-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UO4qyplJ25Ik17FgX+t2/CZiugeqiQwQMyKtH+d4xrwGU9kvmLVeeeTItOPr4b/c SnqeVydjMd12Atsrxm/26Q== 0000898430-98-001193.txt : 19980331 0000898430-98-001193.hdr.sgml : 19980331 ACCESSION NUMBER: 0000898430-98-001193 CONFORMED SUBMISSION TYPE: 10-K PUBLIC DOCUMENT COUNT: 20 CONFORMED PERIOD OF REPORT: 19971231 FILED AS OF DATE: 19980330 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: HOLLYWOOD PARK INC/NEW/ CENTRAL INDEX KEY: 0000356213 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-RACING, INCLUDING TRACK OPERATION [7948] IRS NUMBER: 953667491 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K SEC ACT: SEC FILE NUMBER: 001-13641 FILM NUMBER: 98579461 BUSINESS ADDRESS: STREET 1: 1050 SOUTH PRAIRIE AVENUE CITY: INGLEWOOD STATE: CA ZIP: 90301 BUSINESS PHONE: 3104191500 MAIL ADDRESS: STREET 1: 1050 SOUTH PRAIRIE AVENUE CITY: INGLEWOOD STATE: CA ZIP: 90301 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HOLLYWOOD PARK OPERATING CO CENTRAL INDEX KEY: 0000356212 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-RACING, INCLUDING TRACK OPERATION [7948] IRS NUMBER: 953667220 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K SEC ACT: SEC FILE NUMBER: 333-34471-02 FILM NUMBER: 98579462 BUSINESS ADDRESS: STREET 1: 1050 S PRAIRIE AVE CITY: INGLEWOOD STATE: CA ZIP: 90301 BUSINESS PHONE: 2134191500 MAIL ADDRESS: STREET 1: 1050 PRAIRIE AVE CITY: INGLEWOOD STATE: CA ZIP: 90301 10-K 1 FORM 10-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K [X] Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the fiscal year ended December 31, 1997 Commission file number 0-10619 Commission file number 333-34471-02 HOLLYWOOD PARK, INC. HOLLYWOOD PARK OPERATING COMPANY (Exact Name of Registrant as (Exact Name of Registrant as Specified in Its Charter) Specified in Its Charter) Delaware Delaware (State or Other Jurisdiction of (State or Other Jurisdiction of Incorporation or Organization) Incorporation or Organization) 95-3667491 95-3667220 (IRS Employer Identification No.) (IRS Employer Identification No.) 1050 South Prairie Avenue, Inglewood, California 90301 (Address of Principal Executive Offices) (Zip Code) (310) 419 - 1500 (Registrant's Telephone Number, Including Area Code) Securities registered pursuant to Section 12(b) of the Act: Hollywood Park, Inc. Common Stock, $.10 par value New York Stock Exchange Securities registered pursuant to Section 12(g) of the Act: None Indicate by check mark whether 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, 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. [ ] The aggregate market value of the voting stock held by non-affiliates of the registrant at March 25, 1998, was $353,197,645 based on a closing price of $13.437 per common share. The number of outstanding shares of the registrant's common stock, as of the close of business on March 25, 1998: 26,285,454. HOLLYWOOD PARK, INC. Table of Contents Part I Item 1. Description of Business..................................................... 1 General........................................................... 1 Casino Operations................................................. 2 Racing Operations................................................. 4 Expansion Plans................................................... 6 Possible Restoration of Real Estate Investment Trust/Paired-Share Structure................................ 10 Other Uses of Property............................................ 10 Government Regulation............................................. 11 Casino Operations............................................ 11 Racing Operations............................................ 22 Competition....................................................... 22 Federal Income Tax Matters........................................ 23 Employees......................................................... 24 Other............................................................. 24 Item 2. Properties.................................................................. 24 Item 3. Legal Proceedings........................................................... 25 Item 4. Submission of Matters to a Vote of Security Holders......................... 26 Part II Item 5. Market for the Registrant's Common Equity and Related Stockholder Matters... 27 Item 6. Selected Financial Data..................................................... 27 Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations............................... 30 Results of Operations.......................................... 30 Liquidity and Capital Resources................................ 32 Item 7A. Quantitative and Qualitative Disclosures About Market Risk................. 37 Item 8. Financial Statements........................................................ 37 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..................................................... 40 Summary Compensation Table........................................ 40 Stock Option Plan................................................. 40 Options/SAR Grants in Last Fiscal Year............................ 41 Aggregated Options/SAR Exercises in Last Fiscal Year and Fiscal Year-End Options/SAR Values.............................. 41 Pension Plan...................................................... 42 Board Committees and Director Compensation........................ 42 Directors Deferred Compensation Plan.............................. 43 Compensation Committee Interlocks and Insider Participation....... 44 Compensation Committee Report on Executive Compensation........... 44 Item 12. Security Ownership of Certain Beneficial Owners and Management............. 46 Item 13. Certain Relationships and Related Transactions............................. 47 Part IV Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K.......... 49 Signatures........................................................................... 55
PART I ITEM 1. DESCRIPTION OF BUSINESS - ------------------------------- GENERAL Hollywood Park, Inc. (the "Company" or "Hollywood Park") is a diversified gaming, sports and entertainment company engaged in the ownership and operation of casinos (including card club casinos) and pari-mutuel racing facilities, and the development of other gaming and sports related opportunities. Hollywood Park owns and operates, through its Boomtown, Inc. ("Boomtown") subsidiary, land-based, dockside and riverboat gaming operations in Verdi, Nevada ("Boomtown Reno"), Biloxi, Mississippi ("Boomtown Biloxi") and Harvey, Louisiana ("Boomtown New Orleans"), respectively. Hollywood Park also owns two card club casinos in California, both located in the Los Angeles metropolitan area. The Hollywood Park-Casino is operated by the Company, and located on the same property as the Hollywood Park Race Track, and as of December 31, 1997, the Company owned 100% of the Crystal Park Hotel and Casino (the "Crystal Park Casino") (previously the Company owned approximately 93% of the Crystal Park Casino), which is leased to an unaffiliated operator. Presently, Hollywood Park is the only company that owns and operates both California card club casinos and traditional casinos in gaming jurisdictions such as Nevada, Mississippi and Louisiana. The Company's premier thoroughbred racing facilities include, the Hollywood Park Race Track, which the Company has owned for 59 years, and Turf Paradise, Inc. ("Turf Paradise"), located in Phoenix, Arizona. The Hollywood Park Race Track was the host of the prestigious 1997 Breeders' Cup championship racing series. The Company also owns Sunflower Racing, Inc. ("Sunflower"), a greyhound and thoroughbred racing facility located in Kansas City, Kansas. On May 17, 1996, as a result of intense competition from Missouri riverboat gaming, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code. Sunflower is operating as a debtor in possession during the bankruptcy. Hollywood Park's strategic plan is to continue to grow its gaming, sports and entertainment businesses by (i) expanding and increasing the utilization of its existing properties, (ii) developing real estate at its existing properties and developing projects at new sites, and (iii) making selected acquisitions, principally in the gaming industry, to diversify its operations and to achieve economies of scale. In the realization of this strategy, in addition to Hollywood Park's June 30, 1997, acquisition of Boomtown (discussed in more detail below), on February 19, 1998, Hollywood Park and Casino Magic Corp. ("Casino Magic") and HP Acquisition II, Inc. (a wholly owned subsidiary of Hollywood Park) executed an Agreement and Plan of Merger (the "Casino Magic Merger") whereby, subject to the terms and conditions of the Casino Magic Merger, HP Acquisition II, Inc. will merge into Casino Magic, with Casino Magic surviving and becoming a wholly owned subsidiary of Hollywood Park. Casino Magic owns and operates dockside and riverboat gaming properties in Bay St. Louis, Mississippi, Biloxi, Mississippi and Bossier City, Louisiana, respectively. Casino Magic also owns 51% of two land-based casinos, which it operates in Argentina. The Company is the successor to the Hollywood Park Turf Club, organized in 1938, incorporated in 1981 under the name Hollywood Park Realty Enterprises, Inc., and in 1992, as part of a restructuring, renamed Hollywood Park, Inc. Hollywood Park's active subsidiaries are as follows: (1) Hollywood Park Operating Company, which has two wholly owned subsidiaries, Hollywood Park Food Services, Inc. and Hollywood Park Fall Operating Company; (2) Sunflower Racing, Inc., which has one wholly owned subsidiary, SR Food and Beverage, Inc.; (3) Turf Paradise, Inc.; (4) HP/Compton, Inc.; (5) HP Casino, Inc.; (6) HP Yakama, Inc.; (7) HP Kansas, Inc.; and (8) Boomtown, Inc., which has six active subsidiaries: Boomtown Hotel & Casino, Inc., Bayview Yacht Club, Inc., Mississippi - I Gaming, L.P., Louisiana Gaming Enterprises, Inc., Louisiana - I Gaming and Boomtown Hoosiers, Inc. The Hollywood Park-Casino is a division of Hollywood Park, Inc. In May 1997, the Company announced that it is exploring the possible restoration of its former paired-share/REIT structure (the "Possible REIT Restructuring"). The Company now expects to proceed with the Possible REIT Restructuring subject to, among other things, receipt of all required stockholder, regulatory and other required approvals. However, the Company has not yet received the stockholder approvals or regulatory approvals necessary to implement the Possible REIT Restructuring, and there can be no assurance that the Company will receive such approvals necessary to effect the Possible REIT Restructuring or that, if 1 implemented, its expected benefits will be achieved. The Company has retained the investment banking firm of Morgan Stanley & Co. Incorporated to advise it in connection with matters pertaining to the Possible REIT Restructuring, including assisting the Company's Board of Directors in evaluating a proposed business combination with or investment by a potential strategic partner. (See "Possible Restoration of Real Estate Investment Trust/Paired-Share Structure.") CASINO OPERATIONS Boomtown, Inc. On June 30, 1997, pursuant to the Agreement -------------- and Plan of Merger dated as of April 23, 1996, by and among Hollywood Park, HP Acquisition, Inc., (a wholly owned subsidiary of the Company), and Boomtown, HP Acquisition, Inc. was merged with and into Boomtown (the "Boomtown Merger"). As result of the Boomtown Merger, Boomtown became a wholly owned subsidiary of the Company and each share of Boomtown common stock was converted into the right to receive 0.625 of a share of Hollywood Park's common stock. Approximately 5,362,850 shares of Hollywood Park common stock, valued at $9.8125 per share (excluding shares repurchased from Edward P. Roski, Jr. ("Roski") and subsequently retired, as described below) were issued in the Boomtown Merger. The Boomtown Merger was accounted for under the purchase method of accounting for a business combination. The purchase price of the Boomtown Merger was allocated to identifiable assets acquired and liabilities assumed based on their estimated fair values at the date of acquisition. Based on financial analyses prepared by the Company which considered the impact of general economic, financial and market conditions on the assets acquired and the liabilities assumed, the Company determined that the estimated fair values approximated their carrying values. The Boomtown Merger generated approximately $2,683,000 of excess acquisition cost over the recorded value of the net assets acquired, all of which was allocated to goodwill, to be amortized over 40 years. The amortization of the goodwill is not deductible for income tax purposes. The Company acquired three of the four Boomtown properties; Boomtown Reno, Boomtown New Orleans and Boomtown Biloxi. Boomtown's Las Vegas property was divested following the Boomtown Merger on July 1, 1997. Boomtown's Las Vegas property was divested because it had generated significant operating losses since it opened, thus reducing the overall profitability of Boomtown. Boomtown and its subsidiaries exchanged substantially all of their interest in the Las Vegas property, including substantially all of the operating assets and notes receivable of approximately $27,300,000 from the landowner/lessor of the Las Vegas property, IVAC, a California general partnership of which Roski, a former Boomtown director, is a general partner, for, among other things, two unsecured notes receivable totaling approximately $8,465,000, cash, assumption of certain liabilities and release from certain lease obligations. The first note receivable is for $5,000,000, bearing interest at Bank of America National Trust and Savings Association's ("Bank of America") reference rate plus 1.5% per year, with annual principal payments of $1,000,000 plus accrued interest commencing on July 1, 1998. The second note is for approximately $3,465,000, bearing interest at Bank of America's reference rate plus 0.5% per year, with principal and accrued interest payable to the Company, in full, on July 1, 2000. In addition, concurrently with the divestiture of the Las Vegas property, Hollywood Park purchased and retired 446,491 shares of Hollywood Park common stock received by Roski in the Boomtown Merger for a price of approximately $3,465,000, payable in the form of a Hollywood Park promissory note. The promissory note bears interest at Bank of America's reference rate plus 1.0%. Interest is payable annually and annual principal payments, in five equal installments, of approximately $693,000 are due starting July 1, 1998. Boomtown Reno has been operating for over 30 years on 569 acres in the rolling foothills of the Sierra Nevada mountains, (current operations are utilizing approximately 61 acres) in Verdi, Nevada (just two miles from the California border and nine miles from Reno) on Interstate 80, the major highway connecting Northern California and Nevada. Boomtown Reno caters to middle-income customers and markets the property as a gaming and entertainment establishment for the entire family. Boomtown Reno currently consists of a 40,000 square foot western-themed casino, with 1,152 slot machines, 40 table games and Keno. Boomtown Reno also offers its customers a 122 room hotel, a 35,000 square foot family entertainment center and dining amenities. Boomtown Reno contains a truck stop, a recreation vehicle park, and a service station with car wash and mini-mart. 2 The $25,000,000 expansion and renovation of Boomtown Reno is underway, and includes 200 additional hotel rooms, a complete renovation of the existing gaming floors, 10,000 square feet of new conference and banquet facilities, expanded new gaming floor space, a new bus tour lobby and remodeling of food and beverage facilities. The expansion is expected to be completed in late 1998. Boomtown New Orleans opened in August 1994 on a 50 acre site in Harvey, Louisiana, approximately ten miles from the French Quarter of New Orleans. As of August 8, 1997, Boomtown New Orleans became wholly owned by the Company, through its wholly owned subsidiaries Louisiana Gaming Enterprises, Inc. and Boomtown by way of a Louisiana limited partnership (the "Louisiana Partnership"). Previously, 7.5% of the Louisiana Partnership was owned by Eric Skrmetta ("Skrmetta"). On November 18, 1996, Boomtown entered into an agreement with Skrmetta under which it would pay approximately $5,670,000 to Skrmetta in return for Skrmetta's interest in the Louisiana Partnership. Under the terms of the agreement, in 1996 Boomtown made a down payment of $500,000 and the Company paid the remaining $5,170,000 on August 8, 1997. Boomtown New Orleans conducts gaming on a riverboat, and as of mid-February 1998, operates on the Boomtown Belle II riverboat, purchased from Casino Magic on September 25, 1997 for approximately $11,700,000. At 380 feet, Boomtown Belle II is 130 feet longer than the previous riverboat and is 26 feet wider. The gaming floors of Boomtown Belle II incorporate a more elegant decor, including escalators to enhance patron traffic flow and allows for more spacious gaming floors. Hollywood Park invested approximately $4,700,000 to renovate and equip Boomtown Belle II, which offers 30,000 square feet of gaming space, with 1,089 slot machines and 49 table games. During 1997, Boomtown New Orlean's former riverboat offered 911 slot machines and 54 table games. The land-based facility adjacent to the riverboat dock is composed of a western-themed 88,000 square foot facility. The first floor of the building offers patrons a buffet style restaurant, a 20,000 square foot family entertainment center and a western saloon/dance hall. The Company is currently in the pre-construction phase of a $10,000,000 renovation and build-out of the Boomtown New Orleans land based facility, which is expected to be completed in late summer 1998. The renovation will include a second floor banquet facility, a restaurant and bar with an adult arcade theme. Boomtown Biloxi opened in July 1994 and occupies 19 acres on Mississippi's historic Back Bay of the Mississippi Gulf Coast. The Mississippi Gulf Coast is marketed as the "Playground of the South" and has been a major tourist destination, even prior to the advent of full casino gaming in 1992. The Mississippi Gulf Coast comprises a land area of nearly 1,800 square miles, with more than 30 miles of white sand beach fronting the Gulf of Mexico. Recent statistics indicated that on an annual basis approximately 22 million patrons visited the Gulf Coast casinos, of which 64% were drawn to the Mississippi Gulf Coast from outside of the state. Boomtown Biloxi operates an "old west" themed 33,632 square foot casino, which sits on a permanently moored 400 x 110 foot barge. Boomtown Biloxi offers 1,308 slot machines and 35 table games. The land-based facility houses all non-gaming activities, including restaurants, buffets, a family video fun center and gift shops. Hollywood Park-Casino The Hollywood Park-Casino, located in Inglewood, - --------------------- California, opened in July 1994, under a third party leasing arrangement with Pacific Casino Management, Inc. ("PCM"). On November 17, 1995, Hollywood Park acquired substantially all the assets, property and business of PCM, and assumed substantially all of PCM's liabilities. Prior to the acquisition, under a lease with the Company, PCM operated the gaming floor activities of the Hollywood Park-Casino. The Hollywood Park-Casino is located on the same premises as the Hollywood Park Race Track. The Hollywood Park-Casino offers up to 150 gaming tables in 30,000 square feet of gaming space. By law, a California card club casino may neither bank card games nor offer certain of the familiar card games permitted in Nevada and other traditional gaming jurisdictions. Instead, the Hollywood Park-Casino offers only certain forms of card games, including Poker, Pai Gow and California Blackjack. Patrons pay a fee for each hand played or a fee for seats at gaming tables. Players bet solely against each other. The Hollywood Park-Casino does not participate in the wagers made or in the outcome of any of the games played. Revenues are also derived from food and beverage sales, rental of facilities for bingo, gift shops and health club operations. 3 As of January 1, 1998's enactment of Senate Bill 8, Hollywood Park is able to operate the Hollywood Park-Casino indefinitely. Under the previous law, as of January 1, 1999, Hollywood Park would not have been able to operate the Hollywood Park-Casino and would have had to once again lease the property. Hollywood Park purchased the gaming floor business from PCM for $2,640,000, which was paid for with 218,099 shares of the Company's common stock. The approximately $21,568,000 of excess acquisition cost over the recorded value of the net assets acquired from PCM was allocated to goodwill, and will be amortized over 40 years. The amortization of the goodwill is not deductible for income tax purposes. Crystal Park Hotel and Casino The Crystal Park Casino, located in Compton, - ----------------------------- California opened on October 25, 1996, as Southern California's first major hotel and casino. The hotel operates under a Radisson Hotels International, Inc. flag. As of December 31, 1997, Hollywood Park owned 100% of Crystal Park Hotel and Casino Development Company, LLC ("Crystal Park LLC"), the entity that owns the Crystal Park property. In December 1997, Hollywood Park paid $1,000,000 (or the initial amount the member contributed) for 3.4% of Crystal Park LLC and in February 1998, paid an additional $2,000,000 (or the initial amount the member contributed) for the remaining outstanding 6.8% of Crystal Park LLC. Current California law does not allow publicly traded companies, such as Hollywood Park, to operate a card club casino (other than on the same premises as a race track); therefore, Crystal Park LLC leases the facility to California Casino Management, Inc. ("CCM") under a 48 month, triple net lease executed on December 19, 1997. Previously, the Crystal Park Casino was under lease to Compton Entertainment, Inc. ("CEI"). On November 4, 1997, Crystal Park LLC obtained a judgment in an action for unlawful detainer against CEI, due to CEI's failure to pay a portion of the June 1997 rent and to make required additional rent payments. In October 1997, the California Attorney General revoked CEI's conditional gaming registration, and the City of Compton revoked CEI's city gaming license. CEI closed the Crystal Park Casino on October 11, 1997. CCM reopened the Crystal Park Casino on December 26, 1997 with approximately 60 gaming tables, 280 hotel rooms including 40 VIP suites, a restaurant, gift shop, and a lobby sports bar and lounge. Rent under the lease is fixed at $100,000 per month for the first six months, $350,000 for months 7 through 18, and $550,000 for months 19 through 48. Crystal Park LLC does not participate in any gaming or hotel revenues from the Crystal Park Casino. As of this filing CCM was current on rent payments. Under the lease with CCM, if California law is changed to allow Hollywood Park to operate the Crystal Park Casino, Crystal Park LLC will operate the property in a partnership with CCM, with Crystal Park LLC owning 90% of the business. RACING OPERATIONS With pari-mutuel wagering, patrons bet against each other in a pool rather than against the operator of the facility or with pre-set odds. Revenues are also derived from concession sales, admissions and program sales. At the Hollywood Park and Turf Paradise race tracks, the Company operates all aspects of racing, while under Kansas State racing laws Sunflower is not granted any race days and does not generate any pari-mutuel commissions. The Kansas Racing Commission granted Sunflower the facility ownership and manager licenses; with all race days until the year 2014 granted to TRAK East, a Kansas not-for- profit corporation. Sunflower has an agreement with TRAK East to provide the physical race tracks along with management and consulting services for twenty- five years with options to renew for one or more successive five year terms. The Agreement and Restatement of Lease and Management Agreement was entered into as of September 14, 1989. On May 17, 1996, as a result of intense competition from Missouri riverboat gaming, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code. Sunflower is operating as a debtor in possession during the bankruptcy. Sunflower has filed its plan of reorganization with the bankruptcy court and is currently awaiting confirmation of that plan. (See "Item 3 - Legal Proceedings.") Hollywood Park Race Track The Hollywood Park Race Track, located in Inglewood, - ------------------------- California, conducts two live on-track thoroughbred horse race meets per year. Race dates must be applied for on an annual basis from the California Horse Racing Board (the "CHRB"). The 1997 Spring/Summer Meet ran for 13 weeks, for a total of 66 race days. The Autumn Meeting ran for seven weeks, for a total of 36 race days (race days include three charity days per meet). Live races run Wednesday through Sunday, usually with nine live races 4 a day. The Company also sends the signal of its live races off-track to other locations including fairgrounds, other race tracks, hotels and casinos. In total, the Company simulcasts its live races to 861 locations in 40 states and four countries. The Company also accepts the simulcast signal from live races conducted at other race tracks, including the four other local southern California tracks, and two northern California tracks, which has helped to mitigate the seasonality of the Company's horse racing business by allowing for year round operations. The Company has seen a shift from pari-mutuel wagers placed on its live races, both on-track and off-track, to wagers placed on northern California simulcast races, for which the Company receives a lower pari-mutuel commission rate. The net effect of expanded simulcasting upon pari-mutuel commissions to date has been positive, but there can be no assurance that this effect will continue to be positive. Hollywood Park derives revenues from a share of the pari-mutuel handle at rates fixed by the state of California, admission fees and concession sales. The approximate pari-mutuel percentage commission rates are fixed as follows:
Type of Racing Percent Description - ------------------- -------------- ---------------------------------------------------------------------------------------- On-track 6.60% Wagers placed at Hollywood Park on its live races. Off-track 4.60% Wagers placed on live Hollywood Park races simulcast to California locations other than northern California. Off-track 1.25% Wagers placed on live Hollywood Park races simulcast to northern California. Off-track 1.60% Wagers placed on live Hollywood Park races simulcast out-of-state. Simulcast 2.00% Wagers placed at Hollywood Park on races simulcast from other tracks, except northern California. Simulcast 5.30% Wagers placed at Hollywood Park on races simulcast from northern California. Simulcast 6.30% Wagers placed at Hollywood Park on races simulcast from out-of-state. Simulcast 4.50% Wagers placed on races simulcast from northern California, when Hollywood Park is conducting a live meet, and simulcasting the northern California race to its off-track sites.
Turf Paradise Turf Paradise, located in Phoenix, Arizona, has one continuous - ------------- live thoroughbred meet that starts in September and runs through May. In 1997, Turf Paradise raced live for the period January 1 through May 4, operated as a simulcast facility for the period from May 5 through May 22, and for the period from September 3 through September 24. Turf Paradise resumed live racing on September 27 running through December 31. Along with running live thoroughbreds, Turf Paradise also offers two quarter horse races a day during the first two months of the live meet, and a limited number of arabian races in the winter. Live racing is primarily conducted Friday through Tuesday, with live races sent to approximately 43 off-track sites in Arizona. The live racing signal is also transmitted to approximately 45 out-of-state hubs, from which the signal is further disseminated to 500 sites in four countries. On Monday and Tuesday, Turf Paradise generally conducts 11 live races and accepts a limited number simulcast races from other race tracks. Friday through Sunday, Turf Paradise generally conducts 10 to 11 live races and accepts simulcasts from other race tracks, for a total of approximately 20 to 24 races per day. Wednesday and Thursday Turf Paradise generally operates as a simulcast facility, usually accepting 18 to 24 races from northern and southern California. During the period from late May to early September, Turf Paradise operates as a simulcast facility for Arizona's Prescott Downs and Coconino County Fair. At Turf Paradise, the state of Arizona fixes the pari-mutuel percentage commissions for on-track, and within the state off-track racing as follows:
Win, Place, Two-Horse Three or More Show Pool Horse Pool -------------------- -------------------- -------------------- Live in-state handle 18% 19% 23% Simulcast in-state handle 20% 21% 25%
Turf Paradise also receives approximately 2.0% to 3.5% of the out-of-state off- track pari-mutuel handle wagered on its live races. When operating as a simulcast facility for the smaller northern Arizona race tracks, Turf Paradise receives 3.8% of the pari-mutuel handle generated at Turf Paradise. Turf Paradise also receives 5 any unclaimed pari-mutuel winnings, which totaled approximately $410,000 in 1997. At Hollywood Park, the unclaimed pari-mutuel winnings are turned over to the state of California. Along with the pari-mutuel commission rates earned, Turf Paradise presently receives an additional 1.0% of all in-state handle as reimbursement for capital improvements made to the track in prior years. In 1997, Turf Paradise was reimbursed approximately $270,000 for such capital improvements. The capital improvement credit is scheduled to expire in 1998. In 1997, Turf Paradise also received a hardship tax credit of $411,000 based on the reduction of in-state handle caused by the advent of Indian gaming. Due to the hardship tax credit and the capital improvement credit, Turf Paradise did not have to pay pari-mutuel tax during 1997. It is anticipated that during 1998 Turf Paradise will have to pay approximately $700,000 in pari-mutuel taxes. Sunflower Sunflower owns the Woodlands Race Track located in Kansas City, - --------- Kansas. On May 17, 1996, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code, because the Kansas legislature failed to pass legislation allowing additional forms of gaming at Sunflower, which would have permitted Sunflower to more effectively compete with Missouri riverboat gaming. Sunflower's operating results had dramatically worsened in recent periods due to intense competitive pressure from recently legalized riverboat gaming in nearby Missouri. On March 31, 1996, Hollywood Park recorded a non-cash write off of its approximately $11,412,000 investment in Sunflower. Sunflower continues to operate as a debtor in possession during the bankruptcy proceedings. Sunflower has filed its plan of reorganization with the bankruptcy court and is currently awaiting confirmation of that plan. The plan for reorganization provides for, subject to the approval of federal, state and tribal gaming authorities, the sale of Sunflower to the Wyandotte Tribe of Oklahoma and the construction of a casino on the property. HP Kansas, Inc. and a non-affiliated partner would make loans to fund (up to a currently estimated amount of approximately $15,000,000 to $20,000,000) the acquisition and the development of, provide consulting services to, and receive a share of the revenues of the casino. (See "Item 3 - Legal Proceedings.") Sunflower does not directly earn pari-mutuel commissions, but instead TRAK East pays Sunflower a lease and management fee equal to TRAK East's earnings less certain amounts that TRAK East must retain for distribution to charities. Charity payments totaled $25,000 during 1997. TRAK East conducts live greyhound and horse racing and accepts simulcasts of both. Live greyhound racing runs from January 1 through December 31, with a brief seven day period without racing from December 16 through December 25. Greyhounds generally run Wednesday through Monday, with evening performances every day except Sunday and matinee performances on Wednesday, Saturday and Sunday. During 1997, TRAK East conducted 345 live greyhound performances over 248 race days. Usually there are 13 races per performance, except for Sunday when there are 15 races. Horses ran live from September 21, 1997 through October 24, 1997, racing Wednesday through Sunday, for a total of 22 race days. TRAK East accepts greyhound simulcasting year round from various other tracks. Simulcast racing is held Wednesday through Monday. Simulcasts from various other horse race tracks are also accepted year round. The pari-mutuel commissions earned by TRAK East are set by the state of Kansas. The following percentages represent the final net commission retained by TRAK East: Live greyhounds and horses 12.89% Greyhound simulcasts 10.94% Horse simulcasts 10.54%
Expansion Plans During 1997, Hollywood Park continued to actively pursue all aspects of its strategic plan. The acquisition of Boomtown was finalized on June 30, 1997, with renovations and major asset acquisitions for the benefit of the Boomtown properties starting shortly thereafter. On February 19, 1998, the Company and Casino Magic executed an Agreement and Plan of Merger. The Company expects to continue to pursue its strategic plan during 1998. Pending Merger with Casino Magic Corp. On February 19, 1998, the respective - ------------------------------------- Boards of Directors of Hollywood Park and Casino Magic approved and signed an Agreement and Plan of Merger among Casino Magic Corp., Hollywood Park, Inc., and HP Acquisition II, Inc. (a wholly owned subsidiary of Hollywood Park), 6 pursuant to which HP Acquisition II, Inc., will merge into Casino Magic, and Casino Magic will survive and become a wholly owned subsidiary of Hollywood Park. Hollywood Park will pay cash of $2.27 for each issued and outstanding share of Casino Magic common stock, or an aggregate of approximately $81,000,000. On February 23, 1998, Hollywood Park entered into a voting agreement (the "Voting Agreement") with Marlin F. Torguson ("Mr. Torguson") pursuant to which, among other things, Mr. Torguson has agreed to vote the 7,954,500 shares of Casino Magic common stock he beneficially owns in favor of approval and adoption of the Agreement and Plan of Merger and the Casino Magic Merger and any matter that could reasonably be expected to facilitate the Casino Magic Merger. Mr. Torguson also agreed to continue to serve as an employee of Casino Magic for three years following the Casino Magic Merger, and not to compete with Hollywood Park or Casino Magic in any jurisdictions in which either presently operates. Casino Magic owns and operates dockside and riverboat gaming properties in Bay St. Louis, Mississippi, ("Casino Magic Bay St. Louis") Biloxi, Mississippi ("Casino Magic Biloxi") and Bossier City, Louisiana, ("Casino Magic Bossier") respectively, and is a 51% partner in two land-based casinos in Argentina. Casino Magic Bay St. Louis, started operations in September 1992, on a permanently moored barge in a 17 acre marina with the adjoining land based facilities situated on 591 acres. Bay St. Louis is approximately 46 miles east of New Orleans and 40 miles west of Biloxi. Casino Magic Bay St. Louis offers approximately 39,500 square feet of gaming space, with 1,132 slot machines and 42 table games. The land based building is three stories with a restaurant, buffet, snack bar, gift shop, and a live entertainment lounge. In December 1994, Casino Magic Bay St. Louis also opened the Casino Magic Inn; a 201 room hotel, including four deluxe and 20 junior suites. The property also contains the Magic Dome, an 1,800 seat arena, which hosts approximately 50 events annually, including nationally televised boxing matches, concerts and other special events. With the late 1997 addition of the 18 hole Bridges Golf Resort, Casino Magic Bay St. Louis is positioned as a full service vacation destination. Casino Magic Biloxi began casino operations in June 1993 and is located on the Gulf of Mexico in the Mississippi Gulf Coast Region. The property is situated on the Front Bay on the beach of the Gulf of Mexico in a strip with four other casinos, and is located on the major highway running through the Mississippi Gulf Coast. (Boomtown Biloxi is located on the Back Bay of Biloxi.) Casino Magic Biloxi conducts gaming from a permanently moored barge with approximately 47,700 square feet of gaming space with 1,174 slot machines and 41 gaming tables. The land based facility is located adjacent to the barge on the approximately 11.5 acre site. In late spring 1998, Casino Magic Biloxi expects to open its 378 room luxury hotel (Casino Magic is anticipating a four-star rating for this hotel), to include 16 master suites, 70 junior suites, 6,600 square feet of convention and meeting space, a full service restaurant, and numerous themed retail shops. Casino Magic Biloxi's land based facility is approximately 21,600 square feet and offers buffets, full service restaurants, and nationally franchised fast food services. Casino Magic Bossier opened in October 1996, with casino operations conducted from a dockside riverboat. The property is highly visible with convenient access from Interstate Highway 20, a major thoroughfare between Bossier City/Shreveport and the Dallas-Fort Worth area approximately 180 miles to the west. The Casino Magic Bossier riverboat measures 254 feet long and 78 feet wide with approximately 30,000 square feet of gaming space, and offers 980 slot machines and 44 table games. The Casino Magic Bossier facility includes a 55,000 square foot entertainment pavilion connected to a garage providing parking for approximately 1,400 vehicles. The entertainment pavilion includes the 350 seat Abracadabra buffet restaurant, a gift shop, a bar and lounge area, and a 300 seat live entertainment theater. The entertainment pavilion also includes two smaller full service restaurants. Casino Magic Bossier is just beginning construction on an 188 room hotel with four master suites, 88 junior suites and additional full service restaurants. In December 1994, Casino Magic, through its wholly owned subsidiary, Casino Magic Neuquen SA, ("Casino Magic Argentina") entered into a twelve year concession agreement with the Province of Neuquen, Argentina. Casino Magic Argentina operates two casinos in the Province of Neuquen in the cities of Neuquen and San 7 Martin de los Andes in west-central Argentina. Neuquen Province is the gateway to the well established tour destinations and ski resorts of the Andes Mountains. There are approximately 900,000 residents within a 50 mile radius of the two cities. Casino Magic Argentina, which began operations in January 1995, includes approximately 29,000 square feet of gaming space and contains approximately 64 table games, 400 slot machines and a 384 seat bingo facility. Boomtown Reno The $25,000,000 expansion and renovation of Boomtown Reno is - ------------- underway, and includes a 200 room hotel addition, a complete renovation of the existing gaming floors, 10,000 square feet of new conference and banquet facilities, additional new gaming floor space, a new bus tour lobby and remodeling of the food and beverage facilities. Boomtown New Orleans As of August 8, 1997, Boomtown New Orleans became wholly - -------------------- owned by the Company. Previously, Boomtown New Orleans was owned and operated by a Louisiana limited partnership (the "Louisiana Partnership"), of which 92.5% was owned by Hollywood Park with the remaining 7.5% owned by Eric Skrmetta ("Skrmetta"). On November 18, 1996, Boomtown entered into an agreement with Skrmetta under which it would pay approximately $5,670,000 in return for Skrmetta's interest in the Louisiana Partnership. Under the terms of the agreement, in 1996 Boomtown made a down payment of $500,000, and the Company paid the remaining $5,170,000 on August 8, 1997. On September 25, 1997, Hollywood Park purchased the Boomtown Belle II riverboat from Casino Magic for approximately $11,700,000. Boomtown Belle II is 130 feet longer and 26 feet wider than the previous riverboat. The gaming floors of Boomtown Belle II incorporate a more elegant decor, including escalators to enhance patron traffic flow and allows for more spacious gaming floors. Boomtown Belle II also includes a third deck with 5,000 square feet of banquet or special use facilities. Hollywood Park invested approximately $4,700,000 to renovate and equip Boomtown Belle II. In addition to the purchase of Boomtown Belle II, a $10,000,000 renovation and build-out of the Boomtown New Orleans land based facility is moving forward with the project expected to be completed late summer 1998. The renovation will include a second floor banquet facility, and a restaurant and bar with an arcade venue catering to adults. Upon completion of the renovations, Boomtown New Orleans will be a complete entertainment complex offering entertainment experiences for a wide range of customers. Boomtown Biloxi Boomtown Biloxi is operated by a Mississippi limited - --------------- partnership (the "Mississippi Partnership"), of which 85% is owned and controlled by Hollywood Park, with the remaining 15% owned by Skrmetta. Both Hollywood Park and Skrmetta have an option, exercisable over a four year period, to exchange Skrmetta's interest in the Mississippi Partnership, at Skrmetta's option, for either cash and/or shares of Hollywood Park common stock with an aggregate value equal to the value of Skrmetta's 15% interest in the Mississippi Partnership, with such value determined by a formula set forth in the relevant partnership agreements. On August 13, 1997, Hollywood Park exercised this option and subsequently supplied Skrmetta with the calculation of the value of his 15% interest in the Mississippi Partnership. Skrmetta did not agree to this valuation, and Hollywood Park has initiated arbitration proceedings. The Boomtown Biloxi barge and building shell were owned by National Gaming Mississippi, Inc., a subsidiary of Chartwell Leisure, Inc. ("National Gaming"). Boomtown Biloxi leased these assets from National Gaming under a 25-year lease with a 25-year renewal option, and also received marketing services from National Gaming. National Gaming received 16% of the adjusted earnings before interest, taxes, depreciation and amortization ("Adjusted EBITDA"), as defined in the relevant contract. On August 4, 1997, Hollywood Park executed an agreement pursuant to which one of the Hollywood Park entities purchased the assets for $5,250,000, payable through a down payment of $1,500,000, with the balance paid in three equal annual installments of $1,250,000. The Adjusted EBITDA participation and other related agreements were terminated upon purchase of the assets. In October 1997, Boomtown Biloxi exercised its option to purchase for $1,000,000 a half-acre parcel adjacent to the existing property, which is currently used for valet parking, and may be used for other expansion opportunities in the future. 8 Yakama Expansion Hollywood Park, through its wholly owned subsidiaries HP - ---------------- Yakama, Inc. ("HP Yakama") and HP Yakama Consulting, Inc. ("HPY Consulting"), has entered into agreements with the Yakama Tribal Gaming Corporation (the "Nation") and The Confederated Tribes and Bands of the Yakama Indian Nation (the "Tribes") to fund (through HP Yakama) and consult on (through HPY Consulting) the construction of a casino in Yakima County, Washington. HP Yakama has committed to fund up to $9,000,000 to construct and equip the casino, and the Nation has signed a promissory note to repay up to $9,000,000, at 10% interest over seven years. HP Yakama has also entered into a Master Lease to lease the completed casino and underlying land (the "Facility") from the Tribes, for a seven year term commencing with the opening of the casino, for $12,000 per year, and then to Sublease the Facility to the Nation, for the same seven year term. Rent due from the Nation to HP Yakama, under the Sublease is initially set at 28% of Net Revenues (as defined), until such time as the aggregate Net Revenues equal $26,000,000 and then the rent decreases to 25% of Net Revenues, until such time as the aggregate Net Revenues equal $41,000,000, and then rent decreases to 22% for the remainder of the Sublease period. "Net Revenues" is defined as Gross Revenues less normal and necessary operating expenses as determined under generally accepted accounting principles, to include interest payments due from the Nation to HP Yakama, and to exclude rent due under the Sublease. Furthermore, Hollywood Park has entered into a Profit Participation Agreement with North American Sports Management, Inc. ("NORAM"), which entered into the original Memorandum of Understanding with the Tribes. NORAM will receive 6% of the percentage of the Net Revenues (as described above) received by HP Yakama under the Sublease. Based on a determination from the National Indian Gaming Commission (the "NIGC"), the Consulting Agreement for gaming operations consulting services was terminated and several revisions to the remaining documents were made to remove all references to the Consulting Agreement. As a consequence of such termination and revisions, on or about January 13, 1998, the NIGC approved these transactions. On February 12, 1998, the Washington Gambling Commission (the "WGC") unanimously approved Hollywood Park and its subsidiaries for a Class III Indian Gaming Financier license. No further approvals are necessary from either the federal or the state levels. Construction on the casino is underway, and is expected to open in the second quarter of 1998. The casino will feature a 600 seat bingo hall, certain table games including: Blackjack, Poker, Craps, Roulette, Mini-bac, Caribbean Stud, and will offer electronic pull tabs and electronic bingo, but will not offer slot machines. Gaming is played in the traditional Las Vegas style, where players bet against the house. The casino is located approximately 130 miles from both Seattle, Washington and Portland, Oregon, in a valley at the foot of Mt. Adams, which is a major vacation site. The nearest gaming facility is 157 miles away in Pendelton, Oregon. Proposed Indiana Project The Company, through a joint venture with Hilton - ------------------------ Gaming Corporation, has an application pending for the remaining riverboat gaming license to be awarded for operations on the Ohio River in Indiana. The Company filed an updated application (as a result of the Boomtown Merger) in August 1997. In December 1997, the Indiana Gaming Commission (the "Indiana Commission") met and determined to delay issuing the license until at least April 1998. When it meets then, the Indiana Commission could once again defer any decision regarding granting of the license. There can be no assurance that Hollywood Park will be granted the gaming license or, if granted the initial gaming license, that it will receive all other required approvals and environmental permits necessary to proceed with this project. As amended, the application is for a license in Switzerland County, Indiana which is located approximately 35 miles south of Cincinnati, Ohio. The Indiana facility is planned to include a cruising riverboat with 38,000 square feet of gaming space and supporting land-based facilities that will incorporate a "western river-town" theme entertainment complex with up to 300 hotel rooms, a 700 seat multi-purpose special events room, several restaurants and retail operations. 9 Pursuant to the terms of the joint venture with Hilton Switzerland, Hollywood Park and Hilton Switzerland each own 48.5% of the joint venture entity, with the remaining interests held by a non-voting local minority partner. So long as Hilton Switzerland and Hollywood Park hold their original percentages, they will share management control of the project. In the event the parties no longer hold their original percentages, the party with the larger interest will have management control of the project subject to certain minority protections. Stadium/Arena The Company continues to have discussions with potential stadium - ------------- and arena developers with respect to possible projects on Hollywood Park's Inglewood property; as well as with developers proposing retail, entertainment and other projects for both the Inglewood and Turf Paradise properties. An environmental impact report for a football stadium at Hollywood Park was certified by the city of Inglewood on December 6, 1995. The Company has not entered into any definitive agreements concerning any of these projects. Any decisions to begin these projects would be dependent upon, among other things, the execution of definitive agreements, the availability of project financing with acceptable terms, and the attainment of the necessary permits and certifications, for which there can be no assurance. POSSIBLE RESTORATION OF REAL ESTATE INVESTMENT TRUST/PAIRED-SHARE STRUCTURE Prior to 1991, the Company operated as a "paired share" structure, with the Company (under the name Hollywood Park Realty Enterprises, Inc.) acting as a real estate investment trust ("REIT") and Hollywood Park Operating Company ("HPOC") operating the racing and related operations of the Company. The Company has decided to pursue, subject to stockholder, regulatory and other approval, a corporate reorganization (the "Reorganization") designed to reinstate the paired share structure in which the Company would elect to be treated as a REIT and HPOC, along with its subsidiaries, would conduct certain business operations, including the Company's current gaming, racing and entertainment businesses. In the Reorganization, the shares of HPOC would be spun off to the Company's stockholders and the stock of the Company would be paired with, or stapled to, that of HPOC. Generally, a REIT is required to distribute, as dividends to its stockholders, 95% of its taxable income (other than net capital gains), and such amounts distributed are not subject to federal income tax at the corporate level. In connection with the Reorganization, the Company has submitted to its stockholders a Proxy Statement dated February 13, 1998 relating to its April 13, 1998 annual meeting of stockholders which contains a number of proposals relating to the Reorganization (the "Proxy Statement"). The Proxy Statement contains a detailed description of the Reorganization, including a variety of significant risk factors, including that no rulings will be issued by the Internal Revenue Service in connection with the Reorganization and that stockholders should assume that the spin-off of HPOC and the other Reorganization transactions will constitute taxable transactions which will result in tax liabilities for both the Company and its stockholders. The Company estimates that the corporate level tax liability associated with the Reorganization would be approximately $54 million and the Company's stockholders would be treated as having received a taxable non-cash distribution of approximately $4.95 per share. These estimates are based on the Company's estimate of the fair market value of the shares of HPOC. If such fair market value were found to be significantly greater, it would result in increased corporate level and stockholder level tax liabilities. The Proxy Statement also describes other risks associated with the Reorganization, including the consequences of failing to qualify as a REIT, constraints on future transactions and equity financings, and the potential consequences of proposed legislation which would, if enacted, severely limit the utility of the paired-share structure. For information regarding the Reorganization and the potential tax consequences thereof, interested persons should read the Proxy Statement, a copy of which is filed as an exhibit to this Form 10-K and is incorporated by reference herein. Copies of the Proxy Statement may be obtained directly from the Company upon request. On March 26, 1998, identical bills were introduced in the House and Senate which among other provisions, would preclude Hollywood Park from qualifying as a paired-share Real Estate Investment Trust. There can be no assurance that these bills will be passed as presently proposed, nor in any amended form more favorable to the Company. OTHER USES OF PROPERTY As of October 1, 1996, the Company has been operating the parking for events at the Forum, which is located across the street from the Hollywood Park Race Track, where the Los Angeles Lakers basketball team and Los Angeles Kings hockey team play. Prior to October 1, 1996, the Company leased the parking rights to the Forum for a minimum annual rent of $1,200,000. The Company earned parking revenues of $1,550,000 during 1997. 10 The Company is subject to state and local laws and regulations, ordinances and similar provisions relating to zoning and other matters that may restrict the possible uses of the Company's land and other assets. Any additional development of the Company's land, including the expansion plans described above, would require approval of such items as environmental impact reports and similar certifications. There can be no assurance that other requisite approvals would be obtained. GOVERNMENT REGULATION Casino Operations Nevada The ownership and operation of ----------------- casino gaming facilities in Nevada are subject to: (i) the Nevada Gaming Control Act and the regulations promulgated thereunder (collectively, "Nevada Act"); and (ii) various local regulations. The Company's gaming operations are subject to the licensing and regulatory control of the Nevada Gaming Commission ("Nevada Commission"), the Nevada State Gaming Control Board ("Nevada Board") and Washoe County. The Nevada Commission, the Nevada Board and Washoe County 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 which 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) providing a source of state and local revenues through taxation and licensing fees. Changes in such laws, regulations and procedures could have an adverse effect on Boomtown's gaming operations. Boomtown Hotel & Casino, Inc. (the "Gaming Subsidiary"), which operates Boomtown Reno and two other gaming operations with slot machines only, is required to be licensed by the Nevada Gaming Authorities. The gaming licenses require the periodic payment of fees and taxes and are not transferable. The Company is currently registered by the Nevada Commission as a publicly traded corporation (a "Registered Corporation") and has been found suitable to own the stock of Boomtown, which is registered as an intermediary company ("Intermediary Company"). Boomtown has been found suitable to own the stock of the Gaming Subsidiary, which is a corporate licensee (a "Corporate Licensee") under the terms of the Nevada Act. As a Registered Corporation, the Company is required periodically to submit detailed financial and operating reports to the Nevada Commission and furnish any other information which the Nevada Commission may require. No person may become a stockholder of, or holder of an interest of, or receive any percentage of profits from an Intermediary Company or a Corporate Licensee without first obtaining licenses and approvals from the Nevada Gaming Authorities. The Company, Boomtown and the Gaming Subsidiary have obtained from the Nevada Gaming Authorities the various registrations, findings of suitability, 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, Boomtown or the Gaming Subsidiary in order to determine whether such individual is suitable or should be licensed as a business associate of a gaming licensee. Officers, directors and certain key employees of the Company, Boomtown and the Gaming Subsidiary must file applications with the Nevada Gaming Authorities and may be required to be licensed or found suitable by the Nevada Gaming Authorities. Officers, directors and key employees of the Company and Boomtown who are actively and directly involved in gaming activities of the Gaming Subsidiary may be required to be licensed or found suitable by the Nevada Gaming Authorities. The Nevada Gaming Authorities may deny an application for licensing for any cause which 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 any person's corporate position or job title. 11 If the Nevada Gaming Authorities were to find an officer, director or key employee unsuitable for licensing or unsuitable to continue having a relationship with the Company, Boomtown or the Gaming Subsidiary, the companies involved would have to sever all relationships with such person. In addition, the Nevada Commission may require the Company, Boomtown or the Gaming Subsidiary 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 the Gaming Subsidiary 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 the Gaming Subsidiary must be reported to or approved by the Nevada Commission. If it were determined that the Nevada Act was violated by the Gaming Subsidiary, the gaming licenses it holds could be limited, conditioned, suspended or revoked, subject to compliance with certain statutory and regulatory procedures. In addition, the Company, Boomtown and the Gaming Subsidiary 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. Further, a supervisor could be appointed by the Nevada Commission to operate Boomtown Reno and, under certain circumstances, earnings generated during the supervisor's appointment (except for reasonable rental value of the casino) could be forfeited to the State of Nevada. Limitation, conditioning or suspension of the gaming licenses of the Gaming Subsidiary or the appointment of a supervisor could (and revocation of any gaming license would) materially adversely affect the Company's gaming operations. 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 their 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 a Registered Corporation's voting securities to report the acquisition to the Nevada Commission. The Nevada Act requires that beneficial owners of more than 10% of a Registered Corporation's voting securities apply to the Nevada Commission for a finding of suitability within thirty days after the Chairman of the Nevada Board mails the 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 a Registered Corporation'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 Registered Corporation, any change in the Registered Corporation's corporate charter, bylaws, management, policies or operations of the Registered Corporation, or any of its gaming affiliates, or any other action which the Nevada Commission finds to be inconsistent with holding the Registered Corporation's voting securities for investment purposes only. Activities which 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. 