AUTOLEND GROUP, INC.
600 Central SW, 3rd Floor, Albuquerque, NM 87102
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Phone(505) 768-1000; Fax(505) 768-1111
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November 13,2000
VIA FACSIMILE -(505) 820-9353 and FIRST CLASS MAIL
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Mr. Bruce Barna (Insert name of trust)
P.O. Box 22665
Santa Fe, NM 87502-2665
Dear Mr. Barna:
Pursuant to our recent conversation regarding the lease of AutoLend at the
Quickel building, we respectfully propose the following regarding modifications
to the lease. Each modification, if it so applies, shall be referred to as it is
numbered in the original lease.
II. Term of Lease (Shall be modified as follows):
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Initial Term of Lease. The initial term of this lease shall be for a
period of seven years, commencing on August 1, 1997 and ending July 31,
2004.
III. Rent (Shall be modified as follows):
----
Notwithstanding any provision to the contrary contained herein, commencing
on December 1, 2000, the lease payments shall be paid as follows, in the
following amounts:
December 1,2000 through December 31,2001 -$6,500.00/month
January 1,2002 through July 31,2002 -$10,OOO.00/month
August 1,2002 through July 31,2003 -$11,OOO.OO/month
August 1,2003 through July 31,2004 -$13,500.00/month
Late Fee: A late charge equal to 5% of the amount that is late will be
charged for any payment past 10 days from the due date.
All rent shall be paid to Landlord at:
P.O. Box 22665
Santa Fe, NM 87502-2665
or such other place as Landlord may designate from time to time.
Mr. Bruce Barna
November 13,2000
Page 2 of 3
XI. Assignment and Subletting (Shall be modified as follows):
---------------------------
Landlord and Tenant hereby confirm the validity of AutoLend Group, Inc.,
E.S- the assignee and successor in interest of this lease and further
acknowledge that no option to assume this lease under the same terms and
conditions contained herein is valid or granted to Nunzio P. DeSantis
and/or assigns, and any reference thereto in this section is hereby null
and void and of no force and effect.
XVI. Bankruptcy and Condemnation (Shall be modified as follows):
-----------------------------
Landlord hereby confirms the validity of this lease notwithstanding the
provisions of this section regarding breaches by AutoLend Group, Inc.,
if any, due to its bankruptcy.
XXIV. Option to Renew (Shall be modified as follows):
-----------------
Landlord hereby grants Tenant five (5) each two (2) year options to
renew this lease under the same terms and conditions contained herein
except rent which shall commence at a base rate of $11,500.00 for the
period August 1, 2004 through July 31,2005, and shall be adjusted
annually thereafter by the percentage change in the Consumer Price Index
(CPI), All Urban Consumers, U.S. Cities Average, all items, between the
first and last months of the immediately proceeding adjustment period,
using the first twelve (12) month's period rent of $11,500.00 as the
base rent for all future adjustments. In no event shall the adjusted
rental amount during any subsequent twelve (12) month period in the
option period(s) be less than that of the immediately preceding twelve
(12) month period. At such time as the adjusted rent amount can be
determined, Tenant shall immediately pay to Landlord the additional rent
which has accrued under this adjustment provision, and thereafter pay
the adjusted amount as advance monthly rent. Tenant must notify Landlord
in Writing not less than sixty (60) days prior to the expiration of this
lease and any of its renewal terms, of Tenant's intent to exercise it's
option to renew the lease in accordance herewith.
XXV. Option to Purchase (New Section):
--------------------
Landlord hereby grants to Tenant the Option to Purchase the Quickel
building located at 600 Central A venue, NW, and its contiguous parking
facility and area located directly south of the Quickel building, on the
comer of Sixth and Gold Streets, SW, in Albuquerque, New Mexico ("The
Property").
The purchase price shall be equal to the documented net operating income
divided by a capitalization rate equal to Wall Street Journal prime rate
plus 150 basis points, or based on an appraisal provided by Landlord
--
which is produced by an M.A.I. appraiser, whichever is lower, upon terms
and conditions acceptable to Landlord and Tenant.
Mr. Bruce Barna
November 13,2000
Page 3 of3
XXV. (Cont'd)
Tenant understands that Landlord is desirous of selling The Property on
3 tax favored basis such as a Section 1031 tax deferred real estate
exchange, and Tenant agrees to transact this option to be in compliance
with Landlord's requirements thereunder.
