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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
[x] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934 [Fee Required]
FOR THE FISCAL YEAR ENDED JUNE 30, 1998
(Commission File No.) 0-22498
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ACRES GAMING INCORPORATED
(Exact name of Registrant as specified in its charter)
NEVADA 88-0206560
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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815 NW NINTH STREET, CORVALLIS, OREGON 97330
(Address of principal executive offices)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE:
(541) 753-7648
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
None
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
Common Stock, $.01 par value
(Title of class)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
The aggregate market value of the voting and non-voting common equity held by
non-affiliates of the Registrant computed by reference to the price at which the
common equity was sold, or the average bid and asked prices of such common
equity, as of August 31, 1998 was $24,756,000.
The number of shares outstanding of the Registrant's Common Stock, par value
$.01 per share, as of August 31, 1998 was 8,819,981 shares.
DOCUMENTS INCORPORATED BY REFERENCE
Part III incorporates by reference the Company's Proxy Statement to be filed in
connection with the Company's 1998 Annual Meeting of Stockholders to be held
November 18, 1998.
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TABLE OF CONTENTS
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PART I
ITEM 1. BUSINESS ................................................................. 1
General ................................................................ 1
The Market ............................................................. 1
Bonusing Products ...................................................... 1
Strategic Alliance with IGT ............................................ 5
Communication Protocol ................................................. 6
Research and Development ............................................... 6
Customers .............................................................. 6
Marketing .............................................................. 7
Production and Manufacturing ........................................... 7
Patents ................................................................ 8
Competition ............................................................ 8
Government Regulation .................................................. 9
Employees .............................................................. 13
Forward-Looking Statements ............................................. 13
ITEM 2. PROPERTIES ............................................................... 13
ITEM 3. LEGAL PROCEEDINGS ........................................................ 13
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS ...................... 14
EXECUTIVE OFFICERS OF REGISTRANT ......................................... 15
PART II
ITEM 5. MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS ................. 16
ITEM 6. SELECTED FINANCIAL DATA .................................................. 17
ITEM 7 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS ............................................................... 17
FACTORS THAT MAY AFFECT FUTURE RESULTS ................................... 20
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA .............................. 24
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL
DISCLOSURE ............................................................... 37
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT ...................... 37
ITEM 11. EXECUTIVE COMPENSATION .................................................. 37
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT .......... 37
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS .......................... 37
PART IV
ITEM 14.EXHIBITS, FINANCIAL STATEMENTS AND REPORTS ON FORM 8-K ................... 38
SIGNATURES ............................................................... 39
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PART I
ITEM 1. BUSINESS
GENERAL
The Company develops, manufactures and markets electronic game
promotions, equipment and games for the casino gaming industry. The Company's
principal products are based on its proprietary Acres Bonusing Technology(TM)
and are designed to enhance casino profitability by providing entertainment and
incentives to players of gaming machines. The bonusing technology improves the
efficiency of bonus and incentive programs currently offered by many casinos,
and makes possible bonus and incentive programs that have not previously been
offered.
THE MARKET
In the past few years, legalized gaming has significantly expanded in
the United States. As part of this expansion, casino-style gaming has become an
increasingly important component of the "leisure time" industry. The expansion
resulted from the introduction of riverboat-style gaming in the Midwestern
United States, the growth of Native American casino gaming and growth in the
established Nevada market.
Casino gaming has also grown rapidly worldwide, including in Australia,
Canada, Europe and Africa, as well as in parts of the former Soviet Union and
South America. The Company estimates that approximately 750,000 casino-style
gaming machines are currently in use throughout the world, including
approximately 400,000 in the United States.
The Company believes that increased competition among casinos will lead
to increased demand for game promotions and entertainment enhancements of the
type offered by the Company. New or expanding casinos represent a significant
part of the potential market for the Company's products. Existing casinos also
represent a significant potential market as casino managers seek to maintain or
improve casino profitability by employing bonusing and other promotional
programs for gaming machines.
BONUSING PRODUCTS
Casinos provide an opportunity to wager money on a variety of
propositions. This act of wagering, or gambling, provides entertainment for a
wide range of customers. For example, some of the casinos' customers are
entertained by the notion that one pull of a slot handle may change their life.
For others, entertainment is achieved by receiving an unexpected reward,
profiting from an act of skill or luck, receiving a reward for loyalty or by
simply winning some amount, regardless of the amount wagered. The Company's
bonusing products are designed to allow the casino to provide and facilitate
multiple entertainment aspects to meet their wide range of customers' needs.
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The bonusing technology was conceived to provide the gaming industry
with a system to enable the design and delivery of bonuses and other promotions
directly to players at the point of play and at the time of play. The Company
currently offers bonusing products directly to casinos in the form of standard
and customized bonusing promotions that can be applied casino-wide or to a
limited number of gaming machines. The Company's bonusing products form a
modular system and may be purchased and installed individually or as components
of an integrated system. The Company offers bonusing products primarily in two
major categories:
1. Casino-wide bonusing systems
- Casino-wide, fully integrated applications offered as the
Acres Bonusing System(TM) ("ABS")
- ABS compatible component parts for International Game
Technology's ("IGT") Smart System(R) and new IGT Gaming
System(TM) ("IGS") slot accounting and player tracking systems
(See "Strategic Alliance with IGT").
2. Bonus games
- A linked group of traditional slot machines that activate a
secondary "bonus" game when certain milestones are reached on
the traditional games.
ACRES BONUSING SYSTEM
An ABS installation in a casino includes electronic hardware installed
in the gaming machines, microprocessor-based controllers for groups of gaming
machines and computers and software to operate bonuses and communicate with the
casino's back office system which analyzes data and generates reports to casino
management. ABS employs personal computer technology and is designed to take
advantage of future improvements in such technology. The Company's largest ABS
installation is currently running approximately 2,500 gaming machines and has
the capability to include over two times the approximately 4,000 gaming machines
at the world's largest casino.
The Company and IGT have developed a system which integrates the
Company's ABS components and bonusing software with IGT's back office system to
create a comprehensive slot accounting, player tracking and bonusing capable
business solution. (See "Slot Accounting and Player Tracking Products").
In fiscal 1998, the Company delivered ABS product to IGT for
installation in The Orleans Hotel and Casino in Las Vegas, Nevada and in the
Star City casino in Sydney, Australia. These installations represent the first
installations of integrated ABS/IGS systems in the United States and Australia,
respectively. Mirage Resorts has ordered ABS for their newest casino in Las
Vegas, the Bellagio, for delivery in fiscal 1999. In fiscal 1997, the Company
sold ABS to Aristocrat Leisure Industries of Australia ("Aristocrat") for
installation at the Crown South Bank casino opened by Crown Ltd. (the "Crown
Casino") in Melbourne, Australia. Aristocrat is the leading manufacturer of
gaming machines in Australia and the second largest in the world.
The Company is in negotiations to provide casino-wide ABS bonusing
applications, audio-visual products and an integrated slot accounting system for
a large, new Nevada casino (the "Pending Sales Agreement"). Although the
negotiations are not yet complete and a written contract has not been executed,
the Company expects the final contract will result in approximately $10 million
in revenue and installation will occur in the second half of fiscal 1999. The
Company expects that the contract will include new bonusing applications and its
own proprietary slot accounting system that have not yet been approved by the
Nevada Gaming Authorities. (See "Factors That May Affect Future Results").
ABS and the software in many popular gaming machines that support ABS
have been approved by the Nevada Gaming Control Board and regulatory authorities
for several other states and for two states in Australia. (See "Government
Regulation" and "Communication Protocol").
ABS is designed to facilitate many types of bonuses, several of which
increase player loyalty by requiring the use of a player tracking card to
qualify for bonuses. (See "Slot Accounting and Player Tracking Products").
Utilizing bonusing technology in conjunction with the casino's player tracking
capabilities creates a
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powerful marketing tool. The following bonuses are available in the ABS and can
be individually configured to customize the bonus to fit a casino's needs and
optimize the promotions' effectiveness:
XtraCredit(TM). This patent pending feature is used to award special
incentive bonuses to slot club members. With just a few keystrokes, casino
personnel can establish XtraCredit bonuses to provide incentives for slot club
members to attend the casino's special events or to celebrate the player's
special events such as birthdays or anniversaries at the casino. XtraCredit
bonus awards dramatically reduce the casino's existing cash voucher mailing and
redemption costs and provide a wide variety of marketing opportunities for the
casino to retain customers.
XtraCredit may also be used by other bonus applications as an award
mechanism to allow the players, with a push of a "Bonus Button," to redeem their
points earned or bonus awards won for free games on the gaming machines. Nevada
gaming regulators have ruled that amounts won by the player through the use of
XtraCredit wagering are deductible expenses for gaming tax purposes rather than
non-deductible promotion expenses. This ruling results in a savings from using
XtraCredit of nearly seven percent of the cost of slot club awards. In addition
to the tax savings, players' time at the gaming machine can be increased as
players no longer have to visit the slot club booth to collect their rewards.
Finally, by offering the XtraCredit redemption, the casino reduces the amount of
slot club points that are exchanged for cash awards that can be spent outside of
their casino.
PointPlay(TM). This feature allows casino players to earn points for
slot play in a manner consistent with a standard player tracking system where
the casino can configure the rates at which points are earned and values at
which they are redeemed. PointPlay uses XtraCredit to allow players to redeem
their points for free games simply by pushing the Bonus Button on the gaming
machine.
ReturnPlay(TM). To encourage players to return to the casino at a later
date, the ReturnPlay feature awards a bonus to players that earn a predetermined
number of slot club points. The ReturnPlay bonus is automatically redeemed,
using the XtraCredit award mechanism, when the player returns to the casino at a
future date and inserts their slot club card into the game.
Personal Progressive(R). Because the vast majority of gaming machine
players never experience the excitement of winning a progressive jackpot, the
Personal Progressive bonus creates an individual progressive jackpot for each
slot club member. The Personal Progressive jackpot grows as the customer plays,
which adds excitement and provides an incentive to continue to visit the casino.
Personal Progressive jackpots can be paid directly to the gaming machine's
credit meter or can be redeemed as tax-deductible XtraCredit rewards.
Appreciation Time(TM). Casino personnel may reward players with
multiple jackpots anywhere from two to nine times the normal payout for winning
combinations. This promotion can be used to reward casino's best customers or
can be used to improve play in certain areas or at slow times of the day.
Appreciation Time can be applied to the whole casino or only to a specific bank
of gaming machines. This bonus provides greater control over appreciation gifts
by insuring the gifts go to customers who are actually playing the games.
Random Riches(TM) and Lucky Coin(TM). These progressive jackpot bonuses
are granted to the player inserting the "nth coin" where the frequency of "n"
and the funding parameters of the bonus are established by the casino. Awards
can be created that vary between small jackpots every few minutes and
life-changing jackpots every few weeks. These bonuses can be applied to any
number of gaming machines (from one machine to every machine in the casino) and
any one gaming machine may be tied to multiple bonuses. These promotions also
have the ability to alert players with custom audio sequences just before the
bonus is awarded. The casino may elect to award smaller Celebration Prizes(TM)
or Near Winner(TM) prizes to some or all of the players in the casino at the
time the Lucky Coin bonus is awarded. Celebration Prizes may be awarded to slot
club members only or in varying amounts to slot club VIPs, regular slot club
members and non-members. These awards can be paid directly to the gaming
machine's credit meter or can be redeemed as tax-deductible XtraCredit rewards.
The Company continues to develop additional bonusing applications for
the ABS utilizing the Company's bonusing technology.
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BONUS GAMES
The Company develops proprietary bonus games that it expects to operate
on a revenue-sharing basis. Two of the gaming industry's most successful
recently introduced games, Anchor Gaming's ("Anchor") Wheel of Gold(TM) and
IGT's Wheel of Fortune(TM), were introduced primarily under such revenue-sharing
arrangements. Although the Company is not a party to these revenue-sharing
arrangements, both of these games include components developed and manufactured
by the Company.
In August 1998, the Company received approval in Nevada for a bonus
game called Random Riches(TM) and installed another bonus game called Super
Reels(TM) in a field trial location in accordance with Nevada gaming regulations
(See "Government Regulation"). Both of these bonus games incorporate full-color,
high-resolution, plasma screens over a bank of traditional slot machines.
Dynamic animated sequences are displayed on the plasma screens to attract,
instruct, entertain and communicate bonus awards to the players.
State-of-the-art sound packages complement the animation.
In the Random Riches bonus game, players of the underlying base games
are periodically and randomly selected to play the secondary "bonus" game. The
bonus game entails spinning a bonus wheel, viewed on a single plasma display,
which has the capability of paying bonus awards to one, several or all of the
players on the base games. The Super Reels bonus game is similar to Random
Riches, but includes three vertical plasma displays representing giant spinning
reels of a slot machine. Every play on the secondary bonus game results in a
bonus being awarded to the slot player.
These bonus games have not been in operation long enough to indicate if
there will be a strong demand for either game. (See "Custom Bonusing
Applications").
SLOT ACCOUNTING AND PLAYER TRACKING PRODUCTS
Slot accounting products collect play data about each gaming device.
This information is transmitted to a central computer system where it is
immediately available to the casino manager, and where it is stored for future
analysis and reporting. The equipment is configured to monitor all slot machine
functions including coins deposited in the machine, coins paid out of the
machine, coins available to "drop", number of games played, jackpot occurrences
and other machine functions.
Player tracking systems collect performance data about individual
players or groups of players. The player tracking product builds upon the casino
accounting system to gather and record information about individual players,
much like an airline's "frequent flyer" program. Each customer who elects to
enroll in the casino's "slot club" is given a plastic card that uniquely
identifies the player. The player inserts the card into an electronic card
reader on the gaming machine, and the system automatically records the player's
level of play. Casino management can use this information to provide special
incentives and rewards to individual players or groups of players.
In fiscal 1997, the Company discontinued development of the Company's
DOS-based slot accounting and player tracking system (the "Legacy" system) and
instead, developed and sold component parts to IGT for inclusion in the IGT
Smart System and IGS slot accounting and player tracking systems. (See
"Strategic Alliance with IGT"). Certain casinos have indicated an interest in
purchasing the Company's casino-wide ABS bonusing product without also
purchasing IGS. (See "Acres Bonusing System"). The Company is developing a new
Windows NT(TM)-based, ABS integrated, slot accounting product that is expected
to be available for sale in fiscal 1999. The Company continues to support IGS
and Legacy slot accounting and player tracking systems.
CUSTOM BONUSING APPLICATIONS
The Company has sold and may continue to sell bonusing products that
automate basic promotional activities such as offering double or multiples of
the gaming machines' jackpots at certain times of the day. The Company's
Multiple Jackpot Time(TM) bonusing product accomplishes this goal and can also
include lighting, sound, signage and other special effects to call players'
attention to the bonusing event as it begins and progresses. The
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Company uses such special effects to simulate clouds, lightning, thunder and
wind, which are combined with an up to nine-time jackpot bonus payout to create
a promotion called Hurricane Zone(TM). The same technology has been integrated
with other signage and special effects to produce other custom promotions such
as "The Big Picture" at MGM Grand Hotel & Casino, "Armada Slots" at Sunset
Station Hotel & Casino, and "Desert Wins" at the Sahara Hotel & Casino. The
Company attempted to place Multiple Jackpot Time promotions into casinos under
revenue-sharing arrangements. These placements were not successful and were
ultimately removed. The Company is now focusing its product development efforts
on its ABS and bonus game products and is not actively developing or marketing
these custom bonusing applications.
SLOT PRODUCTS
Many of the products developed for specific applications also have
other uses within the gaming industry. For example, displays developed as player
tracking components also may be used as in-machine progressive jackpot displays
for gaming machines. The Company markets these products to both developers and
manufacturers of gaming machines and to casinos.
The Company also offers bonusing products to other developers of
specialty gaming machines. These developers can use the bonusing technology to
coordinate lights, sound and other special effects and to instruct a slot
machine to pay special bonuses. By adding bonusing capabilities to regular
gaming machines, entirely new games can be created which offer unique and
entertaining experiences for slot players. For example, the Company provides
electronic and other components to Anchor for its Wheel of Gold game. This game
includes features in which the slot player is periodically awarded the ability
to spin a multi-segmented wheel mounted above the slot machine. Each segment of
the wheel indicates a bonus jackpot. The bonusing system communicates the
results of the wheel spin to the slot machine, which pays the bonus to the
player.
The Company has also developed products to improve the sound
capabilities of gaming machines. These products have been included in IGT's
Wheel of Fortune specialty games and have been installed in gaming machines in
the Circus Circus casinos in Nevada.
The Company is now focusing its product development efforts on its ABS
and bonus game products and is not actively developing or marketing these slot
products, although some revenues continue to be generated by previously
developed products.
STRATEGIC ALLIANCE WITH IGT
In January 1997, the Company entered into a strategic alliance with IGT
(the "Strategic Alliance") which included a Master Agreement for Product
Development, Purchase and Sales and a $5 million investment by IGT in the
Company's preferred stock.
Sales to IGT under the Strategic Alliance have not met the Company's
expectations. Certain casinos have expressed an interest in purchasing ABS
without also purchasing IGS. Although the Strategic Alliance does not prohibit
the Company from selling ABS directly to customers, IGT has expressed objections
about the Pending Sales Agreement (see "Acres Bonusing System") and may be
unwilling to continue the Strategic Alliance if the Company continues to sell
ABS independently of IGT. In late September 1998, Albert Crosson, Vice Chairman
of IGT, resigned from the Company's Board of Directors. IGT has not nominated
Mr. Crosson's successor, although it continues to have the right to do so.
Representatives of the Company and IGT have met several times to work
to redefine the relationship. (See "Factors That May Affect Future Results").
COMMUNICATION PROTOCOL
The Company and IGT have jointly developed the communication protocol
known as SAS4. The protocol is used to communicate instructions and messages
between ABS and gaming machines. The communication of these instructions and
messages is essential to the operation of bonuses. Although the Company and
IGT have agreed that the Company can use SAS4 in connection with the Pending
Sales Agreement, IGT has stated that the Company does not have an
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unrestricted right to use SAS4 with non-IGT games. The Company believes that it
has joint ownership of the protocol and the ability to use and license the
protocol. If necessary, the Company believes there are alternatives to SAS4 but
such alternatives could cause delays in product availability.
RESEARCH AND DEVELOPMENT
The Company devotes significant resources to the development of new
products and the enhancement of existing products. The Company had 55 employees
involved in research and development as of August 31, 1998. Research and
development expenses were $4.7 million, $4.5 million and $2.3 million in the
years ended June 30, 1998, 1997 and 1996, respectively.
CUSTOMERS
Large casinos with more than 1,000 gaming machines represent the
principal market for the Company's ABS. Casinos of this size are generally large
enough to support a professional management staff capable of using the
analytical and promotional tools provided by the Company's products. This market
includes most casinos in Las Vegas, Reno and Laughlin, Nevada, and Atlantic
City, New Jersey, as well as a number of Native American and riverboat casinos
in various other states and a number of casinos in Australia, South Africa and
Europe.
Sales to IGT accounted for 75 percent, 28 percent and 2 percent of the
Company's net revenues in 1998, 1997 and 1996, respectively. (See "Strategic
Alliance with IGT"). Sales to Anchor, primarily related to their Wheel of Gold
game, accounted for 18 percent, 28 percent and 43 percent of the Company's net
revenues in 1998, 1997 and 1996, respectively. Sales of the system components
and bonusing applications to Aristocrat for the Crown Casino in Melbourne,
Australia, accounted for 12 percent of the Company's net revenues in 1997 and 20
percent in 1996. Legacy player tracking and slot accounting system sales to the
Sundowner Hotel & Casino accounted for 12 percent of the Company's net revenues
in 1996.
The Company's backlog of orders for its products were approximately
$2.1 million, $6.1 million and $6.5 million as of June 30, 1998, 1997 and 1996,
respectively. The Company does not believe that backlog is a meaningful
indication of sales. Sales to the Company's customers are made pursuant to
purchase orders or sales agreements for specific system installations and
products are often delivered within a few months of receipt of the order. The
Company does not have any ongoing long-term sales contracts. At its current
stage of operations, the Company's revenues and results of operations may be
materially affected, in the near term, by the receipt or loss of any one order.
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REPRESENTATIVE CUSTOMERS
The following table presents representative customers for each of the
Company's main product categories.
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PRODUCT NAME OF CUSTOMER AND LOCATION
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ABS (including slot Aristocrat Leisure Industries - Installed in the Crown
accounting & player Casino in Melbourne, Australia
tracking components) IGT-Installed in the Star City casino in Sydney, Australia
and The Orleans Hotel and Casino in Las Vegas, Nevada
Bonus games Stardust Resort & Casino - Las Vegas, Nevada (field trial)
Excalibur Hotel-Casino - Las Vegas, Nevada (field trial)
Custom bonusing Circus Circus - Las Vegas, Nevada
applications Edgewater Hotel & Casino - Laughlin, Nevada
MGM Grand Hotel & Casino - Las Vegas, Nevada
Sahara Hotel & Casino - Las Vegas, Nevada
Sunset Station Hotel & Casino - Las Vegas, Nevada
Stand-alone Caesar's Tahoe - Lake Tahoe, Nevada
progressive jackpots Golden Nugget Casino - Las Vegas, Nevada
Treasure Island Resort - Las Vegas, Nevada
Legacy slot Colorado Grande Casino - Cripple Creek, Colorado
accounting & player Rio Suite Hotel & Casino - Las Vegas, Nevada
tracking systems Sands Regency Hotel & Casino - Reno, Nevada
Spirit Lake Casino - Spirit Lake, South Dakota
Sundowner Hotel & Casino - Reno, Nevada
Meters & displays Anchor Gaming - Las Vegas, Nevada
Crown Casino - Melbourne, Australia
IGT - Reno, Nevada
Sound Systems Circus Circus Enterprises - Las Vegas, Nevada
IGT - Reno, Nevada
Component parts for Anchor Gaming - Las Vegas, Nevada
other game
manufacturers
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MARKETING
The Company currently markets its products and provides service to
customers from its office in Las Vegas, Nevada and its headquarters in
Corvallis, Oregon.
PRODUCTION AND MANUFACTURING
The Company's manufacturing operation consists primarily of the
assembly of electronic circuit boards and cables from components purchased from
third parties. The circuit boards are manufactured and assembled to the
Company's specifications by contract manufacturers. A key component of each
product is computer software
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that is copied onto electronic chips by contract manufacturers. The Company
believes that its component parts and services can be obtained from multiple
sources and therefore is not overly reliant on any single vendor. The
development, testing and maintenance of the software is conducted by Company
engineers.
PATENTS
The Company has applied for United States and foreign patents on
certain features of its product line, and may in the future apply for other
United States patents and corresponding foreign patents. The following patents
have been issued to the Company:
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ISSUE DATE PATENT NO. DESCRIPTION OF PROTECTION PROVIDED BY THE PATENT
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August 1997 5,655,961 This patent protects the implementation of a bonus pay table in a gaming machine
and the implementation of a "Bonus Pool." A Bonus Pool is configurable by casino
management to control the total amount of special bonuses paid, thus making it
possible for such promotions to be kept within a casino's budget.
January 1998 5,702,304 This patent protects the Company's illuminated card reader, a slot accounting and
player tracking system component, which indicates where players may insert their
card and communicates bonus eligibility to the players and game and player status
to the casino through the use of various colors.
April 1998 5,741,183 This patent protects a method of identifying and categorizing individual gaming
devices that are connected to a casino's computer network. It includes a memory
device which allows for the identification and coding of each piece of gaming
equipment with its individual configurations even when they are disconnected or
moved to another location within a casino's network system.
May 1998 5,752,882 This patent protects a method of operating gaming machines in which the casino is
able to pre-select which games participate in a variety of bonusing promotions such
as linked progressive jackpots or linked random bonuses.
</TABLE>
No assurance can be given that any patents that are applied for will be
issued or, if issued, will provide any significant competitive advantage to the
Company. In addition, the Company has a variety of other intellectual property
which it treats as trade secrets. The Company takes reasonable steps to protect
its intellectual property but it is possible that others may make unauthorized
use of such intellectual property and the Company may or may not be able to
prevent such use. (See "Legal Proceedings").
COMPETITION
The Company believes that its products compete principally on the basis
of functionality, price and service. The Company believes that its proprietary
bonusing technology provides a competitive advantage. In addition to the
recently issued patents discussed above, the Company has several other patents
pending which cover many aspects of its bonusing technology.
Mikohn Gaming Corporation ("Mikohn") is the only known competitor
offering a bonusing product similar to the Company's. John F. Acres founded
Mikohn in 1985. Mr. Acres disposed of his interest in 1988. The Company believes
that Mikohn's initial bonusing product, which Mikohn has installed in several
casinos, infringes the Company's recently issued patents and will infringe
certain of the Company's pending patents, if issued. The Company has notified
Mikohn and its customers of the patent infringement and initiated patent
infringement litigation. (See "Legal Proceedings").
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The Company is developing a new slot accounting product which will
compete with IGT's IGS slot accounting product. (See "Strategic Alliance with
IGT"). Both of these products are bonusing-ready. The Company's slot accounting
product will integrate with other vendors' player tracking products while IGS
includes both slot accounting and player tracking functionality. (See "Slot
Accounting and Player Tracking Products").
IGT, the largest manufacturer of gaming machines in the world, has a
competitive advantage in selling its slot accounting and player tracking systems
to purchasers of IGT gaming machines. IGT has two principal competitors in the
market for slot accounting and player tracking systems: Bally and Casino Data
Systems, Inc. ("CDS"). Unlike the IGS system, none of the competitors' products
are currently offered as "bonusing-ready" systems. Each of these companies have
financial and other resources which are greater than those of the Company.
While the Company attempts to differentiate its bonusing products from
progressive jackpot systems, the Company's bonusing products compete for casino
floor space with other companies' progressive jackpot systems. The market for
progressive jackpot systems is served primarily by Mikohn, which has the largest
share of the market, and CDS.
GOVERNMENT REGULATION
The Company is subject to the licensing and regulatory control of the
gaming authorities in each jurisdiction in which its products are sold or used
by persons licensed to conduct gaming activities. Although licensing of the
Company may not be required in a jurisdiction, its products generally must be
approved by the regulatory authority for use in each licensed location within
the jurisdiction.
REGULATION OF PRODUCTS
The Company has complied with the approval process and has either been
issued a license, temporary license, certificate, approval or other permit
allowing it to sell its products in Arizona, Colorado, Connecticut, Indiana,
Louisiana, Mississippi, Missouri, Nevada, New Jersey, Wisconsin and Victoria,
Australia. Not all of the Company's products have been approved for sale in all
jurisdictions. In most jurisdictions, a model of the gaming equipment that the
Company seeks to place in operation must be submitted for testing by an approved
testing laboratory prior to use in any gaming operation. To obtain such
approval, the Company must submit, at its expense, each model of its equipment
to the specified laboratory for testing, examination and analysis. Upon
completion of the testing, the laboratory submits a report of its findings and
conclusions to the applicable gaming authority, together with any
recommendations for modifications to the equipment or the addition of equipment
or devices to such gaming equipment.
The Company has filed applications for licenses in Minnesota and
Ontario, Canada, and intends to seek approval of its bonusing technology for use
in any other jurisdiction in which a sale arises. Failure of the Company to
obtain approval for the use of bonusing technology by a gaming licensee in a
jurisdiction would prevent the use of such technology at the licensee's location
and also will prevent any other gaming licensee within that jurisdiction from
using the products until the appropriate approvals have been obtained or
requirements complied with.
CORPORATE REGULATION
Nevada
The manufacture, sale and distribution of gaming devices are subject
to: (i) the Nevada Gaming Control Act and the regulations promulgated thereunder
(collectively, the "Nevada Act"); and (ii) various local regulation. Generally,
gaming activities may not be conducted in Nevada unless licenses are obtained
from the Nevada Gaming Commission (the "Nevada Commission"), the Nevada State
Gaming Control Board (the "Nevada Board"), and appropriate county and municipal
licensing agencies. The Nevada Commission, the Nevada Board, and the various
county and municipal licensing agencies are collectively referred to as the
"Nevada Gaming Authorities."
The laws, regulations and supervisory procedures of the Nevada Gaming
Authorities are based upon declarations of public policy that are concerned
with, among other things: (i) the prevention of unsavory or unsuitable persons
from having a direct or indirect involvement with gaming at any time or in any
capacity; (ii) the establishment and maintenance of responsible accounting
practices and procedures; (iii) the maintenance of effective controls over the
financial practices of licensees, including the establishment of minimum
procedures for internal fiscal affairs and the safeguarding of assets and
revenues, providing reliable record keeping and requiring the filing of periodic
reports with the Nevada Gaming Authorities; (iv) the prevention of cheating and
fraudulent practices; and (v) to provide a source of state and local revenues
through taxation and licensing fees. Change in such laws, regulations and
procedures could have an adverse effect on the Company.
On December 21, 1995, the Nevada Commission registered the Company as a
publicly traded corporation ("Registered Corporation") and granted
manufacturer's and distributor's licenses to the Company's wholly-owned
subsidiary, AGI Distribution, Inc. ("AGID"), a Nevada corporation. The
Commission also granted AGID a nonrestricted license as the operator of a slot
machine route ("Slot Route License"). As a Registered Corporation, the Company
is required to periodically submit detailed financial and operating reports to
the Nevada Commission and furnish any other information which the Nevada
Commission may require.
AGID's manufacturer's, distributor's and Slot Route Licenses require
the periodic payment of fees and taxes and are not transferable. No person may
become a stockholder of, or receive any percentage of profits from, AGID without
first obtaining licenses and approvals from the Nevada Gaming Authorities. The
Company and AGID have obtained from the Nevada Gaming Authorities the various
registrations, approvals, permits and licenses required in order to engage in
gaming activities in Nevada.
The Nevada Gaming Authorities may investigate any individual who has a
material relationship to, or material involvement with, the Company or AGID in
order to determine whether such individual is suitable or should be licensed as
a business associate of a gaming
9
<PAGE> 12
licensee. Officers, directors and certain key employees of AGID must file
applications with the Nevada Gaming Authorities and are required to be licensed
by the Nevada Gaming Authorities. Officers, directors and key employees of the
Company who are actively and directly involved in the gaming activities of AGID
may be required to be licensed or found suitable by the Nevada Gaming
Authorities. The Nevada Gaming Authorities may deny an application for licensing
or a finding of suitability for any cause they deem reasonable. A finding of
suitability is comparable to licensing, and both require submission of detailed
personal and financial information followed by a thorough investigation. The
applicant for licensing or a finding of suitability must pay all the costs of
the investigation. Changes in licensed positions must be reported to the Nevada
Gaming Authorities and in addition to their authority to deny an application for
a finding of suitability or licensure, the Nevada Gaming Authorities have
jurisdiction to disapprove a change in a corporate position.
If the Nevada Gaming Authorities were to find an officer, director or
key employee unsuitable for licensing or to continue having a relationship with
the Company or AGID, the companies involved would have to sever all
relationships with such person. In addition, the Nevada Commission may require
the Company or AGID to terminate the employment of any person who refuses to
file appropriate applications. Determinations of suitability or of questions
pertaining to licensing are not subject to judicial review in Nevada.
The Company and AGID are required to submit detailed financial and
operating reports to the Nevada Commission. Substantially all material loans,
leases, sales of securities and similar financing transactions by AGID, must be
reported to or approved by the Nevada Commission.
If it was determined that the Nevada Act was violated by the Company or
AGID, the gaming registrations, licenses and approvals they hold could be
limited, conditioned, suspended or revoked, subject to compliance with certain
statutory and regulatory procedures. In addition, AGID, the Company and the
persons involved could be subject to substantial fines for each separate
violation of the Nevada Act at the discretion of the Nevada Commission.
Limitation, conditioning or suspension of any gaming license could (and
revocation of any gaming license would) materially adversely affect AGID.
Any beneficial holder of the Company's voting securities, regardless of
the number of shares owned, may be required to file an application, be
investigated, and have his suitability as a beneficial holder of the Company's
voting securities determined if the Nevada Commission has reason to believe that
such ownership would otherwise be inconsistent with the declared policies of the
State of Nevada. The applicant must pay all costs of investigation incurred by
the Nevada Gaming Authorities in conducting any such investigation.
The Nevada Act requires any person who acquires more than 5% of the
Company's voting securities to report the acquisition to the Nevada Commission.
The Nevada Act requires that beneficial owners of more than 10% of the Company's
voting securities apply to the Nevada
<PAGE> 13
Commission for a finding of suitability within thirty days after the Chairman of
the Nevada Board mails a written notice requiring such filing. Under certain
circumstances, an "institutional investor," as defined in the Nevada Act, which
acquires more than 10% but not more than 15% of the Company's voting securities,
may apply to the Nevada Commission for a waiver of such finding of suitability
if such institutional investor holds the voting securities for investment
purposes only. An institutional investor shall not be deemed to hold voting
securities for investment purposes unless the voting securities were acquired
and are held in the ordinary course of business as an institutional investor and
not for the purpose of causing, directly or indirectly, the election of a
majority of the members of the board of directors of the Company, any change in
the corporate charter, bylaws, management, policies or operations of the Company
or any of its gaming affiliates, or any other action which the Nevada Commission
finds to be inconsistent with holding the Company's voting securities for
investment purposes only. Activities that are not deemed to be inconsistent with
holding voting securities for investment purposes only include: (i) voting on
all matters voted on by stockholders; (ii) making financial and other inquiries
of management of the type normally made by securities analysts for informational
purposes and not to cause a change in its management, policies or operations;
and (iii) such other activities as the Nevada Commission may determine to be
consistent with such investment intent. If the beneficial holder of voting
securities who must be found suitable is a corporation, partnership or trust, it
must submit detailed business and financial information including a list of
beneficial owners. The applicant is required to pay all costs of investigation.