12 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 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, Boomtown or the Gaming Subsidiary, 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 including, if necessary, the immediate purchase of said voting securities for cash at fair market value. The Nevada Commission may, in its discretion, require the holder of any debt security of a Registered Corporation to file applications, be investigated and be 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 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 which 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 that the Company's stock certificates bear a legend indicating that the 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 its securities without the prior approval of the Nevada Commission if the securities or 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. In addition, (i) a Corporate Licensee or Intermediary Company may not guarantee a security issued by a Registered Corporation pursuant to a public offering without the prior approval of the Nevada Commission; and (ii) restrictions upon the transfer of an equity security issued by a Corporate Licensee or an Intermediary Company, and agreements not to encumber such securities (collectively, "Stock Restrictions") are ineffective without the prior approval of the Nevada Commission. Changes in control of a Registered Corporation 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 Nevada Commission in 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 relating to the transaction. The Nevada legislature has declared that some corporate acquisitions opposed by management, repurchases of voting securities and corporate defense tactics affecting Nevada corporate gaming licensees, and Registered Corporations that are affiliated with those operations, may be injurious to stable and 13 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 licensees and their affiliates; (ii) preserve the beneficial aspects of conducting business in the corporate form; and (iii) promote a neutral environment for the orderly governance of corporate affairs. Approvals are, in certain circumstances, required from the Nevada Commission before the Registered Corporation 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 Registered Corporation's Board of Directors in response to a tender offer made directly to the Registered Corporation's stockholders for the purposes of acquiring control of the Registered Corporation. License fees and taxes, computed in various ways depending on the type of gaming or activity involved, are payable to the state of Nevada and to Washoe County, in which the Gaming Subsidiary's operations are conducted. Depending upon the particular fee or tax involved, these fees and taxes are payable either monthly, quarterly or annually and are based upon either: (i) a percentage of the gross revenues received; (ii) the number of gaming devices operated; or (iii) the number of table games operated. A casino entertainment tax is also paid by casino operations where entertainment is furnished in connection with the serving or selling of food or refreshments or the selling of any merchandise. 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 such Licensee's participation in such foreign gaming. The revolving fund is subject to increase or decrease in the discretion of the Nevada Commission. Thereafter, Licensees are 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 finding of suitability in Nevada on the grounds of personal unsuitability. Mississippi The ownership and operation of casino facilities in Mississippi are subject to extensive state and local regulation. Regulation is primarily effected through the licensing and regulatory control of the Mississippi Gaming Commission and the Mississippi State Tax Commission (the "Mississippi Gaming Authorities"). The Mississippi Gaming Control Act (the "Mississippi Act"), which legalized dockside casino gaming in Mississippi, is similar to the Nevada Gaming Control Act. The Mississippi Gaming Commission has adopted regulations which are also similar in many respects to the Nevada gaming regulations. The laws, regulations and supervisory procedures of Mississippi and the Mississippi Gaming Commission seek to: (i) prevent unsavory or unsuitable persons from having any direct or indirect involvement with gaming at any time or in any capacity; (ii) establish and maintain responsible accounting practices and procedures; (iii) maintain effective control over the financial practices of licensees, including establishing minimum procedures for internal fiscal affairs and safeguarding of assets and revenues, providing reliable record keeping and making periodic reports to the Mississippi Gaming Commission; (iv) prevent cheating and fraudulent practices; (v) provide a source of state and local revenues through taxation and licensing fees; and (vi) ensure that gaming licensees, to the extent practicable, employ Mississippi residents. The regulations are subject to amendment and interpretation by the Mississippi Gaming Commission. Changes in Mississippi laws or regulations could have an adverse effect on the Company and the Company's Biloxi, Mississippi gaming operations. 14 The Mississippi Act provides for legalized dockside gaming at the discretion of the 14 counties that either border the Gulf Coast or the Mississippi River, but only if the voters in such counties have not voted to prohibit gaming in that county. As of August 1, 1997, dockside gaming was permissible in nine of the fourteen eligible counties in the State and gaming operations had commenced in Adams, Coahoma, Hancock, Harrison, Tunica, Warren and Washington counties. Under Mississippi law, gaming vessels must be located on the Mississippi River or on navigable waters in eligible counties along the Mississippi River or in the waters lying south of the counties along the Mississippi Gulf Coast. The law permits unlimited stakes gaming on permanently moored vessels on a 24-hour basis and does not restrict the percentage of space which may be utilized for gaming. The Mississippi Act permits substantially all traditional casino games and gaming devices and, on August 11, 1997, a Mississippi lower court ruled that the Mississippi Act also permits race books on the premises of licensed casinos. The Mississippi Gaming Commission has not yet determined whether it will appeal that decision. The Company and any subsidiary of the Company (or partnership in which the subsidiary is a partner) that operates a casino in Mississippi (a "Mississippi Gaming Subsidiary"), is subject to the licensing and regulatory control of the Mississippi Gaming Authorities. Hollywood Park is currently registered with the Mississippi Gaming Commission as a publicly traded corporation and has been found suitable to own the stock of Boomtown, which is currently registered with the Mississippi Gaming Commission as an intermediary company. Boomtown has been found suitable to own the limited partnership interests of Mississippi - I Gaming, L.P., the operator of Boomtown Biloxi and a licensee of the Mississippi Gaming Commission, and to own the stock of the corporate general partner of the partnership. Hollywood Park is required periodically to submit detailed financial and operating reports to the Mississippi Gaming Commission and furnish any other information which the Mississippi Gaming Commission may require. If the Company is unable to continue to satisfy the registration requirements of the Mississippi Act, the Company and its Mississippi Gaming Subsidiaries cannot own or operate gaming facilities in Mississippi. Each Mississippi Gaming Subsidiary must obtain gaming licenses from the Mississippi Gaming Commission to operate casinos in Mississippi. A gaming license is issued by the Mississippi Gaming Commission subject to certain conditions, including continued compliance with all applicable state laws and regulations and physical inspection of the casinos prior to opening. There are no limitations on the number of gaming licenses which may be issued in Mississippi. Gaming licenses are not transferable, are initially issued for a two-year period and must be renewed periodically thereafter. Boomtown Biloxi's gaming license was renewed in 1996 for a two-year period expiring June 20, 1998. No person may become a shareholder of or receive any percentage of profits from an intermediary company or a gaming licensee subsidiary of a holding company without first obtaining licenses and approvals from the Mississippi Gaming Commission. The Company has obtained such approvals in connection with the licensing of Boomtown Biloxi and the registration of Hollywood Park as a publicly-traded holding company. Certain officers and employees of Hollywood Park and the officers, directors and certain key employees of the Company's Mississippi Gaming Subsidiary must be found suitable or be investigated by the Mississippi Gaming Commission. The Company believes that findings of suitability with respect to such persons associated with Boomtown Biloxi have been applied for or obtained. However, the Mississippi Gaming Commission in its discretion may require additional persons to file applications for suitability. Employees associated with gaming must obtain work permits that are subject to immediate suspension under certain circumstances. In addition, any person having a material relationship or involvement with the Company may be required to be found suitable or licensed, in which case those persons must pay the costs and fees associated with such investigation. The Mississippi Gaming Commission may deny an application for a license for any cause that it deems reasonable. Changes in licensed positions must be reported to the Mississippi Gaming Commission. In addition to its authority to deny an application for a license, the Mississippi Gaming Commission has jurisdiction to disapprove a change in any person's corporate position or job title, such changes must be reported to the Mississippi Gaming Commission. The Mississippi Gaming Commission has the power to require any Mississippi Gaming Subsidiary and the Company to suspend or 15 dismiss officers, directors and other key employees or sever relationships with other persons who refuse to file appropriate applications or whom the authorities find unsuitable to act in such capacities. At any time, the Mississippi Gaming Commission has the power to investigate and require the finding of suitability of any record or beneficial shareholder of the Company. Mississippi law requires any person who acquires more than 5% of the common stock of a registered publicly traded holding company to report the acquisition to the Mississippi Gaming Commission, and such person may be required to be found suitable. Also, any person who becomes a beneficial owner of more than 10% of a registered publicly-traded holding company's common stock, as reported to the Securities and Exchange Commission, must apply for a finding of suitability by the Mississippi Gaming Commission and must pay the costs and fees that the Mississippi Gaming Commission incurs in conducting the investigation. The Mississippi Gaming Commission has generally exercised its discretion to require a finding of suitability of any beneficial owner of more than 5% of a registered publicly-traded holding company's common stock. However, the Mississippi Gaming Commission has adopted a policy that could permit certain institutional investors to beneficially own up to 10% of a public company's stock without a finding of suitability. If a shareholder 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. Any person who fails or refuses to apply for a finding of suitability or a license within 30 days after being ordered to do so by the Mississippi Gaming Commission 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 person found unsuitable and who holds, directly or indirectly, any beneficial ownership of the securities of the Company beyond such time as the Mississippi Gaming Commission prescribes, may be guilty of a misdemeanor. The Company is subject to disciplinary action if, after receiving notice that a person is unsuitable to be a shareholder or to have any other relationship with the Company or its Mississippi Gaming Subsidiaries, the Company: (i) pays the unsuitable person any dividend or other distribution upon the voting securities of the Company; (ii) recognizes the exercise, directly or indirectly, of any voting rights conferred by securities of the Company held by the unsuitable person; (iii) pays the unsuitable person any remuneration in any form for services rendered or otherwise, except in certain limited and specific circumstances; or (iv) fails to pursue all lawful efforts to require the unsuitable person to divest himself of the securities, including, if necessary, the immediate purchase of the securities for cash at a fair market value. The Company may be required to disclose to the Mississippi Gaming Commission, upon request, the identities of the holders of any of the Company's debt securities. In addition, the Mississippi Gaming Commission under the Mississippi Act may, in its discretion, (i) require holders of securities of registered corporations, including debt securities, to file applications, (ii) investigate such holders, and (iii) require such holders to be found suitable to own such securities or receive distributions thereon. If the Mississippi Gaming Commission determines that a person is unsuitable to own such security, then the issuer may be sanctioned, including the loss of its approvals, if without the prior approval of the Mississippi Gaming 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. Although the Mississippi Gaming Commission generally does not require the individual holders of obligations such as the Notes to be investigated and found suitable, the Mississippi Gaming Commission retains the discretion to do so for any reason, including but not limited to a default, or where the holder of the debt instrument exercises a material influence over the gaming operations of the entity in question. Any holder of debt securities required to apply for a finding of suitability must pay all investigative fees and costs of the Mississippi Gaming Commission in connection with such an investigation. The Mississippi Gaming Subsidiary must maintain a current stock ledger in its principal office in Mississippi and the Company must maintain a current list of stockholders in the principal offices of the Mississippi Gaming Subsidiary which must reflect the record ownership of each outstanding share of any class of equity security issued by Hollywood Park. The stockholder list may thereafter be maintained by adding reports 16 regarding the ownership of such securities that it receives from Hollywood Park's transfer agent. The ledger and stockholder lists must be available for inspection by the Mississippi Gaming Commission at any time. If any securities of Hollywood Park 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 Mississippi Gaming Commission. A failure to make such disclosure may be grounds for finding the record holder unsuitable. Hollywood Park must also render maximum assistance in determining the identity of the beneficial owners. The Mississippi Act requires that the certificates representing securities of a publicly-traded corporation (as defined in the Mississippi Act) bear a legend to the general effect that such securities are subject to the Mississippi Act and the regulations of the Mississippi Gaming Commission. The Mississippi Gaming Commission has the power to impose additional restrictions on the holders of the Company's securities at any time. The Company has received a waiver from this legend requirement from the Mississippi Gaming Commission. Substantially all loans, leases, sales of securities and similar financing transactions by a Mississippi Gaming Subsidiary must be reported to or approved by the Mississippi Gaming Commission. A Mississippi Gaming Subsidiary may not make an issuance or a public offering of its securities. Similarly, the equity interests of the Mississippi Gaming Subsidiary may not be pledged without the prior approval of the Mississippi Gaming Commission. The Company may not make an issuance or public offering of its securities without the prior approval of the Mississippi Gaming Commission if any part of the proceeds of the offering are to be used to finance the construction, acquisition or operation of gaming facilities in Mississippi or to retire or extend obligations incurred for one or more such purposes. Such approval, if given, does not constitute a recommendation or approval of the investment merits of the securities subject to the offering. Any representation to the contrary is unlawful. Under the regulations of the Mississippi Gaming Commission, the Mississippi Gaming Subsidiary may not guarantee a security issued by an affiliated company pursuant to a public offering, or pledge its assets to secure payment or performance of the obligations evidenced by the security issued by the affiliated company, without the prior approval of the Mississippi Gaming Commission. The pledge of the stock of a Mississippi Gaming Subsidiary and the foreclosure of such a pledge is ineffective without the prior approval of the Mississippi Gaming Commission. Moreover, restrictions on the transfer of an equity security issued by a Mississippi Gaming Subsidiary and agreements not to encumber such securities (the "Stock Restrictions") are ineffective without the prior approval of the Mississippi Gaming Commission. Change in control of the Company through merger, consolidation, acquisition of assets, management or consulting agreements or any form of takeover, and certain recapitalizations and stock purchases by Hollywood Park, cannot occur without the prior approval of the Mississippi Gaming Commission. Entities seeking to acquire control of a registered corporation must satisfy the Mississippi Gaming Commission in a variety of stringent standards prior to assuming control of such registered corporation. The Mississippi Gaming 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 relating to the transaction. The Mississippi legislature has declared that some corporate acquisitions opposed by management, repurchases of voting securities and other corporate defense tactics that affect corporate gaming licensees in Mississippi and corporations whose stock is publicly traded that are affiliated with those licensees, may be injurious to stable and productive corporate gaming. The Mississippi Gaming Commission has established a regulatory scheme to ameliorate the potentially adverse effects of these business practices upon Mississippi's gaming industry and to further Mississippi'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 environment for the orderly governance of corporate affairs. Approvals are, in certain circumstances, required from the Mississippi Gaming Commission before the Company may make exceptional repurchases of voting securities above the current market price of its common stock (commonly called "greenmail") or before a corporate acquisition opposed by management may be consummated. 17 Mississippi's gaming regulations will also require prior approval by the Mississippi Gaming Commission if the Company adopts a plan of recapitalization proposed by its Board of Directors opposing a tender offer made directly to the shareholders for the purpose of acquiring control of the Company. Neither the Company nor any subsidiary may engage in gaming activities in Mississippi while also conducting gaming operations outside of Mississippi without approval of the Mississippi Gaming Commission. The Mississippi Gaming Authorities may require determinations that, among other things, there are means for the Mississippi Gaming Authorities to have access to information concerning the out-of-state gaming operations of the Company and its affiliates. The Mississippi Gaming Commission must approve any future gaming operations of the Company outside Mississippi. The Mississippi Gaming Commission has approved the Company's operations in Nevada, California and Louisiana but must approve the Company's operations in any other jurisdictions. If the Mississippi Gaming Commission decides that a Mississippi Gaming Subsidiary violated a gaming law or regulation, the Mississippi Gaming Commission could limit, condition, suspend or revoke the license of the Mississippi Gaming Subsidiary, subject to compliance with certain statutory and regulatory procedures. In addition, a Mississippi Gaming Subsidiary, the Company and the persons involved could be subject to substantial fines for each separate violation. Because of such a violation, the Mississippi Gaming Commission could seek to appoint a supervisor to operate the casino facilities. Limitation, conditioning or suspension of any gaming license or the appointment of a supervisor could (and revocation of any gaming license would) materially adversely affect the Company and the Mississippi Gaming Subsidiary's gaming operations and the Company's results of operations. License fees and taxes, computed in various ways depending on the type of gaming involved, are payable to the State of Mississippi and to the counties and cities in which a Mississippi Gaming Subsidiary's respective operations will be conducted. Depending upon the particular fee or tax involved, these fees and taxes are payable either monthly, quarterly or annually and are based upon (i) a percentage of the gross gaming revenues received by the casino operation, (ii) the number of slot machines operated by the casino or (iii) the number of table games operated by the casino. The license fee payable to the State of Mississippi is based upon "gaming receipts" (generally defined as gross receipts less pay outs to customers as winnings) and equals 4% of gaming receipts of $50,000 or less per month, 6% of gaming receipts over $50,000 and less than $134,000 per month, and 8% of gaming receipts over $134,000. The foregoing license fees are allowed as a credit against the licensee's Mississippi income tax liability for the year paid. In October 1994, the Mississippi Gaming Commission adopted two new regulations. Under the first regulation, as condition of licensure or license renewal, casino vessels on the Mississippi Gulf Coast that are not self-propelled must be moored to withstand a Category 4 hurricane with 155 mile-per-hour winds and 15-foot tidal surge. Boomtown Biloxi believes that it currently meets this requirement. The second regulation requires as a condition of licensure or license renewal that a gaming establishment's plan include a 500-car parking facility in close proximity to the casino complex and infrastructure facilities, the expenditures for which will amount to at least 25% of the casino cost. Such facilities shall include any of the following: a 250-room hotel of at least a two-star rating as defined by the current edition of the Mobil Travel Guide, a theme park, golf courses, marinas, a tennis complex, entertainment facilities, or any other such facility as approved by the Mississippi Gaming Commission as infrastructure. Parking facilities, roads, sewage and water systems, or facilities normally provided by cities and/or counties are excluded. The Mississippi Gaming Commission may in its discretion reduce the number of rooms required, where it is shown to the Commission's satisfaction that sufficient rooms are available to accommodate the anticipated visitor load. The Company believes that Boomtown Biloxi currently meets such requirements and was relicensed by the Mississippi Gaming Commission effective June 20, 1996 for an additional two-year period. The Company has commissioned a study to recommend alternatives for additional development at Boomtown Biloxi, but the Company has made no definitive plans with respect to any further development. In late 1997, members of the senior staff of the Mississippi Gaming Commission and members of the Commission informally advised the Company that they believe Boomtown Biloxi has complied with the infrastructure requirement. However, Boomtown Biloxi is 18 subject to relicensing in June of 1998 and it is possible that the Mississippi Gaming Commission could require further development at Boomtown Biloxi in connection with the relicensing. The sale of food or alcoholic beverages at the Boomtown Biloxi property is subject to licensing, control and regulation by the applicable state and local authorities. The agencies involved have full power to limit, condition, suspend or revoke any such license, and any such disciplinary action could (and revocation would) have a material adverse effect upon the operations of the affected casino or casinos. Certain officers and managers of the Company and Boomtown Biloxi must be investigated by the Alcoholic Beverage Control Division of the State Tax Commission (the "ABC") in connection with Boomtown Biloxi's liquor permits. Changes in licensed positions must be approved by the ABC. Louisiana The ownership and operation of a riverboat gaming vessel is subject to the Louisiana Riverboat Economic Development and Gaming Control Act (the "Louisiana Act"). As of May 1, 1996, gaming activities are regulated by the Louisiana Gaming Control Board (the "Board"). The Board is responsible for issuing the gaming license and enforcing the laws, rules and regulations relative to riverboat gaming activities. The Board is empowered to issue up to 15 licenses to conduct gaming activities on a riverboat of new construction in accordance with applicable law. However, no more than six licenses may be granted to riverboats operating from any one parish. The laws and regulations of Louisiana seek to (i) prevent unsavory or unsuitable persons from having any direct or indirect involvement with gaming at any time or in any capacity; (ii) establish and maintain responsible accounting practices and procedures; (iii) maintain effective control over the financial practices of licensees, including establishing procedures for reliable record keeping and making periodic reports to the Board; (iv) prevent cheating and fraudulent practices; (v) provide a source of state and local revenues through fees; and (vi) ensure that gaming licensees, to the extent practicable, employ and contract with Louisiana residents, women and minorities. The Louisiana Act specifies certain restrictions and conditions relating to the operation of riverboat gaming, including but not limited to the following: (i) gaming is not permitted while a riverboat is docked, other than for forty-five minutes between excursions, unless dangerous weather or water conditions exist; (ii) each round trip riverboat cruise may not be less than three nor more than eight hours in duration, subject to specified exceptions; (iii) agents of the Board are permitted on board at any time during gaming operations; (iv) gaming devices, equipment and supplies may be purchased or leased from permitted suppliers; (v) gaming may only take place in the designated river or waterway; (vi) gaming equipment may not be possessed, maintained, or exhibited by any person on a riverboat except in the specifically designated gaming area, or a secure area used for inspection, repair, or storage of such equipment; (vii) wagers may be received only from a person present on a licensed riverboat; (viii) persons under 21 are not permitted in designated gaming areas; (ix) except for slot machine play, wagers may be made only with tokens, chips, or electronic cards purchased from the licensee aboard a riverboat: (x) licensees may only use docking facilities and routes for which they are licensed and may only board and discharge passengers at the riverboat's licensed berth; (xi) licensees must have adequate protection and indemnity insurance; (xii) licensees must have all necessary federal and state licenses, certificates and other regulatory approvals prior to operating a riverboat; and (xiii) gaming may only be conducted in accordance with the terms of the license and the rules and regulations adopted by the Board. No person may receive any percentage of the profits from Boomtown New Orleans without first being found suitable. In March 1994, Boomtown New Orleans, its officers, key personnel, partners and persons holding a 5% or greater interest in the partnership were found suitable by the predecessor to the Board. A gaming license is deemed to be a privilege under Louisiana law and as such may be denied, revoked, suspended, conditioned or limited at anytime by the Board. In issuing a license, the Board must find that the applicant is a person of good character, honesty and integrity and the applicant is a person whose prior activities, criminal record, if any, reputation, habits and associations do not pose a threat to the public interest of the State of Louisiana or to the effective regulation and control of gaming, or create or enhance the dangers of unsuitable, unfair or illegal practices, methods, and activities in the conduct of gaming or the carrying on of 19 business and financial arrangements in connection therewith. The Board will not grant any licenses unless it finds that: (i) the applicant is capable of conducting gaming operations, which means that the applicant can demonstrate the capability, either through training, education, business experience, or a combination of the above to operate a gaming casino; (ii) the proposed financing of the riverboat and the gaming operations is adequate for the nature of the proposed operation and from a source suitable and acceptable to the Board; (iii) the applicant demonstrates a proven ability to operate a vessel of comparable size, capacity and complexity to a riverboat in its application for a license; (iv) the applicant designates the docking facilities to be used by the riverboat; (v) the applicant shows adequate financial ability to construct and maintain a riverboat; (vi) the applicant has a good faith plan to recruit, train and upgrade minorities in all employment classifications; and (vii) the applicant is of good moral character. The Board may not award a license to any applicant who fails to provide information and documentation to reveal any fact material to qualifications or who supplies information which is untrue or misleading as to a material fact pertaining to the qualification criteria; who has been convicted of or pled nolo contendere to an offense punishable by imprisonment of more than one year; who is currently being prosecuted for or regarding whom charges are pending in any jurisdiction of an offense punishable by more than one year imprisonment; if any holder of 5% or more in the profits and losses of the applicant has been convicted of or pled guilty or nolo contendere to an offense which at the time of conviction is punishable as a felony. The transfer of a license is prohibited. The sale, assignment, transfer, pledge or disposition of securities which represent 5% or more of the total outstanding shares issued by a holder of a license is subject to prior Board approval. A security issued by a holder of a license must generally disclose these restrictions. Section 2501 of the regulations enacted by the Riverboat Gaming Division of the Louisiana State Police (the investigative and enforcement entity under the Louisiana regulatory scheme) pursuant to the Louisiana Act (the "Regulations") requires prior written approval of the Board of all persons involved in the sale, purchase, assignment, lease, grant or foreclosure of a security interest, hypothecation, transfer, conveyance or acquisition of an ownership interest (other than in a corporation) or economic interest of five percent (5%) or more in any licensee. Section 2523 of the Regulations requires notification to and prior approval from the Board of the (a) application for, receipt, acceptance or modification of a loan, or the (b) use of any cash, property, credit, loan or line of credit, or the (c) guarantee or granting of other forms of security for a loan by a licensee or person acting on a licensee's behalf. Exceptions to prior written approval apply to any transaction for less than $2,500,000 in which all of the lending institutions are federally regulated or if the transaction involves publicly registered debt and securities sold pursuant to a firm underwriting agreement. The failure of a licensee to comply with the requirements set forth above may result in the suspension or revocation of that licensee's gaming license. Additionally, if the Board finds that the individual owner or holder of a security of a corporate license or intermediary company or any person with an economic interest in a licensee is not qualified under the Louisiana Act, the Board may require, under penalty of suspension or revocation of the license, that the person not (a) receive dividends or interest on securities of the corporation, (b) exercise directly or indirectly a right conferred by securities of the corporation, (c) receive remuneration or economic benefit from the licensee, or (d) continue in an ownership or economic interest in the licensee. A licensee must periodically report the following information to the Board, which is not confidential and is to be available for public inspection; the licensee's net gaming proceeds from all authorized games; the amount of net gaming proceeds tax paid; and all quarterly and annual financial statements presenting historical data that are submitted to the Board, including annual financial statements that have been audited by an independent certified public accountant. The Board has adopted rules governing the method for approval of the area of operations, the rules and odds of authorized games and devices permitted, and prescribing grounds and procedures for the revocation, limitation or suspension of licenses and permits. 20 On April 19, 1996, the Louisiana legislature adopted legislation requiring statewide local elections on a parish-by-parish basis to determine whether to prohibit or continue to permit licensed riverboat gaming, licensed video poker gaming, and licensed land-based gaming in Orleans Parish. The applicable local election took place on November 5, 1996, and approximately two thirds of the voters in the parish of Boomtown New Orleans voted to continue licensed riverboat and video poker gaming. However, it is noteworthy that the current legislation does not provide for any moratorium on future local elections on gaming. Thus, although the Company does not anticipate another election in the near future, there can be no assurance that a new election will not be called to discontinue gaming within the parish. California Operation of California card club casinos such as the Hollywood Park-Casino and the Crystal Park Casino is governed by the California Gambling Control Act (the "CGCA") and is subject to the oversight of the California Attorney General (the "Attorney General"). Under the CGCA, a California card club casino may only offer certain forms of card games, including Poker, Pai Gow, and California Blackjack. A card club casino may not offer many of the card games and other games of chance permitted in Nevada and other jurisdictions where Boomtown conducts business. Although the California Attorney General takes the position that, under the CGCA, only individuals, partnerships or privately held companies (as opposed to publicly traded companies such as Hollywood Park) are eligible to operate card club casinos, the January 1, 1998, enactment of California Senate Bill 8 ("SB- 8") permitted a publicly owned racing association to own and operate a card club casino if it also owned and operated a race track on the same premises. Pursuant to the CGCA, the operator of a card club casino, and its officers, directors and certain stockholders are required to be licensed by the Attorney General and licensed by the municipality in which it is located. Hollywood Park presently holds a provisional license to operate the Hollywood Park-Casino. A permanent license will not be granted until the California Department of Justice completes its review of the applications of Hollywood Park and its corporate officers and directors. The Attorney General has broad discretion to deny a gaming license and may impose reasonably necessary conditions upon the granting of a gaming license. Grounds for denial include felony convictions, criminal acts, convictions involving dishonesty, illegal gambling activities, and false statements on a gaming application. Such grounds also generally include having a financial interest in a business or organization that engages in gaming activities that are illegal under California law; however, this provision contains an exception for publicly traded racing associations such as Hollywood Park. In addition, the Attorney General possesses broad authority to suspend or revoke a gaming license on any of the foregoing grounds, as well as for violation of any federal, state or local gambling law, failure to take reasonable steps to prevent dishonest acts or illegal activities on the premises of the card club casino, failure to cooperate with the Attorney General in its oversight of the card club casino and failure to comply with any condition of the gaming license. Hollywood Park's operations at the Hollywood Park-Casino are also regulated by a City of Inglewood ordinance (the "Inglewood Ordinance"). The Inglewood Ordinance provides for a single card club casino located on the premises of the Hollywood Park Race Track and requires Hollywood Park, as the operator of the Hollywood Park-Casino, to be licensed by the City of Inglewood and to obtain a card club operations certificate. The Inglewood City Council approved Hollywood Park's application for a gaming license and on August 21, 1996 Hollywood Park was granted the required card club operations certificate. Hollywood Park's city gaming license and operations certificate are valid for five years unless revoked, suspended or surrendered, and are renewable annually thereafter. In addition to Hollywood Park, the Inglewood Ordinance also requires all employees, each beneficial owner of at least 10% of the outstanding Hollywood Park common stock, and certain key employees of Hollywood Park to have either a permit or a valid registration from the City of Inglewood. The license to operate the card club casino may be suspended or revoked if such a stockholder or employee fails to obtain a permit. Without the prior consent of the City of Inglewood, a 10% stockholder may not transfer or sell its Hollywood Park shares to any person who is, or by reason of such transaction would become, a 10% stockholder. These licensing 21 requirements and transfer restrictions apply to all 10% stockholders of Hollywood Park, and no waiver from such requirements or restrictions are provided for institutional or other investors who purchase for investment purposes only. The City of Compton has granted CCM, the operator of the Crystal Park Casino, all municipal gaming licenses necessary for operating the Crystal Park Casino, and CCM is operating under a conditional registration from the California Department of Justice. Racing Operations California The California Horse Racing Board ("CHRB") has - ----------------- jurisdiction and supervision over all horse race meets in the State of California. Licenses granted by the CHRB must be obtained annually by Hollywood Park in order to conduct both the Spring/Summer and Autumn race meets. The CHRB has the authority, when granting any license, to vary the number of weeks allocated to any applicant and the time of year in which such allocation falls. The CHRB may, at its discretion, refuse to issue a license to a race track operator such as Hollywood Park that has a financial interest in another licensed race track operation or in the conduct of horse racing meets by any other person at any other race track in California. Although no future assurance can be given, Hollywood Park has applied for and received a license to conduct thoroughbred horse race meets every year since 1938, except for 1942 and 1943 due to wartime activities. Arizona The Arizona Racing Commission ("ARC") has jurisdiction and supervision over all racing activities in the State of Arizona. The ARC issues live racing permits that are valid for three years, and off-track permits are granted on a year to year basis. In June 1997, Turf Paradise received a live racing permit from the ARC, which will remain in force through the 1999/2000 race year. The permit specifies that live racing may be conducted between the first week of September through the third week of May and that, so long as there is live racing at Turf Paradise at least five days a week, Turf Paradise may have simulcast wagering on days when there is no live racing. Kansas The Kansas Racing Commission ("KRC") has jurisdiction and supervision over all racing activity in the State of Kansas. The KRC has granted Sunflower a license to own and manage the Woodlands facility; however, the license to conduct races for all race days until the year 2014 has been granted to TRAK East, an unaffiliated non-profit entity. Sunflower in turn provides management services to TRAK East. Sunflower has an agreement with TRAK East to provide the physical race tracks along with management and consulting services for twenty five years, with options to renew for one or more successive five year terms. (See "Item 1 - Description of Business - Racing Operations - Sunflower.") COMPETITION Hollywood Park faces significant competition in each of the jurisdictions in which it has established gaming operations, and such competition is expected to intensify as new gaming operations enter these markets and existing competitors expand their operations. The Company's Boomtown properties compete directly with other casinos in Nevada, Mississippi and Louisiana. To a lesser extent, Hollywood Park also competes for customers with other casino operators in North American markets, including casinos located on Indian reservations, and other forms of gaming such as lotteries. Several of Hollywood Park's competitors have substantially greater name recognition and marketing resources as well as access to lower cost sources of financing. In many cases, these competitors have significantly greater capital which may afford them a greater opportunity to obtain gaming licenses in jurisdictions which limit the number of licenses. Moreover, consolidation of companies in the gaming industry could increase the concentration of large gaming companies in Louisiana and Mississippi, and other emerging gaming markets, and may result in Hollywood Park's competitors having even greater resources, name recognition and licensing prospects than such competitors currently enjoy. In Mississippi, competing casino operations have expanded rapidly and, as a result, the Mississippi Gulf Coast market is experiencing significant dilution in gaming win per position, and a number of casinos in the Mississippi Gulf Coast market have failed. Further, two additional rival casinos are being planned, a 1,800 room hotel and casino in Biloxi by Mirage Resorts, and in nearby Bay St. Louis, a 1,500 room hotel and casino by Circus Circus. Also, Imperial Palace recently opened a 1,050 room hotel and casino in Biloxi. While the Company believes it has been able to effectively compete in these markets to date, there is no assurance that increasing competition will not adversely affect Hollywood Park's gaming operations in the future. Hollywood Park believes that increased legalized gaming in other states, 22 particularly in areas close to its existing gaming properties, could adversely affect its operations without necessarily being offset by increased revenues in jurisdictions in which Hollywood Park operates. The Hollywood Park-Casino faces competition from card club casinos in neighboring cities, including three card club casinos of similar size to the Hollywood Park-Casino located within 12 miles of the Hollywood Park-Casino (two additional, though smaller, card clubs within 15 miles of Hollywood Park-Casino are scheduled to open in 1998), from card club casinos and other forms of gaming located on Indian reservations and from full fledged casinos operating in Nevada. Many card club casinos in the Los Angeles area have a significant geographical advantage over the Hollywood Park- Casino, due in large part to their closer proximity to large Asian-American populations who comprise a large percentage of card club casino patrons. There is intense competition for gaming development opportunities in jurisdictions that have recently legalized gaming, as most jurisdictions strictly limit the number of gaming licenses granted, and therefore only a small number of gaming facilities can be developed in any such jurisdiction. There can be no assurance that Hollywood Park will be able to compete effectively in the acquisition of new gaming licenses in the future. Failure to do so could negatively affect the growth potential of Hollywood Park. Hollywood Park's racing operations have been adversely impacted by the proliferation of additional thoroughbred racing opportunities (including simulcasting and off-track wagering) and the proliferation of other gaming establishments. Hollywood Park believes that such establishments have had a material impact on the operating results and growth prospects of its racing operations. FEDERAL INCOME TAX MATTERS The Company accounts for income taxes under Statement of Financial Accounting Standards No. 109 Accounting for Income Taxes, whereby deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. As of December 31, 1997, the Company had federal net operating loss ("NOL") and capital loss ("CL") carryforwards of approximately $17,800,000, and $8,600,000, respectively, comprised principally of NOL carryforwards acquired in the Boomtown Merger, and CL carryforwards resulting from the disposition of Boomtown's Las Vegas property. The NOL carryforwards expire on various dates through 2012, and the CL carryforwards expire on various dates through 2002. In addition, the Company has approximately $400,000 of general business tax credits, comprised principally of FICA credits, and approximately $3,800,000 of alternative minimum tax credits available to reduce future federal income taxes. These tax credits generally cannot reduce federal taxes paid below the amount of alternative minimum tax. The general business tax credits expire in 2000. The alternative minimum tax credits do not expire. Under several provisions of the Internal Revenue Code (the "Code") and the regulations promulgated thereunder, the utilization of NOL, CL and tax credit carryforwards to reduce tax liability is restricted under certain circumstances. Events which cause such a limitation include, but are not limited to, certain changes in the ownership of a corporation. The Boomtown Merger caused such a change in ownership with respect to Boomtown. As a result, the Company's use of approximately $14,800,000 of Boomtown's NOL carryforwards, $1,400,000 of Boomtown's CL carryforwards, and $3,400,000 of Boomtown's tax credit carryforwards is subject to certain limitations imposed by Sections 382 and 383 of the Code and by the separate return limitation year rules of the consolidated return regulations. These limitations restrict the amount of such carryforwards that may be used by the Company in any taxable year and, consequently, are expected to defer the Company's use of a substantial portion of such carryforwards and may ultimately prevent the Company's use of a portion thereof. Therefore, a valuation allowance has been recorded related to the Boomtown carryforwards. For California tax purposes, as of December 31, 1997, the Company also had approximately $11,700,000 of Los Angeles Revitalization Zone ("LARZ") tax credits. The LARZ tax credits can only be used to reduce certain California tax liability and cannot be used to reduce federal tax liability. A valuation allowance has been recorded with respect to the LARZ tax credits because the Company may not generate enough income subject to California tax to utilize the LARZ tax credits before they expire. 23 For a discussion of certain additional tax issues, see "Item 1. Description of Business, Possible Restoration of Real Estate Investment Trust/Paired-Share Structure." EMPLOYEES The following is a summary of Hollywood Park's employees by property:
PERMANENT SEASONAL TOTAL STAFFING Property STAFF STAFF RANGE - ------------------------------------------------- ----------------- ---------------- -------------------- Hollywood Park-Casino 1,448 -- 1,448 Boomtown Reno 950 300 950 - 1,250 Boomtown New Orleans 1,007 -- 1,007 Boomtown Biloxi 981 -- 981 Hollywood Park Race Track 904 1,040 904 - 1,944 Turf Paradise 425 25 425 - 450 Sunflower 196 -- 196 Hollywood Park Corporate 15 -- 15 ----------------- ---------------- -------------------- Total 5,926 1,365 5,926 - 7,291 ================= ================ ====================
The Company does not employ the staff at the Crystal Park Casino. The Company's staff is non-union, with the exception of the janitorial and food service employees at the Hollywood Park-Casino and the majority of the seasonal staff at the Hollywood Park Race Track. With respect to the Hollywood Park Race Track union staff and the Hollywood Park-Casino janitorial staff, the Company is presently in or about to begin discussions with the unions representing the majority of the union staff (excluding pari-mutuel and food service staff). Union contracts for these employees expire between April 1998 and June 1998. The Company believes that these contracts will be renewed without incident, though there can be no assurance that labor problems will be avoided. OTHER Information concerning backlog, sources and availability of raw materials is not essential to an understanding of the Company's business. The Company does not engage in material research activities relating to development of new products or services or improvement of existing products or services. Compliance with federal, state and local provisions which have been enacted or adopted regulating the discharge of materials into the environment or otherwise relating to the protection of the environment have not had a material effect upon capital expenditures, earnings or the competitive position of the Company. The Company does not engage in material operations in any foreign country, nor is a material portion of its sales or revenues derived from customers in any foreign country. ITEM 2. PROPERTIES - ------------------ Hollywood Park owns approximately 378 acres in Inglewood, California, which is located in the heart of the Los Angeles metropolitan area, with a population base of approximately 14 million; making it the second most populous area in the United States. The 60,000 square foot Hollywood Park-Casino is located next to the Hollywood Park Race Track. The Hollywood Park-Casino has up to 150 tables available for play at any given time, with ample expansion space. The race track consists of the grandstand, clubhouse and Turf Club areas, which can accommodate 25,000, 6,000 and 2,000 patrons, respectively. The stable area can accommodate approximately 2,150 horses. There is abundant parking with spaces for approximately 17,500 vehicles. The race track also houses the executive offices of the Company. The Race Track, Hollywood Park-Casino and required parking covers approximately 228 acres, leaving approximately 150 acres available for immediate development. 24 Crystal Park LLC owns approximately six acres, upon which sits a parking structure, and owns the ground floor of the Crystal Park Casino, which houses the approximately 40,000 square feet of gaming floor space. Boomtown Reno owns 569 acres in Verdi, Nevada, with approximately 508 acres presently undeveloped. In addition to the 40,000 square foot land-based casino, Boomtown Reno offers a 122 room hotel (with a 200 room addition currently under construction, and expected to open in late 1998), a 200 space recreational vehicle park, a truck stop and gas station with a mini-mart and car wash. As of February 13, 1998, Boomtown New Orleans conducts gaming activities on the new 360 foot by 98 foot Boomtown Belle II riverboat (which is 130 feet longer and 26 feet wider than the previous riverboat). The land-based facility, with parking, sits on a 50 acre site. Boomtown Biloxi conducts gaming operations on a permanently moored 400 foot by 100 foot barge, which the Company purchased in August 1997 (see "Item 1. Description of Business, Expansion, Biloxi"). Boomtown Biloxi leases 18 of the 19 acres used for the land-based facility (which is owned by the Company). The land upon which Boomtown Biloxi's land based facility sits is under a 99 year lease and the majority of the parking lot is under lease for terms ranging from five to fifteen years. Boomtown Biloxi has a ten year lease, with a five year renewal option, for the submerged tidelands under the barge. Turf Paradise owns approximately 275 acres in the popular northwest section of Phoenix, Arizona with approximately 100 undeveloped acres, with a surrounding area population of approximately 2.5 million. The race track contains a grandstand, clubhouse and Turf Club section; with a combined seating capacity of approximately 7,400. Overall capacity, including both standing and seating, is estimated at 16,000. The stable area has the capacity to board approximately 1,940 horses. Parking is available for 4,200 vehicles. Sunflower is located in Kansas City, Kansas, and owns 393 acres, of which 222 acres are currently developed, leaving 171 undeveloped acres. There are 1.6 million people living within 60 miles of Sunflower. The facility has two separate grandstands, one for greyhound racing and one for live horse racing. The horse grandstand is closed except for the limited days of live horse racing each fall. Both grandstands contain a clubhouse and Turf Club section. The greyhound grandstand has capacity for 7,832 patrons (both seating and standing) and the horse grandstand has capacity for 7,157 patrons (both seating and standing). The facility has 18 greyhound kennels and 26 barns. There is combined parking available for approximately 6,500 vehicles. ITEM 3. LEGAL PROCEEDINGS - ------------------------- FINAL SETTLEMENT OF DERIVATIVE ACTION AND DISMISSAL OF APPEALS As previously reported by the Company, and described in the Company's Annual Report on Form 10-K for 1994, six purported class actions (the "Class Actions") were filed beginning in September 1994, against the Company and certain of its directors and officers in the United States District Court, Central District of California (the "District Court") and consolidated in a single action entitled In re ----- Hollywood Park Securities Litigation. On September 15, 1995, a related - ------------------------------------ stockholder derivative action, entitled Barney v. Hubbard, et al. (the ------------------------- "Derivative Action"), was filed in the California Superior Court for the County of San Diego (the "State Court"). The Company and other defendants each denied any liability or wrongdoing and asserted various defenses. The District Court ordered the parties to engage in non-binding mediation in an effort to settle all related claims. As previously reported, as a result of the court ordered mediation, the parties reached an agreement-in-principle to settle all claims raised in the Class and Derivative Actions. The Company entered into the settlements in order to avoid the expense, uncertainty and distraction of further litigation. On November 6 and 13, 1995, respectively, the parties executed definitive settlement agreements in the Derivative and Class Actions. Those agreements provided for the release and dismissal of all claims raised or which might have been raised in the Class and Derivative actions, subject to approval by each of the respective courts. In settlement of the Class Actions, a settlement fund in the principal amount of $5,800,000 25 has been created for the benefit of the alleged class with contributions from the Company and the insurance carrier for its directors and officers. After giving consideration to the amounts to be received by the Company in settlement of the Derivative Action, the Company's net settlement payment in the Class Actions was less than $2,500,000. Under settlement of the Derivative Action, the Company will receive a $2,000,000 payment from the insurance carrier which the Company will use to pay plaintiff's attorneys fees and expenses and partially to defray the Company's payment in the settlement of the Class Actions. The Derivative Action settlement also includes provisions enhancing the Company's financial controls and modifying certain terms of its acquisition of Sunflower. On February 26, 1996, the District Court approved the settlement of the Class Actions and entered a judgment dismissing the Class Actions in their entirety. On May 6, 1996, the State Court approved the settlement of the Derivative Action and entered a judgment dismissing the Derivative Action in its entirety. On or about July 2, 1996, a notice of appeal was filed in connection with the Derivative Action judgment. However, on January 22, 1998, the California State Court of Appeals affirmed the trial court's approval of the settlement of the Derivative Action, and the time in which the appellant could petition the supreme court for further review has expired. SUNFLOWER BANKRUPTCY PROCEEDINGS On May 17, 1996, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court, District of Kansas, Kansas City Division (the "Bankruptcy Court") as case number 96-21187-11-JTF. The Cash Collateral Agreement suspended any interest or principal payments on the Sunflower Senior Credit until August 12, 1997. The Bankruptcy Court has issued an order extending the Cash Collateral Agreement until it issues its pending ruling regarding approval of Sunflower's proposed plan of reorganization. The Cash Collateral Agreement requires Sunflower to make certain cash payments to Wyandotte County, Kansas, the creditor under the Sunflower Senior Credit Agreement and TRAK East (the unaffiliated operator of racing at Sunflower). On July 15, 1997, Sunflower presented the Bankruptcy Court a plan of reorganization (as amended, the "Plan") which provides for the sale of Sunflower's property to the Wyandotte Tribe of Oklahoma (the "Wyandotte Tribe"). Under the Plan, some or all of the land would be held by the United States Government in trust for the Wyandotte Tribe, and a casino would be developed on the property. Upon completion of the casino, HP Kansas, Inc. (a wholly owned subsidiary of Hollywood Park) and a partner (North American Sports Management or an affiliate) would provide consulting services to the casino. Under this arrangement, HP Kansas, Inc. would be entitled to receive a share of revenues of the casino. Under the Plan, in order to allow the property to be released as collateral and sold to the Wyandotte Tribe, Sunflower would be required to have standby letters of credit issued to support certain payments to be made to the lenders under the Sunflower Senior Credit and the Wyandotte County Treasurer's office. The aggregate amount of such letters of credit is anticipated to be in excess of $29,000,000. Hollywood Park would arrange for the issuance of such letters of credit on behalf of Sunflower. The creditors under the Sunflower Senior Credit objected to confirmation of the Plan and in January and February 1998, the Bankruptcy Court held hearings with respect to the confirmation of the Plan. Such hearings have been concluded and the matter is under submission with the Bankruptcy Court. In 1995, under a promissory note executed in December 1994, between Hollywood Park and Sunflower, Hollywood Park advanced $2,500,000 to Sunflower to make certain payments due on the Sunflower Senior Credit. The amounts borrowed under the promissory notes, along with accrued interest, are subordinated to the Sunflower Senior Credit. Although Hollywood Park will continue to pursue payment of the promissory note, for financial reporting purposes the outstanding balance of the promissory note was written off as of March 31, 1996. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS - ----------------------------------------------------------- No matters were submitted to a vote of security holders during the fourth quarter of 1997, through the solicitation of proxies or otherwise. 26 PART II ------- Item 5. Market for the Registrant's Common Equity and Related Stockholder - ------------------------------------------------------------------------- Matters ------- As of December 1, 1997, Hollywood Park's common stock was listed on the New York Stock Exchange and is traded under the name Hollywood Park, Inc., identified by the symbol "HPK". Previously, the Company's common stock was listed on the NASDAQ National Market System. The following table sets forth the high and low sales prices per common share of the Company's common stock on the NASDAQ National Market System for the periods prior to December 1, 1997, and on the New York Stock Exchange as of December 1, 1997. All sales prices are rounded to the nearest 1/8/th/. The prices shown are between dealers and do not reflect retail markups, markdowns, or commissions, nor do they necessarily represent actual transactions.
