exv10w23



 





Exhibit 10.23




COMMERCIAL LEASE AND DEPOSIT RECEIPT



RECEIVED FROM Nitro Data System Inc., hereinafter referred to as LESSEE, the sum of $106,785.00
(One Hundred Six Thousand Seven Hundred Eighty Five dollars), evidenced by NA, as a deposit which
shall belong to Lessor and shall be applied as follows:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	BALANCE DUE
	 	 	 	 	 	 	 	 	 	 	PRIOR
TO
	 	 	TOTAL	 	RECEIVED	 	OCCUPANCY
	Rent for the period from 9/16/2004 to 9/16/2007
	 	$	106,785.00	 	 	$	656.25	 	 	$	2,310.00	 
	 
	Security deposit (not applicable toward last month’s rent)
	 	$	NA	 	 	$	NA	 	 	$	NA	 
	 
	Other –
Triple Net $1.50 Sq. Ft.
	 	$	15,255.00	 	 	$	87.50	 	 	$	336.25	 
	 
	TOTAL
	 	$	122,040.00	 	 	$	743.75	 	 	$	2,646.25	 






     In the event this Lease is not accepted by the Lessor within 10 days, the total
deposit received will be refunded.



     Lessee offers to lease from Lessor the premises situated in the City of Idaho Falls, County of
Bonneville, State of Idaho, described as 2325 West Broadway Suites A & E, upon the following terms
and conditions:




	1.	 	TERM: The term will commence on September 16, 2004 and end on September 16, 2007.
	 
	2.	 	RENT: The total rent will be $106,785.00, payable as follows: $2,966.25 per Month for
Approximately 3390 Sq. Ft. plus $1.60 sq. ft. Triple Net for maintanence of common areas, Yard
care and snow removal.






     All rents will be paid to Lessor or his/her authorized agent at the following address:
Gerald F. A. Winn C.O. Merrill Lynch, P.O. Box 1855, Idaho Falls, ID 83401 Account #
330-21976 or at such other places as may be designated by Lessor from time to time. In the
event rent is not paid within 10 days after due date, Lessee agrees to pay a late charge of
$50.00 plus interest at ___% per annum on the delinquent amount. Lessee further agrees to
pay $50.00 for each dishonored bank check. The late charge period is not a grace period,
and Lessor is entitled to make written demand for any rent if not paid when due.




	3.	 	USE: The premises are to be used for the operation of Computer Software Development &
Internet Service and for no other purpose, without prior written consent of Lessor. Lessee
will not commit any waste upon the premises, or any nuisance or act which may disturb the
quiet enjoyment of any tenant in the building.
	 
	4.	 	USES PROHIBITED: Lessee will not use any portion of the premises for purposes other than
those specified. No use will be made or permitted to be made upon the premises, nor acts
done, which will increase the existing rate of insurance upon the




 









 






	 	 	property, or cause cancellation of insurance policies covering the property. Lessee will
not conduct or permit any sale by auction on the premises.
	 
	5.	 	ASSIGNMENT AND SUBLETTING: Lessee will not assign this Lease or sublet any portion of the
premises without prior written consent of the Lessor, which will not be unreasonably withheld.
Any such assignment or subletting without consent will be void and, at the option of the
Lessor, will terminate this Lease.
	 
	6.	 	ORDINANCES AND STATUTES: Lessee will comply with all statutes, ordinances, and requirements
of all municipal, state and federal authorities now in force, or which may later be in force,
regarding the use of the premises. The commencement or pendency of any state or federal court
abatement proceeding affecting the use of the premises will, at the option of the Lessor, be
deemed a breach of this Lease.
	 
	7.	 	MAINTENANCE, REPAIRS, ALTERATIONS: Unless otherwise indicated, Lessee acknowledges that the
premises are in good order and repair. Lessee shall, at his/her own expense, maintain the
premises in a good and safe condition, including plate glass, electrical wiring, plumbing and
heating and air conditioning installations, and any other system or equipment. The premises
will be surrendered , at termination of the Lease, in as good condition as received, normal
wear and tear excepted. Lessee will be responsible for all repairs required, except the
following which will be maintained by Lessor: roof, exterior walls, structural foundations
including any retrofitting required by governmental authorities) and: Property Taxes, Lawn
Care, Snow Removal, Exterior Lighting, Maintanence and cleaning of Common areas. Lessee will
also maintain in good condition property adjacent to the premises, such as sidewalks,
driveways, lawns, and shrubbery, which would otherwise be maintained by Lessor.
	 