XXVI. Rent Abatement for December and January (New Section)
--------------------------------------------
Under any circumstances, AutoLend is under severe financial pressure and
requests that you apply the deposit you now hold in the amount of Ten
Thousand Dollars ($10,000) towards paying our December and January
rents. Any shortfall between the Ten Thousand Dollars ($10,000) deposit
and our negotiated rent will be added to the back end of the lease.
Mr. Barna, other than new section numbered XXVI above regarding the application
of the security deposit to December and January rent, I believe this covers all
of the changes we proposed. We thank you for your patience and consideration.
Please inform us as soon as possible so that we may prepare the necessary
documentation if you approve these modifications. Please call us if you have any
questions, or if you would like to discuss any of these issues.
Respectfully,
/s/ John Emery
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John Emery, President
---------------------------------
Vincent J. Garcia, Director
LEASE
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THIS LEASE is dated and effective the 1st day of January, 2001, by and between
The Lynn Atkison Trust, "Landlord", P.O. Box 2265, Santa Fe, New Mexico, 87502,
and AutoLend Group, Inc., a Delaware corporation ,"Tenant", 600 Central Avenue
SW, Suite 300, Albuquerque, New Mexico, 87102. This Lease supercedes, cancels,
and nullifies any and all prior leases between the Landlord and Tenant whether
having been originally entered into by the Landlord and Tenant or having arisen
by virtue of assignment or sublease and whether or not such prior lease has been
completed as of the date of this lease. Upon execution of this lease, Tenant and
Landlord hereby release each other from any and all obligations to each other on
any such prior lease.
ARTICLE I
Leased Premises
---------------
The Landlord hereby leases to Tenant, and Tenant hereby rents from
Landlord, the "Leased Premises" described as the commercial suite described as
Suite 300 (constituting the entire third floor) and located at the Quickel
Building, 600 Central Avenue SW, City of Albuquerque, County of Bernalillo,
State of New Mexico, containing approximately 9,935 Square feet. The actual
square footage and area is not warranted by the Landlord.
ARTICLE II
Term
----
The initial term of this lease shall be for three (3) years commencing
January 1, 2001 and terminating on the 31st day of December 2003. Additionally,
Tenant is granted two (2) options to extend the term of this lease for five
years each, commencing upon expiration of the initial term. Such option may be
exercised only if Tenant is not in default hereunder, by Tenant giving written
notice to the Landlord of the exercise thereof, at least ninety - (90) - days
prior to the end of the current term. During the option term, if the option
shall be exercised, this Lease shall continue in full force and effect as though
the term hereof extended through such option period. The option term or terms
shall be governed by the same terms and conditions of this lease.
ARTICLE III
Rent and Deposits
-----------------
1. Tenant agrees to pay to Landlord rentals of $7000.00 per month
($84,000.00 per year) for the initial year of this Lease. Tenant agrees to pay
to Landlord $12,325.00 per month ($147,900.00 per year) plus applicable Consumer
Price Index ("CPI") adjustment for the second year of this Lease. Tenant agrees
to pay to Landlord the same monthly and annual rent as that paid in the second
year of the lease plus applicable CPI adjustment for the third year of this
Lease. During the first option period, rent will be $11,000.00 per month
($132,000.00 per year) with annual CPI adjustments thereafter. During the second
option period, the rent will be the same monthly and annual rent as
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that of the first option period, plus the applicable CPI adjustments which shall
be applied annually for each and every year of the second option term.
2. All rental shall be payable on or before the first day of each calendar
month. TIME IS OF THE ESSENCE. Payment shall be made by delivery of a local
draft to Landlord at Landlord's address set forth above. Alternatively, if
Landlord directs, payment shall be made by deposit of a local draft into
Landlord's local bank account.
3. Tenant has deposited with Landlord the additional sum of $10,000.00 as
security for the performance by Tenant of all things to be done by Tenant under
this Lease, which sum shall be returned to Tenant, without interest, upon the
expiration of this Lease if the premises are peacefully surrendered, free and
clear of damage other than reasonable wear and tear, and if such surrender shall
occur without the Tenant being in default at the time of surrender.