Any person who fails or refuses to apply for a finding of suitability
or a license within thirty days after being ordered to do so by the Nevada
Commission or the Chairman of the Nevada Board, may be found unsuitable. The
same restrictions apply to a record owner if the record owner, after request,
fails to identify the beneficial owner. Any stockholder found unsuitable and who
holds, directly or indirectly, any beneficial ownership of the common stock of a
Registered Corporation beyond such period of time as may be prescribed by the
Nevada Commission may be guilty of a criminal offense. The Company is subject to
disciplinary action if, after it receives notice that a person is unsuitable to
be a stockholder or to have any other relationship with the Company or AGID, the
Company (i) pays that person any dividend or interest upon voting securities of
the Company, (ii) allows that person to exercise, directly or indirectly, any
voting right conferred through securities held by that person, (iii) pays
remuneration in any form to that person for services rendered or otherwise, or
(iv) fails to pursue all lawful efforts to require such unsuitable person to
relinquish his voting securities for cash at fair market value. Additionally,
the Clark County Liquor and Gaming Licensing Board has taken the position that
it has the authority to approve all persons owning or controlling the stock of
any corporation controlling a gaming license.
The Nevada Commission may, in its discretion, require the holder of any
debt security of a Registered Corporation to file an application, be
investigated and found suitable to own the debt security of a Registered
Corporation. If the Nevada Commission determines that a person is unsuitable to
own such security, then pursuant to the Nevada Act, the Registered Corporation
can be sanctioned, including the loss of its approvals, if without the prior
approval of the Nevada
<PAGE> 14
Commission, it: (i) pays to the unsuitable person any dividend, interest, or any
distribution whatsoever; (ii) recognizes any voting right by such unsuitable
person in connection with such securities; (iii) pays the unsuitable person
remuneration in any form; or (iv) makes any payment to the unsuitable person by
way of principal, redemption, conversion, exchange, liquidation, or similar
transaction.
The Company is required to maintain a current stock ledger in Nevada
that may be examined by the Nevada Gaming Authorities at any time. If any
securities are held in trust by an agent or by a nominee, the record holder may
be required to disclose the identity of the beneficial owner to the Nevada
Gaming Authorities. A failure to make such disclosure may be grounds for finding
the record holder unsuitable. The Company is also required to render maximum
assistance in determining the identity of the beneficial owner. The Nevada
Commission has the power to require the Company's stock certificates to bear a
legend indicating that such securities are subject to the Nevada Act. However,
to date, the Nevada Commission has not imposed such a requirement on the
Company.
The Company may not make a public offering of any securities without
the prior approval of the Nevada Commission if the securities or the proceeds
therefrom are intended to be used to construct, acquire or finance gaming
facilities in Nevada, or to retire or extend obligations incurred for such
purposes. Such approval, if given, does not constitute a finding, recommendation
or approval by the Nevada Commission or the Nevada Board as to the accuracy or
adequacy of the prospectus or the investment merits of the securities. Any
representation to the contrary is unlawful.
Changes in control of the Company through merger, consolidation, stock
or asset acquisitions, management or consulting agreements, or any act or
conduct by a person whereby he obtains control, may not occur without the prior
approval of the Nevada Commission. Entities seeking to acquire control of a
Registered Corporation must satisfy the Nevada Board and the Nevada Commission
concerning a variety of stringent standards prior to assuming control of such
Registered Corporation. The Nevada Commission may also require controlling
stockholders, officers, directors and other persons having a material
relationship or involvement with the entity proposing to acquire control, to be
investigated and licensed as part of the approval process of the transaction.
The Nevada legislature has declared that some corporate acquisitions
opposed by management, repurchases of voting securities and corporate defense
tactics affecting Nevada gaming licensees, and Registered Corporations that are
affiliated with those operations, may be injurious to stable and productive
corporate gaming. The Nevada Commission has established a regulatory scheme to
ameliorate the potentially adverse effects of these business practices upon
Nevada's gaming industry and to further Nevada's policy to: (i) assure the
financial stability of corporate gaming operators and their affiliates; (ii)
preserve the beneficial aspects of conducting business in the corporate form;
and (iii) promote a neutral environmental for the orderly governance of
corporate affairs. Approvals are, in certain circumstances, required from the
<PAGE> 15
Nevada Commission before the Company can make exceptional repurchases of voting
securities above the current market price thereof and before a corporate
acquisition opposed by management can be consummated. The Nevada Act also
requires prior approval of a plan of recapitalization proposed by the Company's
board of directors in response to a tender offer made directly to the Registered
Corporation's stockholders for the purpose of acquiring control of the
Registered Corporation.
Any person who is licensed, required to be licensed, registered,
required to be registered, or is under common control with such persons
(collectively, "Licensees"), and who proposes to become involved in a gaming
venture outside of Nevada, is required to deposit with the Nevada Board and,
thereafter, maintain a revolving fund in the amount of $10,000 to pay the
expenses of investigation by the Nevada Board of their participation in such
foreign gaming. The revolving fund is subject to increase or decrease in the
discretion of the Nevada Commission. Thereafter, Licensees are also required to
comply with certain reporting requirements imposed by the Nevada Act. Licensees
are also subject to disciplinary action by the Nevada Commission if they
knowingly violate any laws of the foreign jurisdiction pertaining to the foreign
gaming operation, fail to conduct the foreign gaming operation in accordance
with the standards of honesty and integrity required of Nevada gaming
operations, engage in activities that are harmful to the State of Nevada or its
ability to collect gaming taxes and fees, or employ a person in the foreign
operation who has been denied a license or a finding of suitability in Nevada on
the ground of personal unsuitability.
<PAGE> 16
Other Jurisdictions
Other jurisdictions in which the Company's products are sold or used
require various licenses, permits, and approvals in connection with such sale or
use, typically involving restrictions similar in most respects to those of
Nevada. The Company has complied with the approval process for use of the
products it has sold in these other jurisdictions, including the receipt of
manufacturer and distributor licenses, permits, or certificates in each such
state. Not all of the Company's products have been approved for sale in all
jurisdictions. No assurances can be given that such required licenses, permits,
certificates or approvals will be given or renewed in the future.
EMPLOYEES
At August 31, 1998, the Company had 116 full-time employees of whom 55
were involved in research and development, 24 in manufacturing and material
control, 12 in sales, marketing and customer support and 25 in administration
and management. None of the Company's employees are represented by a labor union
or covered by a collective bargaining agreement. The Company has not experienced
any work stoppages and believes that its employee relations are good.
FORWARD-LOOKING STATEMENTS
This Form 10-K contains forward-looking statements regarding the
Company's plans and expectations as to: future performance, growth
opportunities, expansion, new products and services, competition, capital
expenditures and its Strategic Alliance with IGT. Such plans and expectations
involve risks and uncertainties that could cause actual results to differ
materially from the forward-looking statements. For a discussion of these risk
factors, see "Factors that May Affect Future Results." In addition, from time to
time, the Company may issue other forward-looking statements. Any
forward-looking statements, including other written or oral forward-looking
statements made by the Company or persons acting on its behalf, should be
considered in light of these risk factors and other risk factors referred to
from time to time in the Company's press releases, periodic reports or
communications with stockholders.
ITEM 2. PROPERTIES
The Company's administrative headquarters, manufacturing and certain
engineering functions are located in a leased facility encompassing
approximately 39,000 square feet at 815 N.W. Ninth Street, Corvallis, Oregon.
The leases commenced on various dates beginning in April 1994 and will expire on
various dates ending in July 1999. The base rent for the total facility is
approximately $28,000 per month, which includes property taxes, building
insurance and common area maintenance.
In June 1998, the Company's sales, marketing, customer service and new
product development office in Las Vegas was moved to a larger leased facility at
7115 Amigo Street, Suite 150, Las Vegas, Nevada. The new facility encompasses
approximately 31,500 square feet. The lease commenced on June 15, 1998 and will
expire on June 15, 2003. The base rent is approximately $36,000 per month, plus
$5,000 per month for property taxes, building insurance and common area
maintenance.
The Company owns manufacturing and engineering equipment which it uses
in its assembly operations and research and development efforts. Such equipment
is available from a variety of sources and the Company believes that it
currently owns or can readily acquire equipment required for its current and
anticipated levels of operations.
ITEM 3. LEGAL PROCEEDINGS
Two related lawsuits have been filed in the U.S. District Court for the
District of Nevada involving the Company which allege violation of the federal
securities laws by the Company and its executive officers:
12
<PAGE> 17
Townsend, et al. v. Acres Gaming Incorporated, et al. CV-S-97-01848-PMP (RJJ)
and Jason, et al. v. Acres Gaming Incorporated, CV-S-98-00262-PMP (RJJ). Those
suits have been consolidated into one combined action styled: In re Acres Gaming
Securities Litigation, CV-S-97-01848-PMP (RJJ). The combined action seeks class
certification for a proposed class consisting of the purchasers of the Company's
stock during the period from March 26, 1997 to December 11, 1997. The court has
not yet ruled on class certification. The Company has moved to dismiss this suit
and discovery has been stayed pending resolution of this motion.
Three related lawsuits have been filed in the U.S. District Court for
the District of Nevada involving the Company and its patents: Mikohn Gaming
Corp. v. Acres Gaming Incorporated, No. CV-S-98-1383 HDM (LRL) ("Suit I");
Mikohn Gaming Corp. v. Acres Gaming Incorporated, No. CV-S-98-738 HDM (LRL)
("Suit II"); and Acres Gaming Incorporated v. Mikohn Gaming Corp., Casino Data
Systems, New York New York Hotel and Casino and Sunset Station Hotel and Casino;
No. CV-S-98 794 PMP (LRL) ("Suit III"). Those suits have now been consolidated.
In Suit I, Mikohn asserted a claim for declaratory judgment of
noninfringement and invalidity of U.S. Patent No. 5,655,961 ("the `961 patent")
owned by the Company. Mikohn also asserted claims for "intentional interference
with a business relationship," "intentional interference with prospective
business relationship," "unfair competition: trade libel" and "unfair
competition: disparagement." Mikohn's complaint sought unspecified damages,
punitive damages, attorney's fees, interest on the alleged damages, an
injunction against the conduct alleged in the complaint, and a declaration that
the `961 patent is invalid and not infringed by Mikohn or its customers. The
Company has filed a counterclaim for infringement of the `961 patent, and has
denied Mikohn's other allegations.
In Suit II, Mikohn asserted a claim for declaratory judgment of
noninfringement and invalidity of U.S. Patent No. 5,741,183 ("the `183 patent")
owned by the Company. Mikohn's complaint sought no damages, but requested an
award of attorney's fees and a declaration that the `183 patent is invalid and
not infringed by Mikohn. The Company is not aware of any infringement by Mikohn,
and therefore sought to dismiss the complaint for lack of a case or controversy.
The court denied the Company's motion.
In Suit III, the Company sued Mikohn, Casino Data Systems, New York New
York Hotel and Casino and Sunset Station Hotel and Casino for infringement of
the Company's U.S. Patent No. 5,752,882 ("the `882 patent"). Mikohn
counterclaimed in Suit III, seeking a declaratory judgment of invalidity and
noninfringement of the `882 patent and asserted claims for "false and misleading
representations" under 11 U.S.C. Section 1125, "interference with prospective
economic relations," "unfair competition: trade libel" and "unfair competition:
disparagement." Mikohn's counterclaims seek unspecified damages, as well as a
trebling of the damages, punitive damages, attorney's fees and an injunction
against the Company's "continuing to commit the unlawful acts" alleged in the
counterclaims. The Company moved for a preliminary injunction in Suit III
against Mikohn's infringement of the `882 patent. The court has not ruled on the
Company' motion.
In a separate but related action, the Company has filed suit against
its general liability insurance carrier for breach of insurance contract: Acres
Gaming Incorporated v. Atlantic Mutual Insurance Company, filed June 26, 1998
and now pending in U.S. District Court for the District of Oregon. The Company's
suit is based on the insurer's refusal to pay more than nominal amounts of the
costs of defense in Suit I. The Company anticipates that this matter will be
resolved by cross motions for summary judgment. In addition, the Company has
tendered the defense of Mikohn's counterclaims in Suit III to the same insurer.
To date the insurer has not responded to the tender of Suit III's defense.
The Company from time to time is involved in other various legal
proceedings arising in the normal course of business.
13
<PAGE> 18
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders during the quarter
ended June 30, 1998.
EXECUTIVE OFFICERS OF REGISTRANT
As of August 31, 1998, the executive officers of the Company were as
set forth below:
<TABLE>
<CAPTION>
EXECUTIVE OFFICER
NAME AGE POSITIONS AND OFFICES SINCE
---- --- --------------------- -----
<S> <C> <C> <C>
John F. Acres 44 Chairman 1985
Floyd W. Glisson 51 Chief Executive Officer, 1998
President and Director
Robert W. Brown 43 Executive Vice President, Chief 1993
Financial Officer, Secretary and
Treasurer
Roy D. Lytle 49 Vice President and Chief 1997
Operating Officer
</TABLE>
There are no family relationships among executive officers of the
Company.
John F. Acres, the founder of the Company, has served as the Chairman
of the Company since its inception in 1985. Mr. Acres served as the Chief
Executive Officer from January 1985 until July 1998. He also served as President
of the Company from January 1985 to January 1996 and from February 1998 to July
1998 and as Secretary from January 1985 to January 1997. Mr. Acres has been
involved in the gaming industry since 1972 and has designed slot data collection
systems, player tracking systems and equipment for progressive jackpot systems
that are widely used in the industry. In 1981, he founded Electronic Data
Technology ("EDT") to manufacture and sell progressive jackpot system designs.
While with EDT, he designed one of the first slot data collection systems and
invented the electronic player tracking system. He sold a majority interest in
EDT to IGT in 1983 and remained as president of EDT until 1985. The player
tracking system designed by Mr. Acres while with EDT is installed on
approximately 100,000 gaming machines throughout the world and was actively
marketed by IGT until 1997. In 1985, Mr. Acres co-founded Mikohn. He served as
vice president and a director of Mikohn until 1988.
Floyd W. Glisson became President and Chief Executive Officer of the
Company in July 1998. Mr. Glisson was senior vice president, finance and
administration and chief financial officer for ConAgra Grocery Products Company,
a unit of ConAgra, Inc., from June 1993 to July 1998. Prior to June 1993, Mr.
Glisson was senior vice president, finance and administration and chief
financial officer of Hunt Wesson, Inc., a food processing company that is a
subsidiary of ConAgra, Inc. In addition to normal staff functions, Mr. Glisson
was also responsible for Food Service and International Operations.
Robert W. Brown joined the Company in July 1993 as Chief Financial
Officer and Treasurer. He was elected Executive Vice President and Secretary in
January 1997. Mr. Brown is a Certified Public Accountant.
Roy D. Lytle joined the Company in August 1996 as the Director of
Manufacturing. In January 1997, Mr. Lytle was promoted to Vice
President-Manufacturing and in December 1997, Mr. Lytle was promoted to Chief
Operating Officer. From July 1984 to August 1996, Mr. Lytle held manufacturing
management positions for Photon Kinetics, a manufacturer of fiber optics test
and measurement equipment in Beaverton, Oregon.
14
<PAGE> 19
PART II
ITEM 5. MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's common stock trades on the NASDAQ SmallCap Market under
the symbol "AGAM". The following table sets forth, for the periods indicated,
the range of high, low and end of period market prices for the Company's common
stock as reported by the NASDAQ SmallCap Market.
<TABLE>
<CAPTION>
MARKET PRICE PER SHARE
----------------------
LOW HIGH END OF PERIOD
--- ---- -------------
<S> <C> <C> <C>
FISCAL YEAR ENDED JUNE 30, 1998:
First quarter.......................... $ 7.63 $12.00 $11.31
Second quarter......................... 3.75 12.75 4.38
Third quarter.......................... 4.31 6.56 4.88
Fourth quarter......................... 4.31 5.25 5.00
FISCAL YEAR ENDED JUNE 30, 1997:
First quarter.......................... $ 9.00 $14.13 $13.63
Second quarter......................... 10.50 20.63 11.00
Third quarter.......................... 4.13 14.38 4.75
Fourth quarter......................... 4.88 9.38 8.75
</TABLE>
The Company estimates that there are approximately 4,250 beneficial
owners of the Company's common stock.
The Company has never paid or declared any cash dividends on its common
stock and does not intend to pay cash dividends on its common stock in the
foreseeable future. The Company expects to retain its earnings to finance the
development and expansion of its business. The payment by the Company of
dividends, if any, on its common stock in the future is subject to the
discretion of the Board of Directors and will depend on the Company's earnings,
financial condition, capital requirements and other relevant factors.
15
<PAGE> 20
ITEM 6. SELECTED FINANCIAL DATA
The following table sets forth selected financial information
concerning the Company and should be read in conjunction with the audited
financial statements and notes included in "Financial Statements and
Supplementary Data".
<TABLE>
<CAPTION>
YEARS ENDED JUNE 30,
---------------------------------------------------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
(in thousands except per share data)
<S> <C> <C> <C> <C> <C>
STATEMENTS OF OPERATIONS DATA:
Net revenues ............................. $ 17,573 $ 20,455 $ 6,942 $ 4,006 $ 2,852
Gross profits ............................ 6,623 10,902 3,355 1,436 851
Income (loss) from operations ............ (4,660)(1) 1,425 (1,665) (2,489) (2,542)(2)
Net income (loss) ........................ (4,177)(1) 1,798 (1,641) (2,505) (2,598)(2)
Net income (loss) per common share-basic . $ (.47)(1) $ .21 $ (0.22) $ (0.35) $ (0.39)(2)
Net income (loss) per common share-diluted $ (.47)(1) $ .20 $ (0.22) $ (0.35) $ (0.39)(2)
</TABLE>
(1) During 1998, the Company recorded a non-recurring charge of $745,000
($.08 per share) for the costs of the Company's change in business
focus to the ABS and bonus game product lines.
(2) During 1994, the Company recorded a non-recurring charge of $898,000
($.14 per share) for the expenses and settlement of patent infringement
litigation.
<TABLE>
<CAPTION>
AS OF JUNE 30,
-------------------------------------------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
(in thousands)
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Working capital ...................... $12,091 $16,474 $ 2,552 $ 3,458 $ 3,574
Total assets ......................... 17,194 21,323 7,631 6,264 6,301
Current liabilities .................. 2,435 2,545 3,644 1,302 1,227
Long-term debt ....................... -- -- -- -- --
Redeemable convertible preferred stock 4,948 4,948 -- -- --
Stockholders' equity ................. 9,811 13,830 3,987 4,962 5,074
</TABLE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
OVERVIEW
The Company develops, manufactures and markets electronic game
promotions, equipment and games for the casino gaming industry. The Company's
products are based on its proprietary Acres Bonusing Technology and are designed
to enhance casino profitability by providing entertainment and incentives to
players of gaming machines. The bonusing technology improves the efficiency of
bonus and incentive programs currently offered by many casinos, and makes
possible some bonus and incentive programs that have not previously been
offered.
At its current stage of operations, the Company's financial position
and operating results may be materially affected by a number of factors,
including the timing of receipt, installation and regulatory approval of any one
order, availability of additional capital, competition and technological change.
Historically, three or fewer customers have accounted for more than 65 percent
of annual revenues. (See "Strategic Alliance with IGT" and "Factors That May
Affect Future Results").
16
<PAGE> 21
RESULTS OF OPERATIONS
COMPARISON OF THE YEARS ENDED JUNE 30, 1998 AND 1997
The Company's net revenues during the year ended June 30, 1998 were
$17.6 million, a decrease of 14 percent from the $20.5 million of net revenues
in 1997. The Company's revenues can fluctuate significantly based on the timing
of the delivery of any large order. Although sales under the Strategic Alliance
with IGT during the year ended June 30, 1998 increased over the prior year by
approximately $7.5 million, sales of products for the Crown Casino in Melbourne,
Australia decreased by $3.8 million, sales of the Company's Legacy slot
accounting and player tracking system decreased by $2.7 million and sales of
components to a gaming machine developer decreased by $2.6 million from the
prior year. Additionally, sales of custom bonusing applications decreased by
$1.3 million in fiscal 1998 as compared to the prior year. The Company is now
focusing its product development efforts on its ABS and bonus game products and
is not currently developing or marketing these custom bonus applications.
Component materials purchased primarily from computer and electronics
vendors comprised 66 percent of the cost of revenues in 1998 and 72 percent in
1997. Manufacturing, procurement and installation labor and expenses accounted
for the remaining cost of revenues. Changes in the components of the cost of
revenues result from changes in the mix of products sold.
Gross profit as a percentage of net revenue was 38 percent for 1998,
compared to 53 percent for 1997. Gross profit is generally higher on products
that feature Acres Bonusing Technology, including the Company's Legacy slot
accounting and player tracking system, the system used for the Crown Casino and
products sold to the gaming machine developer. During the year ended June 30,
1998, these sales were substantially replaced with sales of lower margin
hardware components to IGT that resulted in a decrease in gross margin of
approximately 7 percentage points. Gross margin was also reduced by 5 percentage
points due to the costs of installing and removing certain custom bonus
applications that were unsuccessfully placed under revenue-sharing arrangements
in 1998 and an additional 3 percentage points as a result of absorbing certain
fixed manufacturing costs over a smaller sales volume.
The Company's research and development expenses increased slightly to
$4.7 million in 1998, from $4.5 million in the prior year. The Company expects
to continue to spend a significant portion of its revenue on research and
development in order to enhance and expand the capabilities of its products,
including the development of additional ABS and bonus game products.
Selling, general and administrative costs increased to $5.9 million in
1998 from $4.9 million in the prior year. This increase was primarily the result
of approximately $450,000 of incremental legal fees incurred to secure and
defend the Company's intellectual property rights for new and existing bonusing
products and approximately $250,000 of incremental rent expense resulting from
the expansion of the Company's production facility in Corvallis, Oregon in May
1997.
During the second quarter of fiscal 1998, the Company changed its
business focus to the ABS and bonus game product lines and recorded a
non-recurring charge of $745,000 to recognize severance and inventory costs of
discontinuing its Legacy slot accounting and player tracking system. The Company
originally expected to be able to liquidate the majority of the excess Legacy
inventory to existing slot accounting and player tracking customers and smaller
casinos. These sales have not been realized and the significant improvements
available in currently offered products make future sales unlikely.
Other income increased by $110,000 as a result of interest income
received on investments of cash and cash equivalents. The Company has cumulative
net operating losses of approximately $9.5 million available to offset future
taxable income through 2012. As the realizability of these net operating loss
carryforwards is uncertain, the Company has provided a valuation allowance for
the entire amount and did not record an income tax benefit for the year ended
June 30, 1998. An income tax provision was not recorded in fiscal 1997 due to
the utilization of net operating loss carryforwards that were available at that
time. The net loss for the year ended June
17
<PAGE> 22
30, 1998 was $4.2 million ($0.47 per share - diluted) compared to a net income
of $1.8 million ($0.20 per share - diluted) in the prior year.
COMPARISON OF THE YEARS ENDED JUNE 30, 1997 AND 1996
The Company's net revenues during the year ended June 30, 1997 were
$20.5 million, an increase of 197 percent over the $6.9 million of net revenues
in 1996. This increase in revenues was primarily the result of an $8.4 million
increase in shipments of bonusing, slot accounting and player tracking
components to IGT and other game manufacturers. Final deliveries of a slot
bonusing system and progressive jackpot displays for the Crown Casino in
Melbourne, Australia accounted for an additional $2.5 million of the increase.
Installation of the Company's Legacy slot accounting and player tracking systems
generated an incremental $1.4 million of revenues. Increased sales of custom
bonusing applications accounted for the final $1.3 million of the increase over
1996.
Component materials purchased primarily from computer and electronics
vendors comprised 72 percent of the cost of revenues in 1997 and 57 percent in
1996. Manufacturing, procurement and installation labor and expenses accounted
for the remaining cost of revenues. Changes in the components of the cost of
revenues are a result of changes in the mix of products sold.
Gross profit as a percentage of net revenue was 53 percent for 1997,
compared to 48 percent for 1996. Gross margin increased 9 percentage points as a
result of the economies of absorbing certain fixed manufacturing costs over a
larger sales volume. This increase was partially offset by a 4 percentage point
decrease in gross margin incurred as a result of changes in the mix of products
sold.
The Company's research and development expenses increased to $4.5
million in 1997, from $2.3 million in the prior year, primarily as a result of
hiring and supporting additional personnel. The Company expects to continue to
spend a significant portion of its revenue on research and development in order
to enhance and expand the capabilities of its products, including the
development of additional promotions that utilize the Company's bonusing
technology.
In order to support growth in revenue and continue to market and sell
its products, the Company hired additional personnel and increased the amount of
leased office space in 1997, resulting in a $2.3 million increase over 1996
selling, general and administrative operating expenses.
Other income increased by $349,000 as a result of interest income
received on investments of cash and cash equivalents. An income tax provision
was not recorded for the year ended June 30, 1997 due to the utilization of net
operating loss carryforwards. In fiscal 1996, the Company had cumulative net
operating loss carryforwards for which the realizability was uncertain. The
Company provided a valuation allowance for the entire amount and did not record
an income tax benefit in fiscal 1996. The net income for the year ended June 30,
1997 was $1.8 million ($0.20 per share - diluted) compared to a net loss of $1.6
million ($0.22 per share - diluted) in the prior year.
LIQUIDITY AND CAPITAL RESOURCES
The Company expects to incur a net loss in the first half of fiscal
1999. Revenues are expected to decrease from the same period in the prior year.
Operating expenses are expected to increase from the same period in the prior
year as the Company continues to develop, enhance and market its ABS and bonus
games and defend its intellectual property rights. The Company's cash and cash
equivalents balances are expected to be sufficient to fund the Company's
operations during this period.
The Company expects to generate net income in the second half of
fiscal 1999 primarily as a result of the Pending Sales Agreement. (See "Acres
Bonusing System" and "Factors That May Affect Future Results").
The Company's operations have historically used cash. During the year
ended June 30, 1998, $2.3 million of net cash was generated by operating
activities as the collection of accounts receivable and reductions in
inventories more than offset the effects of the Company's operating loss. During
the year ended June 30, 1997, net cash used by operating activities was $4.4
million,
18
<PAGE> 23
primarily resulting from volume-related increases in working capital, including
changes in accounts receivable, inventory and customer deposits. In the year
ended June 30, 1996, $1.2 million of cash was provided by operating activities
as the funding requirements of the Company's negative operating results were
offset by favorable timing of vendor payments and the receipt of significant
customer deposits on projects to be completed in 1997.
The Company made capital expenditures of $1.9 million, $1.8 million,
and $585,000 in 1998, 1997 and 1996, respectively, primarily on computers and
equipment to support research and development efforts. As the Company expands
into operating or leasing bonus games, investments in gaming machines and
equipment may be significant.
The Company's principal sources of liquidity have been net proceeds of
$7.2 million from its initial public offering in November 1993 and $6.2 million
from the exercise of the Redeemable Warrants (as discussed in Note 5 to the
Consolidated Financial Statements) in October 1996. In addition, as part of the
Strategic Alliance with IGT entered into in January 1997, the Company issued
519,481 shares of Series A Convertible Preferred Stock for net proceeds of $4.9
million.
As of June 30, 1998, the Company had cash and cash equivalents of $9.9
million, compared to $9.3 million as of June 30, 1997. The Company invests its
cash in highly liquid marketable securities with maturities of three months or
less at date of purchase. The Company does not invest in derivative securities.
The Company does not have any debt or any borrowing arrangements.
FACTORS THAT MAY AFFECT FUTURE RESULTS
Certain statements in this Form 10-K contain "forward-looking"
information (as defined in Section 27A of the Securities Act of 1933, as
amended) that involve risks and uncertainties that could cause actual results to
differ materially from the results discussed in the forward-looking statements.
Such factors include, but are not limited to, the following:
PENDING SALES AGREEMENT
The Company is in negotiations to provide casino-wide ABS bonusing
applications, audio-visual products and an integrated slot accounting system for
a large, new Nevada casino. Although the negotiations are not yet complete and a
written contract has not been executed, the Company expects the final contract
will result in approximately $10 million in revenue and installation will occur
in the second half of fiscal 1999. The Company expects that the sale will
include new bonusing applications and its own proprietary slot accounting system
that have not yet been approved by the Nevada Gaming Authorities. The Company
expects that the definitive contract will include penalty provisions if the
Company fails to meet certain milestones. The contract negotiations may not be
concluded or may not be concluded to a result that is satisfactory to the
Company.
The Company expects that the definitive contract will not include an
advance payment normally required by the Company before the commencement of a
major project. The Company will be materially adversely affected if it is not
able to collect payment for its products.
RELATIONSHIP WITH IGT
Customer Concentration; Strategic Alliance with IGT. The Company's
Strategic Alliance with IGT has increased the Company's dependence on IGT as a
customer and as a distributor of the Company's products. Sales to IGT under the
Strategic Alliance have not met the Company's expectations. Certain casinos have
expressed an interest in purchasing ABS without also purchasing IGS. Although
the Strategic Alliance does not prohibit the Company from selling ABS directly
to customers, IGT has expressed objections about the Pending Sales Agreement
(see "Acres Bonusing System") and may be unwilling to continue the Strategic
Alliance if the Company continues to sell ABS independently of IGT. In late
September 1998, Albert Crosson, Vice Chairman of IGT, resigned from the
Company's Board of Directors. IGT has not nominated Mr. Crosson's successor,
although it continues to have the right to do so.
Representatives of the Company and IGT have met several times to work
to redefine the relationship. The Strategic Alliance may be re-defined, mutually
terminated or terminated at the election of either party. The termination of the
Strategic Alliance would likely have a significant negative impact on the
Company's sales to IGT. However, such termination would also provide the Company
with additional control of the sale, service and support of the Company's
bonusing products and may offer sales opportunities that would otherwise not be
available. (See "Acres Bonusing System").
COMMUNICATION PROTOCOL
The Company and IGT have jointly developed a communication protocol
known as SAS4. The protocol is used to communicate instructions and messages
between ABS and gaming machines. The communication of these instructions and
messages
19
<PAGE> 24
is essential to the operation of bonuses. Although the Company and IGT have
agreed that the Company can use SAS4 in connection with the Pending Sales
Agreement, IGT has stated that the Company does not have an unrestricted right
to use SAS4 with non-IGT games. The Company believes that it has joint
ownership of the protocol and the ability to use and license the protocol. If
necessary, the Company believes there are alternatives to SAS4 but such
alternatives could cause delays in product availability.
YEAR 2000
The Year 2000 issue results from computer programs operating
incorrectly when the calendar year changes to January 1, 2000. Computer programs
that have date-sensitive software may recognize a two-digit date using "00" as
calendar year 1900 rather than the year 2000. This could result in system
failure or miscalculations and could cause disruptions of operations, including,
among other things, a temporary inability to engage in normal business
activities.
The Company has evaluated its technology and data, including imbedded
non-information technology, used in the creation and delivery of its products
and services and in its internal operations and has identified no significant
Year 2000 issues. The core business systems are compliant, or a migration path
to a compliant version will be in place by the year 2000. Compliant upgrades for
the Company's existing slot accounting and player tracking products have been
developed, submitted to regulatory authorities, made available to all customers
and, in some cases, installed at the customers' sites. The Company has not
incurred material costs and believes that future costs associated with
addressing the Year 2000 issue will have an immaterial effect on the Company's
financial results.
Although the Company has inquired of certain of its significant vendors
as to the status of their Year 2000 compliance initiatives, no binding
assurances have been received. The Company believes that its component parts and
services can be obtained from multiple sources and therefore is not overly
reliant on any single vendor. Failure of telephone service providers or other
monopolistic utilities could have a significant detrimental effect on the
Company's operations. The Company does not know the status of its customers'
Year 2000 compliance initiatives. Failure of the Company's customers to
adequately address such issues could negatively affect their ability to purchase
bonusing products. There can be no assurances that such third parties will
successfully address their own Year 2000 issues over which the Company has no
control.
A formal contingency plan to address most reasonably likely
"worst-case" scenarios has not yet been created, but the Company expects to
develop such a plan during the next 12 months.
OTHER RISKS
Bonus Games. The creation of bonus games and the deployment of those
games into casinos on a revenue-sharing basis is a key part of the Company's
business plan. The Company may not be able to develop successful bonus games or
convince casinos to implement such games on a revenue-sharing basis.
Government Regulation; Potential Restrictions on Sales. The Company is
subject to gaming regulations in each jurisdiction in which its products are
sold or are used by persons licensed to conduct gaming activities. The Company's
products generally are regulated as "associated equipment", pursuant to which
gaming regulators have
20
<PAGE> 25
discretion to subject the Company, its officers, directors, key employees, other
affiliates, and certain shareholders to licensing, approval and suitability
requirements. In the event that gaming authorities determine that any person is
unsuitable to act in such capacity, the Company would be required to terminate
its relationship with such person, and under certain circumstances, the Company
has the right to redeem its securities from persons who are found unsuitable.