Price Range -------------------------------------------- High Low ------------------- ------------------- 1997 ---- First Quarter $ 15 1/8 $ 11 7/8 Second Quarter 15 3/8 11 7/8 Third Quarter 19 3/8 14 3/4 Fourth Quarter 22 5/16 17 5/16 1996 ---- First Quarter $ 10 3/4 $ 9 Second Quarter 11 3/4 9 1/8 Third Quarter 9 7/16 7 5/8 Fourth Quarter 15 3/8 7 5/8
There were approximately 3,751 stockholders of record of the Company's common stock as of March 16, 1998. On June 30, 1997, the Company finalized the acquisition of Boomtown, and issued approximately 5,362,850 shares of Hollywood Park common stock. Concurrently with the Boomtown Merger, Hollywood Park purchased and retired 446,491 shares of Hollywood Park common stock received by Roski in the Boomtown Merger. On November 17, 1995, the Company finalized the acquisition of PCM. The acquisition was paid for with newly issued shares of the Hollywood Park common stock issued in three installments: (1) 130,008 common shares issued on November 17, 1995; (2) 48,674 common shares issued on November 19, 1996; and (3) 33,417 common shares issued on February 10, 1997. DIVIDENDS The Company did not pay any common stock dividends in 1997 or 1996. Payments of future common stock dividends would be at the discretion of the Company's Board of Directors and would depend upon, among other things, future earnings, operational and capital requirements, the overall financial condition of the Company and general business conditions. The Board of Directors does not anticipate paying any cash dividends on the Company's common stock in the near future; provided, however, that if the paired-share/REIT status is implemented, the REIT would be required to pay certain dividends as describe in Item 1. Description of Business, Expansion Plans. ITEM 6. SELECTED FINANCIAL DATA - ------------------------------- The following selected financial information for the years 1993 through 1997 was derived from the consolidated financial statements of the Company. Boomtown was acquired on June 30, 1997, with the acquisition accounted for under the purchase method of accounting for a business combination, and 27 therefore Boomtown's financial results were not included in periods prior to the acquisition. Turf Paradise was acquired on August 11, 1994, and accounted for under the pooling of interests method of accounting. Historically, Turf Paradise had a fiscal year end of June 30, and therefore, the selected financial data for the year 1993 was restated as a consolidation of Hollywood Park's results for the year ended December 31, with Turf Paradise's results for the year ended June 30. The Hollywood Park-Casino began operations on July 1, 1994, with the gaming floors operated by an unaffiliated third party. On November 17, 1995, Hollywood Park acquired the gaming floor business from the unaffiliated operator. Crystal Park began operations on October 25, 1996, under a lease with an unaffiliated third party, and Sunflower was acquired on March 23, 1994, accounted for under the purchase method of accounting. As of March 31, 1996, Sunflower's results of operations were no longer consolidated with Hollywood Park's due to Sunflower's May 17, 1996, filing for reorganization under Chapter 11 of the Bankruptcy Code. The information set forth below should be read in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operations", the financial statements and related notes thereto. 28 Hollywood Park, Inc. Selected Financial Data
For the years ended December 31, ----------------------------------------------------------------------- 1997 1996 1995 1994 1993 ----------- ------------ ------------ ------------ ------------ (in thousands, except per share data) STATEMENT OF OPERATIONS DATA: Revenues: Gaming $137,659 $ 50,717 $ 26,656 $ 11,745 $ 0 Racing 68,844 71,308 79,862 78,719 63,850 Food and beverage 19,894 13,947 19,783 20,540 10,908 Other 21,731 7,253 4,271 6,320 4,227 ----------- ------------ ------------ ------------ ------------ 248,128 143,225 130,572 117,324 78,985 ----------- ------------ ------------ ------------ ------------ Expenses: Gaming 74,733 27,249 5,291 0 0 Racing 30,304 30,167 30,960 23,393 20,860 Food and beverage 25,745 19,573 24,749 21,852 9,400 Administrative and other 74,887 43,962 48,647 51,151 32,538 Depreciation and amortization 18,157 10,695 11,384 9,563 6,402 REIT restructuring 2,483 0 0 0 0 Write off of investment in Sunflower 0 11,412 0 0 0 Lawsuit settlement 0 0 6,088 0 0 Hollywood Park-Casino pre-opening 0 0 0 2,337 850 Turf Paradise acquisition costs 0 0 0 627 0 ----------- ------------ ------------ ------------ ------------ 226,309 143,058 127,119 108,923 70,050 ----------- ------------ ------------ ------------ ------------ Operating income 21,819 167 3,453 8,401 8,935 Interest expense 7,302 942 3,922 3,061 1,517 ----------- ------------ ------------ ------------ ------------ Income (loss) before income taxes and minority interests 14,517 (775) (469) 5,340 7,418 Minority interests (3) 15 0 0 0 Income tax expense 5,850 3,459 693 1,568 1,025 ----------- ------------ ------------ ------------ ------------ Net income (loss) $ 8,670 ($4,249) ($1,162) $ 3,772 $ 6,393 =========== ============ ============ ============ ============ ===================================================================================================================== Dividends on convertible preferred stock $ 1,520 $ 1,925 $ 1,925 $ 1,925 $ 1,718 ----------- ------------ ------------ ------------ ------------ Net income (loss) available to (allocated to) common shareholders $ 7,150 ($6,174) ($3,087) $ 1,847 $ 4,675 =========== ============ ============ ============ ============ Per common share: Net income (loss): Basic $0.33 ($0.33) ($0.17) $0.10 $0.30 Diluted $0.32 ($0.33) ($0.17) $0.10 $0.30 Dividends $0.00 $0.00 $0.00 $0.00 $0.00 OTHER DATA: Cash flows provided by (used in): Operating activities $ 18,454 $ 13,137 $ 20,291 ($7,287) $ 13,280 Investing activities (16,236) (19,893) (31,322) (7,331) (32,677) Financing activities 9,609 (3,728) (3,685) (8,877) 74,391 Capital expenditures 32,505 23,786 25,150 27,584 12,902 BALANCE SHEET DATA: Total assets $419,029 $205,886 $283,303 $246,573 $176,424 Other liabilities 66,122 47,444 101,928 36,518 21,876 Long term obligations 131,553 282 15,629 42,800 348 Stockholders' equity 221,354 158,160 165,746 167,255 154,200
29 ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS - ------------------------------------------------------------------------------- OF OPERATIONS - ------------- Except for the historical information contained herein, the matters addressed in this Annual Report on Form 10-K may constitute "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933, as amended and Section 21E of the Securities and Exchange Act of 1934, as amended. Such forward-looking statements are subject to a variety of risks and uncertainties that could cause actual results to differ materially from those anticipated by the Company's management. Factors that may cause actual performance of Hollywood Park to differ materially from that contemplated by such forward- looking statements include, among others, possible inability to reinstate a paired-share/REIT structure or a decision by the Company not to consummate the Reorganization, a failure by the Company to qualify as a REIT under the Internal Revenue Code if the Reorganization is consummated, the uncertain magnitude of the tax liability of Hollywood Park and its shareholders if the Reorganization is consummated, proposed legislation that could adversely impact REIT's in general or paired-share REIT's in particular, the failure to finance complete or successfully operate planned improvements and expansions, including the Casino Magic Merger (and, if the Casino Magic Merger is consummated, the ability to meet the combined company's debt service obligations or to improve Casino Magic's financial condition), and a saturation of or other adverse changes in gaming markets in which Hollywood Park operates (particularly in the southeastern United States). The Private Securities Litigation Reform Act of 1995 (the "Act") provides certain "safe harbor" provisions for forward-looking statements. All forward-looking statements made in this Annual Report on Form 10-K are made pursuant to the Act. For more information on the potential factors which could affect the Company's financial results, please review the Company's filings with the Securities and Exchange Commission, including the Company's Definitive Proxy Statement dated February 13, 1998, and the discussion contained therein under the caption "Risk Factors". GENERAL The Company has assessed and continues to assess the impact of the Year 2000 Issue on its reporting systems and operations. The Year 2000 Issue exists because computer systems and applications were historically designed to use two digit fields to designate a year, and date sensitive systems may not recognize 2000 at all, or if recognized, as 1900. Hollywood Park believes that its financial accounting software will require limited changes to overcome the Year 2000 Issue, and any changes are not expected to require material expenditures. Based on the nature of Hollywood Park's business, it is not expected that any non-financial software applications that may be impacted by the Year 2000 Issue would cause any interruption in operations. The Company expects to complete any changes required to overcome the Year 2000 Issue during 1998. RESULTS OF OPERATIONS Year ended December 31, 1997 compared to the year ended December 31, 1996 ------------------------------------------------------------------------- On June 30, 1997, Hollywood Park acquired Boomtown, with the acquisition accounted for under the purchase method of accounting for a business combination, and therefore, Boomtown's results of operations are not consolidated with those of Hollywood Park's prior to this date. As of April 1, 1996, Sunflower's results of operations were no longer consolidated with Hollywood Park's results, thus the results of operations for the year ended December 31, 1997, are exclusive of Sunflower's results of operations, but the financial results for the year ended December 31, 1996, included Sunflower's results of operations through March 31, 1996. Also included in the results of operations for the year ended December 31, 1996, was the $11,412,000 one time, non-cash write off of Hollywood Park's investment in Sunflower. Total revenues for the year ended December 31, 1997, increased by $104,903,000 or 73.2%, as compared to the year ended December 31, 1996, primarily due to the inclusion of $105,781,000 of Boomtown revenues in 1997, with no corresponding revenues recorded in 1996. Gaming revenues increased by $86,942,000, or 171.4%, due primarily to Boomtown gaming revenues of $84,620,000, and Crystal Park LLC rent revenues of $2,222,000, in 1997, with no corresponding Boomtown or Crystal Park LLC revenues in 1996. (The Crystal Park Casino opened in late October 1996.) As of December 19, 1997, the Company had leased the Crystal Park Casino to CCM, an unaffiliated third party. Previously, the Crystal Park Casino was under lease to CEI. On 30 November 4, 1997, the Company obtained a judgment in an action for unlawful detainer against CEI, due to CEI's failure to pay a portion of the June 1997 rent and to make required additional rent payments. In October 1997, the California Attorney General revoked CEI's conditional gaming registration, and the City of Compton revoked CEI's city gaming license (See "Item 1. Description of Business, Casino Operations, Crystal Park Hotel and Casino"). Racing revenues decreased by $2,464,000, or 3.5%, due primarily to one fewer live race day at the Hollywood Park Race Track, and the inclusion of $1,317,000 of racing revenues attributable to Sunflower in 1996, with no corresponding Sunflower revenues in 1997. Food and beverage revenues increased by $5,947,000, or 42.6%, due primarily to the inclusion of Boomtown food and beverage revenues in 1997, with no corresponding revenues in 1996. Hotel and recreational vehicle park and truck stop and service station revenues related to Boomtown Reno, and there are no corresponding revenues in 1996. Other income increased by $4,908,000, or 67.7%, due primarily to the inclusion of Boomtown revenues in 1997 with no corresponding revenues in 1996. Total operating expenses (inclusive of approximately $93,072,000 of Boomtown expenses in 1997, with no corresponding expenses in 1996) increased by $83,251,000, or 58.2%, during the year ended December 31, 1997, as compared to the year ended December 31, 1996. Gaming expenses increased by $47,484,000, or 174.3%, primarily due to the inclusion of Boomtown expenses of $46,380,000, and increased tournament costs at the Hollywood Park-Casino. Food and beverage expenses increased by $6,172,000, or 31.5%, due primarily to Boomtown food and beverage expenses of $7,510,000, netted against expense reductions at the Hollywood Park-Casino, that included labor savings due to the closing of some food service outlets. Hotel and recreational vehicle park expenses and truck stop and service station expenses related to Boomtown Reno, and there are no corresponding expenses in 1996. Administrative expenses increased by $20,037,000, or 48.3%, which included $22,054,000 of Boomtown expenses, netted against Sunflower related administrative costs included in the 1996 financial results, for which there are no similar costs in the 1997 results. Other expenses increased by $2,563,000, or 103.1%, due primarily to the inclusion of Boomtown expenses in 1997 with no corresponding expenses in 1996. Depreciation and amortization increased by $7,462,000, or 69.8%, primarily due to the Boomtown and Crystal Park LLC depreciation expense in 1997, with no corresponding expenses in 1996. REIT restructuring expenses consisted primarily of legal and tax consulting expenses incurred by Hollywood Park with respect to the reinstatement of the Company's paired share REIT status, as previously discussed. Interest expense increased by $6,360,000, due to interest on the Company's $125,000,000 Notes that were issued in August 1997, short term bank borrowings (all of which had been repaid as of December 31, 1997), and bank commitment fees (See "Liquidity and Capital Resources"). Income tax expense increased by $2,391,000, or 69.1%, due to increased income before income taxes in 1997 as compared to 1996. Year ended December 31, 1996 compared to the year ended December 31, 1995 ------------------------------------------------------------------------- The results of operations for the year ended December 31, 1996, included the results of Hollywood Park operating all aspects of the Hollywood Park-Casino, including the casino gaming floors. Hollywood Park acquired the Hollywood Park- Casino gaming floor business from Pacific Casino Management ("PCM") on November 17, 1995; therefore, the results of operations for the year ended December 31, 1995, do not include the operating results of the Hollywood Park-Casino gaming floor business prior to November 17, 1995, but rather are reflective of the lease arrangement then in place. The results of operations for the year ended December 31, 1996, included Sunflower's results of operations for the three months ended March 31, 1996, only. As of March 31, 1996, Sunflower's results of operations were no longer consolidated with Hollywood Park's due to Sunflower's May 17, 1996, filing for reorganization under Chapter 11 of the Bankruptcy Code. Sunflower's results of operations are consolidated in the financial statements for the year ended December 31, 1995. Total revenues increased by $12,653,000, or 9.7%, for the year ended December 31, 1996, as compared to the year ended December 31, 1995, primarily due to Hollywood Park-Casino gaming revenues. Gaming revenues of $50,717,000 were generated from the Hollywood Park-Casino gaming activities, which Hollywood Park acquired from PCM on November 17, 1995. During the year ended December 31, 1995, Hollywood Park recorded $20,624,000 of lease revenues, $6,032,000 of gaming revenues (covering the period November 17, 31 1995, through December 31, 1995), and concession sales to PCM of approximately $2,773,000, or total 1995 Hollywood Park-Casino gaming and lease related revenues of $29,429,000. On October 25, 1996, the Crystal Park Casino opened under a triple net lease between Hollywood Park and CEI (the operator of the Crystal Park Casino). Monthly lease rent of $445,000 was recorded during 1996. Racing revenues decreased by $5,728,000, or 7.4%, primarily due to the exclusion of Sunflower's racing revenues for the nine months ended December 31, 1996. Food and beverage sales decreased by $5,836,000, or 29.5%, due primarily to the following: (a) $2,773,000 of sales to PCM in 1995, with no corresponding sales in 1996; (b) a full year of Sunflower sales of $2,414,000 in 1995, and just three months of sales in 1996; and (c) on-track attendance declines at Hollywood Park. Total operating expenses increased by $15,939,000, or 12.5%, for the year ended December 31, 1996, compared to the year ended December 31, 1995, primarily due to the inclusion of $27,249,000 of Hollywood Park-Casino gaming floor expenses (with corresponding gaming floor expenses of $5,291,000 in 1995) which more than offset a $7,476,000 reduction in expenses arising from the exclusion of Sunflower's expenses in 1996. Food and beverage expenses decreased by $5,176,000, or 20.9%, with $2,089,000 of the savings attributable to the exclusion of Sunflower's expenses subsequent to the first quarter of 1996, with the balance primarily due to labor and related cost savings due to closing some of the Hollywood Park-Casino food outlets. Administrative expenses decreased by $3,970,000, or 8.7%, due to the inclusion of a full year of Sunflower expenses in 1995 and just three months of corresponding costs recorded in 1996. Included in the 1996 results of operations was the $11,412,000 one time, non- cash write off of Hollywood Park's investment in Sunflower. On May 2, 1996, the Kansas Legislature adjourned without passing legislation that would have allowed additional gaming at Sunflower, and thereby, allowing Sunflower to compete with Missouri riverboat gaming. On May 17, 1996, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code. (See "Item 3 - Legal Proceedings.") Included in the 1995 results of operations was $6,088,000 of expenses (with no corresponding expenses in 1996) related to the settlement of certain claims in connection with a shareholder class action and related shareholder derivative suit. Depreciation and amortization expenses decreased by $689,000, or 6.1%, primarily due to the exclusion of Sunflower's expenses for the nine months ended December 31, 1996, netted against the amortization of the goodwill associated with the November 17, 1995, acquisition of PCM. Interest expense decreased by $2,980,000, or 76.0%, due to the exclusion of Sunflower's interest expense for the nine months ended December 31, 1996. Income tax expense increased by $2,776,000, due primarily to the establishment of certain tax reserves. LIQUIDITY AND CAPITAL RESOURCES Hollywood Park's principal source of liquidity as of December 31, 1997, was cash and cash equivalents of $23,749,000. Cash and cash equivalents increased by $11,827,000 during the year ended December 31, 1997. Net cash provided by operating activities was $18,454,000. Net cash used in investing activities was $16,236,000. Cash of $32,505,000 was used to purchase capital assets, including amounts spent for the purchase of a new riverboat for Boomtown New Orleans, the down payment on the purchase of the barge for Boomtown Biloxi, and normal and necessary capital improvements. Cash provided by investing activities related to the cash acquired from Boomtown in the Boomtown Merger (net of Hollywood Park's merger costs) and by the liquidation of the Company's short term corporate bond investments. Net cash provided by financing activities was $9,609,000. Cash of $125,000,000 was raised with the August 6, 1997 issuance of the Series A 9.5% Senior Subordinated Notes due 2007 (the "Notes") (as described below), with associated offering costs of approximately $1,630,000. Cash of approximately $110,924,000 was used to redeem a majority of Boomtown's 11.5% First Mortgage Notes. Cash was used for the payment of the convertible preferred stock dividend through the August 28, 1997 conversion (as described below). Cash payments were also made on a variety of secured notes for gaming and other operating assets held by Boomtown, including 32 the approximately $2,107,000 payment of a Boomtown New Orleans note payable on the prior riverboat used by the property. Cash and cash equivalents decreased by $10,484,000 during the year ended December 31, 1996. Net cash provided by operating activities was $13,677,000. Net cash used in investing activities was $19,893,000, which included disbursements for the construction of the Crystal Park Casino, along with normal and necessary capital improvements. Net cash used in financing activities was $4,268,000, which included the payment of a secured note, the payment of dividends on the convertible preferred stock, and the repurchase and retirement of the Company's common stock, netted against cash received from the then minority members of Crystal Park LLC. HOLLYWOOD PARK On June 30, 1997, Hollywood Park and a bank syndicate led by Bank of America finalized the Bank Credit Facility, a reducing revolving credit facility allowing for drawings up to $225,000,000. On August 7, 1997, the Bank Credit Facility was reduced by $125,000,000 (the aggregate principal amount of the Notes issued as described below) to $100,000,000. Of the $100,000,000, as a result of covenant limitations, approximately $88,800,000 was available as of December 31, 1997. As of December 31, 1997, the Company did not have outstanding borrowings under the Bank Credit Facility, except for a $2,035,000 letter of credit. As March 23, 1998, the Company had borrowings under the Bank Credit Facility of $20,000,000, primarily used for the Boomtown Reno expansion project. The Bank Credit Facility is secured by substantially all of the assets of Hollywood Park and its significant subsidiaries, and imposes certain customary affirmative and negative covenants. On February 19, 1998, Hollywood Park announced the Casino Magic Merger, and under the terms of the Agreement and Plan of Merger Hollywood Park will pay cash of $2.27 for each issued and outstanding share of Casino Magic common stock, or approximately $81,000,000. The Company has begun discussions to amend the Bank Credit Facility to increase the borrowing capacity to provide the funds required for the Casino Magic Merger. A formal amendment has not yet been signed, and there is no assurance that such an amendment will be completed, although the bank group has given verbal assurance of its intent to provide such an increased facility. The Bank Credit Facility has been amended twice. The first amendment, among other matters, reduced the availability of the facility until the Bank Credit Facility was approved by the Louisiana Gaming Control Board. Hollywood Park received this approval on July 10, 1997. The second amendment, among other things, allowed the co-issuance of the Notes by Hollywood Park Operating Company with Hollywood Park. Debt service requirements on the Bank Credit Facility consist of current interest payments on outstanding indebtedness through September 30, 1999. As of September 30, 1999, and on the last day of each third calendar month thereafter, through June 30, 2001, the Bank Credit Facility will decrease by 7.5% of the commitment in effect on September 30, 1999. As of September 30, 2001, and on the last day of each third calendar month thereafter, the Bank Credit Facility will decrease by 10% of the commitment in effect on September 30, 1999. Any principal amounts outstanding in excess of the Bank Credit Facility commitment, as so reduced, will be payable on such quarterly reduction dates. The Bank Credit Facility provides for a letter of credit sub-facility of $10,000,000, of which $2,035,000 is currently outstanding for the benefit of Hollywood Park's California self insured workers' compensation program. The facility also provides for a swing line sub-facility of up to $10,000,000. Borrowings under the Bank Credit Facility bear interest at an annual rate determined, at the election of Hollywood Park, by reference to the "Eurodollar Rate" (for interest periods of 1, 2, 3 or 6 months) or the "Reference Rate", as such terms are respectively defined in the Bank Credit Facility, plus margins which vary depending upon Hollywood Park's ratio of funded debt to earnings before interest, taxes, depreciation and amortization ("EBITDA"). The margins start at 1.25% for Eurodollar loans and at 0.25% for Base Rate loans, at a funded debt to EBITDA ratio of less than 1.50. Thereafter, the margin for each type of loan increases by 25 basis points for each increase in the ratio of funded debt to EBITDA of 50 basis points or more, up to 2.625% 33 for Eurodollar loans and 1.625% for Base Rate loans. However, if the ratio of senior funded debt to EBITDA exceeds 2.50, the applicable margins will increase to 3.25% for Eurodollar loans, and 2.25% for Base Rate loans. Thereafter, the margins would increase by 25 basis points for each increase in the ratio of senior funded debt to EBITDA of 50 basis points or more, up to a maximum of 4.25% for Eurodollar loans and 3.25% for Base Rate loans. The applicable margins as of December 31, 1997, were 2.00% with respect to the Eurodollar Rate based interest rate and 1.00% with respect to the Base Rate interest rate. The Bank Credit Facility allows for interest rate swap agreements, or other interest rate protection agreements, up to a maximum notional amount of $125,000,000. Presently, Hollywood Park does not utilize such financial instruments. Hollywood Park pays a quarterly commitment fee for the average daily amount of unused portions of the Bank Credit Facility. The commitment fee is also dependent upon Hollywood Park's ratio of funded debt to EBITDA. The commitment fee for the Bank Credit Facility starts at 31.25 basis points when the ratio is less than 1.00, and increases by 6.25 basis points for each increase in the ratio of 0.50, up to a maximum of 50 basis points. For the quarter beginning January 1, 1998, the commitment fee is 50 basis points. On July 3, 1997, Hollywood Park borrowed $112,000,000 from the Bank Credit Facility to fund Boomtown's offer to purchase the 11.5% Boomtown First Mortgage Notes (the "Boomtown Notes"), and repaid this amount on August 7, 1997, with a portion of the proceeds from the August 6, 1997, issuance of $125,000,000 of Series A 9.5% Senior Subordinated Notes due 2007 (the "Series A Notes"). The Series A Notes were co-issued by Hollywood Park and Hollywood Park Operating Company, and were issued pursuant to a private offering under the Securities Act of 1933, as amended (the "Securities Act"). The balance of the proceeds from the issuance of the Series A Notes was used primarily for the purchase of a new riverboat for Boomtown New Orleans, and other general corporate needs. On March 20, 1998, the Company completed a registered exchange offer for the Series A Notes, pursuant to which all $125,000,000 principal amount of the Series A Notes were exchanged by the holders for $125,000,000 aggregate principal amount of Series B 9.5% Senior Subordinated Notes due 2007 of the Company and Hollywood Park Operating Company (together with the Series A Notes, the "Notes") which were registered under the Securities Act on Form S-4. Interest on the Notes is payable semi-annually, on February 1st and August 1st. The Notes will be redeemable at the option of Hollywood Park and Hollywood Park Operating Company, in whole or in part, on or after August 1, 2002, at a premium to face amount, plus accrued interest, with the premium to face amount decreasing on each subsequent anniversary date. The Notes are unsecured obligations of Hollywood Park and Hollywood Park Operating Company, guaranteed by all other material restricted subsidiaries of either Hollywood Park or Hollywood Park Operating Company. The indenture governing the Notes contains certain covenants that, among other things, limit the ability of Hollywood Park, Hollywood Park Operating Company and their restricted subsidiaries to incur additional indebtedness and issue preferred stock, pay dividends or make other distributions, repurchase equity interests or subordinated indebtedness, create certain liens, enter into certain transactions with affiliates, sell assets, issue or sell equity interests in their respective subsidiaries or enter into certain mergers and consolidations. The Company believes that the consummation of the Casino Magic Merger will be permitted under the terms of the Indenture provided that, among other things, Casino Magic redeems a portion of its long term indebtedness in a manner currently contemplated by the parties. On July 1, 1997, in connection with the divestiture of Boomtown's Las Vegas property, Hollywood Park issued an unsecured promissory note of approximately $3,465,000 to purchase the Hollywood Park common stock issued to Roski in the Boomtown Merger. The promissory note bears interest equal to the Bank of America reference rate plus 1.0%. Interest is payable annually with five annual principal payments of approximately $693,000 commencing July 1, 1998. During the year ended December 31, 1997, Hollywood Park paid dividends of $1,520,000 on its convertible preferred stock, representing $70.00 per share, or $0.70 per depositary share. Effective August 28, 1997, the 34 Company's 2,749,900 outstanding depositary shares were converted into approximately 2,291,500 shares of its common stock, thereby eliminating the annual preferred cash dividend payment of approximately $1,925,000 for future periods. As of December 31, 1997, Hollywood Park liquidated its investments in corporate bonds. During the year ended December 31, 1997, proceeds from the sale or redemption of the corporate bond investments were approximately $4,766,000, with gross realized gains and losses of approximately $9,000, and $88,000, respectively. Effective December 31, 1997, Crystal Park LLC was wholly owned by the Company. The Company paid $1,000,000 in December 1997, and $2,000,000 in February 1998, (or the original amount the minority members contributed to Crystal Park LLC) to purchase the 10.2% of Crystal Park LLC which was held by minority members. BOOMTOWN In November 1993, Boomtown issued $103,500,000 of 11.5% Boomtown Notes. On July 3, 1997, pursuant to a tender offer, Boomtown repurchased and retired approximately $102,142,000 in principal amount of the Boomtown Notes, at a purchase price of $1,085 per $1,000, along with accrued interest thereon. An additional $105,000 of the remaining Boomtown Notes were tendered in the post Boomtown Merger change of control purchase offer, at a price of $1,010 for each $1,000, completed August 12, 1997. As of December 31, 1997, there were $1,253,000 of Boomtown Notes outstanding. On August 4, 1997, Hollywood Park executed a promissory note for the purchase of the barge and the building shell at Boomtown Biloxi for a total cost of $5,250,000. A payment of $1,500,000 was made on August 4, 1997, with the balance due of $3,750,000 payable in three equal annual installments of $1,250,000. Interest on the promissory note is equal to the prime interest rate in effect on the first day of each year. The principal amount of the promissory note, together with accrued interest, may be repaid, without penalty, in whole or in part, at any time. On August 7, 1997, Boomtown New Orleans prepaid a 13.0% note secured by the former riverboat, then in use, for approximately $2,107,000 (inclusive of a 1.0% prepayment penalty). As of August 8, 1997, Boomtown New Orleans became wholly owned by Hollywood Park. Previously, Boomtown New Orleans was owned and operated by the Louisiana Partnership, of which 92.5% was owned by Hollywood Park with the remaining 7.5% owned by Eric Skrmetta ("Skrmetta"). On November 18, 1996, Boomtown entered into an agreement with Skrmetta under which it would pay approximately $5,670,000 in return for Skrmetta's interest in the Louisiana Partnership. Under the terms of the agreement, Boomtown made a down payment of $500,000, and Hollywood Park paid the remaining $5,170,000 on August 8, 1997. On September 25, 1997, Hollywood Park acquired the Boomtown Belle II riverboat from Casino Magic, at a cost of approximately $11,700,000. Hollywood Park invested approximately $4,700,000 to renovate and equip the Boomtown Belle II, which was placed in service February 13, 1998. As of December 31, 1997, Boomtown had a note payable of approximately $252,000 along with various capital lease obligations for gaming and other operating equipment, totaling approximately $1,527,000. In connection with the sale of its Las Vegas property, Boomtown took back two notes receivable from Roski, the former lessor of Boomtown's Las Vegas property, totaling approximately $8,465,000. The first note receivable is for $5,000,000, bearing interest at Bank of America's reference rate plus 1.5% per year, with annual principal payments of $1,000,000 plus accrued interest commencing on July 1, 1998. The second note is for approximately $3,465,000, bearing interest at Bank of America's reference rate plus 0.5% per year, with the principal and accrued interest payable, in full, on July 1, 2000. SUNFLOWER On March 24, 1994, an Amended and Restated Credit and Security Agreement (the "Sunflower Senior Credit") was executed between Sunflower and five banks in connection with Hollywood Park's 35 acquisition of Sunflower. As of December 31, 1997, the outstanding balance of the Sunflower Senior Credit was $28,667,000. The Sunflower Senior Credit is non- recourse to Hollywood Park. On May 17, 1996, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code. The Cash Collateral Agreement suspended any interest or principal payments on the Sunflower Senior Credit until August 12, 1997. The Bankruptcy Court has issued an order extending the Cash Collateral Agreement until it issues its pending ruling regarding approval of Sunflower's proposed plan of reorganization. The Cash Collateral Agreement requires Sunflower to make certain cash payments to Wyandotte County, Kansas, the creditors under the Sunflower Credit and TRAK East (the unaffiliated non-profit holder of the pari- mutuel racing license in Kansas, and operator of racing at Sunflower). On July 15, 1997, Sunflower presented to the Bankruptcy Court a plan of reorganization (the "Plan") which provides for the sale of Sunflower's property to the Wyandotte Tribe of Oklahoma (the "Wyandotte Tribe"). The Plan was amended on October 31, 1997. Under the Plan, some or all of the land would be held by the United States Government in trust for the Wyandotte Tribe, and a casino would be developed on the property. Upon completion of the casino, HP Kansas, Inc. ("HP Kansas") (a wholly owned subsidiary of Hollywood Park) and a partner (North American Sports Management or an affiliate) will provide financing and consulting services for the development and operation of a casino. Under this arrangement, HP Kansas would be entitled to receive a share of the revenues of the casino. Under the plan, in order to allow the property to be released as collateral and sold to the Wyandotte Tribe, Sunflower will be required to have standby letters of credit issued to support certain payments to be made to the lenders under the Sunflower Senior Credit and the Wyandotte County Treasurer's office. The aggregate amount of such letters of credit is anticipated to be in excess of $29,000,000. Hollywood Park will arrange for the issuance of such letters of credit on behalf of Sunflower. It is anticipated that the earliest the bankruptcy court will rule on the Plan is in the second quarter of 1998. In 1995, under a promissory note executed in December 1994, between Hollywood Park and Sunflower, Hollywood Park advanced $2,500,000 to Sunflower to make certain payments due on the Sunflower Senior Credit. The amounts borrowed under the promissory note, along with accrued interest, are subordinate to the Sunflower Senior Credit. Although Hollywood Park will continue to pursue payment of the promissory note, for financial reporting purposes the outstanding balance of the promissory note was written off as of March 31, 1996. CAPITAL COMMITMENTS As of this filing, the Company had a remaining capital commitment of approximately $5,000,000 (total amount committed was $9,000,000) with respect to construction of the casino for the Yakama expansion, as previously described. The Company also has a commitment of approximately $81,000,000, with respect to the Casino Magic Merger, which is expected to close in the fourth quarter of 1998. Expansion Costs In addition to the capital commitments as discussed, Hollywood - --------------- Park has other potential capital needs with respect to Boomtown Reno and Boomtown New Orleans. The Company expects to spend approximately $25,000,000 on the expansion and renovation of Boomtown Reno, including additional hotel rooms, expanded gaming space and other amenities, which is expected to be completed by the end of 1998. The Company also expects to spend approximately $10,000,000 on the expansion and upgrade of Boomtown New Orleans, including the build-out of the second floor of the land-based facility which is expected to be completed by late summer 1998. GENERAL Hollywood Park is continually evaluating future growth opportunities in the gaming, sports and entertainment industries. Hollywood Park expects that funding for the Casino Magic Merger, other expansion, payment of interest on the Notes, payment of notes payable, and normal and necessary capital expenditure needs will come from existing cash balances generated from operating activities and borrowings from the Bank Credit Facility. In the opinion of management, these resources will be sufficient to meet Hollywood Park's anticipated cash requirements for the foreseeable future and in any event for at least the next twelve months. 36 ITEM 7.A QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK - ------------------------------------------------------------------- As of December 31, 1997, Hollywood Park did not hold any investments in market risk sensitive instruments of the type described in Item 305 of Regulation S-K. ITEM 8. FINANCIAL STATEMENTS - ---------------------------- Financial statements and accompanying footnotes are set forth starting on page 57 of this report. ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND - ----------------------------------------------------------------------- FINANCIAL DISCLOSURE - -------------------- None PART III ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT - ----------------------------------------------------------- The following table sets forth certain information with respect to the Directors and Executive Officers of the Company:
Name Age Position - ------------------------------------------ ------- --------------------------------------------------------------------- R.D. Hubbard (a) 62 Chairman of the Board of Directors, Chief Executive Officer and Member of the Office of the Chairman Harry Ornest (a) 77 Vice Chairman of the Board of Directors Richard Goeglein (a) (b) 63 Director Peter L. Harris 54 Director J.R. Johnson (b) 77 Director Robert T. Manfuso 60 Director Timothy J. Parrott (a) 50 Director and Member of the Office of the Chairman for Administration of Boomtown Lynn P. Reitnouer (a) (b) 65 Director Herman Sarkowsky (c) 72 Director Warren B. Williamson (c) 69 Director Delbert W. Yocam (c) 53 Director Donald M. Robbins 50 President of Hollywood Park, President of Racing and Secretary G. Michael Finnigan 49 President, Sports and Entertainment, Executive Vice President, Treasurer, Chief Financial Officer and Member of the Office of the Chairman
____ (a) Member of Executive Committee (b) Member of Compensation Committee (c) Member of Audit Committee Mr. Hubbard has been a Director of Hollywood Park since 1990; Chairman of the Board and Chief Executive Officer of Hollywood Park since September 1991; Member of the Hollywood Park Office of the Chairman since June 1997; Chairman of the Board and Chief Executive Officer of Hollywood Park Operating Company since February 1991; President of Hollywood Park Operating Company from February to July 1991; Chairman, AFG Industries, Inc. and its parent company, Clarity Holdings Corp. (glass manufacturing) and director of AFG Industries, Inc.'s subsidiaries, from 1978 to July 1993; Chairman of the Board (and 60% stockholder until March 1994) of Sunflower (the Woodlands Race Track greyhound and horse racing) from 1988; President, Director, and owner of Ruidoso Downs Racing, Inc. (horse racing) since 1988; Chairman of the Board, Chief Executive Officer and sole stockholder, Multnomah Kennel Club, Inc. (greyhound racing) since December 1991; Owner and breeder of numerous thoroughbreds and quarter horses since 1962. Sunflower, a wholly owned subsidiary of Hollywood Park, filed for reorganization under Chapter 11 of the U.S. Bankruptcy Code on May 17, 1996. 37 Mr. Ornest has been a Director of Hollywood Park since 1991; Vice Chairman of the Board of Hollywood Park since September 1991; Director, Hollywood Park Operating Company since 1988; Vice Chairman of the Board, Hollywood Park Operating Company since February 1991; Owner and Chairman, Toronto Argonauts Football Club (Canadian Football League club) from 1988 to May 1991; Owner, St. Louis Blues (National Hockey League club) 1983 to 1987; Owner, St. Louis Arena, 1983 to 1987; Owner and Founder, Vancouver Canadians (Pacific Coast Baseball League Club), 1977 to 1981; Hollywood Park stockholder, 1962 to present. Mr. Goeglein has been a Director of Hollywood Park since June 1997; President of Aladdin Gaming LLC since January 1997; Director of Boomtown, Inc. from October 1992 to June 1997; Director of AST Research, Inc. since May 1987; Director of Platinum Software Corp. since October 1994; President and principal shareholder of Gaming Associates, Inc. since 1990; President and Chief Operating Officer of Holiday Corporation (parent corporation of Holiday Inns and Harrah's Hotels and Casinos) from 1984 to 1987; private investor since 1987. Mr. Harris has been a Director of Hollywood Park since June 1997; Director of Boomtown, Inc. from April 1994 to June 1997; Director of Onsale, Inc. since 1996; Director of Natural Wonders, Inc. since 1996; Director of Pacific Sunwear of California, Inc. since 1994; President and Chief Executive Officer of Expressly Portraits, Inc. (a retail chain of portrait photography studios) since August 1995; Reorganization Administrator of American Fashion Jewels (a retail company) and then as Chief Executive Officer of Accolade, Inc. (a video and personal computer games company) from 1993 to 1995; President and Chief Executive Officer of F.A.O. Schwarz from 1985 to 1992. Mr. Johnson has been a Director of Hollywood Park since 1991; Director, Hollywood Park Operating Company from February 1991 to January 1992; Chairman, President and Chief Executive Officer, NEWMAR (marine electronics manufacturing) since 1980; Trustee, Westminster College. Mr. Manfuso has been a Director of Hollywood Park since 1991; Director, Hollywood Park Operating Company from February 1991 to January 1992; Co-Chairman of the Board, Laurel Racing Association (horse race track management) from 1984 to February 1994; Vice Chairman of the Board, The Maryland Jockey Club (horse racing) from 1986 to February 1994; Executive Vice President, Laurel Racing Association from 1984 to May 1990; Executive Vice President, The Maryland Jockey Club from 1986 to June 1990; Director, Maryland Horse Breeders Association from 1984 to 1992 and since 1993; Member, Executive Committee, Maryland Million since 1991. Mr. Parrott has been a Director and Member of the Office of the Chairman since June 1997; Chairman of the Board and Chief Executive Officer of Boomtown, Inc. since September 1992; President and Treasurer of Boomtown, Inc. from June 1987 to September 1992; Director of Boomtown, Inc. since 1987; Chairman of the Board and Chief Executive Officer of Boomtown Hotel & Casino, Inc. since May 1988; Chief Executive Officer of Parrott Investment Company (a family-held investment company with agricultural interests in California) since April 1995; Director of The Chronicle Publishing Company since April 1995. Mr. Reitnouer has been a Director of Hollywood Park since 1991; Director, Hollywood Park Operating Company from September 1991 to January 1992; Partner, Crowell Weedon & Co. (stock brokerage) since 1969; Director of COHR, Inc., since 1986 and former Chairman of the Board of COHR, Inc.; Director, President and Regent, Forest Lawn Memorial Parks Association since 1975; Trustee, University of California Santa Barbara Foundation since 1992. Mr. Sarkowsky has been a Director of Hollywood Park since 1991; Director, Hollywood Park Operating Company from February 1991 to January 1992; Owner, Sarkowsky Investment Corporation and SPF Holding, Inc. (real estate development and investments) since 1980; Director, The Sarkowsky Foundation (charitable foundation) since 1982; thoroughbred horse breeder and owner since 1959; Director, Synetics, Inc. (porous plastic manufacturing); Director, Seafirst Corporation (banking); Director, Eagle Hardware & Garden, since 1990. 38 Mr. Williamson has been a Director of Hollywood Park since 1991; Vice President and Secretary of Hollywood Park from September 1991 to August 1996; Chairman of the Board and Chief Executive Officer of Hollywood Park from 1989 to September 1991; Director, Hollywood Park Operating Company since 1985; Vice President and Secretary, Hollywood Park Operating Company from February 1991 to August 1996; Secretary and Treasurer, Hollywood Park Operating Company from 1985 to November 1990; Chairman and Chief Executive Officer, Chandis Securities Co. (holding company) since 1985; Director, Times Mirror Company; Trustee, Hospital of the Good Samaritan; Trustee, California Thoroughbred Breeders Foundation; Trustee, Claremont McKenna College; Chairman Emeritus, Art Center College of Design; Breeder and racer of thoroughbreds since 1970. Mr. Yocam has been a Director of Hollywood Park since June 1997; Director of Boomtown, Inc. from December 1995 to June 1997; Chairman and Chief Executive Officer of Borland International since December 1996; Director of Adobe Systems, Inc., since February 1991; Independent consultant from November 1994 to December 1996; Director of Oracle Corporation since March 1992; President, Chief Operating Officer and a Director of Tektronix, Inc. from September 1992 to November 1994; Independent consultant from November 1989 to September 1992. Mr. Robbins has been Hollywood Park's President of Racing since February 1994; President of Hollywood Park since September 1991; Secretary of Hollywood Park since 1996 (formerly Assistant Secretary since September 1991); General Manager of Hollywood Park Operating Company from 1986 to February 1994; Executive Vice President of Hollywood Park Operating Company since 1988, and President and Secretary of Hollywood Park Operating Company since July 1991. Mr. Finnigan has been Hollywood Park's President, Sports and Entertainment, since February 1994 and a member of the Office of the Chairman since June 1997; Executive Vice President and Chief Financial Officer of Hollywood Park and of Hollywood Park Operating Company since March 1989; and Treasurer of Hollywood Park and of Hollywood Park Operating Company since March 1992; Chairman of the Board of Southern California Special Olympics since 1996; Chairman of the Board of Centinela Hospital since 1996; and Director of the Shoemaker Foundation since 1993. Mr. Finnigan also serves as Secretary and Treasurer of Sunflower Racing, Inc., a wholly owned subsidiary of Hollywood Park, which filed for reorganization under Chapter 11 of the U.S. Bankruptcy Code on May 17, 1996. In addition, upon the consummation of the Boomtown Merger, the Company established an Office of the Chairman comprised of Hollywood Park's Chief Executive Officer, Hollywood Park's President of Sports and Entertainment and the Chief Executive Officer of Boomtown. The Office of the Chairman provides advice to the Chief Executive Officer of Hollywood Park on such matters as he may request and undertakes such other responsibilities as he may delegate to the Office of the Chairman from time to time. During 1997, the Hollywood Park Board held three meetings and acted by unanimous written consent on two occasions. In accordance with the requirements of the Agreement and Plan of Merger dated as of April 23, 1996 (the "Merger Agreement") governing the Boomtown Merger, the Hollywood Park Board was expanded upon completion of the Boomtown Merger to eleven directors, seven of whom (Messrs. Hubbard, Ornest, Johnson, Manfuso, Reitnouer, Sarkowsky and Williamson) had been serving as members of the Hollywood Park Board (the "Hollywood Park Directors") and four of whom (Messrs. Parrott, Goeglein, Harris and Yocam) had been members of the Boomtown Board of Directors (the "Boomtown Directors"). The Boomtown Merger Agreement provided that, during the three year period ending June 30, 2000, any increase in the size of the Hollywood Park Board must be approved by a majority of the Boomtown Directors then on the Hollywood Park Board, except that the number of persons serving on the Hollywood Park Board may be increased without such consent if the increase is divisible by three and one Boomtown Director (to be selected by a majority of the Boomtown Directors then on the Hollywood Park Board) is added for every two Hollywood Park Directors added. Hollywood Park has agreed to cause its Board of Directors and any nominating committee thereof to take the necessary steps to nominate the initial Boomtown Directors or their 39 replacements (selected by a majority of the Boomtown Directors) for re-election at the first three annual stockholders meetings following June 30, 1997. ITEM 11. EXECUTIVE COMPENSATION - -------------------------------- The following tables summarize the annual and long-term compensation of, and stock options held by, Hollywood Park's Chief Executive Officer and the two additional most highly compensated executive officers whose annual salaries and bonuses exceeded $100,000 in total during the fiscal year ended December 31, 1997 (collectively, the "Named Officers"). SUMMARY COMPENSATION TABLE
Long Term Compensation Awards ---------------- Annual Compensation Securities ------------------------ Underlying Name and Principal Salary Bonus Other Annual Options/ All Other Position Year ($) ($) Compensation SARs (#) Compensation (a) - -------------------------------------------------------------------------------------------------------------------------------- R. D. Hubbard 1997 $400,000 $40,235 $0 45,000 $4,740 Chairman of the Board 1996 400,000 0 0 85,000 0 and Chief Executive 1995 400,000 0 0 0 0 Officer G. Michael Finnigan 1997 $307,608 $ 0 $0 25,000 $3,555 President, Sports and 1996 262,608 25,000 0 40,000 0 Entertainment, Executive 1995 262,608 0 0 0 0 Vice President, Treasurer, Chief Financial Officer Donald M. Robbins 1997 $295,008 $ 0 $0 25,000 $3,373 President of Hollywood 1996 250,008 25,000 0 40,000 0 Park, Inc., President of 1995 255,501 0 0 0 0 Racing and Secretary
_________ (a) Reflects matching contributions under the Hollywood Park 401(k) Plan. STOCK OPTION PLAN In 1993, the stockholders of Hollywood Park adopted the Hollywood Park 1993 Stock Option Plan (the "1993 Plan"), which provided for the issuance of up to 625,000 shares of Hollywood Park common stock upon exercise of options granted thereunder. In 1996, the stockholders of Hollywood Park adopted the Hollywood Park 1996 Stock Option Plan (the "1996 Plan"), which provides for the issuance of up to 900,000 shares of Hollywood Park common stock upon exercise of options granted thereunder. Except for the provisions governing the number of shares issuable thereunder, and except for certain provisions which reflect changes in tax and securities laws, the provisions of the 1993 Plan and the 1996 Plan (collectively, the "Hollywood Park Plans") are substantially similar. The Hollywood Park Plans are administered and terms of option grants are established by the Compensation Committee of the Board of Directors. Under the Hollywood Park Plans, options alone or coupled with stock appreciation rights may be granted to selected key employees, directors, consultants and advisors of Hollywood Park. Options become exercisable according to a vesting period as determined by the Compensation Committee at the date of grant, and expire on the earlier of one month after termination of employment, six months after the death or permanent disability of the optionee, or the expiration of the fixed option term set by the Compensation Committee at the grant date (not to exceed ten years from the grant date). The exercise prices of all options granted under the Hollywood Park Plans are determined by the Compensation Committee on the grant date, provided that the exercise price of an incentive stock option may not be less than the fair market value of the common stock at the date of grant. 40 As of March 13, 1998, all of the 625,000 shares eligible for issuance under the 1993 Plan had either been issued or were subject to outstanding options, and of the 900,000 shares eligible for issuance under the 1996 Plan, 411,312 were subject to outstanding options (net of cancellations). In addition, 973,273 shares of Hollywood Park common stock are issuable upon exercise of options granted before the Boomtown Merger under Boomtown's 1990 Stock Option Plan and 1992 Director Option Plan (collectively, the "Boomtown Plans"), which options were assumed by Hollywood Park in the Boomtown Merger. Hollywood Park has filed registration statements with the Securities and Exchange Commission covering an aggregate of 2,613,308 shares of Hollywood Park common stock issuable upon exercise of options granted under the Hollywood Park Plans and the Boomtown Plans. OPTIONS/SAR GRANTS IN LAST FISCAL YEAR The following table summarizes the option grants to Named Officers during 1997:
Individual Grants - ---------------------------------------------------------------------------------------------- Percent of Total Potential Realizable Value Number of Options/ at Assumed Annual Rates Securities SARs of Stock Price Appreciation Underlying Granted to for Option Term Options/SARs Employees Exercise of ------------------------------ Granted in Fiscal Base Price Expiration Name (#) Year ($/Sh) Date 5% ($) 10% ($) - ------------------ ------------- ------------ ------------ --------------- ------------- ------------ R.D. Hubbard 45,000 17% $14.75 July 18, 2007 $417,429 $1,057,847 G. Michael Finnigan 25,000 9% 14.75 July 18, 2007 231,905 587,693 Donald M. Robbins 25,000 9% 14.75 July 18, 2007 231,905 587,693
AGGREGATED OPTIONS/SAR EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END OPTIONS/SAR VALUES The following table sets forth information with respect to the exercise of stock options during the year ended December 31, 1997, and the final year end value of unexercised options. None of the Named Officers exercised, nor held, stock appreciation rights during the year ended December 31, 1997.
Number of Securities Value of Underlying Unexercised Unexercised In-the-Money Shares Options/SARs Options/SARs Acquired At Fiscal At Fiscal On Value Year-End (#) Year-End ($) Exercise Realized Exercisable/ Exercisable/ Name (#) ($) Unexercisable Unexercisable (a) - ---------------------- --------------- -------------------- ---------------------- ------------------------- R.D. Hubbard 0 $ 0 28,334/101,666 $340,008/$1,219,992 G. Michael Finnigan 25,000 $204,063 38,334/51,666 $ 460,008/$619,992 Donald M. Robbins 25,000 $175,000 38,334/51,666 $ 460,008/$619,992 Mark A. Sterbens 40,000 $159,250 0/20,000 $ 0/$240,000
___ (a) Represents the difference between the market price of Hollywood Park Common Stock on December 31, 1997, and the exercise price of the options. 41 PENSION PLAN
Years of Qualified Service --------------------------------------------------------- Final Average Annual Salary 10 15 20 25 30 - -------------------------------- ------- ------- ------- ------- -------- $100,000 $24,745 $37,118 $49,490 $61,863 $ 66,863 $150,000 to $500,000 (a) 37,995 56,993 75,990 94,988 102,488
____ (a) Under current provisions of the Internal Revenue Code, the maximum average salary that may be used in calculating retirement benefits in 1996 was $150,000. Benefits accrued on April 1, 1994 (based on prior compensation limits) are grandfathered. Pension benefits were frozen as of September 1, 1996, for all plan participants, except retained participants, whose benefits were frozen as of December 31, 1996. Hollywood Park elected to terminate the Hollywood Park Pension Plan (the "Pension Plan") as of January 31, 1997. Accrued Pension Plan benefits were frozen as of September 1, 1996, for all Pension Plan participants, except retained participants, (participants who, because of legal requirements, including the provisions of the National Labor Relation Act, are represented by a collective bargaining agent) whose benefits were frozen as of December 31, 1996. The Pension Plan was a non-contributory, defined benefit plan covering employees of Hollywood Park, Inc., and all employees of Hollywood Park Operating Company, not eligible for participation in a multi-employer defined benefit plan, who met the Pension Plan's service requirement. R.D. Hubbard, G. Michael Finnigan, and Donald M. Robbins, are the only officers or directors of the Company who participated in the Pension Plan, and their Pension Plan benefits were frozen as of September 1, 1996, and as of that date, Messers. Hubbard, Finnigan and Robbins had two, six and ten years, respectively, of qualified years of service. Only amounts earned by Messers. Hubbard, Finnigan and Robbins listed under "Annual Compensation Salary" as shown in the Summary Compensation Table, were considered in determining their Pension Plan benefit levels. The amounts listed in the above Pension Plan table are estimated annual retirement benefits under the Pension Plan (assuming payments were made on the normal life annuity basis, and not under the provisions on survivor benefits) at a normal retirement age of 65 in 1996, after various years of qualified service, at selected average annual compensation levels. However, due to the Pension Plan benefits being frozen as of September 1, 1996, and based on their actual years of qualified service, and annual compensation levels, Messers. Hubbard, Finnigan and Robbins annual benefits, expressed as a joint and survivor annuity payment, starting at age 65, are $7,521, $29,082 and $51,009, respectively. The amounts required to fund the Pension Plan were determined actuarially, and were paid by Hollywood Park to a life insurance company under an unallocated annuity contract. Effective January 31, 1997, in conjunction with the termination of the Pension Plan, Hollywood Park elected to terminate its non-qualified Supplementary Employment Retirement Plan (the "SERP"). The SERP was an unfunded plan, established primarily for the purpose of restoring the retirement benefits for highly compensated employees that were eliminated by the Internal Revenue Service in 1994, when the maximum annual earnings allowed for qualified pension plans was reduced to $150,000 from $235,850. Messers, Hubbard, Finnigan and Robbins participated in the SERP, prior to its termination. BOARD COMMITTEES AND DIRECTOR COMPENSATION Hollywood Park has a standing Executive Committee which is chaired by Mr. Ornest and currently consists of Messrs. Hubbard, Ornest, Reitnouer, Parrott and Goeglein. The Executive Committee has and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of Hollywood Park to the fullest extent authorized by Delaware law. The Executive Committee had four formal meetings in 1997 and acted by unanimous written consent on five occasions. 42 Hollywood Park has a standing Audit Committee which is chaired by Mr. Williamson and currently consists of Messrs. Sarkowsky and Williamson and since the Boomtown Merger, Mr. Yocam. The functions of the Audit Committee are to review the audits of Hollywood Park's books performed by outside independent auditors, to consider matters of accounting policy and to investigate and recommend to the Board independent auditors for the following year. The Audit Committee met twice in 1997. Hollywood Park has a standing Compensation Committee, which currently consists of Messrs. Johnson and Reitnouer and since the Boomtown Merger Mr. Goeglein. Mr. Johnson chairs the Compensation Committee. The functions of the Compensation Committee are to make recommendations to the Board of Directors regarding the annual salaries and other compensation of the officers of Hollywood Park, to provide assistance and recommendations with respect to the compensation policies and practices of Hollywood Park and to assist with the administration of Hollywood Park's compensation plans. The Compensation Committee met once in 1997. The Executive Committee acts as Hollywood Park's nominating committee. The Executive Committee generally does not consider nominees recommended by Hollywood Park's stockholders. The Boomtown Merger Agreement provides that during the three year period ending June 30, 2000, the Executive Committee will consist of five members. Three of such members shall be Hollywood Park representatives (currently Messrs. Hubbard, Ornest and Reitnouer) and two shall be Boomtown representatives (currently Messrs. Parrott and Goeglein). The number of members of the Executive Committee may not be increased beyond five members at any time during such three year period without the consent of the majority of the Boomtown representatives on the committee. During 1997, each incumbent director of Hollywood Park attended at least 75% of the aggregate of (i) the three meetings of the Board of Directors and (ii) the total number of meetings of the committees on which he served (during the periods that he served). All directors hold office until the next annual meeting of stockholders and until their successors are duly elected and qualified. Directors are entitled to receive, and in 1997 received, an annual retainer fee at the rate of $25,000 per year plus a $1,000 fee for each Board meeting attended, which they may take in cash or in deferred compensation under Hollywood Park's Directors Deferred Compensation Plan (the "Directors Plan") as outlined below. In addition, members of the Executive Committee, Audit Committee and Compensation Committee receive $1,000 for each committee meeting attended, and such amounts are also eligible for the Directors Plan. Furthermore, directors and their guests are entitled, without charge, to use the Directors' Room at the Hollywood Park Race Track, which is open on weekends and holidays during the racing season. On July 18, 1997, each of Messrs. Johnson, Manfuso, Ornest, Reitnouer, Sarkowsky and Williamson (constituting all of the non-executive directors of Hollywood Park, excluding the Boomtown Directors) was granted a non-qualified stock option to purchase 2,000 shares of Hollywood Park common stock at an exercise price of $14.75 per share. One-third of the shares purchasable upon exercise of these options was vested on the grant date, with an additional one-third to vest on each of the first and second anniversary of the grant date. All of these options expire on the tenth anniversary of the grant date and (except for the options granted to Messrs. Johnson and Reitnouer) were granted under the Hollywood Park 1996 Stock Option Plan. DIRECTORS DEFERRED COMPENSATION PLAN Participation in Hollywood Park's Directors Deferred Compensation Plan is limited to directors of Hollywood Park. Pursuant to the Directors Plan, each eligible director may elect to defer all or a portion of his annual retainer and any fees for meetings attended. Any such deferred compensation is credited to a deferred compensation account, either in cash or in shares of Hollywood Park Common Stock, at each director's election. As of the date the director's compensation would otherwise have been paid, and depending on the director's election, the director's deferred compensation account will be credited with either (i) cash, (ii) the number of full and/or fractional shares of Hollywood Park common stock 43 obtained by dividing the amount of the director's compensation for the calendar quarter or month which he elected to defer, by the average of the closing price of Hollywood Park common stock on the principal stock exchange on which the Company's common stock listed (or, if the common shares are not listed on a stock exchange, the NASDAQ National Market System) on the last ten business days of the calendar quarter or month for which such compensation is payable or (iii) a combination of cash and shares of Hollywood Park common stock as described in clause (i) and (ii). All cash amounts credited to the director's deferred compensation account bear interest at an amount to be determined from time to time by the Board of Directors. If a director has elected to receive shares of Hollywood Park common stock in lieu of his retainer, such director's deferred compensation account is credited at the end of each calendar quarter with the number of full and/or fractional shares of Hollywood Park common stock obtained by dividing the dividends which would have been paid on the shares credited to the director's deferred compensation account as of the dividend record date, if any, occurring during such calendar quarter if such shares had been shares of issued and outstanding Hollywood Park common stock on such date, by the closing price of the Hollywood Park common stock on the New York Stock Exchange on the date such dividend(s) was paid. In addition, if Hollywood Park declares a dividend payable in shares of Hollywood Park common stock, the director's deferred compensation account is credited at the end of each calendar quarter with the number of full and/or fractional shares of Hollywood Park common stock which such shares would have been entitled to if such shares had been shares of issued and outstanding Hollywood Park common stock on the record date for such stock dividend(s). Participating directors do not have any interest in the cash and/or Hollywood Park common stock credited to their deferred compensation accounts until distributed in accordance with the Directors Plan, nor do they have any voting rights with respect to such shares until shares credited to their deferred compensation accounts are distributed. The rights of a director to receive payments under the Plan are no greater than the rights of an unsecured general creditor of Hollywood Park. Each participating director may elect to have the aggregate amount of cash and shares credited to his deferred compensation account distributed to him in one lump sum payment or in a number of approximately equal annual installments over a period of time not to exceed fifteen years. The lump sum payment or the first installment will be paid as of the first business day of the calendar quarter immediately following the cessation of the director's service as a director of Hollywood Park. Prior to the beginning of any calendar year, a director may elect to change the method of distribution, but amounts credited to a director's account prior to the effective date of such change may not be affected, but rather will be distributed in accordance with the election at the time such amounts were credited to the director's deferred compensation account. The maximum number of shares of Hollywood Park common stock that can be issued pursuant to the Directors Plan is 125,000 shares. Hollywood Park is not required to reserve or set aside funds or shares of Hollywood Park common stock for the payment of its obligations pursuant to the Directors Plan. Hollywood Park is obligated to make available, as and when required, a sufficient number of shares of common stock to meet the needs of the Directors Plan. The shares of Hollywood Park Common Stock to be issued under the Directors Plan may be either authorized and unissued shares or reacquired shares. Amendment, modification or termination of the Directors Plan may not (i) adversely affect any eligible director's rights with respect to amounts then credited to his account or (ii) accelerate any payments or distributions under the Directors Plan (except with regard to bona fide financial hardships). COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION The members of the Compensation Committee currently are Messrs. Johnson, Reitnouer and Goeglein. None of the members of the Compensation Committee were officers or employees or former officers or employees of the Company or its subsidiaries. COMPENSATION COMMITTEE REPORT ON EXECUTIVE COMPENSATION The Compensation Committee of the Board of Directors (the "Compensation Committee"), which is composed entirely of independent outside directors, is 44 responsible for making recommendations to the Board regarding the annual salaries and other compensation of the officers of Hollywood Park, providing assistance and recommendations with respect to the compensation policies and practices of Hollywood Park and assisting with the administration of Hollywood Park's compensation plans. In order to attract and retain well-qualified executives, which the Compensation Committee believes is crucial to Hollywood Park's success, the Compensation Committee's general approach to compensating executives is to pay cash salaries which are commensurate with the executives' experience and expertise and, where relevant, are competitive with the salaries paid to executives in Hollywood Park's main industries and primary geographic locations, which are currently land-based, dockside and riverboat casinos in Nevada, Louisiana, Mississippi, and other jurisdictions, thoroughbred horse racing tracks and card clubs in Southern California, and horse and dog racing tracks in Kansas and Arizona. In addition, to align its executives' compensation with Hollywood Park's business strategies, values and management initiatives, both short and long term, the Compensation Committee may, with the Board's approval, authorize the payment of discretionary bonuses based upon an assessment of each executive's contributions to Hollywood Park. In general, the Compensation Committee believes that these discretionary bonuses should be related to Hollywood Park's and the executive's performance, although specific performance criteria have not been established. The Compensation Committee also believes that stock ownership by key executives provides a valuable incentive for such executives and helps align executives' and stockholders' interests. To facilitate these objectives, Hollywood Park adopted the 1993 Plan and the 1996 Plan, pursuant to which Hollywood Park may grant stock options to executives (as well as other employees and directors) to purchase up to 625,000 shares and 900,000 shares, respectively, of Hollywood Park Common Stock. The Compensation Committee believes that the key officers of Hollywood Park have provided excellent services and been diligent in their commitment to Hollywood Park. The Compensation Committee believes that stock ownership by such officers provides an important incentive for their continued efforts and diligence. In July 1997, options aggregating 45,000, 25,000 and 25,000 shares were granted to Messrs. Hubbard, Robbins and Finnigan, respectively, at an exercise price of $14.75 per share. From 1993 through the end of 1997, Mr. Hubbard was paid a base salary of $400,000 per annum. This payment was fixed in 1992 based upon an analysis of (i) the annual compensation received by the Chief Executive Officer of Santa Anita Race Track, (ii) the annual base salaries currently being paid to Messrs. Robbins and Finnigan, (iii) the prominence of Mr. Hubbard in the business community in general and the horse racing community in particular, (iv) the level and value of the contribution that the Compensation Committee believes Mr. Hubbard has made, and can make in the future, to Hollywood Park and (v) the fact that Mr. Hubbard was willing to accept this amount even though the Compensation Committee believes that he could command a much higher compensation level based upon his business experience and expertise. Commencing January 1, 1998, Mr. Hubbard's base salary was increased to $500,000 per annum, based upon the above- mentioned factors, and also Hollywood Park's expansion into the card club and gaming business, where executive salaries tend to be substantially higher than those in the thoroughbred horse racing business. While Mr. Hubbard's base salary is not dependent upon Hollywood Park's performance, it is anticipated that any bonuses he may receive, based upon the recommendation of the Compensation Committee and the approval of the Board of Directors, would be, at least in part, so dependent. January 26, 1998 COMPENSATION COMMITTEE J.R. Johnson (Chairman) Lynn P. Reitnouer Richard Goeglein 45 ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT - ----------------------------------------------------------------------- The following table sets forth the name, address (address is provided for persons listed as beneficial owners of 5% or more of the outstanding Hollywood Park common stock) and number of shares and percent of the outstanding Hollywood Park common stock beneficially owned as of March 15, 1998, by each person known to the Board of Directors of Hollywood Park to be the beneficial owner of 5% or more of the outstanding shares of Hollywood Park common stock, each Director, each Named Officer and all current Directors and Executive Officers as a group.