4. CPI adjustments of base rent shall be calculated uncompounded from All
Urban Consumers, U.S. Cities Average, all items, between the first and last
months of the immediately preceding adjustment period. In no event shall the
adjusted rental amount during any twelve (12) month period be less than that of
the immediately preceding twelve (12) month period. At such time as the adjusted
rent amount can be determined, Tenant shall immediately pay to Landlord the
additional rent, which has accrued under this adjustment provision, and
thereafter pay the adjusted amount as advance monthly rent.
ARTICLE IV
Charge for Late Payment of Rent
-------------------------------
1. If the Tenant fails to pay any rent by the fifth (5th) business day of
the month in which it is due, Tenant must add ten percent (10%) to that
installment as additional rent.
2. Landlord need not give any notice to be entitled to these charges, and
such additional charge shall in no way be construed to limit the Landlord's
remedies in the event of such default, which remedies shall in all cases be
deemed to be cumulative.
ARTICLE V
Taxes
-----
All ad valorem taxes with respect to the real estate shall be paid by
Landlord, except that Tenant shall pay all increases in ad valorem taxes due to
Tenant's construction of Leasehold improvements. All taxes on personal property,
inventory, furniture, fixtures and trade fixtures shall be paid by the Tenant.
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ARTICLE VI
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Insurance
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1. The Landlord shall insure the Leased Premises against fire, normal
extended coverage perils, vandalism and malicious mischief Such insurance shall
be solely for Landlord's benefit and Tenant shall not be entitled to any
interest, direct or indirect, in the proceeds thereof
2. Throughout the terms of this Lease and any extension or renewal thereof,
the Tenant hereby agrees and covenants with Landlord to carry and maintain in
full force and effect at Tenant's expense, public liability insurance covering
bodily injury and property damage liability, in a form and with an insurance
company acceptable to Landlord, with single limit coverage of not less than
$1,500,000.00, for the benefit of both Landlord and Tenant as protection from
all liability claims arising from the Leased Premises, and Tenant shall cause
Landlord to be named as an additional-named insured on such policy of insurance
and shall deliver a copy thereof to Landlord. The Tenant shall carry and
maintain in effect sufficient insurance to cover Tenant's trade fixtures,
inventory, equipment, furnishings, leasehold improvements and glass, which
insurance shall protect against fire, normal extended coverage perils, vandalism
and malicious mischief
3. Tenant waives any right of subrogation, which its insurers may acquire
against Landlord, and will require all insurance policies required hereunder to
contain a waiver of subrogation rights.
4. All increases in insurance costs for the Quickel Building due to
Tenant's extraordinary activities shall be paid by Tenant as additional rent due
under the Lease Agreement and shall be due at the same time Landlord's insurance
premium(s) is due.
ARTICLE VU
Utilities
---------
Landlord and Tenant agree that the Leased Premises is offered on a "full
service" basis, including all utilities and janitorial service five (5) days
weekly, Monday through Friday, 7:00 a.m. to 7:00 p.m. If utility usage outside
of the above stated time periods becomes excessive, Landlord reserves the right
to assess reasonable charges for such use. Tenant hereby agrees and covenants
with Landlord to pay promptly other charges including but not limited to
telephone, television, computer internet, and other services which may be
incurred in connection with Tenant's use of the Leased Premises, and to save
harmless Landlord therefrom.
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ARTICLE VIII
Parking
-------
Included in the monthly rental, Tenant shall have the exclusive use of
seven (7) parking spaces in the enclosed parking structure and seven (7) parking
spaces in the adjacent outdoor parking area, all as assigned by the Landlord.
ARTICLE IX
Landlord's Right to Subordinate Lease
-------------------------------------
This Lease may, at Landlord's option, be subject and subordinate to the
lien of any trust deed or deeds, mortgages, or liens resulting from any other
method of financing or refinancing herebefore or hereafter placed upon the
Leased Premises, and to all other amounts advanced thereunder or consolidations
and extensions thereof; provided, however, that in the event of any foreclosure
or other suit, sale or proceedings thereunder, Tenant, if not then in default
hereunder will not be made a party to any such suit or proceeding, and the same
shall not affect the rights of the Tenant under this Lease. Tenant agrees to
execute such instruments as may reasonably be requested by any beneficiary or
mortgagee to evidence and make a record of the fact that this Lease is to be
inferior to any such deed of trust or mortgage, but in no event shall Tenant be
obligated to any beneficiary or mortgagee for the obligations of Landlord or its
assigns. Tenant agrees to execute such agreements as may be reasonably requested
by any beneficiary or mortgagee to secure any pledge or assignment of rentals.