Products offered and expected to be offered by the Company include features that
are not available on products currently in use. These new features may, in some
cases, result in additional regulatory review and licensing requirements for the
products or the Company. Compliance with such regulatory requirements may be
time consuming and expensive, and may delay or prevent a sale in one or more
jurisdictions. In addition, associated equipment generally must be approved by
the regulatory authorities for use by each licensed location within the
jurisdiction, regardless of whether the Company is subject to licensing,
approval, or suitability requirements. Failure by the Company to obtain, or the
loss or suspension of, any necessary licenses, approvals or suitability
findings, may prevent the Company from selling or distributing its product in
such jurisdiction. Such results may have a material adverse effect on the
Company. The Company often enters into contracts that are contingent upon the
Company and/or the customer obtaining the necessary regulatory approvals to sell
or use the Company's products or to operate a casino. Failure to timely obtain
such approvals may result in the termination of the contract and the return of
amounts paid pursuant to such contract.
Changes in Business and Economic Conditions Generally and in the Gaming
Industry. The strength and profitability of the Company's business depends on
the overall demand for bonusing products and growth in the gaming industry.
Gaming industry revenues are sensitive to general economic conditions and
generally rise or fall more rapidly in relation to the condition of the overall
economy. In a period of reduced demand, the Company may not be able to lower its
costs rapidly enough to counter a decrease in revenues.
Product Concentration; Competition; Risks of Technological Change. The
Company expects to derive most of its revenues from the sale of bonusing
products and the Company's future success will depend in part upon its ability
to continue to generate sales of these products. A decline in demand or prices
for the Company's bonusing products, whether as a result of new product
introduction or price competition from competitors, technological change, or
failure of the Company's bonusing products to address customer requirements or
otherwise, could have a material adverse effect on the Company's revenues and
operating results. The markets in which the Company competes are highly
competitive and subject to frequent technological change and one or more of the
Company's competitors may develop alternative technologies for bonusing or game
promotions. The Company's future results of operations will depend in part upon
its ability to improve and market its existing products and to successfully
develop, manufacture and market new products. While the Company expends a
significant portion of its revenues on research and development and on product
enhancement, the Company may not be able to continue to improve and market its
existing products or develop and market new products, or technological
developments may cause the Company's products to become obsolete or
noncompetitive. Many of the Company's competitors have substantially greater
financial, marketing and technological resources than the Company and the
Company may not be able to compete successfully with them.
Patents and Trademarks. The Company relies on a combination of patent,
trade secret, copyright and trademark law, nondisclosure agreements and
technical security measures to protect its products. The Company has received
U.S. patents on certain features of its bonusing product line, has applied for
additional U.S. patents and may in the future apply for other U.S. patents and
corresponding foreign patents. The Company may also file for patents on certain
features of products that the Company may develop in the future. Notwithstanding
these safeguards, it is possible for competitors of the Company to obtain its
trade secrets and to imitate its products. Furthermore, others may independently
develop products similar or superior to those developed or planned by the
Company. While the Company may obtain patents with respect to certain of its
products, the Company may not have sufficient resources to defend such patents,
such patents may not afford all necessary protection and competitors may develop
equivalent or superior products which may not infringe such patents.
Fluctuations in Quarterly Operating Results. The Company's quarterly
operating results have fluctuated in the past, and may fluctuate significantly
in the future, due to a number of factors, including, among others, the size and
timing of customer orders, the timing and market acceptance of new products
introduced by the Company, changes in the level of operating expenses,
technological advances and new product introductions by the
21
<PAGE> 26
Company's competitors, competitive conditions in the industry, regulatory
approval and general economic conditions. Product development and marketing
costs are often incurred in periods before any revenues are recognized from the
sales of products, and gross margins are lower and operating expenses are higher
during periods in which such product development expenses are incurred and
marketing efforts are commenced. At its current stage of operations, the
Company's quarterly revenues and results of operations may be materially
affected by the receipt or loss of any one order and by the timing of the
delivery, installation and regulatory approval of any one order. The Company may
not be able to achieve or maintain profitable operations on a consistent basis.
The Company believes that period to period comparisons of its financial results
may not be meaningful and should not be relied upon as indications of future
performance. Fluctuations in operating results may result in volatility in the
price of the Company's Common Stock.
Management of Growth; Liquidity. To compete effectively and to manage
future growth, the Company must continue to improve its financial and management
controls, reporting systems and procedures on a timely basis and expand, train
and manage its employees. Any failure by the Company to implement and improve
any of the foregoing could have a material adverse effect on the Company's
business, operating results and financial condition. In addition, sufficient
funds to maintain new product development efforts and expected levels of
operations may not be available and additional capital, if and when needed by
the Company, may not be available on terms acceptable to the Company.
22
<PAGE> 27
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
<TABLE>
<CAPTION>
Page
----
<S> <C>
Report of Independent Public Accountants........................... 25
Consolidated Balance Sheets........................................ 26
Consolidated Statements of Operations.............................. 27
Consolidated Statements of Stockholders' Equity.................... 28
Consolidated Statements of Cash Flows.............................. 29
Notes to Consolidated Financial Statements......................... 30
</TABLE>
23
<PAGE> 28
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Acres Gaming Incorporated:
We have audited the accompanying consolidated balance sheets of Acres
Gaming Incorporated (a Nevada Corporation) and subsidiary as of June 30, 1998
and 1997 and the related consolidated statements of operations, stockholders'
equity and cash flows for each of the three years in the period ended June 30,
1998. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present
fairly, in all material respects, the financial position of Acres Gaming
Incorporated and subsidiary as of June 30, 1998 and 1997, and the results of
their operations and their cash flows for each of the three years in the period
ended June 30, 1998, in conformity with generally accepted accounting
principles.
ARTHUR ANDERSEN LLP
Portland, Oregon,
July 27, 1998
24
<PAGE> 29
ACRES GAMING INCORPORATED
CONSOLIDATED BALANCE SHEETS
AS OF JUNE 30, 1998 AND 1997
ASSETS
<TABLE>
<CAPTION>
1998 1997
-------- --------
(in thousands)
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 9,887 $ 9,318
Receivables, net of allowance of $50,000 and $322,000 1,929 3,880
Inventories 2,607 5,366
Prepaid expenses 103 455
-------- --------
Total current assets 14,526 19,019
-------- --------
PROPERTY AND EQUIPMENT:
Furniture and fixtures 540 541
Equipment 4,003 2,804
Leasehold improvements 627 526
Accumulated depreciation (2,919) (2,075)
-------- --------
Property and equipment, net 2,251 1,796
-------- --------
OTHER ASSETS, NET 417 508
-------- --------
$ 17,194 $ 21,323
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 982 $ 1,339
Accrued expenses 438 723
Customer deposits 1,015 483
-------- --------
Total current liabilities 2,435 2,545
-------- --------
REDEEMABLE CONVERTIBLE PREFERRED STOCK 4,948 4,948
STOCKHOLDERS' EQUITY:
Common Stock, $.01 par value, 50 million shares authorized,
8.8 million shares issued and outstanding 88 88
Additional paid-in capital 19,554 19,321
Accumulated deficit (9,831) (5,579)
-------- --------
Total stockholders' equity 9,811 13,830
-------- --------
$ 17,194 $ 21,323
======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated balance
sheets.
25
<PAGE> 30
ACRES GAMING INCORPORATED
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED JUNE 30, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
(in thousands except per share data)
<S> <C> <C> <C>
NET REVENUES $ 17,573 $ 20,455 $ 6,942
COST OF REVENUES 10,950 9,553 3,587
-------- -------- --------
GROSS PROFIT 6,623 10,902 3,355
-------- -------- --------
OPERATING EXPENSES:
Research and development 4,651 4,531 2,341
Selling, general and administrative 5,887 4,946 2,679
Non-recurring charge 745 -- --
-------- -------- --------
Total operating expenses 11,283 9,477 5,020
-------- -------- --------
INCOME (LOSS) FROM OPERATIONS (4,660) 1,425 (1,665)
OTHER INCOME 483 373 24
-------- -------- --------
NET INCOME (LOSS) $ (4,177) $ 1,798 $ (1,641)
======== ======== ========
NET INCOME (LOSS) PER SHARE - BASIC $ (.47) $ .21 $ (0.22)
======== ======== ========
NET INCOME (LOSS) PER SHARE - DILUTED $ (.47) $ .20 $ (0.22)
======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
26
<PAGE> 31
ACRES GAMING INCORPORATED
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED JUNE 30, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
COMMON STOCK ADDITIONAL DEFERRED
------------------- PAID-IN ACCUMULATED CHARGE -
SHARES AMOUNT CAPITAL DEFICIT WARRANTS TOTAL
------ ------ ------- ------- -------- -----
(in thousands)
<S> <C> <C> <C> <C> <C> <C>
Balance as of June 30, 1995 7,495 $ 75 $ 10,615 $ (5,672) $ (56) $ 4,962
Issuance of common stock 106 1 609 -- -- 610
Net loss -- -- -- (1,641) -- (1,641)
Amortization of warrants -- -- -- -- 56 56
----- -------- -------- -------- -------- --------
Balance as of June 30, 1996 7,601 76 11,224 (7,313) -- 3,987
Issuance of common stock 1,163 12 8,097 -- -- 8,109
Net income -- -- -- 1,798 -- 1,798
Preferred stock dividends -- -- -- (64) -- (64)
----- -------- -------- -------- -------- --------
Balance as of June 30, 1997 8,764 88 19,321 (5,579) -- 13,830
Issuance of common stock 56 -- 233 -- -- 233
Net loss -- -- -- (4,177) -- (4,177)
Preferred stock dividends -- -- -- (75) -- (75)
----- -------- -------- -------- -------- --------
Balance as of June 30, 1998 8,820 $ 88 $ 19,554 $ (9,831) $ -- $ 9,811
===== ======== ======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
27
<PAGE> 32
ACRES GAMING INCORPORATED
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED JUNE 30, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
(in thousands)
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $ (4,177) $ 1,798 $ (1,641)
Adjustments to reconcile net income (loss) to net cash
from operating activities:
Depreciation and amortization 1,493 931 710
Non-recurring charge 745 -- --
Changes in assets and liabilities:
Receivables 1,951 (2,970) 57
Inventories 2,098 (2,674) (297)
Prepaid expenses 352 (361) (21)
Accounts payable and accrued expenses (726) 166 987
Customer deposits 532 (1,265) 1,355
-------- -------- --------
Net cash from operating activities 2,268 (4,375) 1,150
-------- -------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment (1,922) (1,502) (349)
Capitalized software costs -- -- (82)
Other, net 65 (298) (154)
-------- -------- --------
Net cash from investing activities (1,857) (1,800) (585)
-------- -------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net proceeds from issuance of common stock 233 8,109 610
Net proceeds from issuance of preferred stock -- 4,948 --
Preferred stock dividends (75) (64) --
-------- -------- --------
Net cash from financing activities 158 12,993 610
-------- -------- --------
NET INCREASE IN CASH AND CASH EQUIVALENTS 569 6,818 1,175
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 9,318 2,500 1,325
-------- -------- --------
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 9,887 $ 9,318 $ 2,500
======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
28
<PAGE> 33
ACRES GAMING INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND COMPANY OPERATIONS:
COMPANY OPERATIONS AND BASIS OF CONSOLIDATION
The consolidated financial statements include the accounts of Acres
Gaming Incorporated and its wholly owned subsidiary, AGI Distribution, Inc. (the
"Company"). All intercompany accounts and transactions have been eliminated.
The Company develops, manufactures and markets electronic game
promotions, equipment and games for the casino gaming industry. The Company's
principal products are based on its proprietary Acres Bonusing Technology and
are designed to enhance casino profitability by providing entertainment and
incentives to players of gaming machines. The bonusing technology improves the
efficiency of bonus and incentive programs currently offered by many casinos,
and makes possible bonus and incentive programs that have not previously been
offered. The Company currently sells its products in the United States and in
Australia. Sales in Australia totaled $1.2 million, $4.8 million and $1.4
million, for the years ended June 30, 1998, 1997 and 1996, respectively.
At its current stage of operations, the Company's financial position
and operating results may be materially affected by a number of factors,
including the timing of receipt, installation and regulatory approval of any one
order, availability of additional capital, competition and technological change.
REVENUE RECOGNITION
The Company sells certain of its products under contracts that
generally provide for a deposit to be paid before commencement of the project
and for a final payment to be made after completion of the project. Revenue is
recognized as individual units are installed or, in those instances where the
contract does not provide for the Company to install the equipment, upon
shipment. Customer deposits received under sales agreements are reflected as
liabilities until the related revenue is recognized.
MAJOR CUSTOMERS
One customer accounted for 75 percent, 28 percent and 2 percent of the
Company's net revenues in 1998, 1997 and 1996, respectively. Another customer
accounted for 18 percent, 28 percent and 43 percent of the Company's net
revenues in 1998, 1997 and 1996, respectively. A third customer provided 12
percent of the Company's net revenues in 1997 and 20 percent in 1996. Sales to
one other customer amounted to 12 percent of the Company's net revenues in 1996.
INCOME TAXES
The Company accounts for income taxes under the liability method. Under
this method, deferred tax assets and liabilities are determined based on
differences between the financial reporting and tax bases of assets and
liabilities, and are measured using the enacted tax rates in effect in the years
in which the differences are expected to reverse.
CASH AND CASH EQUIVALENTS
Cash and cash equivalents include cash on hand, amounts held in and due
from banks and highly liquid marketable securities with maturities of three
months or less at date of purchase.
29
<PAGE> 34
FAIR VALUE OF FINANCIAL INSTRUMENTS
The Company's financial instruments consist of receivables. At June 30,
1998 and 1997, the fair value of the Company's receivables approximated their
carrying value.
INVENTORIES
Inventories consist of electronic components and other hardware, which
are recorded at the lower of cost (first-in, first-out) or market. Inventories
consist of the following:
<TABLE>
<CAPTION>
INVENTORIES AT JUNE 30,
-----------------------
1998 1997
------ ------
(in thousands)
<S> <C> <C>
Raw materials $ 957 $2,787
Work-in-progress 124 621
Finished goods 1,526 1,958
------ ------
Total inventories $2,607 $5,366
====== ======
</TABLE>
PROPERTY AND EQUIPMENT
Property and equipment is stated at cost. Depreciation is computed on
the straight-line basis over the assets' estimated useful lives of two to five
years. Leasehold improvements are amortized over the lease term. Expenditures
for maintenance and repairs are charged to operations when incurred.
INTANGIBLE ASSETS
Intangible assets consist of costs associated with the establishment of
patents, gaming licenses and gaming product approvals in various jurisdictions.
Amortization of patents is calculated using the straight-line method over the
estimated life of the patent. Gaming licenses and product approvals are
amortized over periods of 5 years and 2 years, respectively. Intangible assets,
net of accumulated amortization, were $345,000 and $397,000 at June 30, 1998 and
1997, respectively, and are included in other assets.
RESEARCH AND DEVELOPMENT COSTS
All research and development costs are expensed as incurred.
NON-RECURRING CHARGE
During the second quarter of fiscal 1998, the Company changed its
business focus to the ABS and bonus game product lines and recorded a
non-recurring charge of $745,000 to recognize severance and inventory costs of
discontinuing its Legacy slot accounting and player tracking system. The Company
originally expected to be able to liquidate the majority of the excess Legacy
inventory to existing slot accounting and player tracking customers and smaller
casinos. These sales have not been realized and the significant improvements
available in currently offered products make future sales unlikely.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amount of assets and liabilities, the
disclosure of contingent assets and liabilities and the reported amounts of
revenues and expenses during the reporting period. Actual results could differ
from those estimates.
30
<PAGE> 35
2. INCOME TAXES:
At June 30, 1998, the Company had cumulative net operating losses
totaling approximately $9.5 million that are available to offset future taxable
income through 2012. A portion of the net operating loss carryforwards was used
to offset income for the year ended June 30, 1997. The Company has provided a
valuation allowance for the remaining amount of the benefit related to these net
operating loss carryforwards as realizability is uncertain.
Deferred income taxes are provided for the temporary differences
between the carrying amounts of the Company's assets and liabilities for
financial statement purposes and their tax bases. Deferred tax liabilities were
insignificant as of June 30, 1998 and 1997. The sources of the differences that
give rise to the deferred income tax assets as of June 30, 1998 and 1997, along
with the income tax effects of each, are as follows:
<TABLE>
<CAPTION>
DEFERRED INCOME TAX ASSETS
AT JUNE 30,
--------------------------
1998 1997
------- -------
(in thousands)
<S> <C> <C>
Operating loss carryforwards $ 3,621 $ 1,907
Research and development tax credit 632 --
Property and equipment 367 144
Accruals and reserves 355 261
Intangible assets 23 20
------- -------
4,998 2,332
Less valuation allowance (4,998) (2,332)
------- -------
Net deferred tax assets $ 0 $ 0
======= =======
</TABLE>
During 1998, the valuation allowance related to deferred tax assets
increased by $2.7 million. In 1997, the valuation allowance related to deferred
tax assets decreased by $496,000.
3. COMMITMENTS AND CONTINGENCIES:
Litigation
Two related lawsuits have been filed in the U.S. District Court that
allege violation of the federal securities laws by the Company and its executive
officers. Those suits have been consolidated into one combined action that seeks
class certification for a proposed class consisting of the purchasers of the
Company's stock during the period from March 26, 1997 to December 11, 1997. The
court has not yet ruled on class certification. The Company has moved to dismiss
this suit and discovery has been stayed pending resolution of this motion. The
Company denies the allegations and intends to vigorously defend itself.
Three related lawsuits have been filed in the U.S. District Court
involving the Company and its patents. Those suits have now been consolidated.
The Company denies all asserted allegations and intends to vigorously defend
itself and its intellectual property rights.
In Suit I, Mikohn asserted a claim for declaratory judgment of
noninfringement and invalidity of U.S. Patent No. 5,655,961 ("the `961 patent")
owned by the Company. Mikohn also asserted claims for "intentional interference
with a business relationship," "intentional interference with prospective
business relationship," "unfair competition: trade libel" and "unfair
competition: disparagement." Mikohn's complaint sought unspecified damages,
punitive damages, attorney's fees, interest on the alleged damages, an
injunction against the conduct alleged in the complaint, and a declaration that
the `961 patent is invalid and not infringed by Mikohn or its customers. The
Company has filed a counterclaim for infringement of the `961 patent, and has
denied Mikohn's other allegations.
31
<PAGE> 36
In Suit II, Mikohn asserted a claim for declaratory judgment of
noninfringement and invalidity of U.S. Patent No. 5,741,183 ("the `183 patent")
owned by the Company. Mikohn's complaint sought no damages, but requested an
award of attorney's fees and a declaration that the `183 patent is invalid and
not infringed by Mikohn. The Company is not aware of any infringement by Mikohn,
and therefore sought to dismiss the complaint for lack of a case or controversy.
The court denied the Company's motion.
In Suit III, the Company sued Mikohn, Casino Data Systems, New York New
York Hotel and Casino and Sunset Station Hotel and Casino for infringement of
the Company's U.S. Patent No. 5,752,882 ("the `882 patent"). Mikohn
counterclaimed in Suit III, seeking a declaratory judgment of invalidity and
noninfringement of the `882 patent and asserted claims for "false and misleading
representations" under 11 U.S.C. Section 1125, "interference with prospective
economic relations," "unfair competition: trade libel" and "unfair competition:
disparagement." Mikohn's counterclaims seek unspecified damages, as well as a
trebling of the damages, punitive damages, attorney's fees and an injunction
against the Company's "continuing to commit the unlawful acts" alleged in the
counterclaims. The Company moved for a preliminary injunction in Suit III
against Mikohn's infringement of the `882 patent. The court has not ruled on the
Company' motion.
In a separate but related action, the Company has filed suit in U.S.
District Court against its general liability insurance carrier for breach of
insurance contract. The Company's suit is based on the insurer's refusal to pay
more than nominal amounts of the costs of defense in Suit I. The Company
anticipates that this matter will be resolved by cross motions for summary
judgment. In addition, the Company has tendered the defense of Mikohn's
counterclaims in Suit III to the same insurer. To date the insurer has not
responded to the tender of Suit III's defense.
The Company from time to time is involved in other various legal
proceedings arising in the normal course of business.
Operating Leases
The Company leases its office facilities under operating leases that
extend through June 15, 2003. Future minimum lease payments under these
non-cancelable operating leases as of June 30, 1998 are $785,000, $497,000,
$493,000, $493,000 and $472,000 in 1999, 2000, 2001, 2002 and 2003,
respectively. Total lease expense was $567,000, $255,000 and $228,000 for the
years ended June 30, 1998, 1997 and 1996, respectively.
4. REDEEMABLE PREFERRED STOCK:
In January 1997, the Company created an initial series of preferred
stock, consisting of 1,038,961 shares, which it designated Series A Convertible
Preferred Stock (the "Series A Stock") and issued 519,481 shares for net
proceeds of approximately $4.9 million. The Series A Stock is entitled to
receive non-cumulative dividends at a rate per share equal to 3 percent of
$9.625, the initial per share purchase price. Holders of the Series A Stock have
the option, upon notice to the Company, to convert shares of Series A Stock into
shares of Common Stock based upon the applicable conversion price in effect at
the time of conversion. The initial conversion price for each share of Series A
Stock is the lesser of the price at which the Series A Stock was initially
issued and the average closing price of the Company's Common Stock for the
period of thirty trading days prior to the date of conversion of shares of
Series A Stock. The conversion price is subject to adjustments for certain
events relating to the Common Stock including stock splits and combinations,
dividends and distributions, reclassification, exchange, substitution,
reorganization, merger, or sale of assets. The Series A Stock is subject to
redemption, subject to certain conditions, at a price equal to the purchase
price plus any declared but unpaid dividends. As of June 30, 1998, all declared
dividends have been paid. In July 1998, $75,000 of dividends related to the six
month period ended June 30, 1998 were declared and subsequently paid.
So long as at least 130,000 of the shares of Series A Stock originally
issued by the Company remain outstanding, holders of the Series A Stock are
entitled as a class to elect one director and must approve any amendments to the
Company's articles of incorporation including, among other things, amendments to
facilitate the sale or merger of the Company. In the event of any voluntary or
involuntary liquidation, dissolution or winding up
32
<PAGE> 37
of the Company, the holders of the Series A Stock will be entitled to receive a
liquidation preference of $9.625 per share, plus any declared but unpaid
dividends, prior to the distribution of any of the Company's assets to holders
of the Common Stock. Any assets remaining after the distribution to holders of
the Series A Stock will be distributed to holders of the Common Stock.
5. STOCKHOLDERS' EQUITY:
In November 1993, the Company completed its initial public offering and
issued 1,667,500 units (the "Units") consisting of 1,667,500 shares of Common
Stock and 833,750 Redeemable Warrants. In connection with the offering, the
Company granted the underwriter warrants to purchase 145,000 Units at $6.00 per
share. The net proceeds of the offering were $7.2 million. In October 1996,
substantially all of the Redeemable Warrants were exercised, resulting in net
proceeds to the Company of approximately $6.2 million. The underwriter warrants
were exercised in October 1996 resulting in net proceeds to the Company of
approximately $1.4 million.
In June 1995, the Company issued 400,000 shares of Common Stock to a
group of private investors for net proceeds of approximately $2.3 million. In
connection with this offering, the Company granted warrants which expire in June
2000 to purchase 40,000 shares of Common Stock at $7.20 per share, which
approximated market value at that date.
In 1995, the Company issued warrants to purchase 195,000 shares of
Common Stock to two companies and two individuals in exchange for services. Of
these, warrants to purchase 50,000 shares were valued at $96,000, recorded as
paid-in capital and amortized over the term of the related service agreement
that ended in 1996. At June 30, 1998, warrants to purchase 125,000 shares at
$9.00 remain outstanding and expire in September 2000.
The Company has a Stock Option Plan (the "Plan") which permits the
granting of awards to directors, employees and consultants of the Company in the
form of stock options. Stock options granted under the Plan may be incentive
stock options or nonqualified options. Options generally vest over five years
and expire in ten years. The Company accounts for the Plan under APB Opinion No.
25 "Accounting for Stock Issued to Employees", under which no compensation cost
is recognized. Had compensation cost for the Plan been determined consistent
with FASB Statement of Financial Accounting Standards No. 123 "Accounting for
Stock-Based Compensation" ("SFAS 123"), the Company's net income (loss) and
earnings (loss) per share would have approximated the following pro forma
amounts:
<TABLE>
<CAPTION>
FOR THE YEARS ENDED JUNE 30,
--------------------------------------
1998 1997 1996
---- ---- ----
(in thousands except per share data)
<S> <C> <C> <C> <C>
NET INCOME (LOSS): As reported $ (4,177) $ 1,798 $ (1,641)
Pro forma (4,863) 535 (1,921)
EARNINGS (LOSS) PER SHARE - BASIC: As reported $ (.47) $ .21 $ (.22)
Pro forma (.55) .06 (.25)
EARNINGS (LOSS) PER SHARE - DILUTED: As reported $ (.47) $ .20 $ (.22)
Pro forma (.55) .06 (.25)
</TABLE>
In accordance with SFAS 123, the stock-based compensation methodology
has not been applied to option grants awarded before July 1, 1995. Accordingly,
the above pro forma compensation costs may not be representative of the costs
expected in future years.
33
<PAGE> 38
A total of 1,750,000 shares of the Company's Common Stock have been
reserved for issuance pursuant to awards granted under the Plan. The Company has
granted 1,294,325 options, net of cancellations, through June 30, 1998. Activity
under the Plan is summarized below:
<TABLE>
<CAPTION>
FOR THE YEARS ENDED JUNE 30,
--------------------------------------------------------------------------------------
1998 1997 1996
------------------------- ------------------------ -----------------------
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
EXERCISE EXERCISE EXERCISE
SHARES PRICE SHARES PRICE SHARES PRICE
--------- -------- --------- --------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at beginning of year 1,132,950 $ 6.25 756,375 $ 4.23 391,625 $ 4.83
Granted at exercise prices equal
to market prices 329,750 5.18 352,450 9.53 532,400 4.48
Granted at exercise prices
exceeding market prices -- -- 230,500 10.47 30,000 6.50
Exercised (55,525) 4.19 (77,625) 4.67 (91,500) 5.75
Canceled (366,000) 8.18 (128,750) 11.92 (106,150) 7.00
--------- ------- -------
Outstanding at end of year 1,041,175 5.34 1,132,950 6.25 756,375 4.23
========= ========= =======
Exercisable at end of year 523,748 4.76 468,007 4.71 278,000 3.95
========= ======= =======
Weighted average fair value of
options granted $ 3.79 $ 5.35 $ 3.39
======== ======== ========
</TABLE>
The fair value of each option grant is estimated on the date of grant
using the Black-Scholes option pricing model with the following
assumptions:
<TABLE>
<CAPTION>
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Risk free interest rate 5.8% 6.2% 6.2%
Expected life of option 5 years 5 years 5 years
Expected volatility 91% 97% 97%
Dividends none none none
</TABLE>
The following table summarizes the options to purchase Common Stock
outstanding at June 30, 1998:
<TABLE>
<CAPTION>
WEIGHTED
OPTIONS FOR OPTIONS FOR AVERAGE EXERCISE
EXERCISE SHARES WEIGHTED AVERAGE WEIGHTED AVERAGE SHARES PRICE OF SHARES
PRICES OUTSTANDING EXERCISE PRICE CONTRACTUAL LIFE EXERCISABLE EXERCISABLE
-------------- ----------- ---------------- ---------------- ----------- ----------------
<S> <C> <C> <C> <C> <C> <C>
$3.00 - $5.00 704,600 $ 4.09 8.1 years 347,414 $3.63
$5.06 - $9.00 255,425 6.88 8.4 years 156,134 6.62
$9.12 - $16.88 81,150 11.36 8.7 years 20,200 9.92
-------------- --------- --------
$3.00 - $16.88 1,041,175 5.34 8.2 years 523,748 4.76
============== ========= ========
</TABLE>
6. EMPLOYEE BENEFIT PLAN:
The Company has a profit sharing plan that operates under the
provisions of section 401(k) of the Internal Revenue Code and covers
substantially all full-time employees. Employer contributions may be made at the
discretion of the Board of Directors. To date, there have been no employer
contributions.
34
<PAGE> 39
7. PER SHARE COMPUTATION:
The Company adopted Statement of Financial Accounting Standards No. 128
"Earnings per Share" in the quarter ended December 31, 1997. Under the new
requirements, the Company reports basic and diluted earnings per share. Only the
weighted average number of common shares issued and outstanding are used to
compute basic earnings per share. The computation of diluted earnings per share
includes the effect of stock options, warrants and redeemable convertible
preferred stock, if such effect is dilutive. For purposes of these earnings per
share computations, earnings have not been reduced by preferred stock dividends
in accordance with the "if-converted method" of accounting for convertible
securities. The following table summarizes the calculations of earnings per
share amounts. Where necessary, prior year amounts have been restated.
<TABLE>
<CAPTION>
FOR THE YEAR ENDED JUNE 30,
-------------------------------------
1998 1997 1996
-------- ------- -------
(in thousands except per share data)
<S> <C> <C> <C>
Net income (loss) $ (4,177) $ 1,798 $(1,641)
======== ======= =======
Weighted average number of shares of common stock and common stock
equivalents outstanding:
Weighted average number of common shares outstanding 8,804 8,399 7,552
Dilutive effect of warrants and employee stock options after -- 400 --
application of the treasury stock method
Dilutive effect of redeemable convertible preferred stock -- 272 --
after application of the if-converted method
-------- ------- -------
Weighted average number of common shares outstanding for
computing diluted earnings per share 8,804 9,071 7,552
======== ======= =======
Earnings (loss) per share - basic $ (.47) $ .21 $ (.22)
======== ======= =======
Earnings (loss) per share - diluted $ (.47) $ .20 $ (.22)
======== ======= =======
</TABLE>
The following common stock equivalents were excluded from the earnings
per share computations because their effect would have been anti-dilutive:
<TABLE>
<CAPTION>
BALANCE OUTSTANDING AS OF JUNE 30,
----------------------------------
1998 1997 1996
---- ---- ----
(in thousands)
<S> <C> <C> <C>
Warrants and employee stock options 1,206 101 1,887
Redeemable convertible preferred stock 519 -- --
</TABLE>
If the Company had been profitable in fiscal 1998 and 1996, application
of the treasury stock method, in which the assumed net proceeds from the
exercise of the weighted average number of warrants and employee stock options
outstanding during the period are assumed to be used to repurchase common stock
at its average market price during the period, would have reduced the number of
warrants and employee stock options outstanding for purposes of computing
earnings per share to 241,000 and 291,000, in 1998 and 1996, respectively.
35
<PAGE> 40
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
No changes in, or disagreements with, accountants which required
reporting on Form 8-K have occurred within the three-year period ended June 30,
1998.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information with respect to Directors of the Company is incorporated
herein by reference to the Company's Proxy Statement that will be filed pursuant
to Regulation 14A within 120 days of June 30, 1998.
ITEM 11. EXECUTIVE COMPENSATION
Information with respect to Executive Compensation is incorporated
herein by reference to the Company's Proxy Statement that will be filed pursuant
to Regulation 14A within 120 days of June 30, 1998.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information with respect to Security Ownership of Certain Beneficial
Owners and Management is incorporated herein by reference to the Company's Proxy
Statement that will be filed pursuant to Regulation 14A within 120 days of June
30, 1998.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information with respect to Certain Relationships and Related
Transactions is incorporated herein by reference to the Company's Proxy
Statement that will be filed pursuant to Regulation 14A within 120 days of June
30, 1998.
36
<PAGE> 41
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS AND REPORTS ON FORM 8-K
(a) (1) FINANCIAL STATEMENTS
See "Item 8. Financial Statements and Supplementary Data"
(2) FINANCIAL STATEMENT SCHEDULES
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS ON FINANCIAL STATEMENT
SCHEDULE
To Acres Gaming Incorporated:
We have audited in accordance with generally accepted auditing standards, the
consolidated financial statements included in Acres Gaming Incorporated's 1998
Annual Report on Form 10-K, and have issued our report thereon dated July 27,
1998. Our audits were made for the purpose of forming an opinion on those
statements taken as a whole. The Valuation and Qualifying Accounts schedule is
the responsibility of the Company's management and is presented for purposes of
complying with the Securities and Exchange Commission's rules and is not part of
the basic consolidated financial statements. The schedule has been subjected to
the auditing procedures applied in our audits of the basic consolidated
financial statements and, in our opinion, fairly states, in all material
respects, the financial data required to be set forth therein in relation to the
basic consolidated financial statements taken as a whole.
ARTHUR ANDERSEN LLP
Portland, Oregon
July 27, 1998
ACRES GAMING INCORPORATED
SCHEDULE OF VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEARS ENDED JUNE 30, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
AMOUNTS
BALANCES AT ADDITIONS CHARGED
BEGINNING OF CHARGED TO OFF, NET OF BALANCES AT
YEAR INCOME COLLECTIONS END OF YEAR
---- ------ ----------- -----------
(in thousands)
<S> <C> <C> <C> <C>
ALLOWANCE FOR UNCOLLECTIBLE ACCOUNTS
1998 $322 $25 $(297) $50
1997 0 317 5 322
1996 48 20 (68) 0
ALLOWANCE FOR NON-RECURRING CHARGE
1998 $0 $745 $(270) $475
</TABLE>
(3) EXHIBITS
See "Index to Exhibits".
(b) REPORTS ON FORM 8-K.
