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Exhibit 10.61
EQUIPMENT SUBLEASE
THIS EQUIPMENT SUBLEASE (this "Sublease") is made and entered into as
of the 28 day of March, 2000, by and between XXXXXXXX.XXX, INC., a Delaware
corporation ("goracing"), ACTION PERFORMANCE COMPANIES, INC., an Arizona
corporation ("Action") (Action and goracing are hereinafter referred to each as
a "Sublessor" and collectively as "Sublessors") and INTEGRATED INFORMATION
SYSTEMS, INC., a Delaware corporation, ("Sublessee").
RECITALS
A. Action entered into a certain Master Equipment Lease with General
Electric Capital Corporation, a New York corporation ("GE Capital") dated as of
December 22, 1998 including Computer Equipment Schedule No. 1 dated December 22,
1998, Computer Equipment Schedule No. 2 dated February 18, 1999 and Addendum to
Schedules No. 001 and 002 to Master Lease Agreement dated as of February 18,
1999 (collectively the "Action Master Equipment Lease"), whereby Action leased
certain equipment listed on Schedule A hereto (the "Action Equipment") from GE
Capital.
B. goracing entered into a certain Master Equipment Lease with GE
Capital dated as of August 9, 1999 including Computer Equipment Schedule No. 01
dated October 1, 1999, Computer Equipment Schedule No. 02 dated November 5,
1999, Furniture Schedule No. 003 dated December 29, 1999, and Furniture Schedule
No. 004 dated January 24, 2000 (collectively the "goracing Master Equipment
Lease"), whereby goracing leased certain equipment listed on Schedule B hereto
(the "goracing Equipment") from GE Capital. (The Action Equipment and the
goracing Equipment are hereinafter collectively referred to as the "Equipment"
and the Action Master Equipment Lease and the goracing Master Equipment Lease
are hereinafter each referred to as a "Base Equipment Lease" and collectively
referred to as the "Base Equipment Leases.")
C. The Equipment is located at and used in connection with the
occupancy of the premises located at 0000 Xxxxx Xxxxxxx Xxxxx, Xxxxx, Xxxxxxx
(the "Premises").
D. On even date herewith, Action and Sublessee intend to enter into a
Sublease Agreement (the "Hohokam Sublease") whereby Sublessee will sublease from
Action a portion of the Premises.
E. In connection with Hohokam Sublease, Sublessee desires to sublease
the Equipment from Sublessors, and Sublessors desire to sublease the Equipment
to Sublessee, on the terms and conditions herein set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Sublessors and Sublessee hereby
agree as follows:
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1. GRANT.
(a) BY ACTION. Action hereby subleases its rights and
obligations in the Action Master Equipment Lease to Sublessee, and Sublessee
hereby subleases Action's rights and obligations in the Action Master Equipment
Lease from Action, on the terms and conditions herein set forth.
(b) BY GORACING. goracing hereby subleases its rights and
obligations in the goracing Master Equipment Lease to Sublessee, and Sublessee
hereby subleases goracing's rights and obligations in the goracing Master
Equipment Lease from goracing, on the terms and conditions herein set forth.
2. INCORPORATION OF BASE EQUIPMENT LEASE; EXCEPTIONS. Each and every
provision of the Base Equipment Leases is incorporated herein by this reference.
Sublessors shall sublet their respective interests in the Equipment to Sublessee
under the same rental, terms and conditions to which Sublessors agreed as the
"Lessee" in the respective Base Equipment Leases, except as otherwise herein
provided. Wherever the term "Lessee" appears in the Base Equipment Leases, it
shall be deemed to refer to Sublessee. Sublessee shall render performance to
Lessor as required under all of the terms of the Base Equipment Leases.
Sublessee shall be entitled under this Sublease to all of the rights and
benefits that the Sublessors, as Lessee, enjoy under the Base Equipment Leases,
except as otherwise herein provided. Sublessee hereby expressly agrees to be
bound by all terms and conditions contained in the Base Equipment Leases.
3. TERM.
(a) ACTION MASTER EQUIPMENT LEASE. Sublessee's rights and
obligations under this Sublease with respect to the Action Master Equipment
Lease shall commence as of the date first set forth above and shall expire
according to the terms of the Action Master Equipment Lease.
(b) GORACING MASTER EQUIPMENT LEASE. Sublessee's rights and
obligations under this Sublease with respect to the goracing Master Equipment
Lease shall commence as of the date first set forth above and shall expire
according to the terms of the goracing Master Equipment Lease.