ARTICLE X
Tenant's Warranties and Covenants
---------------------------------
Tenant agrees and covenants:
1. To pay rents and all other payments promptly as herein provided to the
address of Landlord shown above or as hereafter designated in writing by
Landlord, and not to withhold payment of any payment due to Landlord, even if a
dispute exists between Tenant and Landlord as to any other issue.
2. To permit no concessionaire or licensee to occupy the Leased Premises.
3. To permit Landlord to advertise the Leased Premises for rent at a
reasonable time before the Lease expires or the tenancy otherwise terminates.
Signs or other devices of said purpose may be placed in or about the Leased
Premises no sooner than ninety (90) days prior to the expiration of the Lease.
In addition, upon reasonable advance notice, to permit Landlord to show the
Leased Premises to prospective tenants during said ninety (90) days period, but
only during regular business hours of the Tenant and only in such a manner so as
not to disrupt Tenant ' s business.
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4. To place signs or exterior additions upon the Leased Premises only after
the same have been approved as to style, number, location and manner of hanging
by the Landlord.
5. T o faithfully and promptly abide by this lease agreement and to perform
all duties of the Tenant required by this lease agreement.
ARTICLE XI
Condition of Premises
---------------------
1. Upon the commencement of the lease term, the Leased Premises shall be
provided by Landlord to Tenant in the same condition as the premises exist on
this date.
2. Tenant shall not make or permit to be made any alterations, additions or
changes to the Leased Premises without the Landlord's prior written consent,
which shall not be unreasonably withheld. All work with respect to permitted
alterations, additions and changes, including lighting fixtures, shelves,
carpeting, tile, mirrors, counters, and all other items attached to the Leased
Premises in any way, shall be done at Tenant's sole expense in a good and
workmanlike manner. All or any part of such alterations, additions or changes
shall be considered as improvements owned by Landlord which shall not be
removable by Tenant. Any such alterations shall comply with all ordinances and
regulations relating thereto. Upon termination of this Lease other than by
default of Tenant, and only if Tenant has faithfully performed all its
obligations to Landlord, Tenant may remove Tenant's removable trade fixtures
which are not affixed to the Leased Premises, provided that Tenant shall restore
the Leased Premises to their original condition, ordinary wear and tear
excepted.
3. Landlord shall not be responsible to make any improvements,
modifications or alterations to the Leased Premises in order to comply with any
governmental requirements, building or fire codes, ordinances, regulations or
laws.
4. At the end of the lease term, Tenant shall peaceably surrender the
Leased Premises in a clean and orderly condition clear and free of damage other
than reasonable wear and tear.
ARTICLE XII
Repair and Maintenance
----------------------
Landlord shall be responsible for and keep the structural members of the
building, the basic electrical, plumbing and other utility systems, and the
exterior walls of the building and the roof in good repair, except where such
repair is necessitated by the act, negligence, or omissions of Tenant or his
employees, customers, guests, agents, or contractors, in which case such repairs
shall be promptly made by Tenant at Tenant's sole expense. It is expressly
understood and agreed that Landlord shall have no obligation to maintain, paint,
clean, repair, or replace interior walls, floor coverings, doors, interior
glass, interior windows, or additions or alterations except where such repair or
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replacement is caused by Landlord's acts or omissions. It is further understood
and agreed that all other obligations of maintenance and repair of the Leased
Premises shall be the Tenant's including, but not by way of limitation, the
floor coverings, non- structural walls, floors and surfaces of all exposed
portions of the interior of the Leased Premises, the security systems, doors and
locks, and interior windows broken or otherwise damaged during the term hereof
Charges incurred in changing either security codes or locks and keys for the
Leased Premises shall be paid for by the Tenant. Tenant shall keep the Leased
Premises in first class condition. Any and all improvements and modifications to
the Leased Premises required by applicable governmental requirements, building
or fire codes, ordinances, regulations, or laws shall be the sole responsibility
of Tenant, and not Landlord.
ARTICLE XIII
Use of Premises
---------------
Tenant shall utilize the Leased Premises exclusively for general office
use, and for no other purpose. The Leased Premises shall not be used for any
other purpose without first obtaining the written consent of Landlord therefore.
Landlord shall not be required to keep other tenants from competing with Tenant.