Shares Percent of Beneficially Shares Name and Address of Beneficial Owner Owned (a) Outstanding (b) - ---------------------------------------------------------------- ----------------------- ------------------------ R.D. Hubbard 2,676,509 (c) 10.2% Hollywood Park, Inc. 1050 South Prairie Avenue Inglewood, California 90301 Legg Mason, Inc. 2,337,500 (d) 8.9% 111 South Calvert Street Baltimore, Maryland 21202 State of Wisconsin Investment Board 1,780,000 (e) 6.8% P.O. Box 7842 Madison, Wisconsin 53707 Timothy J. Parrott 443,049 (f) 1.7% J.R. Johnson 376,094 (g) 1.4% Harry Ornest 133,334 (h) * Warren B. Williamson 155,251 (i) * Lynn P. Reitnouer 57,334 (j) * Herman Sarkowsky 53,272 (k) * Robert T. Manfuso 35,667 (l) * Richard J. Goeglein 6,125 (m) * Peter L. Harris 3,250 (n) * Delbert W. Yocam 1,896 (o) * G. Michael Finnigan 67,081 (p) * Donald M. Robbins 54,005 (q) * Current Directors and Executive Officers as a group (13 persons) 4,062,867 15.2%
____ * Less than one percent (1%) of the outstanding common shares. (a) Reflects the conversion of each of Hollywood Park's outstanding Depositary Shares into 0.8333 shares of Hollywood Park Common Stock effective August 28, 1997. (b) Assumes exercise of stock options beneficially owned by the named individual or entity into shares of Hollywood Park Common Stock. Based on 26,285,454 shares outstanding as of March 15, 1998. (c) Includes 56,668 shares of Hollywood Park Common Stock which Mr. Hubbard has the right to acquire upon the exercise of options which are exercisable within 60 days of March 15, 1998. (d) Based upon information provided by the stockholder in Schedule 13G filed with the Commission on February 12, 1998. (e) Based upon information provided by the stockholder in Schedule 13G filed with the Commission on January 22, 1998. (f) Includes 270,278 shares of Hollywood Park Common Stock which Mr. Parrott has the right to acquire pursuant to options assumed by the Company in connection with the Boomtown Merger which are exercisable within sixty days of March 15, 1998 (g) Includes 7,334 shares of Hollywood Park Common Stock which Mr. Johnson has the right to acquire upon the exercise of options which are exercisable within 60 days of March 46 15, 1998. (h) Includes 70,000 shares of Hollywood Park Common Stock held by The Ornest Family Foundation, for which Mr. Ornest and his wife Ruth Ornest act as trustees. (Mr. Ornest disclaims any pecuniary interest in these shares.) In addition, as trustees of the Harry and Ruth Ornest Trust, Mr. Ornest and his wife share the power to vote 60% of the interest in the Ornest Family Partnership (the "Partnership"), which in turn has the power to dispose of the 56,300 shares of Hollywood Park Common Stock held in the name of the Partnership. Also includes 7,334 shares of Hollywood Park Common Stock which Mr. Ornest has the right to acquire upon the exercise of options which are exercisable within 60 days of March 15, 1998. (i) Includes 7,334 shares of Hollywood Park Common Stock which Mr. Williamson has the right to acquire upon the exercise of options which are exercisable within 60 days of March 15, 1998. (j) Includes 7,334 shares of Hollywood Park Common Stock which Mr. Reitnouer has the right to acquire upon the exercise of options which are exercisable within 60 days of March 15, 1998. (k) Includes 7,334 shares of Hollywood Park Common Stock which Mr. Sarkowsky has the right to acquire upon the exercise of options which are exercisable within 60 days of March 15, 1998. (l) Includes 7,334 shares of Hollywood Park Common Stock which Mr. Manfuso has the right to acquire upon the exercise of options which are exercisable within 60 days of March 15, 1998. (m) Includes 4,875 shares of Hollywood Park Common Stock which Mr. Goeglein has the right to acquire pursuant to options assumed by the Company in connection with the Boomtown Merger which are exercisable within 60 days of March 15, 1998. (n) Includes 3,250 shares of Hollywood Park Common Stock which Mr. Harris has the right to acquire pursuant to options assumed by the Company in connection with the Boomtown Merger which are exercisable within 60 days of March 15, 1998. (o) Includes 1,896 shares of Hollywood Park Common Stock which Mr. Yocam has the right to acquire pursuant to options assumed by the Company in connection with the Boomtown Merger which are exercisable within 60 days of March 15, 1998. (p) Includes 51,667 shares of Hollywood Park Common Stock which Mr. Finnigan has the right to acquire pursuant to options which are exercisable within 60 days of March 15, 1998. (q) Includes 51,667 shares of Hollywood Park Common Stock which Mr. Robbins has the right to acquire pursuant to options which are exercisable within 60 days of March 15, 1998. (r) Includes 484,305 shares of Hollywood Park Common Stock of which the Directors and Executive Officers may be deemed to have beneficial ownership following the exercise of options to purchase Hollywood Park Common Stock which are exercisable within 60 days of March 15, 1998. Excluding such shares, the Directors and Executive Officers of Hollywood Park have beneficial ownership of 3,578,562 shares of Hollywood Park Common Stock, which represents 13.6% of the shares of Hollywood Park Common Stock outstanding as of March 15, 1998.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS - ------------------------------------------------------- Since November 1993, Hollywood Park has had an aircraft time sharing agreement with R.D. Hubbard Enterprises, Inc. ("Hubbard Enterprises"), which is wholly owned by Mr. Hubbard. The agreement automatically renews each month unless written notice of termination is given by either party at least two weeks before a renewal date. Hollywood Park reimburses Hubbard Enterprises for expenses incurred as a result of Hollywood Park's use of the aircraft, which totaled approximately $106,000 in 1997, $120,000 in 1996, and $126,000 in 1995. In May 1988, Boomtown acquired all of the outstanding stock of Boomtown Hotel & Casino, Inc. which owns and operates Boomtown Reno for $16,700,000 in cash (the "1988 Acquisition"). In order to finance the 1988 Acquisition, including the retirement of existing debt, Boomtown sold equity securities to Kenneth Rainin and Timothy J. Parrott, and Boomtown Reno entered into various loan documents with Merrill Lynch Interfunding, 47 Inc. Pursuant to a stock purchase agreement, Mr. Rainin purchased 2,000 shares of Boomtown preferred stock and 3,042,000 shares of Boomtown common stock for an aggregate purchase price of approximately $4,000,000 in cash, and Mr. Parrott purchased 270,738 shares of Boomtown common stock for an aggregate purchase price of $222,000, of which $1,000 was paid in cash and $221,000 by a promissory note (the "Parrott Note") secured by a pledge to Boomtown of all of the shares owned by Mr. Parrott. The Parrott Note, as amended in April 1997, provides that (i) interest on the Parrott Note, which accrues at a rate of 6.0% per annum, compounded annually, is payable in arrears on April 7th of each year, commencing April 7, 1998, and (ii) principal is payable in four annual installments beginning April 7, 1998. The Parrott Note was previously amended in November 1994 to provide that the shares owned by Mr. Parrott would be released from the pledge and would no longer secure the amounts outstanding under the Parrott Note. Hollywood Park notes that the interest rate of 6% under the amended Parrott Note is less than Hollywood Park's current borrowing rate. However, this interest rate was in effect under the original version of the Parrott Note executed in 1988 prior to Boomtown's public offering and Hollywood Park's subsequent acquisition of Boomtown. On July 1, 1997, Hollywood Park completed a swap pursuant to the Blue Diamond Swap Agreement entered into on August 12, 1996, by and between Boomtown, Blue Diamond Hotel and Casino, Inc. ("Blue Diamond"), Hollywood Park, Edward P. Roski, Jr., IVAC, a California general partnership ("IVAC"), and Majestic Realty Co., as amended (the "Swap Agreement"). Under the Swap Agreement, immediately following the consummation on June 30, 1997 of the Boomtown Merger, Boomtown and its subsidiaries transferred their interests in the Blue Diamond hotel/casino facilities in Las Vegas (including Boomtown's leasehold interest in the land and certain IVAC Loans (as defined below) which were transferred to IVAC) (collectively, the "Las Vegas Resort") to Majestic Resorts, LLC, an affiliate of Mr. Roski ("Majestic"), in exchange for cash, two unsecured promissory notes aggregating $8,500,000 in principal amount by IVAC and assumption by Mr. Roski and Majestic of certain liabilities (the "Blue Diamond Swap"). In accordance with the terms of the Swap Agreement, Mr. Roski resigned from Boomtown's Board of Directors, effective as of the effective date of the Boomtown Merger. On July 1, 1997, concurrently with the Blue Diamond Swap, Hollywood Park and Mr. Roski consummated a Stock Purchase Agreement dated August 12, 1996 (the "Stock Purchase Agreement") pursuant to which Hollywood Park repurchased from Mr. Roski 446,491 shares of Hollywood Park Common Stock receivable by him in the Boomtown Merger. The purchase price of approximately $3,500,000 was paid for by an unsecured promissory note having an interest rate equal to the prime rate plus one percent (1%) per annum and providing for four equal annual principal payments plus accrued interest and maturing on the date that is four years after the closing. Prior to the opening of the Las Vegas Resort, Boomtown owned a 50% interest in Blue Diamond, the operating company leasing the hotel/casino facility and the land in Las Vegas, and was primarily responsible for the development and management of the Las Vegas Resort. In June 1994, Boomtown exercised its right to acquire the remaining 50% of Blue Diamond from Mr. Roski in exchange for 714,286 shares of Boomtown Common Stock. Mr. Roski was a member of the Board of Directors of Boomtown and an affiliate of IVAC, which owns the land and building leased by Boomtown for the Las Vegas Resort. Boomtown loaned IVAC $27.3 million (the "IVAC Loans") which was used to help construct the Las Vegas Resort. The IVAC Loans were secured by separate deeds of trust on the Las Vegas Resort, which deeds of trusts are subordinate to separate deeds of trust securing Blue Diamond's and Boomtown's obligations in connection with an indenture relating to a debt offering. Boomtown received interest income of $2,700,000 annually from IVAC as a result of these loans. In turn, Blue Diamond paid rent to IVAC in the amount of $5,400,000 million annually to lease the facility. Blue Diamond further had the right to purchase the Las Vegas Resort from IVAC in accordance with terms of an option which expired in November 1996. As discussed above, on July 1, 1997, Hollywood Park divested all interests in the Las Vegas Resort by completing a swap pursuant to the Swap Agreement. Mr. Parrott is employed as Chairman of the Board and Chief Executive Officer of Boomtown pursuant to an Employment Agreement entered into as of October 8, 1995 and amended as of April 7, 1997 (the 48 "Employment Agreement"). The Employment Agreement provides for a term expiring on May 30, 2000 and a base salary of at least $375,000 per annum, and entitles Mr. Parrott to participate in Boomtown's cash bonus plan. During 1997, Mr. Parrott's base salary and cash bonus totaled $375,000 and $102,442, respectively. In addition, the Employment Agreement provides that in the event of a change of control of Boomtown, all options granted to Mr. Parrott prior to such change of control shall become fully vested and exercisable. The Boomtown Merger constituted such a change of control. The Employment Agreement also provides that in the event of termination of employment without cause, Mr. Parrott shall receive severance payments consisting of, among other things, base salary for three years after termination, subject to mitigation in the event Mr. Parrott obtains alternative employment during the applicable severance payment period, as well as accelerated vesting of Mr. Parrott's stock options. Under the Employment Agreement, Mr. Parrott is also entitled to receive such fringe benefits and perquisites as may be granted or established by Boomtown from time to time, including an automobile allowance. Effective May 7, 1997, Mark A. Sterbens resigned as Hollywood Park's President and Chief Operating Officer of Gaming. During 1997, Hollywood Park paid Mr. Sterbens approximately $88,000 in base salary prior to his termination, and approximately $162,000 in severance after his termination. PART IV ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K - ------------------------------------------------------------------------- (a) Documents filed as a part of this report. 1. The consolidated financial statements are set forth in the index to Consolidated Financial Statements beginning on page 57. 2. Exhibits
Exhibit Number Description of Exhibit - --------- ----------------------------------------------------------------------------------------------------- 2.1 Agreement and Plan of Reorganization, by and among Hollywood Park, Inc., and Pacific Casino Management, Inc., dated November 17, 1995, is hereby incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K, filed November 30, 1995, and to the Company's Current Report on Form 8-K/A, filed January 25, 1996. 2.2 Agreement and Plan of Merger, by and among Hollywood Park, Inc., HP Acquisition, Inc., and Boomtown, Inc., dated April 23, 1996, is hereby incorporated by reference to Exhibit 2.1 to the Company's Current Report on Form 8-K, filed May 3, 1996. 2.3 Agreement and Plan of Merger, dated as of February 19, 1998, among Casino Magic Corp., Hollywood Park, Inc. and HP Acquisition II, Inc., is hereby incorporated by reference to Exhibit 2.1 to the Company's Current Report on Form 8-K, filed February 26, 1998. 3.1 Certificate of Incorporation of Hollywood Park, Inc., is hereby incorporated by reference to Exhibit 3.1 to the Company's Registration Statement on Form S-1 dated January 29, 1993. 3.2 Amended By-laws of Hollywood Park, Inc. are hereby incorporated by reference to Exhibit 3.2 to the Company's Registration Statement on Form S-1 dated January 29, 1993. 3.3 Certificate of Incorporation of Hollywood Park Operating Company, is hereby incorporated by reference to Exhibit 3.3 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.4 Amended By-laws of Hollywood Park Operating Company, are hereby incorporated by reference to Exhibit 3.4 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.5 Certificate of Incorporation of Hollywood Park Fall Operating Company, is hereby incorporated by reference to Exhibit 3.5 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998.
49 3.6 By-laws of Hollywood Park Fall Operating Company are hereby incorporated by reference to Exhibit 3.6 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.7 Articles of Incorporation of Hollywood Park Food Services, Inc., are hereby incorporated by reference to Exhibit 3.7 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.8 By-laws of Hollywood Park Food Services, Inc., are hereby incorporated by reference to Exhibit 3.8 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.9 Articles of Incorporation of HP/Compton, Inc., are hereby incorporated by reference to Exhibit 3.9 to the Company's Amendment No. 4 to Form S-4 Registration dated February 6, 1998. 3.10 By-laws of HP/Compton, Inc., are hereby incorporated by reference to Exhibit 3.10 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.11 Articles of Organization of Crystal Park Hotel and Casino Development Company, LLC, are hereby incorporated by reference to Exhibit 3.11 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.12 Operating Agreement of Crystal Park Hotel and Casino Development Company, LLC, are hereby incorporated by reference to Exhibit 3.12 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.13 Restated Articles of Incorporation of Turf Paradise, Inc., are hereby incorporated by reference to Exhibit 3.13 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.14 By-laws of Turf Paradise, are hereby incorporated by reference to Exhibit 3.14 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.15 Certificate of Incorporation of HP Yakama, Inc., is hereby incorporated by reference to Exhibit 3.15 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.16 By-laws of HP Yakama, Inc., are hereby incorporated by reference to Exhibit 3.16 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.17 Amended and Restated Certificate of Incorporation of Boomtown, Inc., is hereby incorporated by reference to Exhibit 3.17 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.18 By-laws of Boomtown, Inc., are hereby incorporated by reference to Exhibit 3.18 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.19 Certificate of Amended and Restated Articles of Incorporation of Boomtown Hotel & Casino, Inc., are hereby incorporated by reference to Exhibit 3.19 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.20 Revised and Restated By-laws of Boomtown Hotel & Casino, Inc., are hereby incorporated by reference to Exhibit 3.20 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.21 Articles of Incorporation of Bayview Yacht Club, Inc., are hereby incorporated by reference to Exhibit 3.21 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.22 By-laws of Bayview Yacht Club, Inc., are hereby incorporated by reference to Exhibit 3.22 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.23 Certificate of Mississippi Limited Partnership of Mississippi - I Gaming, L.P., are hereby incorporated by reference to Exhibit 3.23 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 3.24 Amended and Restated Agreement of Limited Partnership of Mississippi - I Gaming, L.P., is hereby incorporated by reference to Exhibit 10.31 to the Company's Quarterly Report on Form 10-Q for quarter ended June 30, 1997. 3.25 Articles of Incorporation of Louisiana Gaming Enterprises, Inc., are hereby incorporated by reference to Exhibit 3.25 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998.
50 3.26 Amended and Restated Partnership Agreement of Louisiana - I Gaming, a Louisiana Partnership in Commendam, is hereby incorporated by reference to Exhibit 3.26 to the Company's Amendment No. 4 to Form S-4 Registration Statement dated February 6, 1998. 4.5 Convertible Preferred Stock Depositary Stock Agreement between Hollywood Park, Inc. and Chase Mellon Shareholder Services, dated February 9, 1993, is hereby incorporated by reference to Exhibit 4.5 to the Company's Registration Statement on Form S-1 dated January 29, 1993. 4.7 Hollywood Park 1996 Stock Option Plan is hereby incorporated by reference to Exhibit 10.24 to the Company's Registration Statement on Form S-4 dated September 18, 1996. 4.8 Hollywood Park 1993 Stock Option Plan is hereby incorporated by reference to Appendix A to the Notice of Annual Meeting to Shareholders and Proxy Statement relating to the Annual Meeting of Stockholders of Hollywood Park, Inc. held on May 17, 1993. 4.9 Indenture, dated August 1, 1997, by and among the Company, Hollywood Park Operating Company, Hollywood Park Food Services, Inc., Hollywood Park Fall Operating Company, HP/Compton, Inc., Crystal Park Hotel and Casino Development Company, LLC, HP Yakama, Inc., Turf Paradise, Inc., Boomtown, Inc., Boomtown Hotel & Casino, Inc., Louisiana - I Gaming, Louisiana Gaming Enterprises, Inc., Mississippi - I Gaming, L.P., Bayview Yacht Club, Inc. and The Bank of New York, as trustee, is hereby incorporated by reference to Exhibit 10.37 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997. 4.10 Form of Series B 9.5% Senior Subordinated Note due 2007 (included in Exhibit 4.9), is hereby incorporated by reference to the Company's Amendment No.1 to Registration Statement on Form S-4 dated October 30, 1997. 10.1 Directors Deferred Compensation Plan for Hollywood Park, Inc. is hereby incorporated by reference to Exhibit 10.6 to the Company's Annual Report on Form 10-K for the year ended December 31, 1991. 10.2 Lease Agreement dated as of January 1, 1989, by and between Hollywood Park Realty Enterprises, Inc. and Hollywood Park Operating Company, as amended, is hereby incorporated by reference to Exhibit 2 to the Joint Annual Report on Form 10-K for the fiscal year ended December 31, 1989, of Hollywood Park Operating Company and Hollywood Park Realty Enterprises, Inc. 10.3 Aircraft rental agreement dated November 1, 1993, by and between Hollywood Park, Inc. and R.D. Hubbard Enterprises, Inc. is hereby incorporated by reference to Exhibit 10.7 to the Company's Annual Report on Form 10-K for the year ended December 31, 1993. 10.4 Amended and Restated Credit Agreement dated March 23, 1994, by and between Sunflower Racing, Inc. and First Union National Bank of North Carolina, Bank One Lexington, Texas Commerce Bank, Home State Bank of Kansas City and Intrust Bank, N.A. is hereby incorporated by reference to Exhibit 10.9 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1994. 10.5 Pledge Agreement dated March 23, 1994, by and between Hollywood Park, Inc., First Union National Bank of North Carolina, (as agent for the ratable benefit of itself and the Banks named in the Amended and Restated Credit Agreement included as Exhibit 10.4) is hereby incorporated by reference to Exhibit 10.10 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1994. 10.6 Amendment of Oil and Gas Lease dated January 10, 1995, by and between Hollywood Park, Inc. and Casex Co., Nunn Ltd., and Vortex Energy & Minerals is hereby incorporated by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1994. 10.7 Agreement Respecting Pyramid Casino dated December 3, 1994, by and between Hollywood Park, Inc. and Compton Entertainment, Inc., is hereby incorporated by reference to Exhibit 10.11 to the Company's Annual Report on Form 10-K for the year ended December 31, 1994. 10.8 Amendment to Agreement Respecting Pyramid Casino dated April 14, 1995, by and between Hollywood Park, Inc., and Compton Entertainment, Inc., is hereby incorporated by reference to Exhibit 10.14 to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1995.
51 10.9 Amended and Restated Agreement Respecting Pyramid Casino dated July 14, 1995, by and between Hollywood Park, Inc., and Compton Entertainment, Inc., is hereby incorporated by reference to Exhibit 10.15 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1995. 10.10 Amended and Restated Disposition and Development Agreement of Purchase and Sale, and Lease with Option to Purchase, dated August 2, 1995, by and between The Community Redevelopment Agency of the City of Compton and Compton Entertainment, Inc., is hereby incorporated by reference to Exhibit 10.16 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1995. 10.11 Guaranty, dated July 31, 1995, by Hollywood Park, Inc., in favor of the Community Redevelopment Agency of the City of Compton, is hereby incorporated by reference to Exhibit 10.17 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1995. 10.12 Lease by and between HP/Compton, Inc. and Compton Entertainment, Inc., dated August 3, 1995, is hereby incorporated by reference to Exhibit 10.18 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1995. 10.13 First Amendment to Lease by and between HP/Compton, Inc., and Compton Entertainment, Inc., dated March 12, 1996, is here by incorporated by reference to Exhibit 10.18 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1996. 10.14 Second Amendment to Lease by and between Crystal Park Hotel and Casino Development Company LLC, and Compton Entertainment, Inc., dated September 13, 1996, is hereby incorporated by reference to Exhibit 10.19 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1996. 10.15 Assignment, Assumption and Consent Agreement, by and among HP/Compton, Inc., and Crystal Park Hotel and Casino Development Company LLC, Hollywood Park, Inc. and The Community Redevelopment Agency of the City of Compton, dated July 18, 1996, is hereby incorporated by reference to Exhibit 10.20 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1996. 10.16 Consent of Compton Entertainment, Inc., and Rouben Kandilian, by and between Hollywood Park, Inc., and Compton Entertainment, Inc., dated August 29, 1996, is hereby incorporated by reference to Exhibit 10.21 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1996. 10.17 License Agreement, dated June 27, 1996, by and between HP/Compton, Inc., and Radisson Hotels International, Inc. is hereby incorporated by reference to Exhibit 10.17 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1996. 10.18 Operating Agreement for Crystal Park Hotel and Casino Development Company, LLC, a California Limited Liability Company, dated July 18, 1996, effective August 28, 1996, is hereby incorporated by reference to Exhibit 10.24 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1996. 10.19 Blue Diamond Swap Agreement by and among Boomtown, Inc., Blue Diamond Hotel & Casino, Inc., Hollywood Park, Inc., Edward P. Roski, Jr., IVAC and Majestic Realty Co., dated August 12, 1996, is hereby incorporated by reference to Exhibit 10.22 to the Company's Registration Statement on Form S-4 filed September 18, 1996. 10.20 Stock Purchase Agreement, by and between Hollywood Park, Inc. and Edward P. Roski, Jr., dated August 12, 1996, is hereby incorporated by reference to Exhibit 10.23 to the Company's Registration Statement on Form S-4 filed September 18, 1996. 10.21 Reducing Revolving Loan Agreement dated March 27, 1997, among Hollywood Park, Inc., and Bank of Scotland, Bankers Trust Company, Societe Generale, Bank of America National Trust and Savings Association, is here by incorporated by reference to Exhibit 10.27 to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1997. 10.22 Amendment No. 1 to Reducing Revolving Loan Agreement, dated June 30, 1997, is hereby incorporated by reference to Exhibit 10.29 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997.
52 10.23 Amendment No. 2 to Reducing Revolving Loan Agreement, dated July 30, 1997, is hereby incorporated by reference to Exhibit 10.30 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997. 10.24 Agreement of Limited Partnership for Huron Gaming, L.P., a Delaware Limited Partnership, Kansas Project, dated July 14, 1997, is hereby incorporated by reference to Exhibit 10.28 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997. 10.25 Amended and Restated Agreement of Limited Partnership of Mississippi - I Gaming, L.P., is hereby incorporated by reference to Exhibit 10.31 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997. 10.26 Amended Equity Conversion Agreement, dated July 18, 1994, by and between Boomtown, Inc., and Eric Skrmetta, is hereby incorporated by reference to Exhibit 10.32 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997. 10.27 Ground Lease, dated October 19, 1993, between Raphael Skrmetta as Landlord and Mississippi - I Gaming, L.P. as Tenant, is hereby incorporated by reference to Exhibit 10.33 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997. 10.28 First Amendment to Ground Lease dated October 19, 1993, between Raphael Skrmetta and Mississippi - I Gaming, L.P., is hereby incorporated by reference to Exhibit 10.34 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997. 10.29 Second Amendment to Ground Lease dated October 19, 1993, between Raphael Skrmetta and Mississippi - I Gaming, L.P., is hereby incorporated by reference to Exhibit 10.35 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997. 10.30 Purchase Agreement, dated August 1, 1997, by and among the Company, Hollywood Park Operating Company, Hollywood Park Food Services, Inc., HP/Compton, Inc., Crystal Park Hotel and Casino Development Company, LLC, Hollywood Park Fall Operating Company, HP Yakama, Inc., Turf Paradise, Inc., Boomtown, Inc., Boomtown Hotel & Casino, Inc., Louisiana Gaming - I Gaming, Louisiana Gaming Enterprises, Inc., Mississippi - I Gaming, L.P., Bayview Yacht Club, Inc., and the Initial Purchasers named therein, is hereby by incorporated by reference to Exhibit 10.36 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997. 10.31 Registration Rights Agreement, dated August 1, 1997, by and among the Company, Hollywood Park Operating Company, Hollywood Park Food Services, Inc., HP/Compton, Inc., Crystal Park Hotel and Casino Development Company, LLC, Hollywood Park Fall Operating Company, HP Yakama, Inc., Turf Paradise, Inc., Boomtown, Inc., Boomtown Hotel & Casino, Inc., Louisiana - I Gaming, Louisiana Gaming Enterprises, Inc., Mississippi - I Gaming, L.P., Bayview Yacht Club, Inc., and the Initial Purchasers named therein is hereby incorporated by reference to Exhibit 10.38 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997. 10.32 Agreement, by and between Crystal Park Hotel and Casino Development Company, LLC and Compton Entertainment, Inc., dated September 12, 1997, is hereby incorporated by reference to Exhibit 10.39 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1997. 10.33 Profit Participation Agreement, by and between Hollywood Park, Inc., and North American Sports Management, Inc., dated July 14, 1997, is hereby incorporated by reference to Exhibit 10.40 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1997. 10.34 Loan Agreement, by and between Yakama Tribal Gaming Corporation and HP Yakama, Inc., dated September 11, 1997, is hereby incorporated by reference Exhibit 10.41 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1997. 10.35 Security Agreement, by and between Yakama Tribal Gaming Corporation and HP Yakama, Inc., dated September 11, 1997, is hereby incorporated by reference to Exhibit 10.42 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1997. 10.36 Master Lease, by and between The Confederated Tribes and Bands of the Yakama Indian Nation and HP Yakama, Inc., dated September 11, 1997, is hereby incorporated by reference to Exhibit 10.43 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1997. 10.37 Sublease, by and between HP Yakama, Inc. and Yakama Tribal Gaming Corporation, dated September 11, 1997, is hereby incorporated by reference to Exhibit 10.44 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1997.
53 10.38 Construction and Development Agreement, by and between Yakama Tribal Gaming Corporation and HP Yakama Consulting, Inc., dated September 11, 1997, is hereby incorporated by reference to Exhibit 10.45 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1997. 10.39 Consulting Agreement, by and between Yakama Tribal Gaming Corporation and HP Yakama Consulting, Inc., dated September 11, 1997, is hereby incorporated by reference to Exhibit 10.46 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1997. 10.40 Voting Agreement, dated as of February 25, 1998, by and between Hollywood Park, Inc., and Marlin F. Torguson, is hereby incorporated by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K, filed February 26, 1998. 10.41 * Lease, by and between Crystal Park Hotel and Casino Development Company, LLC and California Casino Management, Inc., dated December 19, 1997. 10.42 * Termination of Consulting Agreement, among Yakama Tribal Gaming Corporation, HP Yakama, Inc., and the Confederated Tribes and Bands of the Yakama Indians, dated January 1, 1998. 10.43 * Public Trust Tidelands Lease, dated August 15, 1994, by and between the Secretary of State on behalf of the State of Mississippi and Mississippi - I Gaming, L.P. 10.44 * Public Trust Tidelands Lease Amendment, dated March 31, 1997, by and between the Secretary of State on behalf of the State of Mississippi and Mississippi - I Gaming, L.P. 21.1 Subsidiaries of Hollywood Park, Inc.: (a) Hollywood Park Operating Company a Delaware corporation, and its subsidiaries: Hollywood Park Fall Operating Company a Delaware corporation and Hollywood Park Food Services, Inc., a Delaware corporation; (b) Sunflower Racing, Inc., a Kansas Corporation, and its subsidiary SR Food and Beverage, Inc., a Kansas corporation; (c) Turf Paradise, Inc. an Arizona corporation; (d) HP/Compton, Inc., a California corporation, which owns 89.8% of Crystal Park Hotel and Casino Development Company, LLC, a California Limited Liability Company; (e) HP Casino, Inc., a California corporation, which owns 10.2% of Crystal Park Hotel and Casino Development Company, LLC; (f) Boomtown, Inc. a Delaware corporation and its subsidiaries: Boomtown Hotel & Casino, Inc. a Nevada corporation, Bayview Yacht Club, Inc., a Mississippi corporation, Mississippi - I Gaming, L.P., a Mississippi corporation, Louisiana Gaming Enterprises, Inc., a Louisiana corporation, and Louisiana - I Gaming, a Louisiana Partnership in Commendam. 23.1 * Consent of Arthur Andersen LLP 23.2 * Consent of Arthur Andersen LLP 23.3 * Consent of Arthur Andersen LLP 23.4 * Consent of Ernst & Young LLP 23.5 * Consent of Ernst & Young LLP 27.1 * Financial Data Schedule 27.2 * Financial Data Schedule 27.3 * Financial Data Schedule 27.4 * Financial Data Schedule 27.5 * Financial Data Schedule 27.6 * Financial Data Schedule 27.7 * Financial Data Schedule 27.8 * Financial Data Schedule 27.9 * Financial Data Schedule 99.1 * Hollywood Park, Inc., Proxy Statement, dated February 13, 1998.
---------- * Filed herewith (b) Reports on Form 8-K A Current Report on Form 8-K was filed February 26, 1998, to report the February 19, 1998, execution of the Agreement and Plan of Merger, among Hollywood Park, Inc., HP Acquisition II, Inc. and Casino Magic Corp. 54 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. HOLLYWOOD PARK, INC. (Registrant) By: /s/ R.D. Hubbard Dated: March 27, 1998 ---------------- R.D. Hubbard Chairman of the Board and Chief Executive Officer (Principal Executive Officer) By: /s/ G. Michael Finnigan Dated: March 27, 1998 ----------------------- G. Michael Finnigan Executive Vice President and Chief Financial Officer (Principle Financial and Accounting Officer) HOLLYWOOD PARK OPERATING COMPANY (Registrant) By: /s/ G. Michael Finnigan Dated: March 27, 1998 ----------------------- G. Michael Finnigan Executive Vice President, Treasurer and Chief Financial Officer (Principle Financial and Accounting Officer) Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and it the capacities and on the dates indicated: 55 HOLLYWOOD PARK, INC. \s\ R.D. Hubbard Dated: March 27, 1998 - ---------------------------------- R.D. Hubbard - Director \s\ Harry Ornest Dated: March 27, 1998 - ---------------------------------- Harry Ornest - Director \s\ Richard Goeglein Dated: March 27, 1998 - ---------------------------------- Richard Goeglein - Director \s\ Peter L. Harris Dated: March 27, 1998 - ---------------------------------- Peter L. Harris - Director \s\ J.R. Johnson Dated: March 27, 1998 - ---------------------------------- J.R. Johnson - Director \s\ Robert T. Manfuso Dated: March 27, 1998 - ---------------------------------- Robert T. Manfuso - Director \s\ Timothy J. Parrott Dated: March 27, 1998 - ---------------------------------- Timothy J. Parrott - Director \s\ Lynn P. Reitnouer Dated: March 27, 1998 - ---------------------------------- Lynn P. Reitnouer - Director \s\ Warren B. Williamson Dated: March 27, 1998 - ---------------------------------- Warren B. Williamson - Director \s\ Herman Sarkowsky Dated: March 27, 1998 - ---------------------------------- Herman Sarkowsky - Director \s\ Delbert W. Yocam Dated: March 27, 1998 - ---------------------------------- Delbert W. Yocam - Director HOLLYWOOD PARK OPERATING COMPANY \s\ R.D. Hubbard Dated: March 27, 1998 - ---------------------------------- R.D. Hubbard - Director \s\ Harry Ornest Dated: March 27, 1998 - ---------------------------------- Harry Ornest - Director \s\ Warren B. Williamson Dated: March 27, 1998 - ---------------------------------- Warren B. Williamson - Director 56 Hollywood Park, Inc. Index to Consolidated Financial Statements Hollywood Park, Inc. -------------------- Report of Independent Public Accountants Report of Arthur Andersen LLP................................... 59 Consolidated Balance Sheets as of December 31, 1997 and 1996...... 60 Consolidated Statements of Operations for the years ended December 31, 1997, 1996 and 1995....................... 61 Consolidated Statements of Changes in Stockholders' Equity for the years ended December 31, 1997, 1996 and 1995......... 62 Consolidated Statements of Cash Flows for the years ended December 31, 1997, 1996 and 1995....................... 63 Notes to Financial Statements...................................... 64 Schedule II........................................................ 87 Other Financial Data............................................... 88 Crystal Park Hotel and Casino Development Company, LLC ------------------------------------------------------ Report of Independent Public Accountant Report of Arthur Andersen LLP................................... 90 Balance Sheets as of December 31, 1997, and December 31, 1996..... 91 Statements of Operations for the year ended December 31, 1997, and Inception through December 31, 1996...................... 92 Statements of Changes in Members' Equity for the year ended December 31, 1997, and Inception through December 31, 1996... 93 Statements of Cash Flows for the year ended December 31, 1997, and Inception through December 31, 1996...................... 94 Notes to Financial Statements..................................... 95 Mississippi - I Gaming, L.P. ---------------------------- Reports of Independent Public Accountants Report of Ernst & Young LLP.................................... 98 Report of Arthur Andersen LLP.................................. 99 Balance Sheets as of December 31, 1997, June 30, 1997 and September 30, 1996...................................... 100 Statements of Operations for the six months ended December 31, 1997, for the nine months ended June 30, 1997 and 1996, and the years ended September 30, 1996 and 1995................................. 101 Statements of Partners' Deficit for the years ended September 30, 1995 and 1996, the nine months ended June 30, 1997, and the six months ended December 31, 1997... 102 Statements of Cash Flows for the six months ended December 31, 1997, for the nine months ended June 30, 1997 and 1996, and the years ended September 30, 1996 and 1995................................. 103 Notes to Financial Statements.................................... 104 Schedule II...................................................... 111
Schedules not included herewith have been omitted because they are not applicable or the required information is shown in the financial statements or notes thereto. 57 Documents Incorporated by Reference The following documents, as filed in the Company's Registration Statement on Form S-4 (Reg. No. 333-34471), are incorporated herein by reference: Boomtown, Inc.'s audited consolidated balance sheets as of September 30, 1995 and 1996, and the related consolidated statements of operations, stockholders' equity and cash flows for each of the three years in the period ended September 30, 1996; and Boomtown, Inc.'s unaudited consolidated statements of operations and cash flows for the nine months ended June 30, 1996 and June 30, 1997. 58 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To The Board of Directors and Stockholders of Hollywood Park, Inc.: We have audited the accompanying consolidated balance sheets of Hollywood Park, Inc. (a Delaware corporation) and subsidiaries (the "Company") as of December 31, 1997, and 1996, and the related consolidated statements of operations, stockholders' equity and cash flows for each of the three years in the period ended December 31, 1997. 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 Hollywood Park, Inc. and subsidiaries as of December 31, 1997, and 1996, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 1997 in conformity with generally accepted accounting principles. Arthur Andersen LLP Los Angeles, California February 27, 1998 59 Hollywood Park, Inc. Consolidated Balance Sheets
As of December 31, --------------------------- 1997 1996 -------- -------- ASSETS (in thousands) Current Assets: Cash and cash equivalents $ 23,749 $ 11,922 Restricted cash 407 4,486 Short term investments 0 4,766 Other receivables, net 9,417 7,110 Prepaid expenses and other assets 18,473 6,215 Deferred tax assets 8,118 6,422 Current portion of notes receivable 42 38 -------- -------- Total current assets 60,206 40,959 Notes receivable 9,428 819 Property, plant and equipment, net 300,666 130,835 Goodwill, net 33,017 20,370 Other assets 15,712 12,903 -------- -------- $419,029 $205,886 ======== ======== ================================================================================================= LIABILITIES AND STOCKHOLDERS' EQUITY Current Liabilities: Accounts payable $ 11,277 $ 10,043 Accrued lawsuit settlement 2,750 2,750 Accrued compensation 7,627 4,198 Accrued liabilities 19,105 9,733 Accrued interest 5,175 0 Gaming liabilities 3,853 2,499 Racing liabilities 4,093 6,106 Current portion of notes payable 3,437 35 -------- -------- Total current liabilities 57,317 35,364 Notes payable 132,102 282 Deferred tax liabilities 6,310 9,065 -------- -------- Total liabilities 195,729 44,711 Minority interests 1,946 3,015 Stockholders' Equity: Capital stock -- Preferred - $1.00 par value, authorized 250,000 shares; none issued and outstanding as of year end 1997, 27,499 issued and outstanding during 1996 0 28 Common - $.10 par value, authorized 40,000,000 shares; 26,220,528 issued and outstanding in 1997, and 18,332,016 in 1996 2,622 1,833 Capital in excess of par value 222,350 167,074 Accumulated deficit (3,618) (10,775) -------- -------- Total stockholders' equity 221,354 158,160 -------- -------- $419,029 $205,886 ======== ========
- ---------- See accompanying notes to consolidated financial statements. 60 Hollywood Park, Inc. Consolidated Statements of Operations
1997 1996 1995 ------- ------- ------- (in thousands, except per share data) Revenues: Gaming $137,659 $50,717 $26,656 Racing 68,844 71,308 77,036 Food and beverage 19,894 13,947 19,783 Hotel and recreational vehicle park 937 0 0 Truck stop and service station 8,633 0 0 Other income 12,161 7,253 7,097 ------- ------- ------- 248,128 143,225 130,572 ------- ------- ------- Expenses: Gaming 74,733 27,249 5,291 Racing 30,304 30,167 30,960 Food and beverage 25,745 19,573 24,749 Hotel and recreational vehicle park 356 0 0 Truck stop and service station 7,969 0 0 Administration 61,514 41,477 45,447 Other 5,048 2,485 3,200 Depreciation and amortization 18,157 10,695 11,384 REIT restructuring 2,483 0 0 Write off of investment in Sunflower 0 11,412 0 Lawsuit settlement 0 0 6,088 ------- ------- ------- 226,309 143,058 127,119 ------- ------- ------- Operating income 21,819 167 3,453 Interest expense 7,302 942 3,922 ------- ------- ------- Income (loss) before minority interests and income taxes 14,517 (775) (469) Minority interests (3) 15 0 Income tax expense 5,850 3,459 693 ------- ------- ------- Net income (loss) $8,670 ($4,249) ($1,162) ======= ======= ======= ============================================================================================== Dividend requirements on convertible preferred stock $1,520 $1,925 $1,925 Net income (loss) attributable to (allocated to) common shareholders $7,150 ($6,174) ($3,087) Per common share: Net income (loss) - basic $0.33 ($0.33) ($0.17) Net income (loss) - diluted $0.32 ($0.33) ($0.17) Number of shares - basic 22,010 18,505 18,399 Number of shares - diluted 22,340 20,797 20,691
61 Hollywood Park, Inc. Consolidated Statements of Changes in Stockholders' Equity For the years ended December 31, 1997, 1996 and 1995
Capital in Total Preferred Common Excess of Accumulated Stockholders' Stock Stock Par Value Deficit Equity --------- ------ ---------- ----------- ------------- (in thousands) BALANCE YEAR END 1994 $ 28 $1,837 $166,892 ($1,502) $167,255 Net loss 0 0 0 (1,162) (1,162) Issuance of common stock to acquire - 0 Pacific Casino Management, Inc. 0 13 1,587 0 1,600 Investment in bonds - unrealized holding loss 0 0 0 (22) (22) Preferred stock dividends - $70.00 per share 0 0 0 (1,925) (1,925) ---- ------ -------- -------- -------- BALANCE AT YEAR END 1995 28 1,850 168,479 (4,611) 165,746 Net loss 0 0 0 (4,249) (4,249) Issuance of common stock to acquire - Pacific Casino Management, Inc. 0 5 535 0 540 Repurchase and retirement of common stock 0 (22) (1,940) 0 (1,962) Investment in bonds - unrealized holding gain 0 0 0 10 10 Preferred stock dividends - $70.00 per share 0 0 0 (1,925) (1,925) ---- ------ -------- -------- -------- BALANCE AT YEAR END 1996 28 1,833 167,074 (10,775) 158,160 Net income 0 0 0 8,670 8,670 Issuance of common stock to acquire - Pacific Casino Management, Inc. 0 3 497 0 500 Issuance of common stock to acquire - Boomtown, Inc. 0 582 56,425 0 57,007 Repurchase and retirement of common stock 0 (45) (3,420) 0 (3,465) Common stock options exercised 0 20 1,975 0 1,995 Conversion of convertible preferred stock (28) 229 (201) 0 0 Investment in bonds - unrealized holding gain 0 0 0 7 7 Preferred stock dividends - $55.27 per share 0 0 0 (1,520) (1,520) ---- ------ -------- -------- -------- BALANCE AT YEAR END 1997 $ 0 $2,622 $222,350 ($3,618) $221,354 ==== ====== ======== ======== ========
- -------- See accompanying notes to consolidated financial statements. 62 Hollywood Park, Inc. Consolidated Statements of Cash Flows
For the years ended December 31, -------------------------------- 1997 1996 1995 ------ ------- ------- (in thousands) CASH FLOWS FROM OPERATING ACTIVITIES: Net income (loss) $ 8,670 $ (4,249) $ (1,162) Adjustments to reconcile net income (loss) to net cash provided by operating activities: Depreciation and amortization 18,157 10,027 10,857 Minority interests (3) 15 0 Changes in accounts due to deconsolidation of subsidiary in bankruptcy: Property, plant and equipment 0 58,380 0 Secured notes payable 0 (28,918) 0 Unsecured notes payable 0 (15,323) 0 Goodwill and lease with TRAK East 0 6,908 0 Unrealized (gain) loss on short term bond investing 10 (2) 64 Loss on sale or disposal of property, plant and equipment 632 10 0 Changes in assets and liabilities, net of the effects of the purchase of a business: Decrease (increase) in restricted cash 4,079 (1,360) (2,427) Increase in casino lease and related interest receivable, net 0 0 (9,204) Decrease (increase) in other receivables, net (312) 1,037 77 Increase in prepaid expenses and other assets (452) (3,524) (304) Increase in deferred tax assets (1,696) (1,534) (349) (Decrease) increase in accounts payable (2,468) (2,475) 5,685 (Decrease) increase in accrued lawsuit settlement 0 (2,482) 5,232 (Decrease) increase in accrued compensation (1,004) 903 (761) (Decrease) increase in accrued liabilities (8,460) (3,489) 6,437 Increase (decrease) in gaming liabilities 1,354 (1,499) 3,998 Increase (decrease) in racing liabilities (2,013) 2,270 1,404 Increase in accrued interest payable 5,175 0 0 Payments to minority members (89) 0 0 Increase (decrease) in deferred tax liabilities (3,126) (1,018) 744 --------- -------- -------- Net cash provided by operating activities 18,454 13,677 20,291 --------- -------- -------- CASH FLOWS FROM INVESTING ACTIVITIES: Additions to property, plant and equipment (32,505) (23,786) (25,150) Receipts from sale of property, plant and equipment 187 9 98 Principal collected on notes receivable 52 34 31 Purchase of short term investments (1,946) (16,888) (35,875) Proceeds from short term investments 6,712 18,569 29,428 Payment to buy-out minority interest in Crystal Park LLC (1,000) 0 0 Long term gaming assets 0 2,169 (2,169) Cash acquired in the purchase of a business, net of transaction and other costs 12,264 0 715 --------- -------- -------- Net cash used in investing activities (16,236) (19,893) (32,922) --------- -------- -------- CASH FLOWS FROM FINANCING ACTIVITIES: Proceeds from secured Bank Credit Facility 112,000 0 0 Proceeds from secured notes payable 0 0 3,358 Proceeds from unsecured notes payable 0 0 1,681 Payment of secured Bank Credit Facility (112,000) (3,358) (1,386) Payment of secured notes payable (4,917) 0 0 Payment of unsecured notes payable (25) (23) (3,813) Proceeds from issuance of 9.5% Notes 125,000 0 0 Payment of 11.5% Boomtown First Mortgage Notes (110,924) 0 0 Payments from minority interest partners 0 3,000 0 Common stock options exercised 1,995 0 0 Common stock repurchase and retirement 0 (1,962) 0 Dividends paid to preferred stockholders (1,520) (1,925) (1,925) --------- -------- -------- Net cash provided by (used in) financing activities 9,609 (4,268) (2,085) --------- -------- -------- Increase (decrease) in cash and cash equivalents 11,827 (10,484) (14,716) Cash and cash equivalents at the beginning of the period 11,922 22,406 37,122 --------- -------- -------- Cash and cash equivalents at the end of the period $ 23,749 $ 11,922 $ 22,406 ========= ======== ========
- ------- See accompanying notes to consolidated financial statements. 63 Hollywood Park, Inc. Notes to Consolidated Financial Statements NOTE 1 -- SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES GENERAL Hollywood Park, Inc. (the "Company" or "Hollywood Park") is a diversified gaming, sports and entertainment company engaged in the ownership and operation of casinos (including card club casinos) and pari-mutuel racing facilities, and the development of other gaming and sports related opportunities. The Company owns and operates through its Boomtown, Inc. ("Boomtown") subsidiary land-based, dockside and riverboat gaming operations in Verdi, Nevada ("Boomtown Reno"), Biloxi, Mississippi ("Boomtown Biloxi"), and Harvey, Louisiana ("Boomtown New Orleans"), respectively. Hollywood Park owns two card club casinos in the Los Angeles metropolitan area. The Hollywood Park- Casino is operated by the Company and the Crystal Park Hotel and Casino (the "Crystal Park Casino"), which as of December 31, 1997, was 100% owned by the Company (previously it was 93% owned by the Company) is leased to an unaffiliated third party operator. The Company owns two premier thoroughbred racing facilities, the Hollywood Park Race Track (the Hollywood Park-Casino is located adjacent to the Hollywood Park Race Track), and Turf Paradise, Inc. ("Turf Paradise") which is located in Phoenix, Arizona. The Company also owns Sunflower Racing, Inc. ("Sunflower") a greyhound and thoroughbred racing facility in Kansas City, Kansas, though due to intense competition from nearby Missouri riverboat gaming, on May 17, 1996, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code. Sunflower is operating as a debtor in possession during the bankruptcy. CONSOLIDATION The consolidated financial statements for the year ended December 31, 1997, included the accounts of Hollywood Park and its wholly owned subsidiaries: (a) Boomtown, which was acquired by the Company on June 30, 1997, and was accounted for under the purchase method of accounting for a business combination, and Boomtown's six active subsidiaries (1) Boomtown Hotel & Casino, Inc., (2) Bayview Yacht Club, Inc., (3) Mississippi - I Gaming, L.P., (4) Louisiana Gaming Enterprises, Inc., (5) Louisiana - I Gaming and (6) Boomtown Hoosiers, Inc.; (b) Hollywood Park Operating Company, and its two wholly owned subsidiaries, Hollywood Park Food Services, Inc. and Hollywood Park Fall Operating Company; (c) Turf Paradise, Inc.; (d) HP Yakama, Inc.; (e) HP Kansas, Inc.; (f) HP/Compton, Inc. and HP Casino, Inc., which as of December 31, 1997, own 89.8% and 10.2%, respectively, of the Crystal Park Hotel and Casino Development Company LLC, ("Crystal Park LLC"), which built and presently leases the Crystal Park Casino, to an unaffiliated third party. As of March 31, 1996, the Company wrote off its investment in Sunflower and its wholly owned subsidiary SR Food and Beverage, Inc., due to Sunflower's inability to compete with nearby Missouri riverboat gaming, and as of April 1, 1996, no longer consolidated Sunflower's operating results with the Company's. The Hollywood Park-Casino is a division of Hollywood Park, Inc. RESTRICTED CASH Restricted cash as of December 31, 1997 and 1996, was for amounts due to horsemen for purses, stakes and awards. RACING REVENUES AND EXPENSES The Company records pari-mutuel revenues, admissions, food and beverage and other racing income associated with racing on a daily basis, except for seasonal admissions, which were recorded ratably over the racing season. Expenses associated with racing revenues were charged against income in those periods in which racing revenues were recognized. Other expenses were recognized as they occurred throughout the year. GAMING REVENUE AND PROMOTIONAL ALLOWANCES Gaming revenues at the three Boomtown properties consisted of the difference between gaming wins and losses, or net win from gaming activity, and at the Hollywood Park-Casino consisted of fees collected from patrons on a per seat or per hand basis. Revenues in the accompanying statements of operations exclude the retail value of food and beverage, hotel rooms and other items provided to patrons on a complimentary basis. The estimated cost of providing these promotional allowances during the years ended December 31, 1997, and 1996, was $8,285,000 (which includes Boomtown's promotional allowances as of June 30, 1997), and $1,316,000, respectively. There were no comparable costs for the year ended December 31, 1995. 64 CAPITALIZED INTEREST Interest of $425,000 was capitalized during the year ended December 31, 1997. No capitalized interest was recorded during the years ended December 31, 1996, and 1995, because the Company had no outstanding debt, other than Sunflower's debt, which was non-recourse to the Company, and Sunflower did not make any capital improvements during the periods covered. ESTIMATES Financial statements prepared in accordance with generally accepted accounting principles require the use of management estimates, including estimates used to evaluate the recoverability of property, plant and equipment, to determine the fair value of financial instruments, to account for the valuation allowance for deferred tax assets and to determine litigation related obligations. PROPERTY, PLANT AND EQUIPMENT Property, plant and equipment are depreciated on the straight line method over their estimated useful lives as follows:
Years ------- Land improvements 3 to 25 Buildings 5 to 40 Equipment 3 to 10
Maintenance and repairs were charged to expense, and betterments were capitalized. The cost of property sold or otherwise disposed of and its associated accumulated depreciation were eliminated from both the property and accumulated depreciation accounts with any gain or loss recorded in the expense accounts. Property, plant and equipment is carried on the Company's balance sheets at depreciated cost. Whenever there are recognized events or changes in circumstances that affect the carrying amount of the property, plant and equipment, management reviews the assets for possible impairment. In accordance with current accounting standards, management uses estimated expected future net cash flows to measure the recoverability of property, plant and equipment. The estimation of expected future net cash flows is inherently uncertain and relies to a considerable extent on assumptions regarding current and future economic and market conditions, and the availability of capital. In future periods, if there are changes in the estimates or assumptions incorporated into the impairment review analysis, the changes could result in an adjustment to the carrying amount of the property, plant and equipment. INCOME TAXES The Company accounts for income taxes under Statement of Financial Accounting Standards ("SFAS") 109, Accounting for Income Taxes, whereby deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. Under SFAS 109, the effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that included the enactment date. EARNINGS PER SHARE Basic earnings per share were computed by dividing income (loss) attributable to (allocated to) common shareholders (net income (loss) less preferred stock dividend requirements) by the weighted average number of common shares outstanding during the period. Diluted per share amounts were similarly computed, but include the effect, when dilutive, of the conversion of the convertible preferred shares and the exercise of stock options. CASH FLOWS Cash and cash equivalents consisted of certificates of deposit and short term investments with original maturities of 90 days or less. STOCK REPURCHASE On July 22, 1996, the Company announced its intention to repurchase, and to retire up to 2,000,000 shares of its common stock on the open market or in negotiated transactions. As of December 31, 1996, the Company had repurchased and retired (with the last purchase being made on November 13, 1996) 222,300 common shares, at a cost of approximately $1,962,000. 65 RECLASSIFICATIONS Certain reclassifications have been made to the 1996 and 1995 balances to be consistent with the 1997 financial statement presentation. NOTE 2 -- ACQUISITIONS ACQUISITION OF BOOMTOWN, INC. On June 30, 1997, pursuant to the Agreement and Plan of Merger dated as of April 23, 1996, by and among Hollywood Park, HP Acquisition, Inc., a wholly owned subsidiary of the Company, and Boomtown, HP Acquisition, Inc. was merged with and into Boomtown (the "Boomtown Merger"). As a result of the Boomtown Merger, Boomtown became a wholly owned subsidiary of the Company and each share of Boomtown common stock was converted into the right to receive 0.625 of a share of Hollywood Park's common stock. Approximately 5,362,850 shares of Hollywood Park common stock, valued at $9.8125 per share (excluding shares repurchased from Edward P. Roski, Jr. ("Roski") and subsequently retired, as described below) were issued in the Boomtown Merger. The Boomtown Merger was accounted for under the purchase method of accounting for a business combination. The purchase price of the Boomtown Merger was allocated to the identifiable assets acquired and liabilities assumed based on their estimated fair values at the date of acquisition. Based on financial analyses which considered the impact of general economic, financial and market conditions on the assets acquired and liabilities assumed, the Company determined that the estimated fair values approximated their carrying value. The Boomtown Merger generated approximately $2,683,000 of excess acquisition cost over the recorded value of the net assets acquired, all of which was allocated to goodwill, to be amortized over 40 years. The amortization of the goodwill is not deductible for income tax purposes. The Company acquired three of the four Boomtown properties; Boomtown Reno, Boomtown New Orleans, and Boomtown Biloxi. Boomtown's Las Vegas property was divested on July 1, 1997 because it had generated significant operating losses since it opened, thus reducing the overall profitability of Boomtown. Boomtown and its subsidiaries exchanged substantially all of their interest in the Las Vegas property, including substantially all of the operating assets and notes receivable of approximately $27,300,000 from the landowner/lessor of the Las Vegas property, IVAC, a California general partnership of which Roski, a former Boomtown director, is a general partner, for, among other things, two unsecured notes receivable totaling approximately $8,465,000, cash, assumption of certain liabilities and release from certain lease obligations. The first note receivable is for $5,000,000, bearing interest at Bank of America National Trust and Savings Association's ("Bank of America") reference rate plus 1.5% per year, with annual principal receipts of $1,000,000 plus accrued interest commencing on July 1, 1998. The second note is for approximately $3,465,000, bearing interest at Bank of America's reference rate plus 0.5% per year, with the principal and accrued interest payable to the Company, in full, on July 1, 2000. In addition, concurrently with the divestiture of the Las Vegas property, Hollywood Park purchased and retired 446,491 shares of Hollywood Park common stock received by Roski in the Boomtown Merger for a price of approximately $3,465,000, payable in the form of a Hollywood Park promissory note. The promissory note bears interest at Bank of America's reference rate plus 1.0%. Interest is payable annually and annual principal payments in five equal installments of approximately $693,000 are due commencing July 1, 1998. ACQUISITION OF PACIFIC CASINO MANAGEMENT, INC. The Hollywood Park-Casino was opened in July 1994 under a third party leasing arrangement with Pacific Casino Management, Inc. ("PCM"); whereby PCM leased and operated the gaming floors of the Hollywood Park-Casino, and the Company operated all other aspects of the business. In 1994, under the California Gaming Registration Act, it was then the position of the California Attorney General that as a publicly traded company, Hollywood Park was not eligible to register as an operator of a card club, but could lease the site to a registered operator unaffiliated with the Company. On August 3, 1995, Senate Bill ("SB") 100 was enacted into law and among other things allowed a publicly traded racing association, such as Hollywood Park, to operate a card club casino on the same premises as a race track. On November 17, 1995, Hollywood Park purchased the gaming floor business from PCM for $2,640,000, which was paid for with 218,099 shares of the Company's common stock. The approximately $21,658,000 of excess acquisition cost over the recorded value of net assets acquired from PCM was 66 allocated to goodwill, and is being amortized over 40 years. The amortization of the goodwill is not deductible for income tax purposes. PRO FORMA RESULTS OF OPERATIONS The following pro forma results of operations were prepared under the assumption that the acquisition of Boomtown had occurred at the beginning of the period presented. The historical results of operations of Boomtown (excluding the results of operations of Boomtown's Las Vegas property, which was divested in connection with the Boomtown Merger) were combined with Hollywood Park's. Pro forma adjustments were made for the following: elimination of the amortization of the issuance costs associated with Boomtown's 11.5% First Mortgage Notes; amortization of the issuance costs associated with the $125,000,000 of Hollywood Park and Hollywood Park Operating Company Series A 9.5% Senior Subordinated Notes due 2007 (the "Notes") (see Note 6. Secured and Unsecured Notes Payable); amortization of the excess purchase price over net assets acquired in the Boomtown Merger; elimination of the amortization of the discount associated with the Boomtown 11.5 % First Mortgage Notes; interest expense associated with the promissory notes from Hollywood Park to Roski; elimination of the interest expense associated with the Boomtown 11.5% First Mortgage Notes; amortization of the up-front loan fees associated with the Company's Bank Credit Facility; interest expense associated with the Notes at 9.5%; and the estimated 40% tax expense associated with the pro forma adjustments. HOLLYWOOD PARK, INC. Unaudited Pro Forma Combined Consolidated Results of Operations
1997 1996 -------- --------- (in thousands, except per share data) Revenues: Gaming $221,008 $ 208,699 Racing 68,844 71,308 Other 59,232 56,576 -------- --------- 349,084 336,583 -------- --------- Operating income (loss) (a) 30,889 (18,083) Net income (loss) $ 9,264 $ (37,523) ======== ========= Dividend requirements on preferred stock $ 1,520 $ 1,925 Net income (loss) to common shareholders $ 7,744 ($39,448) ======== ========= Per common share: Net income (loss) - basic $ 0.31 $ (1.65) Net income (loss) - diluted $ 0.31 $ (1.65) ____ (a) The 1996 operating loss included the non-recurring write off of Hollywood Park's investment in Sunflower of $11,412,000, and the non-recurring loss on Boomtown's sale of its Las Vegas property of $36,562,000.
