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THIS LEASE (the “Lease”), is made as of the ___ day of _______________, 2012 (the “Effective Date”) by and between the TOWN OF GREENBURGH, a New York municipal corporation (hereinafter called “Landlord”), with an address at 177 Hillside Avenue, Greenburgh, NY 10607; and GAME ON 365, LLC, a New York limited liability company (hereinafter called “Tenant”), with an address at 520 White Plains Road, Suite 500, Tarrytown, NY 10591. _______________________________________________________________________ W I T N E S S E T H: 1. PREMISES
Landlord is the fee simple owner of certain real property in the Town of Greenburgh, State of New York, located at 715 Dobbs Ferry Road, as more particularly described in Exhibit A, attached hereto and incorporated herein, upon which there has previously been erected a building and certain related parking, driveway and service areas. Landlord leases to Tenant, and Tenant leases from Landlord, said real property described in Exhibit A together with said building and related improvements, all of which are hereinafter referred to as the “Demised Premises.” 2. TERM
This Lease shall be effective as of the Effective Date. The original term (the “Term”) of this Lease shall commence on the Commencement Date (as hereinafter defined), and shall continue for a period of fifteen (15) years (plus the applicable partial calendar month, if any) (each such year being referred to herein as a “Lease Year”). 3. RENT; TAXES
(a) Landlord and Tenant specifically acknowledge and agree that all payments of the U&O Charge and Gross Rent (each, as hereinafter defined) are hereby deemed to be inclusive of any and all real property taxes related to the Demised Premises including, but not limited to, Town, County, School and any special taxing districts associated thereto (collectively, the “Property Taxes”). (b) Landlord shall invoice Tenant monthly for the U&O Charge and Gross Rent, as applicable (each, a “Rent Invoice”). Each Rent Invoice during Lease Years 1-4 shall estimate the portion of such Gross Rent payment that shall be applied by the Landlord to: (i) rent for the use of the Demised Premises for such Lease Year (the “Net Rent”); and (ii) Property Taxes for such Lease Year (the “Tax Payment”). (c) Commencing upon the Tenant’s receipt of a Building Permit for the primary “Clubhouse” and dome structures, and continuing until the Commencement Date, Tenant agrees to pay to Landlord a use and occupancy charge (the “U&O Charge”) for the
Demised Premises equal to Twenty-One Thousand Six Hundred Sixty-Six Dollars and 67/00 ($21,666.67) per month (pro-rated for any partial months). (d) Commencing upon the Tenant’s receipt of a Certificate of Occupancy (the “Commencement Date”), Tenant agrees to pay to Landlord an annual gross rent (the “Gross Rent”) for the Demised Premises during the Term hereof, as follows: Lease Year 1 2 3 4 Gross Rent $260,000.00 $280,000.00 $300,000.00 $325,000.00 Monthly Payment $21,666.67 $23,333.33 $25,000.00 $27,083.33
Lease Years 5-15: Commencing with the fifth (5th) Lease Year, and continuing for each Lease Year thereafter, the Gross Rent shall be the sum of the Net Rent and Tax Payment, each calculated as follows: (i) the Net Rent shall increase by one percent (1%) over the Net Rent charged during the prior Lease Year, provided, however, that the Net Rent in Lease Year 5 shall be One Hundred Seventy Two Thousand Dollars ($172,000) or the Net Rent in Lease Year 4 increased by one percent (1%), whichever is greater; and (ii) the Tax Payment shall be the Property Taxes applicable to the Demised Premises. Landlord agrees that, upon receipt, it shall provide Tenant with tax invoices related to any portion of the Tax Payment (each, a “Tax Invoice”). Tenant shall be responsible for paying such invoices directly. In the event that, at the end of Lease Year 4, Landlord is unable to calculate the actual Net Rent and Tax Payment, Landlord shall make a good faith estimate of the same and the Gross Rent paid commencing on the first month of Lease Year 5 shall be based upon such estimate. The Net Rent for Lease Year 5 shall be confirmed by Landlord as soon as practical thereafter and, in the event of any overpayment by Tenant, such overpayment shall be credited to the next such payment of Net Rent. In the event of an underpayment of Net Rent, Tenant shall make a payment to Landlord reflecting the amount of such underpayment, with the next such payment of Net Rent. (e) Payments of the U&O Charge, Gross Rent and any applicable Additional Rent shall be made to Landlord at the address specified in Section 13 hereof, or at such other place as Landlord may, from time to time, in writing direct. Payments of U&O Charge, Gross Rent and any applicable Additional Rent shall be due and payable on the first (1st) day of each month. In the event that any payment due hereunder shall become due on a day that is not a Business Day (as hereinafter defined), such payment shall be deemed to be due and payable on the next Business Day. For purposes of this Lease, “Business Day” shall mean any day except a Saturday, Sunday or any other day on which commercial banks in New York are authorized or required to close under the laws of New York State.
(f) In Lease Years 1-4, Landlord shall be responsible for paying all Property Taxes on a timely basis, and, unless Tenant is in default, shall defend, indemnify and hold harmless Tenant and its agents, employees, officers, members and directors from and against any claim, action, loss, fine or penalty incurred as a result of Landlord’s failure to timely pay any Property Taxes related to the Demised Premises. In Lease Years 5-15, Tenant shall be responsible for paying all Property Taxes on a timely basis, and shall defend, indemnify and hold harmless Landlord and its officials, officers, agents, servants and employees from and against any claim, action, loss, fine or penalty incurred as a result of Tenant’s failure to timely pay any Property Taxes related to the Demised Premises. (g) For avoidance of doubt, Tenant shall have no obligation to apply for a Certificate of Occupancy until all Approvals (as hereinafter defined in Section 23 hereof) have been obtained; provided, however, that Tenant shall apply for such Certificate of Occupancy within forty-five (45) days following receipt of the Approvals. (h) Tenant, at Tenant’s sole cost and expense, may endeavor to reduce the assessed valuation of the Demised Premises for the purpose of reducing the Property Taxes payable by Tenant. In the event that any tax certiorari proceeding is commenced regarding the Demised Premises, Tenant shall be entitled to One Hundred Percent (100%) of any tax refund for the time period after Lease Year 4 that Tenant occupied the Demised Premises pursuant to the terms of this Lease; provided, however, that in the event Tenant is not current in the payment of any U&O Charge, Gross Rent or Additional Rent payment (beyond any applicable grace and/or cure period), any such refund shall first be applied to the satisfaction of such amounts and any overage shall thereafter be paid to Tenant. Notwithstanding anything contained herein to the contrary, Tenant shall not commence any tax certiorari proceeding with regard to Lease Years 1-4. (i) All monies due to Landlord pursuant to this Lease not specifically designated as U&O Charge, Gross Rent, Net Rent or a Tax Payment, shall be deemed to be Additional Rent. 4. INSTALLATIONS
