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LEASE AGREEMENT
1. PARTIES
This Agreement made this day ofMarch 2018 by and between BUTTERNUT REAL
ESTATE CORPORATION (acorporation formed under thelaws ofthe State of New York) with
"Landlord"
offices located at5081 Pine Valley Drive, Fayetteville,N.Y. 13066, (the hereafter) and PHP
WIRELESS, INC. (adomestic profit corporation formed under the laws of the Stateof Michigan) with
"Tenant"
offices located at3827 South Westnedge Avenue, Kalamazoo, Michigan 49008 (the hereafter).
2. TENANT REPRESENTATIONS
The person executing this Lease on behalf of the Tenant covenants, represents and
warrants that Tenant isa domestic profit corporation formed under the laws of the State of
Michigan, is ingood standing and is authorized to do business in the State of New York. The
person executing this Lease on behalf of the Tenant further covenants, represents and warrants
person"
that he is an "authorized within the meaning of New York State Business Corporation
Law §102(a)(1) and is duly authorized to execute, acknowledge and deliver this Lease to
Landlord on behalf of the Tenant. Tenant will provide Landlord with a corporate resolution
evidencing the same upon execution of this Lease.
3. LEASED PREMISES
Lessor leases to Lessee and Lessee lease from Lessor a unit being approximately 2,060
"Premises"
sq. ft.(the hereinafter") located at 500 Butternut Plaza, Syracuse, New York 13208
"Subway"
and currently occupied by a tenant operating a restaurant therein utilizing the name
restaurant.
4. TENANT'S USE
The Premises are tobe used and occupied by the Tenant only for use as a cellulartelephone store
and for the incidental sale ofall itemstypically related thereto, subjectto allapplicable local,state,and
federal rules,regulations, ordinances, statutes and laws pertaining theretoand upon theterms, conditions
and covenants contained in thisLease.
5. TERM
The term of this Lease shall be for a period of 5 (five)years beginning May 1, 2018 and to end
on April 30, 2023.
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6. BASE RENT
Throughout the remaining term of thisLease, Tenant shallpay Landlord a fixed annual rentalin
equal monthly installments as follows:
PERIOD BASE MONTHLY RENT ANNUAL RENT
5/1/201844/30/2023 $2,575.00 $30,900.00
All payments shall be made inadvance, without previous demand therefore. All rentshall be
paid on or before the fifthof each month and shall be mailed no later than thefirstday ofeach month to
"Butternut 13104."
Real Estate Corporation, P.O. Box 120, Manlius, New York If saidmonthly rentis
not received by theLandlord on orbefore the fifthday of each month, Tenant agrees to pay Landlord a
latecharge as provided inbelow.
7. TAXES
The Landlord shallpay all taxes orassessments which may be levied,assessed, or charged
against the shopping center including the demised premises.
8. SECURITY DEPOSIT/ FIRST MONTH'S RENT
Tenant shallpay to the Landlord a security deposit inthe amount of $2,575.00 (two thousand
fivehundred seventy fivedollars) upon theexecution of thisLease. This deposit will be for the faithful
performance of the terms of thisLease by Tenant. This deposit shallnot bear interest during the term of
thisLease, nor shall Landlord be responsible for the payment of interestto Tenant atany time. Upon
termination of thisLease and return of the Premises, Landlord shall return said securitydeposit to Tenant
provided that Tenant isnot then in default ofany ofthe terms and conditions contained in thisLease.
Tenant shallpay to Landlord an additional $2,575.00 (two thousand fivehundred seventy five
dollars)representing the firstmonth's rent (for the month of May 2018) upon execution of thisLease.
9. UTILITIES AND RELATED SERVICES
Tenant shall make allarrangements forand pay for allutilities
and servicesfurnished toor used
by it,including, without limitation,gas,electricity,water, telephone services,janitorialservices, rubbish
removal and for allconnection charges and shall cause said services tobe placed inthe Tenant's name
only (and/or separately metered) upon execution of thisLease and prior to taking possession of the
Premises.
10. MAINTENANCE AND REPAIRS
At alltimes during the term ofthis Lease, Tenant shallmaintain the Premises infirstclass
"maintain"
condition and repair at itssole cost and expense. As used in thisparagraph, theterm shall
include; any necessary repairsto theleased Premises which are ofa non-structural nature, allnecessary
rephe=ênts, renewals, alterations, paintingand additions to theinternal portion of the Premises
including, but not limited to floors,floor coverings, walls,ceilings,doors, windows, lightingfixtures,
plumbing, sewer lines,heating, airconditioning, electricaland all appliances. All repairs and
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maintenance performed by Tenant shallbe at leastequal in qualityand class tothe original work.
At the end of the term, Tenant shall peacefully quit and surrender said Premises including the
exposed plumbing, lighting fixtures,fuïñituic, fixturesand equipment located in thePremises in first
class condition and repair, ordinary wear and tear only excepted. Itshall be Tenant's responsibility,at its
cost,to repair, or replace any such items which become inoperable or broken during the term of this
Lease (otherthan items that become inoperable orbroken due tothe Landlord's act). IfTenant to
fails
leave the aforementioned items in such condition, Landlord may repair and/or replace any of such items
not leftin such condition and charge theTenant therefor. Any charge made by Landlord for such
replacement and/or repair shall be paid by Tenant within ten (10) days after receiptof the invoice
therefor.
During the term of the Lease,the Landlord shall be responsible for allreasonably necessary
maintenance and repairs to the roofarea, structure,foundation, exterior and outside walls of thebuilding
within which the Premises are located,as deemed necessary by the Landlord.
11. ALTERATIONS, IMPROVEMENTS AND FlXTURES
Tenant shall not make any alterations or additions to Premises without the Landlord's prior
written approval and consent, which consent shallnot be unreasonably withheld. In the event that Tenant
desires to make any such alterationsor additions, Tenant's request toLandlord for permission to do the
same shallbe accompanied by detailedplans and specifications prepared by a licensed architector
engineer, estimated costs ofthe proposed alterations and the identityof any contractors to perform the
work. Landlord shall have ten (10) days to review the request (togetherwith any supporting documents)
and to indicate itsapproval orthe lack thereof. Any alterations or additions made by the Tenant shallbe
atthe Tenant's sole cost and expense.
Any improvements towhich Landlord consents must be done in a good and workmanlike manner
and in compliance with all,local,stateand federal codes and shallbe at leastequal in qualityand classto
the construction existing at the commencement of this Lease and consistentwith thecharacter, integ1ity
and design thereof.
Trade Fixtures and Personal Propedy
Upon the expiration or sooner termination of thisLease, Tenant shallremove allof itstrade
fixtures and other personal property from the Premises and shall promptly repair any damage caused to
the Premises or tothe building by such removal. Ifthe Tenant failsto so remove any tradefixtures or
other personal property of Tenant prior to vacating the Premises, such fixturesand/or otherpersonal
property shall be deemed abañdoñed by Tenant and shallbecome the property of Landlord or,at
Landlord's option, Landlord may cause the fixturesor personal property to be removed atTenant's
expense.