No reports on Form 8-K were filed during the last quarter of
the period covered by this report.
37
<PAGE> 42
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, the Registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly authorized.
ACRES GAMING INCORPORATED
Date: September 24, 1998 By: /s/ Floyd W. Glisson
---------------------------------
Floyd W. Glisson
Chief Executive Officer,
President and Director
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, this report has been signed by the following persons in the capacities
and on the dates indicated.
Date: September 24, 1998 /s/ John F. Acres
------------------------------------
John F. Acres
Chairman of the Board
Date: September 24, 1998 /s/ Floyd W. Glisson
------------------------------------
Floyd W. Glisson
Chief Executive Officer,
President and Director
(Principal Executive Officer)
Date: September 24, 1998 /s/ Robert W. Brown
------------------------------------
Robert W. Brown
Executive Vice President,
Chief Financial
Officer, Secretary and
Treasurer (Principal Financial
and Accounting Officer)
Date: September 24, 1998 /s/ Jo Ann Acres
------------------------------------
Jo Ann Acres
Director
Date: September 24, 1998 /s/ Richard A. Carone
------------------------------------
Richard A. Carone
Director
38
<PAGE> 43
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
--- -----------
<S> <C>
3.1 Articles of Incorporation of Acres Gaming Incorporated, as amended(4)
3.2 Bylaws of Acres Gaming Incorporated, as amended(3)
+10.1 Acres Gaming Incorporated 1993 Stock Option and Incentive Plan, as amended(4)
10.2 Lease dated January 4, 1994, between the Company and Avery Investments(1)
10.3 Lease dated June 27, 1995, between the Company and McCarran Center, LLC(2)
+10.4 Employment Agreement dated January 2, 1996 between the Company and Joseph A. Huseonica(3)
+10.5 Employment Agreement dated July 1, 1996 between the Company and John F. Acres(4)
10.6 Stock Purchase Agreement between the Company and IGT dated January 28, 1997(4)
10.7 Registration Rights Agreement between the Company and IGT dated January 28, 1997(4)
10.8 Master Agreement for Product Development, Purchase and Sale between the Company and
International Game Technology, Inc. dated January 27, 1997(4)
10.9 Form of sublease between the Company and Hewlett Packard dated May 22, 1998(5)
+ 10.10 Employment Agreement Amendment dated January 15, 1997 between the Company and Joseph A.
Huseonica(5)
10.11 Lease dated March 3, 1998 between the Company and #26 McCarran Center, LC
21.1 Subsidiaries of the Registrant
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants
27.1 Financial Data Schedule for year ended June 30, 1998
27.2 Financial Data Schedule for 3 months ended September 30, 1996 (restated)
27.3 Financial Data Schedule for 6 months ended December 31, 1996 (restated)
27.4 Financial Data Schedule for 9 months ended March 31, 1997 (restated)
27.5 Financial Data Schedule for year ended June 30, 1997 (restated)
</TABLE>
- ----------
+ Management contract or compensatory plan or arrangement.
(1) Incorporated by reference to the exhibits to the Company's Annual
Report on Form 10-KSB for the year ended June 30, 1994, previously
filed with the Commission.
(2) Incorporated by reference to the exhibits to the Company's Annual
Report on Form 10-KSB for the year ended June 30, 1995, previously
filed with the Commission.
(3) Incorporated by reference to the exhibits to the Company's Quarterly
Report on Form 10-Q for the quarterly period ended September 30, 1996,
previously filed with the Commission.
(4) Incorporated by reference to the exhibits to the Company's Quarterly
Report on Form 10-Q for the quarterly period ended December 31, 1996,
previously filed with the Commission.
(5) Incorporated by reference to the exhibits to the Company's Annual
Report on Form 10-K for the year ended June 30, 1997, previously filed
with the Commission
<PAGE> 1
EXHIBIT 10.11
LEASE AGREEMENT
#26 MCCARRAN CENTER, LC
(Landlord)
and
ACRES GAMING
(Tenant)
September 17, 1998
SS-NNN-MT-26
<PAGE> 2
<TABLE>
<S> <C> <C>
1. BASIC LEASE TERMS 1
1.1 PREMISES ADDRESS 1
1.2 RENTAL AREA 1
1.3 BUILDING DESIGNATION 1
1.4 PROJECT 1
1.5 SITE PLAN 1
1.6 PREMISES FLOOR PLAN 1
1.7 TERM: 1
1.8 COMMENCEMENT DATE 1
1.9 PARKING ALLOCATION 1
1.10 OPTION TO RENEW 1
1.11 BASE RENT 1
1.12 RENT ADJUSTMENTS 2
1.13 IMPROVEMENTS 2
1.14 RULES AND REGULATIONS 2
1.15 OPERATING EXPENSES 2
1.16 SECURITY DEPOSIT 2
1.17 PERMITTED USE 2
1.18 ADDRESSES FOR PAYMENTS, NOTICES AND DELIVERIES: 2
1.19 BROKERS: 2
2. PREMISES 3
2.1 LEASED PREMISES: 3
2.2 DELIVERY AND ACCEPTANCE OF PREMISES: 3
2.3 BUILDING NAME AND ADDRESS: 3
3. TERM 4
3.1 GENERAL: 4
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
3.2 DELAY IN POSSESSION: 4
3.3 EARLY OCCUPANCY: 4
3.4 OPTION TERM(S): 4
4. RENT AND OPERATING EXPENSES 5
4.1 BASE RENT: 5
4.2 OPERATING EXPENSES 5
4.2.1 Payment of Operating Expenses 5
4.2.2 Tenant's Prorata Share Defined 5
4.2.3 Operating Expenses 5
4.2.4 Exclusion from Operating Expenses 6
4.2.5 Annual Statement of Operating Expenses 7
4.2.6 Cost Savings or Mandated Capital Improvements 8
4.2.7 Real Property Taxes 8
4.2.8 Final Determination 8
4.3 COST OF LIVING INCREASES: 9
4.4 SECURITY DEPOSIT: 9
4.5 OPTION RENT: 9
5. USE 9
5.1 USE: 9
5.2 HAZARDOUS MATERIALS: 10
5.3 SIGNS: 11
6. COMMON FACILITIES AND VEHICLE PARKING 11
6.1 OPERATION AND MAINTENANCE OF COMMON FACILITIES: 11
6.2 USE OF COMMON FACILITIES: 11
6.3 PARKING: 12
6.3.1 Parking Maintenance 12
6.4 CHANGES AND ADDITIONS BY LANDLORD: 12
7. MAINTENANCE, REPAIRS AND ALTERATIONS 12
7.1 LANDLORD'S OBLIGATIONS: 12
7.2 TENANT'S OBLIGATIONS: 13
7.2.1 Premises Repair and Maintenance 13
</TABLE>
<PAGE> 4
<TABLE>
<S> <C> <C>
7.2.2 Remedy for Failure to Perform 13
7.3 ALTERATIONS AND ADDITIONS: 14
7.3.1 Consent 14
7.3.2 Written Notice 14
7.3.3 Payment of Labor 14
7.3.4 Alterations Property of Landlord 15
7.4 UTILITY ADDITIONS: 15
7.5 ENTRY AND INSPECTION: 15
7.6 TENANT'S NON-STANDARD BUILDING IMPROVEMENTS: 15
7.7 LANDLORD'S IMPROVEMENTS: 16
8. TAXES AND ASSESSMENTS ON TENANT'S PROPERTY 16
8.1 TAXES ON TENANT'S PROPERTY: 16
9. UTILITIES 16
9.1 MULTI-TENANT BUILDING 16
9.2 LIABILITY OF LANDLORD 16
10. ASSIGNMENT AND SUBLETTING 17
10.1 RIGHTS OF PARTIES: 17
10.1.1 Non-Assignable 17
10.1.2 Notice 17
10.1.3 Reimbursement of Costs 18
10.2 EFFECT OF TRANSFER: 18
11. INSURANCE AND INDEMNITY 18
11.1 TENANT'S INSURANCE: 18
11.2 LANDLORD'S INSURANCE: 19
11.3 WAIVER OF SUBROGATION: 19
11.4 POLICIES: 19
11.5 TENANT'S INDEMNITY: 19
11.6 LANDLORD'S INDEMNITY: 20
12. DAMAGE OR DESTRUCTION 20
</TABLE>
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<TABLE>
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12.1 RESTORATION: 20
12.1.1 Damage Repair 20
12.1.2 Termination of Lease 20
12.1.3 Rent Abatement 21
12.1.4 Cost of Repair 21
13. EMINENT DOMAIN 21
13.1 TOTAL OR PARTIAL TAKING: 21
13.2 TEMPORARY TAKING: 21
13.3 TAKING OF PARKING AREA: 21
14. SUBORDINATION; ESTOPPEL CERTIFICATE 22
14.1 SUBORDINATION: 22
14.1.1 Subordinate to all underlying encumbrances 22
14.1.2 Attornment 22
14.1.3 Failure to Perform 22
14.2 ESTOPPEL CERTIFICATE: 22
14.2.1 Time Limit 22
14.2.2 Failure to Perform 22
15. DEFAULTS AND REMEDIES 23
15.1 TENANT'S DEFAULT 23
15.1.1 Abandonment 23
15.1.2 Failure to Pay Rent 23
15.1.3 Assignment 23
15.1.4 Materially False Financial Statements 23
15.1.5 Failure to Observe Covenants 23
15.1.6 Assignment to Creditors/Bankruptcy 23
15.2 LANDLORD'S REMEDIES: 24
15.3 EXPENSES AND LEGAL FEES: 26
16. END OF TERM 26
16.1 HOLDING OVER: 26
16.2 MERGER ON TERMINATION: 27
16.3 SURRENDER OF PREMISES: REMOVAL OF PROPERTY: 27
16.4 TERMINATION; ADVANCE PAYMENTS: 27
17. PAYMENTS AND NOTICES 27
</TABLE>
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18. LIMITATION OF LIABILITY 27
19. TRANSFER OF LANDLORD'S INTEREST 28
20. MISCELLANEOUS 28
20.1 GENDER AND NUMBER 28
20.2 HEADINGS: 28
20.3 JOINT AND SEVERAL LIABILITY: 28
20.4 SUCCESSORS: 28
20.5 TIME OF ESSENCE: 28
20.6 SEVERABILITY: 28
20.7 ENTIRE AGREEMENT 29
20.8 WAIVER OF TRIAL BY JURY. 29
20.9 PARTIAL INVALIDITY 29
20.10 RECORDING 29
20.11 WAIVER 29
20.12 LATE CHARGES 29
20.13 INABILITY TO PERFORM 29
20.14 CHOICE OF LAW 30
20.15 INDEPENDENTLY PROVIDED SERVICES 30
20.16 PRIOR AGREEMENTS 31
</TABLE>
<PAGE> 7
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease"), dated September 17, 1998 is made by and
between #26 McCarran Center, LC, a Nevada Limited Company, (herein called
"Landlord") and Acres Gaming, (herein called "Tenant").
1. BASIC LEASE TERMS
Each reference in this Lease to the "Basic Lease Terms" shall mean and
refer to the following collective terms, the application of which shall be
governed by the provisions in the remaining articles of this Lease.
1.1 PREMISES ADDRESS
7115 Amigo, Suite 150
1.2 RENTAL AREA
31,438 Rentable Sq. Ft.
1.3 BUILDING DESIGNATION
Building 26
Building Rentable Sq. Ft.: 54,624
Building Area Acreage: 5.33 acres
1.4 PROJECT
Phase II - Exhibit A-1
1.5 SITE PLAN
EXHIBIT A-2
1.6 PREMISES FLOOR PLAN
EXHIBIT B-1
1.7 TERM:
The term of this Lease will be for a period of 60 months.
1.8 COMMENCEMENT DATE
June 15, 1998 for business operations.
1.9 PARKING ALLOCATION
132 parking spaces.
1.10 OPTION TO RENEW
EXHIBIT "I": One (1) Term(s) of sixty (60) months.
1.11 BASE RENT
$ 36,016.00 per month during the term of the Lease. Where
reference is made in this Lease to rent as provided in Section
1.11, or where such reference is made to the term "Original
Monthly Rent", such rent shall be deemed to be the Base Rent.
TENANT SHALL RECEIVE A RENT CREDIT APPLICABLE TO THE FIRST
MONTHS RENT OF $36,016.
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1.12 RENT ADJUSTMENTS
See Section 4 below. CPI adjustments shall be capped at a two
percent (2%) minimum and five percent (5%) maximum for any
twelve (12) month period.
1.13 IMPROVEMENTS
Landlord's Contribution: $817,388. Please see EXHIBIT B-2.
1.14 RULES AND REGULATIONS
EXHIBIT "D"
1.15 OPERATING EXPENSES
See EXHIBIT "E"
Group I Percentage: 7.27%
Group II Percentage: 57.55%
1.16 SECURITY DEPOSIT
$0
1.17 PERMITTED USE
General Office
1.18 ADDRESSES FOR PAYMENTS, NOTICES AND DELIVERIES:
Landlord:
#26 McCarran Center, LC
a Nevada Limited Liability Company
2300 W. Sahara, Suite 530
Las Vegas, NV 89102
Tenant:
Acres Gaming
815 NW 9th Street
Corvallis, OR 97330
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2. PREMISES
2.1 LEASED PREMISES:
Landlord leases to Tenant and Tenant rents from Landlord the
Premises (herein the "Premises") containing the rental area set
forth in Section 1.2 of the Basic Lease Terms. The Premises is
located in the building (which together with underlying real
property is called herein the "Building"), and is a portion of
the project including other buildings described in Section 1.4 of
the Basic Lease Terms (herein the "Project"). The Premises and
the Project are indicated on Exhibits "A-2". If, upon completion
of the space plans for the Premises, Landlord's architect or
space planner determines that the rentable area of the Premises
differs from that set forth in the Basic Lease Terms then
Landlord shall so notify Tenant and the Base Rent (as shown in
Section 1.11 of the Basic Lease Terms) shall be promptly adjusted
in proportion to the change in square footage. The rentable area
of the Premises is determined by measuring: (i) to the
"drip-line" of the Building's exterior walls, which includes the
area contained within exterior entry alcoves, and (ii) to the
centerline of all walls separating the Premises from other
tenant's premises.
2.2 DELIVERY AND ACCEPTANCE OF PREMISES:
Landlord shall deliver the Premises to Tenant, on the
Commencement Date (unless Tenant is already in possession), and
Landlord further warrants to Tenant that the Common Facilities
referred to in Article 6, (i.e. plumbing, heating, air
conditioning, ventilating, electrical, lighting facilities and
equipment within the Building, fixtures, walls, foundations,
ceilings, roofs, floors, windows, access doors, loading doors,
plate glass and skylights) shall be in good operating condition
on the Commencement Date. In the event that it is determined that
this warranty has been violated, then it shall be the obligation
of the Landlord, after receipt of written notice from Tenant
setting forth with specificity the nature of the violation, to
promptly, at Landlord's sole cost, rectify such violation.
Tenant's failure to give such written notice to Landlord within
six (6) months after the Commencement Date shall cause the
conclusive presumption that Landlord has complied with all of
Landlord's obligations hereunder unless said defect cannot be
ascertained within six (6) months of the Commencement Date, in
which case Tenant shall notify Landlord of such defect within
thirty (30) days of detection of the defect or notice of a
violation of the aforementioned warranties.
Except as otherwise provided in this Lease, Tenant hereby
accepts the Premises in their existing condition as of the
Commencement Date or the date that Tenant takes possession of the
Premises, whichever is earlier, subject to all applicable zoning,
municipal, county and state laws, ordinances and regulations
governing and regulating the use of the Premises and any
covenants or restrictions of record, and accepts this Lease
subject thereto and to all matters disclosed thereby and by any
exhibits attached hereto. Tenant acknowledges that neither
Landlord nor Landlord's agent has made any representation or
warranty as to the present or future suitability of the Premises
for the conduct of Tenant's business.
2.3 BUILDING NAME AND ADDRESS:
Tenant shall not utilize any name selected by Landlord from
time to time for the Building and/or the Project as any part of
Tenant's corporate or trade name. Landlord shall have the right
to change the name, number or designation of the Building and/or
the Project without notice or liability. Landlord agrees not to
utilize the name or trademark of Tenant, its subsidiaries or
affiliates without Tenant's written approval, which Tenant may
withhold without cause or reason.
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3. TERM
3.1 GENERAL:
The term shall be for the period shown in Section
1.7 of the Basic Lease Terms ("Initial Term"). Subject to the provisions of
Section 3.3, the term shall commence on the earlier of:
a. the date Tenant acquires unrestricted possession of the
Premises, or
b. the Commencement Date as set forth in Section 1.8.
Within twenty (20) days after possession of the Premises is
tendered to Tenant, the parties shall execute the Exhibit "K"
Certificate form provided by Landlord, which shall state the
Commencement Date and the expiration date ("Expiration Date") of
the Lease. Tenant's failure to execute that form shall not affect
the validity of Landlord's determination of those dates.
The Premises shall be deemed ready for occupancy upon the
tendered date, but only if and when Landlord, to the extent
applicable:
a. has provided Tenant with unrestricted access to the
Premises, and
b. has obtained the occupancy permits required for Tenant's
unrestricted possession of the Premises.
3.2 DELAY IN POSSESSION:
If Landlord cannot deliver possession of the Premises to
Tenant on/or before the Commencement Date due to events or
factors beyond Landlord's reasonable control, this Lease shall
not be void or voidable nor shall Landlord be liable to Tenant
for any resulting loss or damage. However, Tenant shall not be
liable for any rent and the Commencement Date shall not occur
until Landlord delivers possession of the Premises and the
Premises are in fact ready for occupancy in accordance with
Section 3.1; except that if Landlord's failure to so deliver
possession on the Commencement Date is attributable to: (i)
Tenant's delays in the reasonable approval or preparation of
plans and specifications for improvements, (ii) unreasonable
delays caused by the Tenant's contractors or agents in performing
services for which Tenant is responsible, or (iii) Tenant's
negligence or willful misconduct, then Landlord shall be entitled
to full performance by Tenant (including the payment of rent)
from the Commencement Date. If Landlord does not deliver
possession of the Property to Tenant within sixty (60) days after
the Commencement Date, Tenant may elect to cancel this Lease by
giving written notice to Landlord within ten (10) days after the
sixty (60) day period ends. If Tenant gives such notice, the
Lease shall be canceled and neither Landlord nor Tenant shall
have any further obligations to the other.
3.3 EARLY OCCUPANCY:
If Tenant occupies the Premises prior to the Commencement Date
for business operations, then Tenant's occupancy of the Premises
shall be subject to all of the provisions of this Lease. Early
occupancy of the Premises shall not advance the expiration date
of this Lease.
3.4 OPTION TERM(S):
Tenant is hereby granted the right and option to extend this
Lease for the additional term or terms as provided in Exhibit I
(hereinafter "Option Term(s)"), attached hereto and incorporated
herein, commencing at the expiration of the Initial Term. Such
option is granted upon the following terms and conditions:
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1. Terms and Conditions
Except as set forth in Section 3.4.4 below,
the Option Term(s) shall be on the same terms,
covenants, conditions, provisions and agreements as in
this Lease and any amendments thereto.
2. Uncured Defaults
No uncured default exists at the time of
the exercise of the Option Term.
3. Written Notice
Tenant gives to Landlord and Landlord
receives from Tenant written notice of the exercise to
each option to extend this Lease no earlier than nine
(9) months and no later than six (6) months prior to
the expiration of the term immediately preceding the
Option Term(s) to be exercised. If said notification
is not given and received, the option to be exercised
shall automatically expire. Failure to exercise an
option shall result in automatic expiration of all
successive options.
4. Payable Rent
The rent payable during the Option Term(s)
shall be payable and computed as provided in Exhibit
"I" attached hereto.
4. RENT AND OPERATING EXPENSES
4.1 BASE RENT:
From and after the Commencement Date, Tenant shall pay
without deduction or offset the Base Rent (including
subsequent adjustments, if any) as stated in Section 1.11. The
Base Rent shall be due and payable in equal monthly
installments on the first day of each month. If the
Commencement Date occurs on a day other than the first day of
the month, the first installment of Base Rent shall include
rent for both the fractional month, if any, starting with the
Commencement Date and the following calendar month. No demand,
notice or invoice shall be required.
4.2 OPERATING EXPENSES
4.2.1 PAYMENT OF OPERATING EXPENSES
Tenant shall pay to Landlord during the term hereof, in
addition to and concurrently with the Base Rent, Tenant's
prorata share of Operating Expenses (as hereinafter defined).
4.2.2 TENANT'S PRORATA SHARE DEFINED
Tenant's Premises are located within a multi-tenant office
Building which is a part of a multi-office Project. The
services provided by Landlord for the maintenance, operation
and repair of the Building and Project are set forth in
Section 4.2.3 and Exhibit "E". The measurements (rentable
square feet, usable square feet and acreage) set forth in this
Lease and Exhibits are calculations provided by the Landlord's
engineers and architects which Landlord and Tenant agree are
reasonable and shall only be subject to revision by common
agreement of the Landlord and Tenant.
4.2.3 OPERATING EXPENSES
Operating Expenses shall mean all costs paid or incurred by
Landlord in operating, cleaning, equipping, protecting,
lighting, repairing, replacing, heating, air-conditioning, and
maintaining the Building as a first class office project, and
a proration of Operating Expenses for all common areas within
the Project as provided in Exhibit E or as otherwise
reasonably determined by Landlord, including by way of
illustration but not limitation, all of the following: (i) the
cost of providing, managing, maintaining and repairing all
structural and mechanical portions and
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components of the Building including, without limitation,
heating and air conditioning systems, plumbing and all other
utilities and the cost of supplies, equipment and maintenance
and service contracts in connection therewith; (ii) a pro rata
portion of the cost of: repairs and general maintenance of all
landscaping, parking areas, structures and signs, and trash
removal; (iii) the cost of fire, extended coverage, sprinkler,
public liability, property damage, and other insurance; (iv)
wages, salaries and other labor costs including taxes,
insurance, retirement, medical and other reasonable employee
benefits for individuals providing direct repair, maintenance
and upkeep services to the Building and Project; (v) fees,
charges and other costs actually paid by Landlord, including
management fees and accounting fees, of all independent
contractors engaged by Landlord or reasonably charged by
Landlord if Landlord performs management services for the
Project, Building or Premises, as the case may be; (vi) the
cost of supplying, replacing and cleaning employee uniforms;
(vii) a pro rata portion of the actual cost of the Project
manager's offices in the Project provided said offices are
devoted solely to the management, operation, maintenance or
repair of the Project and the costs of the office are shared
by all areas within the Project being serviced thereby; (viii)
the cost of business licenses and similar taxes; (ix) any
costs or fees imposed, assessed or levied pursuant to any
applicable laws; (x) a prorata portion of any charges which
are payable by Landlord pursuant to a service agreement with
the County of Clark for services which are provided directly
to the Project; (xi) the reasonable costs of contesting the
validity or applicability of any governmental enactment which
would increase Operating Expenses; (xii) personal property
taxes and the cost of depreciation or the rental expense of
personal property used in the maintenance, operation and
repair of the Building and Project; (xiii) wages, salaries,
normal employee benefits and taxes (or an allocation of the
foregoing) for personnel working full or part time in
connection with only the operation, maintenance and management
of the Building and Common Facilities, (xiv) the Real Property
Taxes attributed to the Building on a fully assessed basis as
further defined in Section 4.2.7. For purposes of computing
rent adjustments pursuant to this Article, Operating Expenses
for the entire Project shall be allocated and charged to
Tenant in accordance with generally accepted accounting
principals (GAAP) and expressed as an amount per square foot
of Rentable Area.
4.2.4 EXCLUSION FROM OPERATING EXPENSES
The following items shall not be included in Operating
Expenses: (i) any expenses which under generally accepted
accounting principles would not be considered a maintenance,
repair and/or operating expense for a multi-tenant commercial
office facility, (ii) costs associated with the operation of
the business of the entity which constitutes the "Landlord",
as distinguished from the costs of the Building operations,
maintenance and repair; including, but not limited to, the
legal and accounting costs associated with the marketing,
selling, syndicating, financing, mortgaging, or hypothecating
of any of Landlord's interest in the Building or Project, the
costs of disputes between Landlord and its employees, tenants
or contractors, expenses incurred by Landlord to prepare,
renovate, repaint, redecorate or perform any other work within
any space leased to an existing or prospective tenant of the
Building, (iii) expenses for any item or service which Tenant
pays directly to a third party or separately reimburses
Landlord and expenses incurred by Landlord to the extent the
same are reimbursable or reimbursed from any other tenants or
third parties, (iv) expenses in connection with services
provided solely to the premises of other tenants or
prospective tenants which are of no benefit to Tenant, (v)
depreciation and/or amortization of the Building, (vi) the
cost of repairs or other work incurred by reason of fire,
windstorm or other casualty, except for reasonable deductibles
paid under insurance contracts, (vii) Landlord's gross
receipts taxes, personal and corporate taxes, inheritance and
estate taxes, franchise, gift or transfer taxes, (viii) the
cost of alterations or capital improvements which under
generally accepted accounting principles are properly
classified as capital expenditures, (ix) expenses for the
replacement of any item covered under warranty, (x) the cost
of repair necessitated by Landlord's negligence or willful
misconduct, or to correct any latent defects or original
design defects in the Building construction, materials or
equipment, (xi) salaries of employees above the
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grade of Manager or Superintendent for the Building or Project
and/or salaries of employees whose time or cost billed as an
Operating Expense was not exclusively devoted to the Building
or Project, (xii) fees paid to Landlord or its affiliates to
the extent that such fees exceed the customary amount charged
for the service provided in Clark County, Nevada, (xiii) HVAC
modifications or replacements necessary to comply with
federal, state and local laws which were in existence at the
time of the Lease Commencement, including the Environmental
Protection Agency requirements and ASHRE standards for the
maintenance of fresh air and HCVFC/CFC within the Premises.
Landlord shall have the right, from time to time, to
allocate some or all of the Operating Expenses for the Project
among different portions, such as office or retail portions,
of the Project ("Cost Pools"), in accordance with generally
accepted accounting principles. The Operating Expenses within
each such Cost Pool shall be allocated and charged to the
tenants within such Cost Pool as an amount per square foot of
Rentable Area, based on the total Rentable Area within such
Cost Pool.
The inclusion of the improvements, facilities and services
set forth in Section 4.2, or in Exhibit "E", shall not be
deemed to impose an obligation upon Landlord to either have
said improvements or facilities or to provide those services
unless; (i) the Project already has the same, or (ii) Landlord
already provides the services, or (iii) Landlord has agreed
elsewhere in this Lease to provide the same or some of them.
4.2.5 ANNUAL STATEMENT OF OPERATING EXPENSES
By March 1 of each Lease Year, or as soon thereafter as
practicable, but no later than April 1, Landlord shall furnish
to Tenant a statement showing the actual Operating Expenses
for the previous Lease Year, and any charge or credit to
Tenant necessary to adjust the Additional Rent previously paid
by Tenant to reflect the actual Operating Expenses. If such
statement reveals an underpayment, Tenant shall promptly pay,
within thirty (30) days of written notice, to Landlord an
amount equal to such underpayment (whether or not this Lease
has expired or been terminated), and if such statement shows
an overpayment, Landlord shall credit the next monthly rental
payment of Tenant, or, if the Term has expired, refund the
overpayment to Tenant within thirty (30) days of this
determination.
In the event of any good faith dispute as to the amount or
nature of any Operating Expense, Tenant or its agents shall
have the right, not more frequently than once per calendar
year, after notice to Landlord and at reasonable times, to
inspect and photocopy Landlord's Operating Expense records at
Landlord's office. Should Tenant dispute such Operating
Expenses, Tenant shall be entitled, not later than one year
following the operating year in question, to retain an
independent certified public accountant or other competent
real estate professional applying GAAP, who is not contracted
or compensated on a contingency fee basis, to audit Landlord's
Operating Expense records for the calendar year in question,
which audit shall be completed within sixty (60) days of
commencement. Tenant shall be entitled to escrow any payments
for increases in operating expenses while completing its
audit, which escrow shall not exceed sixty (60) days. Should
the audit determine that Tenant was over-charged, then, within
fifteen (15) days of Landlord's inspection of the audit,
Landlord shall credit Tenant the amount of such over-charge
toward the payments of Base Rent and Additional Rent next
coming due under the Lease. Should the audit determine that
Tenant has been under-charged, Tenant shall reimburse Landlord
for such amount as Additional Rent next coming due under the
Lease. Tenant agrees to pay the cost of the audit, unless the
audit determines that Landlord's calculation of Operating
Expenses was in error by more than five percent (5%), in which
case Landlord shall pay for the audit.
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4.2.6 COST SAVINGS OR MANDATED CAPITAL IMPROVEMENTS
(a) For any Lease Year during the Term which
is included in the useful life of a "Capital
Improvement," Tenant shall pay as Additional Rent an
amount equal to the product of (i) the "Capital
Improvement Amortization" per square foot of Rentable
Area in the Building, multiplied by (ii) the number of
square feet of Rentable Area in the Premises.
(b) "Capital Improvements" shall only pass
through as an expenditure in as much as they pertain to
any equipment, device or other improvement acquired or
installed subsequent to the commencement of the
construction of the building or other relevant portion
of the Project which benefits all tenants in the
Building and is intended or necessary: (i) to achieve
economies in the operation, maintenance and repair of
the Building or such relevant portion of the Project;
(ii) to comply with any statute, ordinance, code,
controls or guidelines which shall be enacted after the
execution of this lease document, or (iii) to comply
with any other future governmental requirement with
respect to the building or any such relevant portion of
the Project, including without limitation, fire,
health, safety or construction requirements, as it
pertains to the common areas of the Project.
(c) "Capital Improvement Amortization" shall
mean the amount determined by multiplying the actual
cost, including financing costs, of each Capital
Improvement acquired by Landlord by the constant annual
percentage required to fully amortize such cost over
the useful life of the Capital Improvement (as
reasonably determined by GAAP). The Capital Improvement
Amortization shall be allocated and charged to Tenant
in accordance with generally accepted accounting and
management practices and as an amount per square foot
of Rentable Area.
4.2.7 REAL PROPERTY TAXES
"Real Property Taxes" shall mean all taxes, assessments
(special or otherwise) and charges levied upon or with respect
to the Building Area as explained in Exhibit E. Real Property
Taxes shall include, without limitation, any tax, fee or
excise on the act of entering into this Lease, on the
occupancy of Tenant, the rent hereunder or in connection with
the business of owning and/or renting space in the Project
which are now or hereafter levied or assessed against Landlord
by the United States of America, the State of Nevada or any
political subdivision, public corporation, district or other
political or public entity, and shall also include any other
tax, assessment, fee or excise, however described (whether
general or special, ordinary or extraordinary, foreseen or
unforeseen), which may be levied or assessed in lieu of, as a
substitute for, or as an addition to, any other Real Property
Taxes. Landlord may pay any such special assessments in
installments when allowed by law, in which case Real Property
Taxes shall include any interest charged thereon. Real
Property Taxes shall also include reasonable legal fees, costs
and disbursements incurred in connection with proceedings to
contest, determine or reduce Real Property Taxes. Real
Property Taxes shall not include income, franchise, transfer,
inheritance or capital stock taxes, unless such taxes are
levied or assessed against Landlord in lieu of, or as a
substitute for, any other tax which would otherwise constitute
a Real Property Tax.
4.2.8 FINAL DETERMINATION
Even though the Lease has terminated and
Tenant has vacated the Premises, when the final
determination is made of Tenant's share of Operating
Expenses for any prior calendar year in which the Lease
terminates, Tenant shall, within thirty (30) days of
receipt of written notice pay the entire increase due
over the estimated expenses paid. Conversely, any
overpayment made in the event expenses decrease shall
be, within thirty (30) days, rebated by Landlord to
Tenant.
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4.3 COST OF LIVING INCREASES:
After the Commencement Date and upon the expiration of each
twelve (12) calendar month period thereafter during the Term
hereof, rent shall be adjusted by multiplying the Base Rent by a
fraction, which fraction shall have as its numerator the Consumer
Price Index For All Urban Consumers (hereafter the "CPI") using
the U.S. City Average (Base Period 1982-84=100), as published by
the U.S. Department of Labor, Bureau of Labor Statistics, for the
calendar month which is four (4) months prior to the expiration
of the applicable twelve (12) month period, and which shall have
as its denominator the CPI, as published for the calendar month
which is four (4) months prior to the commencement of the Term.
If the present base of the CPI should hereafter be changed, then
the new base shall be converted to the base now used. In the
event that the Bureau should cease to publish the CPI, then any
similar index published by any other branch or department of the
U.S. Government shall be used. In the event said Bureau shall
publish more than one such index, the index showing the greater
proportionate increase shall be used, and if none is so
published, then another index generally recognized as
authoritative shall be substituted by agreement of the parties
hereto, or if no such agreement is reached within a reasonable
time, either party may make application to any court of competent
jurisdiction to designate such other index. In any event, the
base used by any new index shall be reconciled to the 1982-84=100
Base Index. In no event shall the rent to be paid by Tenant
pursuant hereto be less than the Base Rent or the Base Rent as
adjusted with respect to the next preceding twelve (12) month
period, whichever is the greater. In the event the numerator is
not available at the time of adjustment of the rent as provided
herein, Tenant shall continue to pay the rent established for the
next prior twelve (12) month period; provided, however, Tenant
shall promptly pay to Landlord any deficiency at such time as
said rent is adjusted.