Tenant shall not use or knowingly permit any part of the Leased Premises to be
used for any unlawful purpose, or for any purpose in violation of applicable
governmental laws, rules or regulations. Tenant shall not permit any act to be
done or any condition to exist on the Leased Premises or any article to be
brought thereon which may be offensive or dangerous, unless safeguarded as
required by law, or which may in law constitute a nuisance, public or private,
or which may make void or voidable any insurance then in force with respect to
the Leased Premises, or which will increase the fate of insurance on the Leased
Premises. Tenant shall not interfere with the business activities of any of the
other tenants of the Quickel Building, and shall at all times conduct Tenant's
business in a reasonable, peaceful and dignified manner, so as to enhance the
general business climate of the Quickel Building. Tenant shall not reside on the
Leased Premises or allow any other person to reside on the Leased Premises.
Absolutely no guard dogs or any pets, animals or birds shall be allowed on the
Leased Premises.
ARTICLE XIV
Pledge, Assignment and Subleasing
---------------------------------
Tenant shall not encumber, pledge or use as collateral in any fashion, any
portion of the Leased Premises. Tenant may not sublet the Leased Premises
without Landlord's written consent. Which consent shall not be unreasonably
withheld, utilizing reasonable commercial standards, provided however, that
Landlord is entering into this Lease Agreement based upon certain
representations made by Tenant, including but not limited to Tenant's intended
use of the Leased Premises, Tenant's proposed style and manner of doing
business, Tenant's financial abilities, and the need for balance and
diversification in the tenant mix. In no event may the Leased Premises be
occupied by multiple tenants, subtenants, licensees or permittees. The refusal
of Landlord to grant consents as aforesaid based on Landlord's need for balance
and diversification of tenants shall be
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deemed a reasonable cause for refusal of such consents. Tenant shall not assign
this Lease. In the event of assignment or sublease, whether authorized or not,
Tenant shall not be released from liability to perform the lease. Landlord
acknowledges that Tenant may sell all or part of its business during the lease
term, subject to the above considerations. In the event of such sale, Tenant
shall not be released from liability to perform the Lease without written
approval of Landlord.
ARTICLE XV
Holding Over
------------
If Tenant shall, with the knowledge and consent of Landlord, continue to
occupy the Leased Premises after the expiration of the term of this Lease,
Tenant shall become for such extension period a Tenant from month to month on
the same terms as herein stipulated for the last month of the former lease term,
plus ten percent (10%). If Tenant holds over after the expiration of the term of
this Lease without Landlord's consent, daily rent shall accrue at ten percent
(10%) of the last month's rent of the previous lease year.
ARTICLE XVI
Damage to Leased Premises by Catastrophe
----------------------------------------
Tenant agrees and covenants with Landlord that if at any time during the
term of this Lease, or any extension or renewal thereof, the said demised Leased
Premises shall be totally or partially destroyed by fire, earthquake, or other
calamity, then Landlord shall have the option to rebuild or repair the same,
provided such rebuilding or repairing shall be commenced within the period of
thirty days after notice in writing to Landlord of such destruction or damage,
and to rebuild or repair the same in as good condition as they were immediately
prior to such calamity. In such case, a just and proportionate part of the rent
herein specified shall be abated until such demised Leased Premises shall have
been rebuilt and repaired. In case, however, Landlord shall, within thirty days
following notice in writing to him of such damage, elect not to rebuild or
repair said Leased Premises, Landlord shall so notify Tenant and, thereupon,
this Lease shall terminate and become null and void.
ARTICLE XVII
Landlord's Liability and Tenant's
---------------------------------
Indemnification of Landlord
---------------------------
The tenant shall assume all liability and shall be solely responsible for
damages which may arise from any accident which occurs in or about the Leased
Premises while this Lease is in force except as otherwise provided by this
Lease, incident to Tenant's use of the Leased Premises. Tenant shall defend and
indemnify Landlord from all claims and suits against Landlord relative to
accidents which occur on or in the Leased Premises. The Tenant agrees to make no
claim against the Landlord for or on account of any loss or damage by reason of
fire, water damage, leakage, failure of heating, air conditioning, electrical or
plumbing systems, or other casualty (including utility breakage or malfunction)
except as provided in this Lease or as may be caused by a breach of any of
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the Landlord's agreements or duties. The Landlord shall not be liable, except
with respect to Landlord's intentional acts, for damage or personal injury or
property damage in or about the Leased Premises while this Lease or any renewal
or extension hereof is in force. This indemnification clause shall not be
construed to create any right of action or basis of claim on behalf of any third
party against either party hereto.