With the exception of tradefixtures and personal property (both ofwhich are addressed inthe
preceding paragraph) Tenant shallrestore the Premises to the condition priorto Tenant's alterationsor
improvements atTenant's sole cost and expense, by the lastday ofthe term, or within thirty (30) days
afternotice of electionisgiven, whichever islater. IfTenant failstoso restore the Premises, Landlord
may restore the Premises and charge the Tenant therefor. Any charge made by Landlord for such
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restoration shall be paid by Tenant within ten (10) days afterreceipt of the invoice therefor.
12. MECHANICS LIENS
Tenant shallkeep the building, common areas ofthe shopping plaza,other improvements and land
surrounding the Premises freeand clearof allmechanic's liens resulting from construction and/or
alterationsand improvements done by or forTenant. Any mechanic's liensor order for thepayment of
money filedagainst the building, other improvements and the land of which thePremises are a partfor
work claimed tohave been done for,or for materials claimed tohave been furnished to the Tenant shall
be discharged by Tenant within twenty (20) days afterfiling ofsuch mechanic's lienby bonding as
required by law orin any other lawful manner.
13. INSURANCE
Tenant, atitscost, shallmaintain public liabilityand property damage insurance with liability
limitsof not less than $2,000,000 per person and $2,000,000 per occurrence, insuring againstall liability
of Tenant and itsauthorized representatives and customers arising out ofand inconnection with Tenant's
use and occupancy of the Premises. Butternut Real Estate Corporation, Pavone Asseciates, Angelo
Pavone, Frank Pavone and Tenant shallspecifically be named as co-insureds and such insurance policy
shall contain a waiver of subrogation againstthem. Said policy shallalso contain an agreement by the
insurer thatsuch the policy shall not be terminated, cancelled orreduced in coverage without at least
thirty (30) days prior written notice to Landlord. Tenant shallprovide Landlord with a certificateof
insurance (consistent with the above-referenced terms) upon execution of thisLease and prior totaking
possession of the Premises. Thereafter, Tenant shall continue to provide Landlord with additional
certificatesof insurance so as todemonstrate continuous coverage throughout the term of thisLease.
Throughout the term of thisLease, Tenant shallcarry plate glass insurance at Tenant's sole cost.
14. GOVERNMENTAL COMPLIANCE
Tenant shallcomply with allstatutes,ordinances, rules, orders,codes, regulations and
requirements of the federal,state and local governments, and of any and alltheir departments and
bureaus applicable to said Premises orto the Tenant's occupation and/or use thereof, forthe correction,
prevention, and abatement of nuisances, or othergrievances, and in allother respects,in,upon, or
connected with said Premises or the use thereof during said term,at itsown costand expense; and shall
also promptly comply with and execute alllaws, rules, orders, codes,and regulations of the New York
Board of FireUnderwriters, the Fire Insurance Exchange, the City of Syracuse, County of Onondaga,
State ofNew York and federal government and of each and every department, bureau and officialthereof
for theprevention of fires,at itsown cost and expense, and Tenant shall comply with the Labor Law of
the State ofNew York and the rules,regulations, directivesand orders of theDepartment of Labor atits
own cost and expense.
15. ASSIGNMENT
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Tenant shall not voluntarily assign or encumber itsinterest inthis Lease or in theLeased
Premises, orsublease allor any part of thePremises, or allow any other person orentity to occupy oruse
allor any part of the Premises, without firstobtaining Landlord's written consent, which consent willnot
be unreasonably withheld. Any assignment, encumbrance, or sublease, without Landlord's written
consent shallbe voidable atLandlord's election,and shallconstitute a default.No consent toany
assiganient, encumbrance or sublease shallconstitute a furtherwaiver of the provisions of thisparagraph.
Any dissolution, merger, consolidation, or otherreorganization of Tenant (whether in the context
of a bankruptcy proceeding or otherwise), or thesale or other transferof a controlling percentage of
percentage"
Tenant, shall be deemed a voluntary assignment. The phrase "controlling means the
ownership of more than 50% (fiftypercent) ofTenant.
16. DEFAULT
An occurrence of any of the following shall constitute a defaultby Tenant ifnot cured within 7
(seven) days after written notice from the Landlord:
(a) Failure to pay rent when due as hereinabove provided.
(b) Abandonment and vacation of the Leased Premises
(failureto occupy and operate the Leased Premises for
consecutive days shall be deemed an abandon-
twenty (20)
ment and vacation).
(c) Use ofthe Premises for a purpose other than the one specified in 14,above.
(d) Failureto perform any other provisions of thisLease.
In the eventof any default by the Tenant, theLandlord may cure the default, inwhich case any
costs and expenses (including but not limited to reasonable attorney'sfees of $175 per hour and court
costs) incurred by Landlord therefore shall be deerúéd additionalrent, and Landlord may lawfully enter
the Premises and repossess thesame and may dispossess and remove there from any and alloccupants
and their effects,without being liablefor any prosecution or damages therefore, and without prejudice to
any other remedies which Landlord may have for arrearsof rent orother breach of covenant. Upon entry
by Landlord under the provisions of thissection, thisLease shallterminate. The Tenant covenants that
notwithstanding any entry orreentry by Landlord, whether by summary proceeding, termination or
otherwise, in case of termination under thissection, the Tenant willinciemnify Landlord against allloss
of rentwhich Landlord may incur by reason of the termination during the residue of the term.
Suit or suitsfor recovery of any loss or deficiency of rent or damages, orfor any installment or
installments of rent oradditional rent payable hereüüder, or for a sum equal to any such installment or
installments, may be brought by theLandlord atonce orfrom time to time atLandlord's election, and
nothing contained in thisLease shall be deemed to require Landlord to await the date whereon thisLease
or the term hereof would have expired by limitation had there been no such default by the Tenant or no
such cancellation or termination.
No failure by Landlord to insistupon the strictperformance ofany covenant, agreement, term, or
condition of thisLease or toexercise any right or remedy consequent upon a breach thereof, and no
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acceptance of fullor partialrent oradditional rent during the continuance of any such breach,shall
constitutea waiver of any such breach or of any such covenant, agreement, term or condition.
In theevent of any breach by the Tenant ofany ofthe covenants, agreements, terms or conditions
contained in thisLease, the Landlord shall be entitledto enjoin the breach and shallhave the right to
invoke any right and remedy allowed at law or in equity by statueor otherwise. Each rightand remedy
of Landlord provided for inthis Lease shallbe cumulative and shall be in-n addition to every other right
or remedy provided for inthis Lease or now or hereafter existingatlaw or inequity, by statue or
otherwise. Tenant agrees that itshall pay Landlord for allreasonable attorney fees(of $175 per hour),
court costsand other reasonable expenses incurred by the Landlord in enforcing and/or defending any
action or proceeding by reason of any default by Tenant.
As a further inducement tothe Landlord to make thisLease and in consideration thereof, Landlord and
Tenant covenant and agree that in any action or proceeding brought by either Landlord or Tenant against
the other on any matters whatsoever arising out,under, or by virtue ofthe terms ofthis Lease, Landlord
and Tenant shall and do hereby waive trial
by jury. In addition,Tenant hereby expressly waives any
rightof redemption as the same may be provided by statute,law, rule,regulation or otherwise.