PENDING MERGER WITH CASINO MAGIC CORP. On February 19, 1998, the respective Boards of Directors of Hollywood Park and Casino Magic Corp. ("Casino Magic") approved and signed an Agreement and Plan of Merger among Casino Magic Corp., Hollywood Park, Inc., and HP Acquisition II, Inc. (a wholly owned subsidiary of Hollywood Park), pursuant to which HP Acquisition II, Inc., will merge into Casino Magic, and Casino Magic will survive and become a wholly owned subsidiary of Hollywood Park. Hollywood Park will pay cash of $2.27 for each issued and outstanding share of Casino Magic common stock, or approximately $81,000,000. On February 23, 1998, Hollywood Park entered into a voting agreement (the "Voting Agreement") with Marlin F. Torguson ("Mr. Torguson") pursuant to which, among other things, Mr. Torguson has agreed to vote the 7,954,500 shares of Casino Magic common stock he beneficially owns in favor of approval and adoption of the Agreement and Plan of Merger and the Casino Magic Merger and any matter that could reasonably be expected to facilitate the Casino Magic Merger. Mr. Torguson also agreed to continue to serve as an 67 employee of Casino Magic for three years following the Casino Magic Merger, and not to compete with Hollywood Park or Casino Magic in any jurisdictions in which either presently operates. Casino Magic owns and operates dockside and riverboat gaming properties in Bay St. Louis, Mississippi ("Casino Magic Bay St. Louis"), Biloxi, Mississippi ("Casino Magic Biloxi") and Bossier City, Louisiana, ("Casino Magic Bossier") respectively, and is a 51% partner in two land-based casinos in Argentina. Casino Magic Bay St. Louis, started operations in September 1992, on a permanently moored barge in a 17 acre marina with the adjoining land based facilities situated on 591 acres. Bay St. Louis is approximately 46 miles east of New Orleans and 40 miles west of Biloxi. Casino Magic Bay St. Louis offers approximately 39,500 square feet of gaming space, with 1,132 slot machines and 42 table games. The land based building is three stories with a restaurant, buffet, snack bar, gift shop, and a live entertainment lounge. In December 1994, Casino Bay St. Louis also opened the Casino Magic Inn; a 201 room hotel, including four deluxe and 20 junior suites. The property also contains the Magic Dome, an 1,800 seat arena, which hosts approximately 50 events annually, including nationally televised boxing matches, concerts and other special events. With the late 1997 addition of the 18 hole Bridges Golf Resort, Casino Magic Bay St. Louis is positioned as a full service vacation destination. Casino Magic Biloxi began casino operations in June 1993 and is located on the Gulf of Mexico in the Mississippi Gulf Coast Region. The property is situated on the Front Bay on the beach of the Gulf of Mexico in a strip with four other casinos, and is located on the major highway running through the Mississippi Gulf Coast. (Boomtown Biloxi is located on the Back Bay of Biloxi.) Casino Magic Biloxi conducts gaming from a permanently moored barge with approximately 47,700 square feet of gaming space with 1,174 slot machines and 41 gaming tables. The land based facility is located adjacent to the barge on the approximately 11.5 acre site. In late spring 1998, Casino Magic Biloxi expects to open its 378 room luxury hotel (Casino Magic is anticipating a four-star rating for this hotel), to include 16 master suites, 70 junior suites, 6,600 square feet of convention and meeting space, a full service restaurant and numerous themed retail shops. The casino's land based facility is approximately 21,600 square feet. Casino Magic Biloxi offers buffets, full service restaurants and nationally franchised fast food services. Casino Magic Bossier opened in October 1996, with casino operations conducted from a dockside riverboat. The property is highly visible with convenient access from Interstate Highway 20, a major thoroughfare between Bossier City/Shreveport and the Dallas-Fort Worth area approximately 180 miles to the west. The Casino Magic Bossier riverboat measures 254 feet long and 78 feet wide with approximately 30,000 square feet of gaming space, and offers 980 slot machines and 44 table games. The Casino Magic Bossier facility includes a 55,000 square foot entertainment pavilion connected to a garage providing parking for approximately 1,400 vehicles. The entertainment pavilion includes the 350 seat Abracadabra buffet restaurant, a gift shop, a bar and lounge area, and a 300 seat live entertainment theater. The entertainment pavilion also includes two smaller full service restaurants. Casino Magic Bossier is just beginning construction on an 188 room hotel with four master suites, 88 junior suites and additional full service restaurants. In December 1994, Casino Magic, through its wholly owned subsidiary, Casino Magic Neuquen SA, ("Casino Magic Argentina") entered into a twelve year concession agreement with the Province of Neuquen, Argentina. Casino Magic Argentina operates two casinos in the Province of Neuquen in the cities of Neuquen and San Martin de los Andes in west-central Argentina. Neuquen Province is the gateway to the well established resort, tour destinations and ski resorts of the Andes Mountains. There are approximately 900,000 residents within a 50 mile radius of the two cities. Casino Magic Argentina, which began operations in January 1995, includes approximately 29,000 square feet of gaming space and contains approximately 64 table games, 400 slot machines and a 384 seat bingo facility. 68 NOTE 3 -- SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
For the years ended December 31, -------------------------------- 1997 1996 1995 ------ ------ ------ (in thousands) Cash paid during the year for: Interest $1,321 $ 299 $2,098 Income taxes 827 40 143 ------ ------ ------ $2,148 $ 339 $2,241 ====== ====== ======
NOTE 4 -- SHORT TERM INVESTMENTS As of December 31, 1997, Hollywood Park had liquidated its investments in corporate bonds. During the year ended December 31, 1997, net proceeds from the sale or redemption of corporate bond investments was approximately $4,766,000, with gross realized gains and losses of approximately $9,000, and $88,000, respectively. As of December 31, 1996, short term investments consisted of corporate bonds valued at $4,766,000, with Moody's ratings of Ba2 to B3, and Standard and Poors ratings of BB+ to B-, though some of the bonds were not rated by either agency. Investments in corporate bonds carry a greater amount of principal risk than other investments made by the Company, and yield a corresponding higher return. The corporate bond investment as of December 31, 1996, had a weighted average maturity of 1.5 years, and because the Company reasonably expected to liquidate these investments in its normal operating cycle the investments were classified as short term, were held as available for sale, and recorded in the accompanying financial statements at their fair value, as determined by the quoted market price. For the year ended December 31, 1996, proceeds from the sale or redemption of corporate bond investments were approximately $8,429,000, all of which was reinvested, and gross realized gains and gross realized losses were $28,000 and $39,000, respectively. NOTE 5 -- PROPERTY, PLANT AND EQUIPMENT Property, plant and equipment held at December 31, 1997, and 1996 consisted of the following:
December 31, ---------------------- 1997 (a) 1996 -------- -------- (in thousands) Land and land improvements $ 50,945 $ 32,215 Buildings 270,271 150,935 Equipment 77,337 31,531 Vessel 18,925 0 Construction in progress 21,896 128 -------- -------- 439,374 214,809 Less accumulated depreciation 138,708 83,974 -------- -------- $300,666 $130,835 ======== ========
___ (a) Includes Boomtown's assets. 69 NOTE 6 -- SECURED AND UNSECURED NOTES PAYABLE Notes payable as of December 31, 1997, and 1996 consisted of the following:
December 31, ---------------------- 1997 (a) 1996 -------- -------- (in thousands) Secured notes payable $ 3,750 $ 0 9.5% Series A Notes 125,000 0 11.5% Boomtown First Mortgage Notes 1,253 0 Capital lease obligations 1,527 0 Unsecured note payable 4,009 317 -------- -------- 135,539 317 Less current maturities 3,437 35 -------- -------- $132,102 $ 282 ======== ========
_____ (a) Includes notes payable related to Boomtown. HOLLYWOOD PARK On June 30, 1997, Hollywood Park and a bank syndicate led by Bank of America finalized the Bank Credit Facility, a reducing revolving credit facility allowing for drawings up to $225,000,000. On August 7, 1997, the Bank Credit Facility was reduced by $125,000,000 (the aggregate principal amount of the Series A 9.5% Senior Subordinated Notes due 2007 (the "Notes") issued as described below) to $100,000,000. Of the $100,000,000, as a result of covenant limitations, approximately $88,800,000 was available as of December 31, 1997. As of December 31, 1997, the Company did not have outstanding borrowings under the Bank Credit Facility, except for a $2,035,000 letter of credit. The Bank Credit Facility is secured by substantially all of the assets of Hollywood Park and its significant subsidiaries, and imposes certain customary affirmative and negative covenants. On February 19, 1998, Hollywood Park announced the Casino Magic Merger, and under the terms of the Agreement and Plan of Merger, Hollywood Park will pay cash of $2.27 for each issued and outstanding share of Casino Magic common stock, or approximately $81,000,000. The Company has begun discussions to amend the Bank Credit Facility to increase the borrowing capacity to provide the funds required for the Casino Magic Merger. A formal amendment has not yet been signed, and there is no assurance that such an amendment will be completed, although the bank group has given verbal assurance of its intent to provide such an increased facility. The Bank Credit Facility has been amended twice. The first amendment, among other matters, reduced the availability of the facility until the Bank Credit Facility was approved by the Louisiana Gaming Control Board. Hollywood Park received this approval on July 10, 1997. The second amendment, among other things, allowed the co-issuance of the Notes by Hollywood Park Operating Company with Hollywood Park. Debt service requirements on the Bank Credit Facility consist of current interest payments on outstanding indebtedness through September 30, 1999. As of September 30, 1999, and on the last day of each third calendar month thereafter, through June 30, 2001, the Bank Credit Facility will decrease by 7.5% of the commitment in effect on September 30, 1999. As of September 30, 2001, and on the last day of each third calendar month thereafter, the Bank Credit Facility will decrease by 10% of the commitment in effect on September 30, 1999. Any principal amounts outstanding in excess of the Bank Credit Facility commitment, as so reduced, will be payable on such quarterly reduction dates. The Bank Credit Facility provides for a letter of credit sub-facility of $10,000,000, of which $2,035,000 is currently outstanding for the benefit of Hollywood Park's California self insured workers' compensation program. The facility also provides for a swing line sub-facility of up to $10,000,000. 70 Borrowings under the Bank Credit Facility bear interest at an annual rate determined, at the election of Hollywood Park, by reference to the "Eurodollar Rate" (for interest periods of 1, 2, 3 or 6 months) or the "Reference Rate", as such terms are respectively defined in the Bank Credit Facility, plus margins which vary depending upon Hollywood Park's ratio of funded debt to earnings before interest, taxes, depreciation and amortization ("EBITDA"). The margins start at 1.25% for Eurodollar loans and at 0.25% for Base Rate loans, at a funded debt to EBITDA ratio of less than 1.50. Thereafter, the margin for each type of loan increases by 25 basis points for each increase in the ratio of funded debt to EBITDA of 50 basis points or more, up to 2.625% for Eurodollar loans and 1.625% for Base Rate loans. However, if the ratio of senior funded debt to EBITDA exceeds 2.50, the applicable margins will increase to 3.25% for Eurodollar loans, and 2.25% for Base Rate loans. Thereafter, the margins would increase by 25 basis points for each increase in the ratio of senior funded debt to EBITDA of 50 basis points or more, up to a maximum of 4.25% for Eurodollar loans and 3.25% for Base Rate loans. The applicable margins as of December 31, 1997, were 2.00% with respect to the Eurodollar Rate based interest rate and 1.00% with respect to the Base Rate interest rate. The Bank Credit Facility allows for interest rate swap agreements, or other interest rate protection agreements, up to a maximum notional amount of $125,000,000. Presently, Hollywood Park does not utilize such financial instruments. Hollywood Park pays a quarterly commitment fee for the average daily amount of unused portions of the Bank Credit Facility. The commitment fee is also dependent upon Hollywood Park's ratio of funded debt to EBITDA. The commitment fee for the Bank Credit Facility starts at 31.25 basis points when the ratio is less than 1.00, and increases by 6.25 basis points for each increase in the ratio of 0.50, up to a maximum of 50 basis points. For the quarter beginning January 1, 1998, the commitment fee is 50 basis points. On July 3, 1997, Hollywood Park borrowed $112,000,000 from the Bank Credit Facility to fund Boomtown's offer to purchase the 11.5% Boomtown First Mortgage Notes (the "Boomtown Notes"), and repaid this amount on August 7, 1997, with a portion of the proceeds from the August 6, 1997, issuance of $125,000,000 of Series A 9.5% Senior Subordinated Notes due 2007 (the "Series A Notes"). The Series A Notes were co-issued by Hollywood Park and Hollywood Park Operating Company, and were issued pursuant to a private offering under the Securities Act of 1933, as amended (the "Securities Act"). The balance of the proceeds from the issuance of the Series A Notes was used primarily for the purchase of a new riverboat for Boomtown New Orleans, and other general corporate needs. On March 20, 1998, the Company completed a registered exchange offer for the Series A Notes, pursuant to which all $125,000,000 principal amount of the Series A Notes were exchanged by the holders for $125,000,000 aggregate principal amount of Series B 9.5% Senior Subordinated Notes due 2007 of the Company and Hollywood Park Operating Company (together with the Series A Notes, the "Notes") which were registered under the Securities Act on Form S-4. Interest on the Notes is payable semi-annually, on February 1st and August 1st. The Notes will be redeemable at the option of Hollywood Park and Hollywood Park Operating Company, in whole or in part, on or after August 1, 2002, at a premium to face amount, plus accrued interest, with the premium to face amount decreasing on each subsequent anniversary date. The Notes are unsecured obligations of Hollywood Park and Hollywood Park Operating Company, guaranteed by all other material restricted subsidiaries of either Hollywood Park or Hollywood Park Operating Company. The indenture governing the Notes contains certain covenants that, among other things, limit the ability of Hollywood Park, Hollywood Park Operating Company and their restricted subsidiaries to incur additional indebtedness and issue preferred stock, pay dividends or make other distributions, repurchase equity interests or subordinated indebtedness, create certain liens, enter into certain transactions with affiliates, sell assets, issue or sell equity interests in their respective subsidiaries or enter into certain mergers and consolidations. There are no provisions in the indenture governing the Notes which will prevent the previously mentioned Casino Magic Merger. On July 1, 1997, in connection with the divestiture of Boomtown's Las Vegas property, Hollywood Park issued an unsecured promissory note of approximately $3,465,000 to purchase the Hollywood Park common stock 71 issued to Roski in the Boomtown Merger. The promissory note bears interest equal to the Bank of America reference rate plus 1.0%. Interest is payable annually with five annual principal payments of approximately $693,000 commencing July 1, 1998. BOOMTOWN In November 1993, Boomtown issued $103,500,000 of 11.5% Boomtown Notes. On July 3, 1997, pursuant to a tender offer, Boomtown repurchased and retired approximately $102,142,000 in principal amount of the Boomtown Notes, at a purchase price of $1,085 per $1,000, along with accrued interest thereon. An additional $105,000 of the remaining Boomtown Notes were tendered in the post Boomtown Merger change of control purchase offer, at a price of $1,010 for each $1,000, completed August 12, 1997. As of December 31, 1997, there were $1,253,000 of 11.5% Boomtown Notes outstanding. On August 4, 1997, Hollywood Park executed a promissory note for the purchase of the barge and the building shell at Boomtown Biloxi for a total cost of $5,250,000. A payment of $1,500,000 was made on August 4, 1997, with the balance due of $3,750,000 payable in three equal annual installments of $1,250,000. Interest on the promissory note is equal to the prime interest rate in effect on the first day of each year. The principal amount of the promissory note, together with accrued interest, may be repaid, without penalty, in whole or in part, at any time. On August 7, 1997, Boomtown New Orleans prepaid a 13.0% note secured by the former riverboat, then in use, for approximately $2,107,000 (inclusive of a 1.0% prepayment penalty). As of December 31, 1997, Boomtown had a note payable of approximately $252,000 along with various capital lease obligations for gaming and other operating equipment, totaling approximately $1,527,000. SUNFLOWER On March 24, 1994, an Amended and Restated Credit and Security Agreement (the "Sunflower Senior Credit") was executed between Sunflower and five banks in connection with Hollywood Park's acquisition of Sunflower. As of December 31, 1997, the outstanding balance of the Sunflower Senior Credit was $28,667,000. The Sunflower Senior Credit is non-recourse to Hollywood Park. On May 17, 1996, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code. The Cash Collateral Agreement suspended any interest or principal payments on the Sunflower Senior Credit until August 12, 1997. The Bankruptcy Court has issued an order extending the Cash Collateral Agreement until it issues its pending ruling regarding approval of Sunflower's proposed plan of reorganization. The Cash Collateral Agreement requires Sunflower to make certain cash payments to Wyandotte County, Kansas, the creditors under the Sunflower Credit and TRAK East (the unaffiliated non-profit holder of the pari- mutuel racing license in Kansas, and operator of racing at Sunflower). On July 15, 1997, Sunflower presented to the Bankruptcy Court a plan of reorganization (the "Plan") which provides for the sale of Sunflower's property to the Wyandotte Tribe of Oklahoma (the "Wyandotte Tribe"). The Plan was amended on October 31, 1997. Under the Plan, some or all of the land would be held by the United States Government in trust for the Wyandotte Tribe, and a casino would be developed on the property. Upon completion of the casino, HP Kansas, Inc. ("HP Kansas") (a wholly-owned subsidiary of Hollywood Park) and a partner (North American Sports Management or an affiliate) will provide financing and consulting services for the development and operation of a casino. Under this arrangement, HP Kansas would be entitled to receive a share of the revenues of the casino. Under the plan, in order to allow the property to be released as collateral and sold to the Wyandotte Tribe, Sunflower will be required to have standby letters of credit issued to support certain payments to be made to the lenders under the Sunflower Senior Credit and the Wyandotte County Treasurer's office. The aggregate amount of such letters of credit is anticipated to be in excess of $29,000,000. Hollywood Park will arrange for the issuance of such letters of credit on behalf of Sunflower. It is anticipated that the earliest that the bankruptcy court will rule on the Plan is in the second quarter of 1998. In 1995, under a promissory note executed in December 1994, between Hollywood Park and Sunflower, Hollywood Park advanced $2,500,000 to Sunflower to make certain payments due on the Sunflower Senior Credit. The amounts borrowed under the promissory note, along with accrued interest, are subordinate to 72 the Sunflower Senior Credit. Although Hollywood Park will continue to pursue payment of the promissory note, for financial reporting purposes the outstanding balance of the promissory note was written off as of March 31, 1996. ANNUAL MATURITIES As of December 31, 1997, annual maturities of total notes and loans payable are as follows:
Year ending: (in thousands) ------------ December 31, 1998 $ 3,437 December 31, 1999 2,162 December 31, 2000 2,050 December 31, 2001 805 December 31, 2002 776 Thereafter 126,309
The fair values of the Company's various debt instruments discussed above approximate their carrying amounts based on the fact that borrowings bear interest at variable market based rates. NOTE 7 -- ACCOUNTING FOR THE IMPAIRMENT OF LONG-LIVED ASSETS AND LONG-LIVED ASSETS TO BE DISPOSED OF In 1995, Statement of Financial Accounting Standards No. 121 ("SFAS") 121 Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of, was issued which established accounting standards for the impairment of long-lived assets, certain identifiable intangibles, and goodwill related to those assets. SFAS 121, which became effective for Hollywood Park in the quarter ended March 31, 1996, addresses when impairment losses should be recognized and how impairment losses should be measured. Whenever there are recognized events or changes in circumstances that indicate the carrying amount of an asset may not be recoverable, management reviews the asset for possible impairment. In accordance with current accounting standards, management uses estimated expected future net cash flows (undiscounted and excluding interest costs, and grouped at the lowest level for which there are identifiable cash flows that are as independent as possible of other asset groups) to measure the recoverability of the asset. If the expected future net cash flows are less than the carrying amount of the asset an impairment loss would be recognized. An impairment loss would be measured as the amount by which the carrying amount of the asset exceeded the fair value of the asset, with fair value measured as the amount at which the asset could be bought or sold in a current transaction between willing parties, other than in a forced liquidation sale. The estimation of expected future net cash flows is inherently uncertain and relies to a considerable extent on assumptions regarding current and future net cash flows, market conditions, and the availability of capital. If, in future periods, there are changes in the estimates or assumptions incorporated into the impairment review analysis the changes could result in an adjustment to the carrying amount of the asset, but at no time would previously recognized impairment losses be restored. NOTE 8 -- ACCOUNTING FOR STOCK-BASED COMPENSATION Statement of Financial Accounting Standards No. 123 ("SFAS") 123 Accounting for Stock-Based Compensation, requires that the Company disclose additional information about employee stock-based compensation plans. The objective of SFAS 123 is to estimate the fair value, based on the stock price at the grant date, of the Company's stock options to which employees become entitled when they have rendered the requisite service and satisfied any other conditions necessary to earn the right to benefit from the stock options. The fair market value of a stock option is to be estimated using an option-pricing model that takes into account, as of the grant date, the exercise price and expected life of the option, the current price of the underlying stock and its expected volatility, expected dividends on the stock, and the risk-free interest rate for the expected term of the options. 73 In computing the stock-based compensation, the following assumptions were made:
Risk-Free Interest Expected Expected Expected Rate Life Volatility Dividends ------------ --------- ---------- ---------- Options granted in the following periods: Second quarter 1995 5.0% 3 years 36.1% None First quarter 1996 5.0% 3 years 36.1% None Second quarter 1996 5.1% 3 years 46.4% None Fourth quarter 1996 (a) 5.0% 10 years 47.4% None
_____ (a) The options granted during the fourth quarter of 1996 were to the Company's directors, and it is expected that the directors will hold options for a longer period of time than the Company's employees. The following sets forth the pro forma financial results under the implementation of SFAS 123:
For the years ended December 31, ---------------------------------- 1997 1996 1995 ------- -------- -------- (in thousands, except per share data) Net income (loss) before stock-based compensation expense $ 8,670 $ (4,249) $ (1,162) Stock-based compensation expense 543 81 4 ------- -------- -------- Pro forma net income (loss) $ 8,127 $ (4,330) $ (1,166) ======= ======== ======== Dividend requirements on convertible preferred stock $ 1,520 $ 1,925 $ 1,925 Pro forma net income (loss) to common shareholders $ 6,607 $ (6,255) $ (3,091) ======= ======== ======== Per common share: Pro forma net income (loss) - basic $ 0.30 $ (0.34) $ (0.17) Pro forma net income (loss) - diluted $ 0.30 $ (0.34) $ (0.17) Number of shares - basic 22,010 18,505 18,399 Number of shares - diluted 22,340 20,797 20,691
NOTE 9 -- RACING OPERATIONS The Company conducts thoroughbred racing at its Hollywood Park and Turf Paradise race tracks, located in California and Arizona, respectively. Sunflower race track, in Kansas, is primarily a greyhound racing facility with a limited number of days of thoroughbred racing each summer. On May 17, 1996, due to competition from Missouri riverboat gaming, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code, and as of April 1, 1996, Sunflower's operating results were no longer consolidated with Hollywood Park's; therefore, Sunflower's racing results and statistics are included in this note for 1995 only. Sunflower is operating as a debtor in possession during the bankruptcy. Under Kansas racing law, Sunflower is not granted any race days and does not generate any pari-mutuel commissions. The Kansas Racing Commission granted Sunflower the facility ownership and management licenses; with all race days until the year 2014 granted to TRAK East, a Kansas not-for-profit corporation. Sunflower has an agreement, which was entered into in September 1989, with TRAK East to provide the physical race tracks along with management and consulting services for twenty-five years with options to renew for one or more successive terms.
LIVE ON-TRACK RACE DAYS 1997 1996 1995 ---- ---- ---- Hollywood Park race track 102 103 97 Turf Paradise race track 159 166 171 Sunflower - Horses -- -- 49 Sunflower - Greyhounds -- -- 294
74 A summary of the pari-mutuel handle and deductions, by racing facility for the year ended December 31, are as follows:
HOLLYWOOD PARK - LIVE HORSE RACING (IN THOUSANDS) 1997 1996 1995 -------- -------- -------- Total pari-mutuel handle $663,175 $677,827 $643,246 Less patrons' winning tickets 535,816 547,775 520,291 -------- -------- -------- 127,359 130,052 122,955 Less: State pari-mutuel tax 15,923 19,263 20,691 City of Inglewood pari-mutuel tax 1,176 1,287 1,384 Racing purses and awards 25,881 26,300 26,888 Satellite wagering fees 11,738 12,784 13,545 Interstate location fees 47,524 44,815 34,170 Other fees 356 390 419 -------- -------- -------- Pari-mutuel commissions 24,761 25,213 25,858 Add off-track independent handle commissions 2,195 2,280 2,251 -------- -------- -------- Total pari-mutuel commissions $ 26,956 $ 27,493 $ 28,109 ======== ======== ======== TURF PARADISE - LIVE HORSE RACING (IN THOUSANDS) 1997 1996 1995 -------- -------- -------- Total pari-mutuel handle $166,976 $147,748 $111,509 Less patrons' winning tickets 129,212 114,585 86,460 -------- -------- -------- 37,764 33,163 25,049 Less: State pari-mutuel tax 0 18 345 Racing purses and awards 4,339 4,501 4,757 State sales tax 183 302 415 Off-track commissions 316 115 117 Interstate location fees 24,790 20,034 10,943 -------- -------- -------- Pari-mutuel commissions 8,136 8,193 8,472 Add off-track independent handle commissions 193 166 699 -------- -------- -------- Total pari-mutuel commissions including charity days 8,329 8,359 9,171 Less charity day pari-mutuel commissions 18 17 0 -------- -------- -------- Total pari-mutuel commissions net of charity days $ 8,311 $ 8,342 $ 9,171 ======== ======== ======== TRAK EAST AT SUNFLOWER - LIVE RACING (IN THOUSANDS) Greyhounds Horses 1995 1995 -------- -------- Total pari-mutuel handle $47,406 $ 2,844 Less patrons' winning tickets 37,379 2,273 -------- -------- 10,027 571 Less: State pari-mutuel tax 1,721 104 Racing purses and awards 2,230 190 -------- -------- Total pari-mutuel commissions $ 6,076 $ 277 ======= =======
As a stipulation to the granting of race dates, the California Horse Racing Board ("CHRB") requires that Hollywood Park designate three days from both the live Spring/Summer Meet and the Autumn Meeting as charity days. The charity day payments are not to exceed 2/10 of 1.0% of the total live on-track pari-mutuel handle for the respective race meet. Charity day payments must be made to a distributing agent approved by the CHRB. The Company made charity day payments of $310,000, $338,000 and $370,000 for the years ended December 31, 1997, 1996 and 1995, respectively. Arizona racing law requires that 1.0% of the total in-state pari-mutuel handle (on-track live pari-mutuel handle and off-track within the state pari-mutuel handle) of three charity days be paid to a distributing agent approved by the Arizona Racing Commission. The Arizona Department of Racing did not assign any charity days in 1995, therefore no payments were required. Turf Paradise paid $18,000 to the distributing agent in 1997, and paid $17,000 in 1996. 75 Hollywood Park Race Track conducts simulcast meets of live races held at local southern California race tracks and simulcasts races from northern California tracks concurrent with the Company's live race meets.
HOLLYWOOD PARK - SIMULCAST RACING 1997 1996 1995 -------- -------- -------- (in thousands) Pari-mutuel handle: Thoroughbred meets $371,716 $375,910 $379,263 Quarter Horse meets 22,821 23,067 22,793 Harness meets 7,402 6,165 4,391 -------- -------- -------- $401,939 $405,142 $406,447 ======== ======== ======== Pari-mutuel commissions: Thoroughbred meets $ 12,863 $ 12,669 $ 11,527 Quarter Horse meets 449 454 457 Harness meets 144 120 86 -------- -------- -------- $ 13,456 $ 13,243 $ 12,070 ======== ======== ========
TRAK East at Sunflower operates year round simulcasting of both greyhounds and horses. Pari-mutuel handle and commissions earned by TRAK East for the year ended December 31, 1995 are as follows:
TRAK EAST AT SUNFLOWER - SIMULCAST RACING 1995 -------------- (in thousands) Pari-mutuel handle: Greyhounds $10,871 Horses 29,600 ------- $40,471 ======= Pari-mutuel commission: Greyhounds $ 2,342 Horses 5,742 ------- $ 8,084 =======
Turf Paradise accepts simulcasts of live races from other tracks concurrently with live on-track racing as well as operating as a simulcast site for Prescott Downs between live meets. Turf Paradise also accepts simulcast signals on the two dark days (days without live racing) a week during the live on-track meet.
TURF PARADISE - SIMULCAST RACING 1997 1996 1995 ------- ------- ------- (in thousands) Pari-mutuel handle all meets $60,493 $55,814 $55,093 Pari-mutuel commissions all meets 5,020 4,768 3,909
NOTE 10 -- INCOME TAXES The Company accounts for income taxes under Statement of Financial Accounting Standards No. 109 Accounting for Income Taxes, whereby deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. 76 The composition of the Company's income tax expense for the years ended December 31, 1997, 1996 and 1995 was as follows:
Current Deferred Total -------- -------- ------ (in thousands) YEAR ENDED DECEMBER 31, 1997: U.S. Federal $ (1,616) $ 6,972 $5,356 State (698) 1,192 494 -------- -------- ------ $ (2,314) $ 8,164 $5,850 ======== ======== ====== YEAR ENDED DECEMBER 31, 1996: U.S. Federal $ 4,341 $ (1,681) $2,660 State (3,293) 4,092 799 -------- -------- ------ $ 1,048 $ 2,411 $3,459 ======== ======== ====== YEAR ENDED DECEMBER 31, 1995: U.S. Federal $ 0 $ 473 $ 473 State 42 178 220 -------- -------- ------ $ 42 $ 651 $ 693 ======== ======== ======
The following table reconciles the Company's income tax expense (based on its effective tax rate) to the federal statutory tax rate of 34%:
1997 1996 1995 ------ ------ ------ (in thousands) Income (loss) before income tax expense, at the statutory rate $4,935 $ (269) $ (159) Employee meals 192 0 0 Goodwill amortization 317 195 72 Political and lobbying costs 246 291 353 State income taxes, net of federal tax benefits 494 800 145 Other non-deductible expenses (334) 105 260 Additional provisions 0 2,337 22 ------ ------ ------ Income tax expense $5,850 $3,459 $ 693 ====== ====== ======
For the years ended December 31, 1997, and 1996, the tax effects of temporary differences that gave rise to significant portions of the deferred tax assets and deferred tax liabilities are presented below, along with a summary of activity in the valuation allowance. 77
1997 1996 -------- -------- (in thousands) CURRENT DEFERRED TAX ASSETS: Workers' compensation insurance reserve $ 790 $ 790 General liability insurance reserve 1,012 690 Legal accrual 58 58 Write off of investment in Sunflower 3,111 3,111 Development costs 0 0 Lawsuit settlement 1,104 1,104 Vacation and sick pay accrual 872 270 Bad debt allowance 528 437 Other 1,999 435 -------- -------- Current deferred tax assets 9,474 6,895 Less valuation allowance (306) (120) -------- -------- Current deferred tax assets 9,168 6,775 CURRENT DEFERRED TAX LIABILITIES: Business insurance and other (1,050) (353) -------- -------- Net current deferred tax assets $ 8,118 $ 6,422 ======== ======== NON-CURRENT DEFERRED TAX ASSETS: Net operating loss carryforwards $ 5,489 $ 0 General business investment tax credits 828 36 Alternative minimum tax credits 3,946 1,244 Los Angeles revitalization zone tax credits 11,798 9,299 Boomtown Merger costs 2,406 0 Capital loss divestiture of Boomtown Las Vegas 3,147 0 Other 2,717 42 -------- -------- Non-current deferred tax assets 30,331 10,621 Less valuation allowance (13,524) (5,511) -------- -------- Non-current deferred tax assets 16,807 5,110 -------- -------- NON-CURRENT DEFERRED TAX LIABILITIES: Expansion plans (400) (400) Los Angeles revitalization zone accelerated write-off (461) (461) Excess book value over tax basis of acquired assets (4,048) 0 Depreciation and amortization (17,382) (10,580) Other (826) (2,734) -------- -------- Non-current deferred tax liabilities (23,117) (14,175) -------- -------- Net non-current deferred tax liabilities $ (6,310) $ (9,065) ======== ========
The Company is located in the Los Angeles revitalization tax zone and is entitled to special state of California income tax credits related to sales tax paid on operating materials and supplies, on construction assets and wages paid to staff who reside within the zone. With the construction of the Hollywood Park-Casino and Crystal Park, the Company earned substantial tax credits related to sales tax paid on the assets acquired and on wages paid to construction employees.
December 31, ------------------ 1997 1996 ------- ------ (in thousands) Valuation allowance at beginning of period $ 5,632 $5,330 Valuation allowance for Boomtown NOL carryforwards and tax credits 5,699 0 Los Angeles revitalization zone tax credit 2,499 302 ------- ------ Valuation allowance at end of period $13,830 $5,632 ======= ======
As of December 31, 1997, the Company had federal net operating loss ("NOL") and capital loss ("CL") carryforwards of approximately $17,800,000, and $8,600,000, respectively, comprised principally of NOL carryforwards acquired in the Boomtown Merger, and CL carryforwards resulting from the disposition of Boomtown's Las Vegas property. The NOL carryforwards expire on various dates through 2012, and the CL carryforwards expire on various dates through 2002. In addition, the Company has approximately $400,000 78 of general business tax credits, comprised principally of FICA credits, and approximately $3,800,000 of alternative minimum tax credits available to reduce future federal income taxes. These tax credits generally cannot reduce federal taxes paid below the amount of alternative minimum tax. The general business tax credits expire in 2000. The alternative minimum tax credits do not expire. Under several provisions of the Internal Revenue Code (the "Code") and the regulations promulgated thereunder, the utilization of NOL, CL and tax credit carryforwards to reduce tax liability is restricted under certain circumstances. Events which cause such a limitation include, but are not limited to, certain changes in the ownership of a corporation. The Boomtown Merger caused such a change in ownership with respect to Boomtown. As a result, the Company's use of approximately $14,800,000 of Boomtown's NOL carryforwards, $1,400,000 of Boomtown's CL carryforwards, and $3,400,000 of Boomtown's tax credit carryforwards is subject to certain limitations imposed by Sections 382 and 383 of the Code and by the separate return limitation year rules of the consolidated return regulations. These limitations restrict the amount of such carryforwards that may be used by the Company in any taxable year and, consequently, are expected to defer the Company's use of a substantial portion of such carryforwards and may ultimately prevent the Company's use of a portion thereof. Therefore, a valuation allowance has been recorded related to the Boomtown carryforwards. For California tax purposes, as of December 31, 1997, the Company also had approximately $11,700,000 of Los Angeles Revitalization Zone ("LARZ") tax credits. The LARZ tax credits can only be used to reduce certain California tax liability and cannot be used to reduce federal tax liability. A valuation allowance has been recorded with respect to the LARZ tax credits because the Company may not generate enough income subject to California tax to utilize the LARZ tax credits before they expire. NOTE 11 -- STOCKHOLDERS' EQUITY On June 30, 1997, the Company acquired Boomtown and each share of Boomtown common stock was converted into the right to receive 0.625 of a share of Hollywood Park's common stock. Approximately 5,362,850 net shares of Hollywood Park common stock were issued. In connection with the Boomtown Merger, the Company purchased and retired 446,491 shares of Hollywood Park common stock received by a former Boomtown shareholder. During 1996 the Company announced its intention to repurchase and retire up to 2,000,000 shares of its common stock on the open market or in negotiated transactions. As of December 31, 1996, the Company had repurchased and retired (with the last purchase in 1996 made on November 13, 1996) 222,300 common shares at a cost of approximately $1,962,000. NOTE 12 -- LEASE OBLIGATIONS The Company leases certain equipment for use in gaming and racing operations and general office equipment. Minimum lease payments required under operating leases that have initial terms in excess of one year as of December 31, 1997 are as follows:
(in thousands) 1998 $1,870 1999 1,104 2000 422 2001 380 2002 366 Thereafter 529
Total rent expense for these long term lease obligations for the years ended December 31, 1997, 1996 and 1995 was $2,453,000, $1,378,000, and $1,318,000, respectively. 79 NOTE 13 -- RETIREMENT PLANS As of January 31, 1997, Hollywood Park terminated its Pension Plan, which was a non-contributory defined benefit Pension Plan covering certain employees of Hollywood Park, Inc. and Hollywood Park Operating Company. Pension Plan participants' accrued Pension Plan benefits were frozen as of September 1, 1996, except for certain retained participants (participants who, because of legal requirements, including the provisions of the National Labor Relations Act, were represented by a collective bargaining agent), whose accrued Pension Plan benefits were frozen as of December 31, 1996. The funds accumulated under the Pension Plan were distributed to the Pension Plan participants, and no Pension Plan assets were paid to the Company. During 1996, the Pension Plan was subject to the full funding limitation and thus no contributions were made. RETIREMENT PLANS FUNDED STATUS
December 31, ------------------ 1997 1996 ----- ------- (in thousands) Actuarial present value of benefit obligations: Accumulated benefit obligation, including vested benefits of $2,627,000 at December 31, 1996 $ 0 $ 2,627 ===== ======= Projected benefit obligation for service rendered to date $ 0 $ 2,627 Less Pension Plan assets at fair value 0 4,436 Less Pension Plan contribution 0 0 ----- ------- Pension Plan assets in excess of projected benefit obligation 0 1,809 Unrecognized net gain from past experience different from that assumed and effects of changes in assumptions 0 (1,052) Unrecognized net asset being recognized over 15 years 0 (452) ----- ------- Pension Plan asset $ 0 $ 305 ===== ======= Net pension expense - Service cost $ 0 $ 698 Net pension expense - Interest cost 0 325 Actual return on assets 0 (784) Net amortization and deferral 0 255 ----- ------- Net periodic pension cost $ 0 $ 494 ===== =======
The December 31, 1996, reserve liabilities and related asset values for the annuity contract were not included in the table above, because the Company executed an agreement with the insurance company holding the annuity contracts to no longer participate in the annual adjustments to the contract values. The weighted average discount rate used in determining the actuarial present value of the projected benefit obligations was 8.0% at December 31, 1996. The expected long term rate of return on assets was 8.0% at December 31, 1996. The Company also contributed to several collectively-bargained multi-employer pension and retirement plans (covering full and part-time employees) which are administered by unions, and to a pension plan covering non-union employees which is administered by an association of race track owners. Amounts charged to pension cost and contributed to these plans for the years ended December 31, 1997, 1996 and 1995 totaled $1,842,000, $1,872,000, and $1,781,000, respectively. Contributions to the collectively-bargained plans were determined in accordance with the provisions of negotiated labor contracts and generally are based on the number of employee hours or days worked. Contributions to the non-union plans are based on the covered employees' compensation. Information from the plans administrators was not available to permit the Company to determine its share of unfunded vested benefits or prior service liability. It is the opinion of management that no material liability exists. 80 Effective January 31, 1997, in conjunction with the termination of the Pension Plan, Hollywood Park elected to terminate its non-qualified Supplementary Employment Retirement Plan ("SERP"). The SERP was an unfunded plan, established primarily for the purpose of restoring the retirement benefits for highly compensated employees that were eliminated by the Internal Revenue Service in 1994, when the maximum annual earnings allowed for qualified pension plans was reduced to $150,000 from $235,850. Messers, Hubbard, Finnigan and Robbins participated in the SERP prior to its termination. NOTE 14 RELATED PARTY TRANSACTIONS In November 1993, Hollywood Park entered into an aircraft time sharing agreement with R.D. Hubbard Enterprises, Inc. ("Hubbard Enterprises"), which is wholly owned by Mr. Hubbard. The agreement automatically renews each month unless written notice of termination is given by either party at least two weeks before a renewal date. Hollywood Park reimburses Hubbard Enterprises for expenses incurred as a result of Hollywood Park's use of the aircraft, which totaled approximately $106,000 in 1997, $120,000 in 1996, and $126,000 in 1995. In May 1988, Boomtown acquired all of the outstanding stock of Boomtown Hotel & Casino, Inc. which owns and operates Boomtown Reno for $16,700,000 in cash (the "1988 Acquisition"). In order to finance the 1988 Acquisition, including the retirement of existing debt, Boomtown sold equity securities to Kenneth Rainin and Timothy J. Parrott, and Boomtown Reno entered into various loan documents with Merrill Lynch Interfunding, Inc. Pursuant to a stock purchase agreement, Mr. Rainin purchased 2,000 shares of Boomtown preferred stock and 3,042,000 shares of Boomtown common stock for an aggregate purchase price of approximately $4,000,000 in cash, and Mr. Parrott purchased 270,738 shares of Boomtown common stock for an aggregate purchase price of $222,000, of which $1,000 was paid in cash and $221,000 by a promissory note (the "Parrott Note") secured by a pledge to Boomtown of all of the shares owned by Mr. Parrott. The Parrott Note, as amended in April 1997, provides that (I) interest on the Parrott Note, which accrues at a rate of 6.0% per annum, compounded annually, is payable in arrears on April 7th of each year, commencing April 7, 1998, and (ii) principal is payable in four annual installments beginning April 7, 1998. The Parrott Note was previously amended in November 1994 to provide that the shares owned by Mr. Parrott would be released from the pledge and would no longer secure the amounts outstanding under the Parrott Note. Hollywood Park notes that the interest rate of 6% under the amended Parrott Note is less than Hollywood Park's current borrowing rate. However, this interest rate was in effect under the original version of the Parrott Note executed in 1988 prior to Boomtown's public offering and Hollywood Park's subsequent acquisition of Boomtown. With the exception of the interest rate on the Parrott Note, Hollywood Park believes that the terms of the following transactions were at least as favorable as could have been obtained by Hollywood Park from third parties in arms length transactions. NOTE 15 - STOCK OPTION PLAN In 1996, the shareholders of the Company adopted the 1996 Stock Option Plan (the "1996 Plan"), which provides for the issuance of up to 900,000 shares. Except for the provisions governing the number of shares issuable under the 1996 Plan and except for provisions which reflect changes in tax and securities laws, the provisions of the 1996 Plan are substantially similar to the provision of the prior plan adopted in 1993. The 1996 Plan is administered and terms of option grants are established by the Board of Directors' Compensation Committee. Under the terms of the 1996 Plan, options alone or coupled with stock appreciation rights may be granted to selected key employees, directors, consultants and advisors of the Company. Options become exercisable ratably over a vesting period as determined by the Compensation Committee and expire over terms not exceeding ten years from the date of grant, one month after termination of employment, or six months after the death or permanent disability of the optionee. The purchase price for all shares granted under the 1996 Plan shall be determined by the Compensation Committee, but in the case of incentive stock options, the price will not be less than the fair market value of the common stock at the date of grant. On April 26, 1996, the Company amended the non- qualified stock 81 option agreements issued through this date, to lower the per share price of the outstanding options to $10.00. On May 19, 1995, the Company amended the non- qualified stock option agreements issued through this date, to reflect the substantial decline in the fair market value of the common stock, lowering the per share price of the outstanding options to $13.00. As of December 31, 1997, all of the 625,000 shares eligible for issuance under the 1993 Plan had either been issued or were subject to outstanding options, and of the 900,000 shares eligible for issuance under the 1996 Plan, 40,000 were subject to outstanding options. In addition, 1,008,454 shares of Hollywood Park common stock were issuable upon exercise of options granted before the Boomtown Merger under Boomtown's 1990 Stock Option Plan and the 1992 Director Option Plan, these options were assumed by Hollywood Park in the Boomtown Merger. The following table summarizes information related to shares under option and shares available for grant under the Plan.