ARTICLE XVIII
Covenant of Quiet Enjoyment
---------------------------
1. So long as the Tenant is not in default hereunder during the base term
hereof and any renewal or extension hereof, the Landlord covenants that the
Tenant shall peaceably and quietly occupy and enjoy the Leased Premises subject
to the terms hereof, except that Landlord may engage in reasonable construction
activities on or near the Leased Premises. The Landlord warrants and agrees to
defend the title to the Leased Premises, and further warrants that he has full
authority to execute this Lease.
2. Tenant shall carefully monitor and control all activities on the Leased
Premises so as to insure that no unreasonable noise or odor from the Leased
Premises is transmitted to the adjacent space.
ARTICLE XIX
Waiver
------
No assent expressed or implied by either party to any breach of any one or
more of the covenants or agreements hereof by the other shall be deemed or
construed to be a waiver of any succeeding or other breach.
ARTICLE XX
Bankruptcy and Condemnation
---------------------------
Tenant hereby agrees and covenants with Landlord that should Tenant, or
anyone of them, make an assignment for the benefit of creditors or should be
adjudged a bankrupt, either by voluntary or involuntary proceedings, or if
otherwise a receiver should be appointed by any court of competent jurisdiction
for Tenant because of any insolvency, the occurrence of any such event shall be
deemed a breach of this Lease, and, in such event, Landlord shall have the
option to forthwith terminate this Lease and re- enter the demised Leased
Premises and take possession thereof, whereupon Tenant shall quit and surrender
peaceably the demised Leased Premises to Landlord. In no event shall this Lease
be deemed an asset of Tenant, or anyone of them, after adjudication in
bankruptcy, the appointment of a receiver, or the assignment for the benefit of
creditors. Further, Tenant hereby covenants and agrees with landlord that in the
event the demised Leased Premises, or any part thereof, are taken, damaged
consequentially or otherwise, or condemned by public authority, this Lease shall
terminate, as to the part so taken, as of the date title shall vest in the said
public authority, and the rent reserved shall be adjusted so that Tenant shall
be required to pay for the remainder of the term that portion of the rent
reserved in the proportion that the demised Leased Premises remaining after the
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taking, damaging, or condemnation bears to the whole of the demised Leased
Premises before the taking, damaging, or condemnation. All damages and payments
resulting from the said taking, damaging, or condemnation of the demised Leased
Premises shall accrue to and belong to Landlord, and Tenant shall have no right
to any part thereof If more than thirty percent (30%) of the demised Leased
Premises becomes unavailable for use for more than thirty (30) calendar days
from written notice due to fire, flooding, condemnation or other event causing
the demised Leased Premises to be uninhabitable, Tenant shall have the right to
cancel this Lease in its entirety with written notification to Landlord.
ARTICLE XXI
Default. Termination. and Remedies
----------------------------------
It is understood and agreed between Landlord and Tenant that if the rent
specified above, or any part thereof, shall be in arrears or unpaid five (5)
days after the first day of the month, then Tenant shall, without notice from
Landlord, be automatically deemed in default.
It is understood and agreed between Landlord and Tenant that if default
shall be made in any of the covenants or agreements contained in this Lease,
other than rent, Landlord will give Tenant thirty- (30) -days written notice
unless Landlord and Tenant mutually agree to extend such period, to cure such
default. If Tenant shall remain in possession of the Leased Premises after the
above required notice period, and such default has not been cured, it shall be
lawful for the Landlord to declare the said term ended and re-enter the Leased
Premises to expel, remove, or put out Tenant; and to repossess and enjoy the
same Leased Premises again as in its first and former state.
If at any time the term shall be declared ended at such election of
Landlord, Tenant agrees to surrender and deliver the Leased Premises peaceably
to the Landlord. If Tenant shall remain in possession of the Leased Premises
after the required notice period specified above, Tenant shall be deemed guilty
of a forcible entry and detainer of the Leased Premises under the laws of the
State of New Mexico and shall be subject to eviction and removal under due
process of law.
