminate automatically upon the occurrence of any Insolvency Event (as hereinafter defined). The term “Insolvency Event” shall mean any of the following events: (i) a Tenant Obligor (as hereinafter defined) commences or institutes any case, proceeding or other action (a) seeking relief on its behalf as debtor, or to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, or (b) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property; or (ii) a Tenant Obligor makes a general assignment for the benefit of creditors; or (iii) any case, proceeding or other action is commenced or instituted against a Tenant Obligor (a) seeking to have an order for relief entered against it as debtor or to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, or (b) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, which in either of such cases (I) results in any such entry of an order for relief, adjudication of bankruptcy or insolvency or such an appointment or the issuance or entry of any other order having a similar effect, and (II) remains undismissed for a period of sixty (60) days; or (iv) any case, proceeding or other action is commenced or instituted against a Tenant Obligor seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its property which results in the entry of an order for any such relief which is not vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (v) a Tenant Obligor takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clauses (i), (ii), (iii), or (iv) above; or (vi) a trustee, receiver or other custodian is appointed for any substantial part of a Tenant Obligor's assets, and such appointment is not vacated or stayed within fifteen (15) Business Days (as such term is defined in Article 50 of the Lease. The term “Tenant Obligor“ shall mean (a) Tenant, (b) any Person (as such term is hereinafter defined) that comprises Tenant (if Tenant is comprised of more than one (1) Person), (c) any partner in Tenant (if Tenant is a general partnership), (d) any general partner in Tenant (if Tenant is a limited partnership), (e) any Person that has guaranteed all or any part of the obligations of Tenant hereunder, and (f) any Person that previously constituted Tenant hereunder. If the Lease, as amended hereby, terminates pursuant to this Section 5.A, then (I) Tenant shall immediately quit and surrender the premises demised under the Lease, as amended hereby, and (II) Tenant shall nonetheless remain liable for all of its obligations hereunder, as provided in the Lease. The foregoing provisions shall supersede any contradictory or inconsistent provisions of Article 5 of the Lease.

(I)     Article 28 of the Lease shall be deemed to be, and hereby is, modified so that it provides as follows:

“All bills, statements, notices, demands, requests or other communications given or required to be given to Landlord or Tenant under this lease shall (whether or not stated herein) only be deemed sufficiently given or rendered if in writing and delivered to Landlord by certified mail (return receipt requested) or by nationally recognized overnight courier, in each case addressed as follows:

or to such other address or addresses as Landlord or Tenant may designate from time to time on at least ten (10) Business Days of advance notice given to the other in accordance with the provisions of this Article 28. Any such bill, statement, demand, notice, request or other communication shall be deemed to have been rendered or given (x) on the date that it is hand delivered, as aforesaid, or (y) three (3) days after being sent by registered or certified mail or (z) one (1) Business Day after being sent by nationally recognized overnight courier. Notwithstanding anything to the contrary contained herein, an Alterations Notice shall be deemed given on the later to occur of (i) the applicable date specified in the immediately preceding sentence and (y) the date on which Tenant receives a “Read Receipt” on Tenant's electronic transmission thereof. TENANT HEREBY EXPRESSLY WAIVES THE BENEFITS OF ANY LAW, STATUTE OR OTHER LEGAL AUTHORITY REQUIRING A PERIOD OF TIME (SUCH AS 5 DAYS) TO BE ADDED TO THE TIME REQUIRED HEREIN TO BE GIVEN FOR NOTICES.”

(J)     (i)     It is acknowledged and agreed that Landlord is currently holding the sum of $52,346.67 as security under the Lease pursuant to the provisions of Article 32 of the Lease (it being acknowledged that the required security deposit was reduced by $26,173.33 pursuant to Section 32.F). Said Article 32 shall be deemed to be, and hereby is, modified so that the amount of the security deposit required under the Lease shall be increased to $115,995.00. Accordingly, simultaneously with the execution and delivery of this Amendment by Tenant, Tenant shall deposit with Landlord the sum of $63,648.33, so as to increase the amount of the security deposit held by Landlord to $115,995.00, which sum shall be held as security by Landlord pursuant to the provisions of said Article 32 of the Lease, as amended hereby.

(ii)     Section 32.F of the Lease shall be deemed to be, and hereby is, deleted from the Lease.

(K)     The following Rule and Regulation is hereby added to the Rules and Regulations attached to and made a part of the Lease:

“11. All doors to the corridors of the Building must remain closed at all times when not in use for active ingress/egress.”