Subject to receipt of any necessary approval from any agency or board having jurisdiction, Tenant at its own expense may provide, install and maintain all trade fixtures, structures and equipment reasonably required (and may substitute for, improve and alter the same) to enable it to conduct its business in the Demised Premises in a good and businesslike manner. Provided Tenant is not in default, such fixtures, structures and equipment shall remain the property of Tenant and Tenant shall have the obligation to remove the same or any part thereof prior to the expiration or earlier termination of this Lease. Tenant shall repair at its own expense any damage to the Demised Premises caused by the removal of said fixtures, structures or equipment by the Tenant and shall leave the same in a “broom clean” condition. If Tenant is in default, any fixtures, structures or equipment installed by Tenant pursuant hereto shall be subject to Landlord’s lien for the payment due by Tenant and for the performance of any other obligation of Tenant under this Lease, said lien to be subordinated only to a first mortgagee or a 3 08/11/2012
secured first party, if any. Landlord shall execute said subordination or similar instrument subordinating its lien within ten (10) days from receipt of Tenant’s written request therefore. 5. USE OF PREMISES
Tenant and any permitted assignee or sub-tenant shall only use the Demised Premises to construct and operate a multi-purpose sports facility, as described in more detail on Exhibit B, annexed hereto and made a part hereof, as well as all associated services and related activities (collectively, the “Project”). During the term hereof, Tenant or any permitted assignee or sub-tenant shall, at Tenant’s expense, promptly comply with the following requirements: (a) The requirements of every applicable statute, law, ordinance, regulation, or order now or hereafter made by any Federal, State, County, municipal or other public body, department, bureau, officer or authority, with respect to: (i) The development of the Demised Premises for purposes of the Project, as well as the improvements and appurtenances placed thereon by Tenant; (ii) The use or occupation of the Demised Premises and the improvements by Tenant, including the making of any alteration or addition in or to any structure upon, connected with, or appurtenant to, the Demised Premises; and (iii) The removal of any encroachment caused by Tenant, but only if required to do so by order of any court, department or bureau having jurisdiction; (b) The requirements of all easements, restrictions and other documents existing of record, after receiving representation by Landlord that same will not interfere with Tenant’s use and occupancy of the Demised Premises for purposes of the Project; and (c) Any applicable regulation or order of the Board of Fire Underwriters, Fire Insurance Rating Organization, or other body having similar functions, whether or not such compliance involves structural repairs or changes, related to the Project, whether or not any such statute, laws, ordinance, requirement, regulation, or order is of a kind now within the contemplation of the parties hereto, only to the extent issued after a Building Permit has been issued, otherwise the same shall be the obligation of the Landlord. (d) In further limitation of the permissible uses contained in this Section 5, and as a material inducement for Landlord's execution and delivery of this Lease, Tenant specifically covenants and agrees that it shall neither use nor permit the Demised Premises or any part thereof to be used for any of the following: (i) the sale, display or lodging of animals, the sale of paraphernalia relating to drugs which may not be legally sold, X-rated materials, obscene or pornographic use, as an escort agency or the sale or display of any goods, wares or merchandise used in such trade;
(ii) as a methadone clinic, abortion clinic, psychiatric clinic, day care center, welfare center or such other use reasonably objectionable to Landlord on the Demised Premises; (iii) for any obscene or pornographic purpose and shall not permit or conduct any obscene, nude, or semi-nude live performances on the Demised Premises, nor permit use of the Demised Premises or any part thereof, for nude modeling, or as a so-called rubber goods shop, or as a sex club of any sort, or as a "massage parlor." Tenant agrees further that Tenant will not permit any such uses by any licensee, concessionaire, sublessee or assignee of Tenant, or otherwise. Tenant agrees that if at any time Tenant violates any of the provisions of this Section, such violation shall be deemed a breach of a substantial and material obligation of the terms of this Lease. Pornographic and obscene material is defined for purposes of this Section as any material found to be objectionable in Landlord's sole and exclusive judgment; (iv) to conduct or permit any fire, bankruptcy, auction, or “going out of business” sale (whether real or fictitious) in the Demised Premises without obtaining Landlord’s written consent, or utilize any unethical method of business operation; (v) to perform any act, or carry on any practice, that may damage, mar, or deface the Demised Premises or any other part of the Building unless such damage shall be promptly repaired by Tenant to Landlord’s reasonable satisfaction; (vi) as a tennis facility (in whole or in part), unless specifically agreed to by the Town Board of the Landlord by adoption of a resolution, following a public hearing. (e) The parties specifically acknowledge and agree that: (i) the Demised Premises is not a Town park or a Town recreational facility and shall in no manner function or be utilized as a Town park or a Town recreational facility; (ii) Landlord is leasing the Demised Premises to Tenant solely for the purposes of conducting a private entrepreneurial venture; and (iii) the relationship created pursuant to the terms of this Lease shall be solely and exclusively that of a Landlord/Tenant, and no partnership, joint venture or similar relationship shall be created hereby. 6. SENIOR CITIZEN WALKING TRACK MEMBERSHIP
Tenant agrees that, following the completion of the track and commencement of business activities at the Demised Premises, and throughout the Term of the Lease, it shall offer a membership (the “Membership”) to Senior Citizens (i.e., age 60 and above), substantially in accordance with the following terms: (a) Membership Description – access to the walking track for walking exercise only.
