11
EXHIBIT 10.1
LEASE
THIS INDENTURE OF LEASE WITNESSETH: That DRP COMPANY OF ALABAMA, INC.
hereinafter called the "Landlord", does hereby demise and lease unto _FTS
Wireless, Inc. hereinafter called "Tenant", the Premises known and described as
Mariner Center having a street address of 8802 Rocky Creek Drive #105
County of Hillsborough State of Florida, consisting of 900 square
feet (plus or minus).
1. TERM The term of this Lease shall be 24 months beginning on the
first day of September 2001, and terminating on the 31st day of
August 2003, with a two year renewal option.
2. RENT In consideration of said demise, the Tenant agrees to pay to the
Landlord as rent for said Premises as follows:
YEAR ONE: $ 925.00 per month as rent, plus 7.00% sales tax (in the
amount of $ 64.75 or as may be subsequently provided by Florida law, for a
total monthly rental payment of $ 989.75 all payable in cash or its
equivalent on the first of each month at;
DRP COMPANY OF ALABAMA, INC.
4625 NORTH MANHATTAN AVENUE
SUITE H
TAMPA, FLORIDA 33614
Or at such other place in said city as the Landlord from time to time in writing
may designate. The monthly rental set forth herein shall commence on October
15th 2001, even if Tenants occupies the Premises sooner as set forth herein.
Tenant shall pay rent for October 15th -October 31st 2001 in the amount of $
494.88. Tenant shall have occupancy September 1st - October 14th rent free.
3. LIABILITY INSURANCE Tenant shall supply a Certificate of Insurance
naming Landlord as an additional insured in a company acceptable to Landlord and
licensed to do business in this State. The limits of General Liability
insurance under the policy shall be $1,000,000.00 and include coverage for
bodily injury and property damage coverages. The Certificate of Insurance will
also show coverage for Workers' Compensation insurance with limits required in
this State. A Certificate of Insurance evidencing these coverages shall be
posted with the Landlord before permission to occupy the Premises shall be
granted. The Certificate of Insurance shall also indicate that a t least thirty
(30) days advance written notice shall be required to the Landlord in the event
of cancellation or non-renewal of said liability insurance. The Landlords shall
receive a Certificate of Insurance at the annual renewal of your insurance
policy in the future.
Tenant shall not make any use of the lease premises which would make void or
voidable any policy of fire or extended coverage insurance covering the building
on the leased premises, and if, during the term hereof, Tenant by reason of its
use and occupancy of the leased premises causes any increase in rates payable
for insurance which is carried on such premises, then such additional premiums
shall be paid by Tenant.
4. ALTERATIONS The Tenant agrees that Tenant shall make no alteration in,
or additions or improvements to said Premises without in each case the written
consent of Landlord first being had and obtained, which consent shall not be
unreasonable or untimely withheld and which shall not be given in exchange for
consideration. Drawings and specifications of the proposed alterations shall be
submitted when Tenant requests the said approval. Tenant agrees that Tenant
will make all such alterations, additions, or improvements and in occupying and
using said Premises, Tenant will comply with the building code and ordinance of
the city of Tampa, Hillsborough county, Florida and all the law of the state of
Florida pertaining to such work and/or such use or occupancy; it being further
agreed that any additions, alterations or improvements made by Tenant ( except
only movable store and office furniture and fixtures) shall become and remain a
part of the building and be and remain the property of Landlord upon the
termination of this Lease or the Tenant's occupancy of said premises; provided,
however that the Landlord by giving written notice to Tenant at the time of
consenting to the making of any such additions, alterations or improvements may
require Tenant to restore said Premises to the same condition they were in
immediately before the making of such alterations, additions or improvements.
Tenant agrees that Tenant will save harmless Landlord from and against all
expenses, liens, claims or damages to either property or person which may or
might arise by reason of the making of any such repairs, alterations, additions
or improvements.
5. SECURITY DEPOSIT A security deposit of $ 989.75 paid to Landlord to
secure the performance by Tenant of all of the obligations hereunder. Landlord
shall hold the deposit during the term of this Lease and shall refund such
portion of the deposit which is due after Tenant has performed all obligations,
less the following sums to be retained at Landlord's discretion:
(A.) Repair of the Premises.
(B.) Repair and cleanup of Leased Premises.
(C.) Loss resulting from noncompliance with the covenants of this Lease.