4.4 SECURITY DEPOSIT:
None.
4.5 OPTION RENT:
As set forth in Exhibit "I" attached hereto and incorporated
herein.
5. USE
5.1 USE:
Tenant shall use the Premises only for the purposes stated in
Section 1.17 of the Basic Lease Terms. Tenant shall not do or
permit anything to be done in or about the Premises nor bring or
keep anything therein which will in any way increase the existing
rate of, or affect any, fire or other insurance upon the
Premises, Project or the Building, or cause a cancellation of any
insurance policy covering said Premises, Project or Building or
any part thereof or any of its contents. Tenant shall not do or
permit or suffer anything to be done in or about the Premises
which will in any way obstruct or interfere with the rights of
other tenants or occupants of the Building or Project and Tenant
shall take all necessary action to prevent odors, emissions,
fumes, liquids or other substances or excessive noise from
escaping or extending beyond the Premises. Tenant shall not use
or allow the Premises to be used for any improper, unlawful or
extra hazardous purpose. Tenant shall refrain from using or
permitting the use of the Premises or any portion thereof as
living quarters, sleeping quarters or for lodging purposes.
Tenant shall, at its sole cost and expense, promptly comply with
all federal, state, county, borough or municipal laws,
ordinances, rules, regulations, directives, orders and/or
requirements now in force or which may hereafter be in force with
respect to the Premises (other than those that apply to
structural elements of the Building), Tenant's use and occupancy
of the Premises and Tenant's business conducted thereon and with
the requirements of any board of fire underwriters or other
similar bodies now or hereafter constituted relating to or
affecting the condition, use or occupancy of the Premises. The
judgment of any court of competent jurisdiction or the admission
of Tenant in any action against Tenant, whether Landlord be a
party thereto or not, that Tenant has violated any law,
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statute, ordinance or requirement, shall be conclusive of that
fact as between Landlord and Tenant. Tenant shall be solely
responsible for and pay, and shall indemnify and hold Landlord
harmless from and against, all costs, expenses (including
attorneys' fees), fines, damages, penalties and surcharges
incurred or arising by reason of Tenant's failure to promptly and
completely perform Tenant's obligations under this Section.
5.2 HAZARDOUS MATERIALS:
Landlord shall not cause or permit any Hazardous Materials (as
defined below) to be brought upon, kept or used in or about the
Building, Project or Tenant's Premises, by Landlord, its agents,
employees, or contractors unless such Hazardous Materials are (i)
necessary to Landlord's business or for the maintenance, repair
or cleaning of the Project and Buildings situated therein, and
(ii) will be used, kept and stored in a manner that complies with
all Hazardous Material Laws (as defined below). Should Landlord
fail to fulfill its obligations as stated herein with regard to
Hazardous Materials brought on the Project previously to or
during the term of this Lease, Landlord shall indemnify Tenant as
set forth in this Section 5.2 except that the references to
Landlord and Tenant shall be reversed accordingly.
Except for ordinary cleaning and office supply materials,
Tenant shall not cause, permit or allow any Hazardous Materials
(as defined below) to be brought upon, kept or used in or about
the Premises, Building and/or Project, by Tenant, its agents,
employees, contractors or invitees, without the prior written
consent of Landlord (which consent Landlord shall not
unreasonably withhold as long as Tenant demonstrates to Landlord
reasonable satisfaction that such Hazardous Materials are
necessary to Tenant's business, and will be used, kept and stored
in a manner that complies with all Hazardous Materials Laws (as
defined below) regulating any such Hazardous Materials so brought
upon, used or kept in or about the Premises.) If (i) Tenant
breaches any obligation stated in the preceding sentence, or (ii)
the presence of Hazardous Materials in the Premises caused or
permitted by Tenant results in contamination of the Premises, the
Building, any other Building in the Project, any structure,
system or improvement in the Project, any soil or water in, on,
under or about the Project (collectively, the "Property"), or
(iii) contamination of the Property by Hazardous Materials
otherwise occurs for which Tenant is legally liable to Landlord
for damage resulting therefrom, then Tenant shall indemnify,
defend and hold Landlord and landlord's partners, affiliates,
employees, contractors, representatives, lenders, successors and
assigns (collectively, the "Indemnified Parties") harmless from
any and all claims, judgments, damages, penalties, fines, costs,
liabilities, losses, actions or causes of action (including,
without limitation, diminution in value of the Premises, the
Building, or any other building in the Project, any structure,
system or improvement in the Project, damages for the loss or
restriction on use of rentable or usable space or of any amenity,
damages arising from any adverse impact on marketing any of the
foregoing, and sums paid in settlement of claims, attorneys' fees
and costs incurred, consultant fees and expert fees) made,
brought or sought against or suffered or incurred by the
Indemnified Parties, or any of them, which arise during or after
the Term of this Lease as a result of such contamination. This
indemnification of Landlord by Tenant includes, without
limitation, costs incurred in connection with any investigation
of site conditions or any cleanup, remedial, removal or
restoration work required by any federal, state or local
governmental agency or political subdivision or required to
return the property to the condition existing prior to the
introduction of any such Hazardous Materials for which Tenant is
responsible. Tenant's obligations hereunder shall survive the
expiration or earlier termination of the Term of this Lease.
Tenant and Landlord shall at all times and in all respects
comply with all federal, state and local laws, ordinances and
regulations ("Hazardous Materials Laws") relating to industrial
hygiene, environmental protection or the use, analysis,
generation, manufacture, storage, disposal or transportation of
any oil or petrochemical products, PCB, flammable materials,
explosives, asbestos, urea formaldehyde, radioactive materials or
waste, or other hazardous, toxic, contaminated or polluting
materials, substances or wastes, including, without limitation,
any substances defined as or included in the definition of
"Hazardous Materials", "toxic substances" or "chemicals known to
the State to cause
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cancer or reproductive toxicity" under any such Hazardous
Materials Laws (collectively, "Hazardous Materials").
5.3 SIGNS:
Tenant shall not place any signs on the Premises without
Landlord's prior written consent. Tenant's signs shall conform to
the "Master Sign Plan" as set forth in Exhibit "L" as approved or
amended by the governing Municipal or County body. Tenant shall
not place or suffer to be placed on the exterior walls of the
Premises or Building or upon the roof or any exterior door or
wall or on the exterior or interior of any window thereof any
sign, awning, canopy, marquee, advertising matter, decoration,
letter or other thing of any kind (exclusive of the signs, if
any, which may be provided for in the original construction or
improvement plans and specifications approved by Landlord or
Tenant hereunder, and which conform to Landlord's sign criteria
and the Master Sign Plan) without the prior written consent of
Landlord. In the event Tenant shall install any sign which does
not meet Landlord's sign criteria and the Master Sign Plan,
Landlord shall notify Tenant of the non-conformance and Tenant
shall have thirty (30) days in which to cure or diligently pursue
the correction of the non-conformance, after which Landlord shall
have the right and authority without liability to Tenant to enter
upon the Premises, remove the subject sign and repair all damage
caused by the removal of the sign. All costs and expenses
incurred by Landlord shall be immediately paid by Tenant as
additional rent. Landlord reserves the right to remove Tenant's
sign during any period when Landlord repairs, restores,
constructs or renovates the Premises or the Building of which the
Premises is a part. Tenant shall not conduct, nor permit to be
conducted, either voluntarily or involuntarily, any auctions or
sheriff's sales from the Premises without having first obtained
Landlord's prior written consent. Notwithstanding anything to the
contrary in this Lease, Landlord shall not be obligated to
exercise any standard of reasonableness in determining whether to
grant such consent.
6. COMMON FACILITIES AND VEHICLE PARKING
6.1 OPERATION AND MAINTENANCE OF COMMON FACILITIES:
During the Term, Landlord shall operate all Common Facilities
within the Project. The term "Common Facilities" shall mean all
areas outside of the exterior walls, glass or partitions of the
Building and other buildings in the Project and all other
appurtenant areas and improvements provided by Landlord for the
common use of Landlord and tenants and their respective employees
and invitees, including, without limitation, parking areas and
structures, driveways, or private streets, sidewalks, landscaped
and planted areas not located within the premises of any tenant.
6.2 USE OF COMMON FACILITIES:
The occupancy by Tenant of the Premises shall include the use
of the Common Facilities in common with Landlord and with others
for whose convenience and use the Common Facilities may be
provided by Landlord, subject, however, to compliance with all
rules and regulations as are prescribed from time to time by
Landlord. Landlord shall at all times during the Term have
exclusive control of the Common Facilities, and may restrain any
use or occupancy, except as authorized by Landlord's rules and
regulations. Tenant shall keep the Common Facilities clear of any
obstruction or unauthorized use related to Tenant's operations.
Except in the event of Landlord's negligence or willful
misconduct, nothing in this Lease shall be deemed to impose
liability upon Landlord for any damage to or loss of the
property, or for any injury to, Tenant, its invitees or
employees. Landlord may, temporarily close any portion of the
Common Facilities for repairs or alterations, to prevent a public
dedication or the accrual of prescriptive rights. Under no
circumstances shall the right herein granted to use the Common
Facilities be deemed to include the right to store any property,
temporarily or permanently, on the Common Facilities. Any such
storage shall be permitted only by the prior written consent of
Landlord or Landlord's designated agent, which consent may be
revoked at any time. In the event that any
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unauthorized storage shall occur, then Landlord shall have the
right, without notice, in addition to such other rights and
remedies that it may have, to remove the property and charge the
cost to Tenant, which cost shall be immediately payable upon
demand by Landlord.
6.3 PARKING:
Subject to Landlord's right to adopt reasonable,
nondiscriminatory modifications and additions to the regulations
by written notice to Tenant, Tenant shall have the parking rights
set forth in Exhibit "F".
6.3.1 PARKING MAINTENANCE
Landlord shall cause to be maintained, an
automobile parking area ("Parking Area") within the
Project for the benefit and use of the visitors and
patrons and employees of Tenant, and other tenants and
occupants of the Project, subject to any and all
conditions as set forth in Exhibit "F" attached hereto
and incorporated herein. The Parking Area shall include
the automobile parking stalls, driveways, entrances,
exits, sidewalks and attendant pedestrian passageways
and other areas designated for parking. Landlord shall
determine the nature and extent of the Parking Area and
make such changes which, in its opinion, are in the
best interests of all persons using the Parking Area.
Nothing contained in this Lease shall be deemed to
create liability upon Landlord for any damage to motor
vehicles of visitors or employees, unless ultimately
determined to be caused by the negligence or willful
misconduct of Landlord, its agents, servants and
employees. Landlord shall also have the right to
establish, amend, and enforce against all users of the
Parking Area reasonable rules and regulations as
Landlord may deem necessary and advisable for the
proper and efficient operation and maintenance of the
Parking Area.
a. The Landlord shall contract for Security
Personnel to monitor the Common Facilities
of the Project. The extent and scope of the
use of Security Personnel to monitor the
Common Facilities, including the Parking
Area, shall be under Landlord's sole
control. The use of Security Personnel to
monitor the Common Facilities shall be for
the protection of the capital improvements
of the Project and shall not create nor
impose upon Landlord or its agents an
obligation or duty to protect or defend the
property or personal well being of Tenant,
its employees, guests or agents.
6.4 CHANGES AND ADDITIONS BY LANDLORD:
Landlord reserves the right to make alterations or additions
to the Building(s) or the Project, or to the attendant fixtures,
equipment and Common Facilities. Landlord may relocate or remove
the buildings, Parking Areas and other Common Facilities, and may
add buildings and other structures to the Project from time to
time. Except for those portions of the Premises physically
affected by a change or alteration, no change shall entitle
Tenant to any abatement of rent or other claim against Landlord,
provided that the change does not deprive Tenant of reasonable
access to or use of the Premises.
7. MAINTENANCE, REPAIRS AND ALTERATIONS
7.1 LANDLORD'S OBLIGATIONS:
1. Building Maintenance and Repair
Except for damage caused by any negligent or willful
misconduct of Tenant, Tenant's employees, suppliers, shippers,
customers or invitees, (in which event Tenant shall repair the
damage), Landlord at Landlord's expense, shall keep in good
condition and repair the foundations, exterior walls, structural
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condition of interior bearing walls, roof structure of the
Building, utility installations of the Common Facilities and all
parts thereof, as well as providing the services for which there
is an Operating Expense pursuant to Section 4.2. Landlord shall
not be obligated to paint the Building's interior walls, nor
shall Landlord be required to maintain, repair or replace
windows, Tenant's signs, the doors or plate glass of the
Building. Landlord shall have no obligation to begin repairs
under this Section 7.1 until ten (10) days after receipt of
written notice from Tenant of the need for such repairs. If
Landlord has not performed or undertaken to perform maintenance
or repair services required under this Lease within ten (10) days
of receipt of written notice from Tenant, Tenant may take such
reasonable action as is necessary to make repairs or perform such
services and deduct the cost of such performance from any sums
due Landlord hereunder. In case of emergencies, the aforesaid ten
(10) day period shall be reduced to such period as is reasonable
under the circumstances and Tenant shall only be required to
provide oral notice to Landlord. Landlord shall not be liable for
damages or loss of any kind or nature by reason of Landlord's
failure to furnish any such services when such failure is caused
by strikes, lockout or any other labor disturbances or disputes
of any character beyond the reasonable control of Landlord.
2. ADA and Health Laws
Landlord represents and warrants that upon the Commencement
Date, the Premises shall be in compliance with the requirements
of the Americans with Disabilities Act of 1990 ("ADA"), and other
Federal, State or local laws relating to environmental, health
and safety matters ("Health Laws"). Landlord further represents
and warrants that all future construction, repairs or alterations
to the Building, Plaza or Project shall be in compliance with the
requirements of the ADA and Health Laws, as then recognized and
applied. If alterations to the Premises, Building, Plaza or
Project are required due to Landlord's failure to comply with the
ADA or Health Laws, as they were applied at the time of
construction or alteration, then Landlord shall be fully
responsible for compliance at Landlord's sole cost and expense,
which shall not be passed through to Tenant. However, should
Federal, State or Local Authorities enact changes to the ADA or
Health Laws such that alterations to the Building, Plaza or
Project are required to accommodate Tenant, its employees and/or
visitors, those necessary and required alterations shall be made
by Landlord and amortized as an Operating Expense under generally
acceptable accounting principals. Any modifications to the
Premises which are required under the ADA or Health Laws due to
Tenant's floor plan or specific use thereof shall be made by
Tenant, at Tenants sole cost and expense, in a good and
workmanlike manner.
7.2 TENANT'S OBLIGATIONS:
7.2.1 PREMISES REPAIR AND MAINTENANCE
At Tenant's expense, Tenant shall keep in
good order, condition and repair the Premises and every
part thereof, including, without limiting the
generality of the foregoing, all plumbing, heating,
ventilating and air conditioning systems electrical and
lighting facilities and equipment within the Premises,
fixtures, interior walls and interior surfaces of
exterior walls, ceilings, windows (including glass and
casings), doors (including casings), plate glass and
skylights located within the Premises. Landlord
reserves the right to procure, oversee and maintain a
ventilating and air conditioning system maintenance
contract for the Premises, which expense shall be a
part of the Operating Expenses passed thru to Tenant.
7.2.2 REMEDY FOR FAILURE TO PERFORM
If Tenant fails to perform Tenant's
obligations under this Section 7.2, Landlord may enter
upon the Premises after ten (10) days' prior written
notice to Tenant (except in the case of emergency, in
which event, no notice shall be required), perform such
obligations on Tenant's behalf and put the Premises in
good order, condition and repair, and the cost thereof
shall be due and payable as additional rent to Landlord
together with Tenant's next Base Rent installment.
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7.3 ALTERATIONS AND ADDITIONS:
7.3.1 CONSENT
Tenant shall not, without Landlord's prior
written consent, make any alterations, improvements,
additions or Utility Installations, on or about the
Premises, or the Project, except for nonstructural
alterations to the interior of Premises not exceeding
Ten Thousand Dollars ($10,000) annually during the
Term. In any event, whether or not in excess of Ten
Thousand Dollars ($10,000) in annual costs, Tenant
shall make no change or alteration to the exterior of
the Premises, nor the exterior of the Building, nor the
Project without Landlord's prior written consent. As
used in this Lease, the term "Utility Installations"
shall mean window coverings, air lines, power panels,
electrical distribution systems, lighting fixtures,
space heaters, air conditioning, plumbing and fencing.
Landlord may require that Tenant remove any and all of
said alterations, improvements, additions or Utility
Installations at the expiration of the term, and
restore the Premises and the Project to their prior
condition provided that Landlord shall have so notified
Tenant at the time it grants consent therefore.
Landlord may require Tenant to provide Landlord, at
Tenant's sole cost and expense, a lien and completion
bond in an amount equal to one and one-half times the
estimated cost of such improvements, to insure Landlord
against any liability for mechanic's and materialman's
liens and to insure completion of the work. Tenant,
Tenant's contractor and materialmen further agree to
abide by the terms and conditions set forth in Exhibit
C "Tenants Work Letter". Should Tenant make any
alterations, improvements, additions or Utility
Installations without the prior approval of Landlord,
Landlord may, at any time during the term of this
Lease, require that Tenant remove any or all of same.
In the event that either Landlord or Tenant, during the
Term, shall be required by the order or decree of any
court, or any other governmental authority, or by law,
code or ordinance, (including but not limited to the
Americans With Disabilities Act as amended) to repair,
alter, remove, reconstruct, or improve any part of the
Premises due to Tenant's specific use, interior space
plan or alteration of the Premises, then Tenant shall
make or Tenant shall be required to permit Landlord to
perform such repairs, alterations, removals,
reconstruction's, or improvements without effect
whatsoever to the obligations or covenants of Tenant
herein contained, at Tenant's sole cost and expense,
and Tenant hereby waives all claims for damages or
abatement of rent because of such repairing,
alteration, removal, reconstruction, or improvement.
7.3.2 WRITTEN NOTICE
Any alterations, improvements, additions or
Utility Installations in or about the Premises or the
Project that Tenant shall desire to make and which
requires the consent of Landlord, shall be presented to
Landlord in written form with proposed detailed plans.
Landlord's consent shall be deemed conditioned upon
Tenant acquiring a permit to do so from appropriate
governmental agencies, the furnishing of a copy thereof
to Landlord prior to the commencement of the work and
the compliance by Tenant of all conditions of said
permit in a prompt and expeditious manner.
7.3.3 PAYMENT OF LABOR
Tenant shall pay, when due, all claims for
labor or materials furnished or alleged to have been
furnished to or for Tenant at or for use in the
Premises, which claims are, or may be secured by, any
mechanic's or materialman's lien against the Premises,
or the Project, or any interest therein. Tenant shall
give Landlord not less than ten (10) days' notice prior
to the commencement of any work in the Premises, and
Landlord shall have the right to post notices of
non-responsibility in or on the Premises or the
Building as provided by law. If Tenant shall in good
faith contest the validity of any such lien, claim or
demand, then Tenant shall, at its sole expense, defend
itself and Landlord against the same and shall pay and
satisfy any such adverse judgment that may be rendered
thereon, before the enforcement thereof, against
Landlord or the Premises or the Project upon the
condition that if Landlord shall require,
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Tenant shall furnish to Landlord a surety bond
satisfactory to Landlord in an amount equal to such
contested lien claim or demand indemnifying Landlord
against liability for the same and holding the Premises
and the Project free from the effect of such lien or
claim.
7.3.4 ALTERATIONS PROPERTY OF LANDLORD
All alterations, improvements, additions and
Utility Installations, which may be on the Premises,
shall be the property of Landlord and shall remain upon
and be surrendered with the Premises at the expiration
of the Term, unless Landlord requires their removal.
Notwithstanding the provisions of this paragraph,
Tenant's machinery, equipment and trade fixtures, other
than that which is affixed to the Premises, and other
than Utility Installations, shall remain the property
of Tenant and may be removed by Tenant subject to the
provisions of Section 7.2
7.4 UTILITY ADDITIONS:
Landlord reserves the right to install new or additional
utility facilities throughout the Building and the Common
Facilities for the benefit of Landlord or Tenant, or any other
tenant of the Project, including, but not limited to, such
utilities as plumbing, electrical systems, security systems,
communication systems and fire protection and detection systems,
so long as such installations do not unreasonably interfere with
Tenant's use of the Premises.
7.5 ENTRY AND INSPECTION:
Landlord shall at all times have the reasonable right,
provided reasonable notice is given to Tenant except where
Landlord determines an emergency exists, to enter the Premises to
inspect them, to supply services in accordance with this Lease, to
protect the interests of Landlord in the Premises, to alter,
improve or repair the Premises or any other portion of the
Building, or as otherwise permitted in this Lease, all without
being deemed to have caused an eviction of Tenant and without
abatement of rent except as provided elsewhere in this Lease.
During the last one hundred and eighty (180) days of the Term, or
when an uncured tenant default exists, Landlord may enter the
Premises, provided reasonable notice is given, to show the
Premises to prospective tenants. If Tenant permanently vacates the
Premises and fails to pay rent, Landlord may enter the Premises
and alter them without abatement of rent and without liability to
Tenant. Landlord shall at all times have and retain a key or code
which unlocks all of the doors in the Premises, excluding Tenant's
vaults and safes, and Landlord shall have the right to use any and
all means which Landlord may deem proper to open the doors in an
emergency in order to obtain entry to the Premises. Any entry to
the Premises obtained by Landlord pursuant to this Section 7.5
shall not under any circumstances be deemed to be a forcible or
unlawful entry into, or a detainer of the Premises, or an eviction
of Tenant from the Premises.
7.6 TENANT'S NON-STANDARD BUILDING IMPROVEMENTS:
Tenant shall commence the installation of fixtures, equipment
and any other Tenant's Work as set forth in Exhibits "B" or "C"
promptly upon substantial completion of Landlord's Work and
Tenant shall diligently pursue such installation and work to
completion. All of Tenant's Work shall be at Tenant's sole cost
and expense and shall be pursuant to plans and specifications
which meet Landlord's reasonable approval. If required by
Landlord, Tenant shall provide its own trash container(s) as
needed for containment and removal of construction debris from
Tenant's Work and Tenant shall remove said trash containers
prior to opening for business. The location of the trash
containers shall be designated by Landlord. During the Tenant
improvement period, Tenant and its contractor, if any, shall
keep the Common Facilities free of all construction and related
debris. Prior to opening for business, Tenant shall remove all
construction and related debris from the Premises and Common
Facilities, and all such areas shall be in broom clean condition
and the Common Facilities shall be returned to the condition it
was in prior to commencement of Tenant's Work. Tenant's
contractor shall name Landlord, its employees and agents as
additional named insureds on contractor's insurance policies.
All Tenant's Work shall be undertaken and completed in a good,
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workmanlike manner, and Tenant shall obtain all necessary
governmental permits, licenses and approvals with respect
thereto and shall fully comply with all governmental statutes,
ordinances, rules and regulations pertaining thereto. Tenant
covenants that no work by Tenant or Tenant's employees, agents
or contractors shall disrupt or cause a slowdown or stoppage of
any work conducted by Landlord on the Premises or Project of
which it is a part except in cases of "Force Majure" as set
forth on Section 20.13.
7.7 LANDLORD'S IMPROVEMENTS:
If the Premises is not presently complete, Landlord shall
deliver to Tenant, and Tenant agrees to accept from Landlord,
possession of the Premises upon substantial completion of
Landlord's Work as described in Landlord's Guidelines for
Standard Tenant Improvements (Exhibit "C" attached hereto and
made a part hereof.) Landlord shall, as soon as is reasonably
possible after the execution of this Lease, commence and pursue
to completion the improvements to be erected by Landlord. The
term substantial completion of Landlord's Work' is defined as
the date on which Landlord, or its project architect, notifies
Tenant in writing that the Premises is substantially complete to
the extent of Landlord's work, with the exception of such work
as Landlord cannot complete until Tenant performs necessary
portions of its work.
8. TAXES AND ASSESSMENTS ON TENANT'S PROPERTY
8.1 TAXES ON TENANT'S PROPERTY:
Tenant shall be liable for and shall pay all taxes and
assessments levied against all personal property of Tenant
located in the Premises. If any taxes on Tenant's personal
property are levied against Landlord or Landlord's property is
increased by the inclusion of a value placed upon the personal
property of Tenant, and if Landlord pays the taxes based upon the
increased assessment, Tenant shall pay to Landlord the taxes so
levied against Landlord or the proportion of the taxes resulting
from the increase in the assessment.
9. UTILITIES
9.1 MULTI-TENANT BUILDING
Landlord shall cause public utilities to furnish at all times during
the term of this Lease, as appropriate, electricity, gas, water and sewage
utilized in operating any and all facilities serving the Premises. Tenant shall
pay, prior to any delinquency, for all water, gas, heat, light, power, telephone
and other utilities and services supplied to the Premises. If any such services
are not separately metered to the Premises, Tenant shall pay, prior to any
delinquency, Tenant proportion of those charges jointly metered with other
premises in the Project.
9.2 LIABILITY OF LANDLORD
Except in the event of Landlord's negligence or willful misconduct,
Landlord shall not be liable for failure to furnish, or for suspension or delays
in furnishing, any such utility services caused by breakdown, maintenance or
repair work, strike, civil commotion, governmental regulations or any other
cause or reason whatever beyond the control of Landlord. Suspension or
interruption of services shall not result in abatement of rent, be deemed an
eviction or release Tenant of performance of Tenant's obligations under this
Lease.
Notwithstanding any other provisions of this Lease, in the event there
is an interruption of essential services by reason of Landlord's negligence, or
due to Landlord's performance of repairs, additions, alterations, or
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replacements, which interruption of essential services prevents Tenant from
using all of the Premises for the conduct of its business for a period in excess
of two (2) business days, and provided Tenant does not occupy the Premises
during such period, except for such limited times and purposes as do not invoke
any exclusion in Landlord's applicable insurance policy, then Tenant shall be
entitled to abate the payment of all Rent and additional rent routinely due
pursuant to the terms and provisions of this Lease for the period commencing on
the third (3rd) business day of the interruption of such essential services and
ending on the earlier of (i) the date Tenant reoccupies the Premises for the
conduct of its business therein or (ii) the date Landlord shall have restored
the essential services so interrupted.
10. ASSIGNMENT AND SUBLETTING
10.1 RIGHTS OF PARTIES:
10.1.1 NON-ASSIGNABLE
Neither Tenant, nor Tenant's legal representatives,
successors or assigns, shall assign, mortgage or
encumber this Lease, or sublet or permit the Premises
or any part thereof to be used or occupied by others,
without the prior written consent of Landlord in each
instance, which consent shall not be unreasonably
withheld or delayed. Any such assignment, mortgage,
encumbrance, sublease or permission without such
consent shall be voidable at the option of Landlord.
If this Lease is assigned, or if the Premises or any
part thereof is sublet or occupied by any party other
than Tenant, Landlord may, after default by Tenant,
collect rent from the assignee, subtenant or occupant,
and apply the net amount collected to the rent herein
reserved, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver by
Landlord of Tenant's default, or the acceptance of the
assignee, subtenant or occupant as a tenant, or a
release of Tenant from the further performance by
Tenant of the obligations on the part of Tenant set
forth herein. The consent by Landlord to an assignment
or subletting shall not be construed to relieve
Tenant, the assignee or the subtenant from obtaining
the express consent in writing of Landlord to any
further assignment or subletting or to release Tenant
from any liability, whether past, present or future,
under this Lease or from any liability under this
Lease because of Landlord's failure to give notice of
default by Tenant (or by the assignee or subleases
pursuant to the assumption agreement described below)
under any of the terms, covenants, conditions,
provisions or agreements of this Lease.
Notwithstanding the foregoing, no consent shall be
required for an assignment or subletting by Tenant to
any subsidiary of Tenant, its affiliate or related
company.
10.1.2 NOTICE
If Tenant desires to transfer an interest in this
Lease, it shall first notify Landlord of its desire
and shall first offer such space to the Landlord for
recapture by sending notification to Landlord of the
amount of space and the date the space will become
available (the Recapture Notice). If Landlord fails to
accept recapture of the space by notice to Tenant
within ten (10) business days from the Recapture
Notice, Tenant shall be entitled to effect such a
transfer subject to existing use exclusions exercised
by other existing tenants and Landlord's reasonable
approval, which shall not be unreasonably withheld,
conditioned or delayed; and if such transfer be in the
form of a sublease, Landlord's approval shall not be
required provided that Tenant shall continue to be
liable under this Lease. Prior to the effectiveness of
any transfer hereunder, and as a precondition of any
approval required hereunder, Tenant shall submit in
writing to Landlord: (i) the name and address of the
proposed transferee; (ii) the nature of any proposed
subtenant's or assignee's business to be carried on in
the Premises; (iii) the terms and provisions of any
proposed sublease or
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assignment; and (iv) any other information requested
by Landlord and reasonably related to the transfer.
If Landlord consents to the proposed transfer,
Tenant may within ninety (90) days after the date of
the consent effect the transfer upon the terms
described in the information furnished to Landlord;
provided that any material change in the terms shall
be subject to Landlord's consent as set forth in this
Section. Landlord shall approve or disapprove any
requested transfer within fifteen (15) days following
receipt of Tenant's written request and the
information set forth above.
10.1.3 REIMBURSEMENT OF COSTS
Tenant shall reimburse Landlord for Landlord's
reasonable costs and attorneys' fees incurred in
connection with the processing and documentation of
any requested transfer, not to exceed Five Hundred
Dollars ($500).
10.2 EFFECT OF TRANSFER:
No subletting or assignment, even with the consent of
Landlord, shall relieve Tenant of its obligation to pay rent and
to perform all its other obligations under this Lease. Moreover,
Tenant shall indemnify and hold Landlord harmless, as provided
in Section 11.5, for any acts or omission by an assignee or
subtenant. Each transferee, other than Landlord, shall assume
all obligations of Tenant under this Lease and shall be liable
jointly and severally with Tenant for the payment of all rent,
and for the due performance of all of Tenant's obligations under
this Lease. No transfer shall be binding upon Landlord unless
any document memorializing the transfer is delivered to Landlord
and, if the transfer is an assignment of sublease, both the
assignee/subtenant and Tenant deliver to Landlord an executed
document which contains: (i) a covenant of assumption by the
assignee/subtenant, and (ii) an indemnification agreement by
Tenant, both satisfactory in substance and form to Landlord and
consistent with the requirements of this Article; provided that
the failure of the assignee/subtenant or Tenant to execute the
instrument of assumption shall not release either from any
obligation under this Lease.
The acceptance by Landlord of any payment due under this Lease
from any other person shall not be deemed to be a waiver by
Landlord of any provision of this Lease to be a consent to any
transfer. Consent by Landlord to one or more transfers shall not
operate as a waiver or estoppel to the future enforcement by
Landlord of its rights under this Lease.
11. INSURANCE AND INDEMNITY
11.1 TENANT'S INSURANCE:
Beginning on the date Tenant is given access to the Premises
for any purpose and continuing until expiration of the Term,
Tenant shall procure, pay for and maintain in effect policies of
casualty insurance covering trade fixtures, merchandise and
other personal property from time to time in on or about the
Premises, in amounts reasonable in relation to the value of the
property insured and Tenant's financial condition, from time to
time, providing protection against any peril included with the
classification "Fire and Extended Coverage," together with
insurance against sprinkler damage, vandalism and malicious
mischief.
Beginning on the date Tenant is given access to the Premises
for any purpose and continuing until expiration of the Term (and
any other Option Term(s)), Tenant shall provide, pay for and
maintain in effect worker's compensation insurance as required
by law and commercial general insurance on the Premises and the
operations of Tenant in, on or about the Project, providing
personal injury and broad form property damage coverage for not
less than One Million Dollars ($1,000,000.00) combined single
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limit for bodily injury, death and property damage liability.
Such liability insurance shall name Landlord as an additional
insured on such insurance policy. Tenant shall also procure
adequate insurance to cover all of Tenant's obligations under
this Lease, including, but not limited to Tenant's obligations
to indemnify Landlord as set forth in Section 11.5 below.
11.2 LANDLORD'S INSURANCE:
Landlord shall provide the following types of insurance, with
or without deductible, reasonable in relation to the value of
the property insured and Landlord's financial condition from
time to time, and the common practice of landlords of comparable
properties in the Las Vegas area: "all risk" property insurance,
subject to standard exclusions, covering the Building, Premises
and Tenant Improvements, and such other risks as Landlord or its
mortgages may from time to time deem appropriate. Tenant shall
be named as an additional insured to the extent of Tenant's
contributions to the Tenant Improvements in the Premises.
Landlord shall not be required to carry insurance of any kind on
Tenant's property, including leasehold improvements, trade
fixtures, furnishings, equipment, plate glass, signs and all
other items of personal property, and shall not be obligated to
repair or replace the property should damage occur except to the
extent caused by the negligent acts or omissions of Landlord.
All proceeds of insurance maintained by Landlord upon the
Premises and Project shall be the property of Landlord.
11.3 WAIVER OF SUBROGATION:
Landlord and Tenant hereby waive any rights each may have
against the other on account of any loss or damage occasioned to
Landlord or Tenant, as the case may be, or to the Premises or
its contents, and which may arise out of or incident to the
perils insured against under Section 11.2, which perils occur
in, on or about the Premises, whether due to the negligence of
Landlord or Tenant or their agents, contractors and/or invitees
to the extent of such insurance (including any deductibles). The
parties shall obtain from their respective insurance companies
insuring the property a waiver of any right of subrogation which
said insurance companies may have against Landlord or Tenant as
the case may be.