17. SUBORDINATION
This Lease and all therights of the Tenant hereunder are and shall be subject and subordinate to
the lienof any mortgage or mortgages which may now or hereafter affectthe Premises orany partthereof
or the building of which the Premises are a part,and toall renewals, modifications, consolidations,
replacements and extensions thereof, provided however that such mortgage or mortgages shall provide
that inany foreclosure proceeding thereunder, and any sale under the encumbrance or deed given inlieu
of foreclosure, thisLease shallnot be cut off nor Tenant's position hereunder disturbed in orby such
foreclosure proceeding, provided that at thetime thisLease shallbe in fullforce and effect and not in
default as to rentor other covenants thereof. Tenant agrees that itwill,upon demand, execute and
deliver such instruments as necessary to effectmore fully such subordinations of thisLease tothe liens
of any such mortgage or mortgages thatshall be desired by any mortgage or proposed mortgagee and in
the event of the failureof the Tenant to execute such instruments, the Tenant hereby nominates and
appoints the Landlord as itsattorney-in-fact for thepurpose of executing any such instrument of
subordination.
18. INSPECTION BY LANDLORD
The Landlord shall at allreasonable times have access to the aforesaid Premises for the
purpose of examining the same, of making necessary repairs, or for the purpose of showing the
Premises for renting or sale, and for a period of at least six months prior to the expiration of the
Lease shall have the right to post notices upon the exterior of the Premises offering the same for
rental. Landlord shall have the right at any time to post notices upon the exterior of the building
or other parts of the property offering the entire building for sale or offering other spaces for rent.
19. QUIET ENJOYMENT
Landlord covenants that upon Tenant paying theabove specified rent and performing and
complying with allterms, covenants aforesaid, the Tenant shalland may peaceably have, hold and enjoy
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the Premises for theterm aforesaid.
20. INDEMNIFICATION
To the extent allowed by law, the Tenant shallindemnify and hold the Landlord harmless (and
defend Landlord against) any and allclaims, costs,expenses, loss
liabilities, or damage arisingout of or
in connection with Tenant's oceüpâñcy ofthe Premises including but not limited to the Tenant's conduct
or management ofbusiness inor upon the Premises orresulting from the Tenant's failureto comply with
any of the covenants, terms and conditions herein contained. The provisions ofthis paragraph shall
apply to acts oromissions of or by the Tenant, and theTenant's contractors, licensees,agents, servants
and employees. The provisions of thisparagraph shall not apply to any claims, costs,expenses,
loss
liabilities, or damage resultingsolely from Landlord's own negligence or willful misconduct.
21. HOLD OVER
Should the Tenant contiñüe to occupy the Premises afterthe expiration of thesaid term oraftera
forfeitureincurred, whether with or against the consent of the Landlord, such tenancy shallbe from
month to month, and in no event from year toyear, or from term toterm, and such month to month
tenancy shallbe under allthe terms, conditions and covenants of thisLease. In theevent that theTenant
does continue to occupy the Premises afterthe expiration of the saidterm, without the consent of the
Landlord, the monthly rent willbe increased by fiftypercent (50%) without further notice and shall
payable under the same terms and conditions as previously setforth in thisLease.
22. NOTICES/ SERVICE OF PROCESS
Except as otherwise provided herein, allnotices required or agreed to be given hereunder by
either partyshall be in writing and shallbe sent by certified mail, returnreceipt requested and addressed
as follows:
For Landlord For Tenant
Pavone Associates PHP Wireless, Inc.
P.O. Box 120 500 Butternut Street
Manlius, New York 13104 Syracuse, New York 13208
Service of Process
Tenant hereby appoiñts any of itsemployees or members present at thePremises as agents forthe service
of process. This paragraph shallnot limit Landlord's other options forservice of process under the New
York State Law.
23. DAMAGE AND DESTRUCTION
Ifthe Premises are totallyor partiallydestroyed, by fire orother cause, Landlord shall have the
option of eitherrepairing or demolishing the Premises athis sole discretion. Ifthe Premises are damaged
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without the faultor neglect of Tenant or of Tenant's agents,employees, visitors or customers and
Landlord electsto repair the Premises, rent shallbe apportioned according to thatpercentage of the
Premises which are useableby Tenant until repairs are complete. Ifthe Premises are damaged without the
faultor neglect of Tenant or of Tenant's agents, employees, visitors or customers and Landlord electsnot
to repairthe Premises, the Lease shall immediately cease and come to an end upon notice to theTenant
as provided below and Tenant shallvacate the Premises and surrender same toLandlord. IfTenant isnot
in defaultof theLease atthat time,Tenant's liabilityfor rentshall cease upon the day the
following
casualty.
Ifthe Premises are damaged due to faultor neglect of Tenant or of Tenant's agents, employees or
customers and Landlord elects to repairthe Premises, Landlord may repair the Premises without
prejudice to any of itsother rightsof and remedies and without prejudice to the rightsof subrogation of
Landlord's insurer, and there shallnot be any reduction ofrent. If the Premises are damaged due to fault
or neglect of Tenant or of Tenant's agents, employees or customers and Landlord elects not torepair the
Premises, and Tenant isnot in default of the Lease at thattime, Tenant's liabilityforrent shall cease
upon the Tenant receiving written notice from the Landlord that itelectsnot to repairthe Premises (as
provided below), without prejudice to any of Landlord's other rights of and remedies and without
prejudiceto the rightsof subrogation of Landlord's insurer.
In the event ofany damage listedin the preceding paragraphs, Landlord will give notice of its
decision to repairor not repairthe Premises to Tenant within 45 days of the damage. Itis understood that
no penalty shallaccrue forLandlord's reasonable delay inrepairing Premises provided thatifsuch repair
isnot complete within four (4)months ofthe date of the damage, Tenant may terminate thisLease upon
ten (10) days written notice to Landlord. In determining what constitutesreasonable delay,consideration
shall be given to delays caused by strikes,adjustment of insurance and other causes beyond Landlord's
control.
Itis understood that inno event willLandlord be obligated toexpend any sums inaddition to the
proceeds of any insurance policy maintained by Landlord for thePremises. Regardless of whether the
Premises are partiallyor totallydestroyed, by fireor otherwise, Landlord shallnot be required torestore
or be liablefor any damaged or destroyed merchandise, personal property, furniture or tradefixtures
installedby or belonging toTenant (or her agents or employees), itbeing expressly agreed that such loss
willbe borne by the Tenant.
24. LATE CHARGE
Any rent or additional rentnot received by Landlord on or before the 5th of each month shallbe
deemed late.Tenant agrees to pay Landlord, in addition to saidrent, a latecharge in the amount of five
percent (5%) of theoverdue amount.
25. LIABILITY
Landlord shall not be liablefor any failureof water orgas supply or electricalcurrent,nor for
injury or damage to personal property caused by the elements orby other tenants or persons in the
building, or resultingfrom steam, gas, electricity,water, rainor snow, which may leak or flow from any
part ofsaid building, including theroof, or from the pipes, appliances or plumbing works of the same, or
from thestreet,parking lotor subsurface, or from any other place, norfor interference with any other
incorporeal hereditament by anyone, orcaused by operations by or fora governmental authority in
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construction of any public or quasipublic work.
26. SIGNS
No sign, advertisement, notice orother letteringshall be exhibited, inscribed,painted oraffixed
by the Tenant on any partof the Premises (otherthan the interiorthereof) or the building of which the
Premises are a partwithout the priorwritten approval and consent ofthe Landlord, which consent shall
not be unreasonably withheld. Tenant, atitssole cost and expense shall comply with all,local,stateand
federal laws and regulations and obtain any approvals or permits relatingto signs. Tenant shall have the
rightto installwindow signs as required by Boost Mobile provided signsare permitted by the local
municipality.