(L)     The exercise of any remedy under the Lease, as amended hereby, shall not preclude Landlord from simultaneously therewith or subsequent thereto, exercising any and all other remedies permitted by law or in equity, including without limitation, self-help. Any and all such remedies are deemed to be cumulative and non-exclusive. Landlord need not apply any security hereunder to cure a default by Tenant as a condition precedent to exercising any other right or remedy and the application of any such security shall not preclude the exercise of any other remedy.

(M)     Article 19 of the Lease shall be deemed to be, and hereby is, modified so that Tenant shall also permit Landlord to erect and maintain ducts in and through the premises demised under the Lease.

5.     Condition of Premises. Tenant acknowledges that Landlord has made no representations to Tenant with respect to the condition of the Premises. Tenant acknowledges that it is currently occupying the Premises and agrees to remain in possession of the same "as is" in the condition existing on the date hereof and that, notwithstanding anything to the contrary contained in the Lease, as amended by this Amendment, Landlord shall have no obligation to perform any work, provide any work allowance or rent credit (other than as expressly set forth in Paragraph 3(A) hereof), or alter, improve, decorate, or otherwise prepare the Premises for Tenant’s continued occupancy except for Landlord's Renewal Work (as such term is hereinafter defined).

6.     Landlord's Renewal Work.     Landlord shall effect the following work (“Landlord’s Renewal Work”) in the Premises in order to make them ready for Tenant’s continued occupancy and use from and after the Renewal Effective Date: (a) install new Building standard carpet and (b) paint the walls and trim throughout the Premises (painted surfaces only). Landlord shall perform Landlord’s Renewal Work in a Building standard manner, using Building standard materials, promptly after the execution and delivery of this Amendment. Tenant hereby agrees to provide Landlord with access to the Premises and to otherwise cooperate with Landlord in connection with the performance of Landlord's Renewal Work; it being understood and agreed that Tenant's reasonable cooperation shall include without limitation, moving Tenant's employees, agents, invitees and/or guests within the Premises, and moving and protecting all of Tenant's personal property, including, without limitation, Tenant's movable fixtures, movable partitions, telephone equipment, computer equipment, furniture, furnishings and decorations (collectively "Tenant's Property") within the Premises, all as necessary for the performance of Landlord’s Renewal Work. Notwithstanding anything to the contrary herein contained, in no event shall Landlord have any liability to Tenant for damage caused to Tenant's Property which arises in connection with Tenant's failure to move or protect Tenant's Property during the performance of Landlord's Renewal Work. Notwithstanding anything contained herein to the contrary, Tenant shall perform Landlord’s Renewal Work in a commercially reasonable manner and shall use commercially reasonable efforts to Landlord shall use commercially reasonable efforts to perform Landlord’s Work in a manner that minimizes any unreasonable interference with Tenant’s business operations in the Premises; it being understood and agreed that such work may be performed on Business Days, during Business Hours (as such term is defined in Article 50 of the Lease).

7.     Liability of Landlord. The obligations of Landlord under the Lease, as amended by this Amendment, shall not be binding upon the Person (as hereinafter defined) that constitutes Landlord initially after the sale, conveyance, assignment or transfer by such Person of its interest in the Building or the building project, as the case may be (or upon any other Person that constitutes Landlord after the sale, conveyance, assignment or transfer by such Person of its interest in the Building or the building project, as the case may be), to the extent such obligations accrue from and after the date of such sale, conveyance, assignment or transfer. The Landlord Parties (as such term is defined in Article 21 of the Lease) other than Landlord shall not be liable for the performance of Landlord's obligations under the Lease, as amended by this Amendment. Tenant shall look solely to Landlord to enforce Landlord's obligations under the Lease, as amended by this Amendment, and shall not seek any damages against any of the other Landlord Parties. The liability of Landlord for Landlord's obligations under the Lease, as amended by this Amendment, shall be limited to Landlord's interest in the building project and the proceeds thereof. Tenant shall not look to any property or assets of Landlord (other than Landlord’s interest in the building project and the proceeds thereof) in seeking either to enforce Landlord's obligations under the Lease, as amended hereby, or to satisfy a judgment for Landlord's failure to perform such obligations.

8.     Brokerage.

Tenant represents and warrants to Landlord that it has not dealt with any broker, finder or like agent in connection with this Amendment other than Transwestern Commercial Services New York, L.L.C. (“Transwestern”) and The Ezra Company (“Ezra”). Tenant does hereby indemnify and hold Landlord harmless of and from any and all losses, costs, damages or expenses (including, without limitation, attorneys' fees and disbursements) incurred by Landlord by reason of any claim of or liability to any broker (including, without limitation, Ezra), finder or like agent other than Transwestern who shall claim to have dealt with Tenant in connection herewith. The provisions of this Paragraph 8 shall survive the expiration or termination of the Lease, as amended by this Amendment.