6. LATE PAYMENT Any payment of rent required hereunder which is received by
landlord more than ten (10) days after the same is due shall incur a late
payment penalty of $10.00 for any such late payment. The said penalty shall be
applied for each month that any payment remains unpaid. All payments by Tenant
to landlord may be applied first to any late payment penalties before being
applied to rent. Any return check shall be charges a $25.00 return check
charge.
7. PROPERTY TAXES In the event that property taxes levied by the City of
Tampa or the County of Hillsborough, Florida, upon which the leased premises
stand, shall be increased any year during said term over the amount levied for
the year immediately preceding the commencement date of this Lease, then the
Tenant shall pay each year a pro-rata share of said increase for said year to
the Landlord at the time said taxes are due each year. It is understood that
the term "pro rata" means that proportion of the building occupied by Tenant.
The base year for purposes of this Lease shall be 2000 . The leased space is
10 % of the total building square footage of 9000 square feet.
8. USES The Tenant agrees that the Premises shall be used for sale of
cellular equipment and shall be used and occupied in a careful and proper
manner, and that no waste will be committed or permitted upon, or any damage be
done to said premises and Tenant agrees that the Tenant will not conduct, nor
permit to be conducted, on said premises any business or commit or permit any
act which is or may be contrary to, or in violation of any law of the United
States, or Florida, or any ordinances of the city or county in which the
Premises are locate.
9. ASSIGNMENT/SUBLETTING The Tenant agrees that the Tenant will not assign
or sublet the Premises or any part thereof without the consent in writing of the
Landlord first had and obtained, which consent shall not be unreasonably or
untimely withheld and which shall not be given in exchange for consideration.
10. DEFAULT Upon the happening of any one or more of the following events,
Landlord, at its election, may immediately or at anytime after the happening
exercise any one or more of the options referred to below, to-wit: (a.)
Tenant's failure to pay the rental, additional rental, or any other sums payable
hereunder for a period of three (3) days after written notice by Landlord, or
Landlords agent; (b) Tenant's failure to observe, keep or perform any of the
other terms, covenants, agreements or conditions of this Lease; the bankruptcy
of Tenant; (d) Tenant's making an assignment for the benefit of creditors; (e) a
Receiver or Trustee being appointed for Lessee; (f) Tenant's voluntarily
petition for relief under or otherwise seeking the benefit of, any bankruptcy,
reorganization, arrangements, or insolvency law; (g) abandonment of lease
premises by the Tenant; (h) Tenant's interest under this Lease being sold under
execution or other legal process; (I) Tenant's interest under this Lease being
assigned by operation of law; (j) any of the goods or chattels of the Tenant
used in or incident to the operation of the leased premises being seized,
sequestered, or impounded by virtue of or under authority of any legal
proceeding, which seizure, sequestration, or impounding shall, in the opinion of
the Landlord, materially effect the possible continuation of the operation of
the leased premises by tenant; then Landlord, at its election, may exercise any
one or more of the following option, to-wit: (a) terminate Tenant's right to
possession under this Lease, and re-enter and take possession for the leased
premises and relet or attempt to relet said premises on behalf of Lessee, at
such rent and under such terms and conditions as Landlord may deem best under
the circumstances for the purpose of reducing Tenant's liability and if a
sufficient sum shall not be realized from such reletting each month to equal the
monthly rent under the Lease, Tenant agrees to pay such deficiency each month
upon demand, and Landlord shall not be deemed to have thereby accepted a
surrender of the premises nor shall Landlord be deemed to have terminated the
Lease, and Tenant shall remain liable for all rents due under this Lease and for
all damages suffered by Landlord because of Tenant's breach of any of the
covenants of this Lease. At any time during such repossession or reletting,
Landlord may, by delivering written notice to Tenant, elect to exercise its
option under the following subparagraph to accept a surrender of the premises,
terminate and cancel this Lease and retake possession and occupancy of the lease
premises; (b) declare this lease to be terminated, ended and null and void, and
re-enter upon and take possession of the leased premises whereupon the term
hereby granted and all right, title and interest of Tenant's in the leased
premises shall end. Such termination shall be without prejudice to landlord's
right to collect from Tenant any rental which has accrued prior to such
termination together with all damages suffered by the landlord because of
Tenant's breach of any covenant under this Lease; (c) declare the entire
remaining unpaid rent for the balance of this Lease to be immediately due and
payable forthwith and may, at once take action to recover and collect same
wither by distress or otherwise (d) exercise any and all rights and privileges
that Landlord may have under the laws of Florida and/or the United States of
America.