11.4 POLICIES:
All insurance to be maintained by Tenant or Landlord under
this Lease shall be procured from an insurance company or
companies rated "A-11" or better in "Best's Insurance Guide" and
admitted in the State of Nevada, and Tenant shall deliver to
Landlord, prior to taking occupancy of the Premises,
Certificates of Insurance required to be maintained by Tenant
hereunder, together with evidence of the payment of the premiums
thereof. The policies evidencing such insurance shall provide
that they shall not be canceled except after thirty (30) days
prior written notice of intention to modify or cancel has been
given to Landlord and any lienholder named as beneficiary
thereunder. At least ninety (90) days prior to the expiration
date of any policy to be maintained by Tenant hereunder, Tenant
shall deliver to Landlord a renewal policy or "binder" therefor.
11.5 TENANT'S INDEMNITY:
Tenant shall defend, indemnify and hold harmless Landlord, its
agents and any and all affiliates of Landlord, including,
without limitation, any partners, co-venturers, corporations or
other entities controlling, controlled by or under common
control with Landlord, from and against any and all claims or
liabilities arising either before or after the Commencement Date
from Tenant's use or occupancy of the Premises, the Building,
the Project or the Common Facilities, or from the conduct of its
business, or from any activity, work or thing done, permitted or
suffered by Tenant or its agents, employees, invitees or
licensees in or about the Premises, the Building, the Project or
the Common Facilities, or from any default in the performance of
any obligation on Tenant's part to be performed under this
Lease, or from any act of negligence or willful misconduct of
Tenant or its agents, employees, visitors, patrons, guests,
invitees, or licensees. In case Landlord, its agent or
affiliates are made a party to any litigation commenced by or
against Tenant, then Tenant shall protect and hold Landlord
harmless and shall pay
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all reasonable costs, expenses and attorneys' fees incurred or
paid by Landlord in connection with the litigation.
11.6 LANDLORD'S INDEMNITY:
Landlord shall defend, indemnify and hold harmless Tenant, its
agents and any and all affiliates of Tenant, including, without
limitation, any partners, co-venturers, corporations or other
entities controlling, controlled by or under common control with
Tenant, from and against any and all claims or liabilities
arising from the negligent acts or willful misconduct of
Landlord, its agents or affiliates. Landlord shall not be liable
to Tenant, its employees, agents and invitees, and Tenant hereby
waives all claims against Landlord for loss of or damage to any
property, or any injury to any person, or loss or interruption
of business or income, resulting from (i) Tenant's failure to
properly maintain the Premises in a commercially safe and
reasonable manner, or (ii) from fire, explosion, falling
plaster, steam, gas, electricity, water or rain which may leak
or flow from or into any part of the Premises or from the
breakage, leakage, obstruction or other defects of the pipes,
sprinklers, wires, appliances, plumbing, air conditioning,
electrical works or other fixtures in the Building, whether the
damage or injury results from conditions arising in the Premises
or in other portions of the Building. Neither Landlord nor its
agents shall be liable for interference with light or other
similar intangible interests. Tenant shall immediately notify
Landlord in case of fire or accident in the Premises, the
Building or the Project and of defects in any improvements or
equipment.
12. DAMAGE OR DESTRUCTION
12.1 RESTORATION:
12.1.1 DAMAGE REPAIR
If the Building of which the Premises are a part is
damaged, Landlord shall repair that damage as soon as
reasonably possible, at its expense, unless: (i)
Landlord reasonably determines that the cost of repair
would exceed ten percent (10%) of the full replacement
cost of the Building ("Replacement Cost") and the
damage is not covered by Landlord's fire and extended
coverage insurance (or by normal extended coverage
policy should Landlord fail to carry that insurance);
or (ii) Landlord reasonably determines that the cost
of repair would exceed twenty-five percent (25%) of
the Replacement Cost; or (iii) Landlord reasonably
determines that the cost of repair would exceed ten
percent (10%) of the Replacement Cost and the damage
occurs during the final twelve (12) months of the
Term.
Should Landlord elect not to repair the damage for
one of the preceding reasons, Landlord shall so notify
Tenant in writing within sixty (60) days after the
damage occurs and this Lease shall terminate as of the
date of that notice and the obligations of the parties
shall terminate as if the Lease term had naturally
expired.
12.1.2 TERMINATION OF LEASE
Unless Landlord elects to terminate this Lease in
accordance with subsection 12.1.1 above, this Lease
shall continue in effect for the remainder of the
Term. However, provided that if the damage is so
extensive as to reasonably prevent Tenant's
substantial use and enjoyment of the Premises for more
than fifteen (15) days, then Tenant may elect to
terminate this Lease by written notice to Landlord
within fifteen (15) days of receiving Landlord's
notice of intent not to repair.
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12.1.3 RENT ABATEMENT
Commencing on the date of any damage to the
Premises, and ending on the date the damage is
repaired or this Lease is terminated, whichever occurs
first, the rental to be paid under this Lease shall be
abated in the same proportion that the floor area of
the Premises that is rendered unusable by the damage
from time to time bears to the total floor area of the
Premises.
12.1.4 COST OF REPAIR
Notwithstanding the provisions of the above
subsections of this Section, if the damage is due to
the negligence or willful misconduct of Tenant or its
employees, subtenants, invitees or representatives,
the cost of any repairs not covered by Landlord's
insurance on the Building shall be borne by Tenant,
and Tenant shall not be entitled to rental abatement
or termination rights. In addition, the provisions of
this Section shall not be deemed to require Landlord
to repair any improvements or fixtures that Tenant is
obligated to repair or insure pursuant to any other
provision of this Lease.
13. EMINENT DOMAIN
13.1 TOTAL OR PARTIAL TAKING:
If all or a material portion of the Premises is taken by any
lawful authority by exercise of the right of eminent domain, or
sold to prevent a taking, either Tenant or Landlord may
terminate this Lease effective as of the date possession is
required to be surrendered to the authority. In the event title
to a portion of the Building or Project, other than the
Premises, is taken or sold in lieu of taking, and if Landlord
elects to restore the Building in such a way as to alter the
Premises materially, Landlord or Tenant may terminate this
Lease, by written notice to the other, effective on the date of
vesting of title. In the event neither party has elected to
terminate this Lease as provided above, then Landlord shall
promptly, after receipt of a sufficient condemnation award,
proceed to restore the Premises to substantially their condition
prior to the taking, and a proportionate allowance shall be made
to Tenant for the rent corresponding to the time during which,
and to the part of the Premises of which, Tenant is deprived on
account of the taking and restoration. In the event of a taking,
Landlord shall be entitled to the entire amount of the
condemnation award without deduction for any estate or interest
of Tenant; provided that nothing in this Section shall be deemed
to give Landlord any interest in, or prevent Tenant from seeking
any award against the taking authority for the taking of
personal property and fixtures belonging to Tenant or for
relocation or business interruption expenses recoverable from
the taking authority.
13.2 TEMPORARY TAKING:
No temporary taking of the Premises by governmental authority
shall terminate this Lease or give Tenant any right to abatement
of rent, however, any award specifically attributable to a
temporary taking of the Premises shall belong entirely to
Tenant. A temporary taking shall be deemed to be a taking of the
use or occupancy of the Premises for a period not to exceed
fifteen (15) days.
13.3 TAKING OF PARKING AREA:
In the event there shall be a taking of the Tenant's Parking
Area such that Landlord can no longer provide sufficient parking
to comply with this Lease, Landlord may substitute reasonably
equivalent parking in a location within five minutes walking
distance of the Building; provided that if Landlord fails to
make that substitution within fifteen (15) days following the
taking and if the taking materially impairs Tenant's use and
enjoyment of the Premises, Tenant may, at its option, terminate
this Lease by notice to Landlord. If this Lease is not so
terminated by Tenant, there shall be no abatement of rent and
this Lease shall continue in effect.
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14. SUBORDINATION; ESTOPPEL CERTIFICATE
14.1 SUBORDINATION:
14.1.1 SUBORDINATE TO ALL UNDERLYING ENCUMBRANCES
At the option of Landlord, this Lease shall
be either superior or subordinate to all ground or
underlying Leases, mortgages, deeds of trust and
conditions, covenants and restrictions, reciprocal
easements and rights of way, if any, which may
hereafter affect the Premises or Project, and to all
renewals, modifications, consolidations, replacements
and extensions thereof; provided, that so long as
Tenant is not in default under this Lease, this Lease
shall not be terminated nor shall Tenant's quiet
enjoyment of the Premises be disturbed. Tenant shall
also, upon the reasonable written request of Landlord,
execute and deliver those instruments, including the
Estoppel Certificate attached as Exhibit N, as may be
required from time to time to subordinate the rights
of Tenant under this Lease to any ground or underlying
Lease or to the lien of any mortgage or deed of trust,
or if requested by Landlord to subordinate in whole or
in part, any ground or underling Lease or the lien of
any mortgage or deed to trust to this Lease. Tenant
does hereby appoint Landlord as it's special
attorney-in-fact to execute said instruments should
Tenant wrongfully fail to provide such.
14.1.2 ATTORNMENT
Tenant convenants and agrees to attorn to
any successor to Landlord's interest in any ground or
underlying lease, and in the event, this Lease shall
continue as a direct lease between Tenant herein and
such landlord or its successor.
14.1.3 FAILURE TO PERFORM
Failure of Tenant to execute any statements
or instruments prepared by Landlord and materially
true in form and fact as to the provisions of this
Lease and necessary or desirable to effectuate the
provisions of this Article within fifteen (15) days
after written request by Landlord, shall constitute a
default under this Lease. In that event Landlord shall
have the right, by written notice to Tenant, to
terminate this Lease as of a date not less than
fifteen (15) days after the date of Landlord's notice.
Landlord's election to terminate shall not release
Tenant of any liability for its default.
14.2 ESTOPPEL CERTIFICATE:
14.2.1 TIME LIMIT
Tenant shall, at any time not more than
twenty (20) days after receipt from Landlord, execute,
acknowledge and deliver to Landlord the Estoppel
Certificate attached hereto as Exhibit N. The Estoppel
Certificate may be relied upon by any prospective
purchaser or encumbrance of all or any portion of the
Building or Project.
14.2.2 FAILURE TO PERFORM
Tenant's failure to deliver the Estoppel
Certificate within the provided time shall be
conclusive upon Tenant that: (i) this Lease is in full
force and effect without modification except as may be
represented by Landlord, (ii) there are no uncured
defaults in Landlord's performance, and (iii) not more
than one month's rental has been paid in advance.
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15. DEFAULTS AND REMEDIES
15.1 TENANT'S DEFAULT
In addition to any other event of default set forth in this
Lease, the occurrence of any one or more of the following events
shall constitute a default by Tenant:
15.1.1 ABANDONMENT
The abandonment of the Premises by Tenant.
Abandonment shall be defined as any absence by Tenant
from the Premises for fifteen (15) consecutive days
(or longer) or sixty (60) days (whether consecutive or
not) in any calendar year accompanied by Tenant's
failure to pay rent covering the abandonment period.
15.1.2 FAILURE TO PAY RENT
Except as permitted by this Lease, the failure by
Tenant to make any payment of rent or additional rent
required to be made by Tenant, where the failure
continues for a period of five (5) days after notice
thereof from Landlord. For purposes of this default
and remedy provision, the term "additional rent" shall
be deemed to include all amounts of any type
whatsoever, other than Base Rent, to be paid by Tenant
pursuant to the terms of this Lease.
15.1.3 ASSIGNMENT
Assignment, sublease, encumbrance or other transfer
of the Lease by Tenant, either voluntarily or by
operation of law, whether by judgment, execution
transfer by intestacy or testacy, or other means,
without the prior written consent of Landlord, if
necessary.
15.1.4 MATERIALLY FALSE FINANCIAL STATEMENTS
The discovery by Landlord that any financial
statement provided by Tenant, or by any affiliate,
successor or guarantor of Tenant was materially false.
15.1.5 FAILURE TO OBSERVE COVENANTS
The failure or inability by Tenant to observe or
perform any of the express or implied covenants or
provisions of this Lease to be observed or performed
by Tenant, other than as specified in any other
subsection of this Section, where the failure
continues for a period of thirty (30) days after
written notice from Landlord to Tenant. However, if
the nature of the failure is such that more than
thirty (30) days are reasonably required for its cure,
then Tenant shall not be deemed to be in default if
Tenant commences the cure within thirty (30) days and
thereafter diligently pursues the cure to completion.
15.1.6 ASSIGNMENT TO CREDITORS/BANKRUPTCY
The making by Tenant of any general assignment for
the benefit of creditors; the filing by or against
Tenant of a petition to have Tenant adjudged a debtor
under the Bankruptcy Code or to have debts discharged
or a petition for reorganization or arrangement under
any law relating to bankruptcy (unless, in the case of
a petition filed against Tenant, the same is dismissed
within sixty (60) days); the appointment of a trustee
or receiver to take possession of substantially all of
Tenant's assets or of Tenant's interest in this Lease,
if possession is not restored to Tenant within thirty
(30) days; the attachment, execution or other judicial
seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interests in
this Lease where the seizure is not discharged within
thirty (30) days; or Tenant's convening of a meeting
of its creditors for the purpose of effecting a
moratorium upon or composition of its debts.
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Landlord shall not be deemed to have knowledge of
any event described in this subsection unless
notification in writing is received by Landlord, nor
shall there be any presumption attributable to
Landlord of Tenant's insolvency. In the event that any
provision of this subsection is contrary to applicable
law, the provision shall be of no force or effect.
15.2 LANDLORD'S REMEDIES:
In the event that Landlord elects to declare a breach of this
Lease, then Landlord shall have the right to give Tenant notice
of intention to end the term of this Lease and thereupon the
term of this Lease shall expire as fully and completely as if
that day were the day herein definitely fixed for the expiration
of the Term and Tenant shall then quit and surrender the
Premises to Landlord, but Tenant shall remain liable as
hereinafter provided. If Tenant fails to so quit and surrender
the Premises as aforesaid, Landlord shall have the right as
provided by law to evict Tenant and the legal representatives of
Tenant and all other occupants of the Premises by unlawful
detainer or other summary proceedings, or otherwise, and remove
their effects and regain possession of the Premises (but
Landlord shall not be obligated to effect such removal).
In the event of any breach of this Lease by Tenant (and
regardless of whether or not Tenant has abandoned the Premises)
this Lease shall not terminate unless Landlord, at Landlord's
option, elects at any time when Tenant is in breach of this
Lease to terminate Tenant's right to possession or, at
Landlord's further option, by the giving of any notice
(including but not limited to any notice preliminary or
prerequisite to the bringing of legal proceedings in unlawful
detainer) terminating Tenant's right to possession. For so long
as this Lease continues in effect, Landlord may enforce all of
Landlord's rights and remedies under this Lease, including the
right to recover all rent as it becomes due hereunder. For the
purposes of this paragraph, the following shall not constitute
termination of Tenant's right to possession: acts of maintenance
or preservation or efforts to relet the Premises, or the
appointment of a receiver upon initiative of Landlord to protect
Landlord's interest under this Lease.
In the event of termination of this Lease, or termination of
Tenant's right to possession as the result of Tenant's breach of
this Lease, Landlord shall have the right:
a. To relet the Premises for such rent and upon such terms
as are reasonable under the circumstances. If the full
rent reserved under this Lease (and any of the costs,
expenses or damages indicated below) shall not be realized
by Landlord, Tenant shall be liable for all damages
sustained by Landlord, including, without limitation,
deficiency in rent, reasonable attorneys' fees, other
collection costs, brokerage fees, and expenses of placing
the Premises in first-class rentable condition. Landlord's
putting the Premises in good order or preparing the same
for rerental shall not operate or be construed to release
Tenant from liability hereunder. Landlord shall not be
liable for failure to relet the Premises. In no event
shall Tenant be entitled to receive any excess of such net
rent collected over the sums payable by Tenant to Landlord
hereunder. Any damage or loss of rent sustained by
Landlord may be recovered by Landlord, at Landlord's
option, at the time of the reletting, or in separate
actions, from time to time, as said damages shall have
been ascertained by successive reletting, or, at
Landlord's option, may be deferred until the expiration of
the term of this Lease (in which event Tenant hereby
agrees that the cause of action shall not be deemed to
have accrued until the date of expiration of said term).
All rights and remedies of Landlord under this Lease shall
be cumulative and shall not be exclusive if any other
rights and remedies provided to Landlord under applicable
law.
b. To remove any and all persons and property from the
Premises, with or without legal process, and pursuant to
such rights and remedies as the laws of the State of
Nevada shall then provide or permit, but Landlord shall
not be obligated to effect such removal. Said property
may, at Landlord's option, be stored or otherwise dealt
with as such laws may then provide or permit, including
but not limited to the right of Landlord to store the
same, or any part thereof, in a warehouse or elsewhere at
the expense and risk of and for the account of Tenant.
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c. To enforce, to the extent permitted by the laws of the
State of Nevada then in force and effect, any other rights
or remedies set forth in this Lease or otherwise
applicable hereto by operation of law or contract.
In the event of a breach or threatened breach by Tenant of any
of the terms, covenants, conditions, provisions or agreements of
this Lease, Landlord shall have the right of injunction. Mention
in this Lease of any particular remedy shall not preclude
Landlord from any other remedy, at law or in equity.
If Tenant vacates or abandons the Premises, any property that
Tenant leaves in the Premises shall be deemed to have been
abandoned and may either be retained by Landlord as the property
of Landlord or may be disposed of at public or private sale in
accordance with applicable law as Landlord sees fit. The
proceeds of any public or private sale of Tenant's property, or
the then current fair market value of any property retained by
Landlord shall be applied by Landlord against (i) the expenses
of Landlord for removal, storage or sale of the property; (ii)
the arrears of rent or future rent payable under this Lease; and
(iii) any other damages to which Landlord may be entitled
hereunder. Further, Landlord may, upon presentation of evidence
of a claim valid upon its face of ownership or for security
interest in any of Tenant's property abandoned in the Premises,
turn over such property to the claimant with no liability to
Tenant.
The following shall be Events of Bankruptcy under this Lease:
(1) Tenant's becoming insolvent, as that term is defined in
Title 11 of the United States Code, entitled Bankruptcy, 11
U.S.C. Sec 101 et seq. (the "Bankruptcy Code"), or under the
insolvency laws of any State, District, Commonwealth or
territory of the United States ("insolvency Laws"); (2) The
appointment of a receiver or custodian for any or all of
Tenant's property or assets, or the institution of a foreclosure
action upon any of Tenant's real or personal property; (3) The
filing of a voluntary petition under the provisions of the
Bankruptcy Code or Insolvency Laws; (4) The filing of an
involuntary petition against Tenant as the subject debtor under
the Bankruptcy Code or Insolvency Laws, which is either not
dismissed within sixty (60) days of filing, or results in the
issuance of an order for relief against the debtor, whichever is
later; or (5) Tenant's making or consenting to an assignment for
the benefit of creditors or a common law composition of
creditors.
Upon occurrence of an Event of Bankruptcy, Landlord shall have
the right to terminate this Lease by giving written notice to
Tenant, provided, however, that this section shall have no
effect while a case in which Tenant is the subject debtor under
the Bankruptcy Code is pending, unless Tenant or its Trustee is
unable to comply with the provisions below. At all other times
this Lease shall automatically cease and terminate, and Tenant
shall be immediately obligated to quit the Premises upon the
giving of notice pursuant to this section. Any other notice to
quit, or notice of Landlord's intention to re-enter is hereby
expressly waived.
If Landlord elects to terminate this Lease, everything
contained in this Lease on the part of Landlord to be done and
performed shall cease without prejudice, subject, however, to
the rights of Landlord to recover from Tenant all rent and any
other sums accrued up to the time of termination or recovery of
possession by Landlord, whichever is later, and any other
monetary damages or loss of reserved rent sustained by Landlord.
Without regard to any action by Landlord as authorized above,
Landlord may at its discretion exercise all the additional
provisions set forth below.
In the event Tenant becomes the subject debtor in a case
pending under the Bankruptcy Code, Landlord's right to terminate
this Lease pursuant to this section shall be subject to the
rights of the Trustee in Bankruptcy to assume or assign this
Lease. The Trustee shall not have the right to assume or assign
this Lease unless the Trustee (i) promptly cures all defaults
under this Lease, (ii)
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properly compensates Landlord for monetary damages, incurred as
a result of such default, and (iii) provide adequate assurance
of future performance on the part of Tenant as debtor in
possession or on the part of the assignee of Tenant.
Landlord and Tenant hereby agree in advance that adequate
assurance of future performance, as used herein, shall mean that
all of the following minimum criteria must be met; (i) Tenant
must pay its estimated pro rata share of Adjustments (whether
provided directly or through agents or contractors and whether
or not previously included as part of the minimum rent), in
advance of the performance or provisions of such services, (ii)
The Trustee must agree that Tenant's business shall be conducted
in a first class manner, and that no liquidating sales, auction,
or other non-first class business operations shall be conducted
in the Premises; (iii) The Trustee must agree that the use of
the Premises as stated in this Lease will remain unchanged and
that no prohibited use shall be permitted; and (iv) The Trustee
must agree that the assumption of this Lease will not violate or
affect the right of other tenants in the Project.
In the event Tenant is unable to (i) cure its defaults, (ii)
reimburse the Landlord for its monetary damages, (iii) pay the
rent due under this Lease, and all other payments required by
Tenant under this Lease on time (or within five (5) days), or
(iv) meet the criteria and obligations imposed above, Tenant
agrees in advance that it has not met its burden to provide
adequate assurance of future performance, and this Lease may be
terminated by Landlord.
15.3 EXPENSES AND LEGAL FEES:
Tenant shall reimburse Landlord upon demand, for any costs or
expenses incurred by Landlord in connection with any breach or
default of Tenant under this Lease, whether or not suit is
commenced or judgment entered. Such costs shall include
reasonable legal fees and costs incurred for the negotiation of
a settlement, enforcement of rights or otherwise. Tenant shall
also indemnify Landlord against and hold Landlord harmless from
all costs, expenses, demands and liability incurred by Landlord
if Landlord becomes or is made a party to any claim or action:
a. by or against any person holding any interest under
or using the Premises by license of or agreement with
Tenant;
b. for foreclosure for any lien for labor or material
furnished to or for Tenant or such other person;
c. otherwise arising out of or resulting from any act or
transaction of Tenant or such other person; or
d. necessary to protect Landlord's interest under this
Lease in a bankruptcy proceeding, or other proceeding
under Title 11 of the United States Code, as amended.
16. END OF TERM
16.1 HOLDING OVER:
This Lease shall terminate without further notice upon the
expiration of the Term (herein "Expiration Date"), and any
holding over by Tenant after the expiration shall not constitute
a renewal or extension of this Lease, or give Tenant any rights
under this Lease, except when in writing, signed by both
parties. If Tenant holds over for any period after the
expiration (or earlier termination) of the Term, Landlord may,
at its option, treat Tenant as a tenant at sufferance only,
commencing on the first (1st) day following the termination of
this Lease and subject to all of the
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<PAGE> 33
terms of this Lease, except that the monthly rental shall be one
hundred twenty-five percent (125%) of the amount of the last
monthly rental installment:
If Tenant fails to surrender the Premises upon the expiration
of this Lease despite demand to do so by Landlord, Tenant shall
indemnify and hold Landlord harmless from all loss or liability,
including, without limitation, any claims made by any succeeding
tenant relating to such failure to surrender. Acceptance by
Landlord of rent after the termination shall not constitute a
consent to a holdover or result in a renewal of this Lease. The
foregoing provisions of this Section are in addition to, and do
not effect, Landlord's right to re-entry or any other rights of
Landlord under this Lease or at law.
16.2 MERGER ON TERMINATION:
The voluntary or other surrender of this Lease by Tenant, or
mutual termination of this Lease, shall terminate any or all
existing subleases unless Landlord, at its option, elects in
writing to treat the surrender or termination as an assignment
to it of any or all subleases affecting the Premises.
16.3 SURRENDER OF PREMISES: REMOVAL OF PROPERTY:
Upon the Expiration Date, or upon any earlier termination of
this Lease, Tenant shall quit and surrender possession of the
Premises to landlord in as good order, condition and repair as
when received or as hereafter may be improved by Landlord or
Tenant, reasonable wear and tear excepted, and shall, without
expense to Landlord, remove or caused to be removed from the
Premises all personal property and debris. Tenant shall repair
all damage to the premises resulting from the removal, which
repair shall include the patching and filling of holes and
repair of structural damage. If Tenant shall fail to comply with
the provisions of this Section, Landlord may effect the removal
and/or make any repairs, and the cost to Landlord shall be
additional rent payable by Tenant upon demand.
16.4 TERMINATION; ADVANCE PAYMENTS:
Upon termination of this Lease under Article 12 (Damage or
Destruction), Article 13 (Eminent Domain) or any other
termination not resulting from Tenant's default, and after
Tenant has vacated the Premises in the manner required by this
Lease, and equitable adjustment shall be made concerning advance
rent, and any other advance payments made by Tenant or Landlord,
and Landlord shall refund the unused portion of the security
deposit to Tenant or Tenant's successor.
17. PAYMENTS AND NOTICES
All sums payable by Tenant to Landlord shall be paid in lawful money of
the United States to Landlord at its address set forth in Section 1.18 of the
Basic Lease Terms, or at any other place as Landlord may reasonably designate in
writing. Unless this Lease expressly provides otherwise, as for example in the
payment of rent, all payments shall be due and payable within ten (10) days
after demand. All payments requiring proration shall be prorated on the basis of
a thirty (30) day month and a three hundred sixty (360) day year. Any notice,
election, demand, consent, approval or other communication to be given, or other
document to be delivered by either party to the other, may be delivered in
person to an officer or duly authorized representative of the other party, or
may be deposited in the United States mail or with a nationally recognized
overnight carrier to the address set forth in Section 1.18. Either party may, by
written notice to the other, designate a different address. If any notice or
other document is sent by mail, it shall be deemed served or delivered when
received. If more than one Tenant is named under this Lease, service of any
notice upon any one of them shall be deemed as service upon all of them.
18. LIMITATION OF LIABILITY
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<PAGE> 34
In the event of any actual or alleged failure, breach or default of
this Lease by Landlord, Tenant's sole and exclusive remedy shall be against the
Project and its assets, it being intended that Landlord shall not otherwise be
personally liable for any monetary judgment or deficiency therein.
Tenant agrees that the foregoing provision shall be applicable to any
covenant or agreement either expressly contained in this Lease or imposed by
statute or at common law.
19. TRANSFER OF LANDLORD'S INTEREST
In the event of any transfer of Landlord's interest in the Premises,
including a so-called "sale-Leaseback", the transferor shall be automatically
relieved of all obligations on the part of Landlord accruing under this Lease
from and after the date of the transfer, provided that any funds held by the
transferor, in which Tenant has an interest, shall be turned over, subject to
that interest, to the transferee, and Tenant is notified of the transfer as
required by law. No holder of a mortgage and/or deed of trust to which this
Lease is, or may be, subordinate, and no landlord under a so-called
sale-Leaseback shall be responsible in connection with the security deposit,
unless the mortgagee or holder of the deed of trust or the landlord actually
receives the security deposit. It is intended that the covenants and obligations
contained in this Lease on the part of the Landlord shall, subject to the
foregoing, be binding on the Landlord, its successors and assigns, only in
respect to their respective successive periods of ownership.
20. MISCELLANEOUS
20.1 GENDER AND NUMBER
Whenever the context of this Lease requires, the words
"Landlord" and "Tenant" shall include the plural as well as the
singular, and words used in neuter, masculine or feminine
genders shall include the others.
20.2 HEADINGS:
The captions and headings of the Articles and Sections of this
Lease are for convenience only, and are not a part of this Lease
and shall have no effect upon its construction or
interpretation.
20.3 JOINT AND SEVERAL LIABILITY:
If there is more than one Tenant, the obligations imposed upon
Tenant shall be joint and several, and the act of, or notice
from, or notice or refund to, or the signature of, any one or
more of them shall be binding on all of them with respect to the
tenancy of this Lease, including, but not limited to, any
renewal, extension, termination, or modification of this Lease.
20.4 SUCCESSORS:
Subject to Articles 10 and 19, all rights and liabilities
given to or imposed upon Landlord and Tenant shall extend to and
bind their respective heirs, executors, administrators,
successors and assigns. Nothing contained in this Section is
intended, or shall be construed, to grant to any person other
than Landlord and Tenant and their successors and assigns any
rights or remedies under this Lease.
20.5 TIME OF ESSENCE:
Time is of the essence with respect to the performance of
every provision of this Lease, in which time of performance is a
factor.
20.6 SEVERABILITY:
If any term or provision of this Lease, the deletion of which
would not adversely affect the receipt of any material benefit
by either party or the deletion of which is consented to by the
party adversely
28
<PAGE> 35
affected, shall be held invalid or unenforceable to any extent,
the remainder of this Lease shall not be affected and each term
and provision of this Lease shall be valid and enforceable to
the fullest extent permitted by law.
20.7 ENTIRE AGREEMENT
The parties hereto declare and represent that no promise,
inducement or agreement not herein expressed has been made to
them, that this document embodies and sets forth the entire
agreement and understanding between them relating to the subject
matter hereof, and that it merges and supersedes all prior
discussions, agreements, understandings, representations,
conditions, warranties and covenants between them on said
subject matter.
20.8 WAIVER OF TRIAL BY JURY.
The respective parties hereby waive trial by jury in any
action, proceeding or counterclaim brought by either of the
parties hereto against the other on any matter whatsoever
arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy
of the Premises, or any claim of injury or damage, or the
enforcement of any remedy under any statute, emergency or
otherwise.
20.9 PARTIAL INVALIDITY
If any term, covenant, or condition of this Lease is, to any
extent, invalid or unenforceable, the remainder of this Lease
shall not be affected thereby and this Lease shall be valid and
enforced to the fullest extent permitted by law.
20.10 RECORDING
Tenant shall not record or file this Lease or any form of
Memorandum of Lease, or any assignment or security document
pertaining to this Lease or all or any part of Tenant's
interest therein without the prior written consent of Landlord,
which consent shall not be unreasonably withheld. If such
consent is granted Tenant will pay all recording fees, costs,
taxes and other expenses for the recording. However, upon the
request of Landlord, both parties shall execute a memorandum or
"short form" of this Lease for the purposes of recordation in a
form customarily used for such purposes. Said memorandum or
short form of this Lease shall describe the parties, the
Premises and the Lease Term and shall incorporate this Lease by
reference.
20.11 WAIVER
The waiver by either party of any term, covenant or condition
herein contained shall not be deemed to be a waiver of such
term, covenant or condition for any subsequent breach of the
same or any other term, covenant or condition herein contained.
20.12 LATE CHARGES
If any installment of rent or any sum due from Tenant shall
not be received by Landlord or Landlord's designee on or before
the date such sum is due then Tenant shall pay to Landlord a
late charge equal to five percent (5%) of the amount past due,
but in no event more than the legal maximum on such past due
amount, plus any attorneys' fees incurred by Landlord by reason
of Tenant's failure to pay rent and/or other charges when due
hereunder. Any late charges shall be added to the next
installment of Base Rent due under the Lease. The parties
hereby agree that such late charges represent a fair and
reasonable estimate of the cost that Landlord will incur by
reason of the late payment by Tenant.
20.13 INABILITY TO PERFORM
This Lease and the obligations of the Parties hereunder shall
not be affected or impaired because either Party is unable to
fulfill any of its obligations hereunder or is delayed in doing
so, if such inability
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<PAGE> 36
or delay is caused by reason of strike, labor troubles, acts of
God, governmental laws, ordinances, rules or regulations, or
other cause beyond the reasonable control of the Party.
20.14 CHOICE OF LAW
This Lease shall be governed by the laws of the State of
Nevada.
20.15 INDEPENDENTLY PROVIDED SERVICES
This Lease is entirely separate and distinct from and
independent of any and all agreements that Tenant may at any
time enter into with any third party for the provision of
services, which include, but are not limited to,
telecommunications, office automation, repair, maintenance
services, computer and photocopying ("Independent Services").
Tenant acknowledges that Landlord has no obligation of any type
concerning the provision of Independent Services, and agrees
that any cessation or interruption of Independent Services or
any other act or neglect by the third party providing the
Independent Services shall not constitute a default or
constructive eviction by Landlord.
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20.16 PRIOR AGREEMENTS
THIS LEASE CONTAINS THE ENTIRE AGREEMENT OF THE PARTIES HERETO AND ANY
AND ALL ORAL AND WRITTEN AGREEMENTS, UNDERSTANDINGS, REPRESENTATIONS,
WARRANTIES, PROMISES AND STATEMENTS OF THE PARTIES HERETO AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, AGENTS AND BROKERS WITH
RESPECT TO THE SUBJECT MATTER OF THIS LEASE AND ANY MATTER COVERED OR
MENTIONED IN THIS LEASE SHALL BE MERGED IN THIS LEASE AND NO SUCH PRIOR
ORAL OR WRITTEN AGREEMENT, UNDERSTANDING, REPRESENTATION, WARRANTY,
PROMISE OR STATEMENT SHALL BE EFFECTIVE OR BINDING FOR ANY REASON OR
PURPOSE UNLESS SPECIFICALLY SET FORTH IN THIS LEASE. NO PROVISION OF
THIS LEASE MAY BE AMENDED OR ADDED TO EXCEPT BY AN AGREEMENT IN WRITING
SIGNED BY THE PARTIES HERETO OR THEIR RESPECTIVE SUCCESSORS IN
INTEREST. THIS LEASE SHALL NOT BE EFFECTIVE OR BINDING ON ANY PARTY
UNTIL FULLY EXECUTED BY BOTH PARTIES HERETO.