4. BASE RENT AND OTHER CHARGES.
(a) GENERALLY. Beginning with payments due after the date
first written above, the Sublessee shall pay directly to Lessor the monthly rent
due under Base Equipment Leases as well as any additional payments due under the
Base Equipment Leases, including but not limited to all taxes, fees and
assessments due, imposed, assessed or levied against any Equipment (each a
"Payment" and collectively the "Payments"), in the amount required by the terms
of the Base Equipment Leases which shall be due and payable to Lessor on or
before the date such Payment is due under the Base Equipment Leases. Sublessee
shall provide Sublessors with written proof of the timely payment of each
Payment within five (5) business days after the delivery of such Payment.
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(b) CONTINGENCY. To the extent that Lessor objects to the
payment structure agreed to in Section 4(a) hereto, the parties agree that
Sublessee shall deliver all Payments to goracing no later than five (5) business
days before the date such Payment is due to the Lessor under the Base Equipment
Leases. All Payments delivered under this Section 4(b) shall be made payable
jointly to the Lesser and goracing. To the extent such Payment has been tendered
from Sublessee to goracing, pursuant to the terms of this Section 4(b), goracing
shall provide Sublessee with written proof of the timely payment to Landlord of
such Payment within five (5) business days after the due date.
5. REPORTS.
(a) LIENS. If any tax or other lien shall attach to any
Equipment, Sublessee will notify Sublessors in writing, within ten (10) days
after Sublessee becomes aware of the tax or lien. The notice shall include the
full particulars of the tax or lien and the location of such Equipment on the
date of the notice.
(b) FINANCIAL STATEMENTS. Sublessee shall deliver to
Sublessors, Sublessee's complete financial statements, certified by a recognized
firm of certified public accountants within ninety (90) days of the close of
each fiscal year of Sublessee.
(c) INSPECTION. Sublessors may inspect any portion of the
Equipment during normal business hours after giving the Sublessee reasonable
prior notice.
(d) RELOCATION. Sublessee will keep the Equipment at the
Premises and will give Sublessors prior written notice of any relocation of any
portion of the Equipment.
(e) LOSS OR DAMAGE. If any Equipment is lost or damaged (where
the estimated repair costs would exceed the greater of ten percent (10%) of the
original equipment cost (as listed in the Base Equipment Leases) or ten thousand
dollars ($10,000), or is otherwise involved in an accident causing personal
injury or property damage, Sublessee will promptly and fully report the event to
Sublessors in writing.
(f) OFFICER'S CERTIFICATE. Sublessee will furnish a
certificate of an authorized officer of Sublessee stating that he has reviewed
the activities of Sublessee and that, to the best of his knowledge, there exists
no default or event which with notice or lapse of time (or both) would become
such a default within thirty (30) days after any request by Sublessors.
6. INSURANCE. Sublessee shall maintain insurance on the Equipment as
stipulated in Section 9 of the Base Equipment Leases. Sublessee shall name
Sublessors as an additional insured on such insurance policy(ies).
7. DEFAULT AND REMEDIES.
(a) DEFAULT. Sublessors may in writing declare this Sublease
in default if: (i) Lessor may currently declare Sublessee in default in
accordance with the provisions of Section 11 of either of the Base Equipment
Leases, (ii) Sublessee breaches any of its obligations under this Sublease and
fails to cure that breach within ten (10) days after written notice from the
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Sublessors; or (iii) any representation or warranty made in connection with this
Sublease shall be false or misleading in any material respect.
(b) REMEDIES. After a default under this Sublease, at the
request of the respective Sublessor, Subleassee shall comply with the provisions
of Section 10(a) of the respective Base Equipment Lease. Sublessee hereby
authorizes Sublessor to peacefully enter any premises where any Equipment
subject to the respective Base Equipment Lease may be and take possession of the
Equipment. Sublessee shall immediately pay to the respective Sublessor without
further demand as liquidated damages for loss of bargain and not as a penalty,
the Stipulated Loss Value of the Equipment (as defined in the respective Base
Equipment Lease and calculated as of the rent payment date prior to the
declaration of default) and all rents and other sums then due under this
Sublease. Sublessors may terminate this Sublease as to any or all of the
Equipment. A termination shall occur only upon written notice by Sublessors to
Sublessee and only as to the specific Equipment specified in any such notice.