(b) Membership Availability – the Membership will be offered to Senior Citizens only. (c) Access Months – subject to Paragraph (d) below, the Membership shall provide access from September 1 through June 30 of each calendar year only. (d) Access Days – Monday through Friday. The Membership shall exclude holidays, holiday/school vacation weeks, and such other reasonable days as the management of the Project may reasonably designate. (e) Access Times – 10:00AM through 12:00PM (noon), or at such other reasonable times of like duration as the management of the Project may reasonably designate. (f) Membership Fee – the fee shall be waived for Town of Greenburgh Senior Citizen residents, including the residents of Ardsley, Dobbs Ferry, Elmsford, Hastings-onHudson, Irvington and Tarrytown. (g) Requirements – Members will be required to complete such documentation and provide such identification as may be required by Tenant, its agents or Project management. 7. DAMAGE TO PREMISES
(a) If during the term hereof the building or structure constructed on the Demised Premises by Tenant shall be damaged or destroyed by fire, or by any other cause whatsoever, whether or not insured against, Tenant, except as otherwise provided in this Section, shall forthwith proceed to restore the same as nearly as possible to its value, condition and character immediately prior to such damage, subject to such delays as may be reasonably attributable to governmental restrictions or failure to obtain materials or labor, or other causes (other than financial), whether similar or dissimilar, beyond the control of Tenant. Materials used in repair and rebuilding shall be as nearly like original materials as may then be reasonably procured in regular channels of supply. All proceeds of insurance carried by Tenant on such building pursuant to Paragraph 8(a) hereof, payable as a result of such damage or destruction shall be made available to Tenant for the purpose of such repair or rebuilding. If such proceeds are insufficient to cover the cost of such restoration, Tenant shall pay the amount of such insufficiency. (b) In the event of any casualty, unless caused by Landlord, its officials, officers, agents, servants or employees (whether or not insured against), the term of this Lease shall nevertheless continue and there shall be no abatement or reduction of rent or any other sums payable by Tenant hereunder. (c) Either party hereto shall have the right to terminate this Lease if, during the last eighteen (18) months of the term of this Lease, the building which is a portion of the Demised Premises is damaged, in an amount exceeding fifty percent (50%) of the then reconstruction cost of said building, and such reconstruction is determined to take in excess of six (6) months (which reconstruction cost for the purposes of this Paragraph 7(c) shall be limited to only the cost of actually reconstructing said building), provided
that in such event such termination of this Lease shall be effected by written notice within sixty (60) days of the happening of the casualty causing such damage. (d) Except as provided in Paragraph 7(e) below, each of the parties hereto mutually releases the other from liability, and waives all right of recovery against the other, for any loss of or damage to the property of each, property of others for which either of the parties hereto is liable, or may become liable, or as to which either may have assumed liability, property of others in the actual or constructive custody of either of the parties hereto, including earnings derived therefrom, caused by or resulting from fire, the perils of the commonly referred to Extended Coverage Endorsement and leakage from automatic sprinkler systems, if any, or from perils insured against under any insurance policies maintained by the parties hereto, regardless of the cause of such loss or damage even though it results from some act or negligence of a party hereto, its agents or representatives; provided, however, that this provision shall be inapplicable if it would have the effect, but only to the extent that it would have the effect, of invalidating any insurance coverage of the parties hereto. If Tenant enters into a similar agreement with a subtenant of it, which agreement extends to, and is enforceable by, Landlord, the agreement of Landlord contained in this Paragraph shall also extend to, and be enforceable by, such subtenant. (e) Tenant shall defend, indemnify and hold Landlord and its officials, officers, agents, servants, employees, contractors and representatives harmless against and from any and all liability, damages, losses, fines, suits, claims, demands, actions, costs and expenses of each and every kind or nature whatsoever (including, without limitation, reasonable attorneys’ fees, disbursements and court costs) due to or arising out of: (i) The use or occupancy of any portion of the Demised Premises by Tenant or by any person or entity claiming by, under or through Tenant; or (ii) Any work or thing whatsoever done or any condition created in or about the Demised Premises by the Tenant; or (iii) Any negligent or otherwise wrongful act or omission of Tenant or any of its subtenants or licensees or its or their employees, agents, customers, invitees, or contractors; or (iv) Failure by Tenant or any of its subtenants to pay any impositions or any other tax to the appropriate governmental authority; or (v) Breach, violation, or non-performance of any term, covenant, or condition of this Lease on the part of Tenant to be fulfilled, kept, observed, or performed. (vi) Injury to any person or persons (including, without limitation, the death of any person or persons) or damage to any property occurring in or about the Demised Premises at any time during the Term, whether or not such injury or damage is occasioned by Tenant’s use and occupancy of the Demised Premises, by any use or
occupancy that Tenant may permit or suffer to be made thereof, or otherwise, except for the negligence of the Landlord. 8. INSURANCE AND INDEMNIFICATION
(a) Tenant shall cause to be effected upon the building and appurtenances which are part of the Demised Premises a policy of fire insurance (including the so-called “Extended Coverage Endorsement”) and naming as additional insureds Landlord, Tenant and the beneficiary or mortgagee of any first deed of trust or first mortgage affecting the Demised Premises (“Landlord’s Mortgagee”), provided that said beneficiary or mortgagee has executed a Subordination, Non-Disturbance and Attornment Agreement, from a company or companies licensed to do business in the State of New York and possessing a rating of A/v or better in A.M. Best’s Insurance Rating Manual and whose claims paying ability is rated no lower than A by Standard & Poor’s Ratings Service, in a total amount of the replacement cost of said building and appurtenances. If a mortgage encumbers the property, Landlord represents and warrants that it is not now, and shall not be throughout the term of this Lease, in default thereof, and will promptly cure any defects during the Term of the Lease. (b) Tenant, with respect to its use and occupancy of the Demised Premises and its maintenance obligations contained herein, agrees, at Landlord’s option, to defend Landlord, its officials, officers, agents, servants and employees against any, all and every demand, claim, assertion of liability, or action arising or alleged to have arisen out of any act or omission of Tenant, its agents, servants, employees, whether such demand, claim, assertion of liability or action be for damages, injury to person or property, including the property of Landlord, or death of any person, made by any person, group or organization, whether employed by either of the parties hereto or otherwise, and agrees to assume legal liability for, indemnify and hold free and harmless Landlord, its officials, officers, agents, servants and employees from any and all loss, damages, liability, costs, expenses (including, but not limited to, attorneys’ fees, reasonable investigative and discovery costs and court costs) and all other sums which Landlord, its officials, officers, agents, servants and employees may reasonably pay or become obligated to pay on account of any, all and every demand, claim, assertion of liability or action arising or alleged to have arisen out of any act or omission of Tenant, its agents, servants, employees, whether such claim, demand, assertion of liability or action be for damages, injury to person or property, including the property of Landlord, or death of any person, made by any person, group or organization, whether employed by either of the parties hereto or otherwise. (c) Tenant agrees that it shall at its own expense maintain in force a policy or policies of insurance written by one or more responsible insurance carriers licensed to do business in the State of New York and whose claims paying ability is rated no lower than A by Standard and Poor’s Ratings Service which shall insure against liability for injury to and/or death of and/or damage to property of any person or persons, with policy limits of not less than ONE MILLION AND NO/l00 DOLLARS ($1,000,000.00) for bodily injury or death to any one person, not less than THREE MILLION AND NO/100 DOLLARS ($3,000,000.00) for any one accident and not less than ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) for property damage. In addition to the foregoing, Tenant