27. NON-WAIVER
No act or conduct by Landlord, including, without limitation,the acceptance ofthe keys to the
Leased Premises, shall constitute an acceptance ofthe surrender ofthe Leased Premises by Tenant before
the expiration of theterm. Only a written notice from Landlord to Tenant shallconstitute acceptance of
the surrender of the Leased Premises and accomplish a termination of the Lease.
Landlord's consent or approval of any act by Tenant requiring Landlord's consent orapproval
shallnot be deemed to waive or render unnecessary Landlord's consent to orapproval of any subsequent
act by Tenant.
Any waiver by Landlord of any defaultmust be in writing and shallnot be a waiver of any other
default concerning the same or any other provision of thisLease.
28. CONDEMNATION
Should the land upon which orthe building within which the Premises are located or any part
thereof be condemned for publicuse, then,in such event, upon the taking of thesame for such public use,
thisLease, at theoption of the Landlord, shall become null and void, and theterm shallcease and come
to an end upon the date when the same shallbe taken and the rent shall be apportioned as of saiddate.
Tenant shall assign allrights to and allmonies received by Landlord forany part of the award or
recovery, for thevalue of the leasehold damages, or otherwise, and Landlord shallreceive the full
amount thereof. Tenant shall,however, be entitledto any award that isspecificallyallocated to cost of
relocation, business interruption, orany other damage other than the value of the leasehold interest.
29. MODIFICATION OF LEASE AGREEMENT
Neither thisagreement nor any provision hereof shall be amended or modified or deemed
amended or modified, except by agreement inwriting duly subscribed and acknowledged with the same
formality as thisagreement, except as expressly provided herein.
30. ADDITIONAL RULES
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The Tenant shall comply with the rules and regulations hereinafter set forth. Landlord shallhave
the right from time to time topromulgate reasonable amendments and reasonable additional rulesand
regulations for the safety,care and cleanliness of Premises, the building inwhich the Premises are
located and all common areas, orfor the preservation of good order. On delivery of a copy ofsuch
amendments and additional rules and regulations, and a violation of any of them shallconstitute a default
by Tenant under thisLease.
The rulesand regulations are as follows:
(a) Tenant and itsauthorized representatives and customer/
invitees shallnot loiterin the parking or other common
areas the Tenant has the rightto use. They shallin no way
obstruct the pedestrian passage-
sidewalks, entry passages,
ways, driveways, entrances and exits;they shalluse them
only as ingress to and egress from thePremises and/or the
parking lot.The placing of any sign or other object in any ofthe
common areas shallbe considered an obstruction within the meaning
of thisparagraph.
(b) Tenant and itsauthorized representatives and customers/
invitees shallnot make or permit any noise in oroutside
the building of which the Premises are a partthat is
annoying, unpleasant ordistasteful,or interferein any way
with other tenants or those having business with them.
(c) Tenant and itsauthorized representatives and customers/
invitees shallnot use the parking areas foranything but
parking motor vehicles as permitted herein. All motor
vehicles shall be parked inan orderly manner and in no event shall
said vehicles remain in theparking area overnight.
31. SINGULAR-PLURAL
When required by the context of thisLease, the singular shallinclude the plural and the plural
shallinclude the singular.
32. SEVERABILITY
The unenforceability, invalidity orillegalityof any provision of thisLease shall not render the
other provisions unenforceable, invalid or illegal.
33. GOVERNING LAW
This Lease shall be constructed and interpreted in accordance with the laws of the Stateof New
York and the venue for any legalproceedings shall be Onondaga County, New York.
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34. SUCCESSORS
This Agreement shallbe binding upon and inure to thebenefit of the partieshereto and their
respective heirs,executors, administrators, legal representatives, successors and assigns.
35. AS IS CONDITION
Tenant is fullyfamiliar with the size and physical condition of the Premises, the building, the
is"
improvements, fixturesand equipment described inthis Lease, and Tenant takes the Premises in "as
condition. The Tenant acknowledges thatthe square footage listedabove isan approximate square
footage and that should the actualsquare footage of thePremises be different than thatlisted above, this
willnot relieve Tenant from it'sobligations under thisLease including the obligation to pay base rent
and additional rent inthe amounts outlined herein. The Tenant acknowledges that Landlord has made no
representations whatsoever in connection with the condition of the Premises or ofthe building,
improvements, fixturesor equipment, and Landlord shallnot be liable for any latentor patent defects
therein.
Tenant accepts the Premises as being ingood and sanitarycondition and in good repair with all
mechanical systems inworking order. Tenant agrees on the lastday of the term of thisLease, orits
earliertermination, to surrender Premises inthe same condition as received,ordinary wear and tear
excepted.
36. LIMITATION ON LANDLORD'S LIABILITY
Itis understood and agreed that Tenant shall look solely tothe estate and property of Landlord in
Butternut Plaza for the satisfactionof Tenant's remedies for thecollection of a judgment (or other
judicial process) requiring the payment of money by Landlord inthe event of any default or breach by
Landlord with respect to any of the terms, covenants and conditions ofthe Lease tobe observed or
performed by Landlord, and any other obligation of Landlord created by or under this Lease, and no
other property or assets of Landlord or ofitspartners, beneficiaries, co-tenants,shareholders, members,
or principals (as the case may be) shallbe subject to levy,execution, orother enforcement procedures for
the satisfaction ofTenant's remedies. In no event shall Tenant name Landlord's partners,members,
beneficiaries,co-tenants, shareholders or principals to any suitor other proceeding to which Tenant
and/or Landlord are a party arising out of orrelating to thisLease, unless the naming of such partners,
members, beneficiaries,co-tenants, shareholders or principals isrequired in order to permit the Tenant to
obtain jurisdiction over Landlord herein.
The term Landlord as used in paragraph and throughout thisLease shall be limited to mean and
include only the owner or owners at thetime in question of Landlord's interest in thisLease. Further, in
the event of any transfer by Landlord of Landlord's interestin thisLease, Landlord herein named (and in
case of any subsequent transfers or conveyances, the then assignor), including itspartners,beneficiaries,
co-tenants, shareholders, members, or principals (asthe case may be), shallbe automatically freed and
relieved, from and after the date of such transferor conveyance, of all for
liability theperformance of any
covenants and agrcaments on the part ofLandlord.