The exercise by the Landlord of any one or more of the options provided to it
under this Lease shall not affect the Landlord's rights to exercise any of its
other options contained in this Lease.
The Tenant also covenants and agrees to pay reasonable attorney's fees and costs
and expenses of the Landlord, including court costs, if the Landlord employs an
attorney to collect rent or enforce other rights of the Landlord herein in event
of any breach as aforesaid and the same shall be payable regardless of whether
collection or enforcement is effected by suit or otherwise.
11. PERSONAL PROPERTY All personal property of any kind or description
whatsoever in the demised Premises shall be at the Tenant's sole risk, and the
Landlord shall not be liable for any damage done to or loss suffered by the
business or occupation of the Tenant arising from any act or neglect of
co-Tenants or other occupants of the building or of their employees or of other
persons, or from bursting, overflowing or leaking of water, sewer or steam
pipes, or form the heating or pumping fixtures or from electric wires or form
gas, or odors whatsoever except in the case of negligence or willful neglect or
acts of the Landlord.
12. PAYMENTS AT TEMINATION No payments of money by the Tenant to the
Landlord after the termination of this Lease, in any manner, or after the giving
of any notice (other than a demand for the payment of money) by the Landlord to
the Tenant shall reinstate, continue or extend the term of this Lease or affect
any notice given to the Tenant prior to the payment of such money, it being
agreed that after the service of notice or the commencement of a suit of after
final judgment granting the Landlord possession of said Premises, the Landlord
may receive and collect any sums of rent due, or any other sums of money due
under the terms of this Lease, and the payment of such sums of money, whether as
rent or otherwise, shall not waive said notice or in any manner affect any
pending suit or any judgment theretofore obtained. Any holdover or month to
month tenancy shall give 30 day notice by tenant to vacate. Notice must be
given on the first day of the month.
13. RIGHT TO EFFECTS If the Tenant shall fail to remove all effects from
said Premises upon the termination of this Lease for any cause whatsoever, the
Landlord, at the option of the Landlord, may remove the same in any manner that
the Landlord shall choose, without liability to the Tenant for loss thereof, and
the Tenant agrees to pay the Landlord on demand any and all expenses incurred in
such removal, including court costs and attorney fees. The landlord, at the
option of the Landlord, without notice may sell said effects, or any of the
same, at private sale and without legal process, for such prices as the Landlord
may obtain and apply the proceeds of such sale upon any expense incident to the
removal and sale of said effects, rendering the surplus, if any, to the Tenant.
14. DAMAGE TO PREMISES If the demised Premises or said building shall be
damaged by fire, lightning, or similar catastrophe, as to render said Premises
wholly untenantable, and if such damage shall be so great that a competent
architect, in good standing in the city or county in which the demised Premises
are located, shall certify in writing to the Landlord and the Tenant that said
Premises with the exercise of reasonable diligence, cannot be made fit for
occupancy within a reasonable time, then this Lease shall cease and terminate
from the date of the occurrence of such damage; and the Tenant thereupon shall
surrender to the Landlord said Premises and all interest therein hereunder, and
the Landlord may reenter and take possession of said Premises discharge from
this Lease, and may remove the Tenant therefrom. The Tenant shall pay rent,
duly apportioned, up to the time of such termination of this Lease. If,
however, the damage shall be such that such and architect so shall certify that
said demised Premises can be made tenantable within a reasonable time form the
happening of the said damage by fire, lightning, or similar catastrophe, then
the Landlord shall repair the damage so done with all reasonable speed, and the
rent deprived of the use of said Premises by reason of such damage and the
repair thereof. If said demised Premises, without fault of the Tenant, shall be
slightly damaged by fire, lightning, or similar catastrophe, but not so as to
render the same untenantable, the Landlord, after receiving notice in writing of
the occurrence of the injury, shall immediately and diligently cause the same to
be repaired. But, in such event there shall be no abatement of the rent.
15. QUIET ENJOYMENT Landlord hereby covenants and agrees that Tenant shall
be entitled to peaceably occupy and quietly enjoy the Premises during the term
hereof and all such subsequent renewals without interference from third parties
whomsoever.