shall maintain an umbrella/excess policy with policy limits of not less than FIVE MILLION AND NO/l00 DOLLARS ($5,000,000.00). Said policy or policies shall provide among other things, blanket contractual liability insurance recognizing and insuring the assumption of liability assumed by Tenant in Paragraph 8(b) hereof. (d) Tenant agrees to deliver to Landlord certificates of insurance evidencing the existence in force of the policies of insurance hereinabove provided for. Such certificates shall be delivered to Landlord at least twenty-four (24) hours in advance of entry onto the Demised Premises by Tenant, either on its own or through any contractor, subcontractor, vendor, agent, servant, employee, invitee or representative, but in no case later than ten (10) days after notification the report of the Phase II Environmental Site Assessment, conducted pursuant to Section 21, has been received by the Landlord. Replacement certificates shall be provided at least five (5) business days prior to the date that any such policy shall expire. Each of such policies and certificates shall (i) provide that such insurance shall not be canceled or materially amended unless thirty (30) days’ prior written notice of such cancellation or amendment is given to the party designated on such certificate as the holder thereof and to Landlord and Landlord’s Mortgagee, and (ii) shall name Landlord and Landlord’s Mortgagee as additional insureds or loss payees under said policies. (e) Landlord agrees, at Tenant’s option, to defend, indemnify and hold harmless Tenant, its agents, servants, employees, members, officers and directors, from and against any, all and every demand, claim, assertion of liability, or action arising or alleged to have arisen: (i) prior to the Effective Date; or (ii) out of any act or omission of Landlord, its officials, officers, agents, servants and employees, whether such demand, claim, assertion of liability or action be for damages, injury to person or property, including the property of Tenant, or death of any person, made by any person, group or organization, whether employed by either of the parties hereto or otherwise, and agrees to assume legal liability for, indemnify and hold free and harmless Tenant, its agents, servants, employees, members, officers and directors, from any and all loss, damages, liability, costs, expenses (including, but not limited to, attorneys’ fees, reasonable investigative and discovery costs and court costs) and all other sums which Tenant, its agents, servants, employees, members, officers and directors may reasonably pay or become obligated to pay on account of any, all and every demand, claim, assertion of liability or action arising or alleged to have arisen out of any event prior to the Effective Date, or any act or omission of Landlord, its officials, officers, agents, servants or employees, whether such claim, demand, assertion of liability or action be for damages, injury to person or property, including the property of Tenant, or death of any person, made by any person, group or organization, whether employed by either of the parties hereto or otherwise. 9. EXERCISE OF EMINENT DOMAIN
An appropriation or taking by a governmental entity under the power of eminent domain of all, or a portion, of the Demised Premises or the sale by private sale of all, or a portion of same in lieu thereof, are sometimes hereinafter called a “taking.” (a) In the event of the taking of:
(i) the entire Demised Premises; (ii) any portion of the Demised Premises so that the remainder thereof is not reasonably adaptable to the continued leasing of the Demised Premises by Tenant and is not economically viable for Tenant’s use, in Tenant’s sole reasonable determination; (iii) any portion of the building or structure constructed on the Demised Premises by Tenant, so that the remainder thereof is not reasonably adaptable to the continued leasing of the Demised Premises by Tenant and is not economically viable for Tenant’s use, in Tenant’s sole reasonable determination; (iv) any portion greater than fifty per cent (50%) of the parking area on the Demised Premises so that a portion of said parking area is so separated from the remainder thereof that in Tenant’s reasonable opinion the parking area available to customers of Tenant is so limited that the continued leasing of the Demised Premises by Tenant is impracticable or unprofitable; then Tenant shall have the right to cancel and terminate this Lease as hereinafter provided. Landlord acknowledges and agrees that it will not undertake or allow any action which would constitute a taking of any portion of the Demised Premises and hereby waives any rights it may have thereto. Landlord, at its sole cost and expense, shall vigorously defend any efforts by any governmental entity to effectuate a taking of any portion of the Demised Premises. Within ninety (90) days after receipt by Tenant of written notice that an action has been commenced in either the state or federal courts for the condemnation of any portion of the Demised Premises, Tenant may, by written notice to Landlord, notify Landlord of its election to cancel and terminate this Lease pursuant to the provisions of this Paragraph 9(a), which said notice may be conditioned upon an actual order of condemnation, taking of possession, or sale, and may be made to take effect as of the date of such order, taking or sale, or of the deprivation of access. In the event of the termination of this Lease by the giving of notice as aforesaid, the parties shall be released from any and all further obligations to carry out or perform any of the terms or provisions hereof from and after the effective date of the termination of this Lease provided for in said notice and Landlord shall be entitled to any condemnation award payable as a result of such taking, provided, however, that Tenant shall have the right to make a separate claim against the condemning authority for Tenant’s trade fixtures, equipment or other tangible property, moving expenses, loss of business and similar claims, if available. (b) Except as provided in Section 9(a) above, this Lease shall remain in full force and effect in the event of the taking of any portion of the Demised Premises. Unless this Lease is terminated as provided in Section 9(a) hereof, Tenant shall forthwith, at its expense, make all repairs and alterations to the Demised Premises and the improvements thereon necessitated by such taking or sale, and there shall be no abatement or reduction of rent or any other sums payable by Tenant hereunder so long as Tenant continues to have use of the Demised Premises for purposes of the Project for the Lease Term. Tenant
shall be entitled to participate in all condemnation proceeds to the extent of the cost of restoration of the Demised Premises (provided that Tenant’s obligation to make such repairs and alterations shall not be limited to the amount of such proceeds), and Landlord shall be entitled to any remaining condemnation proceeds. (c) Upon service on either party hereto of any legal process in connection with any condemnation proceedings, the party so served shall give immediate notice thereof to the other party hereto; provided, however, that failure of either party to so notify the other shall not constitute a default hereunder on either party’s behalf. 10. UTILITIES, ETC.
(a) Tenant shall pay during the term hereof all electric, water, gas, telephone and other public utility charges in connection with its occupancy and use of the Demised Premises, including all costs of operating and maintaining all equipment therein, all business licenses and similar permit fees. (b) Unless caused by Landlord, Landlord shall not be liable for: (i) Any failure of water supply, gas, or electric current, nor for any injury or damage to person or property for any reason related to the above whatsoever, including, without limitation, that caused by or resulting from: A. Hurricane, blizzard, tornado, flood, wind, or similar storms or disturbances; or B. The leakage or flow of gasoline, oil, gas, electricity, steam, water, rain, or snow from the street, sewer, gas mains, tanks, wires, lines, any subsurface area, any part of the improvements, pipes, appliances, plumbing works, or any other place; or (ii) Any interference with light or other incorporeal hereditament by anybody, or caused by operations by or of any public or quasi-public work. 11. COVENANTS AGAINST LIENS
Other than any: (i) public or private financing; (ii) leasehold mortgage; (iii) equipment liens; (iv) trade payables; or (v) other obligations incurred in the ordinary course of business, Tenant covenants and agrees that it shall not, during the Term hereof, suffer or permit any lien to be attached to or upon this Lease, the Demised Premises or any part thereof by reason of any act or omission on the part of Tenant, and hereby agrees to save and hold harmless Landlord from or against any such lien or claim of lien. In the event of the filing of any lien against the Demised Premises occasioned by Tenant’s acts or alleged acts, Tenant shall rigorously and actively defend the same and hold Landlord harmless and shall, upon request of Landlord, bond or otherwise remove such lien.