37. COMMON AREAS
- 11 -
FILED: ONONDAGA COUNTY CLERK 08/30/2021 11:14 AM INDEX NO. 007625/2021
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/30/2021
Landlord shall,at itscost,maintain the Common Areas and Tenant shall contributeto thecost of
maintaining Common Areas as provided below. Tenant's contribution to Common Area costs shallbe in
Areas"
addition to Tenant's obligation to pay Base Rent as outlined above. The term "Common means
allareas and facilities
Preview
FILED: ONONDAGA COUNTY CLERK 08/30/2021 11:14 AM INDEX NO. 007625/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/30/2021 LEASE AGREEMENT 1. PARTIES This Agreement made this day ofMarch 2018 by and between BUTTERNUT REAL ESTATE CORPORATION (acorporation formed under thelaws ofthe State of New York) with "Landlord" offices located at5081 Pine Valley Drive, Fayetteville,N.Y. 13066, (the hereafter) and PHP WIRELESS, INC. (adomestic profit corporation formed under the laws of the Stateof Michigan) with "Tenant" offices located at3827 South Westnedge Avenue, Kalamazoo, Michigan 49008 (the hereafter). 2. TENANT REPRESENTATIONS The person executing this Lease on behalf of the Tenant covenants, represents and warrants that Tenant isa domestic profit corporation formed under the laws of the State of Michigan, is ingood standing and is authorized to do business in the State of New York. The person executing this Lease on behalf of the Tenant further covenants, represents and warrants person" that he is an "authorized within the meaning of New York State Business Corporation Law §102(a)(1) and is duly authorized to execute, acknowledge and deliver this Lease to Landlord on behalf of the Tenant. Tenant will provide Landlord with a corporate resolution evidencing the same upon execution of this Lease. 3. LEASED PREMISES Lessor leases to Lessee and Lessee lease from Lessor a unit being approximately 2,060 "Premises" sq. ft.(the hereinafter") located at 500 Butternut Plaza, Syracuse, New York 13208 "Subway" and currently occupied by a tenant operating a restaurant therein utilizing the name restaurant. 4. TENANT'S USE The Premises are tobe used and occupied by the Tenant only for use as a cellulartelephone store and for the incidental sale ofall itemstypically related thereto, subjectto allapplicable local,state,and federal rules,regulations, ordinances, statutes and laws pertaining theretoand upon theterms, conditions and covenants contained in thisLease. 5. TERM The term of this Lease shall be for a period of 5 (five)years beginning May 1, 2018 and to end on April 30, 2023. FILED: ONONDAGA COUNTY CLERK 08/30/2021 11:14 AM INDEX NO. 007625/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/30/2021 6. BASE RENT Throughout the remaining term of thisLease, Tenant shallpay Landlord a fixed annual rentalin equal monthly installments as follows: PERIOD BASE MONTHLY RENT ANNUAL RENT 5/1/201844/30/2023 $2,575.00 $30,900.00 All payments shall be made inadvance, without previous demand therefore. All rentshall be paid on or before the fifthof each month and shall be mailed no later than thefirstday ofeach month to "Butternut 13104." Real Estate Corporation, P.O. Box 120, Manlius, New York If saidmonthly rentis not received by theLandlord on orbefore the fifthday of each month, Tenant agrees to pay Landlord a latecharge as provided inbelow. 7. TAXES The Landlord shallpay all taxes orassessments which may be levied,assessed, or charged against the shopping center including the demised premises. 8. SECURITY DEPOSIT/ FIRST MONTH'S RENT Tenant shallpay to the Landlord a security deposit inthe amount of $2,575.00 (two thousand fivehundred seventy fivedollars) upon theexecution of thisLease. This deposit will be for the faithful performance of the terms of thisLease by Tenant. This deposit shallnot bear interest during the term of thisLease, nor shall Landlord be responsible for the payment of interestto Tenant atany time. Upon termination of thisLease and return of the Premises, Landlord shall return said securitydeposit to Tenant provided that Tenant isnot then in default ofany ofthe terms and conditions contained in thisLease. Tenant shallpay to Landlord an additional $2,575.00 (two thousand fivehundred seventy five dollars)representing the firstmonth's rent (for the month of May 2018) upon execution of thisLease. 9. UTILITIES AND RELATED SERVICES Tenant shall make allarrangements forand pay for allutilities and servicesfurnished toor used by it,including, without limitation,gas,electricity,water, telephone services,janitorialservices, rubbish removal and for allconnection charges and shall cause said services tobe placed inthe Tenant's name only (and/or separately metered) upon execution of thisLease and prior to taking possession of the Premises. 10. MAINTENANCE AND REPAIRS At alltimes during the term ofthis Lease, Tenant shallmaintain the Premises infirstclass "maintain" condition and repair at itssole cost and expense. As used in thisparagraph, theterm shall include; any necessary repairsto theleased Premises which are ofa non-structural nature, allnecessary rephe=ênts, renewals, alterations, paintingand additions to theinternal portion of the Premises including, but not limited to floors,floor coverings, walls,ceilings,doors, windows, lightingfixtures, plumbing, sewer lines,heating, airconditioning, electricaland all appliances. All repairs and - 2 - FILED: ONONDAGA COUNTY CLERK 08/30/2021 11:14 AM INDEX NO. 007625/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/30/2021 maintenance performed by Tenant shallbe at leastequal in qualityand class tothe original work. At the end of the term, Tenant shall peacefully quit and surrender said Premises including the exposed plumbing, lighting fixtures,fuïñituic, fixturesand equipment located in thePremises in first class condition and repair, ordinary wear and tear only excepted. Itshall be Tenant's responsibility,at its cost,to repair, or replace any such items which become inoperable or broken during the term of this Lease (otherthan items that become inoperable orbroken due tothe Landlord's act). IfTenant to fails leave the aforementioned items in such condition, Landlord may repair and/or replace any of such items not leftin such condition and charge theTenant therefor. Any charge made by Landlord for such replacement and/or repair shall be paid by Tenant within ten (10) days after receiptof the invoice therefor. During the term of the Lease,the Landlord shall be responsible for allreasonably necessary maintenance and repairs to the roofarea, structure,foundation, exterior and outside walls of thebuilding within which the Premises are located,as deemed necessary by the Landlord. 11. ALTERATIONS, IMPROVEMENTS AND FlXTURES Tenant shall not make any alterations or additions to Premises without the Landlord's prior written approval and consent, which consent shallnot be unreasonably withheld. In the event that Tenant desires to make any such alterationsor additions, Tenant's request toLandlord for permission to do the same shallbe accompanied by detailedplans and specifications prepared by a licensed architector engineer, estimated costs ofthe proposed alterations and the identityof any contractors to perform the work. Landlord shall have ten (10) days to review the request (togetherwith any supporting documents) and to indicate itsapproval orthe lack thereof. Any alterations or additions made by the Tenant shallbe atthe Tenant's sole cost and expense. Any improvements towhich Landlord consents must be done in a good and workmanlike manner and in compliance with all,local,stateand federal codes and shallbe at leastequal in qualityand classto the construction existing at the commencement of this Lease and consistentwith thecharacter, integ1ity and design thereof. Trade Fixtures and Personal Propedy Upon the expiration or sooner termination of thisLease, Tenant shallremove allof itstrade fixtures and other personal property from the Premises and shall promptly repair any damage caused to the Premises or tothe building by such removal. Ifthe Tenant failsto so remove any tradefixtures or other personal property of Tenant prior to vacating the Premises, such fixturesand/or otherpersonal property shall be deemed abañdoñed by Tenant and shallbecome the property of Landlord or,at Landlord's option, Landlord may cause the fixturesor personal property to be removed atTenant's expense. With the exception of tradefixtures and personal property (both ofwhich are addressed inthe preceding paragraph) Tenant shallrestore the Premises to the condition priorto Tenant's alterationsor improvements atTenant's sole cost and expense, by the lastday ofthe term, or within thirty (30) days afternotice of electionisgiven, whichever islater. IfTenant failstoso restore the Premises, Landlord may restore the Premises and charge the Tenant therefor. Any charge made by Landlord for such - 3 - FILED: ONONDAGA COUNTY CLERK 08/30/2021 11:14 AM INDEX NO. 007625/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/30/2021 restoration shall be paid by Tenant within ten (10) days afterreceipt of the invoice therefor. 