9.     Authorization. Tenant represents and warrants to Landlord that its execution and delivery of this Amendment has been duly authorized and that the person executing this Amendment on behalf of Tenant has been duly authorized to do so, and that no other action or approval is required with respect to this transaction.

10.     Full Force and Effect of Lease. Except as amended by this Amendment, 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.

11.     Entire Agreement. The Lease, as amended by this Amendment, constitutes the entire understanding between the parties hereto with respect to the Premises thereunder and may not be changed orally but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought.

12.     Enforceability. This Amendment shall not be binding upon or enforceable against either Landlord or Tenant unless, and until, Landlord and Tenant, each in its sole discretion, shall have executed and unconditionally delivered to the other an executed counterpart of this Amendment.

13.     Invalidity. If any of the provisions of the Lease, as amended hereby, or the application thereof to any person or circumstance, shall, to any extent, be invalid or unenforceable, the remainder of the Lease, as amended hereby, or the application of such provision or provisions to persons or circumstances other than those as to whom or which it is held invalid or unenforceable shall not be affected thereby, and every provision of the Lease, as amended hereby, shall be valid and enforceable to the fullest extent permitted by law.

14.     Binding Affect. The covenants, agreements, terms and conditions contained in this Amendment shall bind and inure to the benefit of the parties hereto and their respective successors, and (except as otherwise provided in the Lease, as hereby supplemented) their respective assigns.

15.     Captions. The captions herein are inserted only for convenience, and are in no way to be construed as a part of this Amendment or as a limitation of the scope of any provision of this Amendment.

16.     Counterparts. This Amendment may be executed in one or more counterparts each of which when taken together shall constitute but one original. Delivery of an executed counterpart of this Amendment by electronic transmission in a Portable Document Format ("PDF") or other digital format acceptable to Landlord shall be equally effective as manual delivery of an executed counterpart of this Amendment, and each such counterpart, whether delivered manually, or by PDF or such other digital format shall be deemed an original.

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IN WITNESS WHEREOF, the parties hereto have executed this Amendment of Lease as of the date first above written.

UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Within New York State)

STATE OF NEW YORK                                     )

: ss.:

COUNTY OF NEW YORK                                 )

On the _____ day of March, in the year 2017, before me, the undersigned personally appeared ________________________________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

EXHIBIT A

Expenses shall exclude or have deducted from them, as the case may be and as shall be appropriate:

(1)     real estate taxes;

(2)     expenses related to leasing space (including, without limitation, leasing commissions, the cost of tenant improvements (or allowances that Landlord provides to a tenant therefor), legal fees, rent concessions, takeover expenses, and advertising expenses);

(3)      managing agents' fees or commissions in excess of the rates then customarily charged for Building management for buildings of like class and character;

(4) executives' salaries above the grade of Building or general manager;

(5) debt service under any mortgage loan or rent under any underlying or ground lease of the Building;

(6) subject to the terms of Section 2.B.(iii) hereof, the cost of any repairs, replacements or improvements to the Building that are required to be capitalized by generally accepted accounting principles ("GAAP");

(7) amounts received by Landlord through proceeds of insurance to the extent the proceeds are compensation for expenses which were previously included in Expenses hereunder;

(8) cost of repairs or replacements incurred by reason of fire or other casualty to the extent to which Landlord is compensated therefor through proceeds of insurance, or which are necessitated by the exercise of the right of eminent domain;

(9) advertising and promotional expenditures that are paid or incurred for the Building;

(10)     legal, auditing and other third-party fees incurred in connection with actual or anticipated litigation with any Building tenant or group of tenants to enforce any provision of their respective lease;

(11) the incremental cost of furnishing services such as overtime heat, ventilation or air conditioning to any tenant at such tenant's expense; costs incurred in performing work or furnishing services for individual tenants (including this Tenant) at such tenant's expense; and costs of performing work or furnishing services for tenants other than this Tenant at Landlord's expense to the extent that such work or service is in excess, on a per rentable square foot basis, of any work or service Landlord is obligated to furnish to this Tenant at Landlord's expense;

(12)      interest, penalties and late charges that in either case are paid or incurred as a result of late payments made by Landlord or by reason of Landlord's failure to comply with any Law (to the extent that Landlord is required to comply with such Law pursuant to the terms hereof);

(13)     costs incurred by Landlord to remedy presently existing conditions at the Building in respect of which a Governmental Authority has issued a notice of violation on or prior to the date hereof;

(14)     costs incurred by Landlord which result from Landlord’s breach of this lease or Landlord’s negligence or willful misconduct;

(15)     costs that Landlord incurs in organizing or maintaining in good standing the entity that constitutes Landlord, or in authorizing Landlord to do business in the jurisdiction where the Building is located; and

(16)     expenses that Landlord incurs in selling, purchasing, financing or refinancing the building project.