1997 1996 1995 ----------- ---------- -------- Options outstanding at beginning of year 622,500 249,000 235,000 Options granted during the year 261,000 413,500 15,000 Options expired or forfeited during the year (26,001) (40,000) (1,000) ----------- ---------- -------- Options outstanding at end of year 857,499 622,500 249,000 =========== ========== ======== Shares available for issuance under the 1993 Plan 625,000 625,000 625,000 Shares available for issuance under the 1996 Plan 900,000 900,000 0 ----------- ---------- -------- Total shares available for issuance 1,525,000 1,525,000 625,000 =========== ========== ======== Per share price of outstanding options issued in prior year $ 10.00 $ 10.00 $ 13.00 Per share price of outstanding options issued in prior year $ 11.50 $ 10.00 $ 13.25 Per share price of outstanding options issued in current year $ 14.75 $ 11.50 -- Number of shares subject to exercisable options at end of year 696,813 188,332 128,000
NOTE 16 - COMMITMENTS AND CONTINGENCIES On August 6, 1997, Hollywood Park and Hollywood Park Operating Company, as co- obligors, issued $125,000,000 of Notes (as previously discussed). The Notes are fully and unconditionally, jointly and severally, guaranteed on a senior subordinated basis by all of Hollywood Park's material subsidiaries. 82 NOTE 17 - UNAUDITED QUARTERLY INFORMATION The following is a summary of unaudited quarterly financial data for the years ended December 31, 1997 and 1996:
1997 --------------------------------------------------- Dec. 31, Sept. 30, June 30, Mar. 31, -------- --------- -------- -------- (in thousands, except per share data) Revenues $89,779 $85,210 $46,324 $ 26,815 ======== ========= ======== ======== Net income (loss) $ 1,551 $ 2,411 $ 5,603 ($895) ======== ========= ======== ======== Net income (loss) available to (allocated to) common shareholders $ 1,551 $ 1,853 $ 5,122 $ (1,376) ======== ========= ======== ======== Per common share: Net income (loss) - basic $ 0.06 $ 0.08 $ 0.28 $ (0.07) ======== ========= ======== ======== Net income (loss) - diluted $ 0.06 $ 0.08 $ 0.27 $ (0.07) ======== ========= ======== ======== Cash dividends $ 0.00 $ 0.00 $ 0.00 $ 0.00 ======== ========= ======== ======== 1996 --------------------------------------------------- Dec. 31, Sept. 30, June 30, Mar. 31, -------- --------- -------- -------- (in thousands, except per share data) Revenues $ 38,698 $ 30,247 $ 46,427 $ 27,853 ======== ========= ======== ======== Net income (loss) $ 3,277 $ 603 $ 5,249 $(13,378) ======== ========= ======== ======== Net income (loss) available to (allocated to) common shareholders $ 2,795 $ 122 $ 4,768 $(13,859) ======== ========= ======== ======== Per common share: Net income (loss) - basic $ 0.15 $ 0.01 $ 0.26 $ (0.74) ======== ========= ======== ======== Net income (loss) - diluted $ 0.15 $ 0.01 $ 0.25 $ (0.74) ======== ========= ======== ======== Cash dividends $ 0.00 $ 0.00 $ 0.00 $ 0.00 ======== ========= ======== ========
The primary reason for the loss for the quarter ended March 31, 1996, was the $11,346,000 write off of the Company's investment in Sunflower. Historically, the three months ended March 31, produce a loss, because the Company does not operate live on-track racing at Hollywood Park Race Track. NOTE 18 - CONSOLIDATING CONDENSED FINANCIAL INFORMATION Hollywood Park's subsidiaries (excluding Sunflower and other inconsequential subsidiaries) have fully and unconditionally guaranteed the payment of all obligations under the Hollywood Park 9.5% Senior Subordinated Notes due 2007. The following is the consolidating financial information for the co-obligors and their respective subsidiaries: 83 Hollywood Park, Inc. Consolidating Condensed Financial Information As of and for the years ended December 31, 1997, 1996 and 1995
(c) (a) (b) Wholly Hollywood Hollywood Wholly Majority Owned Consolidating Park, Inc. Park Owned Owned Non- and Hollywood (Parent Operating Co. Guarantor Guarantor Guarantor Eliminating Park, Inc. co-obligor) (co-obligor) Subsidiaries Subsidiaries Subsidiaries Entries Consolidated ---------- ------------- ------------ ------------ ------------ ------------- ------------ (in thousands) AS OF AND FOR THE YEAR ENDED DEC. 31, 1997 Balance Sheet - ------------- Current assets $ 19,844 $ 8,568 $ 25,074 $ 6,720 $0 $ 0 $ 60,206 Property, plant and equipment, net 68,515 23,753 140,105 68,293 0 0 300,666 Other non-current assets 22,306 0 29,320 7,611 0 (1,080) 58,157 Investment in subsidiaries 126,121 15,132 116,020 0 0 (257,273) 0 Inter-company 125,210 148,380 122,035 0 0 (395,625) 0 -------- ---------- --------- ------- -- ---------- -------- $361,996 $ 195,833 $ 432,554 $82,624 $0 ($653,978) $419,029 ======== ========== ========= ======= == ========== ======== Current liabilities $ 16,890 $ 14,232 $ 19,583 $ 6,612 $0 $ 0 $ 57,317 Notes payable, long term 2,406 125,256 1,936 2,504 0 0 132,102 Other non-current 4,753 5,202 83 0 0 (3,728) 6,310 liabilities Inter-company 146,145 21,589 178,448 49,443 0 (395,625) 0 Minority interest 0 0 0 0 0 1,946 1,946 Equity 191,802 29,554 232,504 24,065 0 (256,571) 221,354 -------- ---------- --------- ------- -- ---------- -------- $361,996 $ 195,833 $ 432,554 $82,624 $0 ($653,978) $419,029 ======== ========== ========= ======= == ========== ======== Statement of Operations - ----------------------- Revenues: Gaming $ 50,820 $ 0 $ 58,622 $28,217 $0 $ 0 $137,659 Racing 0 39,930 28,914 0 0 0 68,844 Food and beverage 4,659 0 13,483 1,752 0 0 19,894 Equity in subsidiaries 13,963 3,735 (43) 0 0 (17,655) 0 Inter-company 0 0 4,823 0 0 (4,823) 0 Other 4,601 1,808 13,789 1,533 0 0 21,731 -------- ---------- --------- ------- -- ---------- -------- 74,043 45,473 119,588 31,502 0 (22,478) 248,128 -------- ---------- --------- ------- -- ---------- -------- Expenses: Gaming 28,353 0 32,370 14,010 0 0 74,733 Racing 0 17,822 12,482 0 0 0 30,304 Food and beverage 9,658 0 13,784 2,303 0 0 25,745 Administrative and other 18,282 14,536 33,277 8,792 0 0 74,887 REIT restructuring 2,483 0 0 0 0 0 2,483 Depreciation and amortization 4,632 3,804 6,229 3,459 0 33 18,157 -------- ---------- --------- ------- -- ---------- -------- 63,408 36,162 98,142 28,564 0 33 226,309 -------- ---------- --------- ------- -- ---------- -------- Operating income (loss) 10,635 9,311 21,446 2,938 0 (22,511) 21,819 Interest expense 1,789 5,368 (37) 182 0 0 7,302 Inter-company interest 0 0 2,244 2,579 0 (4,823) 0 -------- ---------- --------- ------- -- ---------- -------- Income (loss) before minority interests and taxes 8,846 3,943 19,239 177 0 (17,688) 14,517 Minority interests 0 0 0 0 0 (3) (3) Income tax expense 4,124 0 1,726 0 0 0 5,850 -------- ---------- --------- ------- -- ---------- -------- Net income (loss) $ 4,722 $ 3,943 $ 17,513 $ 177 $0 ($17,685) $ 8,670 ======== ========== ========= ======= == ========== ======== Statement of Cash Flows: - ------------------------ Net cash provided by (used in) operating activities $ 19,559 ($117,960) $ 129,260 $ 5,250 $0 ($17,655) $ 18,454 Net cash provided by (used in) investing activities 14,747 (3,139) (23,516) (4,328) 0 0 (16,236) Net cash provided by (used in) financing activities 475 124,975 (114,345) (2,373) 0 877 9,609
84 Hollywood Park, Inc. Consolidating Condensed Financial Information As of and for the years ended December 31, 1997, 1996 and 1995
(c) (a) (b) Wholly Hollywood Hollywood Wholly Majority Owned Consolidating Park, Inc. Park Owned Owned Non- and Hollywood (Parent Operating Co. Guarantor Guarantor Guarantor Eliminating Park, Inc. co-obligor) (co-obligor) Subsidiaries Subsidiaries Subsidiaries Entries Consolidated ----------- -------------- ------------- ------------- ------------- -------------- ------------- (in thousands) AS OF AND FOR THE YEAR ENDED DEC. 31, 1996 Balance Sheet - ------------- Current assets $ 23,522 $ 7,362 $ 9,646 $ 429 $ 0 $ 0 $ 40,959 Property, plant and equipment, net 70,443 24,353 12,786 23,253 0 0 130,835 Other non-current assets 23,322 0 5,108 5,662 0 0 34,092 Investment in subsidiaries 28,723 45,432 23,852 0 0 (98,007) 0 Inter-company 72,099 11,386 0 0 0 (83,485) 0 --------- ------- ------- ------- -------- ---------- -------- $ 218,109 $88,533 $51,392 $29,344 $ 0 ($181,492) $205,886 ========= ======= ======= ======= ======== ========== ======== Current liabilities $ 16,324 $ 7,032 $11,807 $ 201 $ 0 $ 0 $ 35,364 Notes payable, long term 0 282 0 0 0 0 282 Other non-current 3,859 5,206 0 0 0 0 9,065 liabilities Inter-company 39,851 50,479 7,677 0 0 (98,007) 0 Minority interest 0 0 0 0 0 3,015 3,015 Equity 158,075 25,534 31,908 29,143 0 (86,500) 158,160 --------- ------- ------- ------- -------- ---------- -------- $ 218,109 $88,533 $51,392 $29,344 $ 0 ($181,492) $205,886 ========= ======= ======= ======= ======== ========== ======== Statement of Operations - ----------------------- Revenues: Gaming $ 50,272 $ 0 $ 0 $ 445 $ 0 $ 0 $ 50,717 Racing 0 41,423 28,568 0 1,317 0 71,308 Food and beverage 4,956 0 8,533 0 458 0 13,947 Equity in subsidiaries 1,751 3,408 0 0 0 (5,159) 0 Other 4,993 1,915 338 0 7 0 7,253 --------- ------- ------- ------- -------- ---------- -------- 61,972 46,746 37,439 445 1,782 (5,159) 143,225 --------- ------- ------- ------- -------- ---------- -------- Expenses: Gaming 27,249 0 0 0 0 0 27,249 Racing 0 17,999 11,903 0 265 0 30,167 Food and beverage 10,930 0 8,235 0 408 0 19,573 Administrative and other 18,316 15,059 9,556 1 1,030 0 43,962 Write off of investment in Sunflower 11,412 0 0 0 0 0 11,412 Depreciation and amortization 4,665 3,645 1,479 319 536 51 10,695 --------- ------- ------- ------- -------- ---------- -------- 72,572 36,703 31,173 320 2,239 51 143,058 --------- ------- ------- ------- -------- ---------- -------- Operating income (loss) (10,600) 10,043 6,266 125 (457) (5,210) 167 Interest expense 134 27 0 0 781 0 942 --------- ------- ------- ------- -------- ---------- -------- Income (loss) before minority interests and taxes (10,734) 10,016 6,266 125 (1,238) (5,210) (775) Minority interests 0 0 0 0 0 15 15 Income tax expense 3,421 0 38 0 0 0 3,459 --------- ------- ------- ------- -------- ---------- -------- Net income (loss) ($14,155) $10,016 $ 6,228 $ 125 ($1,238) ($5,225) ($4,249) ========= ======= ======= ======= ======== ========== ======== Statement of Cash Flows: - ------------------------ Net cash provided by (used in) operating activities ($6,205) $ 4,956 $ 2,426 $ 200 ($3,588) $ 15,888 $ 13,677 Net cash used in investing activities (963) (5,992) (354) 0 0 (12,584) (19,893) Net cash used in financing activities (4,245) (23) 0 0 0 0 (4,268)
85 Hollywood Park, Inc. Consolidating Condensed Financial Information As of and for the years ended December 31, 1997, 1996 and 1995
(a) (b) Wholly Hollywood Hollywood Wholly Majority Owned Consolidating Park, Inc. Park Owned Owned Non- and Hollywood (Parent Operating Co. Guarantor Guarantor Guarantor Eliminating Park, Inc. co-obligor) (co-obligor) Subsidiaries Subsidiaries Subsidiaries Entries Consolidated ----------- -------------- ------------- ------------- ------------- ------------- ------------- (in thousands) AS OF AND FOR THE YEAR ENDED DEC. 31, 1995 Statement of Operations - ----------------------- Revenues: Gaming $ 26,656 $ 0 $ 0 $0 $ 0 $ 0 $ 26,656 Racing 0 42,648 27,542 0 6,846 0 77,036 Food and beverage 7,422 0 9,489 0 2,872 0 19,783 Equity in subsidiaries (3,610) 1,983 0 0 0 1,627 0 Other 2,420 4,176 444 0 57 0 7,097 --------- ------- ------- -- -------- ------- -------- 32,888 48,807 37,475 0 9,775 1,627 130,572 --------- ------- ------- -- -------- ------- -------- Expenses: Gaming 5,291 0 0 0 0 0 5,291 Racing 0 16,745 12,830 0 1,385 0 30,960 Food and beverage 12,964 0 9,288 0 2,497 0 24,749 Administrative and other 16,411 17,746 9,184 0 5,306 0 48,647 Lawsuit settlement 6,088 0 0 0 0 0 6,088 Depreciation and amortization 3,887 3,236 1,586 0 2,468 207 11,384 --------- ------- ------- -- -------- ------- -------- 44,641 37,727 32,888 0 11,656 207 127,119 --------- ------- ------- -- -------- ------- -------- Operating income (loss) (11,753) 11,080 4,587 0 (1,881) 1,420 3,453 Interest expense 172 29 30 0 3,691 0 3,922 --------- ------- ------- -- -------- ------- -------- Income (loss) before taxes (11,925) 11,051 4,557 0 (5,572) 1,420 (469) Income tax expense 510 0 182 0 1 0 693 --------- ------- ------- -- -------- ------- -------- Net income (loss) ($12,435) $11,051 $ 4,375 $0 ($5,573) $ 1,420 ($1,162) ========= ======= ======= == ======== ======= ======== Statement of Cash Flows: - ------------------------ Net cash provided by (used in) operating activities $ 2,575 $11,864 $ 2,794 $0 $ 1,431 $ 1,627 $ 20,291 Net cash provided by (used in) investing activities (40,218) (5,371) (1,831) 0 0 14,498 (32,922) Net cash provided by (used in) financing activities 1,433 21 (1,913) 0 (1,626) 0 (2,085)
_____ (a) The following wholly owned guarantor subsidiaries were included in each period presented: Turf Paradise, Inc., Hollywood Park Food Services, Inc., and Hollywood Park Fall Operating Company. As of and for the year ended December 31, 1997, the following wholly owned guarantor subsidiaries were also included: HP Yakama, Inc., Boomtown, Inc., Boomtown Hotel & Casino, Inc., Louisiana - I Gaming, HP/Compton, Inc. (included as of October 1996) and Louisiana Gaming Enterprises, Inc. Due to the June 30, 1997, Boomtown Merger being accounted for under the purchase method of accounting for a business combination, the financial results as of and for the year ended December 31, 1997, included Boomtown, Inc.'s, Boomtown Hotel & Casino, Inc.'s, Louisiana - I Gaming's, and Louisiana Gaming Enterprises, Inc.'s financial results for the six months ended December 31, 1997, only. (b) The Company's majority owned guarantor subsidiaries are Crystal Park Hotel and Casino Development Company, LLC (which as of December 31, 1997, became a wholly owned subsidiary) and Mississippi - I Gaming, L.P., (which was added as of the June 30, 1997, Boomtown Merger). As a result of the Boomtown Merger, Mississippi - I Gaming, L.P.'s financial results are included for the six months ended December 31, 1997, only. (c) Sunflower Racing, Inc. and its wholly owned subsidiary, SR Food and Beverage, Inc., were the Company's only wholly owned non-guarantor subsidiaries with material financial activity during the periods presented. As of March 31, 1996, the financial results of these two wholly owned non- guarantor subsidiaries were no longer consolidated with the Company's financial results, due to the write off of Hollywood Park's investment in these subsidiaries. All other wholly owned non-guarantor subsidiaries are either empty companies established for potential development projects that were subsequently abandoned, or the subsidiary's financial activity was immaterial. 86 SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
(in thousands) ALLOWANCE FOR BAD DEBTS: Balance as of December 31, 1994 ($159) Charges to expense (2,294) Write offs 612 ------------- Balance as of December 31, 1995 (1,841) Charges to expense (a) (783) Write offs 1,535 ------------- Balance as of December 31, 1996 (1,089) Add Boomtown balance as of June 30, 1997 (b) (225) Charges to expense (189) Write offs 754 ------------- Balance as of December 31, 1997 ($749) =============
_____ (a) Hollywood Park assumed the bad debt allowance related to the Hollywood Park-Casino gaming business in the November 17, 1995, acquisition of PCM. (b) Hollywood Park acquired Boomtown as of June 30, 1997. 87 Hollywood Park, Inc. Selected Financial Data by Operational Location
Three months ended (unauditied) ------------------------------------------------ Year ended December 31, September 30, June 30, March 31, December 31, 1997 1997 1997 1997 1997 ----------- ------------ -------- --------- ------------ (in thousands, except per share data) REVENUES: Hollywood Park, Inc. - Casino Division $ 15,053 $ 14,759 $ 15,323 $ 13,994 $ 59,129 HP/Compton, Inc. - Crystal Park Hotel and Casino 20 702 900 600 2,222 Boomtown Reno 15,837 20,978 0 0 36,815 Boomtown New Orleans 19,736 19,380 0 0 39,116 Boomtown Biloxi 14,253 15,028 0 0 29,281 Hollywood Park Race Track 18,143 12,334 26,747 5,446 62,670 Turf Paradise, Inc. 6,022 1,647 3,143 6,562 17,374 Hollywood Park, Inc. - Corporate 201 327 211 213 952 Boomtown, Inc. - Corporate 514 55 0 0 569 ------- ------- ------- ------- -------- 89,779 85,210 46,324 26,815 248,128 ------- ------- ------- ------- -------- EXPENSES: Hollywood Park, Inc. - Casino Division 12,564 12,071 12,927 12,441 50,003 HP/Compton, Inc. - Crystal Park Hotel and Casino 425 25 18 22 490 Boomtown Reno 15,531 16,665 0 0 32,196 Boomtown New Orleans 14,266 13,860 0 0 28,126 Boomtown Biloxi 11,973 12,642 0 0 24,615 Hollywood Park Race Track 14,100 11,183 16,735 7,286 49,304 Turf Paradise, Inc. 4,087 2,023 2,670 4,230 13,010 Hollywood Park, Inc. - Corporate 1,861 1,744 1,346 1,336 6,287 Boomtown, Inc. - Corporate 802 836 0 0 1,638 ------- ------- ------- ------- -------- 75,609 71,049 33,696 25,315 205,669 ------- ------- ------- ------- -------- NON-RECURRING EXPENSES: REIT restructuring 1,874 397 212 0 2,483 DEPRECIATION AND AMORTIZATION: Hollywood Park, Inc. - Casino Division 557 685 900 764 2,906 HP/Compton, Inc. - Crystal Park Hotel and Casino 477 521 402 400 1,800 Boomtown Reno 1,379 1,353 0 0 2,732 Boomtown New Orleans 1,019 1,031 0 0 2,050 Boomtown Biloxi 862 820 0 0 1,682 Hollywood Park Race Track 1,051 1,013 1,001 991 4,056 Turf Paradise, Inc. 292 288 297 295 1,172 Hollywood Park, Inc. - Corporate 430 431 431 434 1,726 Boomtown, Inc. - Corporate 16 17 0 0 33 ------- ------- ------- ------- -------- 6,083 6,159 3,031 2,884 18,157 ------- ------- ------- ------- -------- OPERATING INCOME (LOSS): Hollywood Park, Inc. - Casino Division 1,932 2,003 1,496 789 6,220 HP/Compton, Inc. - Crystal Park Hotel and Casino (882) 156 480 178 (68) Boomtown Reno (1,073) 2,960 0 0 1,887 Boomtown New Orleans 4,451 4,489 0 0 8,940 Boomtown Biloxi 1,418 1,566 0 0 2,984 Hollywood Park Race Track 2,992 138 9,011 (2,831) 9,310 Turf Paradise, Inc. 1,643 (664) 176 2,037 3,192 Hollywood Park, Inc. - Corporate (2,090) (1,848) (1,566) (1,557) (7,061) Boomtown, Inc. - Corporate (304) (798) 0 0 (1,102) REIT restructuring (1,874) (397) (212) 0 (2,483) ------- ------- ------- ------- -------- 6,213 7,605 9,385 (1,384) 21,819 ------- ------- ------- ------- -------- INTEREST EXPENSE 3,520 3,653 65 64 7,302 MINORITY INTERESTS: HP/Compton, Inc. - Crystal Park Hotel and Casino (84) 17 42 22 (3) ------- ------- ------- ------- -------- INCOME (LOSS) BEFORE INCOME TAX EXPENSE 2,777 3,935 9,278 (1,470) 14,520 Income tax expense 1,226 1,524 3,675 (575) 5,850 ------- ------- ------- ------- -------- Net income (loss) $ 1,551 $ 2,411 $ 5,603 $ (895) $ 8,670 ======= ======= ======= ======= ======== Dividend requirements on convertible preferred stock $ 0 $ 558 $ 481 $ 481 $ 1,520 ------- ------- ------- ------- -------- Net income (loss) available to (allocated to) common shareholders $ 1,551 $ 1,853 $ 5,122 $(1,376) $ 7,150 ======= ======= ======= ======= ======== Per common share: Net income (loss) - basic $0.06 $0.08 $0.28 ($0.07) $0.33 Net income (loss) - diluted $0.06 $0.08 $0.27 ($0.07) $0.32 Number of shares - basic 26,209 24,706 18,462 18,372 22,010 Number of shares - diluted 26,705 24,706 20,754 20,664 22,340
88 Hollywood Park, Inc. Calculation of Earnings Per Share
For the three months ended December 31, ----------------------------------------------------------------------------------- Basic Diluted ---------------------------------------- -------------------------------------- 1997 1996 1995 1997 1996 1995 ---------- ---------- ---------- ---------- ---------- ---------- (in thousands, except per share data) Average number of common shares outstanding 26,209 18,365 18,486 26,705 18,365 18,486 Average common shares due to assumed conversion of convertible preferred shares 0 0 0 0 2,291 2,291 ------- ------- ------- ------- ------- ------- Total shares 26,209 18,365 18,486 26,705 20,656 20,777 ======= ======= ======= ======= ======= ======= Net income $ 1,551 $ 3,277 $ 212 $ 1,551 $ 3,277 $ 212 Less dividend requirements on convertible preferred shares 0 482 482 0 0 0 ------- ------- ------- ------- ------- ------- Net income (loss) available to (allocated to) common shareholders $ 1,551 $ 2,795 $ (270) $ 1,551 $ 3,277 $ 212 ======= ======= ======= ======= ======= ======= Net income (loss) per share $ 0.06 $ 0.15 $ (0.01) $ 0.06 $ 0.16 $ 0.01 ======= ======= ======= ======= ======= ======= For the years ended December 31, ----------------------------------------------------------------------------------- Basic Diluted ---------------------------------------- -------------------------------------- 1997 1996 1995 1997 1996 1995 ---------- ---------- ---------- ---------- ---------- ---------- (in thousands, except per share data) Average number of common shares outstanding 22,010 18,505 18,399 22,340 18,505 18,399 Average common shares due to assumed conversion of convertible preferred shares 0 0 0 0 2,291 2,291 ------- ------- ------- ------- ------- ------- Total shares 22,010 18,505 18,399 22,340 20,796 20,690 ======= ======= ======= ======= ======= ======= Net income (loss) $ 8,670 $(4,249) $(1,162) $ 8,670 $(4,249) $(1,162) Less dividend requirements on convertible preferred shares 1,520 1,925 1,925 1,520 0 0 ------- ------- ------- ------- ------- ------- Net income (loss) attributable to (allocated to) common shareholders $ 7,150 $(6,174) $(3,087) $ 7,150 $(4,249) $(1,162) ======= ======= ======= ======= ======= ======= Net income (loss) per share $ 0.33 $ (0.33) $ (0.17) $ 0.32 $ (0.20) $ (0.06) ======= ======= ======= ======= ======= =======
- -------- Note: As of August 28, 1997, the Company's 2,749,900 outstanding depositary shares were converted into 2,291,492 shares of the Company's common stock. 89 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To the Members of Crystal Park Hotel and Casino Development Company, LLC: We have audited the accompanying balance sheets of Crystal Park Hotel and Casino Development Company, LLC (a California limited liability company) ("Crystal Park LLC") as of December 31, 1997 and 1996, and the related statements of operations, members' equity and cash flows for the year ended December 31, 1997 and for the period from July 18, 1996 (date of inception) to December 31, 1996. These financial statements are the responsibility of Crystal Park LLC'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 Crystal Park Hotel and Casino Development Company, LLC as of December 31, 1997 and 1996, and the results of its operations and its cash flows for the year ended December 31, 1997 and for the period from July 18, 1996 to December 31, 1996, in conformity with generally accepted accounting principles. ARTHUR ANDERSEN LLP Los Angeles, California February 18, 1998, except for the last sentence in the second paragraph of Note 1 as to which the date is February 27, 1998 90 Crystal Park Hotel and Casino Development Company, LLC Balance Sheets
As of December 31, ---------------------- 1997 1996 ------- ------- Assets (in thousands) Real estate and leasehold interests held for investment: Land and land lease $2,663 $2,663 Buildings 1,404 1,404 Leasehold interests and improvements 20,403 19,457 Less accumulated depreciation and amortization (1,764) (271) ------- ------- 22,706 23,253 ------- ------- Cash and cash equivalents 683 200 Rent and other receivables 167 229 Organization costs, net 498 452 Other assets, net 5,057 5,210 ------- ------- $29,111 $29,344 ======= ======= Liabilities and Members' Equity Accounts payable $477 $1 Security deposit 0 200 ------- ------- Total liabilities 477 201 Members' equity: HP/Compton, Inc. 25,715 26,128 Redwood Gaming, LLC 1,946 2,010 HP Casino, Inc. 973 0 First Park Investments, LLC 0 1,005 ------- ------- Total members' equity 28,634 29,143 ------- ------- $29,111 $29,344 ======= =======
- ------------------------ See accompanying notes to financial statements. 91 Crystal Park Hotel and Casino Development Company, LLC Statements of Operations
For the year ended Inception to December 31, December 31, 1997 1996 ------------ ------------ (in thousands) Revenues: Lease rent $2,221 $445 Expenses: Administrative 491 1 Amortization of organization costs and other assets 284 48 Depreciation and amortization of real estate and leasehold interests 1,493 271 ------ ---- 2,268 320 ------ ---- Net income (loss) $ (47) $125 ====== ====
- ------ See accompanying notes to financial statements. Crystal Park Hotel and Casino opened for business on October 25, 1996. Crystal Park Hotel and Casino Development Company, LLC was formed July 18, 1996. 92 Crystal Park Hotel and Casino Development Company, LLC Statements of Members' Equity
Redwood First Park HP/Compton, Inc. HP Casino, Inc. Gaming, LLC Investments, LLC Total ---------------- --------------- ----------- ---------------- ----- (in thousands) Capital contributions $26,018 $ 0 $2,000 $1,000 $29,018 Net income 110 0 10 5 125 ------- ---- ------ ------ ------- Balance at year end 1996 26,128 0 2,010 1,005 29,143 Capital contributions 415 0 0 0 415 Transfer of member interest 0 977 0 (977) 0 Net income (loss) (40) (4) (5) 2 (47) Capital distributions (788) 0 (59) (30) (877) ------- ---- ------ ------ ------- Balance at year end 1997 $25,715 $973 $1,946 $ 0 $28,634 ======= ==== ====== ====== =======
- ------ See accompanying notes to financial statements. Crystal Park Hotel and Casino opened for business on October 25, 1996. Crystal Park Hotel and Casino Development Company, LLC was formed July 18, 1996. 93 Crystal Park Hotel and Casino Development Company, LLC Statements of Cash Flows
For the year ended Inception to December 31, December 31, 1997 1996 ------------ ------------ (in thousands) CASH FLOWS FROM OPERATING ACTIVITIES: Net income (loss) ($47) $125 Adjustments to reconcile net income (loss) to net cash provided by operating activities: Depreciation and amortization 1,777 319 Decrease (increase) in rent and other receivables 62 (229) Decrease in organization costs and other assets (177) (216) Increase in accounts payable 476 1 (Decrease) increase in security deposit (200) 200 ------ ------- Net cash provided by operating activities 1,891 200 ------ ------- CASH FLOWS FROM INVESTING ACTIVITIES: Additions to leasehold interests and improvements (531) 0 ------ ------- Net cash used in investing activities (531) 0 ------ ------- CASH FLOWS FROM FINANCING ACTIVITIES: Payments to majority member (788) 0 Payments to minority members (89) 0 ------ ------- Net cash used for financing activities (877) 0 ------ ------- Increase in cash and cash equivalents 483 200 Cash and cash equivalents at the beginning of the period 200 0 ------ ------- Cash and cash equivalents at the end of the period $683 $200 ====== ======= Supplemental disclosure of non-cash transactions: Contribution of real estate and improvements by majority member $415 $20,776 ====== ======= Contribution of other assets by majority member -- $5,242 ====== ======= Contribution by minority members -- $3,000 ====== =======
- ------ See accompanying notes to financial statements. Crystal Park Hotel and Casino opened for business on October 25, 1996. Crystal Park Hotel and Casino Development Company was formed on July 18, 1996. 94 CRYSTAL PARK HOTEL AND CASINO DEVELOPMENT COMPANY, LLC NOTES TO FINANCIAL STATEMENTS NOTE 1 -- SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES The financial information included herein has been prepared in conformity with generally accepted accounting principles. The information provided in this Annual Report on Form 10-K, in the opinion of management, reflects all normal and recurring adjustments that are necessary to present a fair statement of the financial results. GENERAL Crystal Park Hotel and Casino Development Company, LLC ("Crystal Park LLC") was formed in July 1996, to renovate and lease (to an unaffiliated third party) a California card club casino and hotel (the "Crystal Park Casino"). The Crystal Park Casino initially opened under a lease to an unaffiliated third party on October 25, 1996. As of December 31, 1997, Crystal Park LLC was 89.8% owned by HP/Compton, Inc. ("HP/Compton"), and 10.2% owned by HP Casino, Inc. ("HP Casino") (both wholly owned subsidiaries of Hollywood Park, Inc.). On December 4, 1997, HP Casino purchased 3.4% of Crystal Park LLC from First Park Investments, LLC ("First Park") for $1,000,000 (the amount initially invested by First Park), and as of December 31, 1997, HP Casino purchased Redwood Gaming, LLC's ("Redwood") 6.8% membership in Crystal Park LLC for $2,000,000 (the amount initially invested by Redwood), paid on February 27, 1998. Current California law does not allow publicly traded companies, such as Hollywood Park, Inc., to operate a card club, other than on the same premises as a race track. Therefore, Crystal Park LLC leases the facility to CCM under a 48 month, triple net lease executed on December 19, 1997. Rent under the lease is fixed at $100,000 for the first six months, $350,000 for months 7 though 18, and $550,000 for months 19 through 48. Crystal Park LLC does not participate in any gaming or hotel revenues from the Crystal Park Casino. As of this filing CCM was current on rent payments. Under the new lease with CCM, if California law is changed to allow Hollywood Park, Inc. to operate the Crystal Park Casino, Crystal Park LLC will operate the property in a partnership with CCM, with Crystal Park LLC owning 90% of the business. Previously, the Crystal Park Casino was under lease to Compton Entertainment, Inc. ("CEI"). On November 4, 1997, Crystal Park LLC obtained a judgment in an action for unlawful detainer against CEI, due to CEI's failure to pay a portion of the June 1997 rent and to make required additional rent payments. In October 1997, the California Attorney General revoked CEI's conditional gaming registration, and the City of Compton revoked CEI's city gaming license. CEI closed the Crystal Park Casino on October 11, 1997. CCM reopened the Crystal Park Casino on December 26, 1997. The Crystal Park Casino is located in the Los Angeles metropolitan area and within ten miles of Orange County. The Crystal Park Casino reopened with approximately 60 gaming tables, and focused primarily on the Asian gaming market by offering primarily the California games as opposed to poker. Collection rates for California games are significantly higher than for traditional poker games. The Crystal Park Casino operates a 280 room hotel, including 40 VIP suites, a restaurant and buffet, gift shop, and a lobby sports bar and lounge. The hotel operates under a Radisson Hotels International, Inc. ("Radisson") flag. The hotel operates under a 20 year License Agreement between HP/Compton and Radisson, (which was signed in 1996). CCM is responsible for payments required under the License Agreement. HP/Compton can terminate the License Agreement, at no cost to HP/Compton, at the end of the third, fifth or tenth year. ESTIMATES Financial statements prepared according to generally accepted accounting principles require the use of management estimates, including estimates used to evaluate the recoverability of real estate and leasehold interests held for investment. These estimates are subject to a variety of risks and uncertainties that could cause actual results to differ materially from those anticipated by management. 95 REAL ESTATE AND LEASEHOLD INTERESTS HELD FOR INVESTMENT Depreciation and amortization of buildings and building improvements, and leasehold interests are calculated using the straight line method over a 40 year estimated useful life. Furniture and equipment is being depreciated on a straight line basis over a three to ten year life. ORGANIZATION COSTS Organization costs were capitalized and are being amortized on a straight-line basis over five years. INCOME TAXES Crystal Park LLC is not subject to state or federal income taxes. Crystal Park LLC's income or loss is allocated to its members and included in their respective income tax returns. RECLASSIFICATIONS Certain reclassifications have been made to prior periods to be consistent with the 1997 financial statement presentation. NOTE 2 -- REAL ESTATE AND LEASEHOLD INTERESTS HELD FOR INVESTMENT Leasehold interests relate to a capital lease between HP/Compton and the City of Compton covering the hotel, surrounding parking and expansion parcels at the Crystal Park Casino site. The lease transfers substantially all benefits and risks incidental to the ownership of the property to Crystal Park LLC. The lease was executed on August 3, 1995, and has a term of up to 50 years. The cost of the initial improvements to the Crystal Park Casino are credited against the annual base rent due from Crystal Park LLC to the City of Compton. The annual rent payments start at $600,000 and increase every fifth year until year 46, when they stabilize at $2,850,000. No cash rent payments are expected to be made until after the nineteenth year of the lease, or 2014. Crystal Park LLC has the option to either (i) purchase all of the leasehold parcels at an amount based on a formula defined in the lease agreement, or (ii) purchase only the hotel and parking leasehold parcels at a fixed price. Crystal Park LLC's management expects that in the normal course of business, and after the rent credits are fully utilized, it is probable that they will exercise the option to purchase the hotel and parking leasehold parcels only. If the option is exercised after the rent credits are fully utilized, the future minimum lease rent payments for the remaining lease term total approximately $3,350,000. The present value of the future minimum lease payments, after a reduction of $2,700,000 for imputed interest based on Crystal Park LLC's incremental borrowing rate, is approximately $650,000. Crystal Park LLC incurred costs of approximately $23,000,000 to renovate and equip the Crystal Park Casino, and as previously mentioned, Crystal Park LLC receives a credit against rent due to the City of Compton. The $23,000,000 is applied against the lease rent on a dollar for dollar basis until the $23,000,000 is fully utilized. Essentially, Crystal Park LLC has prepaid the rent for the first eighteen years of the lease. This prepayment was considered in determining the present value of the future minimum lease payments. NOTE 3 -- OTHER ASSETS Other assets consist of payments made by Hollywood Park (and subsequently contributed by Hollywood Park to Crystal Park LLC) to CEI as required under the Amended and Restated Agreement Respecting Pyramid Casino (subsequently changed to Crystal Park Hotel and Casino). Payments totaling approximately $5,000,000 were made to CEI to acquire its real property rights to the Crystal Park site, the initial construction plans, and rights to the gaming license that CEI held with the City of Compton. These payments made to CEI have been capitalized and are being amortized on a straight-line basis over their estimated useful lives of 40 years. 96 NOTE 4 -- ACCOUNTING FOR THE IMPAIRMENT OF LONG-LIVED ASSETS AND LONG-LIVED ASSETS TO BE DISPOSED OF Whenever there are recognized events or changes in circumstances that indicate the carrying amount of an asset may not be recoverable, management reviews the asset for possible impairment. In accordance with current accounting standards, management uses estimated expected future cash flows (undiscounted and excluding interest costs, and grouped at the lowest level for which there are identifiable cash flows that are as independent as possible of other asset groups) to measure the recoverability of the asset. If the expected future net cash flows are less than the carrying amount of the asset an impairment loss would be recognized. An impairment loss would be measured as the amount by which the carrying amount of the asset exceeded the fair value of the asset, with the fair value measured as the amount at which the asset could be bought or sold in a current transaction between willing parties, other than in a forced liquidation sale. The estimation of expected future cash flows is inherently uncertain and relies to a considerable extent on assumptions regarding current and future net cash flows, market conditions, and the availability of capital. If, in future periods, there are changes in the estimates or assumptions used in the impairment review analysis the changes could result in an adjustment to the carrying amount of the assets, but at no time would previously recognized impairment losses be restored. NOTE 5 -- FUTURE LEASE RENT REVENUE On December 19, 1997, Crystal Park LLC and CCM entered into a 48 month lease for the Crystal Park Casino. Lease rent is fixed at $100,000 for the first six months, $350,000 for months 7 through 18, and $550,000 for months 19 through 48. As of this filing CCM was current on rent payments. As of December 31, 1997, the future cash rent receivable from CCM for the balance of the lease is as follows:
YEAR ENDED: (in thousands) December 31, 1998 $ 2,700 December 31, 1999 5,400 December 31, 2000 6,600 December 31, 2001 6,600 ------- Total $21,300 =======
NOTE 6 -- COMMITMENTS AND CONTINGENCIES On August 6, 1997, Hollywood Park, Inc. and Hollywood Park Operating Company (a wholly owned subsidiary of Hollywood Park, Inc.), as co-obligors, issued $125,000,000 of Series A 9.5% Senior Subordinated Notes due 2007 (the "Notes"). The Notes are fully and unconditionally, jointly and severally, guaranteed on a senior subordinated basis by all of Hollywood Park's material subsidiaries, including Crystal Park, LLC. This Annual Report is being filed pursuant to the Indenture governing the Notes as a guarantor which is not wholly owned (prior to December 31, 1997) by the issuers of the Notes. 97 Report of Ernst & Young LLP, Independent Auditors The Executive Committee Mississippi - I Gaming, L.P., a Mississippi Limited Partnership We have audited the accompanying balance sheet of Mississippi - I Gaming, L.P. (the "Mississippi Partnership"), a Mississippi limited partnership, as of September 30, 1996, and the related statements of operations, partners' capital (deficit) and cash flows for the years ended September 30, 1996 and 1995. These financial statements are the responsibility of the Mississippi Partnership's management. Our responsibility is to express an opinion of 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 the Mississippi Partnership at September 30, 1996, and the results of its operations and its cash flows for the years ended September 30, 1996 and 1995, in conformity with generally accepted accounting principles. ERNST & YOUNG LLP New Orleans, Louisiana October 31, 1996 98 Report of Arthur Andersen LLP, Independent Auditors The Executive Committee Mississippi - I Gaming, L.P. a Mississippi Limited Partnership: We have audited the accompany balance sheets of Mississippi - I Gaming, L.P. (the "Mississippi Partnership"), a Mississippi limited partnership, as of December 31, 1997 and June 30, 1997, and the related statements of operations, partners' capital (deficit) and cash flows for the six months ended December 31, 1997, and for the nine months ended June 30, 1997. These financial statements are the responsibility of the Mississippi Partnership'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 the Mississippi Partnership as of December 31, 1997 and June 30, 1997, and the results of its operations and its cash flows for the six months ended December 31, 1997, and for the nine months ended June 30, 1997, in conformity with generally accepted accounting principles. ARTHUR ANDERSEN LLP New Orleans, Louisiana February 18, 1998 99 Mississippi - I Gaming, L.P. Balance Sheets
As of ------------------------------------------- December 31, June 30, September 30, 1997 1997 1996 ------------------------------------------- (in thousands) ASSETS Current Assets: Cash and cash equivalents $4,143 $3,043 $2,907 Other receivables, net 113 61 148 Prepaid expenses and other assets 1,614 2,431 2,947 ------- ------- ------- Total current assets 5,870 5,535 6,002 Property, plant and equipment, net 45,576 37,490 35,671 Other assets 2,068 4,319 4,479 ------- ------- ------- $53,514 $47,344 $46,152 ======= ======= ======= ================================================================================================ LIABILITIES AND PARTNERS' DEFICIT Current Liabilities: Accounts payable $670 $732 $481 Accrued compensation 923 1,049 765 Accrued liabilities 3,250 3,437 2,918 Accrued interest payable, Boomtown, Inc. 4,989 2,910 2,651 Current portion of notes payable, Boomtown, Inc. 44,454 42,465 41,432 Current portion of notes payable, other 1,292 1,519 1,570 ------- ------- ------- Total current liabilities 55,578 52,112 49,817 Notes payable, other 2,504 23 60 Commitments and contingencies Partners' deficit: General partner 11 0 0 Limited partners (4,579) (4,791) (3,725) ------- ------- ------- Total partners' deficit (4,568) (4,791) (3,725) ------- ------- ------- $53,514 $47,344 $46,152 ======= ======= =======
- ------- See accompanying notes to financial statements 100 Mississippi - I Gaming, L.P. Statements of Operations
Six months ended Nine months ended June 30, Years ended September 30, December 31, ---------------------------- -------------------------- 1997 1997 1996 1996 1995 ----------- --------- --------- -------- --------- (unaudited) (in thousands) Revenues: Gaming $25,998 $37,541 $32,959 $45,471 $41,675 Food and beverage 1,752 2,231 2,092 2,953 2,396 Other 1,531 1,910 1,894 2,796 2,499 ------- ------- ------- ------- ------- 29,281 41,682 36,945 51,220 46,570 ------- ------- ------- ------- ------- Expenses: Gaming 14,010 19,819 18,025 24,712 24,953 Food and beverage 2,303 2,921 2,224 3,032 2,438 Administrative 7,551 12,650 13,615 18,228 17,802 Other 751 1,084 861 1,239 1,046 Depreciation and amortization 1,682 2,390 1,191 1,683 1,338 ------- ------- ------- ------- ------- 26,297 38,864 35,916 48,894 47,577 ------- ------- ------- ------- ------- Operating income (loss) 2,984 2,818 1,029 2,326 (1,007) Interest expense 2,761 3,940 3,518 4,904 4,365 ------- ------- ------- ------- ------- Net income (loss) $ 223 ($1,122) ($2,489) ($2,578) ($5,372) ======= ======= ======= ======= ======= Net income (loss) allocated to partners: General partner $ 11 ($56) ($49) ($54) ($166) Limited partners 212 (1,066) (2,440) (2,524) (5,206) ------- ------- ------- ------- ------- $ 223 ($1,122) ($2,489) ($2,578) ($5,372) ======= ======= ======= ======= =======
See accompanying notes to financial statements. 101 Mississippi - I Gaming, L.P. Statements of Parnters' Capital (Deficit) Years ended September 30, 1995 and 1996 the nine months ended June 30, 1997 and the six months ended December 31, 1997
Limited Partners Total ------------------------ Partners' General Boomtown, Capital Partner Inc. Other (Deficit) --------- ---------- -------- ---------- (in thousands) Balances at September 30, 1994 $ 24 $ 467 $ 38 $ 529 Capital contributions 142 0 2,000 2,142 Net loss (166) (2,741) (2,465) (5,372) ----- ------- ------- ------- Balances at September 30, 1995 0 (2,274) (427) (2,701) Capital contributions 54 0 1,500 1,554 Net loss (54) (863) (1,661) (2,578) ----- ------- ------- ------- Balances at September 30, 1996 0 (3,137) (588) (3,725) Capital contributions 56 0 0 56 Net loss (56) (898) (168) (1,122) ----- ------- ------- ------- Balances at June 30, 1997 0 (4,035) (756) (4,791) Net income 11 179 33 223 ----- ------- ------- ------- Balances at December 31, 1997 $ 11 ($3,856) ($723) ($4,568) ===== ======= ======= =======
See accompanying notes to financial statements 102 Mississippi - I Gaming, L.P. Statements of Cash Flows
For the six For the nine months ended For the years ended months ended June 30, September 30, December 31, ---------------------- ------------------- 1997 1997 1996 1996 1995 --------- ---------- --------- --------- --------- (unaudited) (in thousands) Cash flows from operating activities: Net income (loss) $223 ($1,122) ($2,489) ($2,578) ($5,372) Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities: Lease expense recorded in exchange for limited partner interest 0 0 1,500 1,500 2,000 Depreciation and amortization 1,682 2,390 1,191 1,683 1,338 Loss on sale of property and equipment 27 142 0 35 146 (Increase) decrease in other receivables, net (52) 87 0 (93) 212 Decrease (increase) in prepaid expenses and other assets 817 510 (331) (551) 373 Decrease (increase) in other assets 3 143 329 (2,295) (1) (Decrease) increase in accounts payable (62) 250 18 15 (211) (Decrease) increase in accrued compensation (126) 284 341 266 214 (Decrease) increase in accrued liabilities (187) 345 283 129 1,599 Increase (decrease) in accrued interest payable, Boomtown, Inc. 2,079 259 (665) 252 1,639 ------- ------- ------- ------- ------- Net cash provided by (used in) operating activities 4,404 3,288 177 (1,637) 1,937 ------- ------- ------- ------- ------- Cash flows from investing activities: Additions to property, plant and equipment (3,814) (1,813) (2,890) (1,359) (2,049) Proceeds from sale of property and equipment 17 17 212 0 34 ------- ------- ------- ------- ------- Net cash used in investing activities (3,797) (1,796) (2,678) (1,359) (2,015) ------- ------- ------- ------- ------- Cash flows from financing activities: Note payable, Boomtown, Inc., net 1,989 1,089 3,365 3,814 1,033 Payment notes payable, other (1,496) (2,445) (2,762) (839) (253) Proceeds notes payable, other 0 0 1,538 0 857 ------- ------- ------- ------- ------- Net cash (used for) provided by financing activities 493 (1,356) 2,141 2,975 1,637 ------- ------- ------- ------- ------- Increase (decrease) in cash and cash equivalents 1,100 136 (360) (21) 1,559 Cash and cash equivalents at the beginning of the period 3,043 2,907 2,928 2,928 1,369 ------- ------- ------- ------- ------- Cash and cash equivalents at the end of the period $ 4,143 $ 3,043 $ 2,568 $ 2,907 $ 2,928 ======= ======= ======= ======= =======
See accompanying notes to financial statements. 103 MISSISSIPPI - I GAMING, L.P. NOTES TO FINANCIAL STATEMENTS NOTE 1 -- SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES The financial information included herein has been prepared in conformity with generally accepted accounting principles. The information provided in this Annual Report on Form 10-K in the opinion of management reflects all normal and recurring adjustments that are necessary to present a fair statement of the financial results. GENERAL Mississippi - I Gaming, L.P. (the "Mississippi Partnership"), is a Mississippi limited partnership, which is majority owned and controlled by Hollywood Park, Inc. ("Hollywood Park"), through its wholly owned subsidiaries, Boomtown, Inc. ("Boomtown") and Bayview Yacht Club, Inc., which own 80% and 5%, respectively, of the Mississippi Partnership, with the remaining 15% owned by Eric Skrmetta ("Skrmetta"). The Mississippi Partnership owns and operates a casino ("Boomtown Biloxi"), which opened in July 1994. Boomtown Biloxi occupies nineteen acres on Biloxi Mississippi's historic Back Bay. The Mississippi Gulf Coast is marketed as the "Playground of the South" and has been a major tourist destination, even prior to the advent of full casino gaming in 1992. The Mississippi Gulf Coast comprises a land area of nearly 1,800 square miles, with more than 30 miles of white sand beaches fronting the Gulf of Mexico. Recent statistics indicated that on an annual basis approximately 22 million patrons visited the Gulf Coast casinos, of which 64% were drawn to the Mississippi Gulf Coast from outside the state. Boomtown Biloxi operates an "old west" themed 33,632 square foot casino, which sits on a permanently moored 400 x 110 foot barge. Boomtown Biloxi offers 1,038 slot machines and 35 table games. The land-based facility houses all non- gaming activities, including restaurants, buffets, a family video fun center and gift shops. On August 13, 1997, Hollywood Park exercised its option under the Mississippi Partnership Agreement to exchange Skrmetta's interest in the Mississippi Partnership, at Skrmetta's option for either cash and/or shares of Hollywood Park common stock with an aggregate value equal to the value of Skrmetta's 15% interest in the Mississippi Partnership, with such value determined by a formula set forth in the relevant Mississippi Partnership Agreement. Hollywood Park supplied Skrmetta with its calculation of the value of his 15% Mississippi Partnership interest, and Skrmetta did not agree with the valuation. Hollywood Park has initiated arbitration proceedings to settle the valuation issue. Historically, the Mississippi Partnership reported financial results with a year end of September 30. Subsequent to Hollywood Park's June 30, 1997 acquisition of Boomtown (the "Merger"), the Mississippi Partnership will be reporting results on a calendar year end of December 31. ESTIMATES Financial statements prepared according to generally accepted accounting principles require the use of management estimates, including estimates used to evaluate the recoverability of real estate and leasehold interests held for investment. These estimates are subject to a variety of risks and uncertainties that could cause actual results to differ materially from those anticipated by management. PROPERTY, PLANT AND EQUIPMENT Property, plant and equipment is being depreciated using the straight line method over estimated useful lives, ranging from three to thirty-five years. Effective July 1, 1997, the Mississippi Partnership revised the estimated useful lives of building improvements from thirty-five years to twenty years. For the six months ended December 31, 1997, the effect of this change caused a decrease in net income of approximately $60,000. CASH FLOWS Cash and cash equivalents consisted of cash in the bank, certificates of deposit and short term investments with original maturities of 90 days or less. 104 INCOME TAXES The Mississippi Partnership is not subject to state or federal income taxes. The Mississippi Partnership's income or loss is allocated to the partners and included in their respective income tax returns. GAMING REVENUES AND PROMOTIONAL ALLOWANCES In accordance with industry practices, the Mississippi Partnership recognized gaming revenues, as the net win from gaming activities, which is the difference between gaming wins and losses. Revenues in the accompanying statements of operations exclude the retail value of food, beverage and other promotional allowances which are provided to patrons without charge. The estimated cost of providing such promotional allowances which are reported as gaming expenses, for the six months ended December 31, 1997, the nine months ended June 30, 1997 and 1996, and the years ended September 30, 1996, and 1995, were $2,067,000, $2,905,000, $2,824,000, $3,832,000 and $3,116,000, respectively. RECLASSIFICATIONS Certain reclassifications have been made to prior periods to be consistent with the 1997 financial statement presentation. NOTE 2 -- SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION Cash paid for interest during the six months ended December 31, 1997, the nine months ended June 30, 1997 and 1996, and the years ended September 30, 1996 and 1995 was $173,000, $248,000, $44,000, $116,000 and $85,000, respectively. NOTE 3 -- CURRENT PREPAID EXPENSES AND OTHER ASSETS AND LONG TERM OTHER ASSETS Current prepaid expenses and other assets as of December 31, 1997, June 30, 1997 and September 30, 1996, consisted of the following:
December 31, June 30, September 30, 1997 1997 1996 ------------ -------- ------------- (in thousands) Prepaid insurance $ 405 $ 194 $ 789 Land lease, related party 0 500 500 Tidelands lease 213 425 394 Other prepaid leases 184 286 339 Inventories 382 358 363 Prepaid taxes and licenses 150 258 184 Other current assets 280 410 378 ------------ -------- ------------- $1,614 $2,431 $2,947 ============ ======== =============
Long term other assets as of December 31, 1997, June 30, 1997 and September 30, 1996, consisted of the following:
December 31, June 30, September 30, 1997 1997 1996 ------------ -------- ------------- (in thousands) Prepayment of property lease $ 0 $2,113 $2,188 Land lease, related party 2,000 2,000 2,000 Other assets 68 206 291 ------------ -------- ------------- $2,068 $4,319 $4,479 ============ ======== =============
105 NOTE 4 -- PROPERTY, PLANT AND EQUIPMENT Property, plant and equipment held as of December 31, 1997, June 30, 1997, and September 30, 1996 consisted of the following:
December 31, June 30, September 30, 1997 1997 1996 ------------ -------- ------------- (in thousands) Land and land improvements $ 1,236 $ 226 $ 226 Buildings and building 41,313 33,436 32,864 improvements Equipment 9,998 8,994 5,671 Construction in progress 46 267 16 ------------ -------- ------------- 52,593 42,923 38,777 Less accumulated depreciation 7,017 5,433 3,106 ------------ -------- ------------- $45,576 $37,490 $35,671 ============ ======== =============
NOTE 5 -- SECURED AND UNSECURED NOTES PAYABLE Notes payable as of December 31, 1997, June 30, 1997, and September 30, 1996, consisted of the following:
December 31, June 30, September 30, 1997 1997 1996 ------------ -------- ------------- (in thousands) Secured notes payable $3,750 $ 83 $ 320 Capital lease obligations 46 1,459 1,310 ------------ -------- ------------- 3,796 1,542 1,630 Less current maturities 1,292 1,519 1,570 ------------ -------- ------------- $2,504 $ 23 $ 60 ============ ======== =============
As of December 31, 1997, June 30, 1997, and September 30, 1996, the Mississippi Partnership also had an outstanding note payable to Boomtown in the amounts of $44,454,000, $42,465,000 and $41,432,000, respectively. These amounts primarily related to funds invested by Boomtown for the initial construction of the property, and the net of subsequent cash transfers to Boomtown from the Mississippi Partnership, and from Boomtown to the Mississippi Partnership. Interest on the notes payable to Boomtown was fixed at 11.5%. On August 4, 1997, Hollywood Park executed an agreement pursuant to which a Hollywood Park entity purchased the barge that the Boomtown Biloxi casino sits upon and the building shell for $5,250,000, payable by a down payment of approximately $1,500,000, with the balance of $3,750,000 to be paid in three equal annual installments of $1,250,000. Interest is payable quarterly and is set at the prime interest rate as of the first day each year. NOTE 6 -- COMMITMENTS AND CONTINGENCIES DEBT GUARANTEES On August 6, 1997, Hollywood Park and Hollywood Park Operating Company (a wholly owned subsidiary of Hollywood Park), as co-obligors, issued $125,000,000 of Series A 9.5% Senior Subordinated Notes due 2007 (the "Notes"). The Notes are fully and unconditionally, jointly and severally, guaranteed on a senior subordinated basis by all of Hollywood Park's material subsidiaries, including Mississippi - I Gaming, L.P. This Annual Report is being filed pursuant to the Indenture governing the Notes as a guarantor which is not wholly owned by the issuers of the Notes. Boomtown repurchased and retired an aggregate of approximately $102,700,000 in principal amount of Boomtown's First Mortgage Notes. The remaining balance of $1,253,000 is fully and unconditionally guaranteed by Mississippi - I Gaming, L.P. 106 LEASES WITH RELATED PARTIES The Mississippi Partnership leases land from Skrmetta for use by Boomtown Biloxi. The lease term is 99 years and is cancelable upon one year's notice. The lease called for an initial deposit by the Mississippi Partnership of $2,000,000 and for annual base lease rent payments of $2,000,000 and percentage rent equal to 5.0% of adjusted gaming win (as defined in the lease) over $25,000,000. Skrmetta agreed to provide the land, free of annual base rent, for two years in exchange for a 15% interest in the Mississippi Partnership. During the six months ended December 31, 1997, the nine months ended June 30, 1997 and 1996, and the years ended September 30, 1996 and 1995, the Mississippi Partnership paid lease rent to Skrmetta of $1,505,000, $2,198,000, $1,997,000, $2,934,000 and $2,711,000, respectively. BARGE LEASE On August 4, 1997, Hollywood Park executed an agreement to purchase the barge that Boomtown Biloxi sits upon and the associated building shell for $5,250,000. The Mississippi Partnership had been leasing these assets. The Mississippi Partnership made a down payment of $1,500,000 upon signing the agreement, with the balance payable in three equal annual installments of $1,250,000 with interest set at the prime rate as of the first day of each quarter. TIDELANDS LEASE The Mississippi Partnership leases 5.1 acres of submerged tidelands at the Boomtown Biloxi site from the State of Mississippi. The lease has a ten year term, (entered into in 1994) with a five year option to renew. Lease rent for each of the first three years of the lease was $525,000, and will be $425,000 for the next two years. Rent for the balance of the lease term will be determined in accordance with Mississippi law, based on an appraisal the State of Mississippi will obtain. The aggregate future minimum annual lease commitments as of December 31, 1997, under operating leases having non-cancelable terms in excess of one year are as follows:
(in thousands) 1998 $1,214 1999 666 2000 378 2001 340 2002 342 Thereafter 529
OTHER The Mississippi Gaming Commission requires, as a condition of licensing or license renewal, gaming companies to make a one time capital investment in facilities for general public use, such as restaurants and other non-gaming facilities, equal to 25% of the initial casino construction and gaming equipment costs. On October 26, 1997, the Mississippi Partnership received verbal notification that its current land-based facility satisfies the Mississippi Commission's requirement. However, the Mississippi Partnership's gaming license must be renewed in June 1998, and it is possible that the Mississippi Gaming Commission could require further development at Boomtown Biloxi in connection with the renewal. NOTE 7 -- ACCOUNTING FOR THE IMPAIRMENT OF LONG-LIVED ASSETS AND LONG-LIVED ASSETS TO BE DISPOSED OF Whenever there are recognized events or changes in circumstances that indicate the carrying amount of an asset may not be recoverable, management reviews the asset for possible impairment. In accordance with current accounting standards, management uses estimated expected future cash flows (undiscounted and excluding interest costs, and grouped at the lowest level for which there are identifiable cash flows that are as dependent as possible of other asset groups) to measure the recoverability of the asset. If the expected future net cash flows are less than the carrying amount of the asset, an impairment loss would be recognized. An impairment loss would be measured as the amount by which the carrying amount of the asset exceeded the fair value of the asset, with the fair value measured as the amount at which the asset could be bought or sold in a current transaction between willing parties, other than in a forced liquidation sale. The estimation of expected future cash flows is inherently uncertain and relies to a considerable extent on assumptions regarding current and future net cash flows, market conditions, and the availability of capital. If, in future periods, there are changes in the estimates or assumptions used in the impairment 107 review analysis the changes could result in an adjustment to the carrying amount of the assets, but at no time would previously recognized impairment losses be restored. 108 Report of Ernst & Young LLP, Independent Auditors The Executive Committee Mississippi - I Gaming, L.P. a Mississippi Limited Partnership We have audited the financial statements of Mississippi - I Gaming, L.P. (the "Missippi Partnership"), a Mississippi limited partnership, as of September 30, 1996, and for the years ended September 30, 1996 and 1995, and have issued our report thereon dated October 31, 1996 (included elsewhere in this Annual Report on Form 10-K). Our audits also included the information included in Schedule II-Valuation and Qualifying Accounts for the year ended September 30, 1996 included in this Annual Report on Form 10-K. This schedule is the responsibility of the Mississippi Partnership's management. Our responsibility is to express an opinion based on our audits. In our opinion, the information for the year ended September 30, 1996 included in the financial statement schedule referred to above, when considered in relation to the basic financial statements, referred to above, taken as a whole, presents fairly in all material respects the information set forth therein. ERNST & YOUNG LLP New Orleans, Louisiana October 31, 1996 109 Report of Independent Public Accountants on Financial Statement Schedule To: Mississippi - I Gaming, L.P. We have audited, in accordance with generally accepted auditing standards, the financial statements of Mississippi - I Gaming, L.P. and have issued our report thereon dated February 18, 1998. Our audit was made for the purpose of forming an opinion on the basic financial statements taken as a whole. Schedule II is the responsibility of the Mississippi - I Gaming, L.P.'s management and is presented for the purpose of complying with the Securities and Exchange Commission's rules and is not part of the basic financial statements. With respect to the periods ended June 30, and December 31, 1997 this schedule had been subjected to the auditing procedures applied in the audit of the basic 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 financial statements taken as a whole. ARTHUR ANDERSEN LLP New Orleans, Louisiana February 18, 1998 110 Mississippi - I Gaming, L.P. Schedule II - Valuation and Qualifying Accounts (in thousands)
ALLOWANCE FOR BAD DEBTS: Balance as of September 30, 1995 $(16) Charges to expense (92) Write offs 74 ---- Balance as of September 30, 1996 (34) Charges to expense (82) Write offs 83 ---- Balance as of June 30, 1997 (33) Charges to expense (58) Write offs 67 ---- Balance as of December 31, 1997 $(24) ====
111 Hollywood Park, Inc. Exhibit Index Exhibit No. Description Page - -------- ----------- ---- 10.41 Lease, by and between Crystal Park Hotel and Casino Development Company, LLC and California Casino Management, Inc., dated December 19, 1997. 10.42 Termination of Consulting Agreement, among Yakama Tribal Gaming Corporation, HP Yakama, Inc., and the Confederated Tribes and Bands of the Yakama Indians, dated January 1, 1998. 10.43 Public Trust Tidelands Lease, dated August 15, 1994, by and between the Secretary of State on behalf of the State of Mississippi and Mississippi - I Gaming, L.P. 10.44 Public Trust Tidelands Lease Amendment, dated March 31, 1997, by and between the Secretary of State on behalf of the State of Mississippi and Mississippi - I Gaming, L.P. 23.1 Consent of Arthur Andersen LLP 23.2 Consent of Arthur Andersen LLP 23.3 Consent of Arthur Andersen LLP 23.4 Consent of Ernst & Young LLP 23.5 Consent of Ernst & Young LLP 27.1 Financial Data Schedule 27.2 Financial Data Schedule 27.3 Financial Data Schedule 27.4 Financial Data Schedule 27.5 Financial Data Schedule 27.6 Financial Data Schedule 27.7 Financial Data Schedule 27.8 Financial Data Schedule 27.9 Financial Data Schedule 99.1 Hollywood Park, Inc., Proxy Statement, dated February 13, 1998. EX-10.41 2 LEASE BETWEEN CRYSTAL PARK & CASINO DEVELOPMENT Hollywood Park, Inc. Exhibit 10.41 Form 10-K for 1997 LEASE by and between CRYSTAL PARK HOTEL AND CASINO DEVELOPMENT COMPANY, LLC a California limited liability company, as "Landlord" and CALIFORNIA CASINO MANAGEMENT, INC. a California corporation, as "Tenant" Dated: December 19, 1997 TABLE OF CONTENTS -----------------
Page ---- LEASE................................................................... 1 RECITALS................................................................ 1 Article 1. LEASE OF PREMISES.......................................... 1 1.01 Premises.......................................................... 1 1.02 Landlord's Obligations............................................ 1 Article 2. TERM; POSSESSION; ACCEPTANCE............................... 2 2.01 Term.............................................................. 2 2.02 Termination Right................................................. 2 2.03 Possession........................................................ 3 2.04 Acceptance of Premises; Premises Remodeling....................... 3 Article 3. RENT....................................................... 4 3.01 Monthly Rent...................................................... 4 3.02 Security Deposit................................................... 4 3.03 Legal Tender...................................................... 5 3.04 Additional Rent; Rent Defined..................................... 5 3.05 Interest on Late Payments......................................... 5 Article 4. RECORDS AND ACCOUNTING..................................... 6 4.01 Records........................................................... 6 4.02 Monthly Reports.................................................... 6 4.03 Audited Financial Statements....................................... 6 4.04 Landlord's Right to Audit.......................................... 6 Article 5. USE AND OPERATION OF PREMISES.............................. 7 5.01 Specific Use of Premises.......................................... 7 5.02 Conduct of Business............................................... 7 5.03 Compliance with Restrictions and Laws.............................. 8 5.04 Independent Business.............................................. 8 Article 6. MAINTENANCE, REPAIRS AND ALTERATIONS....................... 8 6.01 Tenant's Obligations to Repair.................................... 8 6.02 Landlord's Option to Make Major Repairs........................... 9
Page ---- 6.03 Damage to Premises................................................ 9 6.04 Repair of Damage; Rent Abatement.................................. 10 6.05 Alterations; Improvements; Additions.............................. 10 6.06 Ownership of Improvements, Fixtures, Furnishings and Equipment.... 11 6.07 Mechanic's Liens.................................................. 11 Article 7. INSURANCE, EXONERATION AND INDEMNITY....................... 12 7.01 Liability Insurance............................................... 12 7.02 Property Insurance................................................ 12 7.03 Tenant's Property Insurance....................................... 13 7.04 Landlord's Insurance.............................................. 13 7.05 Insurance Policies................................................ 13 7.06 Waiver of Subrogation............................................. 14 7.07 Exoneration and Indemnity......................................... 15 Article 8. ASSIGNMENT, SUBLETTING, HYPOTHECATION...................... 15 8.01 Consent Required.................................................. 15 8.02 Indirect Transfers................................................ 16 8.03 Obligations of Transferees and Subtenants......................... 16 8.04 Continued Liability; No Waiver.................................... 17 8.05 Transfer of Landlord's Interest................................... 17 8.06 Limitation on Landlord's Interest as to Transferees............... 17 Article 9. EMINENT DOMAIN............................................. 18 9.01 Effect on Lease................................................... 18 9.02 Award............................................................. 19 9.03 Rebuilding......................................................... 19 Article 10. TENANT'S BREACH; LANDLORD'S REMEDIES....................... 19 10.01 Tenant's Breach.................................................. 19 10.02 Landlord's Remedies.............................................. 20 10.03 Right to Cure Tenant's Default................................... 21 10.04 Landlord's Remedies Not Exclusive................................ 22 10.05 Right to Rents, Issues and Profits............................... 22
Page ---- 10.06 Receipt of Rents................................................. 23 Article 11. LANDLORD'S DEFAULT; TENANT'S REMEDIES...................... 23 11.01 Landlord's Default............................................... 23 11.02 Tenant's Remedies................................................ 23 11.03 Tenant's Remedies Not Exclusive.................................. 23 11.04 Payment of Rents................................................. 23 Article 12. MORTGAGE OF LANDLORD'S INTEREST............................ 24 12.01 Subordination.................................................... 24 12.02 Tenant's Obligations With Respect to Landlord's Mortgage......... 24 12.03 Definition of Landlord's Mortgage and Landlord's Mortgagee....... 24 Article 13. OPERATING EXPENSES......................................... 24 13.01 Definitions...................................................... 24 13.02 Survival......................................................... 25 Article 14. TAXES AND OTHER CHARGES.................................... 26 14.01 Tenant's Taxes................................................... 26 Article 15. UTILITY AND OTHER SERVICES................................. 26 15.01 Utility Charges.................................................. 26 15.02 Compliance With Governmental Regulations......................... 26 15.03 Security; Landlord Nonresponsibility; Indemnity.................. 27 Article 16. GENERAL PROVISIONS.......................................... 27 16.01 Estoppel Certificates............................................ 27 16.02 Landlord's Right of Entry........................................ 28 16.03 Waiver........................................................... 28 16.04 Surrender of Premises; Holding Over.............................. 29 16.05 Notices.......................................................... 29 16.06 Partial Invalidity; Construction................................. 30 16.07 Captions......................................................... 30 16.08 Short Form Lease................................................. 30 16.09 Brokers' Commissions............................................. 30
Page ---- 16.10 Attorneys' Fees.................................................. 30 16.11 Counterparts..................................................... 31 16.12 Sole Agreement................................................... 31 16.13 Successors and Assigns........................................... 31 16.14 Time is of the Essence........................................... 31 16.15 Survival of Covenants............................................ 31 16.16 Landlord's Consent or Approval................................... 31 16.17 Joint and Several Obligations.................................... 32 16.18 No Offer......................................................... 32 16.19 Corporate Resolution............................................. 32