12. MECHANICS LIENS Tenant shallkeep the building, common areas ofthe shopping plaza,other improvements and land surrounding the Premises freeand clearof allmechanic's liens resulting from construction and/or alterationsand improvements done by or forTenant. Any mechanic's liensor order for thepayment of money filedagainst the building, other improvements and the land of which thePremises are a partfor work claimed tohave been done for,or for materials claimed tohave been furnished to the Tenant shall be discharged by Tenant within twenty (20) days afterfiling ofsuch mechanic's lienby bonding as required by law orin any other lawful manner. 13. INSURANCE Tenant, atitscost, shallmaintain public liabilityand property damage insurance with liability limitsof not less than $2,000,000 per person and $2,000,000 per occurrence, insuring againstall liability of Tenant and itsauthorized representatives and customers arising out ofand inconnection with Tenant's use and occupancy of the Premises. Butternut Real Estate Corporation, Pavone Asseciates, Angelo Pavone, Frank Pavone and Tenant shallspecifically be named as co-insureds and such insurance policy shall contain a waiver of subrogation againstthem. Said policy shallalso contain an agreement by the insurer thatsuch the policy shall not be terminated, cancelled orreduced in coverage without at least thirty (30) days prior written notice to Landlord. Tenant shallprovide Landlord with a certificateof insurance (consistent with the above-referenced terms) upon execution of thisLease and prior totaking possession of the Premises. Thereafter, Tenant shall continue to provide Landlord with additional certificatesof insurance so as todemonstrate continuous coverage throughout the term of thisLease. Throughout the term of thisLease, Tenant shallcarry plate glass insurance at Tenant's sole cost. 14. GOVERNMENTAL COMPLIANCE Tenant shallcomply with allstatutes,ordinances, rules, orders,codes, regulations and requirements of the federal,state and local governments, and of any and alltheir departments and bureaus applicable to said Premises orto the Tenant's occupation and/or use thereof, forthe correction, prevention, and abatement of nuisances, or othergrievances, and in allother respects,in,upon, or connected with said Premises or the use thereof during said term,at itsown costand expense; and shall also promptly comply with and execute alllaws, rules, orders, codes,and regulations of the New York Board of FireUnderwriters, the Fire Insurance Exchange, the City of Syracuse, County of Onondaga, State ofNew York and federal government and of each and every department, bureau and officialthereof for theprevention of fires,at itsown cost and expense, and Tenant shall comply with the Labor Law of the State ofNew York and the rules,regulations, directivesand orders of theDepartment of Labor atits own cost and expense. 15. ASSIGNMENT - 4 - FILED: ONONDAGA COUNTY CLERK 08/30/2021 11:14 AM INDEX NO. 007625/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/30/2021 Tenant shall not voluntarily assign or encumber itsinterest inthis Lease or in theLeased Premises, orsublease allor any part of thePremises, or allow any other person orentity to occupy oruse allor any part of the Premises, without firstobtaining Landlord's written consent, which consent willnot be unreasonably withheld. Any assignment, encumbrance, or sublease, without Landlord's written consent shallbe voidable atLandlord's election,and shallconstitute a default.No consent toany assiganient, encumbrance or sublease shallconstitute a furtherwaiver of the provisions of thisparagraph. Any dissolution, merger, consolidation, or otherreorganization of Tenant (whether in the context of a bankruptcy proceeding or otherwise), or thesale or other transferof a controlling percentage of percentage" Tenant, shall be deemed a voluntary assignment. The phrase "controlling means the ownership of more than 50% (fiftypercent) ofTenant. 16. DEFAULT An occurrence of any of the following shall constitute a defaultby Tenant ifnot cured within 7 (seven) days after written notice from the Landlord: (a) Failure to pay rent when due as hereinabove provided. (b) Abandonment and vacation of the Leased Premises (failureto occupy and operate the Leased Premises for consecutive days shall be deemed an abandon- twenty (20) ment and vacation). (c) Use ofthe Premises for a purpose other than the one specified in 14,above. (d) Failureto perform any other provisions of thisLease. In the eventof any default by the Tenant, theLandlord may cure the default, inwhich case any costs and expenses (including but not limited to reasonable attorney'sfees of $175 per hour and court costs) incurred by Landlord therefore shall be deerúéd additionalrent, and Landlord may lawfully enter the Premises and repossess thesame and may dispossess and remove there from any and alloccupants and their effects,without being liablefor any prosecution or damages therefore, and without prejudice to any other remedies which Landlord may have for arrearsof rent orother breach of covenant. Upon entry by Landlord under the provisions of thissection, thisLease shallterminate. The Tenant covenants that notwithstanding any entry orreentry by Landlord, whether by summary proceeding, termination or otherwise, in case of termination under thissection, the Tenant willinciemnify Landlord against allloss of rentwhich Landlord may incur by reason of the termination during the residue of the term. Suit or suitsfor recovery of any loss or deficiency of rent or damages, orfor any installment or installments of rent oradditional rent payable hereüüder, or for a sum equal to any such installment or installments, may be brought by theLandlord atonce orfrom time to time atLandlord's election, and nothing contained in thisLease shall be deemed to require Landlord to await the date whereon thisLease or the term hereof would have expired by limitation had there been no such default by the Tenant or no such cancellation or termination. No failure by Landlord to insistupon the strictperformance ofany covenant, agreement, term, or condition of thisLease or toexercise any right or remedy consequent upon a breach thereof, and no - 5 - FILED: ONONDAGA COUNTY CLERK 08/30/2021 11:14 AM INDEX NO. 007625/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/30/2021 acceptance of fullor partialrent oradditional rent during the continuance of any such breach,shall constitutea waiver of any such breach or of any such covenant, agreement, term or condition. In theevent of any breach by the Tenant ofany ofthe covenants, agreements, terms or conditions contained in thisLease, the Landlord shall be entitledto enjoin the breach and shallhave the right to invoke any right and remedy allowed at law or in equity by statueor otherwise. Each rightand remedy of Landlord provided for inthis Lease shallbe cumulative and shall be in-n addition to every other right or remedy provided for inthis Lease or now or hereafter existingatlaw or inequity, by statue or otherwise. Tenant agrees that itshall pay Landlord for allreasonable attorney fees(of $175 per hour), court costsand other reasonable expenses incurred by the Landlord in enforcing and/or defending any action or proceeding by reason of any default by Tenant. As a further inducement tothe Landlord to make thisLease and in consideration thereof, Landlord and Tenant covenant and agree that in any action or proceeding brought by either Landlord or Tenant against the other on any matters whatsoever arising out,under, or by virtue ofthe terms ofthis Lease, Landlord and Tenant shall and do hereby waive trial by jury. In addition,Tenant hereby expressly waives any rightof redemption as the same may be provided by statute,law, rule,regulation or otherwise. 