Sublessors may, but shall not be required to, lease, otherwise dispose of or
keep idle all or part of the Equipment. Sublessors may use Sublessee's premises
for a reasonable period of time for any or all of the purposes stated above
without liability for rent, costs, damages or otherwise. The proceeds of such
lease or other disposition, if any, shall be applied in the following order of
priorities: (i) to pay all of Sublessors costs, charges and expenses incurred in
taking, removing, holding, repairing, leasing or otherwise disposing of
Equipment; (ii) to the extent not previously paid by Sublessor, to pay Lessor
all sums due from Sublessee under this Sublease; (iii) to reimburse Sublessee
any sums previously paid by Sublessor as liquidated damages; and (iv) any
surplus shall be retained by the respective Sublessor. Sublessee shall
immediately pay any deficiency in (i) and (ii) above.
(c) REMEDIES CUMULATIVE. The foregoing remedies are
cumulative, and any or all thereof may be exercised instead of or in addition to
each other or any additional remedies under this Sublease, at law, in equity, or
under statute. Sublessee shall pay Sublessors' actual attorneys' fees incurred
in connection with the enforcement, assertion, defense or preservation of
Sublessors' rights and remedies under this Sublease, or if prohibited by law,
such lesser sum as may be permitted. Waiver of any default shall not be a waiver
of any other or subsequent default.
8. INDEMNIFICATION. Sublessee hereby agrees to indemnify Sublessors,
their agents, employees, successors and assigns from and against any and all
losses, damages, penalties, injuries, claims, actions and suits, including legal
expenses, of whatsoever kind and nature arising out of or relating to the
Equipment or this Sublease, except to the extent the losses, damages, penalties,
injuries, claims, actions, suits or expenses result from Sublessors' gross
negligence or willful misconduct.
9. REPRESENTATIONS AND WARRANTIES OF SUBLESSEE. To induce the
Sublessors to enter into this Sublease, Sublessee makes the following
representations and warranties to Sublessor:
(a) POWER AND CAPACITY. Sublessee has adequate power and
capacity to enter into, and perform under, this Sublease. Sublessee is duly
qualified to do business wherever necessary to carry on its present business and
operations, including the jurisdiction(s) where the Equipment is or is to be
located.
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(b) BINDING AGREEMENT. This Sublease has been duly authorized,
executed and delivered by Sublessee and constitutes a valid, legal and binding
agreement, enforceable in accordance with its terms.
(c) NO VIOLATION. The entry into and performance by Sublessee
of this Sublease will not: (i) violate any judgment, order, law or regulation
applicable to Sublessee or any provision of Sublessee's Certificate of
Incorporation or bylaws; or (ii) result in any breach of, constitute a default
under or result in the creation of any lien, charge, security interest or other
encumbrance upon any Equipment pursuant to any indenture, mortgage, deed of
trust, bank loan or credit agreement or other instrument (other than this
Sublease along with the Base Equipment Leases) to which Sublessee is a party.
(d) NO PROCEEDINGS. There are no suits or proceedings pending
or threatened in court or before any commission, board or other administrative
agency against or affecting Sublessee, which if decided against Sublessee will
have a material adverse effect on the ability of Sublessee to fulfill its
obligations under this Agreement.
(e) GOOD STANDING. Sublessee is and will be at all times
validly existing and in good standing under the laws of the State of its
incorporation (specified in the first sentence of this Agreement).
(f) USE OF EQUIPMENT. The Equipment will at all times be used
for commercial or business purposes.
(g) "AS IS" CONDITION. Sublessee acknowledges that the
Equipment is being subleased "as is" and that the Sublessors make no
representations with regard to the Equipment's condition or future use or
performance.
10. REPRESENTATIONS AND WARRANTIES OF SUBLESSORS. To induce the
Sublessee to enter into this Sublease, Sublessors makes the following
representations and warranties to Sublessee:
(a) POWER AND CAPACITY. Sublessors have adequate power and
capacity to enter into, and perform under, this Sublease. Sublessors are duly
qualified to do business wherever necessary to carry on their present business
and operations, including the jurisdiction(s) where the Equipment is located.
(b) BINDING AGREEMENT. This Sublease has been duly authorized,
executed and delivered by Sublessors and constitutes a valid, legal, and binding
agreement, enforceable in accordance with its terms.
(c) NO VIOLATION. The entry into and performance by Sublessors
of this Sublease will not: (i) violate any judgment, order, law or regulation
applicable to Sublessors or any provision of Sublessors' Certificate of
Incorporation or bylaws; or (ii) result in any breach of, constitute a default
under or result in the creation of any lien, charge, security interest or other
encumbrance upon any Equipment pursuant to any indenture, mortgage, deed of
trust, bank loan or credit agreement or other instrument to which Sublessors are
a party.