LANDLORD: TENANT:
#26 McCarran Center, LC L.C. Acres Gaming
a Nevada Limited Liability Company
By:_________________________________ By: ________________________________
Robert Brown
Its:________________________________ Its: Executive Vice President
On this _____ day of ______________ 199_, before me, the undersigned, a Notary
Public in and for the County of_______, State of ________, duly commissioned and
sworn, personally appeared Robert Brown in his capacity as Executive Vice
President of Acres Gaming, known to me to be the person that executed within
instrument and known to me to be the person who affixed his name hereto and who
acknowledged to me that he executed the same freely and voluntarily and for the
uses and purposes therein mentioned.
------------------------------
NOTARY PUBLIC in and for said
County and State
On this _____ day of __________, 199_, before me, the undersigned, a Notary
Public in and for the County of Clark, State of Nevada, duly commissioned and
sworn, personally appeared _________________ in his capacity as
___________________ of #26 McCarran Center, LC LC, known to me to be the person
that executed within instrument and known to me to be the person who affixed his
name hereto and who acknowledged to me that he executed the same freely and
voluntarily and for the uses and purposes therein mentioned.
------------------------------
NOTARY PUBLIC in and for said
County and State
31
<PAGE> 38
LEASE EXHIBITS
<TABLE>
<S> <C>
A PROJECT & PREMISES
A-1 PROJECT SITE PLAN: PHASE II
A-2 BUILDING SITE PLAN
B-1 FLOOR PLAN
B-2 IMPROVEMENTS: LANDLORD RESPONSIBILITY
B-3 STANDARD TENANT IMPROVEMENT SPECIFICATIONS
C TENANT'S WORK LETTER
D RULES AND REGULATIONS
E OPERATING EXPENSES - MULTI TENANT
F PARKING
G CREDIT ENHANCEMENT
H GUARANTEE
I RENEWAL OPTIONS
J BROKERAGE COMMISSION
K COMMENCEMENT DATE
L MASTER SIGN PLAN
M SUBORDINATION AND NON-DISTURBANCE AGREEMENT
N TENANT ESTOPPEL CERTIFICATE
</TABLE>
<PAGE> 39
EXHIBIT A
PROJECT & PREMISES
PROJECT: PHASE II MCCARRAN CENTER, Phase II consisting of 42.2 Net
Acres
BUILDING Identified as Building 26 containing 54,624 sq. ft.
of leaseable area.
PREMISES Consists of 31,438 sq. ft. of leaseable area.
<PAGE> 40
EXHIBIT B-2
TENANT IMPROVEMENTS
LANDLORD RESPONSIBILITY
Landlord agrees to construct certain tenant improvements in the Premises of the
Building for Tenant's exclusive use during the term of the Lease. Landlord's
contribution to such improvements shall be $26.00 per square foot of office
space for a total Tenant Improvement Allowance of $817,388. Tenant shall be
responsible for the cost of tenant improvements exceeding the Tenant Improvement
Allowance. The Tenant Improvement Allowance shall be applied to the cost of
Design & Engineering, Plan Check and Permit Fees, special fees (such as Sewer
Fixture Fees for Tenant's requirements), Insurance and the Total Construction
Cost.
Landlord agrees to use its best efforts, including "value engineering", hard
bidding and finish selection in cooperation with Tenant to reduce the actual
tenant improvement costs. Landlord shall construct only those Tenant
Improvements which are set forth and documented in a final space plan and
construction budget, as approved by both Tenant and Landlord and permitted by
the applicable governmental authorities.
The parties agree to mutually use best efforts to complete the following
conditions prior to the construction of the Tenant Improvements.
1. The design and approval of all architectural drawings, including mechanical,
electrical and plumbing (Drawings) for the Premises.
2. The Drawings shall be approved by Tenant and by the Clark County Building
Department.
Any changes or modifications to the approved and County permitted Drawings
shall require the mutual approval of both Landlord and Tenant. Landlord shall
not charge a supervision or management fee in association with the construction
of tenant improvements.
Tenant shall pay to Landlord the cost of the improvements in excess of the
Tenant Improvement Allowance within ten (10) days of receipt of invoice,
including the contractor's invoice and any other supporting documents.
All construction, whether by Landlord or Tenant, shall be in a good, workmanlike
manner and all necessary governmental permits, licenses and approvals shall be
obtained by the party responsible for the construction.
Upon the termination of this Lease, Tenant shall be permitted to remove all
non-permanent fixtures from the Premises including, but not limited to, case
work, book cases, work surfaces, plan racks and holders, and specialty lighting.
Tenant agrees to repair any damage to the walls, ceilings or other areas of the
Premises occasioned by such removal, normal wear and tear excepted.
<PAGE> 41
EXHIBIT B-3
STANDARD
TENANT IMPROVEMENT SPECIFICATIONS
FOR MULTI TENANT INDUSTRIAL OFFICE BUILDINGS
1. GENERAL IMPROVEMENTS:
The following information is provided to establish standard specifications and
guidelines for Tenant Improvements in Multi Tenant Industrial Office Buildings.
The standards set forth in this Exhibit ( or equivalent material at Tenant's
election) are subject to Tenant's Improvement Allowance. Landlord does not
warrant that the Tenant Improvement Allowance shall be sufficient to construct
the following standards. Landlord's reasonable approval is necessary should
Tenant desire to materially alter the following standards or use the Tenant
Improvement Allowance for non-standard improvements.
A. PARTITIONS:
1. One lineal foot of building standard for each fifteen (15)
square feet.
Demising partitions shall be one layer of 5/8" gypsum wallboard
screw applied to each side of 2-1/2" metal studs spaced at 24"
on center. Installation to include 1-1/2" sound attenuation
blankets will extend from floor to deck above.
2. Interior partitions shall be one layer of 5/8" gypsum wall board
screw applied to each side of 2-1/2" metal studs spaced at 24"
on center. Wall board is to extend to 6" above finish ceiling
grid to a height of approximately 9'6".
3. All partitions and column enclosures will be taped and sanded to
receive paint.
B. DOORS FRAMES AND HARDWARE:
1. One (1) door per twenty-five (25) lineal feet of interior
partition allowance.
2. Interior doors shall be 3'0" wide by 7'0" high and 1-3/4" thick,
solid core door with frame, prefinished, with a standard
Mendecino Oak finish, both sides.
3. Interior door hardware will include lever-handled latch sets,
1-1/2" pair of 4-1/2" butts, floor stop and three (3) silencers.
4. Hardware finish to be Schlage Brushed Aluminum or equal.
C. CEILING
1. Ceiling throughout the office area will be a 2' x 4'
mechanically suspended, acoustical system using flush-finished,
lay-in tile with a mineral fiber. Nominal ceiling height is
9'0".
2. The Building Standard for a Multi-tenant office is Armstrong 769
(2767 White or equal.)
3. The Building Standard Allowance for this item is $1.25 per s.f.
<PAGE> 42
D. FLOOR COVERING AND BASE:
1. Carpeting: The Building Standard Allowance for Multi-tenant
industrial office space is $1.22 per s.f. This is for 22 oz.
Glue down carpet, Queen Commercial Carpet, "Commitment 26"
solution dyed nylon or equal.
2. V.C.T. The Building Standard Allowance for Multi-tenant
industrial office space is $1.25 per s.f. This is for an 12" x
12" Azrock Vinyl Composition Tile 1/8" thick or equal.
3. Rubber Base: The Building Standard Allowance for Multi-tenant
industrial office space is $1.25 l.f. This is for Burke standard
4" top set rubber base or equal.
E. WINDOW TREATMENT:
1. The Building Standard Allowance for Multi-Tenant industrial
office space is $.50 s.f. This is for Riviera Levelor blinds,
alabaster number 112 horizontal 1" slats or equal.
F. PAINT:
1. The Building Standard for Multi-Tenant industrial office space
is Frazee eggshell 5900w, Arctic, or equal.
G. TOILET PARTITIONS:
1. The Building Standard for this item is Boberick, American
Standard, or Bradley, metal, gray in color.
II. STRUCTURAL IMPROVEMENTS:
A. STANDARD DESIGN:
1. The structural floor system of the Building is designed to
accommodate up to one hundred (100) pounds per square foot,
including eight of partitions and up to seven (7) pounds of
ceiling and suspended mechanical equipment load.
III. HEATING VENTILATION, AIR CONDITIONING AND FIRE PROTECTION SERVICES.
A. H.V.A.C. SYSTEM:
1. The following operation standards are based upon population not
to exceed one (1) person per 150 square feet of usable floor
area.
2. This system shall be at the sole cost of the tenant .
3. The system will include a series of individual roof pack units.
4. The system shall be designed to deliver one ton of air for each
300 s.f. of useable floor space. The system design should also
assume a maximum lighting and appliance distribution of 5 watts
per rentable s.f. of Multi Tenant Industrial Office Space.
<PAGE> 43
5. Tenant H.V.A.C. work shall conform to the master system design
and include, but not necessarily be limited to providing
thermostatically controlled zones, all required ducting, all
required diffusers and grilles, and other items as necessary to
complete the system.
6. The tenant shall provide return ductwork on floors without
ceiling plenum provisions. (Contact landlord for exact location
of lease spaces requiring such.)
B. FIRE PROTECTION:
1. The base system, the "up system", is included in the shell and
core and is to be composed of risers, mains, and heads that are
turned "up" in order to comply with Building Codes for
unoccupied Multi-Tenant Industrial Office Space. Modification of
the sprinklers is required as a basic part of Tenant
Improvements. This work is to include, but not be limited to;
additional headers as required, and the down system to allow for
protection of the tenant improvement space.
2. The "down" system is to include semi-recessed type heads with
chrome finish as required by code.
3. The standard allowance for this item is $.90 s.f. Any cost above
this amount is considered above standard.
IV. ELECTRICAL AND TELEPHONE SERVICES:
A. LIGHTING:
1. One 2' x 4' fluorescent light fixture per ninety useable square
feet shall be the standard. One single pole, wall mounted light
switch at 48"+/- per each twelve light fixtures shall be
provided.
2. The light fixture shall be a recessed prismatic fluorescent 3
tube light fixture, 2' x 4' by Lithonia or equal, with energy
saving ballast's.
3. Lamps which complete the building standard fixtures shall be
initially furnished and installed as a part of the tenant
improvement allowance standard. Subsequent relamping shall be
performed at the tenant's expense.
4. Lights, as required by code, shall be connected to an emergency
circuit and comply with said code.
5. One (1) 20 amp, 120 volt, single phase, wall type duplex
electrical outlet per each one hundred fifty square feet of
useable floor space in the Multi Tenant Industrial Office
Building.
6. All cover plates to be ivory with no back to back outlets.
B. TELEPHONE:
1. Single gang telephone outlet box in stud wall with conduit from
outlet to telephone board.
2. All cover plates to be ivory with no back to back outlets.
3. The standard distribution for Multi Tenant Industrial Office
Building space is one box for one hundred fifty square feet of
useable office space.
4. Installation of telephones and wiring shall be at Tenant's sole
arrangement and expense.
<PAGE> 44
V. PLUMBING:
A. GENERAL
1. Plumbing wet stacks, containing sanitary waste and vent piping
will be available on each floor. Tenant's connection shall be at
Tenant's expense.
2. Domestic water is available at building core. Tenant's
connection shall be at Tenant's expense.
3. Sanitation:
For every 10,000 s.f. of office space:
<TABLE>
<S> <C> <C> <C>
Men: 2 Water Closets Women: 3 Water Closets
1 Urinal 1 Lavatory
1 Lavatory
For every 60,000 s.f. of Warehouse
Men: 1 Water Closet Women: 1 Water Closet
1 Lavatory 1 Lavatory
</TABLE>
VI. ABOVE STANDARD TENANT IMPROVEMENTS:
1. Any Above Standard Tenant Improvement; i.e., improvements which
exceed the standards described above, in design, quantity, quality,
structurally, mechanically, electrically, or in cost (which includes the design
fees) shall be deemed above standard. Also, Tenant designs which require fire
alarm systems or special emergency lighting above and beyond that provided by
the Landlord shall be at Tenant's cost and expense.
<PAGE> 45
EXHIBIT C
TENANT'S WORK LETTER
(CONSTRUCTION RULES)
a. The Tenant's Contractors and subcontractors are required to
check in with the Landlord's Property Manager for instructions
and coordination prior to going on the site.
b. All Tenant Contractors are to follow all instructions set forth
by Landlord.
c. Tenant's Contractors will not be permitted to start work until
they:
A. Have all necessary building permits and have posted such permits on the wall
in the Tenant's space.
B. Furnish proper evidence of required insurance coverage.
C. Sign for and take possession of keys to service doors of premises (if any)
and acknowledge proper installation and operation of said service door.
D. Furnish names and phone numbers (office and home) of contractor's supervisory
personnel.
E. Have a set of Landlord approved drawings in the space at all times.
F. Acknowledge receipt of a copy of these Construction Rules.
G. Furnish proper evidence that all fees and/or deposits required to commence
work have been fully paid.
d. Insurance:
A. All contractors are required to furnish the Landlord's Property Manager
with certificates showing evidence of the following insurance coverage
prior to commencing any work.
B. The insurance shall: (i) be issued by insurance companies authorized to do
business in the State of Nevada with a current financial rating of at least
an A+ Class XV or better as rated in the most recent edition of Best's Key
Rating Guide; (ii) be issued as a primary policy; (iii) contain an
endorsement requiring thirty (30) days written notice from the insurance
company to Landlord before cancellation or material change and, (iv) shall
be written with minimum coverages and limits as required by law and the
following:
(1) "All risk" builders' risk insurance in an amount
equal to 100% of the replacement cost of the
Improvements on a non-reporting, completed value
basis, coverage against the perils or damage
resulting from water damage;
(2) Owner's Protective Liability Insurance in an
amount of not less than $1,000,000 naming
Landlord as a Named Insured;
(3) Unless otherwise waived, in writing, by
Landlord, a performance bond from Tenant's
general contractor in an amount equal to the
contract sum or contract amount set forth in the
construction contract between Tenant and its
general contractor providing for the
construction;
(4) Independent Contractors coverage; and
<PAGE> 46
(5) Comprehensive General Liability in an amount of,
not less than $1,000,000 evidenced by a
Certificate of Insurance (said policies
hereinafter referred to as the "Construction
Period Insurance Policies"). From and after the
date of issuance of said certificate of
occupancy, the term "Insurance Policies" shall
mean: (i) All Risk Property coverage naming
Landlord as an Additional Named Insured with
Replacement Cost and Agreed Amount endorsements,
and including Increased Cost of Construction
coverage, Demolition, Clean Up and Clearance
coverage, Extra Expense coverage and providing
that collection of a total loss recovery will
not require reconstruction; (ii) Broad Form
Comprehensive General Liability, naming Landlord
as an Additional Named Insured, in an amount of,
not less than $____________, combined single
limit, containing Broad Form Contractual
Liability coverage.
C. Liability insurance may be arranged by Comprehensive
General Liability and Comprehensive Automobile Liability
policies for the full limits required or by a combination
of underlying comprehensive liability policies for lesser
limits with the remaining limits provided by an Excess or
Umbrellas Liability policy.
D. All policies shall include the following organizations as
additional Named Insureds:
Landlord: #26 MCCARRAN CENTER, LC
Landlord's Lender:___________________________________
All policies shall provide for thirty (30) days prior
written notice of expiration or cancellation to the
additional insureds.
e. Parking: All contractors will be assigned a parking area for
their workmen by the Landlord's Property Manager. No parking
will be permitted in other than the designated area. Vehicles
improperly parked are subject to removal by Landlord at
Tenant's sole risk and cost.
f. Tools and Equipment: All contractors are expected to arrive at
the site with all necessary tools and equipment. No tools or
machinery are to be requested of the Landlord's General
Contractor.
g. Deliveries:
A. All deliveries of supplies and materials delivered to a
contractor must include the store name and space number to
facilitate delivery.
B. Deliveries will be made only through entrances and routs
designated by the Landlord's Property Manager. Contractors
should verify routes daily, since routes may have to be
changed from time to time. Roadways, loading docks and
curb front delivery is at the discretion of the Landlord.
C. The Landlord's General Contractor will not accept or
unload supplies or materials for any Tenant work.
h. Curb Service:
To the greatest extent possible, curbs adjacent to the
Buildings will be kept open for deliveries. Parking therein is
strictly PROHIBITED. Vehicles delivering materials or
merchandise must be completely unloaded at curb side, and
immediately removed.Unattended parked vehicles in Loading
Courts will be tagged or towed at the expense of the Tenant
being served by the vehicles.
i. Fire Protection:
Each Tenant Contractor shall provide and maintain fire
extinguishers within the premises as required by Public Safety
Officials.
<PAGE> 47
j. Material Storage/Work Area:
All materials used for Tenant's work must be stored at all
times within the Tenant's demised premises. Under no
circumstances will any other portion of the Building or
Project area be used as a work area, construction office or to
store Tenant materials or Tenant Contractor's equipment.
k. Trash Removal:
Each Tenant Contractor is responsible for his own trash
removal during construction. Contractors are expected to
remove debris from the premises on a daily basis.
l. Roof Openings:
Allcoordination required with Landlord's General Contractor,
i.e., any openings in the Building roof, are to be scheduled
well in advance of anticipated need. Landlord's General
Contractor shall not be responsible for delays to Tenant work
caused by failure of Tenant Contractor to give adequate notice
of work needed. The penetration and flashing of all roof
openings shall be by Landlord's Contractor at Tenant's
expense.
m. Signage:
No signs are to be placed on a Tenant's storefront without
approval of the Landlord.
n. Compliance with Regulations:
Contractors are to comply with all federal and local safety
regulations in the execution of their work as well as any
safety requirements of the Center Contractor. Hard hats are
required for all workmen and visitors to the site.
o. Approved Working Plans:
The Tenant Contractor must maintain one set of Approved
Working Plans displaying signatures of Landlord and Plans
Examiner on the job at all times during construction.
p. Permits:
The Tenant Contractor is required to obtain all necessary
permits prior to the start of construction on the Tenant
space.
q. Protection of Work and Property:
Tenant and Tenant's Contractor shall protect their work from
damage and shall protect the work of other Tenants and
Landlord from damage by Tenant, Tenant's Contractor and their
employees and sub-contractors.
r. Strictly Prohibited Work and Practices:
A. Combustible materials above finished ceilings or in any
other concealed, non-sprinklered space are prohibited.
B. Imposing any structural load, temporary or permanent, on
any part of the Landlord's work or structure without the
approval of Landlord's Engineer and Property Manger is
prohibited.
C. Cutting any holes in Landlord-installed floor slabs,
walls, or roof is prohibited unless written approval is
provided by the Property Manager.
s. Required Documents at Occupancy:
Contractor must furnish to Tenant a Certificate of Occupancy
(if applicable) and a Contractor's Waiver of Lien upon
completion of construction.
<PAGE> 48
t. Liens:
If any mechanic's lien shall at any time be filed against any
part of the Premises by reason of work, labor, services or
materials performed for or furnished to Tenant, Tenant shall
forthwith cause the lien to be discharged or bonded off to the
satisfaction of Landlord. If Tenant shall fail to cause such
lien to be discharged or bonded off within fifteen (15) days
after being notified of the filing thereof, then, in addition
to any other right or remedy of Landlord, Landlord may
discharge the lien by paying the amount claimed to be due. The
amount paid by Landlord, and all costs and expenses, including
reasonable attorney's fees incurred by Landlord in procuring
the discharge of the lien, shall be due and payable by Tenant
to Landlord as additional rent on the first day of the next
following month, or if the Lease term has expired, upon
demand.
u. Plans:
Ten (10) days prior to the commencement of any construction
Tenant shall submit to Landlord for Landlord's approval
preliminary plans and specifications for the construction
("preliminary Plans"). As promptly as possible after
submission of the Preliminary Plans, but in any event within
twenty (20) days after receipt thereof, the Landlord will
notify the Tenant of any objections thereto (specifying in
reasonable detail such objections) and Tenant shall cause such
objections to be rectified and to promptly resubmit the
revised Preliminary Plans to the Landlord.
Landlord's right to object to the Preliminary Plans shall be
limited to objections that the submitted Preliminary Plans do
not provide for a quality first class structure, workmanship
and materials, or functional or architectural harmony with
existing improvements, or otherwise do not meet the
requirements of this Lease or any applicable Governmental
Requirements. Tenant will, immediately after receipt of
written notice of objections from Landlord, undertake to amend
or modify the Preliminary Plans to conform to the requirements
of this Lease and to cure any objections from the Landlord. In
the event of Landlord's failure to give written notice of any
objections within any of the requisite time periods, the
Preliminary Plans as submitted to Landlord shall be deemed
approved by the Landlord.
Tenant shall submit one (1) copy of the "Final Plans" to
Landlord prior to submission to the Building Department for a
Building Permit (the "Final Plans").
Within ten (10) days after the Final Plans have been received
by Landlord for final approval, Landlord shall give written
notice of its approval or disapproval thereof, specifying in
the latter event, its reasons therefor. Such approval shall
not be unreasonably withheld and the right to disapprove the
Final Plans shall be limited to objections that they are not
consistent developments of the Preliminary Plans, or do not
meet the requirements of this Lease or applicable Governmental
Requirements.
In the event the Landlord fails to give notice of its approval
or disapproval of the Final Plans, as submitted to Landlord,
within said ten (10) day period, the Final Plans shall be
deemed approved by the Landlord.
Notwithstanding anything contained in this Lease which is or
may be construed to be to be contrary, Landlord shall have no
liability or obligation whatsoever in connection with any of
the Plans and no responsibility for the adequacy thereof or
for the construction of all or any portion of the Premises
contemplated by the Plans. Landlord has no duty to inspect the
Premises, and if Landlord should inspect the Premises,
Landlord shall have no liability or obligation to Tenant or
any other Person arising out of such inspection. No such
inspection, or any failure by Landlord to make objections
after any such inspection, shall constitute an agreement or a
representation by Landlord that the Premises is in accordance
with the Plans or constitute a waiver of Landlord's right
thereafter to insist that the Premises be constructed in
accordance with the Plans.
<PAGE> 49
EXHIBIT D
RULES AND REGULATIONS
1.00 PROJECT & PREMISES
1.01 INDUSTRIAL AND COMMERCIAL USE: The Premises shall be used for
industrial and commercial purposes permitted under the Clark County, Nevada "MD"
Zoning Ordinance and Guidelines or as further permitted in Lease, and for no
other use.
1.02 OIL DRILLING: No oil drilling, oil development operations, oil
refining, holding tanks, quarrying or mining operations of any kind, shall be
permitted upon or in the Project. No derrick or other structure designed for use
in boring for water, oil or natural gas shall be erected, maintained or
permitted upon the Project.
1.03 OFFENSIVE CONDUCT - NUISANCE: Tenant, Renters, Occupiers and
Guests within the Project shall conform to all applicable Codes of the County of
Clark, and no noxious or offensive activities shall be carried on, upon or
within the Project. Any obstruction of Common Access areas is hereby deemed to
be a nuisance and is prohibited except for reasonable periods in connection with
repairs to the driveway, parking, walkway and Common Facilities. Objects which
create or emit loud noise, vibrations or obnoxious odors shall not be located,
used or placed on any portion of the Project other than temporarily for
landscape, driveway, parking, walkway or building maintenance. No Tenant shall
permit or cause anything to be done or kept on its Premises which may increase
the rate or cause the cancellation of insurance because of the dangerous or
volatile nature of such activity or substance, nor shall any Tenant violate or
permit the violation of any law on its Premises. Each Tenant shall comply and
require the Occupants and Permittees of its Premises to comply with all the
requirements of the local or state health authorities and with all other
governmental authorities with respect to the occupancy and use of a building or
any portion thereof. The Landlord shall be entitled, but shall not be obligated,
to take any action to abate an unlawful nuisance, including without limitation
the right to enter into a Premises or Building to exercise the abatement of the
unlawful nuisance.
1.04 VEHICULAR MAINTENANCE: No person shall conduct repairs,
restorations, or painting of any motor vehicle, boat, trailer, aircraft or other
vehicle upon any portion of the Project except wholly within an enclosed
building.
1.05 ANTENNA, EXTERNAL FIXTURES, ETC.: No television or radio poles,
antennae, flag poles, clotheslines or other external fixtures other than those
originally installed by Landlord or approved by the Landlord and any
replacements thereof, shall be constructed, erected or maintained on or within
the Premises or Building.
1.06 FENCES, ETC.: No fences, awnings, ornamental screens, screen
doors, sunshades or walls of any nature shall be erected or maintained on or
around any portion of any structure or elsewhere within the Premises except
those installed in accordance with the original construction of the Premises,
and any replacement thereof, or as are authorized and approved by the Landlord.
1.07 ANIMALS: No animals, reptiles, rodents, livestock or poultry shall
be kept in any Premises or elsewhere within the Project, without the express
written consent of the Landlord.
1.08 NO STORAGE OR LIVING USE OF RECREATIONAL VEHICLES: No boat, truck,
trailer, camper, recreational vehicle or tent shall be stored on the Project or
used as a living area.
1.09 TRASH DISPOSAL: Trash, garbage, or other waste shall be kept only
in sanitary containers in the enclosures provided. No Tenant shall permit or
cause any trash or refuse to be kept on any portion of the Project other than in
the receptacles customarily used therefor, and placed or maintained as required
by Landlord.
1.10 EXTERIOR ALTERATIONS: No Tenant shall, at his expense or
otherwise, make any alterations or modifications to the exterior of the
buildings, fences, railings or walls situated within the Project without the
prior written consent of the Landlord and approval by the County.
1.11 PARKING RESTRICTIONS: No parking shall be permitted which may
obstruct free traffic flow within the Common Facilities, constitute a nuisance,
or otherwise create a safety hazard. Notwithstanding the forgoing, this document
shall not be interpreted in such a manner so as to permit an activity which
would be contrary to any ordinance. Provided the requirements are not violated,
construction activity shall be exempt from this section where applicable. The
Landlord is hereby empowered to established "no parking" areas within Common
Access areas of the Project as well as to enforce parking limitations through
its officers and agents by all means lawful for such enforcement on private
drives, including the removal of any violating vehicle. Adequate off-street
parking is provided to accommodate all parking needs for employees, visitors and
company vehicles on the site.
<PAGE> 50
1.12 BUILDING MAINTENANCE: Each Tenant shall be responsible for
maintaining its building, including the equipment and fixtures therein and the
interior and exterior walls, ceiling and roof, private restrooms contained
within the Building, (if any), windows and doors thereof, in a first class,
clean, sanitary, workable and attractive condition. Tenant shall have complete
discretion as to the choice of furniture, furnishings, and interior decorating;
provided, that:
a) Windows may only be covered by drapes, shades or shutters
and may not be painted or covered by foil, cardboard, or other similar
materials. Each Tenant shall be responsible for repair, replacement and cleaning
of the interior windows and glass of his building.
b) Decoration of the exterior of the doors to the Building
shall be of uniform design to be adopted and approved by the Landlord.
1.13 SIGNS: The Landlord shall adopt as part of the Project rules,
rules for signage established by Landlord for a signage program pertaining to
the use of signs by the Tenant. The Landlord shall have the right to approve all
signs posted within the Project, including signs on the building doors. No
Tenant shall permit or cause any advertising, identifications, or other sign to
be constructed, installed or maintained on the Premises or on any property
adjacent to the Premises and visible from the Premises until the plans and
specifications therefor, including the height, size, coloring, design and
location of installation, have been submitted to and approved in writing by the
Landlord and the County of Clark. All signs installed on the Premises or on any
property adjacent to the Premises and visible from the Premises shall be
consistent with the character and architectural style of the buildings located
on the Premises upon which they are placed. In addition, no sign, poster,
display, or other advertising device shall be placed in the public view upon any
portion of the Premises and/or Building or on any property adjacent to the
Premises and visible from the Premises unless it complies with all applicable
County ordinances. No Tenant shall permit or cause any sign advertising a
person, firm, company, or corporation which does not operate, conduct a
business, or sell products on such Premises to be constructed, installed, or
maintained on such Premises. Landlord , consultants, or contractors may use
signs of a size, design and location as determined by the Landlord for the
purposes of developing, constructing, marketing and improving the Project.
1.14 MAINTENANCE OF DRAINAGE FACILITIES: The Premises upon which
drainage ditches and/or related facilities are located, or which may be
hereafter be located, shall keep and maintain any improvements constructed
thereon, in a reasonable condition according to their design, purpose and/or
function, including, but not limited to, the removal of all obstructions which
may or reasonably might cause redirection or impedance of the flow of the
drainage thereon regardless of the source or cause of such obstruction or
impedance.
1.15 RETENTION OF LOT GRADE: Unless specifically approved in writing by
both the County and the Landlord, the grade of any Premises shall not be
modified, altered or otherwise changed.
1.16 STORAGE AND LOADING AREAS: No materials, trash, supplies or
equipment, including company-owned or operated trucks, shall be stored on the
Premises except inside a closed building, or behind a visual barrier screening
such areas form the view of adjoining properties and/or private streets subject
to the approval of the County of Clark and the Landlord; provided, however, that
this provision shall not apply during the course of construction of a building.
1.17 Canvassing, soliciting and peddling in the Project are prohibited.
2.00 RECIPROCAL EASEMENTS
2.01 PREMISES INCLUDED: Certain Premises, located within the Project,
because of unique characteristics regarding the relationship of each of these
Premises to the other, are encumbered by this document with a special set of
easements. These special easements provide for reciprocal surface access and
reciprocal subsurface utility access on and under the affected Premises.
2.02 SPECIAL RECIPROCAL SURFACE ACCESS EASEMENTS: Each Tenant of the
affected Premises, does covenant for itself and its successors, a nonexclusive
special reciprocal surface access easement over portions of his property for the
purpose of providing landscape planting and on-going maintenance and utility
maintenance and repair. Such surface access shall be reciprocal from one to
another, and shall provide continuous access to each Premises, Landlord/Tenant,
his tenant(s), guest(s), vendors, suppliers and to landscape maintenance
personnel employed by the Landlord or by authorized personnel of Public
Utilities servicing a given utility located within the Reciprocal Easement Area.
2.03 RECIPROCAL SUBSURFACE UTILITY EASEMENTS: Each Tenant of the
affected Premise does covenant for itself and its successors, a nonexclusive
reciprocal subsurface easement beneath the surface of its Leasehold Premise for
the purpose of providing a satisfactory location for subsurface utility lines
servicing all or some of the
<PAGE> 51
Project. Such utilities would be for, but not limited to: water lines, sanitary
sewer lines, storm drainage lines, electrical lines, gas lines, fiber optic
lines, telephone lines or cable TV lines. Such subsurface access shall be
reciprocal from one Leasehold Premise to another and shall provide the necessary
reciprocal easement for the utility line in question and provide continuous
access to authorized personnel of the utility companies providing the services.
2.04 SUBSURFACE EASEMENTS: The utility company or public agency
utilizing the subsurface portion of the Reciprocal Easement Area shall be
responsible for the continuous upkeep and maintenance of the utility facilities.
3.00 BUILDING
3.01 Without limitation upon any of the provisions of the Lease, Tenant
shall not mark, paint, drill into, cut, string wires within, or in any way
deface any part of the Building or Premises, without the prior written consent
of Landlord, and as Landlord may direct. Upon removal of any wall decorations or
installments or floor coverings by Tenant, any damage to the walls or floors
shall be repaired by Tenant at Tenant's sole cost and expense. Tenant shall not
lay linoleum or similar floor coverings so that the same shall come into direct
contact with the floor of the Premises and , if linoleum or other similar floor
covering is to be used, an interlining of builder's deadening felt shall be
first affixed to the floor, by a paste or other materials soluble in water. The
use of cement or other similar adhesive material is expressly prohibited. Floor
distribution boxes for electric and telephone wires must remain accessible at
all times.
3.02 Tenant shall not install or permit the installation of any
awnings, shades, mylar films or sunfilters on windows. Tenant shall not
obstruct, alter or in any way impair the efficient operation of Landlord's
heating, ventilating, air conditioning, electrical, fire, safety or lighting
systems.
3.03 Tenant shall, upon the termination of its tenancy, provide
Landlord with the combinations to all combination locks on safes, safe cabinets
and vaults and deliver to Landlord all keys to the Building and all interior
doors, cabinets, and other key-controlled mechanisms therein, whether or not
such keys were furnished to Tenant by Landlord.
3.04 These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the agreements,
covenants, conditions and provisions of any lease of Premises in the Project.
<PAGE> 52
EXHIBIT E
OPERATING EXPENSES
For the purposes of this Lease, "Operating Expenses" shall include those items
and services set forth in Section 4.2 and further defined in Section 9 of the
Lease. Operating Expenses associated with the Project Common Facilities and the
Building occupied by the Tenant are calculated and prorated as set forth
hereafter:
GROUP I - PROJECT COMMON AREA
- Consists of the maintenance and up-keep of perimeter
Landscaping Areas generally located parallel to the
public streets within the Project to a average depth
of 15 to 20 feet from the public right-of-way.
- Categories covered include: Landscape Maintenance and
Utilities (Electrical and Water), and Property
Management.