17. SUBORDINATION This Lease and all therights of the Tenant hereunder are and shall be subject and subordinate to the lienof any mortgage or mortgages which may now or hereafter affectthe Premises orany partthereof or the building of which the Premises are a part,and toall renewals, modifications, consolidations, replacements and extensions thereof, provided however that such mortgage or mortgages shall provide that inany foreclosure proceeding thereunder, and any sale under the encumbrance or deed given inlieu of foreclosure, thisLease shallnot be cut off nor Tenant's position hereunder disturbed in orby such foreclosure proceeding, provided that at thetime thisLease shallbe in fullforce and effect and not in default as to rentor other covenants thereof. Tenant agrees that itwill,upon demand, execute and deliver such instruments as necessary to effectmore fully such subordinations of thisLease tothe liens of any such mortgage or mortgages thatshall be desired by any mortgage or proposed mortgagee and in the event of the failureof the Tenant to execute such instruments, the Tenant hereby nominates and appoints the Landlord as itsattorney-in-fact for thepurpose of executing any such instrument of subordination. 18. INSPECTION BY LANDLORD The Landlord shall at allreasonable times have access to the aforesaid Premises for the purpose of examining the same, of making necessary repairs, or for the purpose of showing the Premises for renting or sale, and for a period of at least six months prior to the expiration of the Lease shall have the right to post notices upon the exterior of the Premises offering the same for rental. Landlord shall have the right at any time to post notices upon the exterior of the building or other parts of the property offering the entire building for sale or offering other spaces for rent. 19. QUIET ENJOYMENT Landlord covenants that upon Tenant paying theabove specified rent and performing and complying with allterms, covenants aforesaid, the Tenant shalland may peaceably have, hold and enjoy - 6 - FILED: ONONDAGA COUNTY CLERK 08/30/2021 11:14 AM INDEX NO. 007625/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/30/2021 the Premises for theterm aforesaid. 20. INDEMNIFICATION To the extent allowed by law, the Tenant shallindemnify and hold the Landlord harmless (and defend Landlord against) any and allclaims, costs,expenses, loss liabilities, or damage arisingout of or in connection with Tenant's oceüpâñcy ofthe Premises including but not limited to the Tenant's conduct or management ofbusiness inor upon the Premises orresulting from the Tenant's failureto comply with any of the covenants, terms and conditions herein contained. The provisions ofthis paragraph shall apply to acts oromissions of or by the Tenant, and theTenant's contractors, licensees,agents, servants and employees. The provisions of thisparagraph shall not apply to any claims, costs,expenses, loss liabilities, or damage resultingsolely from Landlord's own negligence or willful misconduct. 21. HOLD OVER Should the Tenant contiñüe to occupy the Premises afterthe expiration of thesaid term oraftera forfeitureincurred, whether with or against the consent of the Landlord, such tenancy shallbe from month to month, and in no event from year toyear, or from term toterm, and such month to month tenancy shallbe under allthe terms, conditions and covenants of thisLease. In theevent that theTenant does continue to occupy the Premises afterthe expiration of the saidterm, without the consent of the Landlord, the monthly rent willbe increased by fiftypercent (50%) without further notice and shall payable under the same terms and conditions as previously setforth in thisLease. 22. NOTICES/ SERVICE OF PROCESS Except as otherwise provided herein, allnotices required or agreed to be given hereunder by either partyshall be in writing and shallbe sent by certified mail, returnreceipt requested and addressed as follows: For Landlord For Tenant Pavone Associates PHP Wireless, Inc. P.O. Box 120 500 Butternut Street Manlius, New York 13104 Syracuse, New York 13208 Service of Process Tenant hereby appoiñts any of itsemployees or members present at thePremises as agents forthe service of process. This paragraph shallnot limit Landlord's other options forservice of process under the New York State Law. 23. DAMAGE AND DESTRUCTION Ifthe Premises are totallyor partiallydestroyed, by fire orother cause, Landlord shall have the option of eitherrepairing or demolishing the Premises athis sole discretion. Ifthe Premises are damaged FILED: ONONDAGA COUNTY CLERK 08/30/2021 11:14 AM INDEX NO. 007625/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/30/2021 without the faultor neglect of Tenant or of Tenant's agents,employees, visitors or customers and Landlord electsto repair the Premises, rent shallbe apportioned according to thatpercentage of the Premises which are useableby Tenant until repairs are complete. Ifthe Premises are damaged without the faultor neglect of Tenant or of Tenant's agents, employees, visitors or customers and Landlord electsnot to repairthe Premises, the Lease shall immediately cease and come to an end upon notice to theTenant as provided below and Tenant shallvacate the Premises and surrender same toLandlord. IfTenant isnot in defaultof theLease atthat time,Tenant's liabilityfor rentshall cease upon the day the following casualty. Ifthe Premises are damaged due to faultor neglect of Tenant or of Tenant's agents, employees or customers and Landlord elects to repairthe Premises, Landlord may repair the Premises without prejudice to any of itsother rightsof and remedies and without prejudice to the rightsof subrogation of Landlord's insurer, and there shallnot be any reduction ofrent. If the Premises are damaged due to fault or neglect of Tenant or of Tenant's agents, employees or customers and Landlord elects not torepair the Premises, and Tenant isnot in default of the Lease at thattime, Tenant's liabilityforrent shall cease upon the Tenant receiving written notice from the Landlord that itelectsnot to repairthe Premises (as provided below), without prejudice to any of Landlord's other rights of and remedies and without prejudiceto the rightsof subrogation of Landlord's insurer. In the event ofany damage listedin the preceding paragraphs, Landlord will give notice of its decision to repairor not repairthe Premises to Tenant within 45 days of the damage. Itis understood that no penalty shallaccrue forLandlord's reasonable delay inrepairing Premises provided thatifsuch repair isnot complete within four (4)months ofthe date of the damage, Tenant may terminate thisLease upon ten (10) days written notice to Landlord. In determining what constitutesreasonable delay,consideration shall be given to delays caused by strikes,adjustment of insurance and other causes beyond Landlord's control. Itis understood that inno event willLandlord be obligated toexpend any sums inaddition to the proceeds of any insurance policy maintained by Landlord for thePremises. Regardless of whether the Premises are partiallyor totallydestroyed, by fireor otherwise, Landlord shallnot be required torestore or be liablefor any damaged or destroyed merchandise, personal property, furniture or tradefixtures installedby or belonging toTenant (or her agents or employees), itbeing expressly agreed that such loss willbe borne by the Tenant. 24. LATE CHARGE Any rent or additional rentnot received by Landlord on or before the 5th of each month shallbe deemed late.Tenant agrees to pay Landlord, in addition to saidrent, a latecharge in the amount of five percent (5%) of theoverdue amount. 25. LIABILITY Landlord shall not be liablefor any failureof water orgas supply or electricalcurrent,nor for injury or damage to personal property caused by the elements orby other tenants or persons in the building, or resultingfrom steam, gas, electricity,water, rainor snow, which may leak or flow from any part ofsaid building, including theroof, or from the pipes, appliances or plumbing works of the same, or from thestreet,parking lotor subsurface, or from any other place, norfor interference with any other incorporeal hereditament by anyone, orcaused by operations by or fora governmental authority in - 8 - FILED: ONONDAGA COUNTY CLERK 08/30/2021 11:14 AM INDEX NO. 007625/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/30/2021 construction of any public or quasipublic work. 26. SIGNS No sign, advertisement, notice orother letteringshall be exhibited, inscribed,painted oraffixed by the Tenant on any partof the Premises (otherthan the interiorthereof) or the building of which the Premises are a partwithout the priorwritten approval and consent ofthe Landlord, which consent shall not be unreasonably withheld. Tenant, atitssole cost and expense shall comply with all,local,stateand federal laws and regulations and obtain any approvals or permits relatingto signs. Tenant shall have the rightto installwindow signs as required by Boost Mobile provided signsare permitted by the local municipality. 