16. GUARD DOGS No guard dogs or other animals shall be kept on the Premises
or brought onto the Premises without the specific written permission of the
Landlord.
17. NON-PERMITTING ACTIVITY No work activity involving the use for which
the building is rented, or with respect to repair or servicing of automobiles,
trucks, or other equipment shall be performed outside the building or around the
Premises at any item. Further, without the Landlord's specific consent, no
automobiles, trucks, boats or other equipment or vehicles may be parked around
the building for any more than five (5) days without being moved. No trash,
garbage or other items may be stored outside the building without the consent of
Landlord, unless such trash is inside garbage containers.
18. CONDITION OF PREMISES The Tenant has examined the Premises herein
demise d and said Premises are known to the Tenant to be in good repair and
condition, and the Tenant hereby accepts the same in good condition and repair
except as herein otherwise specified, and no representations as to the condition
or repair thereof have been make by the Landlord or the agent of the Landlord
prior to or at the execution of this Lease that are not herein expressed or
endorsed hereon.
19. WAIVER No waiver of any condition or covenant of this Lease by either
party hereto shall be deemed to imply or constitute a further waiver by such
party or any other condition or covenant of said Lease.
20. MAINTENANCE AND REPAIRS Tenant shall at all times keep the leased
premises, including maintenance and repair of all exterior entrances, all glass
and all window frames and molding, and all interior partitions, doors. Fixtures,
equipment, and all appurtenances thereof (including reasonable periodic
maintenance), and any air conditioning systems (including reasonable periodic
maintenance as determined by the landlord) in good order, condition and repair,
damage by unavoidable fire or other casualty excepted, provided however, that
the Landlord will place all electrical and lighting systems, heating systems,
plumbing fixtures, and any air conditioning systems in good operational
condition within thirty (30) days after the commencement date of this Lease if
the faulty operation of same is brought to the attention of the Landlord by the
Tenant, within said thirty (30 days, provided said faulty operation is not due
to negligence of tenant.
Landlord shall at all times keep the structural portions and roof of the leased
premises in good order, condition and repair, damage by unavoidable fire or
other casualty excepted, provided however, that if Landlord is required to make
repairs to structural portions of the leased premises by reason of Tenant's
negligent acts or omission to act, Landlord may add the cost of such repairs to
the rent which shall next become due.
Tenant also agrees to store all trash and garbage in rat-proof receptacles and
to remove regularly trash and garbage at Tenant's expense.
The outside areas immediately adjoining the leased premises shall be kept clear
and free from dirt and rubbish by the Tenant to the satisfaction of the Landlord
and Tenant shall not place or permit any obstructions or merchandise in such
areas.
The Tenant agrees to obtain all necessary utilities needed for the operation for
the leased premises, all at the Tenant's cost. If a separate water meter is not
provided then water charges may be pro-rated or submetered.
Landlord shall not be liable for damage or loss of service if utility service is
interrupted or impaired by any causes not including Landlord's negligence acts.
21. HOLD HARMLESS The Tenant agrees that the Tenant, at all times, will
indemnify and save, protect and keep harmless the landlord and the same demised
Premises from every and all costs, loss, damage, liability, expense, penalty and
fine whatsoever, which may arise from or be claimed against the Landlord or the
Premises by any person or persons for any injuries to person or Premises, or
damage of whatever kind of character consequent upon or arising form the use or
occupancy of said Premises by the said Tenant or consequent upon or arising form
any neglect or fault of the Tenant or the agents and the employees of the Tenant
in the use and occupancy of the Premises, or consequent upon or arising form the
sale or giving away of intoxication liquors, or consequent upon or law,
statutes, ordinances and regulations of the United States, the state and
municipality in which said Premises are situated, now or hereafter in force; and
if any suits or proceedings shall be brought against the landlord or the said
demised Premises on account of any alleged violation thereof, or failure to
comply and conform therewith, or on account of any damage, omission, neglect (or
use of said Premises), by the Tenant, or the agents and employees of the Tenant,
or any other person on said Premises, the Tenant agrees that the Tenant will
defend the same, and will pay whatever judgments may be recovered against the
Landlord or against said demised Premises.