	 	 	     No improvement or alteration of the premises will be made without the prior written
consent of the Lessor. Prior to the commencement of any substantial repair, improvement, or
alteration, Lessee will give Lessor at least two (2) days written notice in order that
Lessor may post appropriate notices to avoid any liability for liens.
	 
	8.	 	ENTRY AND INSPECTION: Lessee will permit Lessor or Lessor’s agents to enter the premises at
reasonable times and upon reasonable notice for the purpose of inspecting the premises, and
will permit Lessor, at any time within sixty (60) days prior to the expiration of this Lease,
to place upon the premises any usual “For Lease” signs, and permit persons desiring to lease
the premises to inspect the premises at reasonable times.
	 
	9.	 	INDEMNIFICATION OF LESSOR: Lessor will not be liable for any damage or injury to Lessee, or
any other person, or to any property, occurring on the premises. Lessee agrees to hold Lessor
harmless from any claims for damages arising out of Lessee’s use of the premises, and to
indemnify Lessor for any expense incurred by Lessor in defending any such claims.
	 
	10.	 	POSSESSION: If Lessor is unable to deliver possession of the premises at the commencement
date set forth above, Lessor will not be liable for any damage caused by the delay, nor will
this Lease be void or voidable, but Lessee will not be liable for any




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	 	 	rent until possession is delivered. Lessee may terminate this Lease if possession is not
delivered within 7 days of the commencement term in Item 1.
	 
	11.	 	LESSEE’S INSURANCE: Lessee, at his/her expense, will maintain plate glass, public liability,
and property damage insurance insuring Lessee and Lessor with minimum coverage as follows:
$1,000,000.00 Liability Insurance.
	 
	 	 	      Lessee will provide Lessor with a Certificate of Insurance showing Lessor as additional
insured. The policy will require ten (10) day’s written notice to Lessor prior to
cancellation or material change of coverage.
	 
	12.	 	LESSOR’S INSURANCE: Lessor will maintain hazard insurance covering one hundred percent
(100%) actual cash value of the improvements throughout the Lease term. Lessor’s insurance
will not insure Lessee’s personal property, leasehold improvement, or trade fixtures.
	 
	13.	 	SUBROGATION: To the maximum extent permitted by insurance policies which may be owned by the
parties, Lessor and Lessee waive any and all rights of subrogation which might otherwise
exist.
	 
	14.	 	UTILITIES: Lessee agrees that he/she will be responsible for the payment of all utilities,
including water, gas, electricity, heat and other services delivered to the premises, except:
Water, Sewer & Garbage.
	 
	15.	 	SIGNS: Lessee will not place, maintain, nor permit any sign or awning on any exterior door,
wall, or window of the premises without the express written consent of Lessor, which will not
be unreasonably withheld.
	 
	16.	 	ABANDONMENT OF PREMISES: Lessee will not vacate or abandon the premises at any time during
the term of this Lease. If lessee does abandon or vacate the premises, or is dispossessed by
process of law, or otherwise, any personal property belonging to Lessee left on the premises
will be deemed to be abandoned, at the option of Lessor.
	 
	17.	 	CONDEMNATION: If any part of the promises is condemned for public use, and a part remains
which is susceptible of occupation by Lessee, this Lease will, as to the part taken terminate
as of the date the condemnor acquires possession. Lessee will be required to pay such
proportion of the rent for the remaining term as the value of the promises remaining bears to
the total value of the premises at the date of condemnation; provided, however, that Lessor
may at his/her option, terminate this Lease as of the date the condemnor acquires possession.
In the event that the premises are condemned in whole or the remainder is not susceptible for
use by the Lessee, this Lease will terminate upon the date which the condemnor acquires
possession. All sums which may be payable on account of any condemnation will belong solely
to the Lessor; except that Lessee will be entitled to retain any amount awarded to him/her for
his/her trade fixtures or moving expenses.
	 
	18.	 	TRADE FIXTURES: Any and all improvements made to the premises during the term will belong to
the Lessor, except trade fixtures of the Lessee.




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	 	 	      Lessee may, upon termination, remove all his/her trade fixtures, but will pay for all
costs necessary to repair any damage to the premises occasioned by the removal.
	 
	19.	 	DESTRUCTION OF PREMISES: in the event of a partial destruction of the premises during the
term, from any cause, Lessor will promptly repair the premises, provided that such repairs can
be reasonably made within sixty (60) days. Such partial destruction will not terminate this
lease, except that Lessee will be entitled to a proportionate reduction of rent while such
repairs are being made, based upon the extent to which the making of such repairs interferes
with the business of Lessee on the premises. If the repairs cannot be made within sixty 1501
days, this Lease may be terminated at the option of either party by giving written notice to
the other party within the sixty (60) day period.
	 