27. NON-WAIVER No act or conduct by Landlord, including, without limitation,the acceptance ofthe keys to the Leased Premises, shall constitute an acceptance ofthe surrender ofthe Leased Premises by Tenant before the expiration of theterm. Only a written notice from Landlord to Tenant shallconstitute acceptance of the surrender of the Leased Premises and accomplish a termination of the Lease. Landlord's consent or approval of any act by Tenant requiring Landlord's consent orapproval shallnot be deemed to waive or render unnecessary Landlord's consent to orapproval of any subsequent act by Tenant. Any waiver by Landlord of any defaultmust be in writing and shallnot be a waiver of any other default concerning the same or any other provision of thisLease. 28. CONDEMNATION Should the land upon which orthe building within which the Premises are located or any part thereof be condemned for publicuse, then,in such event, upon the taking of thesame for such public use, thisLease, at theoption of the Landlord, shall become null and void, and theterm shallcease and come to an end upon the date when the same shallbe taken and the rent shall be apportioned as of saiddate. Tenant shall assign allrights to and allmonies received by Landlord forany part of the award or recovery, for thevalue of the leasehold damages, or otherwise, and Landlord shallreceive the full amount thereof. Tenant shall,however, be entitledto any award that isspecificallyallocated to cost of relocation, business interruption, orany other damage other than the value of the leasehold interest. 29. MODIFICATION OF LEASE AGREEMENT Neither thisagreement nor any provision hereof shall be amended or modified or deemed amended or modified, except by agreement inwriting duly subscribed and acknowledged with the same formality as thisagreement, except as expressly provided herein. 30. ADDITIONAL RULES - 9 - FILED: ONONDAGA COUNTY CLERK 08/30/2021 11:14 AM INDEX NO. 007625/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/30/2021 The Tenant shall comply with the rules and regulations hereinafter set forth. Landlord shallhave the right from time to time topromulgate reasonable amendments and reasonable additional rulesand regulations for the safety,care and cleanliness of Premises, the building inwhich the Premises are located and all common areas, orfor the preservation of good order. On delivery of a copy ofsuch amendments and additional rules and regulations, and a violation of any of them shallconstitute a default by Tenant under thisLease. The rulesand regulations are as follows: (a) Tenant and itsauthorized representatives and customer/ invitees shallnot loiterin the parking or other common areas the Tenant has the rightto use. They shallin no way obstruct the pedestrian passage- sidewalks, entry passages, ways, driveways, entrances and exits;they shalluse them only as ingress to and egress from thePremises and/or the parking lot.The placing of any sign or other object in any ofthe common areas shallbe considered an obstruction within the meaning of thisparagraph. (b) Tenant and itsauthorized representatives and customers/ invitees shallnot make or permit any noise in oroutside the building of which the Premises are a partthat is annoying, unpleasant ordistasteful,or interferein any way with other tenants or those having business with them. (c) Tenant and itsauthorized representatives and customers/ invitees shallnot use the parking areas foranything but parking motor vehicles as permitted herein. All motor vehicles shall be parked inan orderly manner and in no event shall said vehicles remain in theparking area overnight. 31. SINGULAR-PLURAL When required by the context of thisLease, the singular shallinclude the plural and the plural shallinclude the singular. 32. SEVERABILITY The unenforceability, invalidity orillegalityof any provision of thisLease shall not render the other provisions unenforceable, invalid or illegal. 33. GOVERNING LAW This Lease shall be constructed and interpreted in accordance with the laws of the Stateof New York and the venue for any legalproceedings shall be Onondaga County, New York. - 10 - FILED: ONONDAGA COUNTY CLERK 08/30/2021 11:14 AM INDEX NO. 007625/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/30/2021 34. SUCCESSORS This Agreement shallbe binding upon and inure to thebenefit of the partieshereto and their respective heirs,executors, administrators, legal representatives, successors and assigns. 35. AS IS CONDITION Tenant is fullyfamiliar with the size and physical condition of the Premises, the building, the is" improvements, fixturesand equipment described inthis Lease, and Tenant takes the Premises in "as condition. The Tenant acknowledges thatthe square footage listedabove isan approximate square footage and that should the actualsquare footage of thePremises be different than thatlisted above, this willnot relieve Tenant from it'sobligations under thisLease including the obligation to pay base rent and additional rent inthe amounts outlined herein. The Tenant acknowledges that Landlord has made no representations whatsoever in connection with the condition of the Premises or ofthe building, improvements, fixturesor equipment, and Landlord shallnot be liable for any latentor patent defects therein. Tenant accepts the Premises as being ingood and sanitarycondition and in good repair with all mechanical systems inworking order. Tenant agrees on the lastday of the term of thisLease, orits earliertermination, to surrender Premises inthe same condition as received,ordinary wear and tear excepted. 36. LIMITATION ON LANDLORD'S LIABILITY Itis understood and agreed that Tenant shall look solely tothe estate and property of Landlord in Butternut Plaza for the satisfactionof Tenant's remedies for thecollection of a judgment (or other judicial process) requiring the payment of money by Landlord inthe event of any default or breach by Landlord with respect to any of the terms, covenants and conditions ofthe Lease tobe observed or performed by Landlord, and any other obligation of Landlord created by or under this Lease, and no other property or assets of Landlord or ofitspartners, beneficiaries, co-tenants,shareholders, members, or principals (as the case may be) shallbe subject to levy,execution, orother enforcement procedures for the satisfaction ofTenant's remedies. In no event shall Tenant name Landlord's partners,members, beneficiaries,co-tenants, shareholders or principals to any suitor other proceeding to which Tenant and/or Landlord are a party arising out of orrelating to thisLease, unless the naming of such partners, members, beneficiaries,co-tenants, shareholders or principals isrequired in order to permit the Tenant to obtain jurisdiction over Landlord herein. The term Landlord as used in paragraph and throughout thisLease shall be limited to mean and include only the owner or owners at thetime in question of Landlord's interest in thisLease. Further, in the event of any transfer by Landlord of Landlord's interestin thisLease, Landlord herein named (and in case of any subsequent transfers or conveyances, the then assignor), including itspartners,beneficiaries, co-tenants, shareholders, members, or principals (asthe case may be), shallbe automatically freed and relieved, from and after the date of such transferor conveyance, of all for liability theperformance of any covenants and agrcaments on the part ofLandlord. 37. COMMON AREAS - 11 - FILED: ONONDAGA COUNTY CLERK 08/30/2021 11:14 AM INDEX NO. 007625/2021 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/30/2021 Landlord shall,at itscost,maintain the Common Areas and Tenant shall contributeto thecost of maintaining Common Areas as provided below. Tenant's contribution to Common Area costs shallbe in Areas" addition to Tenant's obligation to pay Base Rent as outlined above. The term "Common means allareas and facilities