LEASE THIS LEASE is made and entered into this 19th day of December, 1997, by and between CRYSTAL PARK HOTEL AND CASINO DEVELOPMENT COMPANY, LLC, a California limited liability company, hereinafter called "Landlord", and CALIFORNIA CASINO MANAGEMENT, INC., a California corporation, hereinafter called "Tenant". RECITALS -------- A. Landlord is the owner of that certain real property in the City of Compton, California (the "City"), which property is more particularly described on Exhibit A attached hereto (the "Property"). B. Landlord has constructed on the Property a casino card club known as Crystal Park Casino (the "Card Club"). Landlord has also constructed a hotel on the Property ("Hotel"). C. Landlord desires to lease the Card Club to a licensed card club operator, together with all fixtures, furniture, equipment and supplies required to operate a card club, until it can obtain its own license to operate the Card Club. D. Tenant is a California corporation. Leo Chu, the sole shareholder of Tenant, is in the process of being licensed by the State of California and the City to operate the Card Club. Article 1. LEASE OF PREMISES ----------------- 1.01 Premises -------- (a) Subject to the terms and conditions and reservations provided herein, Landlord hereby grants, demises and leases to Tenant, and Tenant hereby hires from Landlord, the Card Club and all fixtures, furniture, equipment, supplies and all replacements thereof necessary to operate the Card Club (collectively, the "Premises"). (b) This Lease is subject to the terms, covenants and conditions herein set forth and each party covenants, as a material part of the consideration for this Lease, to keep and perform each and all of said terms, covenants and conditions by it to be kept and performed. 1.02 Landlord's Obligations ---------------------- Prior to the Commencement Date, as that term is hereinafter defined, Landlord shall, to Tenant's reasonable satisfaction, fully improve, equip, fixture, furnish and provide all necessary supplies for the Premises, at Landlord's sole cost and expense, to enable Tenant to operate the Card Club on the Premises in a first class manner. The performance of Landlord's obligations under this Section 0 shall comply with any and all Applicable Laws (as hereinafter defined) and shall be at Landlord's sole cost and expense. Article 2. TERM; POSSESSION; ACCEPTANCE ---------------------------- 2.01 Term ---- The term of this Lease shall commence on the date upon which Tenant opens the Card Club for business to the general public (the "Commencement Date") and shall continue until midnight on the date forty eight (48) months after the Commencement Date (the "Expiration Date") unless sooner terminated pursuant to any provision hereof (the "Term" or "the term of this Lease"). Upon determination of the actual Commencement Date, Landlord and Tenant mutually will execute a written instrument specifying the Commencement Date and the Term. 2.02 Termination Right ----------------- (a) Tenant and Landlord agree that at any time after the date hereof, should Landlord or any Affiliate (as hereinafter defined) of HP/Compton, Inc., a California corporation ("HPC") become eligible to be licensed to operate a card club in the State of California, and if all necessary state and local governmental approvals are first obtained, then Landlord shall cause that certain Crystal Park Hotel and Casino Development Company Operating Agreement (the "Operating Agreement") to be amended to provide that: (i) Tenant shall be admitted as a member of the Landlord; (ii) Tenant's interest in the Landlord will equal ten percent (10%). At the time of Tenant's admission, the capital accounts of Landlord's existing members shall be booked at fair market value. Distributions shall be in proportion with percentage ownership interests. In such event, this Lease shall terminate and from and after such termination, the use of the Premises shall be governed by the terms of the Operating Agreement; provided, however, that the foregoing shall in any event be subject to the following conditions and limitations; (1) This Lease may not be terminated, and the Operating Agreement shall not be amended, until such time as the following conditions have been satisfied; (A) the City has taken all actions legally necessary to approve Landlord or an Affiliate as the owner of an interest in the Card Club operated by Tenant on the Premises and otherwise approves the partial transfer of ownership of the Card Club that would be effected by entering into the Operating Agreement; (B) such transfer is in compliance with all applicable provisions of the Compton Municipal Code, as amended from time to time; and (C) Landlord (or an Affiliate) is eligible under the laws of the State of California to own an interest in and otherwise participate in the Card Club and has been duly licensed by the Attorney General of the State of California to own such interest. (2) Unless and until all appropriate governmental approvals as described above have been obtained and Tenant has executed the Operating Agreement and the amendment to the Operating Agreement contemplated herein, the amendment shall be of no force or effect. (3) For the purposes of this Lease, the term "Affiliate" means any parent corporation, subsidiary or brother-sister corporation of HPC or any entity owned or controlled by Landlord or any individual or entity which owns or controls Landlord, HPC or any parent corporation, subsidiary or brother-sister corporation of HPC, including, without limitation, Hollywood Park Operating Company. (4) Tenant hereby covenants and agrees to use its best efforts to ensure that no provisions of the Compton Municipal Code are enacted that would preclude or limit the rights of Landlord or an Affiliate to become an owner and operator of the Card Club and further agrees to fully cooperate with Landlord and the City in Landlord's efforts to become licensed as such owner and operator. (b) The failure by Tenant at any time to be licensed under state or local law to operate a card club or the disqualification of Tenant as such card club operator for any reason, including a suspension of license which continues for a period of five (5) days, shall constitute an Event of Default (as defined in Section 10.01). Tenant and Landlord agree that in such event, in addition to and not in limitation of Landlord's remedies under Article 10, Landlord shall have the right to terminate this Lease without liability upon written notice to Tenant and thereafter this Lease shall be of no further force or effect. (c) Notwithstanding anything contained in subparagraph 2.02(a) above, Tenant shall have the right to terminate this Lease upon thirty (30) days' written notice to Landlord in the event Tenant's use of the Premises produces insufficient funds to pay monthly rent as set forth in paragraph 3.01 below, after Tenant has made all payments of operating expenses, including payment of any loans or lines of credit related to the operation of the Card Club and prior to any distribution of revenue to Tenant. 2.03 Possession ---------- Any access to or possession of the Premises by Tenant prior to the commencement of the Term shall be on and subject to all of the terms, provisions, covenants and conditions of this Lease except that no Rent shall be due and except as otherwise expressly herein provided. Landlord shall not have any control over Tenant and shall not direct or control the operation of the business of the Card Club on the Premises throughout the Term of this Lease or any extension thereof. 2.04 Acceptance of Premises; Premises Remodeling ------------------------------------------- All improvements constructed and maintained by or under the direction of Landlord or its Affiliates shall be constructed and maintained in accordance with "Applicable Laws," as that term is defined in Section 0 hereof. Tenant agrees to accept the Premises subject to (i) all Applicable Laws regulating or in any manner applicable to any use or occupancy thereof by Tenant (as limited by this Lease); (ii) the provisions of that certain Amended and Restated Disposition and Development Agreement, Agreement of Purchase and Sale and Lease with Option to Purchase, dated April 4, 1995, between Landlord and the Community Redevelopment Agency of the City, as amended (the "DDA"); and (iii) all liens, encumbrances, easements, rights of way, covenants, conditions, restrictions, servitudes, licenses and other matters of record or which have been disclosed in writing to Tenant prior to the execution of this Lease. By execution of this Lease, Tenant is not assuming any liability with respect to any failure of the predecessor tenant to comply with the terms of its lease, including, without limitation, with respect to any maintenance and repair obligations. Article 3. RENT ---- 3.01 Monthly Rent ------------ (a) Tenant shall pay to Landlord as Monthly Rent the amounts set forth in the following schedule: Month Monthly Rent ----- ------------ 1-6 $100,000 7-18 $350,000 19-48 $550,000 The Monthly Rent shall be paid in arrears for the immediately preceding month on or before the last day of each calendar month during the term hereof, without any deduction or offset, prior notice or demand. Tenant's obligation to pay Monthly Rent shall commence on the Commencement Date. If the Commencement Date shall be a day other than the first day of the calendar month, or, if the Term shall end on any day other than the last day of the calendar month, then the Monthly Rent for the first and/or last partial calendar month of the Term, as the case may be, shall be prorated on a daily basis. This is a "Triple Net Lease," it being understood that Landlord shall receive the Monthly Rent free and clear of any and all Operating Expenses and any and all charges and expenses of any nature whatsoever incurred by Landlord or Tenant in connection with the ownership and operation of the Premises. 3.02 Security Deposit ---------------- Prior to the Commencement Date, Tenant shall provide Landlord with a cash deposit in an amount equal to one month's rent as security for Tenant's faithful performance of the provisions of this Lease (the "Security Deposit"). If Tenant fails to pay rent or other charges due hereunder, or otherwise defaults with respect to any provision of this Lease, Landlord shall unilaterally have the right to use such cash deposit, or any portion thereof, to cure such default or compensate Landlord for all damages sustained by Landlord resulting from Tenant's default. Tenant shall, immediately on demand, pay to Landlord a sum equal to that portion of the Security Deposit expended or applied by Landlord which was provided for in this paragraph so as to maintain the Security Deposit in a sum equal to one month's rent. Landlord shall not be required to keep the Security Deposit separate from its general account nor shall Landlord be required to pay any interest on the Security Deposit. If Tenant performs all of Tenant's obligations under this Lease, the Security Deposit, or that portion thereof which had not been previously applied by Landlord, shall be returned to Tenant by Landlord, within fourteen (14) days after the expiration of the term of this Lease or after Tenant has vacated the Premises, whichever is later. Any time the Monthly Rent increases during the term of this Lease, Tenant shall, without notice, deposit additional monies with Landlord in order to maintain the Security Deposit equal to one month's Monthly Rent. Failure to maintain the Security Deposit shall be deemed a monetary Event of Default. 3.03 Legal Tender ------------ Rent and all other sums payable under this Lease must be paid in lawful money of the United States of America, without demand, offset or deduction. 3.04 Additional Rent; Rent Defined ----------------------------- (a) In addition to the Monthly Rent, Tenant shall also pay as additional rent other charges, fees, costs, taxes, impositions, expenses and other sums required to be paid by Tenant under the provisions of this Lease whether or not the same shall be designated as Additional Rent. In the event of nonpayment of any Additional Rent when due, Landlord shall have all of the rights and remedies provided hereunder or by law for the nonpayment of rent. (b) As used in this Lease, the term "Rent" shall include Monthly Rent for the Premises and Additional Rent. 3.05 Interest on Late Payments ------------------------- Any Rent or other amounts due from Tenant to Landlord hereunder which are not paid within five (5) days of when due shall bear interest at a rate (the "Agreed Rate") equal to two percent (2%) per annum in excess of the "reference rate" as announced by Bank of America, NT&SA, Los Angeles main office, as such rate may change from time to time, from the date due until the date paid, regardless of whether a notice of default or any other notice is given by Landlord; provided, however, if such rate is greater than the maximum rate of interest then permitted to be charged by law, the Agreed Rate shall be the maximum rate of interest then permitted to be charged by law. In the event that Bank of America, NT&SA, shall cease to exist or shall cease to announce a "reference rate" (or equivalent prime rate) or shall cease to have a Los Angeles office, there shall be substituted such alternative bank, alternative rate or alternative office as Landlord shall select. Acceptance of interest by Landlord shall not constitute a waiver of Tenant's default with respect to the overdue amount, or prevent Landlord from exercising any other rights or remedies. Article 4. RECORDS AND ACCOUNTING ---------------------- 4.01 Records ------- For the purposes of ascertaining compliance by Tenant of its obligations under Article 5 hereof, Tenant agrees to prepare and keep or cause to be prepared and kept on the Premises (or at such other location approved by Landlord, which approval shall not be unreasonably withheld) for a period of not less than thirty-six (36) months following the end of the Term adequate records which shall show all receipts at the Premises, as well as all charges, fees, costs, taxes, impositions, expenses and other sums paid or required to be paid by Tenant in connection with its operation of the Premises ("expenses") and other information reasonably requested by Landlord from all sales and other transactions on the Premises by Tenant and by all Subtenants (as hereinafter defined) in the event Landlord were to approve any other Subtenancy (as hereinafter defined). The requesting or obtaining of information by Landlord shall not be deemed to make Landlord responsible for verifying the accuracy of any such information or make the Landlord responsible for compliance of Tenant's obligations under Articles 3 and 5, which shall remain the obligations of Tenant. 4.02 Monthly Reports --------------- Tenant shall submit to Landlord on or before the fifteenth (15th) day following the end of each calendar month during the Term (including the 15th day of the calendar month following the end of the Term), a written statement of income and expense signed by Tenant, and certified by it (or if Tenant is a corporation or a partnership, by a duly authorized corporate officer or general partner of Tenant) to be true and correct, showing in reasonable, accurate detail the amount of Tenant's receipts, expenses and other information requested pursuant to Section 4.01 for the immediately preceding period. The certification of each such statement shall be satisfactory to Landlord in scope and substance and without qualification except as may be expressly permitted by Landlord. The statements referred to herein shall be in such form and style and contain such details and breakdown as Landlord may reasonably determine. 4.03 Audited Financial Statements ---------------------------- Promptly following the end of each calendar year, Tenant shall cause to be conducted, at its sole cost and expense, an annual audit of its books and records by Arthur Andersen & Co., Inc. or such other "Big Six" accounting firm selected by Tenant and acceptable to Landlord. Within sixty (60) days after the end of each such calendar year, Tenant shall deliver audited financial statements for the business conducted at the Premises, certified without qualification by such auditors. Such audited financial statements shall be the conclusive determination for all calculations required under Article 3. 4.04 Landlord's Right to Audit ------------------------- If Tenant omits to prepare and deliver promptly any statement, report or financial statements required by the provisions of this Article 4, Landlord shall have the right, in addition to all other rights available to Landlord upon Tenant's default, to make, or cause to be made, an audit of all books and records of Tenant and any Subtenants, including their respective bank accounts which in any way pertain to or show Tenant's activities, and to prepare, or cause to be prepared, the statement, report or financial statements which Tenant has failed to prepare and deliver; Tenant shall give Landlord and its designated representatives access to such books and records at all reasonable times for purposes of making any such audit and preparing any such statement, report or financial statements. Such audit shall be made and such statements and reports shall be prepared by a person or persons selected by Landlord. The statements or reports so prepared shall be conclusive on Tenant, and Tenant shall pay all expenses of the audit and other costs incurred by Landlord in connection therewith. If any such audit shall disclose any willful inaccuracy of Tenant, such inaccuracy shall constitute an incurable breach of this Lease. Article 5. USE AND OPERATION OF PREMISES ----------------------------- 5.01 Specific Use of Premises ------------------------ Tenant shall use and occupy the Premises as the Card Club and for no other use or purpose. 5.02 Conduct of Business ------------------- (a) Landlord and Tenant acknowledge that Tenant's obligation to operate a business in conformance with this Article 5 is a material inducement to Landlord to enter into this Lease, without which Landlord would not have entered into this Lease. Accordingly, except as expressly provided elsewhere herein, Tenant agrees to conduct business continuously at the Premises during the entire Term of this Lease, except when prevented from doing so by reason of the acts or omissions of Landlord or any Affiliate, strikes, lockouts, casualty damage, the order of any governmental agency having jurisdiction over the Premises and/or the conduct of Tenant's business therein or other reasons (other than financial inability) beyond Tenant's reasonable control or during such periods that alterations or repairs are being made to the Premises which make it impracticable to keep the Premises open. Tenant agrees that, commencing with the Commencement Date and continuing for the remainder of the Term, Tenant shall be open for business on a 24-hour a day basis except to the extent prohibited by law. Tenant shall at all times actively and diligently operate its business on the Premises in a commercially reasonable manner. (b) In the event that Landlord consents to any subleasing, Tenant shall cause all Subtenants to comply with all of the requirements of this Section 0 to the same extent as if each such Subtenant were the Tenant hereunder. (c) Tenant shall at all times during the Term of this Lease remain fully licensed as a "card club operator" in good standing. 5.03 Compliance with Restrictions and Laws ------------------------------------- Tenant shall, at its sole cost, comply with all of the requirements of all covenants, conditions and restrictions of record applicable to the Premises or any part thereof and shall faithfully observe all such covenants, conditions and restrictions. Tenant shall, at its sole cost, comply with all federal, state and local laws, regulations, rules, ordinances, zoning variances, conditional use permits and orders now in force or which may hereafter be in force applicable to Tenant, any Subtenant, the Premises, and/or the use or occupancy of the Premises or the conduct of business therein or thereon, including all applicable provisions of the DDA and any other governmental agreement governing the Premises ("Applicable Laws"). Tenant acknowledges that it is familiar with such conditions, and agrees that all of such conditions (and all additional conditions which may be imposed in the future) constitute "Applicable Laws" within the meaning of this Lease. Tenant shall cause any Subtenants to comply with and observe all such covenants, conditions, restrictions and Applicable Laws. 5.04 Independent Business -------------------- By this Lease, neither party acquires any right, title or interest in or to any property of the other party except such rights as are specifically stated in this Lease. The relationship between Landlord and Tenant is solely that of landlord and tenant, and is not and shall not be deemed to be a partnership or joint venture. Article 6. MAINTENANCE, REPAIRS AND ALTERATIONS ------------------------------------ 6.01 Tenant's Obligations to Repair ------------------------------ Tenant shall at its sole cost and expense, maintain in clean and safe condition, and make all repairs and replacements to the Premises and every part thereof, structural and non-structural, so as to keep, maintain and preserve the Premises in first class condition and repair, including, without limitation, the roof, the foundation, the heating, ventilation and air conditioning system ("HVAC"), elevators, if any, all plumbing and sewage facilities, fire sprinklers, electrical and lighting facilities, systems, appliances, and equipment within the Premises, fixtures, interior and exterior walls, floors, ceilings, windows, doors, entrances, all interior and exterior glass (including plate glass), and skylights located within the Premises, and all sidewalks, service areas, parking areas and landscaping comprising part of the Premises. All repairs and replacements required to be made by Tenant shall be made promptly with new materials of like kind and quality to those used in the original construction of the Premises. If the repair or replacement work affects the structural parts of the Premises, or if the estimated cost of any item or repair or replacement exceeds $10,000, then Tenant shall first obtain Landlord's written approval of the scope of work, plans therefor, and materials to be used. Any such work shall be performed by Landlord's contractor or by such contractor as Tenant may choose from an approved list to be submitted by Landlord. Landlord shall have the right to make any repairs or replacements which are not promptly made by Tenant and charge Tenant, as Additional Rent, for the cost thereof together with interest thereon at the Agreed Rate from the date of payment thereof by Landlord. Without limiting any of Tenant's obligations hereunder, during the Lease Term Tenant, at its expense, shall obtain and keep in force an HVAC service contract and a roof maintenance program satisfactory to Landlord. Tenant hereby waives the benefit of any statute now or hereafter in effect which would otherwise afford Tenant the right to make repairs at Landlord's expense or to terminate this Lease because of Landlord's failure to keep the Premises in good condition, order and repair. Tenant specifically waives all rights it may have under Sections 1932(1), 1941 and 1942 of the California Civil Code, and any similar or successor statute or law. Notwithstanding anything to the contrary contained herein, Landlord shall exercise its rights under any guaranties or warranties relating to the original construction of the Premises if the need to make repairs arises due to a defect therein; provided, however, Landlord shall not have any liability or be required to expend any funds if such guaranties or warranties are not honored by the makers hereof. 6.02 Landlord's Option to Make Major Repairs --------------------------------------- Notwithstanding anything to the contrary herein, in lieu of Tenant making any repairs to or replacements of the structural roof, exterior or load-bearing walls or foundation, or any replacement or resurfacing of the parking area, which Tenant would otherwise be obligated to make pursuant to Section 6.01 hereof, Landlord instead may elect to perform any or all such repairs or replacements itself, in which case Tenant shall pay to Landlord the full cost thereof within 15 days after Landlord's submission of a bill therefor. 6.03 Damage to Premises ------------------ In the case of damage to or destruction of the Premises by fire or other casualty, Tenant's rental obligation shall continue as provided in Article 3 above to the extent of rental loss insurance and/or business interruption insurance proceeds, and Tenant shall rebuild and restore such casualty damage, unless Tenant elects to terminate the Lease pursuant to the further terms of this Article 6. In the event that Tenant undertakes any restoration and/or repair work, such work shall be done in accordance with the provisions of Section 6.05 hereof and Landlord shall make the casualty insurance proceeds available to Tenant for that purpose. If the Premises are damaged to the extent that Tenant is unable to operate a first class card club therein and such damage cannot be repaired within one hundred eighty (180) days from the date of damage, Tenant may terminate this Lease by giving written notice to Landlord no later than ten (10) days after the date of occurrence of such damage. In the event either party duly elects to terminate this Lease, this Lease shall be deemed to have been terminated as of the date of occurrence of such damage and neither party shall have any further liability under this Lease except for the provisions herein, which by their terms survive the expiration or earlier termination of this Lease. 6.04 Repair of Damage; Rent Abatement -------------------------------- (a) If this Lease is terminated pursuant to any of the provisions of Section 6.03 hereof, the Monthly Rent, Additional Rent and other payments provided for herein shall be paid by Tenant through the date that Tenant closes the Card Club and all rents and other payments made by Tenant to Landlord shall be appropriately prorated through the date of such closure. 6.05 Alterations; Improvements; Additions ------------------------------------ Tenant shall not make or permit the making of any alterations, improvements, additions or installations ("Alterations") in, on or about the Premises without Landlord's prior written consent and unless and until the drawings, plans and specifications for such Alteration shall have been first submitted in triplicate to and approved by Landlord and, if required, by any and all mortgagees of Landlord. Landlord's approval to any such Alteration shall not be unreasonably withheld or delayed. Landlord, acting reasonably, may, as a condition to its consent pursuant to this Section 6.05, require Tenant to furnish Landlord, prior to the commencement of any work that could constitute the basis for a mechanic's lien on the Premises and before any building materials are delivered to the Premises, with a bond by a responsible surety company licensed to do business in California, in a form and with a company satisfactory to Landlord, in an amount equal to one and one-half times the estimated cost of the work to be done and the materials to be supplied, such bond to remain in effect until all such costs shall have been fully paid and the improvements fully insured by Tenant as herein provided. Such bond, if required, shall secure completion by Tenant, or on its default by the surety, of all work free from any and all liens of contractors, subcontractors, materialmen, laborers or others and shall defend and indemnify Landlord from and against any loss, damage or liability in any manner arising out of or connected with such work. Landlord may also impose additional reasonable conditions upon its consent pursuant to this Section 6.05, including, but not limited to, a requirement that any work be supervised by a qualified engineer or architect approved by Landlord and that appropriate "builder's risk" insurance be obtained. Any Alterations made in, on or about the Premises by or at the direction of Tenant (or any Subtenant), shall be made and completed with due diligence, in a good and workmanlike manner, in strict compliance with the requirements of all Applicable Laws and all conditions of Landlord's consent. Tenant agrees to carry such insurance as required by Section 7.02 hereof covering each and every such Alteration. So long as there exist any restrictions on the square footage of improvements on the Property, Tenant shall not, under any circumstances, do anything which would increase the square footage of the Premises. 6.06 Ownership of Improvements, Fixtures, Furnishings and Equipment -------------------------------------------------------------- All improvements, alterations, additions and installations constructed, installed, affixed or otherwise made in, on or about the Premises by or at the direction of either Landlord or Tenant (or any Subtenant) at any time prior to or during the term of this Lease, including, without limitation, any and all carpeting, floor coverings, wall coverings, lighting and hardware fixtures, window treatments and ceilings, trade fixtures whether or not permanently affixed to the Premises, furniture, business equipment and stock in trade, shall at once become a part of the realty, if applicable and, in any event belong to Landlord, without any obligation on the part of Landlord to compensate Tenant or any other person therefor. Any damage to the Premises resulting from the removal of any items permitted or required to be removed by Tenant hereunder shall be promptly repaired by Tenant at its sole cost and expense. 6.07 Mechanic's Liens ---------------- Tenant shall promptly pay and discharge all claims for work or labor done or goods or materials furnished by third parties, at the request of Tenant or any Subtenant and shall keep the Premises free and clear of all mechanic's and materialman's liens in connection therewith. If any mechanic's or materialman's lien is filed for work done on behalf of Tenant or any Subtenant at, or materials supplied to, the Premises by a third party, Tenant shall remove such lien by payment or bond (regardless of whether Tenant contests the claim made by the person asserting such lien and regardless of whether such claim is valid or has any basis in fact or law) not later than fifteen (15) days after written demand for such removal is made by Landlord. If Tenant shall fail to discharge any such lien within such 15-day period, then in addition to any other right or remedy of Landlord, Landlord may, but shall not be obligated to, take such action or pay such amount as Landlord, in its sole discretion, shall deem appropriate to remove such lien, and Tenant shall pay to Landlord as Additional Rent all amounts (including attorneys' fees) paid or incurred by Landlord in connection therewith within five (5) days after demand by Landlord, together with interest at the Agreed Rate from the date of payment by Landlord. Notwithstanding the foregoing, Tenant shall have the right to contest the correctness or the validity of any such lien if, immediately upon demand by Landlord, Tenant procures and records a lien release bond issued by a corporation authorized to issue surety bonds in California in an amount equal to one and one-half times the amount of the claim of lien. The bond shall meet the requirements of Civil Code (S) 3143 or any similar or successor statute and shall provide for the payment of any sum that the claimant may recover on the claim (together with costs of suit, if it recovers in the action). Except for Landlord's express obligations relating to the improvement, maintenance and repair of the Premises, nothing in this Lease shall be deemed to be, or construed in any way as constituting, the consent or request of Landlord, express or implied, to or for the performance of any labor or the furnishing of any materials for any construction, rebuilding, alteration or repair of or to the Premises or any part thereof by any person or as giving Tenant any right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials which might in any way give rise to the right to assert any lien against Landlord's interest in any property. Landlord shall have the right to post and keep posted at any and all times on the Premises any notices for the protection of Landlord and the Premises from any such lien. Tenant shall, before the commencement of any work, or the delivery of any materials, which might result in any such lien, give to Landlord written notice of its (or any Subtenant's) intention to perform such work or obtain such materials in sufficient time to enable the posting of such notices. Article 7. INSURANCE, EXONERATION AND INDEMNITY ------------------------------------ 7.01 Liability Insurance ------------------- Tenant shall obtain and keep in force during the Term of this Lease a Commercial General Liability policy of insurance protecting Tenant and Landlord (as an additional insured) against claims for bodily injury, personal injury or personal advertising injury, and property damage based upon, involving, or arising out of the ownership, use, occupancy, or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than Ten Million Dollars and No Cents ($10,000,000.00) per occurrence. Such insurance shall be with an "Additional Insured-Managers or Landlords of Property" Endorsement and contain the "Amendment of the Pollution Exclusion" for damage caused by heat, smoke, or fumes from a hostile fire. Such policy shall not contain any intra-insured exclusions as between insured persons or entities, but shall include coverage for liability assumed under this Lease as an "insured contract" for the performance of Tenant's indemnity obligations under this Lease. The limits of insurance required by this Lease or otherwise carried by Tenant shall not, however, limit the liability of Tenant nor relieve Tenant of any obligation hereunder. All insurance to be carried by Tenant shall be primary to and not contributory with any similar insurance carried by Landlord, whose insurance shall be considered excess insurance only. During the construction, alteration, or repair of any improvements on the Premises, the party contracting for said construction shall provide and maintain workers' compensation and employers' liability insurance covering all persons employed in connection with such construction, alteration, or repair and with respect to whom death or personal injury claims could be asserted against Landlord, Tenant, or the Premises. 7.02 Property Insurance ------------------ (a) Building and Improvements. Tenant shall obtain and keep in ------------------------- force during the Term a policy or policies of insurance in the name of Landlord, with loss payable to Landlord insuring against damage to, or destruction of any improvements comprising the Premises, together with all fixtures, machinery and equipment therein and thereon. The amount of such insurance shall be equal to the full replacement cost of the improvements comprising the Premises, as such cost shall change from time to time, or such greater amount as may be required pursuant to Applicable Laws. Such policy or policies shall insure against all risks of direct physical loss or damage (including, if mutually approved of by Landlord and Tenant, the perils of flood and/or earthquake; provided, however, that Tenant shall consent to Landlord's request to carry such insurance if Landlord reasonably determines, from time to time, taking into account Tenant's financial condition, that the value of minimizing the risk of loss outweighs the financial burden of carrying such insurance), including, without limitation, coverage for any additional costs resulting from debris removal and coverage for the enforcement of any ordinance or law regulating the reconstruction or replacement of any undamaged sections of the Premises required to be demolished or removed by reason of the enforcement of any Applicable Law as the result of a covered cause of loss. Such policy or policies shall also contain an agreed valuation provision (in lieu of any coinsurance clause), and waiver of subrogation. If such insurance coverage has a deductible clause, the deductible amount shall not exceed Five Thousand Dollars and No Cents ($5,000.00) per occurrence, and Tenant shall be liable for such deductible amount in the event of an insured loss. (b) Rental Value. Tenant shall, in addition, obtain and keep in ------------ force during the Term (or if only available to Landlord, reimburse Landlord) for the costs of a policy or policies in the name of Landlord, with loss payable to Landlord, insuring the loss of the Monthly Rent for one (1) year. Such insurance shall provide that in the event the Lease is terminated by reason of an insured loss, the period of indemnity for coverage shall be extended beyond the date of the completion of repairs or replacement of the Premises, to provide for one (1) full year's loss of rental revenues from the date of any such loss. Such insurance shall contain an agreed valuation provision in lieu of any coinsurance clause, and the amount of coverage shall be adjusted annually to reflect the projected Monthly Rent otherwise payable by Tenant, for the next one (1) year. Tenant shall be liable for any deductible amount in the event of such loss. Tenant shall also obtain business interruption insurance, in form and substance reasonably acceptable to Landlord. 7.03 Tenant's Property Insurance --------------------------- Tenant, at its sole cost, shall either by separate policy or, at Landlord's option, by endorsement to a policy already carried, maintain insurance coverage on all of Tenant's personal property in, on, under, or about the Premises similar in coverage to that carried under Paragraph 7.2 hereof. Such insurance shall be full replacement cost coverage with a deductible of not to exceed Five Thousand Dollars and No Cents ($5,000.00) per occurrence. The proceeds from any such insurance shall be used by Tenant for the replacement of personal property. 7.04 Landlord's Insurance. Landlord, at its expense, may obtain and keep -------------------- in force during the Term of this Lease a blanket policy of public liability insurance covering the Premises. 7.05 Insurance Policies. Insurance required hereunder shall be kept in ------------------ companies duly licensed to transact business in the State of California and maintaining during the policy term a "General Policyholders Rating" of at least A, VIII or other rating as may be required by Landlord, as set forth in the most current issue of "Best's Insurance Guide." Tenant shall not do or permit to be done anything which shall invalidate the insurance policies referred to in this Article. With respect to insurance required of Tenant hereunder, Tenant shall cause to be delivered to Landlord certified copies of policies of insurance or certificates evidencing the existence and amounts of such insurance with the insureds and loss payable clauses as required by this Lease. No such policy shall be cancelable or subject to modification except after thirty (30) days prior written notice to Landlord. Tenant shall, at least thirty (30) days prior to the expiration of such policies, furnish Landlord with evidence of renewals or "insurance binders" evidencing renewal thereof, or else Landlord may order such insurance and charge the cost thereof to Tenant, which amount shall be payable by Tenant to Landlord upon demand. If Tenant shall fail to procure and maintain the insurance required to be carried by Tenant under this Article, Landlord may, but shall not be required to, procure and maintain such insurance, but at Tenant's expense. The insurance provided for herein may be brought within the coverage of a so-called "blanket" policy or policies of insurance carried and maintained by Tenant if (i) Landlord and, if requested by Landlord, any mortgagee of Landlord shall be named as additional insureds or loss payees thereunder as required in this Article 7, (ii) the coverage afforded Landlord and Tenant shall not be reduced or diminished by reason of the use of such "blanket" policy or policies and (iii) all of the other requirements set forth in this Article VII are satisfied. 7.06 Waiver of Subrogation --------------------- To the extent permitted by law and without affecting the coverage provided by insurance required to be maintained hereunder, Landlord and Tenant each waives any right to recover against the other (a) damages for injury to or death of persons, (b) damages to property, (c) damage to the Premises or any part thereof, and (d) claims arising by reason of any of the foregoing, but only to the extent that any of the foregoing damages and/or claims are covered (then only to the extent of such coverage) by insurance actually carried, or required by this Lease to be carried, by either Landlord or Tenant. This provision is intended to waive fully, and for the benefit of each party, any rights and/or claims which might give rise to a right of subrogation in any insurer. Each party shall cause each insurance policy obtained by it to permit such waiver of subrogation or to provide that the insurer waives all right of recovery by way of subrogation against either party in connection with any damage covered by such policy. If any insurance policy cannot be obtained permitting or providing for a waiver of subrogation, or is obtainable only by the payment of an additional premium charge above that charged by insurers issuing policies not permitting or providing for a waiver of subrogation, the party undertaking to obtain such insurance shall notify the other party in writing of this fact. The other party shall have a period of fifteen (15) days after receiving the notice either to place the insurance with an insurer that is reasonably satisfactory to the other party and that will carry the insurance permitting or providing for a waiver of subrogation, or to agree to pay the additional premium if such a policy is obtainable at additional cost. If such insurance cannot be obtained or the party in whose favor a waiver of subrogation is desired refuses to pay the additional premium charged, the other party shall be relieved of the obligation to obtain a waiver of subrogation rights with respect to the particular insurance involved during the policy period of such insurance, but such obligation shall revive (subject to the provisions of this Section 0) upon the expiration of such policy period. 7.07 Exoneration and Indemnity ------------------------- (a) Tenant shall indemnify Landlord and its Affiliates, and each of their respective agents, contractors, officers, shareholders and employees and hold each of them harmless from and against any and all losses, liabilities, judgments, settlements, causes of action, suits, costs and expenses (including reasonable attorneys' fees and other costs of investigation and defense) which they may suffer or incur by reason of any claim asserted by any person arising out of, or related to (or allegedly arising out of or related to): (i) any failure by Tenant to perform any material obligation to be performed by Tenant under the terms of this Lease; or (ii) any wrongful act, wrongful omission, negligence or wilful misconduct of Tenant or any of its agents, employees, representatives, officers, directors or independent contractors. If any action or proceeding is brought against Landlord or any of its Affiliates (or any of their respective agents, contractors, officers, shareholders or employees) by reason of any such claim, Tenant, upon Landlord's request, shall defend the same by counsel reasonably satisfactory to Landlord, at Tenant's expense. (b) Landlord shall indemnify Tenant and its affiliates, and each of their respective agents, contractors, officers, shareholders and employees and hold each of them harmless from and against any and all losses, liabilities, judgments, settlements, causes of action, suits, costs and expenses (including reasonable attorneys' fees and other cost of investigation and defense) which they may suffer or incur by reason of any claim asserted by any person arising out of, or related to (or allegedly or arising out of or related to): (i) any failure by Landlord to perform any material obligation to be performed by Landlord under the terms of this Lease; or (ii) any wrongful act, wrongful omission, negligence or misconduct of Landlord or any Affiliate of Landlord or any of its or their agents, employees, representatives, officers, directors or independent contractors. If any action or proceeding is brought against Tenant or any of its affiliates (or any of their respective agents, contractors, officers, shareholders or employees) by reason of any such claim, Landlord upon Tenant's request, shall defend the same by counsel satisfactory to Tenant at Landlord's expense. Article 8. ASSIGNMENT, SUBLETTING, HYPOTHECATION ------------------------------------- 8.01 Consent Required ---------------- Except as hereinafter provided in this Article 8, Tenant shall not voluntarily, involuntarily or by operation of law assign, transfer, mortgage, pledge, hypothecate or otherwise encumber or transfer (collectively, a "Transfer") all or any part of Tenant's interest in this Lease or in the Premises or sublet the whole or any part of the Premises, or permit any other person, firm or corporation (a "Subtenant") to occupy by license, concession or otherwise any portion of the Premises (collectively, a "Subletting"), without first obtaining in each and every instance the prior written consent of Landlord. Any Transfer or further subletting by a Subtenant shall be considered a Subletting or Transfer hereunder and shall require the prior written consent of Landlord. Express as expressly set forth in Section 8.02, consent to any type of Transfer may be withheld in Landlord's sole discretion. Any purported Transfer or Subletting without Landlord's prior written consent shall be null and void and have no force or effect whatever and shall constitute an incurable breach of this Lease. 8.02 Indirect Transfers ------------------ If, at any time during the Term, Tenant is a partnership, the death, insolvency, withdrawal, substitution, addition or change in the identity of any general partner of Tenant (including, without limitation, any transfer of any stock of any corporation which is a partner of Tenant) following the date such partnership becomes the Tenant hereunder shall be deemed a Transfer within the meaning of this Lease. If, at any time during the Term, Tenant is a corporation, the transfer of the stock of Tenant to any person who is not as of the date hereof a shareholder of Tenant shall be considered a Transfer for purposes of this Lease whether such change occurs by reason of transfer, redemption, issuance of additional stock, operation of law, or any other cause whatever. Tenant may not transfer any stock if the proposed transferee is not compatible with the licensing, permitting, regulatory and other governmental restrictions applicable to Tenant, Landlord or Landlord's Affiliates. Tenant represents and warrants that Leo Chu owns One Hundred Percent (100%) of the issued and outstanding stock of Tenant. In the event of the death of Leo Chu during the term of this Lease, Landlord shall not unreasonably withhold its consent to the transfer of the stock of Tenant, provided that the proposed transferee otherwise meets the requirements set forth in this Section 8.02. 8.03 Obligations of Transferees and Subtenants ----------------------------------------- (a) Each person or entity obtaining ownership of Tenant's interest in this Lease, or any portion thereof, by reason of a Transfer (a "Transferee"), shall unqualifiedly agree in writing, for the benefit of Landlord, to perform all of the obligations of Tenant under this Lease. Such agreement shall be in form and substance satisfactory to Landlord and shall be delivered to Landlord no later than the date of such Transfer. (b) In connection with any Subletting, Tenant shall use only such form of agreement with a Subtenant concerning such Subletting (a "Sublease") as shall have been approved, as to form and substance, by Landlord, acting reasonably and after approval, such Sublease shall not be amended or modified in any material respect without the prior written consent of Landlord. Each Subtenant shall, by reason of having entered into such Sublease, be deemed to have agreed, for the benefit of Landlord (i) to the provisions specified in Section 0 hereof, and (ii) to comply with each and every obligation to be performed by Tenant hereunder (specifically including Section 0 hereof and this Article 8), except (i) Tenant's obligation to pay Rent to Landlord; and (ii) the minimum policy limits of any insurance to be carried by a Subtenant. Concurrently with any Subletting, Tenant shall provide Landlord with written notice of the name and address of any Subtenant for the purpose of giving notices to such Subtenant. 8.04 Continued Liability; No Waiver ------------------------------ Any consent to any Transfer or Subletting which may be given by Landlord shall not constitute a waiver by Landlord of the provisions of this Article, or a consent to any other or further Transfer or Subletting, or, in the event of a Subletting, a release of Tenant from primary liability for the full performance by it of the provisions of this Lease. Notwithstanding any Subletting, Tenant shall continue to be liable for the full performance of each and every obligation under this Lease to be performed by Tenant, regardless of whether Tenant is in possession of the Premises or has any power or legal ability to perform such obligations. Notwithstanding any Transfer (or multiple Transfers) the person named herein as Tenant (and any Transferee) shall continue to be primarily liable in any and all events for the full performance of each and every obligation under this Lease to be performed by Tenant, and the obligations under this Lease of the person named herein as Tenant and any and all Transferees shall be joint and several. 8.05 Transfer of Landlord's Interest. The term "Landlord" as used herein ------------------------------- shall mean and include only the owner or owners, at the time in question, of the fee title to the Premises. In the event of any transfer, assignment or other conveyance or transfers of any such title to any party other than an Affiliate, Landlord herein named (and in case of any subsequent transfers or conveyances, the then grantor) shall be automatically freed and relieved from and after the date of such transfer, assignment or conveyance of all liability as respects the performance of any covenants or obligations on the part of Landlord contained in this Lease thereafter to be performed and, without further agreement, the transferee of such title or interest shall be deemed to have assumed and agreed to observe and perform any and all obligations of Landlord hereunder, during its ownership of the Premises. Landlord may transfer its interest in the Premises and/or this Lease without Tenant's consent and such transfer or subsequent transfer shall not be deemed a violation by Landlord of any of the terms and conditions hereof. 8.06 Limitation on Landlord's Interest as to Transferees. Neither Landlord --------------------------------------------------- nor any assignee or transferee shall have the right to in any way participate in the operation or ownership of the Card Club or in any way receive a financial interest in or exercise influence over the Card Club until: (i) the laws of the State of California allow the Card Club to be owned or operated by a public company; or (ii) the State of California Department of Justice specifically permits such transferee or assignee to act in such a manner with respect to the Card Club, whether or not such transferee or assignee is eligible for gaming registration at the time of such transfer, assignment, or conveyance. Pursuant to this Section 8.06, Landlord shall expressly state, in any document which transfers, assigns or conveys any of its rights, title or interest to this Lease, that no assignee or transferee shall have the right to participate in the ownership or operation of the Card Club or in any way obtain a financial interest and/or exercise any influence over the Card Club until: (i) the laws of the State of California provide that the Card Club may be owned or operated by a public company; or (ii) the State of California Department of Justice specifically permits such transferee or assignee to act in such a manner with respect to the Card Club, whether or not such transferee or assignee is eligible for gaming registration at the time of such transfer, assignment, or conveyance. Nothing in this Section 8.06 shall be deemed to change or alter any provision of this Lease or require that any party's rights hereunder be changed or altered upon Landlord's transfer or conveyance of its right, title or interest herein except as expressly stated above. Article 9. EMINENT DOMAIN -------------- 9.01 Effect on Lease --------------- If the Premises or any portion thereof are taken or damaged, including severance damage, under the power of eminent domain or by inverse condemnation or for any public or quasi-public use, or voluntarily conveyed or transferred in lieu of an exercise of eminent domain or while condemnation proceedings are pending (all of which are herein called "condemnation"), this Lease shall terminate as to the part so taken as of the date the condemning authority takes title or possession, whichever first occurs. If so much of the Premises is taken by condemnation that the remainder is unsuitable for Tenant's continued occupancy for the uses and purposes for which the Premises are leased, Tenant shall have the option, exercisable only by written notice to Landlord within thirty (30) days after Landlord shall have given Tenant written notice of such taking (or in the absence of such notice, within thirty (30) days after the condemning authority shall have taken title or possession, whichever first occurs), to terminate this Lease as of the later of the date the condemning authority takes such title or possession (whichever first occurs) or the date Tenant vacates the Premises; provided, however, that if Landlord disagrees with Tenant's determination that the portion of the Premises remaining after condemnation is unsuitable for Tenant's occupancy, such controversy shall be settled by arbitration in Los Angeles, California in accordance with the commercial arbitration rules of the American Arbitration Association then in effect. In the event that less than all of the Premises shall be taken by condemnation and Tenant does not elect to terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises remaining, except that the Monthly Rent and applicable Additional Rent shall be reduced in the same ratio that the floor area of the portion of the Premises taken by such condemnation bears to the floor area of the Premises immediately before such condemnation. 9.02 Award ----- In the event of any Taking, whether whole or partial, Landlord and Tenant shall be entitled to receive and retain such separate awards and portions of lump sum awards as may be allocated to their respective interests in any condemnation proceedings. 9.03 Rebuilding ---------- In the event that this Lease is not terminated by reason of such condemnation, Landlord shall, to the extent of the severance damages applicable to the building of which the Premises are a part actually received by Landlord and Tenant in connection with such condemnation, and subject to the provisions of any Landlord's mortgage concerning the application of condemnation proceeds, cause such restoration and repair to the remaining portion of the Premises to be done as may be necessary to restore them to an architectural and usable whole reasonably suitable for the conduct of the business of Tenant. Article 10. TENANT'S BREACH; LANDLORD'S REMEDIES ------------------------------------ 10.01 Tenant's Breach --------------- The occurrence of any one of the following events shall constitute an "Event of Default" and a breach of this Lease by Tenant: (a) The failure by Tenant to make any payment of Monthly Rent, Additional Rent or other payment required to be made by Tenant hereunder, as and when due, where such failure shall continue for a period of five (5) days after written notice thereof from Landlord to Tenant. (b) The failure by Tenant to observe or perform any of the material covenants or obligations under this Lease to be observed or performed by Tenant, other than as specified in subsections (a) and (d) of this Section 0, where such failure shall continue for a period of thirty (30) days after written notice thereof from Landlord to Tenant; provided, however, that if the nature of such failure is such that more than thirty (30) days are reasonably required for its cure, then Tenant shall not be in default if Tenant shall commence such cure within said 30-day period and thereafter diligently prosecutes such cure to completion. (c) The abandonment of the Premises by Tenant. (d) The failure by Tenant to remain fully licensed as a "card club operator" in good standing at all times during the Term of this Lease which failure shall continue for a period of five (5) days. (e) The appointment by any court of a receiver, interim trustee or trustee to take possession of any asset or assets of Tenant, said receivership or trusteeship remaining undischarged for a period of sixty (60) days. (f) A general assignment by Tenant for the benefit of creditors. (g) The filing of a voluntary petition by Tenant in bankruptcy or any other petition under any section or chapter of the Bankruptcy Code or any similar law, whether state, federal or foreign, for the relief of debtors. (h) The filing against Tenant of an involuntary petition or any other petition under any section or chapter of the Bankruptcy Code or any similar law, whether state, federal or foreign, for the relief of debtors by the creditors of Tenant, said petition remaining undischarged for a period of sixty (60) days. (i) The attachment, execution or judicial seizure of all or any part of the properties and assets of Tenant, such attachment, execution or other seizure remaining undismissed or undischarged for a period of fifteen (15) days after the levy thereof. (j) The admission in writing by Tenant of its inability to pay its respective debts or perform its obligations as they become due. (k) The calling of a meeting of the creditors representing a significant portion of the unsecured liabilities of Tenant for the purpose of effecting a moratorium, extension, composition or any of the foregoing. (l) The occurrence of any of the events specified in subsections (e) through (l), inclusive, with respect to any general partner of Tenant (if Tenant is a partnership) or any guarantor of Tenant's obligations under this Lease. (m) The occurrence of a default not cured within the applicable cure period, under that certain Management Agreement with respect to the operation of the Hotel, between Landlord and Tenant, of even date herewith. (n) The occurrence of any event which expressly constitutes an incurable breach of this Lease. The notices specified in subsections (a) and (b) of this Section 0 shall be in lieu of, and not in addition to, any notices required under California Code of Civil Procedure Section 1161 or any successor statute. 10.02 Landlord's Remedies ------------------- In the event of an Event of Default under Section 0 then Landlord, in addition to any other rights or remedies it may have at law, in equity or otherwise, shall have the following rights: (a) Landlord shall have the right to terminate this Lease and Tenant's right to possession of the Premises by giving written notice of termination to Tenant. No act by Landlord other than giving express written notice to Tenant shall terminate this Lease or Tenant's right to possession of the Premises. Should Landlord at any time terminate this Lease for any breach, in addition to any other remedy it may have, it is hereby agreed by Landlord and Tenant that the damages Landlord shall be entitled to recover under this Lease shall include without limitation: (i) The worth, at the time of award, of the unpaid Rent that has been earned at the time of the termination of this Lease; (ii) The worth, at the time of award, of the amount by which the unpaid Rent that would have been earned after the date of termination of this Lease until the time of award exceeds the amount of the loss of Rent that Tenant proves could have been reasonably avoided; (iii) The worth, at the time of award, of the amount by which the unpaid Rent for the balance of the stated term hereof (determined without regard to the termination of this Lease for Tenant's breach) after the time of award exceeds the amount of the loss of Rent that Tenant proves could be reasonably avoided; and (iv) Any other amount necessary to compensate Landlord for all detriment proximately caused by Tenant's breach, including, but not limited to, the costs and expenses (including attorneys' fees, court costs, advertising costs and brokers' commissions) of recovering possession of the Premises, removing persons or property therefrom, placing the Premises in good order, condition and repair, preparing and altering the Premises for reletting and all other costs and expenses of reletting. "The worth, at the time of award," as used in subparagraphs (i) and (ii) above shall be computed by allowing interest at the Agreed Rate. "The worth at the time of award," as referred to in subparagraph (iii) above shall be computed by discounting the amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award, plus one percent (1%). The terms "Rent" and "Rents" as used in this Section 0 shall include the Monthly Rent, and all Additional Rent and all other fees and charges required to be paid by Tenant pursuant to the provisions of this Lease. (b) Even though Tenant has breached or defaulted under this Lease and abandoned the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant's right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including but not limited to the right to recover all Rents as they become due hereunder. Tenant's right to possession of the Premises shall not be deemed to have been terminated by Landlord unless express written notice to such effect is given by Landlord to Tenant, and Tenant's right to possession of the Premises shall in no event be deemed terminated without such notice on account of acts of maintenance or preservation of or efforts to relet the Premises by Landlord or by reason of the appointment of a receiver upon the initiative of Landlord. 10.03 Right to Cure Tenant's Default ------------------------------ If, after the expiration of any cure or notice period, Tenant has failed to do any act required to be done by Tenant hereunder, Landlord may (but without being obligated to do so) cure such failure at Tenant's cost. If Landlord at any time, by reason of Tenant's failure to comply with the provisions of this Lease, pays any sum or does any act that requires the payment of any sum, the sum paid by Landlord shall be due immediately from Tenant to Landlord at the time the sum is paid and, if paid at a later date, shall bear interest at the Agreed Rate from the date the sum is paid by Landlord until Landlord is reimbursed by Tenant. Such sum, together with interest thereon, shall be Additional Rent hereunder. 10.04 Landlord's Remedies Not Exclusive --------------------------------- The several rights and remedies herein granted to Landlord shall be cumulative and in addition to any others to which Landlord is or may be entitled by law or in equity, and the exercise of one or more rights or remedies shall not prejudice or impair the concurrent or subsequent exercise of any other rights or remedies which Landlord may have and shall not be deemed a waiver of any of Landlord's rights or remedies or to be a release of Tenant from any of Tenant's obligations, unless such waiver or release is expressed in writing and signed by Landlord. 10.05 Right to Rents, Issues and Profits ---------------------------------- In the event this Lease is terminated pursuant to the provisions of this Article 10, all of the right, title, estate and interest of Tenant in and to (a) the Premises; (b) all rents, issues and profits of the Premises whether then accrued or to accrue; (c) all insurance policies and all insurance monies paid or payable to Tenant with respect to the Premises, any property thereon and any business conducted thereon; and (d), at the election of Landlord, all Subleases then in existence for any part or parts of the Premises, shall, without compensation being paid therefor, pass unto and vest in and become the property of Landlord, free of any trust or claim thereto by Tenant. Tenant hereby assigns to Landlord all subrents and other sums falling due from Subtenants during any period in which Landlord has the right under this Lease, whether exercised or not, to reenter the Premises upon Tenant's breach of this Lease, and Tenant shall not have any right, interest or claim in or to such sums during any such period. By its acceptance of an interest subject to this Lease, each Subtenant shall be deemed to have agreed, and Tenant shall require each Subtenant to expressly agree in writing (i) upon receipt of written notice from Landlord that Tenant has breached this Lease, to make all payments of subrents directly to Landlord, which payments shall be received by Landlord without any liability or obligation to such Subtenant or otherwise (except to credit such payments against the rents and other sums due under this Lease from Tenant), and (ii) at the election of Landlord in its sole discretion, to attorn to Landlord in the event this Lease is terminated as the result of Tenant's breach. Each Sublease shall terminate upon the termination of this Lease for Tenant's breach unless Landlord shall expressly elect by written notice to the Subtenant thereunder to continue such Sublease in effect following a termination of the Lease. Neither Landlord's consent to such Sublease, nor Landlord's receipt of subrents from the Subtenant thereunder, nor any other act or omission by Landlord other than Landlord's express written election to keep such Sublease in effect following termination of this Lease, shall be construed as a consent to the continued use or occupancy of the Premises by the Subtenant thereunder following the termination of this Lease for Tenant's breach. 10.06 Receipt of Rents ---------------- Landlord's acceptance of full or partial payment of Rent following any Event of Default shall not constitute a waiver of such Event of Default. Article 11. LANDLORD'S DEFAULT; TENANT'S REMEDIES ------------------------------------- 11.01 Landlord's Default ------------------ The failure by Landlord to observe or perform any of the material covenants or obligations under this Lease to be observed or performed by Landlord where such failure shall continue for a period of thirty (30) days after written notice thereof from Tenant to Landlord shall constitute a default of this Lease by Landlord; provided, however, that if the nature of such failure is such that more than thirty (30) days are reasonably required for its cure, then Landlord shall not be in default if Landlord shall commence such cure within said 30-day period and thereafter diligently prosecutes such cure to completion. 11.02 Tenant's Remedies ----------------- In the event of Landlord's default under Section 11.01 after the expiration of any applicable cure period, in addition to any other rights or remedies it may have at law, in equity or otherwise, Tenant, acting reasonably, shall have the right but not the obligation to cure Landlord's default, at Landlord's expense. If Tenant at any time, by reason of Landlord's failure to comply with the provisions of this Lease, pays any sum or does any act that requires the payment of any sum, the sum paid by Tenant, at Tenant's option, shall be offset against future Rent or shall be due immediately from Landlord to Tenant at the time the sum is paid and, if paid at a later date, shall bear interest at the Agreed Rate from the date the sum is paid by Tenant until Tenant is reimbursed by Landlord. 11.03 Tenant's Remedies Not Exclusive ------------------------------- The several rights and remedies herein granted to Tenant shall be cumulative and in addition to any others to which Tenant is or may be entitled by law or in equity, and the exercise of one or more rights or remedies shall not prejudice or impair the concurrent or subsequent exercise of any other rights or remedies which Tenant may have and shall not be deemed a waiver of any of Tenant's rights or remedies or to be a release of Landlord from any of Landlord's obligations, unless such waiver or release is expressed in writing and signed by Tenant. 11.04 Payment of Rents ---------------- Tenant's payment of full or partial payment of Rent following any default of Landlord under this Lease shall not constitute a waiver of such default. Article 12. MORTGAGE OF LANDLORD'S INTEREST ------------------------------- 12.01 Subordination ------------- The rights of Tenant hereunder shall be subject and subordinate to the lien or interest of any Landlord's mortgage. Landlord shall use its reasonable efforts to cause the holder thereof to execute and deliver to Tenant a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to Tenant. 12.02 Tenant's Obligations With Respect to Landlord's Mortgage -------------------------------------------------------- Tenant shall at any time and from time to time, upon not less than twenty (20) days' prior written request by Landlord, deliver to Landlord either or both of the following: (a) Such financial information concerning Tenant and Tenant's operations as reasonably may be required by any mortgagee or prospective mortgagee under any Landlord's mortgage; provided, however, that any such financial information shall be required and used only for bona fide business reasons related to such mortgage or the obtaining thereof; and (b) An executed and acknowledged instrument amending this Lease in such respect as may be reasonably required by any mortgagee or prospective mortgagee under any Landlord's mortgage; provided, however, that any such amendment shall not materially alter or impair any of the rights and remedies of Tenant under this Lease. 