ASSIGNMENT AND SUBLETTING
Tenant may only assign this Lease or sublet the Demised Premises or any part thereof if Tenant is not then in default (beyond any applicable grace and/or cure periods), and then only upon the written consent of Landlord, not to be unreasonably withheld, conditioned or delayed, except that no such assignment or subletting shall relieve Tenant from any of its obligations as Tenant hereunder, and Tenant shall remain liable as a primary obligor for all monetary and non-monetary obligations of Tenant hereunder. Tenant shall give Landlord written notice of any assignment of the Lease or subletting of the entire Demised Premises and the identity of the assignee or subleasee, together with a copy of any such assignment or sublease agreement, which agreement must include customary and standard attornment and subordination provisions. Landlord acknowledges and agrees that Tenant shall be entitled to, subject to the provisions of this Paragraph 12, sublet or license portions of the Demised Premises for the purpose of providing services related to the Project including, but not limited to, a café, pro shop, physical therapy and exercise and conditioning activities such as yoga and pilates classes. 13. NOTICES
(a) Any notices required to be given hereunder, or which either party hereto may desire to give to the other, shall be in writing. Such notice may be given by mailing the same by United States mail, registered or certified, return receipt requested, postage prepaid, addressed to Tenant at: GAME ON 365, LLC 520 White Plains Road, Suite 500 Tarrytown, NY 10591 Attn: Vito Galasso, Managing Member with a copy to: Cuddy & Feder LLP 445 Hamilton Avenue, 14th Floor White Plains, NY 10601 Attn: Robert J. Levine, Esq. and to Landlord, at: TOWN OF GREENBURGH 177 Hillside Avenue Greenburgh, NY 10607 Attn: Town Attorney’s Office Notwithstanding the foregoing, all payments due to Landlord hereunder shall be sent to: TOWN OF GREENBURGH 177 Hillside Avenue Greenburgh, NY 10607 Attn: Comptroller’s Office
or to such other address as the respective parties may from time to time designate by notice given in the manner provided in this Section, and shall be deemed complete upon receipt thereof. (b) Tenant shall pay rental to such other address as the Landlord may subsequently designate in writing to Tenant. If Tenant is at any time instructed by Landlord to pay rental to Landlord’s Mortgagee or any designated agent thereof, such designation may not be subsequently modified by Landlord unless such modification is in writing and is co-signed by Landlord’s Mortgagee or such designated agent thereof. 14. RIGHT TO GO UPON PREMISES
Landlord hereby reserves the right for itself or its duly authorized agents and representatives, on reasonable advance notice, during normal business hours of Tenant during the Term hereof, to enter upon the Demised Premises for the purpose of inspecting the same and of showing the same to any prospective purchaser or encumbrancer. Tenant acknowledges that Police and Fire officials shall be entitled to enter upon the Demised Premises, without notice to Tenant, in the case of an emergency. 15. MAINTENANCE
(a) Tenant shall, at its own expense, maintain the Demised Premises and all improvements located thereon. At the end of the Lease Term or sooner termination of this Lease, whether by operation of law, for failure to comply with the provisions hereof, or otherwise, Tenant shall deliver up the Demised Premises in the same order, condition and repair as when received by Tenant, alterations pursuant to Section 26 hereof and depreciation caused by ordinary wear and tear and the elements excepted. (b) Other than as related to the environmental condition of the Demised Premises, Tenant has accepted the Demised Premises in its “as is” condition without any representation or warranty by Landlord of any kind or nature, including, without limitation, as to its condition or as to the use or occupancy which may be made thereof. Other than as related to the environmental condition of the Demised Premises, Tenant assumes the sole responsibility for the condition, operation, maintenance and management of the Demised Premises, and Landlord shall not be required to furnish any facilities or services or make any repairs or alterations thereto. 16. DEFAULT
(a) Should Tenant default in the performance of any covenant or agreement herein, and such default continue for thirty (30) days after receipt by Tenant of written notice thereof from Landlord (ten (10) days in the event of the non-payment of rent), or if the default of Tenant is of a type which is not reasonably possible to cure within thirty (30) days, if Tenant has not commenced to cure said default within said thirty (30) day period and does not thereafter diligently prosecute the curing of said default to completion (which completion shall be in any event accomplished within one hundred twenty (120) days unless the same is prevented by causes entirely outside the control of Tenant), Landlord 13 08/11/2012
may, so long as such default continues, either terminate this Lease by written notice to Tenant, which written notice shall specify a date for such termination at least fifteen (15) days after the date of such notice, or not terminate this Lease as a result of the default of Tenant. Notwithstanding the foregoing, Landlord shall not be obligated to give written notice to Tenant of its failure to pay rents when due more than three (3) times in a twelve (12) month period. In the event Tenant shall fail to pay an installment of Net Rent or any Additional Rent within ten (10) days after the same shall become due and payable, with or without notice from Landlord, Tenant shall promptly pay to Landlord a late payment administrative charge equal to five per cent (5%) of the amount of Net Rent and any Additional Rent not paid. (b) In the event Landlord terminates this Lease pursuant to the provisions of Paragraph 16(a) hereof, Landlord may then, or at any time thereafter, reenter the Demised Premises, or any part thereof, and expel or remove therefrom Tenant and any other persons occupying the same, by any legal means, and again repossess and enjoy the Demised Premises. In the event of such termination by Landlord, neither Landlord nor Tenant shall have any further obligations under this Lease, and Landlord shall not be permitted to anticipate or accelerate all or part of any rent or other payments not yet due, or which would not yet be due if this Lease were not terminated, including, but not limited to, all or any portion of the rent for all, or any portion, of the balance of the Term of this Lease. For avoidance of doubt, in the event Landlord terminates this Lease pursuant to the provisions of Paragraph 16(a) hereof, Tenant acknowledges and agrees that it shall not be entitled to reimbursement of any portion of the Initial Environmental Contribution or Secondary Environmental Contribution. (c) In the event Landlord does not terminate this Lease as a result of the default of Tenant, Tenant shall remain and continue liable to Landlord under all of the terms of this Lease; Landlord may evict Tenant and let or relet the Demised Premises or any or all parts thereof for the whole or any part of the remainder of the Term hereof, or for a period of time in excess of the remainder of the Term hereof, and out of any rent so collected or received, Landlord shall first pay to itself the expense of the cost of retaking and repossessing the Demised Premises and the expense of removing all persons and property therefrom, and shall, second, pay to itself any costs or expense sustained in securing any new tenant or tenants, and shall, third, pay to itself any balance remaining, and apply the whole thereof or so much thereof as may be required toward payment of the liability of Tenant to Landlord then or thereafter unpaid by Tenant. Any entry or reentry by Landlord, whether had or taken under summary proceedings or otherwise, if this Lease shall not be terminated pursuant to Paragraph 16(a) hereof, shall not absolve or discharge Tenant from liability hereunder. The words “reenter” and “reentry” as used in this Lease are not restricted to their technical legal meaning. The failure or refusal of Landlord to relet the Demised Premises or any part thereof shall not release or affect Tenant’s liability hereunder. Should any rent so collected by Landlord after the payments aforesaid be insufficient fully to pay Landlord a sum equal to all rent and other charges herein reserved, or should no rents be collected by Landlord, the deficiency shall be calculated and paid by Tenant monthly following receipt of notice from Landlord of the amount of such balance or deficiency, that is, upon each of the dates for the payment of