It is understood and agreed between Landlord and Tenant that at any time
after such termination the Landlord may re-lease the Leased Premises or any part
thereof, for such term and on such conditions as the Landlord, in his sole
discretion, may determine, and may collect and receive the rent thereafter. In
the event Landlord re-leases the Leased Premises, it is understood and agreed
that the term may be greater or lesser than the period which constituted the
term of this Lease, and the conditions may include free rent or other
concessions which may be reasonably required to induce another party to lease
the Leased Premises. Landlord agrees to work in good faith to re-lease the
Leased Premises to mitigate economic loss to Landlord and Tenant.
It is also understood and agreed that no such termination of this Lease
shall relieve Tenant of its liabilities and obligations under this Lease, and
such liabilities and
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obligations shall survive any such termination. In the event of any such
termination, whether or not the Leased Premises have been re-leased, the total
remaining balance of the rent which would be due and payable for the remainder
of the term of this Lease, less the net proceeds of any re-leasing effected by
the Landlord, shall become due and payable as liquidated damages of Tenant's
default. The net proceeds shall be calculated as the gross dollar amount of the
new lease less any expenses Landlord incurred in re-leasing the Leased Premises
including but not limited to all repossession costs, brokerage commissions,
legal and attorney's fees, alteration costs and expense of preparation for such
re-leasing.
ARTICLE XXII
Expenses of Default: Attorney's Fees
------------------------------------
It is further agreed by and between the parties hereto that Tenant shall
pay and discharge all costs, reasonable attorney's fees, and expenses that shall
arise from enforcing the covenants of this Lease by Landlord, Landlord's heirs,
executors, administrators, assigns or successors in interest. Should Landlord
engage an attorney for the purposes of writing Tenant a notice of default or
other demand, Tenant shall be required to pay Landlord's legal fees therefore in
the amount of two hundred and fifty dollars ($250.00), should Tenant actually be
in default. Also, if Landlord engages an attorney for any default of Tenant or
to review any request of Tenant, including a request to assign or sublet, Tenant
shall pay all Landlord's costs and reasonable attorney's fees thereby incurred.
ARTICLE XXIIII
Failure to Terminate
--------------------
Tenant agrees and covenants with Landlord that failure, neglect, or
omission of Landlord to terminate this Lease for anyone or more breaches of any
of the covenants hereof remaining unresolved, shall not be deemed a consent by
Landlord of such breach and shall not stop, bar, or prevent Landlord from
thereafter terminating this Lease, either for such violation, or for any
unresolved prior or subsequent violation of any covenant hereof.
ARTICLE XXIV
Notice
------
1. All notices to be given with respect to this Lease shall be in writing.
Each notice shall be sent by registered or certified mail, postage prepared and
return receipt requested, or hand delivered to the party to be notified at the
address set forth above, or at such other address as either party may from time
to time designated in writing.
2. Every notice shall be deemed to have been given at the time it shall be
deposited in the United States mail in the manner prescribed herein. Nothing
contained
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herein shall be construed to preclude personal service of any notice in the
manner prescribed for personal service of a summons or other legal process.
3. Notice to Landlord shall be addressed to Landlord at the address set
forth above, or at such other location as may be designated in writing by
Landlord to Tenant. Notice to Tenant shall be addressed to Tenant at the Leased
Premises or at such other location as may be designated in writing by Tenant to
Landlord.
ARTICLE XXV
Right of Landlord to Enter Premises
-----------------------------------
Landlord or its agents or employees may enter upon the Leased Premises for
any purpose at any reasonable times during Tenant's regular business hours or
otherwise during the term of this Lease with reasonable notice to Tenant, or
without such notice and at any time if it is deemed by Landlord to be necessary
for protection of the premises or of adjoining areas in the building Any such
entry or inspection shall be done in such a manner so as to be the least
disruptive to Tenant's business.
ARTICLE XXVI
Landlord's Contractual Security
-------------------------------
Interest and Landlord's Lien
----------------------------
In addition to all other statutory or common law landlord's liens, Landlord
shall at all times have both a valid contractual security interest and
Landlord's lien to secure payment of all rentals and other sums of money
becoming due hereunder from Tenant, and to secure payment of any damages or loss
which Landlord may suffer by reason of the breach by Tenant of any covenant,
agreement or condition contained herein, upon all goods, wares, equipment,
fixtures, furniture, improvements, inventory and all other personal property of
Tenant, presently, or which may hereafter be situated on the Leased
Premises, and all proceeds therefrom. Tenant shall at Landlord's request execute
such security agreements and financing statements as are required by Landlord to
perfect or document Landlord's security interest. Upon the occurrence of an
event of default, as defined in Article XXIII, by Tenant, Landlord may, in
addition to any other remedies provided herein, enter upon the Leased Premises
and take possession of any and all goods, wares, equipment, fixtures, inventory,
improvements and all other personal property of Tenant or any other party
situated on the premises without liability for trespass or conversion, and to
dispose of such items in a reasonable manner as provided for in the New Mexico
Uniform Commercial Code. Landlord's right of lien does not extend to personal
property within the demised Leased Premises.