(a)     Any Expense Statement that Landlord gives to Tenant shall be binding upon Tenant conclusively unless, within ninety (90) days after the date that Landlord gives Tenant such Expense Statement, time being of the essence, Tenant gives a notice (an "Audit Notice") to Landlord objecting to such Expense Statement which notice shall specify the particular respects in which Tenant objects to such Expense Statement. Tenant's right to give an Audit Notice (and conduct the audit contemplated by this subparagraph (vii)) shall survive the expiration or sooner termination of this lease (to the extent that such expiration or sooner termination occurs earlier than the thirtieth (30th) day after the date that Landlord gives the applicable Expense Statement to Tenant). Tenant shall have the right to audit the Base Expenses as contemplated by this subparagraph (vii) only after receiving the first Expense Statement that sets forth the Base Expenses, and, accordingly, once Tenant's right to so audit the Base Expenses lapses, Tenant shall not have the right to thereafter audit the Base Expenses, notwithstanding that the Base Expenses are included in the calculation of the Expense Payment for Comparative Years. If Tenant gives an Audit Notice to Landlord, then, subject to the terms of this subparagraph (vii), Tenant may examine Landlord's books and records relating to such Expense Statement to determine the accuracy thereof, provided that (x) Tenant commences such audit within thirty (30) days following the date Tenant gives Landlord an Audit Notice and (y) such audit is completed within sixty (60) days following the date Tenant gives Landlord an Audit Notice. Tenant may perform such examination on reasonable advance notice to Landlord, at reasonable times, in Landlord's office or, at Landlord's option, at the office of Landlord's managing agent or accountants; it being expressly understood that Tenant shall not be permitted to copy, reproduce or otherwise transcribe any portion of Landlord's books and records. Tenant shall not have the right to conduct an audit of Landlord's books and records as described in this subparagraph (vii) during the period that a monetary default or material non-monetary default has occurred and is continuing. Tenant shall have the right to conduct such examination using Tenant's own employees. Tenant, in performing such examination, shall also have the right to be accompanied by a certified public accountant from one of the "big-4" firms of certified public accountants (or their successors), or, at Tenant's option, a certified public accountant from a reputable firm that is reasonably acceptable to Landlord; provided, however, that Tenant shall not be entitled to be so accompanied by any certified public accountant unless Tenant and such certified public accountant certify to Landlord in a written instrument that is reasonably satisfactory to Landlord that the compensation being paid by Tenant to such certified public accountant is not conditioned or otherwise contingent (in whole or in part) on the extent of any reduction in the Expense Payment that derives from such examination. Tenant shall not have the right to conduct any such audit unless and until Tenant delivers to Landlord an executed confidentiality agreement, in a form reasonably designated by Landlord, signed by Tenant and Tenant's certified public accountant to which such books and records are proposed to be disclosed, pursuant to which Tenant and such certified public accountants agree to maintain the information obtained from such examination in confidence (subject, however, to the disclosure of the information that Tenant or Tenant's certified public accountant derive from such examination as required by law or to Tenant's counsel or other professional advisors that, in either case, agree to maintain such information in confidence).

(b)     Provided that no Default has occurred and is then continuing, if it is determined ultimately that (i) Landlord, in an Expense Statement, overstated the Expense Payment, and (ii) Tenant overpaid the Expense Payment for a particular Comparative Year, then Tenant shall be entitled to credit the amount of such overpayment of the Expense Payment against the fixed annual rent thereafter coming due hereunder. If (x) Tenant is entitled to a credit against fixed annual rent pursuant to this subparagraph (vii)(b), and (y) the expiration or sooner termination of the term of this lease occurs prior to the date that such credit is exhausted, then Landlord shall pay to Tenant the unused portion of such credit (less any amounts that may then remain due and payable pursuant to the terms of this lease) on or prior to the thirtieth (30th) day after the expiration or sooner termination of the term of this lease (and Landlord's obligation to make such payment shall survive the expiration or sooner termination of the term of this lease).

(viii)     Pending the resolution of any audit contemplated in this subparagraph (ix), Tenant shall pay the Expense Payment to Landlord in accordance with the Expense Statement furnished by Landlord