22. LIMIT OF LANDLORD'S OBLIGATION TO MAKE REPAIRS The Landlord shall not
be liable for any damages to Tenant's property from plumbing, gas, water, steam
or sewage leaks or stoppage, not for damage arising from acts of negligence of
co-Tenants or other occupants of the same building, or any owners or occupants
of adjoining contiguous property, unless such damage is occasioned by the
negligence of the landlord, or its agents or contractor.
23. RADON GAS The following is included in this document for the purpose
of complying with Section 404.056, Subparagraph (8), of the Florida Statutes, as
same may be amended from time to time:
Radon is a naturally occurring radioactive gas that, when it has accumulated in
a building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from our county public health
unit.
24. LEASE SUBORDINATION Tenant agrees to subordinate this Lease to any
first mortgage or blanket mortgage place don the Premises, provided only that,
so long as Tenant faithfully discharges its obligations under the terms of the
Lease:
(I) Its tenancy will not be disturbed nor this Lease affected by any default
under such mortgage;
(II) The right of Tenant hereunder shall expressly survive and shall not be
cut off by foreclosure of such mortgage, and this Lease shall, in all respects,
continue in full force and effect, and holder of such mortgage shall provide
Tenant with written acknowledgment of such non-disturbance.
If the Landlord is in full compliance with the provisions of the Lease, Tenant
will, upon demand, without cost execute any instrument necessary to effectuate
such subordination. If Tenant, within fifteen (15) days after submission of
such instrument, fail to execute same, then hereby appoints Landlord as attorney
in fact of Tenant to execute and deliver any such necessary documents.
25. IT IS HEREBY UNDERSTOOD AND AGREED That any signs and advertising to be
used, including awnings, in connection with the premises shall be first
submitted to the Landlord for approval before installation of same. Any sign
boxes, cabinets, enclosures, inserts, etc., attached or part of the building
whether installed by landlord or Tenant shall not be removed without Landlord's
consent.
26. EMINENT DOMAIN If the leased premises, or such portion thereof as
render the balance unsuitable for the purposes of Tenant, as herein above set
forth, is taken by condemnation or the right of eminent domain or private sale
in lieu thereof to the potential condemning authority either party shall be
entitled to terminate this Lease upon written notice to the other within (30)
days after Tenant has been deprived of possession by such taking of sale. If
any portion of the leased premises is so taken or sold and if this Lease is not
terminated in accordance with the provisions thereof, Landlord shall proceed to
restore and rebuild the remaining portion thereof so as to make and
architecturally complete unit as diligently as is practicable, and in such
event, a proportionate abatement of the rent shall be allowed from the
appropriate date, said proportionate abatement to be computed on the basis of
the relation which the square foot area of the space in the lease premises so
taken bears to the whole square foot area for the lease Premise. Tenant shall
not be entitled to claim, or have paid to Tenant, any compensation of damages
whatsoever for or on account of any loss, injury, damage or taking of any right,
interest, or estate of Tenant, and Tenant hereby relinquishes and hereby assigns
to Landlord any right of any damages, but Landlord shall be entitled to claim
and have paid to it for the use and benefit of Landlord all compensation and
damages for and on account of or arising out of such taking or condemnation
without deductions from the amount thereof for and on account of any right,
title, interest or estate of Tenant in or to said property, and Tenant upon
request of Landlord, shall execute any and all releases or other documents as
shall be required by such public or quasi-public authority; provided, however,
Tenant shall have the right to make its claim for its fixtures and moving
expenses to the extent such damages are allowable, and may secure such other
redress and benefits from the condemning authorities as It is entitled to so
long as the same does not lessen or in any way diminish Landlord's award.
27. SUCCESSORS AND ASSIGNS; This Lease shall bind and inure to the benefits
of the successors, assigns, heirs, executors, administrators and legal
representatives of the parties hereto.
28. OPTION TO RENEW: Tenant shall have one Two year option to renew under
the same terms and conditions provided tenant is not in default except that the
rent for the Two year option period shall be $975.00 per month plus sales tax.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF;
Dated this 25th day of May, 2003
TWO WITNESSES REQUIRED
ATTEST: DRP COMPANY OF ALABAMA, INC.
____________________________ By:
_____________________________________
LANDLORD
____________________________
ATTEST: Dated this 25th day of May, 2003
FTS Wireless, Inc.
____________________________ By: /s/ Scott Gallagher
_____________________________________
Scott Gallagher
____________________________ Chief Executive Officer
____________________________________
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