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(d) NO PROCEEDINGS. There are no suits or proceedings pending
or threatened in court or before any commission, board or other administrative
agency against or affecting Sublessors, which if decided against Sublessors will
have a material adverse effect on the ability of Sublessors to fulfill their
obligations under this Agreement.
(e) DEFAULT; TERMINATION; CONSENT. There is no default
existing under the terms of the Base Equipment Leases or event which, with the
passage of time or the giving of notice, would become a default thereunder.
There is no pending termination under either Base Equipment Lease. The "purchase
option" under each of the Base Equipment Leases is presently existing and has
not been modified or surrendered by the Lessee thereunder. The prior written
consent of the Lessor to the Base Equipment Leases has been made and received by
Sublessors.
(f) DISPUTES. There are no outstanding, and to the best of
Sublessors' knowledge, no threatened, disputes or disagreements with respect to
the Equipment.
(g) INTELLECTUAL PROPERTY. All intellectual property rights
relating to the Equipment, to the best of Sublessors' knowledge, are currently
in compliance with all legal requirements, are valid and enforceable, and have
not been challenged or threatened in any way as infringing upon the rights of
any third party.
(h) TAXES. There are no taxes or assessments of taxes of
Sublessors' that are or may become payable by Sublessee or chargeable as a lien
or encumbrance against the Equipment listed on Exhibits A and B, including as a
result of this transaction.
11. LATE PAYMENT CHARGE. If any amount due to Lessors is not received
in full by Lessors on or before five (5) days after the date any such payment is
due, then Sublessee shall pay to the respective Sublessor a late payment charge
in the amount of ten percent (10%) of the amount then due. This provision shall
not be construed to allow or permit Sublessee to make payments after the due
date, or to waive any of Sublessors' rights in connection with late payments
made by Sublessee. Sublessee shall also reimburse the respective Sublessor for,
and indemnify and hold the respective Sublessor harmless for, from and against,
any late charges, penalties, interest or other charges incurred by such
Sublessor under the Base Equipment Leases as a result of any late payment by
Sublessee.
12. NOTICES. All notices of communication required or permitted
hereunder or with regard to the Base Equipment Leases shall be in writing and
may be given by depositing the same in the United States mail, addressed to the
party to be notified, postage prepaid and registered or certified with return
receipt requested, or by delivering the same in person to an officer or agent of
such party.
(i) If to Sublessors, addressed to them at:
Action Performance Companies, Inc./xxxxxxxx.xxx, inc.
0000 Xxxx Xxxxxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
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With a copy to:
Xxxxxxxxx Xxxxxxx, LLP
0 X. Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
(ii) If to Sublessee, addressed to them at:
Integrated Information Systems, Inc.
0000 X. Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxx & Xxxxxx, LLP
One Arizona Center
000 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx Xxxxxxxxxxx, Esq.
Fax: (000) 000-0000
13. TERMINATION OF GRANT.
(a) ACTION MASTER EQUIPMENT LEASE. In the event of the
termination of the Action Master Equipment Lease under its own terms or under
any provision thereof that authorizes such terminations, this Sublease shall
simultaneously and automatically terminate with respect to the grant contained
in Section 1 hereto only. Such termination will in no way affect any of
Sublessors' rights under this Sublease, including but not limited to,
Sublessors' rights contained in Sections 7 and 8 hereto, which shall survive.
(b) GORACING MASTER EQUIPMENT LEASE. In the event of the
termination of the goracing Master Equipment Lease under its own terms or under
any provision thereof that authorizes such terminations, this Sublease shall
simultaneously and automatically terminate with respect to the grant contained
in Section 1 hereto only. Such termination will in no way affect any of
Sublessors' rights under this Sublease, including but not limited to,
Sublessors' rights contained in Sections 7 and 8 hereto, which shall survive.
14. GENERAL PROVISIONS.
(a) ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter hereof.
(b) CONTROLLING LAW. This Agreement and all questions relating
to its validity, interpretation, performance and enforcement, shall be governed
by and construed,
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interpreted and enforced in accordance with the laws of the State of Arizona,
notwithstanding any Arizona or other conflict-of-law provision to the contrary.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS SUBLEASE AS OF THE
DATE FIRST ABOVE WRITTEN.
SUBLESSORS:
xxxxxxxx.xxx, inc., a Delaware corporation
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Its:
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Action Performance Companies, Inc., an Arizona
corporation
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Its: Chief Financial Officer
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SUBLESSEE:
Integrated Information Systems, Inc., a Delaware
corporation
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Its: Vice President
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