rent as provided in Paragraph 3(a) hereof, and Tenant shall pay to Landlord the amount of said deficiency then existing and shall remain liable for any portion thereof not so paid. (d) If Tenant shall default in: (i) Making any payment required to be made by Tenant under this Lease; or (ii) Performing any term, covenant, or condition of this Lease on the part of Tenant to be performed, Landlord may, at its option (but shall not be obligated to do so), for the account of Tenant, make such payment or expend such sum as may be necessary or desirable to perform and fulfill such term, covenant, or condition, upon ten (10) days’ prior written notice to Tenant (except that no such notice to tenant shall be required in case of emergency). However, no such payment or expenditure by Landlord shall be deemed a waiver of Tenant’s default, nor shall the same affect any other remedy of Landlord by reason of such default. (e) Any and all sums paid or expended by Landlord pursuant to Paragraph (d) above, as well as any other cost or expense (including, without limitation, reasonable attorneys fees, disbursements and court costs) incurred by Landlord in instituting, prosecuting, or defending any action or proceeding instituted by reason of, or relating to, any default by Tenant under this Lease, shall: (i) Be repaid by Tenant to Landlord as Additional Rent under this Lease upon Landlord’s written demand therefor; and (ii) Bear interest from the date of Landlord’s payment or expenditure thereof to the date of Tenant’s repayment of the same to Landlord, both dates inclusive, at the rate of ten per cent (10%) per annum (but in no event in excess of any then lawful maximum interest rate then applicable to Tenant); (f) The remedies of Landlord in the event of the default of Tenant as provided in this Section 16 are intended to be exclusive and not subject to the provisions of Section 24 hereof. 17. SIGNS
Tenant shall have the right, subject to applicable local laws and regulations, to install, erect and maintain upon the Demised Premises all signs necessary or appropriate to the conduct of its business, in Tenant’s sole discretion. Tenant shall not install, erect or maintain any sign in violation of any applicable law, ordinance or use permit of any governmental authority. Tenant shall remove the same upon the expiration or sooner termination of this Lease, or within thirty (30) days after such expiration or termination, and Tenant at its own expense shall repair any damage caused by the removal thereof by the Tenant. Landlord shall not install, erect or maintain any signs on the Demised Premises during the Lease Term, except that, unless this Lease shall have previously been extended or renewed, Landlord may erect a “To Rent” sign during the last two (2) months of such term; provided, however, that such sign shall not obstruct any sign of Tenant or interfere unreasonably with the conduct of Tenant’s business. 15 08/11/2012
(a) In the following cases Tenant shall pay Landlord’s reasonable attorney’s fees and costs to be fixed by the court, namely: if (i) Landlord commences an action against Tenant and is successful therein in whole or in part; (ii) Tenant commences an action against Landlord and is unsuccessful therein; or (iii) a third person commences an action against Landlord and Tenant respecting the Demised Premises and Tenant is held liable therein and Landlord is exonerated. (b) In the following cases Landlord shall pay Tenant’s reasonable attorney’s fees and costs to be fixed by the court, namely: if (i) Landlord commences an action against Tenant and is wholly unsuccessful therein; (ii) Tenant commences an action against Landlord and is successful therein; or (iii) a third person commences an action against Landlord and Tenant respecting the Demised Premises and Landlord is held liable therein and Tenant is exonerated. 19. CONDITION OF TITLE-SUBORDINATION
(a) During the period commencing with the date of this Lease and continuing through and including the expiration or prior termination of the Term hereof Landlord shall not create or suffer to be created any lien or encumbrance upon or affecting the Demised Premises or any portion thereof which shall be prior or superior to this Lease or to the interest of Tenant hereunder, except taxes and other liens created by operation of law. (b) Notwithstanding the foregoing, upon the request of Landlord, Tenant agrees to subordinate its interest under this Lease to the lien of any mortgage or trust deed which may hereafter be placed on the Demised Premises. This clause shall be self-operative and no further instrument of subordination shall be required by Tenant or any mortgagee, affecting the Lease or the real property of which the Demised Premises are a part. In confirmation of such subordination, Tenant shall execute promptly any certificate that Landlord may request. 20. HOLDING OVER
If Tenant continues to occupy the Demised Premises after the expiration of the term of this Lease and Landlord accepts rent thereafter, a monthly tenancy terminable by either party on one month’s notice shall be created, which shall be upon rental of 150% of the Gross Rent due on the last month of the Lease but otherwise on the same terms and conditions as those herein specified. 21. ENVIRONMENTAL OBLIGATIONS
(a) It is understood by and between the parties hereto, that Landlord has had conducted at its own cost and expense, a Phase I Environmental Site Assessment of the premises, and that a Phase II Environmental Site Assessment (the “Phase II”) has been proposed, at a cost thereof of approximately Forty-Three Thousand Five Hundred Dollars
($43,500.00). Preliminary remediation has also been estimated at approximately One Hundred Thousand Dollars ($100,000.00). Subject to the foregoing, the parties agree as follows: (i) The cost of the Phase II and any remediation shall be contracted for, performed on behalf of, and paid for by Landlord or any designated agency thereof. (ii) The Tenant shall pay, as Additional Rent, up to the sum of One Hundred Twenty-Five Thousand Dollars ($125,000.00) (the “Initial Environmental Contribution”), which Landlord shall apply to the cost of the aforementioned Phase II and any recommended remediation. For avoidance of doubt, Tenant’s obligation to pay all or any portion of the Initial Environmental Contribution shall be conditioned upon receipt of an invoice for such work, and shall be subject to the following: A. In the event that the Phase II and any recommended remediation costs less than the Initial Environmental Contribution, Tenant shall not be obligated to pay the portion in excess of the actual cost of the same; B. In the event that any work for which Tenant advances any portion of the Initial Environmental Contribution is not completed, Landlord shall be responsible for re-paying such amount to Tenant; C. Upon execution of the Lease, Tenant shall place Forty-Three Thousand Five Hundred Dollars ($43,500.00) in escrow, pursuant to an escrow agreement reasonably acceptable to Landlord and Tenant (the “Escrow Agreement”), with Landlord’s counsel for the purpose of paying that portion of the Initial Environmental Contribution applicable to the Phase II; and D. Upon completion of the Phase II and the determination of what remediation, if any, must be undertaken, Tenant shall place the cost of such remediation, up to Eighty-One Thousand Five Hundred Dollars ($81,500.00) (i.e., the balance of the Initial Environmental Contribution) in escrow, pursuant to the Escrow Agreement, with Landlord’s counsel for the purpose of paying that portion of the Initial Environmental Contribution applicable to such remediation. E. For the purposes of sub-paragraphs C and D above, each such deposit shall be deemed security for the payment of invoices received for the work to be performed pursuant to this Section, to be paid within thirty (30) days of receipt thereof. In the event such remediation is completed prior to the expenditure of the funds deposited pursuant to either sub-paragraph C or D, the balance, if any, shall be returned to the Tenant, within thirty (30) days after payment of the final invoice related to such remediation. (iii) After said Initial Environmental Contribution is expended by Landlord, Tenant agrees to pay up to an additional One Hundred and Twenty-Five Thousand Dollars ($125,000.00), which Landlord shall apply to the cost of the Phase II and any