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ARTICLE XXVII
Unenforceable Provisions
------------------------
If any provisions of this Lease shall be declared invalid or unenforceable,
the remainder of the Lease shall continue in full force and effect.
ARTICLE XXVIII
Genders
-------
Where necessary to carry out the meaning hereof, the singular shall mean
the plural, the singular, and any gender shall apply to all genders.
ARTICLE XXIX
Amendment
---------
The Lease constitutes the total understanding between the parties and no
modification hereof shall be effective except when in writing and signed by all
parties hereto. All previous representations and/or understandings of the
parties are merged into this lease.
ARTICLE XXX
Delays Beyond Landlord's Control
--------------------------------
Whenever Landlord or Tenant are responsible for any action under this
Lease, either shall not be liable or responsible for and there shall be excluded
from the computation of any period of time any delays due to strikes, riots,
acts of God, shortages of labor or materials, delay occasioned by contractors or
subcontractors, governmental laws, regulations or restrictions, or any other
causes of any kind whatsoever which are beyond the reasonable control of the
party, except for payment of rent or other sums owed by Tenant under this lease.
ARTICLE XXXI
Estoppel Certificate
--------------------
Tenant agrees to, from time to time, upon request by Landlord, execute and
deliver to Landlord a statement in recordable form certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as so modified).
ARTICLE XXXII
Headings
--------
The headings of the Articles of this Lease are for convenience only and
shall not limit or affect the enforceability of the terms of this Lease. They
shall not be utilized in interpreting this Lease.
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ARTICLE XXXIII
Sale
----
If Landlord sells the property, such sale shall be subject to all terms and
conditions of this Lease, and the Purchaser shall be required to assume and
perform Landlord's obligations in Landlord's name, place and stead. Landlord
shall be relieved of all liability to Tenant upon such sale. Prior to or after
Landlord's sale of the property, Tenant shall be required to execute an estoppel
letter in standard form to the purchaser, which estoppel letter must be signed,
if the statements contained therein are correct, within ten (10) working days of
presentment to Tenant. Failure to execute such estoppel letter within such time
will constitute an irrevocable acknowledgement that the statements contained in
the unsigned estoppel letter are true and binding upon Tenant.
ARTICLE XXXIV
Applicable Law
--------------
The applicable law governing this Lease and any proceeding resulting from
or arising out of this Lease shall be the law of the State of New Mexico. Any
arbitration or other legal proceeding resulting from or arising out of this
Lease shall be brought in the First Judicial District of Santa Fe County, Santa
Fe, New Mexico.
ARTICLE XXXV
Dispute Resolution
------------------
In any dispute between Landlord and Tenant arising out of this Lease,
Landlord and Tenant hereby agree that such dispute shall be submitted to binding
arbitration before an arbitrator approved by both Landlord and Tenant. If
Landlord and Tenant are unable to agree upon a mutually acceptable arbitrator,
each will appoint one arbitrator of its choice to a three-person arbitration
panel. The third arbitrator shall be selected by the two appointed arbitrators.
The prevailing party shall be entitled to recover from the non-prevailing party
its share of arbitration costs and expenses including reasonable attorney's
fees.
ARTICLE XXXVI
Binding Effect
--------------
This Lease and all agreements herein contained shall bind the parties
hereto and their heirs, personal representatives, successors and assigns.
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IN WITNESS WHEREOF, the Landlord and Tenant have executed this Lease effective
on the day and year first above written.
LANDLORD TENANT
/s/ The Lynn Atkison Trust /s/ AutoLend Group, Inc.
- ---------------------------- ----------------------------
The Lynn Atkison Trust AutoLend Group, Inc.
By: Lynn Atkison, Trustee By: John Emery
Its: Acting President
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