Perimeter Landscaping Areas in the Project shall be
constructed and maintained along public streets and private
streets within the Project.
The method for calculation of the Building's prorata share of Project
Operating Expenses shall be based on the number of acres of land
assigned to the Building divided by the total number of acres in that
phase of the Project. The calculation for the Premises prorata share of
the Buildings Operating Expenses shall be based on the square feet of
the Premises divided by the total square feet in the Building (See
Section 2.1 of the Lease for measurement guidelines). The calculation
for the Building and Premises Group I Operating Expense is set forth
below.
Building Acreage: 5.33
Phase II Project Acreage: 42.2 Building/Project: 12.63 percent
Premises sq. ft.: 31,438 sq. ft.
Building sq. ft.: 54,624 sq. ft. Premises/Building: 57.55 percent
Group I Premises Allocation 7.27 percent (Prem/Bldg x Bldg/Proj)
<PAGE> 53
GROUP II - PROVIDED BY LANDLORD TO THE BUILDING AND PREMISES.
Operating Expense obligations of the Building include, but are not
limited to:
- Real Property Taxes including special assessments as indicated
on a separate tax bill for the Building but exclusive of any
increased taxes due to the sale of the Building.
- All Risk Property Insurance.
- Property Management for the Building (including, but not
limited to: parking facilities and landscaping) as provided by
Landlord (see Lease, Section 4.2).
- Tenant shall be responsible for its prorata share of the
Building Area's Group II expenses.
The Building's share of Group II Operating Expenses shall be based upon the
Acreage of the Building Area divided by the Acreage of the Project:
Building Area Acreage: 5.33 acres
Building Area Responsibility: 12.63 percent
Operating Expense Obligations of the Premises:
- On-Site - Water and Sewer (unless separately metered to the
Premises)
- Building Maintenance & Repair
- HVAC Maintenance and Repair under a Guaranteed Service
Contract
- Fire Sprinkler Maintenance and Monitoring
- Building Area Trash Removal
- Prorata share of exterior Building area Expenses
Group II Expenses are allocated to the Premises on a prorata basis. The Building
is grossed up to reflect at least 95% occupancy.
Premises sq. ft.: 31,438
Building sq. ft.: 54,624 sq. ft.
Premises Percentage Allocation: 57.55 Percent. (same as Premises/Bldg.)
GROUP III - PROVIDED BY TENANT
Operational Expenses which are the sole responsibility of the Tenant are:
- Utility - Electrical: (HVAC, Lighting & Wall Outlets on
separate meter)
- Utility - Telephone (In-Suite)
- Janitorial and Premises Trash Removal (In-Suite)
- All other utilities separately metered to the Premises
<PAGE> 54
EXHIBIT F
PARKING
Tenant shall be provided a minimum of One Hundred Thirty-two (132) unrestricted
regular size parking stalls, free of charge, for the use by Tenant's employees
and visitors. The rules and regulations governing the use of these spaces are
contained in Exhibit "D" of this Lease. Tenant shall not use more parking spaces
than set forth herein, or any spaces (a) which have been specifically assigned
by Landlord to other tenants or for such other uses as visitor parking or (b)
which have been designated by governmental entities of competent jurisdiction as
being restricted to certain uses. Landlord reserves the right to erect such
security and access and egress control devices as it may reasonably deem to be
appropriate (including, without limitation card controlled gates) and Tenant
agrees to cooperate fully with Landlord in such matters.
Tenant shall not permit or allow any vehicles that belong to or are controlled
by Tenant or Tenant's employees, suppliers, shippers, customers, or invitees to
be loaded, unloaded, or parked in areas other than those designated by Landlord
for such activities. If Tenant permits or allows any of such prohibited
activities, then Landlord shall have the right, without notice, in addition to
such other rights and remedies that it may have, to remove or tow away the
vehicle involved and charge the cost to Tenant, which cost shall be immediately
payable upon demand by Landlord.
Tenant shall pay, throughout the entire Term, an amount equal to the number of
reserved-covered parking spaces Tenant leases for its use times the applicable
fees (the "Parking Fees") which Landlord is charging for use of the
reserved-covered parking facilities from time to time. Tenant agrees and
acknowledges that Tenant shall be obligated to pay such rates regardless of
whether or not Tenant actually uses the parking spaces. Such Parking Fees shall
be payable monthly commencing with the first installment of Base Rent due under
the Lease. If the Commencement Date is other than the first day of a calendar
month, the first installment of the Parking Fee shall be prorated on the basis
of a thirty (30) day calendar month.
Landlord may, but shall not be obligated, to construct covered parking
structures on the Project which shall be available for the use of the Tenant.
Should the Tenant elect to rent spaces in a parking structure, Tenant shall pay,
throughout the entire Term, an amount equal to the number of parking spaces
Tenant rents in the parking structure times the applicable fees (the "Parking
Fees") which Landlord is charging for use of the parking structure. Landlord
may, from time to time, increase the Parking Fees being charged in the parking
structure upon thirty (30) days prior written notice. Such Parking Fees shall be
payable monthly as additional rent by the Tenant. If Landlord mandates the use
of the Parking Garage by the Tenant, either temporarily or permanently, such use
shall be at no charge to Tenant, its employees, invitees or customers.
<PAGE> 55
EXHIBIT G
CREDIT ENHANCEMENT
For and in consideration of the leasing of the Premises to Tenant, Tenant agrees
to maintain as a "Credit Enhancement" an amount determined by taking one half
(1/2) of the sum of the Tenant Improvement Allowance and Tenant's contribution
to over standard tenant improvements ("Tenant's Contribution") and subtracting
therefrom Tenant's Contribution. (Example: Tenant Improvement Allowance=$25/sq.
ft. Tenant's Contribution=$9/sq. ft. 1/2($25+$9)=$17. $17-$9=$8/sq. ft.
$8x31,438 sq. ft.=$251,504 Credit Enhancement) The Credit Enhancement shall be
held in an account or under an alternative agreement approved by Landlord and
subject to the following conditions:
1. The Credit Enhancement may be held in an escrow account at a
Federally Insured financial institution with a minimum total asset
base of One Billion dollars as of January 1, 1998. The account may
be in the form of a Certificate of Deposit, Money Market Account,
or other federally insured investment.
2. As an alternative to the aforementioned escrow account, the Credit
Enhancement may be a Letter of Credit written against a Federally
Insured financial institution with assets as set forth above.
3. The Credit Enhancement shall be maintained until Acres Gaming
achieves Four (4) consecutive quarters of positive Net Operating
Income (Net Earnings) after which Tenant shall be released from
the provisions set forth in this Exhibit G.
4. On each annual anniversary of the Commencement Date the amount
required to be maintained under this Credit Enhancement shall be
reduced by one fifth (1/5) of the original amount. (Example:
Credit Enhancement=$150,000. Annual reduction=$30,000)
<PAGE> 56
EXHIBIT I
RENEWAL OPTIONS
If immediately prior to the expiration of the Initial Term, this Lease
shall be in full force and effect, and if written notice is given to Landlord no
later than one hundred and eighty (180) days prior to the expiration of the Term
of Tenant's intent to renew, the giving of such notice by Tenant shall be
effective to renew this Lease and extend the term hereof as to the Premises
without the necessity for execution of any further instrument by either party,
for an additional period of sixty (60) months (Option Term) from and after the
expiration of said initial term. The Option Term shall be on the same covenants,
agreements, terms, provisions and conditions as are contained herein for the
initial term. Base Rent for each year during the entirety of such Option Term on
the Premises shall, however, be at the "Extension Rate" (as hereinafter
defined).
The "Extension Rate" for purposes of calculating the Base Rent payable
during each twelve (12) month period of the Option Term shall be the amount
equal to the Base Rent (as set forth in the Lease) multiplied by a fraction,
which fraction shall have as its numerator the Consumer Price Index For All
Urban Consumers using the U.S. City Average (1982-84 = 100), or alternative
thereto as hereinafter provided, as published by the U.S. Department of Labor,
Bureau of Labor Statistics, for the calendar month which is four (4) months
prior to the expiration of the applicable twelve (12) month period, and which
shall have as its denominator the Consumer Price Index, as published for the
calendar month which is four (4) months prior to the Commencement Date of the
Initial Term. If the present base of said Index should hereafter be changed,
then the new base shall be converted to the base now used. In the event that the
Bureau should cease to publish the Consumer Price Index, then a similar Index
published by any other branch or department of the U.S. Government shall be
used. In the event the Bureau shall publish more than one such index, then the
index showing the greater proportionate increase shall be used, and if none is
so published, then another index generally recognized as authoritative shall be
substituted by agreement of the parties hereto, or if no such agreement is
reached within a reasonable time, either party may make application to any court
of competent jurisdiction to designate such other index. In any event, the base
used by any new index shall be reconciled to the 1982-84=100 Base Index. In no
event shall the Extension Rate to be paid by Tenant pursuant hereto be less than
the Base Rent as adjusted with respect to the prior twelve (12) month period of
the Initial Term. In the event the numerator of said fraction is not available
at the time of adjustment of the rent as provided herein, Tenant shall continue
to pay the rent established for the next prior twelve (12) month period;
provided, however, Tenant shall promptly pay to Landlord any deficiency at such
time as said rent is adjusted.
The Extension Rate shall be subject to all rent adjustments and
increases as set forth in the Lease, including, but not limited to, Sections
1.12 and 4.
<PAGE> 57
EXHIBIT J
BROKERS COMMISSION
The parties recognize as the broker(s) who negotiated this Lease, the
firm(s), if any, whose name(s) is (are) _________________, and agree that
Landlord shall be solely responsible for the payment of brokerage commissions to
those broker(s), and that the other party shall have no responsibility for the
commissions unless otherwise provided in this Lease. Tenant warrants that it has
had no dealings with any other real estate broker or agent in connection with
the negotiation of this Lease, and the Tenant agrees to indemnify and hold
Landlord harmless from any cost, expense or liability (including reasonable
attorneys' fees) for any compensation, commissions or charges claimed by any
other real estate broker or agent employed or claiming to represent or to have
been employed by Tenant in connection with the negotiation of this Lease. The
foregoing agreement shall survive the termination of this Lease. If Tenant fails
to take possession of the Premises or if this Lease otherwise terminates prior
to the expiration date, Landlord shall be entitled to recover the unamortized
portion of any brokerage commission funded by Landlord in addition to any other
damages to which Landlord may be entitled.
It is the Landlord's express policy not to pay commissions for the extensions,
renewals, options or expansions of an existing Tenant.
<PAGE> 58
EXHIBIT K
COMMENCEMENT DATE
The Commencement date of that Lease by and between #26 McCarran Center,
LC, as Landlord, and Acres Gaming, as Tenant, is hereby acknowledged and agreed
to be .
Accordingly, the Expiration Date is acknowledged and agreed to be
__________199__.
LANDLORD: TENANT:
#26 McCarran Center, LC Acres Gaming
a Nevada Limited Liability Company
By:______________________________ By: _____________________________________
Robert Brown
Its:_____________________________ Its: Executive Vice President
<PAGE> 59
EXHIBIT L
MASTER SIGN PLAN
MULTI-TENANT
SIGNAGE STANDARDS
A. GENERAL REQUIREMENTS - ALL BUILDINGS:
1. All sign plans shall be reviewed and approved in writing by the Landlord
for conformity with this criteria and overall design quality prior to
installation. Approval or disapproval of sign submittals shall remain the
sole right of the Landlord.
2. All permits for signs and installation thereof shall be approved by the
Landlord or its representative. The expense of obtaining permits, the
fabrication and the installation of all signs shall be the responsibility
of the Tenant.
B. GENERAL SPECIFICATIONS - ALL BUILDINGS:
1. No projections beyond the sign area will be permitted. Signage area is to
be within limits as indicated by the Landlord in this criteria.
2. Except as provided herein, no advertising placards, banners, pennants, name
insignia, trademarks or other described material shall be affixed or
maintained upon the glass panels and supports of the windows and doors or
upon the exterior walls of the building or office front.
3. All signs and their installation shall comply with all local building
codes.
4. Signs shall be composed of individual lettering. Logos will be considered
on a case by case basis.
C. GENERAL CONSTRUCTION REQUIREMENTS - ALL BUILDINGS:
1. Tenant shall be responsible for the manufacture, complete installation and
maintenance of the building letters and vinyl lettering.
2. All signs are to be installed under the direction of the Project
Contractor's superintendent or representative.
3. Tenant shall be fully responsible for the Tenant's sign contractor.
4. Tenant's sign contractor shall execute Landlord's Right of Entry Agreement
prior to installation of signage.
5. Tenant's sign contractor shall repair any damage to any portion of the
structure and finish caused by its work.
6. All penetrations of the building structure required for sign installation
shall be sealed in a water tight condition and shall be patched to match
Building finish adjacent to the installation.
7. No signmaker's label or other identification will be permitted on an
exposed surface of the sign, except for those required by ordinance, which
shall be placed in an inconspicuous location.
8. No signs or lettering will be permitted on the building roof.
<PAGE> 60
D. SIGN CONTRACTOR GENERAL REQUIREMENTS - ALL BUILDINGS:
1. Tenant shall use YESCO (Young Electric Sign Company) to produce and install
signage for aesthetic consistency or Landlord approved equal.
2. All companies bidding to manufacture signs are to be advised by Tenant that
no substitutes will be accepted unless indicated in the specifications and
approved by the Landlord.
3. All manufacturers are to be advised by Tenant that prior to acceptance and
final payment, each unit will be inspected for conformity with approved
plans. Any signs found not in conformity will be rejected and removed at
the Tenant's expense.
4. Entire display shall be guaranteed for 90 days against defects in material
and workmanship. Defective parts shall be replaced without charge.
5. Sign company shall carry workman's compensation and public liability
insurance against all damage suffered or done to any and all persons and/or
property while engaged in the construction or erection of signs in the
amount of $1,000,000.
E. SINGLE-STORY MULTI-TENANT BUILDINGS - SIGNAGE:
1. Building signage to be flush mounted, non-illuminated, individual letters,
with both upper and lower case permitted.
2. The width of the Tenant sign facia shall not exceed the width of the Sign
Band (as delineated on the exterior elevations). Lettering shall center on
demised premises unless otherwise approved by Landlord.
3. Size of the Building signage letters shall be 18" maximum and logos 24"
maximum in height by 3/4" in depth. Any exceptions will require prior
written consent of the Landlord.
4. Building signage letters will be Helvetica medium or as approved by the
Landlord and painted to match Ameritone 1-VR-34A-Navarro.
5. Tenant will be permitted to place at the main entrance of its demised
premises not more than 144 inches of vinyl lettering, not to exceed two and
three fourths inches (2-3/4") in height, maximum of four (4) lines,
indicating suite number and name. Any exceptions will require prior written
consent of the Landlord.
6. Tenant's non-customer door for private, employee or merchandise entry may
have uniformly applied in two and three-fourths inches (2-3/4") high vinyl
block letters, the Tenant's name and suite number.
7. Building address (excluding suite number) shall be provided by Landlord.
Address shall be individual 3/4" deep 12" high numbers (Helvetica medium)
flush mounted where indicated on exterior elevations.
F. MULTI-STORY BUILDINGS - PARAPET SIGN:
1. Parapet Wall Sign
Shall mean a logo symbol and/or sign text consisting of individual
symbols or letters installed directly to the parapet of the Building. The use of
"Raceways" for letter attachment to the Building is not permitted.
2. Signable Area
Shall mean the display surface of a sign encompassed within a single
continuous perimeter, which encloses the extreme limits of the display face of
that graphic.
3. Location
<PAGE> 61
Shall be above the upper-most window line, and as indicated on the Sign
Location Plan (if provided), or as otherwise designated by Landlord.
4. Number
Landlord shall determine the number of individual tenants and signs
permitted on a Building.
5. Display
Parapet signs shall use a single line of text.
6. Alignment
Parapet signs shall be located a distance equal to the height of the
wall sign (but not less that 3'0") from the vertical edge of the building, a
minimum of 18" above the highest ceiling line and a minimum of 18" below the top
of the parapet. The sign shall insure the geometric relationship to the vertical
and horizontal features of the building.
7. Height
Wall sign height shall not exceed the height as listed in the table
below.
<TABLE>
<CAPTION>
Number of Stories Maximum Height
----------------- --------------
<S> <C>
1 2'-0"
2 2'-6"
3 or more 3'-0"
</TABLE>
8. Area
Wall sign area shall be as listed in the table below.
<TABLE>
<CAPTION>
Number of Stories Maximum Square Footage
----------------- ----------------------
<S> <C>
1 64
2 100
3 or more 144
</TABLE>
9. Materials and Construction
Parapet signs shall utilize dark anodized bronze aluminum or other
materials as approved by Landlord. Returns and trim shall match color of sign
face unless otherwise approved. All signs shall consist of individual letters
and/or symbols. No continuous sign cabinets or raceways shall be permitted.
10. Colors
Colors of parapet sign materials shall be consistent with the Building
and be subject to the approval of the Landlord prior to issuance of the required
building permit. Registered trademark/logo colors are allowed.
11. Illumination and Lighting Control
Parapet signs shall be either non-illuminated or interior or halo
illuminated with no exposed conduit, raceway or similar cabinets and shall be
wired in such a manner that if any one portion and/or letter of the sign were to
burn out, the illumination of the entire sign will automatically turn off.
12. Submittal
All parapet signs must be submitted to the Landlord for approval. Upon
receiving approval from the Landlord, the Tenant's sign contractor shall obtain
all required permits.
<PAGE> 62
EXHIBIT M
WHEN RECORDED, RETURN TO:
- ----------------------------
- ----------------------------
- ----------------------------
- ----------------------------
SUBORDINATION, NONDISTURBANCE
AND ATTORNMENT AGREEMENT
(MODIFY AS NECESSARY FOR GROUND LEASE, IF ANY)
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement") is made and entered into as of ____________, 19___, by and between
_______________________________, a(n) _____________________________________
("Lender") and _______________________________, a(n) ________________________
("Tenant").
RECITALS
This Agreement is made with respect to the following facts:
A. Pursuant to Loan Agreement dated as of ____________, 19__ (the "Loan
Agreement") entered into among ______________, a _________________, and
____________________, a ___________________, the Lenders made a loan to Landlord
(the "Loan").
B. The loan is secured by a Deed of Trust, Security Agreement,
Assignment of Leases, Rents and Profits, Financing Statement and Fixture Filing
(the "Deed of Trust") which was recorded in the Official Records of Clark
County, Nevada, as Instrument No. __________, encumbers certain real property
owned by Landlord located in Clark County, Nevada, and more particularly
described in the Deed of Trust (the "Property").
C. Lender is [the holder of 100% of the rights/has purchased the Loan
and succeeded to 100% of the rights] of the Landlord under the Loan Agreement,
the Deed of Trust and the other documents evidenced the Loan [pursuant to, inter
alia, (i) an Assignment of Loan Documents dated _________________, and (ii) and
Assignment of Beneficial Interest under Deed of Trust and under Assignment of
Leases and Rents recorded in the Official Records of Clark County, Nevada, on
_________________ as Instrument No. _________________].
D. Pursuant to a Lease Agreement dated ______________________ between
#26 McCarran Center, LC, a Nevada limited liability company, as landlord
("Landlord"), and Tenant (the "Lease"), Landlord leased to Tenant [a portion of]
the Property consisting of approximately ___________________ rentable square
feet of office space commonly know as _________________________________________,
as more particularly described in the Lease as the "Premises".
E. Lender and Tenant now desire to clarify their respective rights with
respect to the Premises, to confirm the right of Tenant to quiet and peaceable
possession of the Premises under the Lease, and to further define the terms,
covenants and conditions precedent to such right of quiet and peaceable
possession.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
1. The recitals set forth above are incorporated herein by reference.
<PAGE> 63
2. Tenant covenants and agrees that the Lease now is and at all times
shall continue to be subject and subordinate in each and every respect to the
lien of the Deed of Trust, to the full extent of the principal, interest and
other sums secured thereby. Tenant, upon request, shall execute and deliver any
a certificate or other instrument whether or not in recordable form which Lender
reasonably may request to confirm such subordination.
3. As long as Tenant is in compliance with the terms of this Agreement
and is not in default in the performance of its obligations under the Lease,
which default remains uncured beyond the expiration of any applicable grace or
cure periods, (i) Lender shall not name Tenant as a party defendant in any
action for foreclosure or other enforcement of the Deed of Trust (unless
required by law), nor shall the Lease be terminated by Lender in connection
with, or by reason of, foreclosure or other proceedings for the enforcement of
the Deed of Trust, or by reason of a transfer of the Landlord's interest under
the Lease pursuant to the taking of a deed or assignment in lieu of foreclosure
(or similar device), and in such event the Lease shall remain in full force and
effect as a direct lease between Tenant and any person, including without
limitation Lender, acquiring or succeeded to the interests of Landlord as a
result of any such action or proceeding (hereinafter referred to as a
"Successor") and (ii) Tenant's use or possession of the Premises shall not be
interfered with by Lender or anyone acting by or through Lender.
4. If any portion of the Property affected by the Lease is damaged by
an insured casualty or if any portion of the Property affected by the Lease is
taken under the power of eminent domain, or sold under the threat of the
exercise of said power, then Lender agrees that insurance or condemnation
proceeds otherwise payable to Lender as a result thereof shall be made available
to Landlord to repair and/or restore the Property.
5. If the interest of Landlord under the lease shall be transferred by
reason of foreclosure or other proceedings for enforcement of the Deed of Trust
or the obligations which it secures or pursuant to a taking of a deed or
assignment in lieu of foreclosure (or similar device), Tenant shall be bound to
the Successor and the Successor shall be bound to Tenant under all terms,
covenants and conditions of the Lease for the unexpired balance of the term
thereof remaining (and any extensions, if exercised), with the same force and
effect as if the Successor were the landlord, and Tenant does hereby (i) agree
to attorn to the Successor, including lender if it be the Successor, as its
landlord, (ii) affirm its obligation under the Lease and (iii) agree to make
payments of all sums due under the Lease to the Successor, said attornment,
affirmation and agreement to be effective and self-operative without the
execution of any further instruments, upon the Successor succeeding to the
interest of Landlord under the Lease.
6. Tenant agrees that this Agreement satisfies any condition or
requirement in the Lease relating to the granting of a non-disturbance agreement
with respect to the Deed of Trust. Tenant further agrees that in the event there
is any inconsistency between the terms and provisions hereof and the terms and
provisions of the Lease dealing with non-disturbance, the terms and provisions
hereof shall be controlling.
7. This Agreement may not be modified except by an agreement in writing
signed by the parties or their respective successors-in-interest. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns.
8. Nothing contained in this Agreement shall in any way impair or
affect the lien created by the Deed of Trust, except as specifically set forth
herein.
9. If either party hereto shall bring suit to enforce the terms and
provisions hereof or to recover damages for breach, the prevailing party shall
be entitled to recover from the other party all reasonable costs, expenses and
attorneys' fees incurred in connection with the exercise by the prevailing party
of its rights and remedies hereunder. The amount of the attorneys' fees is to be
affixed by the court without a jury. For the purpose of this paragraph, the term
"prevailing party" shall mean, in the case of the claimant, one who is
successful in obtaining substantially all of the relief sought, and in the case
of the defendant or respondent, one who is successful in denying substantially
all of the relief sought by the claimant.
<PAGE> 64
10. This Agreement may be executed in one or more counterparts, each of
which when taken together shall constitute one and the same instrument. This
Agreement has been executed in the State of Nevada, and the laws of the State of
Nevada shall govern its construction, performance and terms. This Agreement
shall be construed according to its plain meaning and shall not be strictly
construed either for or against any party hereto. Either party hereto may record
this document in the official records of the county in which the Property is
located.
<PAGE> 65
LENDER:
________________________________,
a(n)_____________________________
By:______________________________
Name:____________________________
Title:_____________________________
TENANT:
---------------------------------,
a(n)______________________________
By:_______________________________
Name:____________________________
Title:______________________________
STATE OF NEVADA )
)ss.
County of Clark )
The foregoing instrument was acknowledged before me this _____ day of
__________, 19__, by _______________________________ the _________________ of
_________________________________, on behalf of such________________________.
---------------------------------
Notary Public
My Commission Expires:
- ----------------------
STATE OF NEVADA )
)ss.
County of Clark )
The foregoing instrument was acknowledged before me this _____ day of
__________, 19__, by _______________________________ the _________________ of
_________________________________, on behalf of such _________________________.
---------------------------------
Notary Public
My Commission Expires:
- ----------------------
<PAGE> 66
EXHIBIT N
TENANT ESTOPPEL CERTIFICATE
TO:______________________________
PREMISES:______________________________
LOCATION:______________________________
LEASE DATE:____________________________
DATE OF AMENDMENTS, IF ANY:___________
TENANT:________________________________
LANDLORD: #26 MCCARRAN CENTER, LC
Tenant is a tenant of the Premises pursuant to the lease described
above and any amendments thereto (the "Lease") and hereby certifies the
following information which you, exclusively, may rely upon in connection with
your loan to Landlord:
1. The Lease, a copy of which is attached hereto as Exhibit "A", is presently in
full force and effect and has not been modified, supplemented or amended except
as follows:
_______________________________________________________________________________.
2. (a) The commencement date of the Lease was or will be ___________________,
and the date of expiration of the Lease will be ______________________, subject
to extensions of the Commencement Date pursuant to Paragraph ________of the
Lease and subject to the Tenant's right, if any, to extend the term of the Lease
as follows:
_______________________________________________________________________________.
_______________________________________________________________________________.
(b) The Premises consists of _____________square feet for
_______________________________________________________________________________
_______________________________________________________________________ use(s).
3. (a) The base rent payable under the terms of the Lease is $_________.
(b) The base rent payable under the terms of the Lease has been paid
through ______________.
(c) The Lease provides for __________ months free rent, and Landlord
has not agreed to any other free rent periods except as follows:
_____________________________________.
5. Tenant has not assigned its rights under the Lease or sublet any portion of
the Premises except as follows:
_____________________________________.
6. There are no current actions, whether voluntary or otherwise, pending against
Tenant under any insolvency, bankruptcy or other debtor relief laws of the
United States.
<PAGE> 67
7. Landlord is not currently in default in the performance of any covenants,
conditions, agreements, terms or provisions contained in the Lease. Landlord has
no current obligations to Tenant or agreements with Tenant, except as set forth
in writing in the Lease.
8. Tenant has not been granted any rent abatements or concessions for the term
of the Lease, except as set forth in the Lease or in Paragraph 4 (c) of this
estoppel certificate, and Tenant is not owed any money by Landlord which can be
offset or otherwise deducted from the rental due under the Lease, except as
follows: ____________________________________.
9. Tenant has deposited ___________ as a security deposit with Landlord.
10. Except as set forth in the Lease, landlord has no current obligations to or
agreements with Tenant with respect to the Premises, including, without
limitation, any obligations or agreements regarding any tenant improvement work
to be performed by Landlord.
THE STATEMENTS MADE HEREIN SHALL BE BINDING UPON US, OUR SUCCESSORS AND
ASSIGNS, AND SHALL INURE TO YOUR BENEFIT AND THE BENEFIT OF YOUR SUCCESSORS AND
ASSIGNS. THE OFFICER, PARTNER OR PERSON, AS APPLICABLE, EXECUTING THIS
CERTIFICATE HAS BEEN DULY EMPOWERED TO DO SO ON BEHALF OF THE UNDERSIGNED.
Tenant:
By:___________________________
Its:___________________________
<PAGE> 1
EXHIBIT 21.1
SUBSIDIARIES OF THE REGISTRANT
<TABLE>
<CAPTION>
Name State of Incorporation
---- ----------------------
<S> <C>
AGI Distribution, Inc. Nevada
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation of our reports included in this Form 10-K into the Company's
previously filed Registration Statements (Form S-8, No. 33-75570 and Forms S-3,
No. 333-2258 and No. 333-21913).
ARTHUR ANDERSEN LLP
Portland, Oregon
September 24, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S CONSOLIDATED FINANCIAL STATEMENTS INCLUDED IN FORM 10-K AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JUN-30-1998
<PERIOD-END> JUN-30-1998
<CASH> 9,887,000
<SECURITIES> 0
<RECEIVABLES> 1,979,000
<ALLOWANCES> (50,000)
<INVENTORY> 2,607,000
<CURRENT-ASSETS> 14,526,000
<PP&E> 5,170,000
<DEPRECIATION> 2,919,000
<TOTAL-ASSETS> 17,194,000
<CURRENT-LIABILITIES> 2,435,000
<BONDS> 0
0
4,948,000
<COMMON> 19,642,000
<OTHER-SE> (9,831,000)
<TOTAL-LIABILITY-AND-EQUITY> 17,194,000
<SALES> 17,573,000
<TOTAL-REVENUES> 17,573,000
<CGS> 10,950,000
<TOTAL-COSTS> 11,283,000
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (483,000)
<INCOME-PRETAX> (4,177,000)
<INCOME-TAX> 0
<INCOME-CONTINUING> (4,177,000)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (4,177,000)
<EPS-PRIMARY> (.47)
<EPS-DILUTED> (.47)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S CONSOLIDATED FINANCIAL STATEMENTS INCLUDED IN FORM 10-Q AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-END> SEP-30-1996
<CASH> 3,589,000
<SECURITIES> 0
<RECEIVABLES> 2,862,000
<ALLOWANCES> (132,000)
<INVENTORY> 3,017,000
<CURRENT-ASSETS> 9,425,000
<PP&E> 2,587,000
<DEPRECIATION> 1,473,000
<TOTAL-ASSETS> 10,915,000
<CURRENT-LIABILITIES> 4,600,000
<BONDS> 0
0
0
<COMMON> 12,139,000
<OTHER-SE> (5,824,000)
<TOTAL-LIABILITY-AND-EQUITY> 10,915,000
<SALES> 6,568,000
<TOTAL-REVENUES> 6,568,000
<CGS> 3,108,000
<TOTAL-COSTS> 2,006,000
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (35,000)
<INCOME-PRETAX> 1,489,000
<INCOME-TAX> 0
<INCOME-CONTINUING> 1,489,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,489,000
<EPS-PRIMARY> .20
<EPS-DILUTED> .18
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S CONSOLIDATED FINANCIAL STATEMENTS INCLUDED IN FORM 10-Q AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-END> DEC-31-1996
<CASH> 6,250,000
<SECURITIES> 0
<RECEIVABLES> 4,552,000
<ALLOWANCES> (132,000)
<INVENTORY> 4,309,000
<CURRENT-ASSETS> 15,205,000
<PP&E> 3,019,000
<DEPRECIATION> 1,627,000
<TOTAL-ASSETS> 16,987,000
<CURRENT-LIABILITIES> 2,079,000
<BONDS> 0
0
0
<COMMON> 19,366,000
<OTHER-SE> (4,458,000)
<TOTAL-LIABILITY-AND-EQUITY> 16,987,000
<SALES> 12,243,000
<TOTAL-REVENUES> 12,243,000
<CGS> 5,414,000
<TOTAL-COSTS> 4,093,000
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (119,000)
<INCOME-PRETAX> 2,855,000
<INCOME-TAX> 0
<INCOME-CONTINUING> 2,855,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,855,000
<EPS-PRIMARY> .35
<EPS-DILUTED> .32
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S CONSOLIDATED FINANCIAL STATEMENTS INCLUDED IN FORM 10-Q AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-END> MAR-31-1997
<CASH> 10,128,000
<SECURITIES> 0
<RECEIVABLES> 3,801,000
<ALLOWANCES> (167,000)
<INVENTORY> 5,273,000
<CURRENT-ASSETS> 19,186,000
<PP&E> 3,195,000
<DEPRECIATION> 1,849,000
<TOTAL-ASSETS> 21,052,000
<CURRENT-LIABILITIES> 2,584,000
<BONDS> 0
0
4,948,000
<COMMON> 19,327,000
<OTHER-SE> (5,807,000)
<TOTAL-LIABILITY-AND-EQUITY> 21,052,000
<SALES> 14,953,000
<TOTAL-REVENUES> 14,953,000
<CGS> 6,875,000
<TOTAL-COSTS> 6,810,000
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (238,000)
<INCOME-PRETAX> 1,506,000
<INCOME-TAX> 0
<INCOME-CONTINUING> 1,506,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,506,000
<EPS-PRIMARY> .18
<EPS-DILUTED> .17
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S CONSOLIDATED FINANCIAL STATEMENTS INCLUDED IN FORM 10-K AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-END> JUN-30-1997
<CASH> 9,318,000
<SECURITIES> 0
<RECEIVABLES> 3,880,000
<ALLOWANCES> (322,000)
<INVENTORY> 5,366,000
<CURRENT-ASSETS> 19,019,000
<PP&E> 3,871,000
<DEPRECIATION> 2,075,000
<TOTAL-ASSETS> 21,323,000
<CURRENT-LIABILITIES> 2,545,000
<BONDS> 0
0
4,948,000
<COMMON> 19,409,000
<OTHER-SE> (5,579,000)
<TOTAL-LIABILITY-AND-EQUITY> 21,323,000
<SALES> 20,455,000
<TOTAL-REVENUES> 20,455,000
<CGS> 9,553,000
<TOTAL-COSTS> 9,477,000
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (373,000)
<INCOME-PRETAX> 1,798,000
<INCOME-TAX> 0
<INCOME-CONTINUING> 1,798,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,798,000
<EPS-PRIMARY> .21
<EPS-DILUTED> .20
</TABLE>