remediation (the “Secondary Environmental Contribution”). Landlord acknowledges and agrees that the entire Secondary Environmental Contribution shall be reimbursed to Tenant in the form of rent credits, to be applied against the monthly Net Rent payments starting with the first Net Rent payment due following the payment of any portion of the Secondary Environmental Contribution, and continuing on a monthly basis thereafter until the Secondary Environmental Contribution has been re-paid in full. For avoidance of doubt, Tenant shall be entitled to a credit of the entire Net Rent payment each month until the Secondary Environmental Contribution has been re-paid in full (with the final payment being pro-rated as may be necessary). (iv) In the event that it is reasonably determined that the costs of the Phase II and remediation shall exceed the sum of Two Hundred and Fifty Thousand Dollars ($250,000.00), Landlord agrees to pay up to an additional One Hundred and Fifty Thousand Dollars ($150,000.00) to complete such recommended remediation (the “Landlord Environmental Contribution”). (v) In the event that it is reasonably determined that the costs of the Phase II and remediation shall exceed the sum of Four Hundred Thousand Dollars ($400,000.00), either party shall have the right to terminate this Lease, on thirty (30) days advance written notice to the other party; provided, however, that such party shall not be entitled to terminate this Lease if the other party agrees to pay for any remediation costs in excess of Four Hundred Thousand Dollars ($400,000.00). In the event of a termination of this Lease as contemplated herein, by either party, Tenant shall be entitled to be reimbursed by Landlord for any and all sums paid by Tenant under the terms of this Section 21, such reimbursement to be made as soon as reasonably possible by Landlord. (b) Notwithstanding anything contained herein to the contrary, Landlord hereby acknowledges and agrees that by entering into this Lease, Tenant is not assuming any responsibility for the environmental condition of the Demised Premises existing prior to the Effective Date, or any liability related thereto. Except as specifically set forth in this Section 21 hereof, Tenant assumes no responsibility for the investigation or remediation of any environmental condition existing prior to the Effective Date at the Demised Premises. To the fullest extent permitted by law, Landlord hereby agrees to defend, indemnify and hold harmless Tenant, its officers, employees, members, agents and representatives from and against any liens, damages, losses, liabilities, obligations, settlement payments, penalties, fines, assessments, citations, directives, claims, litigation, demands, defenses, judgments, suits, proceedings, costs, disbursements and expenses of any kind or of any nature whatsoever, including, without limitation, reasonable attorneys’ fees, arising directly or indirectly from the environmental condition existing prior to the Effective Date of the Demised Premises. Landlord further acknowledges and agrees that it shall not enter into any settlement or other resolution of any environmental claim without the consent of Tenant, not to be unreasonably withheld, conditioned or delayed. (c) It is agreed by and between the parties hereto, that the Phase II shall commence promptly following the Effective Date, and each party shall cooperate with the other, and
take commercially reasonable measures to ensure that the Phase II commences as soon as possible following the Effective Date. (d) Following the Effective Date, if any Hazardous Materials (as hereinafter defined) are released, discharged or disposed of (collectively, a “Discharge”) by Tenant or its agents, servants, invitees, assignees, subtenants or employees, in violation of any applicable local, state or federal law or regulation (“Laws”), on or about the Demised Premises, Tenant shall immediately, properly and in compliance with applicable Laws clean up, remediate and remove the Hazardous Materials from the Demised Premises and any other affected property, at Tenant's expense. Tenant shall further be required to indemnify and hold Landlord, its officials, officers, agents, servants and employees harmless from and against any and all claims, demands, liabilities, losses, damages, penalties and judgments arising out of or attributable to a Discharge by Tenant or its agents, servants, employees or invitees. Any clean up, remediation and removal work shall be subject to applicable Laws. For purposes of this Agreement, the term "Hazardous Materials" shall mean, in applicable amounts, any chemical, substance, materials or waste or component thereof which is now or hereafter listed, defined or regulated as a hazardous or toxic chemical, substance, materials or waste or component thereof by any federal, state or local governing or regulatory body having jurisdiction, or which would trigger any employee or community "right-to-know" requirements adopted by any such body, or for which any such body has adopted any requirements for the preparation or distribution of a materials safety data sheet ("MSDS"). However, the foregoing provisions shall not prohibit the transportation to and from, and use, storage, maintenance and handling within the Demised Premises of Hazardous Materials customarily used in the business or activity expressly permitted to be undertaken in the Demised Premises, provided: (i) such Hazardous Materials shall be used and maintained only in such quantities as are reasonably necessary for such permitted use of the Demised Premises and the ordinary course of Tenant's business therein, strictly in accordance with applicable Law, highest prevailing standards, and the manufacturers' instructions therefore; (ii) such Hazardous Materials shall not be disposed of, released or discharged in the Demised Premises, and shall be transported to and from the Demised Premises in compliance with all applicable Laws, and as Landlord shall reasonably require; (iii) if any applicable Law requires that any such Hazardous Materials be disposed of separately from ordinary trash, Tenant shall make arrangements at Tenant's expense for such disposal directly with a qualified and licensed disposal company at a lawful disposal site (subject to scheduling and approval by Landlord), and provide written proof of proper disposal of same to Landlord; and (iv) any remaining such Hazardous Materials shall be completely, properly and lawfully removed from the Demised Premises upon expiration or earlier termination of this Lease. 22. SUCCESSORS IN INTEREST
Each and all of the covenants, agreements, obligations, conditions and provisions of this Lease shall inure to the benefit of and shall bind the successors and assigns of the respective parties hereto without modifying or suspending the provisions of Section 12 hereof.
This Lease is specifically contingent upon Tenant obtaining all required approvals (the “Approvals”) from any local, regional, state or federal agency or authority having jurisdiction over the use, operation and construction by the Tenant of the Project, including all related Project activities, as described in Exhibit B, annexed hereto and made a part hereof. For the purposes of this Section, the Approvals shall include, without limitation, final and unappealable approvals and authorizations required for: (i) the construction and operation of the Project; (ii) all related Project permits; (iii) the Tenant to use the property for the Project; (iv) SEQR environmental review and approval; (v) any re-zoning required by the Town Board; (vi) wetlands and steep slope permits required by the Planning Board (if any); (vii) Town Board Site Plan review and approval; and (viii) all variances required by the Zoning Board of Appeals (if any). In the event that Tenant determines, in its sole reasonable discretion, that it will be unable to obtain the Approvals, or that it is not economically feasible to do so, Tenant shall be entitled to terminate this Lease on written notice to Landlord. Anything to the contrary herein notwithstanding, the issuance of a Certificate of Occupancy for the primary clubhouse and dome structures shall be conclusive evidence that Tenant’s ability to terminate this Lease under the terms of this Section 23 shall cease. 24. REMEDIES ARE CUMULATIVE
Remedies conferred by this Lease upon the respective parties are not intended to be exclusive, but are cumulative and in addition to remedies otherwise afforded by the law. 25. QUIET POSSESSION
Landlord covenants that Landlord owns in fee the real property described in Exhibit A hereto, that Landlord has full right to make this Lease and that Tenant shall have quiet and peaceful possession thereof as against any adverse claim of any party, except as, and to the extent such claim shall be made as a result of any action or failure to perform any obligation by Tenant or Tenant’s agents, officers or employees. 26. ALTERATION
(a) Any structural changes, alterations or additions in or to the building which is part of the Demised Premises which may be necessary or required by reason of any law, rule, regulation or order promulgated by competent governmental authority shall be made at the sole cost and expense of Tenant. Tenant may contest the validity of any such law, rule, regulation or order, but shall indemnify and save Landlord harmless against the consequences of continued violation thereof by Tenant pending such contest. (b) Subject to receipt of any necessary approval from any agency or board having jurisdiction, Tenant shall be permitted during the Term hereof to perform any alterations and additions to the building located on the Demised Premises (including demolishing any existing structures) which it may desire. Any structures constructed by Tenant shall be confined within the property lines of the Demised Premises, and shall be compliant