	20.	 	HAZARDOUS MATERIALS: Lessee will not use, store, or dispose of any hazardous substances upon
the premises, except the use and storage of such substances that are customarily used in
Lessee’s business, and are in compliance with all environmental laws. Hazardous substances
means any hazardous waste, substance or toxic materials regulated under any environmental laws
or regulations applicable to the property. Lessee will be responsible for the cost of removal
of any toxic contamination caused by lessee’s use of the premises.
	 
	21.	 	INSOLVENCY: The appointment of a receiver, an assignment for the benefits of creditors, or
the filing of a petition in bankruptcy by or against Lessee, will constitute a breach of this
Lease by Lessee.
	 
	22.	 	[LANGUAGE IS MISSING FROM ORIG]. worth at the time of award of the unpaid rent which had
been earned at the time of termination: (b) the worth at the time of sward of the amount by
which the unpaid rent which would have been earned after termination until the time of the
award exceeds the amount of such renter loss that the Lessee proves could have been reasonably
avoided; (c) the worth at the time of award of the amount by which the unpaid rent for the
balance of the term after the time of award exceeds the amount of such rental loss that the
lessee proves could be reasonably avoided; and td} any other amount necessary to compensate
Lessor for all the detriment proximately caused by the Lessee’s failure to perform his/her
obligations under the Lease or which in the ordinary course of things would be likely to
result therefrom.
	 
	 	 	      Lessor may, in the alternative, continue this Lease in effect, as long as Lessor does
not terminate Lessee’s right to possession, and Lessor may enforce all of Lessor’s rights
and remedies under the Lease, including the right to recover the rent as it becomes due
under the Lease, If said breach of Lease continues. Lessor may at any time thereafter elect
to terminate the Lease.
	 
	 	 	      These provisions will not limit any other rights or remedies which Lessor may have.
	 
	23.	 	SECURITY: The security deposit will secure the performance of the Lessee’s obligations.
Lessor may, but will not be obligated to, apply all or portions of the deposit on account of
Lessee’s obligations. Any balance remaining upon termination will be




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	 	 	returned to Lessee. Lessee will not have the right to apply the security deposit in payment
of the last month’s rent.
	 
	24.	 	DEPOSIT REFUNDS: The balance of all deposit, will he refunded within three weeks or as
otherwise required by law), from date possession is delivered to Lessor or his/her authorized
agent together with a statement thawing any charges made against the deposits by Lessor.
	 
	25.	 	ATTORNEY FEES: In any action or proceeding involving a dispute between Lessor and Lessee
arising out of this Lease, the prevailing party will be entitled to reasonable attorney fees.
	 
	26.	 	WAIVER: No failure of Lessor to enforce any term of this Lease will be deemed to be a
waiver.
	 
	27.	 	NOTICES: Any notice which either party may or is required to give, will be given by mailing
the notice, postage prepaid, to Lessee at the premises, or to Lessor at the address shown in
Item 2, or at such other places as may be designated in writing by the parties from time to
time. Notice will be effective five days after mailing, or on personal delivery, or when
receipt is acknowledged in writing.
	 
	28.	 	HOLDING OVER: Any holding over after the expiration of this Lease, with the consent of
Owner, will be a month-to-month tenancy at a monthly rent of $3390.00, payable in advance and
otherwise subject to the terms of this Lease, as applicable, until either party will terminate
the tenancy by giving the other party thirty 130) days written notice.
	 
	29.	 	TIME: Time is of the essence of this Lease.
	 
	30.	 	HEIRS, ASSIGNS, SUCCESSORS: This Lease is binding upon and inures to the benefit of the
heirs, resigns, and successors of the parties.
	 
	31.	 	TAX INCREASE: In the event there is any increase during any year of the term of this Lease
in real estate taxes over and above the amount of such taxes assessed for the tax year during
which the term of this Lease commences, Lessee will pay to Lessor an amount equal to of the
increase in taxes upon the land and building in which the leased premises are situated, in the
event that such taxes are assessed for a tax year extending beyond the term of the Lease, the
obligation of lessee will be prorated. Lessee will not be responsible for any tax increase
occasioned solely by a sale or transfer of the premises by Lessor.
	 
	32.	 	COST OF LIVING INCREASE: The rent provided for in Item 2 will be adjusted effective upon the
first day of the month immediately following the expiration of 12 months from date of
commencement of the term, and upon the expiration of each 12 months thereafter, in accordance
with changes in the U.S. Consumer Price Index for All Urban Consumers (1982-84 1001 (“CPI”).
The monthly rent will be increased to an amount equal to the monthly rant set forth in Item 2,
multiplied by a fraction the numerator of which is the CPI for the second calendar month
immediately preceding the adjustment date, and the denominator of which is the CPI for the
second calendar month




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	 	 	preceding the commencement of the Lease term; provided, however, that the monthly rent will
not be less than the amount set forth in item 2.
	 