with applicable building and zoning regulations. The improvements constructed on the Demised Premises by Tenant shall be and remain structurally sound. The Project shall be conducted under the supervision of a licensed architect or engineer, and shall be completed substantially in accordance with detailed plans and specifications prepared by such architect and/or engineer. Prior to commencement of the same, Tenant shall furnish Landlord with a copy of all of the plans and specifications for any structural alterations to the Demised Premises so that Landlord may verify that the provisions of this Section are being complied with. (c) Any alteration or addition to the Demised Premises shall be completed by Tenant in accordance with all applicable laws, rules and regulations. 27. 28. Intentionally Omitted LEASE: NON-TERMINABILITY
(a) All Gross Rent and Additional Rent payable hereunder, shall be paid without notice or demand and without set off, counterclaim, abatement, suspensions, deduction, or defense, it being understood and agreed that all costs, expenses, liabilities and obligations of every kind and nature whatsoever relating to the Demised Premises shall be paid by and be the responsibility of the Tenant, except as otherwise expressly provided for herein to the contrary. For avoidance of doubt, Tenant is paying its own personal taxes, but shall have no responsibility for Property taxes, except as specifically set forth herein. (b) Except as otherwise expressly provided herein and notwithstanding the provisions of Section 25 hereof, the Lease shall not terminate, nor shall Tenant have any right to terminate this Lease or be entitled to the abatement of any rent or any reduction thereof, nor shall the obligations hereunder of Tenant be otherwise affected, any present or future law to the contrary notwithstanding, by reason of: (i) Any damage to, or the destruction of, the Demised Premises, the improvements constructed thereon, or any portion thereof, from whatever cause; (ii) The prohibition, limitation, or restriction of Tenant’s use of the Demised Premises, or any portion thereof, or the interference with such use by any private person or entity; or (iii) Any other cause whatsoever, whether similar or dissimilar to the foregoing, it being the intention of the parties hereto that the Gross Rent and Additional Rent reserved hereunder shall continue to be payable in all events, and the obligations of Tenant hereunder shall continue unaffected, unless the requirement to pay or perform the same shall be terminated pursuant to an express provision of this Lease. 29. ADDITIONAL TERMINATION PROVISIONS
Anything to the contrary herein notwithstanding, the provisions below shall take precedence over any other termination provisions contained herein:
(a) Prior to the receipt of a Certificate of Occupancy, after diligent and good faith efforts to obtain same, this Lease may be terminated by the Tenant at any time on thirty (30) days written notice to the Landlord. (b) In the event that a Certificate of Occupancy has not been issued within three (3) years of execution of this Lease after diligent and good faith efforts to obtain same by Tenant, the Landlord may provide Tenant with one hundred eighty (180) days written notice of its intention to terminate this Lease. In the event Tenant has failed to obtain all required approvals for the Project within said one hundred eighty (180) days, this Lease shall terminate, unless within ten (10) days prior to such termination, Tenant agrees to commence making Gross Rent and Additional Rent payments required under the terms of the Lease. (c) This Lease may be terminated by the Town on ninety (90) days written notice in the event the Tenant has clearly abandoned its effort to obtain all required approvals for the project, unless prior to the expiration of said ninety (90) days, Tenant provides written confirmation that it has not abandoned such efforts. (d) Provided Tenant is current in payments due Landlord (beyond any applicable grace and/or cure period) and not in default, upon the expiration, or earlier termination, of this Lease, Tenant shall be obligated to remove its property including, but not limited to, any turf, dome, fixtures, equipment, as well as all other removable structures related to the business of Tenant. 30. GENERAL CONDITIONS
(a) Time is of the essence of this Lease. (b) No waiver of any breach of the covenants, agreements, obligations and conditions of this Lease to be kept or performed by either party hereto shall be construed to be a waiver of any succeeding breach of the same or any other covenant, agreement, obligation, condition or provision hereof. (c) The use herein of any gender or number shall not be deemed to make inapplicable the provision should the gender or number be inappropriate to the party referenced. (d) Landlord and Tenant have negotiated this Lease, have had the opportunity to be advised respecting the provisions contained herein and have had the right to approve each and every provision hereof; therefore, this Lease shall not be construed against either Landlord or Tenant as a result of the preparation of this Lease by or on behalf of either party. (e) This Lease may be executed in any number of counterparts, any of which may be executed and transmitted by facsimile or other electronic method, and each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 22 08/11/2012
(f) This Lease constitutes the entire agreement of whatsoever kind or nature existing between the parties respecting the subject matter hereof, and neither party shall be entitled to any benefits other than those specified herein. As between the parties, no oral statements or prior written material not specifically incorporated herein shall be of any force and effect; the parties specifically acknowledge that in entering into and executing this Lease, the parties rely solely upon the representations and agreements contained in this Lease and no others, and that this Lease supersedes all prior contracts, agreements and understandings, whether written or oral. No changes or amendments to this Lease shall be recognized unless and until made in writing and signed by the parties hereto. (g) The provisions of this Lease are severable. If a court of competent jurisdiction rules that any provision of this Lease is invalid or unenforceable, such provision may be replaced by such court by another provision which is valid and enforceable and most closely approximates and gives effect to the intent of the invalid or unenforceable provision. Furthermore, such ruling shall not affect the validity or enforceability of any other provision of this Lease. (h) Landlord and Tenant each represent and warrant to the other that it has dealt with no broker or agent who negotiated or was instrumental in negotiating or consummating this Lease. Neither party knows of any real estate broker or agent who is or might be entitled to a commission or compensation in connection with this Lease. Landlord and Tenant shall each defend, indemnify and hold the other harmless from and against any, all and every demand, claim, assertion of liability, or action arising out of any claims asserted against the other party by brokers or agents claiming through the other party. [Balance of page intentionally left blank. Signatures follow.]
IN WITNESS WHEREOF, upon the day and year first hereinabove written, the respective parties hereto have executed these presents, consisting of: Sections 1-30 and Exhibits A and B personally or by officers or agents thereunto duly authorized.
GAME ON 365, LLC
TOWN OF GREENBURGH
By: Vito Galasso Its: Managing Member
By: Paul J. Feiner Its: Supervisor
[Signature page to Lease Agreement]
DESCRIPTION OF DEMISED PREMISES
DESCRIPTION OF PROJECT The Westchester Field House will include an approximately fifteen thousand (15,000) square foot Clubhouse attached to an approximately ninety-four thousand (94,000) square foot air structure with an outdoor field at the rear of the site. The air structure will house eight (8) small sided turf playing fields, and an additional area for non-turf activities. The wide array of organized sports activities to be offered by The Westchester Field House includes, but is not limited to, except as otherwise specifically set forth in the Lease: soccer, lacrosse, volleyball, basketball, field hockey, baseball, softball, futsal, and track. The athletic fields will offer activities such as, but not limited to, sports clinics, instructional programs, camps, parties, leagues, field rentals and sports related events. The Clubhouse will include a lobby, two (2) stairwells, elevator, large viewing area, two (2) party/conference rooms connected to a game room, pro-shop, cafe, two (2) or three (3) retail spaces sharing up to three thousand (3,000) square feet and one (1) larger retail space currently reserved for a physical therapy practice. The businesses for the retail spaces would be limited to complimentary businesses such as yoga, pilates and other fitness related activities.
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