	33.	 	OPTION TO RENEW: Provided that Lessee is not in default in the performance of this Lease,
Lessee will have the option to renew the Lease for an additional term of NEG months commencing
at the expiration of the initial Lease term. All of the terms and conditions of the Lease
will apply during the renewal term, except that the monthly rent will be the sum of $3990.00
which will be adjusted in accordance with the cost of living increase provision set forth in
Item 32.
	 
	 	 	      The option will be exercised by written notice given to Lessor not lass than 30 days
prior to the expiration of the initial Lease term. If notice is not given within the time
specified, this Option will expire.
	 
	34.	 	AMERICANS WITH DISABILITIES ACT: The parties are alerted to the existence of the Americans
With Disabilities Act, which may require costly structural modifications. The parties are
advised to consult with a professional familiar with the requirements of the Act.
	 
	35.	 	LESSOR’S LIABILITY: In the event of a transfer of Lessor’s title or interest to the property
during the term of this lease, Lessee agrees that the grantee of such title or interest will
be substituted as the Lessor under this Lease, and the original Lessor will be released of all
further liability; provided, that all deposits will be transferred to the grantee.
	 
	36.	 	ESTOPPEL CERTIFICATE:






     (a) On ten (10) days’ prior written notice from Lessor, Lessee will execute,
acknowledge, and deliver to Lessor a statement in writing: (1) certifying that this Lease is
unmodified and in full force and effect, (or if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full force and effect),
the amount of any security deposit, and the date to which the rent and other charges are
paid in advance, if any; and (2) acknowledging that there are not, to Lessee’s knowledge,
any uncured defaults on the part of Lessor, or specifying such defaults if any are claimed.
Any such statement may be conclusively relied upon by any prospective buyer or encumbrancer
of the premises.




     (b) At Lessor’s option, Lessee’s failure to deliver such statement within such time
will be a material breach of this Lease or will be conclusive upon Lessee: (1) that this
Lease is In full force and effect, without modification except as may be represented by
Lessor; (2) that there are no uncured defaults in Lessor’s performance: and (3) that not
more than one month’s rent has been paid in advance.




     (c) If Lessor desires to finance, refinance, or sell the premises, or any part thereof,
Lessee agrees to deliver to any lender or buyer designated by Lessor such financial
statements of Lessee as may be reasonably required by such lender or buyer. All financial
statements will be received by the Lessor or the lender or buyer in confidence and will be
used only for the purposes set forth.



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	37.	 	ENTIRE AGREEMENT: The foregoing constitutes the entire agreement between the parties and may
be modified only in writing signed by all parties. The following exhibits are a part of this
Lease:






	 	Exhibit A: 	 	  

	 
	 	Exhibit B:  	 	 

	 
	 	Exhibit C: 	 	  





The undersigned Lessee acknowledges that he/she has thoroughly read and approved each of the
provisions contained in this Offer, and agrees to the terms and conditions specified.




	 	 	 	 	 
	Lessee:

	 	/s/ Kenneth Russell
	 	Lessee: 
	 

	 	 	 	
 

	 
	Date: 8/4/04	 	Date:


	 	 	 







Receipt for deposit acknowledged by:                                                              Date




ACCEPTANCE



The undersigned Lessor accepts the foregoing Offer and agrees to lease the premises on the terms
and conditions set forth above.



NOTICE: The amount or rate of real estate commissions is not fixed by law. They are set by each
broker individually and may be negotiable between the owner and broker.




     The Lessor agrees to pay to _________, the Broker in this transaction, the sum
of _________ for services rendered and authorizes Broker to deduct said sum from the deposit
received horn Lessee.



     In the event the Lease is extended for a definite period of time or on a month-to-month basis
after expiration of the original term, Lessor will pay to Broker an additional commission of —% of
the total rental for the extended period. This commission will be due and payable at the
commencement of the extended period if for a fixed term, or if on a month-to-month basis, at the
termination of Lessee’s occupancy or one year, whichever is earlier.



     In any action for commission, the prevailing party will be entitled to reasonable attorney
fees.



	 	 	 
	Lessor
	 	Lessor 
	  
	 	  

	Date
	 	Date
	  
	 	  







Lessee acknowledges receipt of a copy of this accepted Lease.




	 	 	 
	Lessee
	 	Lessee
	  
	 	  

	Date:

	 	Date
	  
	 	  








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