12.03 Definition of Landlord's Mortgage and Landlord's Mortgagee ---------------------------------------------------------- As used in this Lease, the term "Landlord's mortgage" refers to each mortgage or deed of trust which may in the future encumber, the Premises or any part thereof, and each lease of which Landlord is the lessee which covers, or may in the future cover, the Premises or any part thereof. As used in this Lease, the terms "Landlord's mortgagee" and "mortgagee of Landlord" include the mortgagee, or bondholder under each such mortgage, the beneficiary under each such deed of trust and the lessor under each such lease. Article 13. OPERATING EXPENSES ------------------ 13.01 Definitions ----------- (a) "Operating Expenses" shall include all expenses and costs of every kind and nature (including without limitation, payments to independent contractors) which Landlord shall pay or become obligated to pay because of or in connection with the ownership and operation of the Premises and surrounding property and supporting facilities, and additional facilities (as such additional facilities may be determined by Landlord to be reasonably necessary in subsequent years), including, without limitation: (i) all Tax Costs; (ii) all Insurance Costs; (iii) any deductible portion of an insured loss occurring to the Premises; (iv) expenses payable for the Premises under any reciprocal easement agreement or other expense sharing arrangement with adjacent property owner(s); and (v) all other expenses incurred by Landlord in connection with the Premises. (b) As used herein, the term "Insurance Costs" shall mean and refer to all insurance premiums paid by Landlord with respect to insuring the Premises or any portion thereof or the interest of Landlord or any mortgagee of Landlord therein, including, without limitation, premiums for fire, extended coverage, earthquake, business interruption, loss of rents and liability insurance, and any other insurance which Landlord deems necessary or advisable. (c) As used herein, the term "Tax Costs" shall mean and refer to all real estate taxes, personal property taxes, privilege taxes, gross income taxes assessed on the income of the Card Club, excise taxes, gross sales or use taxes, water charges, sewer charges, assessments (including, but not limited to, assessments for public improvements or benefits) and all other governmental taxes, fees, impositions and charges of every kind and nature, whether or not now customary or within the contemplation of the parties hereto, which shall be or become due and payable under or by virtue of any law, statute, ordinance, regulation or other requirement of any governmental authority, whether federal, state, county, city, municipal or otherwise, (i) which shall be levied, assessed or imposed upon Landlord or the owner of the Premises, or (ii) which shall be or become liens upon or against the Premises or any portion thereof, or any interest of Landlord or Tenant, or (iii) which shall be levied, assessed or imposed or shall be or become liens upon or against any personal property used in connection with the Premises or (iv) which shall be levied or imposed upon or with respect to the ownership, possession, leasing, operation, management, maintenance, improvement, alteration, repair, use or occupancy of the Premises or any portion thereof. Landlord and Tenant recognize that there may be imposed new forms of taxes, assessments, charges, levies or fees, or there may be an increase in certain existing taxes, assessments, charges, levies or fees placed on, or levied in connection with the ownership, leasing, occupancy or operation of the Premises and its facilities. All such new or increased taxes, assessments, charges, levies or fees which are imposed or increased, including, but not limited to, any taxes, assessments, charges, levies and fees assessed or imposed due to the existence of this Lease or for the purpose of funding services or special assessment districts theretofore funded by real property taxes, shall also be included within the meaning of "Tax Costs" as used herein. "Tax Costs" shall also include any costs incurred in negotiating or contesting any of the foregoing taxes, fees, impositions and charges. "Tax Costs" shall not include estate, inheritance, gift or franchise taxes of Landlord or the federal or state net income tax imposed on Landlord. 13.02 Survival. Any sum payable by Tenant under this Article 13 which would -------- not otherwise be due until after the termination of this Lease, shall, if the exact amount is uncertain when this Lease terminates, be paid by Tenant to Landlord upon such termination in an amount to be estimated by Landlord with an adjustment to be made once the exact amount in known. Article 14. TAXES AND OTHER CHARGES ----------------------- 14.01 Tenant's Taxes -------------- Tenant agrees that it will pay and discharge, punctually as and when the same shall become due and payable without penalty, all personal property taxes, excise taxes and all other governmental taxes, fees, impositions and charges payable by Tenant of every kind and nature, whether or not now customary or within the contemplation of the parties hereto, which shall be or become due and payable under or by virtue of any law, statute, ordinance, regulation or other requirement of any governmental authority, whether federal, state, county, municipal or otherwise (all of such taxes, charges, assessments and other governmental impositions being hereinafter collectively referred to as "Tenant's Tax" or "Tenant's Taxes") which shall be levied, assessed or imposed, or shall be or become liens, upon or against any personal property of Tenant or any interest of Tenant therein or under this Lease. Notwithstanding the foregoing provisions of this Section 14.01, nothing contained in this Lease shall require Tenant to pay any franchise, estate, inheritance, succession, capital levy or transfer tax of Landlord or any net income or excess profits tax which is in fact personal to Landlord. Article 15. UTILITY AND OTHER SERVICES -------------------------- 15.01 Utility Charges --------------- Tenant shall make application and otherwise arrange, and pay or cause to be paid all charges for water, sewer, gas, electricity, light, power, telephone and any other utility services used in or on or supplied to or for the Premises, or any part thereof. 15.02 Compliance With Governmental Regulations ---------------------------------------- Landlord and Tenant shall comply with all rules, regulations and requirements promulgated by national, state or local government agencies or utility suppliers concerning the use of utility services, including any rationing, limitation, or other control. Landlord may cooperate voluntarily in any reasonable manner with the efforts of all governmental agencies or utility suppliers in reducing consumption of energy or other resources. Tenant shall not be entitled to terminate this Lease nor to any reduction or abatement of Rent by reason of such compliance or cooperation. Tenant agrees at all times to cooperate fully with Landlord and to abide by all rules, regulations and requirements which Landlord may prescribe in order to maximize the efficiency of the HVAC system and all other utility systems. 15.03 Security; Landlord Nonresponsibility; Indemnity ----------------------------------------------- Tenant expressly agrees that Tenant shall have the sole responsibility for providing surveillance and security relating to the Premises and the persons therein and the activities conducted in and about Premises, including, without limitation, surveillance necessary to maintain the integrity of the casino activities, and Landlord shall have no responsibility with respect thereto. Under no circumstances, and in no event, shall Landlord be liable to Tenant, any Subtenant or any other person by reason of any theft, burglary, robbery, assault, trespass, arson, unauthorized entry, vandalism, or any other act of any person (other than a duly authorized agent of Landlord) occurring in or about the Premises, and Tenant shall indemnify Landlord and its agents, contractors and employees and hold each of them harmless from and against any and all losses, liabilities, judgments, costs or expenses (including reasonable attorneys' fees and other costs of investigation or defense) which they may suffer or incur by reason of any claim asserted by any person arising out of, or related to, any of the foregoing. Article 16. GENERAL PROVISIONS ------------------ 16.01 Estoppel Certificates --------------------- Either party shall, without charge, at any time and from time to time, within ten (10) business days after request by the other party, deliver a written certificate duly executed and acknowledged, certifying to the requesting party, or any other person or entity specified by the requesting party: (a) That this Lease is unmodified and in full force and effect, or if there has been any modification, that the same is in full force and effect as so modified, and identifying any such modification; (b) Whether or not to the knowledge of the certifying party there are then existing any offsets or defenses in favor of such party against the enforcement of any of the terms, covenants and conditions of this Lease and, if so, specifying the same, and also whether or not to the knowledge of the certifying party, the requesting party has observed and performed all of the terms, covenants and conditions on its part to be observed and performed, and, if not, specifying the same; (c) The dates to which Monthly Rent, Additional Rent and all other charges hereunder have been paid; and (d) Any other matter which reasonably relates to the tenancy created hereby and the contractual relationship between Landlord and Tenant. The failure of the certifying party to deliver such certificate within five (5) business days after a second written request shall constitute a default hereunder and shall be conclusive upon Landlord, Tenant and any other person, firm or corporation for whose benefit the certificate was requested, that this Lease is in full force and effect without modification except as may be represented by the requesting party, and that there are no uncured defaults on the part of the requesting party. If the certifying party does not deliver such certificate to the requesting party or such person designated by the requesting party within such 10-day period, the certifying party shall be liable to the requesting party for all damages, losses, costs and expenses proximately resulting from the certifying party's failure to timely deliver such certificate. If the certifying party makes any false statement or claim in any such certificate, the certifying party shall be liable to the requesting party for all damages, losses, costs and expenses proximately resulting therefrom. 16.02 Landlord's Right of Entry ------------------------- Provided that Landlord does not unreasonably interfere with the operation of Tenant's business on the Premises, Landlord and its agents shall have the right: (a) To display the Premises to prospective tenants. If Tenant vacates the Premises prior to the expiration of the Term, Landlord, at its sole cost and expense, may from and after Tenant's vacation decorate, remodel, repair, alter, improve or otherwise prepare the Premises for reoccupancy. (b) To enter the Premises at any reasonable time for inspections, to exhibit the Premises to others, such as prospective purchasers and insurance, building and lender's inspectors, to perform its obligations under this Lease and for any purpose whatsoever reasonably related to the safety, protection or preservation of the Premises or Landlord's interest therein, without being deemed guilty of an eviction or disturbance of Tenant's use and possession, provided that Landlord shall not unreasonably interfere with Tenant's business operation. Tenant shall deliver to Landlord all keys necessary to unlock all of the doors in, on or about the Premises, except Tenant's vaults and safes, and Landlord shall have the right to use any and all means which Landlord may deem proper in order to obtain entry in an emergency. 16.03 Waiver ------ No waiver of any breach of any covenant or condition herein contained shall be effective unless such waiver is in writing, signed by the aggrieved party and delivered to the breaching party. The waiver by the aggrieved party of any such breach or breaches, or the failure by the aggrieved party to exercise any right or remedy in respect of any such breach or breaches, shall not constitute a waiver or relinquishment for the future of any such covenant or condition or of any subsequent breach of any such covenant or condition nor bar any right or remedy of the aggrieved party in respect of any such subsequent breach. The receipt of any Rent after the expiration of any cure period provided for in this Lease (regardless of any endorsement on any check or any statement in any letter accompanying any payment of Rent) by Landlord shall not operate as an accord and satisfaction or a waiver of the right of Landlord to enforce the payment of Rents previously due or as a bar to the termination of this Lease or the enforcement of any other remedy for default in the payment of such Rents previously due, or for any other breach of this Lease by Tenant. 16.04 Surrender of Premises; Holding Over ----------------------------------- Subject to Landlord's obligations to maintain and repair the Premises, Tenant agrees on the last day of the Term or on the earlier termination of this Lease to surrender the Premises, in good order, condition and repair, reasonable wear and tear excepted. If Tenant fails to surrender the Premises upon the termination of this Lease, Tenant agrees to and shall indemnify and hold harmless Landlord from and against any loss or liability, including costs and attorneys' fees, resulting from such failure to surrender the Premises, including but not limited to, any claims made by, or loss of rent from, any succeeding tenant based on or resulting from such failure to surrender. Nothing contained herein shall be construed as a consent to Tenant's occupancy or possession of the Premises beyond the expiration or earlier termination of this Lease. 16.05 Notices ------- Wherever in this Lease one party to this Lease is required or permitted to give or serve a notice, statement, request or demand to or on the other, such notice, statement, request or demand shall be given or served upon the party to whom directed in writing and shall be delivered personally or forwarded by registered or certified mail, postage prepaid, return receipt requested, addressed to Landlord or Tenant, as the case may be, at the address of that party set forth below with copies to be sent concurrently as follows: If to Tenant: California Casino Management, Inc. Radisson Crystal Park Hotel and Casino 123 E. Artesia Boulevard Crystal Park, CA 90220 Attention: Leo Chu With a copy to: Michael C. Baum, Esq. Tucker & Baum 228 South Beverly Drive Beverly Hills, CA 90212 Fax: (310) 246-6622 If to Landlord: Crystal Park Hotel and Casino Development Company, LLC c/o HP/Compton, Inc. 1050 So. Prairie Ave. Inglewood, CA 90301 Attn: G. Michael Finnigan With a copy to: Sandra G. Kanengiser, Esq. Irell & Manella LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, CA 90067 Either party may change its address for notice by written notice given to the other in the manner hereinabove provided. Any such notice, statement, request or demand shall be deemed to have been duly given or served on the date personally delivered or two (2) business days after the date deposited in the United States mail in accordance with this Section 16.05. 16.06 Partial Invalidity; Construction -------------------------------- If any term or provision of this Lease or the application thereof to any person or circumstance shall to any extent be held to be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it has been held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law. This Lease shall be governed by and construed under the laws of the State of California. When required by the context of this Lease, the singular shall include the plural, and the neuter shall include the masculine and feminine. 16.07 Captions -------- The captions and headings in this Lease are inserted only as a matter of convenience and for reference, and they in no way define, limit or describe the scope of this Lease or the intent of any provision hereof. 16.08 Short Form Lease ---------------- At the request of Landlord, Tenant agrees to join in the execution and delivery of a short form memorandum of this Lease to be recorded in the Official Records of Los Angeles County, California. The terms, covenants and conditions of this Lease shall control over any such memorandum. In no event shall Tenant have this Lease recorded without the prior written consent of Landlord, which consent may be withheld in Landlord's sole and absolute discretion. 16.09 Brokers' Commissions -------------------- Each party represents and warrants to the other party that it has had no dealings with any broker, finder or agent in connection with the subject matter of this Lease or any of the transactions contemplated hereby. Each party agrees to defend, indemnify and hold harmless the other party from any claim, suit, liability, cost or expense (including attorneys' fees) with respect to brokerage or finder's fees or commissions or other similar compensation alleged to be owing on account of such party's dealings (or alleged dealings) with any real estate broker, agent, finder or other person. 16.10 Attorneys' Fees --------------- (a) In the event of any litigation between Landlord and Tenant alleging a breach of this Lease by either party, or seeking a declaration of the rights of the parties hereunder, the losing party shall pay to the prevailing party its costs of litigation including reasonable attorneys' fees. (b) Each party shall reimburse the other party, upon demand, for all costs and expenses (including attorneys' fees) incurred by such party in connection with any bankruptcy proceeding, or other proceeding under Title 11 of the United States Code (or any successor or similar law) involving the other party. 16.11 Counterparts ------------ This Lease may be executed in two or more counterparts, each of which may be deemed an original, but all of which together shall constitute one and the same instrument. 16.12 Sole Agreement -------------- This Lease contains all of the agreements of the parties hereto with respect to the matters covered hereby, and no prior agreements, oral or written, or understandings or representations of any nature whatsoever pertaining to any such matters shall be effective for any purpose unless specifically incorporated in the provisions of this Lease or said agreements. 16.13 Successors and Assigns ---------------------- Subject to the provisions hereof relative to assignment, this Lease shall be binding upon and inure to the benefit of the successors and assigns of the respective parties hereto, and the terms "Landlord" and "Tenant" shall include the respective successors and assigns of such parties. 16.14 Time is of the Essence ---------------------- Time is of the essence with respect to the performance or observance of each of the obligations, covenants and agreements of each of Landlord and Tenant under this Lease. 16.15 Survival of Covenants --------------------- Except with respect to those conditions, covenants and agreements of this Lease which by their express terms are applicable only to, or which by their nature could only be applicable after, a certain date or time during the term hereof, all of the conditions, covenants and agreements of this Lease shall be deemed to be effective as of the date of this Lease. Any obligation arising during the Term of this Lease under any provision hereof, which by its nature would require Landlord and/or Tenant to take certain action after the expiration of the Term or other termination of this Lease, including any termination resulting from the breach of this Lease by Landlord or Tenant, shall be deemed to survive the expiration of the Term or other termination of this Lease to the extent of requiring any action to be performed after the expiration of the Term or other termination hereof which is necessary to fully perform the obligation that arose prior to such expiration or termination. 16.16 Landlord's Consent or Approval ------------------------------ Where any provision of this Lease requires the consent or approval of Landlord to any action to be taken or of any instrument or document submitted or furnished by Tenant or otherwise, such consent or approval shall not be unreasonably withheld or delayed by Landlord unless such provision entitles Landlord to the discretionary withholding of any such consent or approval required thereby. The consent or approval of Landlord to or of any such act, instrument or document shall not be deemed a waiver of, or render unnecessary, Landlord's consent or approval to or of any subsequent similar or dissimilar acts to be taken or instruments or documents to be submitted or furnished by Tenant hereunder. 16.17 Joint and Several Obligations ----------------------------- If more than one person or entity is Tenant or Landlord, the obligations imposed on that party shall be joint and several. If either Landlord or Tenant is a partnership, the obligations of each general partner shall be joint and several. 16.18 No Offer -------- The submission of this document for examination and discussion does not constitute an offer to lease, or a reservation of, or option for, the Premises. This document will become effective and binding only upon execution and delivery by Landlord and Tenant. 16.19 Corporate Resolution -------------------- If Tenant is a corporation, Tenant shall deliver to Landlord, upon execution of this Lease, a certified copy of a resolution of its board of directors authorizing the execution of this Lease and naming the officer or officers who are authorized to execute this Lease on behalf of the corporation. IN WITNESS WHEREOF, the parties hereto have duly executed this Lease as of the day and year first above written. LANDLORD: CRYSTAL PARK HOTEL AND CASINO DEVELOPMENT COMPANY, LLC, a California limited liability company By: HP/COMPTON, INC., a California managing member By: /s/ G. Michael Finnigan -------------------------------- G. Michael Finnigan Title: Vice President ----------------------------- TENANT: CALIFORNIA CASINO MANAGEMENT, INC., a California corporation By: /s/ Leo Chu ------------------------------- Leo Chu Title: President --------------------------- EX-10.42 3 TERMINATION OF CONSULTING AGREEMENT Hollywood Park, Inc. Exhibit 10.42 Form 10-K, 1997 TERMINATION OF CONSULTING AGREEMENT This Termination of Consulting Agreement is entered into as of January 1, 1998, among the parties listed on the signature page hereto. Reference is hereby made to that certain Consulting Agreement dated September 11, 1997 (the "Consulting Agreement"), entered into by the Yakama Tribal Gaming Corporation, a tribal corporation established under the laws of The Confederated Tribes and Bands of the Yakama Nation (the "Nation"), HP Yakama Consulting, Inc., a Delaware corporation, and the Nation. The parties hereby acknowledge that, in order to obtain certain regulatory approvals from the National Indian Gaming Commission, it is necessary to terminate the Consulting Agreement. Therefore, the parties hereby agree that, as of January 1, 1998, the Consulting Agreement was terminated and of no further force and effect. In addition, the parties have agreed to revise certain related documents to remove all references therein to the Consulting Agreement. Accordingly, the parties agree to substitute the various pages attached hereto as Exhibit A for the corresponding pages in the following documents, each of which was entered into on September 11, 1997 by one or more of the parties or their affiliates: Loan Agreement; Secured Promissory Note; Master Lease; Sublease; and Construction and Development Agreement. This Agreement may be executed in one or more counterparts, each of which shall be an original, and all of which shall constitute one complete instrument. IN WITNESS WHEREOF, the parties hereto have, by their duly authorized officers and agents caused this Agreement to be executed on the day and year first written above. YAKAMA TRIBAL GAMING CORPORATION, a tribal corporation established under the laws of THE CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION By: /s/ Richard S. Isaac ------------------------------- Name: Richard S. Isaac ----------------------------- Title: Chairman, Gaming Commission --------------------------- HP YAKAMA CONSULTING, INC., a Delaware corporation By: /s/ Bruce Rimbo ------------------------------- Name: Bruce Rimbo ----------------------------- Title:____________________________ CONFEDERATED TRIBES AND BANDS OF THE YAKAMA INDIANS, a federally-recognized Indian Tribe By: /s/ William F. Yallup, Sr. ------------------------------- Name: William F. Yallup ----------------------------- Title: Chairman ---------------------------- Exhibit A --------- LOAN AGREEMENT By and Between YAKAMA TRIBAL GAMING CORPORATION and HP YAKAMA, INC. Dated: September 11, 1997 LOAN AGREEMENT This LOAN AGREEMENT (this "Agreement") is entered into this 11th day of September, 1997 by and between YAKAMA TRIBAL GAMING CORPORATION, ("Borrower"), a tribal corporation established under the laws of The Confederated Tribes and Bands of the Yakama Indian Nation (the "Nation"), having a mailing address of P.O. Box 151, Toppenish, Washington 98948, and HP YAKAMA, INC. ("Lender"), a Delaware corporation, having a place of business at c/o Hollywood Park, Inc., 1050 South Prairie Avenue, Inglewood, California 90301, with reference to the following facts and circumstances: A. Nation is a federally recognized Indian tribe eligible for the special programs and services which the United States provides to Indians because of their status as Indians, and possessing sovereign powers of self-government. B. Nation is the beneficial owner of certain real property (the "Property") within its reservation in the State of Washington which is held in trust by the United States for the benefit of the Nation and over which it exercises governmental jurisdiction. The Property is more particularly described in Exhibit A attached hereto. --------- C. Nation has established Borrower as a special purpose tribal entity to establish and operate the Enterprise (as defined in the Master Definition List attached hereto as Exhibit B; all capitalized terms used herein without --------- definition shall have the respective meanings described thereto in the Master Definition List) at the Facility for the purpose of engaging in Gaming. D. Nation has determined that the construction of the Facility and the development and operation of the Enterprise is an important tribal governmental project which is intended to improve the economic condition of the Nation and its members, increase tribal revenues, enhance the Nation's economic self- sufficiency, and enable the Nation's government to better serve the social, economic, educational and health needs of the Nation's members. E. Nation and Borrower are in need of the financial means to permit them to construct, develop, operate and maintain the Facility and Gaming Enterprise. F. Nation and Borrower have requested that Lender make a loan of up to Nine Million and 00/100 Dollars ($9,000,000.00) (the "Loan"), and in connection therewith, will execute and deliver to the Lender's benefit, among other things, the Note and the Security Agreement (as such capitalized terms are defined hereinafter). These documents, together with all other documents evidencing or securing the Loan, are referred to jointly and severally herein as the "Loan Documents." G. This Agreement sets forth the terms and conditions of the obligations undertaken by Borrower to induce Lender to make the Loan. -1- H. This Agreement is intended to be for the financing of the Facility and the Enterprise only. Nothing herein is intended to be and shall not be construed as constituting a contract for management services as contemplated by IGRA, 25 U.S.C. sec. 2711 (or any successor or related statute or regulation). The parties acknowledge that Lender is to have no management responsibilities with respect to the Enterprise or Gaming activities whatsoever. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged by the parties, the parties hereby agree, as of the date first stated above, as follows: 1. Defined Terms. In addition to the words and terms elsewhere ------------- defined in this Agreement or in the Master Definition List, the words and terms set forth in this Article I shall have the meanings herein set forth. All references in this Agreement to any agreement or instrument shall include such agreement or instrument as the same may be amended, restated, modified, supplemented, replaced or substituted from time to time. Such definitions shall be equally applicable to both singular and plural forms of any of the words and terms therein defined. As used herein: Council: The Tribal Council of the Nation. ------- Financing Statements: The UCC-1 Financing Statements executed and -------------------- delivered by Borrower to Lender naming Borrower as debtor and Lender as secured party in order to perfect the security interests granted to the Lender in the Security Agreement. Indebtedness: (i) all indebtedness, whether or not represented by bonds, ------------ debentures, notes or other securities, for the repayment of money borrowed, (ii) all deferred indebtedness for the payment of the purchase price of property or assets purchased, (iii) all guaranties, endorsements, assumptions and other contingent obligations in respect of, or to purchase or otherwise to acquire, indebtedness of others, (iv) all indebtedness secured by any mortgage, pledge or lien existing on property owned, subject to such mortgage, pledge or lien, whether or not the indebtedness secured thereby shall have been assumed, and (v) installment purchase contracts, loans secured by purchase money security, interests, and lease-purchase agreements or capital leases. Organizational Documents: Collectively, the following documents, each of ------------------------ which shall be in form and substance acceptable to the Lender: (a) a copy of the Bylaws of the Borrower; (b) a copy of the ordinances and/or resolutions of the Nation and the Borrower authorizing the execution, delivery and performance of the Loan Documents and the Transaction Documents and providing a limited waiver of its sovereign immunity to the extent required hereby hereof, and -2- providing that all notice and other procedures in connection with the adoption of such ordinances were complied with; (c) certificates of the Nation and the Borrower as to organizational matters in form and substance acceptable to Lender; (d) financial statements of the Borrower and the Enterprise as may be required to be delivered under the Transaction Documents. 2. The Loan. -------- 2.1 Funding Commitment. Lender hereby represents that upon the ------------------ Execution Date of this Agreement it shall have on hand or available to it for funding hereunder, and shall loan to Borrower, and Borrower hereby agrees to borrow and repay to Lender upon and after receipt of such amount (the "Loan"), the maximum sum of Nine Million Dollars ($9,000,000)("Maximum Loan Amount"). The Loan shall be evidenced by the Note. 2.2 Repayment. The full terms and conditions regarding repayment, --------- interest, prepayment and other matters related to repayment of the Loan are as set forth in the Promissory Note. 2.3 Purpose; Disbursement Conditions. The proceeds of the Loan shall -------------------------------- be used solely in accordance with the Cost Breakdown to fund the construction, development, equipping, furnishing, decorating, staffing (including training), startup operating capital and related start-up needs of the Facility and the Enterprise. Subject to the terms and conditions of this section, the Loan shall be funded in such a manner so as to assure Borrower that at least sufficient funds will be on hand to cover the next sixty (60) days of expenses, based upon cash flow needs to be developed and approved by the Borrower and Lender. Borrower shall not incur any construction or development obligations without its reasonable satisfaction that adequate cash is available. 2.3.1 Cost Breakdown -------------- (a) Lender will make disbursements of the Loan based on a detailed breakdown (a "Cost Breakdown" and projected disbursement release schedule) of construction, financing and other development costs, as more fully described in the attached Exhibit C, which shall be submitted to, and approved --------- by, Lender prior to the initial disbursement of the Loan. (b) The Cost Breakdown restricts disbursements to line items in cost categories. Lender acknowledges that the Cost Breakdown includes funds and disbursements which cover a mutually agreed upon amount of Nation's and Borrower's reasonable legal fees in connection with the negotiation and preparation of this Agreement, the other Loan Documents and the Transaction Documents, and projected costs of efforts to obtain BIA and Commission approval thereof. Borrower agrees to use -3- disbursements solely in conformity with the Cost Breakdown. If the Facility cannot be completed in strict conformity with the most recently approved Cost Breakdown, Borrower must submit immediately to Lender for its approval a revised Cost Breakdown. In the revised Cost Breakdown, Borrower must identify requested changes in any line items and provide a written statement of reasons for the changes. If further changes are required, Borrower must seek Lender's approval. Lender need make no further disbursements unless and until it approves the revised Cost Breakdown as provided, which approval (or the denial thereof) shall be in Lender's reasonable discretion; provided, however that, Lender shall approve all revised Cost Breakdowns necessitated as a consequence of Consultant's default or breach of its obligations under Section 3(ii) of the Construction and Development Agreement so long as the aggregate costs specified in such revised Cost Breakdown do not exceed $9,000,000. The most recently approved Cost Breakdown supersedes all previously approved Cost Breakdowns. 2.3.2 Loan in Balance; Borrower's Funds Account ----------------------------------------- (a) The Loan is "in balance" whenever the amount of the undistributed Loan funds, plus any sums provided or to be provided by Borrower as shown in the Cost Breakdown most recently approved by Lender, are sufficient in Lender's reasonable judgment to pay, through completion of the Facility and maturity of the Loan, all costs of construction of the Facility and commencement of initial operation of the Enterprise. The Loan is "out of balance" if and when Lender in its reasonable judgment determines that the funds are insufficient to pay for all such costs and sums payable under the Loan Documents. (b) Borrower acknowledges the Loan may become "out of balance" in numerous ways, not all of which may now be foreseen. Borrower further acknowledges that the Loan may become "out of balance" from a shortage of funds in any single line item or category of the Cost Breakdown, even if there are undisbursed Loan funds in other line items or categories. Undisbursed Loan funds in one category or line item (e.g., insurance costs) may not be applied to another category or line item (e.g., HVAC) unless either the Cost Breakdown allows such use (and only to the extent specifically allowed) or Lender consents in writing to such use in each instance, which consent shall not be unreasonably withheld. 2.3.3 Disbursement Conditions, Amounts and ------------------------------------ Procedures. The Disbursement Procedures attached as Exhibit D, set forth - ----------- --------- disbursement conditions, amounts and procedures applicable to the Loan. Lender will disburse the Loan as described in Exhibit D and elsewhere in this --------- Agreement. 2.3.4 Repayment of Initial HP Loan and -------------------------------- Pre-Development Amount. Borrower hereby agrees that: (i) the Initial HP Loan - ----------------------- and fifty percent (50%) of the Pre-Development Amount shall be repaid from the first advance of funds to Borrower that occurs after Lender has received a license from the Washington State Gambling Commission ("WSGC") as required by Applicable Law; and (ii) at such time as advances under the Loan equal fifty percent (50%) of the amounts required to fund -4- construction of the Facility (as determined in accordance with the Cost Breakdown), the remaining fifty percent (50%) of the Pre-Development Amount shall be repaid as an advance under the Loan. 2.4 Conditions to Funding Obligation. The obligation of Lender to -------------------------------- make or cause to be made the Loan pursuant to Article 2 hereof shall be subject to, among other things, the following conditions precedent, unless Lender shall have, in each instance, waived such requirement in writing: 2.4.1 Lender and any Affiliates, officers, shareholders, directors, employees or others connected therewith, as may be required by Applicable Law, shall have applied for and been granted a license or other permission as may be required from the Tribal Gaming Commission, the WSGC, and any other Governmental agency required by Applicable Law, approving said funding by Lender; provided, however, that if Lender has received Interim Funding Approval (as defined herein), the granting of a license from the WSGC shall not be a condition to any funding up to the dollar amount authorized by such Interim Funding Approval; and provided, further, that any funding made pursuant to an Interim Funding Approval shall not be used to repay the Initial HP Loan or the Predevelopment Amount. For purposes hereof, the term "Interim Funding Approval" shall mean written authorization from the WSGC, in form and substance reasonably satisfactory to Lender, approving the funding by Lender of a specified dollar amount prior to the receipt of a license from the WSGC. Lender agrees to promptly apply for such licenses and permissions as soon as practicable following the date of this Agreement, shall cooperate fully with and expeditiously to all requests of any such agency to provide any information required to approve such licensing or other approval, and shall use commercially reasonable efforts, to receive such approval within ninety (90) days of such application. Lender shall bear all of its own costs and attorneys fees associated with obtaining such licenses and permissions. Lender warrants and represents that it knows of no information that would reasonably be expected to prevent it from obtaining such licenses or approvals. The failure to obtain such licenses or approvals in the time specified shall be cause, at Lender's or Borrower's discretion, to terminate the Loan Documents and the Transaction Documents to which Lender is a party, but shall not operate to forgive Borrower of its obligation to repay monies previously advanced to it in accordance with the terms hereof or Nation of its obligation to repay the Initial HP Loan pursuant to the terms of that certain Promissory Note in the maximum principal amount of $800,000 dated August 4, 1997 by the Nation in favor of Lender and that certain Promissory Note in the maximum principal amount of $800,000 dated November 25, 1997 by the Nation in favor of Lender. 2.4.2 All of the Loan Documents and the Transaction Documents, including the Exhibits to be attached thereto, shall have been fully completed and executed and delivered by both parties. 2.4.3 Lender shall have received verification in form and substance satisfactory to it that the NIGC does not consider the Loan Documents or Transaction Documents, or any of them taken individually, to constitute a management -5- contract as defined under IGRA, 25 U.S.C. (S) 2711, provided that Nation shall seek such approval from the NIGC immediately after the Execution Date, and if such verification is not approved within ninety (90) days after such approval is sought, this Agreement and the other Loan Documents and Transaction Documents shall terminate and be of no force and effect. 2.4.4 Lender shall have received approval of the Loan Documents and the Transaction Documents, to the extent required by Applicable Law, from the BIA. Nation shall seek such approval from the Secretary of the Interior immediately after the Execution Date, and if such verification is not approved within sixty (60) days after such approval is sought, this Agreement and the other Transaction Documents shall terminate and be of no force and effect. 2.4.5 Lender shall have approved UCC, state and federal tax lien, bankruptcy and judgment searches with respect to Nation, Borrower, the Property, the Facility and the Collateral duly certified to a current date by the appropriate filing officer, from the Secretary of State of Washington, the BIA, and each and every other jurisdiction in which the Borrower or the Nation owns assets (other than vehicles covered by a certificate of title), which searches, if not disapproved within ten (10) days after execution of this Agreement, shall be deemed approved. 2.4.6 Lender shall have received: (a) an opinion of the Nation's and Borrower's Counsel, in a form and substance acceptable to Lender, addressing such matters as Lender may require; (b) a copy of the Compact; (c) the Organizational Documents; (d) Borrower shall have directed Lender to pay all disbursements to be made on the occasion of the initial advance; (e) A certificate of an officer of the Nation and the Borrower confirming the representations and warranties set forth herein; (f) All certificates of insurance and insurance endorsements required herein; and (g) All collateral schedules, security interest subordination agreements, searches, releases and termination statements which Lender may request to assure and confirm the creation, perfection and first priority of the security interests created by the Security Agreement. -6- 3. Warranties and Representations. The Nation and Borrower hereby ------------------------------ warrant, represent and certify to and for the benefit of Lender as follows, which warranties, representations, certifications and agreements shall be conditions to the disbursement of the Loan, shall survive the funding of the Loan and shall remain continuing during all times when any portion of the Loan remains outstanding: 3.1 Nation and Borrower each have the full power, authority and authorization to execute, enter into, and deliver the Loan Documents and the Transaction Documents to which each is a party and to perform the obligations Nation and Borrower have assumed hereunder and thereunder, and to own and operate the Facility and to conduct the Enterprise. 3.2 Borrower is authorized to conduct Gaming on the Property in the manner and in the places anticipated in this Agreement, and to perform the obligations it has assumed under this Agreement. 3.3 The execution, delivery and performance of the Loan Documents and the Transaction Documents by the Nation and Borrower will not violate any law of the Nation or any law, rule, regulation or court order applicable to the Nation or Borrower, or result in the breach of or constitute a default under the Compact, any indenture or loan, credit or other agreement or instrument to which the Nation is a party or by which they or their assets may be bound or affected or result in the creation or imposition of any lien, charge or encumbrance of any nature upon any of its properties or assets contrary to the terms of any such instrument or agreement; 3.4 The Loan Documents and the Transaction Documents (including, without limitation, the waivers of sovereign immunity contained therein) have been duly authorized, executed and delivered by the Nation and Borrower, and constitute legal, valid and binding obligations of the Nation and Borrower, enforceable in accordance with the terms thereof except as may be limited by bankruptcy or other laws. 3.5 Any resolution of the Nation and Borrower approving and authorizing the execution of the Loan Documents and the Transaction Documents was duly adopted at a meeting of the authorizing body at a duly called and convened meeting at which a quorum was present, and has not been repealed, modified or amended since its adoption. All necessary resolutions or other Tribal actions have been taken, and such actions are not subject to any reverse referendum or similar requirement or provision. 3.6 There are no judgments filed or suits, actions or proceedings pending, or to the knowledge of the Nation or Borrower, threatened against or affecting the Nation or Borrower, or the Property or by any Court, arbitrator, administrative agency or other governmental authority which, if adversely determined, would materially and adversely affect the construction, development or operation of the Enterprise contemplated in the Loan Documents and the Transaction Documents. -7- 3.7 Borrower possesses adequate licenses, certificates, permits, franchises, patents, copyrights, trademarks and trade names, or the rights thereto, to conduct the Enterprise. 3.8 The Property, the Facility and the Enterprise and the intended use thereof for the purpose and in the manner contemplated by this Agreement or any other document related hereto are permitted by and will comply in all material respects with all presently applicable Governmental use requirements. 3.9 The most recent financial statements furnished to Lender by Borrower fairly present the financial condition of the Borrower at and as of the date thereof, and, as of said date, there were no material liabilities of the Borrower, direct or indirect, fixed or contingent, which were not reflected in such financial statements or the notes thereto. 3.10 To the best of its knowledge, Borrower and the Nation have filed all federal and state tax returns and reports required to be filed, which returns properly reflect the taxes owed for the period covered thereby, and except for taxes being contested in good faith by appropriate proceedings Borrower and the Nation have paid or made appropriate provisions for the payment of all taxes which may become due pursuant to said returns and for the payment of all present installments of any assessments, fees and other Governmental charges upon Borrower or upon any of its property. 3.11 No consent, approval or authorization of or permit or license from or registration with or notice to any federal or state regulatory authority, the BIA or any third party is required in connection with the making or performance of the Loan Documents, the Transaction Documents or any document or instrument related hereto or thereto, or, if so required, such consent, approval, authorization, permit or license has been requested and/or obtained or will be requested within five (5) business days of the Execution Date or such registration has been made or notice has been given or such other appropriate action has been taken on or prior to the date of such making or performance. 3.12 Neither the Nation nor Borrower is in default of a material provision under any material agreement, instrument, decree or order to which it is a party or to which it, the Property, the Facility or the Enterprise are bound or affected. 3.13 The conduct and operation of the Enterprise by the Borrower is not subject to registration with, notification to, or regulation, licensing, franchising, consent or approval by any state or federal Governmental authority or administrative agency, except (i) general laws and regulations which are not related or applicable particularly or uniquely to the type of business conducted by the Nation, which do not materially restrict or limit the business of the Nation, and with which the Nation is in substantial compliance and (ii) laws and regulations promulgated by or associated with the BIA, the NIGC or any State law or agency with jurisdiction over gaming activities under the -8- Compact, including the Washington State Gaming Commission and the laws of the United States and the State of Washington, all of which have been obtained or will be applied for in accordance with the terms hereof. 3.14 No tax claims or governmental proceedings are pending or are threatened against Borrower. 3.15 The Property and the Facility are in compliance with applicable provisions of any specific or general plan and all zoning, subdivision, environmental and health and safety rules, regulations, ordinances, directives and statutes applicable to the Property and the Facility, its occupancy or use; all restrictive covenants, zoning and subdivision ordinances and building laws and other applicable governmental laws, ordinances and lawful requirements applicable to the Property and the Facility have been complied with in all material respects; and no order, notice, complaint, report, or warning from any Governmental agency has been or will be received by or communicated to Nation and/or Borrower, their respective agents, assigns, tenants, subcontractors, or any other Person acting for Nation and/or Borrower, regarding the Property and the Facility, its occupancy or use that has not been or will not be promptly communicated and delivered to Lender. 3.16 As used herein, "Regulated Substance" means any substance, material, or matter (including, without limitation, medical waste, asbestos, oil, petroleum or chemical liquids or solids, liquids or gaseous products) that may give rise to liability under any Environmental Laws (as defined herein). As used herein, "Environmental Laws" means (i) any local, state or federal laws, rules, ordinances or regulations either in existence as of the date hereof, or enacted or promulgated after the date of this Agreement, that concern the existence, management, control, discharge, treatment, containment, and/or removal of substances or materials that are or may become a threat to public health or the environment; or (ii) any common law theory based on nuisance, trespass, negligence, strict liability, aiding and abetting, or other tortious conduct. 3.16.1 To Borrower's and Nation's knowledge without investigation or inquiry, there has been no deposit, storage, seepage or filtration of any Regulated Substances at, upon, under or within the Property or any contiguous real estate. To Borrower's and Nation's knowledge without investigation or inquiry, neither the Nation nor the Borrower has caused or permitted to occur, and shall not permit to exist, any condition that may cause a discharge of any Regulated Substances at, upon, under or within the Property or on any contiguous real estate. 3.16.2 Nation and Borrower shall comply strictly and in all respects with the requirements of the Environmental Laws applicable to the Property and related regulations and with all similar laws and regulations and shall notify Lender immediately in the event of any discharge or discovery of any Regulated Substance at, upon, under or within the Property and the Facility of which Lender has notice. Nation and Borrower shall promptly forward to Lender copies of all orders, notices, permits, applications or other communications and reports of which Lender has notice in -9- connection with any discharge or the presence of any Regulated Substance or any other matters relating to the Environmental Laws or any similar laws or regulations, as they may affect the Property and the Facility. 4. Representations and Warranties of Lender. Lender, as an inducement to ---------------------------------------- the Nation to enter into this Agreement hereby represents, warrants and covenants that: 4.1 Lender is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and is (or prior to the providing of funds herein shall be) licensed, to conduct business in the State of Washington as contemplated herein, and has applied for, and, except as otherwise provided herein, shall obtain prior to providing such funds, such licenses and background investigation approvals as may be required by Applicable Law. 4.2 The execution, delivery and performance of the Loan Documents have been duly authorized by Lender and such documents are valid and binding obligations of Lender in accordance with their terms thereof, except as such enforcement may be limited by bankruptcy, insolvency or similar laws affecting creditor's rights. 4.3 To the extent relevant under Applicable Law with respect to Lender's obtaining Governmental approval of the Loan, and to the best of Lender's knowledge, neither Lender nor any current Affiliate, shareholder, officer, director or key employee thereof has ever had an application for a gaming license rejected, or because of its or their own background caused the application for a gaming license for another to be rejected, nor has any gaming- related license which has been issued to any of such entities or persons ever been suspended or revoked, and neither Lender nor any of its current Affiliates, officers, directors or key employees has ever been convicted of a felony or a gaming-related misdemeanor. 5. Affirmative Covenants. In addition to the covenants and agreements of --------------------- the Nation set forth and contained in the other Loan Documents and the Transaction Documents, the Nation and Borrower hereby covenant and agree to and with Lender that, so long as the Note remains due and unpaid, or any other obligation of Nation to Lender pursuant to the Loan Documents or the Transaction Documents remains due under the terms hereof, Borrower will: 5.1 Use the proceeds of the Loan solely for the purposes of and in accordance with the terms hereof; 5.2 Pay all taxes (including payroll and withholding taxes) assessments and governmental charges prior to the time when any penalties or interest accrue, unless contested in good faith by appropriate proceedings in accordance with Section 10; 5.3 Continue the operation of the Enterprise; maintain all rights, licenses, and franchises necessary for the operation of the Enterprise; and comply with all Applicable Laws pertaining to the Enterprise, including but not limited to IGRA; -10- 5.4 Maintain property, liability, business interruption, worker's compensation and other forms of insurance in commercially reasonable amounts naming Lender as an additional insured and a loss payee, with thirty (30) day cancellation notices to go to Lender. 5.5 Furnish to Lender as soon as possible and in any event within five (5) business days after the Nation has obtained actual knowledge of the occurrence of Event of Default or any event which with the passage of time or the giving of notice or both would constitute an Event of Default, a statement signed by Borrower setting forth details of such event and the action which Borrower has taken, is taking, or proposes to take to correct the same; 5.6 Promptly give notice in writing to Lender of any and all litigation involving Borrower, the Nation, the Enterprise or the Facility where the amount in dispute exceeds $50,000 or is not covered by insurance, and of any and all proceedings commenced against the Nation or Borrower by or before any court or governmental or regulatory agency, which may have an adverse material impact on the Enterprise or Borrower's ability to pay amounts due under the Note; 5.7 Comply with the requirements of all Applicable Laws, rules, regulations and orders of any Governmental Authority a breach of which would materially and adversely affect the Enterprise, except where diligently contested in good faith and by proper proceedings; 5.8 Obtain all necessary and appropriate state, federal, local, tribal, and private clearances, authorizations, permits and licenses with respect to the Enterprise; 5.9 Preserve all of the rights, privileges and franchises necessary or desirable in the normal conduct of the Enterprise; conduct the Enterprise in an orderly, efficient and regular manner; and not liquidate, merge, dissolve, suspend business operations or assign, encumber, lease, transfer, encumber or sell the Facility, the Enterprise, the Collateral or any portion thereof or all or substantially all of its assets and the Nation shall not transfer any of its ownership interest in Borrower without the prior written consent of Lender, which consent (or the denial thereof) shall be in Lender's sole and absolute discretion; 5.10 Keep all of the assets and properties necessary to its business, including without limitation the Facility, in good working order and condition, ordinary wear and tear excepted; 5.11 At all times keep proper books of record and accounts for the Enterprise in accordance with GAAP, and, upon one (1) days notice of Lender, provide any duly authorized representative of Lender access during normal business hours to, and permit such representative to reasonably examine, copy or make extracts from, any -11- and all books, records and documents in the Nation's possession or control relating to the Facility, the Property or the Enterprise; 5.12 Authorize and cause the Enterprise, on behalf of the Nation, to make monthly principal payments under the Note to the extent it is required to do so, under the Note, which authorization shall not be revoked, canceled, or terminated; 5.13 Employ as Enterprise management and key operating personnel persons with requisite and appropriate experience for the position for which they are employed, taking into account Nation's Indian preference policy and its goal of placing and advancing as many of Nation's qualified tribal members as possible into Gaming Enterprise managerial, key and other employee positions; and 5.14 Employ in positions other than as management and key operating personnel a reasonable and appropriate number of persons with requisite and appropriate experience for the position for which they are employed, at rates of pay appropriate to the position; and establish, maintain and enforce operating policies and procedures which reflect sound and reasonable business judgment and which are appropriate for the Enterprise. 5.15 Retain competent consultants with requisite and appropriate experience to consult with Borrower as necessary to assist in the operation of the Facility and the Enterprise in accordance with industry standards for similar operations. All rights of any consultant to compensation or fees pursuant to any such contract shall be subordinate to Lender's rights under the Loan Documents and the Transaction Documents. 6. Financial Statements and Audits. ------------------------------- 6.1 Borrower shall deliver to the Lender as soon as practicable and in any event within twenty (20) days after the end of each month, a statement of Gross Revenue, Net Receipts, Net Revenue and Available Distributable Cash for the preceding month, all in reasonable detail and certified by the chief executive or financial officer of Borrower to have been prepared in accordance with GAAP and this Agreement. 6.2 Borrower shall deliver to the Lender an accounts receivable report and an accounts payable aging report of the Enterprise at such times as the Lender may from time to time request. 6.3 Borrower shall deliver to the Lender, all reports required by law and applicable regulations submitted to or received from any federal, state or Tribal gaming authorities within thirty (30) days of receipt thereof. 6.4 Borrower shall deliver to the Lender as soon as is practicable and in any event within ninety (90) days after the close of each fiscal year, (i) an audited balance sheet of the Enterprise and Borrower, (ii) an audited statement of income of the -12- Enterprise and Borrower, and (iii) an audited statement of cash flows, in each case, of the Enterprise and Borrower, as at the end of and for the fiscal year just closed, setting forth in comparative form the corresponding figures for the preceding Fiscal Year all in reasonable detail and certified (without any qualification or exception) by independent, nationally recognized public accountants; and concurrently with such financial statements, a written statement signed by such independent accountants (x) to the effect that, in making the examination necessary for their certification of such financial statements, they have not obtained any knowledge of the existence of any Event of Default or potential Event of Default, or, if such independent accountants shall have obtained from such examination any such knowledge, they shall disclose in such written statement the Event of Default or potential Event of Default and the nature thereof, it being understood that such independent accountants shall be under no liability, directly, or indirectly, to anyone for failure to obtain knowledge of any such Event of Default or potential Event of Default, and (y) setting forth calculations of such auditors as to the compliance by Borrower with all the covenants contained herein (including, without limitation, calculations of Gross Gaming Revenues, Net Receipts, Net Revenues and Available Distributable Cash). 6.5 Audits. Borrower shall cause to be performed on a timely basis, ------ and delivered to Lender within thirty (30) days of completion and receipt by Borrower thereof, all audits of the Enterprise which must be performed in accordance with Applicable Law. Such reports shall include at a minimum an annual audit performed by a nationally recognized independent public accounting firm in accordance with generally accepted auditing standards as applied to casinos and sufficient to meet NIGC auditing requirements. 6.6 Government Reports. The Nation shall deliver to Lender all ------------------ reports to or from any Governmental agency within five (5) days of submission to or receipt from such agency. 7. Negative Covenants. Nation and Borrower covenant and agree that ------------------ Borrower will not, except with the prior written consent of Lender (which consent, or the denial thereof, shall be in Lender's sole and absolute discretion): 7.1 Indebtedness. Incur any Indebtedness during the term of the Loan ------------ other than (i) the Loan, (ii) trade payables of the Enterprise incurred in the ordinary course of business, and (iii) purchase money financing not in excess of $100,000 at any one time outstanding; 7.2 Sale or Disposition of Property. Sell, dispose of, lease, ------------------------------- assign, sublet, transfer, mortgage or encumber (whether voluntarily or by operation of law) all or any part of its right, title or interest in or to the Property, the Facility, the Collateral, the Enterprise or, in the case of Nation, Borrower except (i) encumbrances to secure purchase money financing permitted under Section 7.1 which attach solely to the asset being financed thereby; and (ii) dispositions of equipment in connection with replacements with equipment of equal or greater value; -13- 7.3 Alteration of Enterprise. Materially alter the nature of the ------------------------ Enterprise; 7.4 Excessive Compensation. Pay excessive or unreasonable salaries, ---------------------- bonuses, commissions, consultant fees, or other commissions to employees, agents, contractors, vendors or the Tribal Gaming Commission; 7.5 Material Breach. Cause or permit any breach, default or event of --------------- default to occur under any of the Transaction Documents which is not cured within the applicable cure provisions thereof; 7.6 Consolidations; Mergers. Consolidate or merge with any ----------------------- corporation; acquire any business, or acquire stock of any corporation; enter into any partnership or joint venture; or form any subsidiary. 7.7 Distributions. Make any distribution of funds to the Nation or ------------- any dependent or independent entity or Affiliate of the Nation or Borrower not expressly permitted in the Loan Documents or the Transaction Documents; or 7.8 Investments. Lend or advance money or credit to any person ----------- (other than customers of the Enterprise in the ordinary course of business, consistent with industry standards and on commercially reasonable terms), or invest in (by capital contribution, creation of subsidiaries or otherwise), or purchase or repurchase the stock or Indebtedness, or all or a substantial part of the assets or properties, of any person, or enter into any exchange of securities with any person, or guarantee, assume, endorse or otherwise become responsible for (directly or indirectly or by any instrument having the effect of assuring any person's payment or performance or capability) the Indebtedness, performance, obligations, stock or dividends of any person, or agree to do any of the foregoing. 8. Events of Default. Each of the following occurrences shall constitute ----------------- an Event of Default under this Agreement and under the other Loan Documents (any such event, an "Event of Default"): 8.1 Failure of Borrower to pay any or all of the Indebtedness arising out of this Agreement or the other Loan Documents or any amounts owing pursuant to the Transaction Documents or provide any financial statements or audits required pursuant to Section 6 hereof within five (5) days of when due; 8.2 Failure of Borrower to observe or perform any of its respective covenants, conditions or agreements to be observed or performed by it under the Loan Documents so as to render it in default thereof, including the failure to cure as provided in such document, for a period of fifteen (15) days after written notice specifying such default and requesting that it be remedied, unless Lender has agreed in writing to an extension of such time prior to its expiration, or for such longer period as may be reasonably necessary to remedy such default (other than defaults which can be cured -14- through payment of money), provided that such breaching party is proceeding with reasonable diligence to remedy the same; 8.3 Nation or Borrower shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any present or future state or federal bankruptcy act or under any similar federal or state law, or shall be adjudicated a bankrupt or insolvent, or shall make a general assignment for the benefit of its creditors, or shall be unable to pay its debts generally as they become due (other than as permitted in the Note and the Sublease); or if a petition or answer proposing the adjudication of Nation or Borrower by Nation, Borrower or any Affiliate of Nation or Borrower as a bankrupt or its reorganization under any present or future state or federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within thirty (30) days after the filing thereof, or if a receiver, trustee or liquidator of Nation or Borrower of all or substantially all of the assets of Nation or Borrower or of the Property, the Facility, the Enterprise, or the Collateral shall be appointed in any proceeding and shall not be discharged within thirty (30) days of such appointment; or if such party shall consent to or acquiesce in such appointment; or if the property and estate and interest of the Nation or Borrower in the Property, the Facility, the Enterprise, or the Collateral or any part thereof shall be levied upon or attached in any proceeding, and such levy or attachment shall remain undischarged for a period of thirty (30) days during which execution has not been effectively stayed; or 8.4 The Property, the Facility or the Enterprise is condemned, destroyed or damaged to any material extent, and is not substantially restored within one (1) year after the date thereof. 8.5 Any representation or warranty made by the Nation or Borrower in any of the Loan Documents or the Transaction Documents shall prove to be untrue or misleading in any material respect, or any financial information, or any statement, certificate or report furnished hereunder or under any of the Loan Documents or the Transaction Documents by or on behalf of the Nation or Borrower shall prove to be untrue or misleading in any material respect on the date when the facts set forth and recited therein are stated or certified. 8.6 The occurrence of an event of default of Borrower with respect to any Indebtedness other than the Loan. 8.7 Any breach or default under any Transaction Document (taking into account applicable cure periods set forth therein). 9. Rights and Remedies. Upon the occurrence of an Event of Default and ------------------- at any time thereafter until such Event of Default is cured to the written satisfaction of Lender, may, without notice or demand, exercise one or more of the following rights and remedies: -15- 9.1 So long as Lender has given the notice required pursuant to Section 11.6.3.4 and the thirty (30) day period specified therein has expired without cure, declare all unmatured obligations to be immediately due and payable, and the same shall thereupon be immediately due and payable; 9.2 Offset any indebtedness Lender or any of its Affiliates then owes to the Nation, whether or not then due, against any obligation then owed to the Lender or any of its Affiliates, whether or not then due; 9.3 Exercise and enforce any and all rights and remedies available upon default otherwise available under Applicable Law or any other Loan Document or Transaction Document, including but not limited to the Security Agreement. 10. Permitted Contests. Neither the Nation nor the Borrower shall be ------------------ required to pay any tax, charge, assessment or imposition on Gross Revenues or Net Revenues, or imposed on the Nation or Borrower with respect to the Facility or the Enterprise, or on the Facility or Gaming Enterprise themselves, so long as the Nation or Borrower shall contest, in good faith and at its own cost and expense, the amount or validity thereof, in an appropriate manner or by appropriate proceedings which shall operate during the pendency thereof to prevent the collection of or other realization upon the tax, assessment, levy, fee, rent, charge, lien or encumbrance so contested and to further prevent the sale, forfeiture or loss of the Enterprise or Facility or any part thereof, to satisfy the same. Each such contest shall be promptly prosecuted to final conclusion (subject to the right of the Nation or Borrower to settle any such contest), and in any event the Nation and Borrower will save Lender harmless against all losses, judgments, decrees and costs (including attorneys fees and expenses in connection therewith) and will, promptly after the final determination of such contest or settlement thereof, pay and discharge the amounts which shall be levied, assessed or imposed or determined to be payable therein, together with all penalties, fines, interest, costs and expenses thereon or in connection therewith. Nation or Borrower shall give Lender prompt written notice of any such contest. 11. Miscellaneous. ------------- 11.1 Notices. Any notice required to be given pursuant to this ------- Agreement shall be delivered by overnight courier or U.S. Express Mail with notice deemed effective on the later of the first business day after deposit or the day on which the courier confirms delivery, addressed as follows: (a) If to the Borrower: Yakama Tribal Gaming Corporation c/o The Confederated Tribes and Bands of the Yakama Indian Nation P.O. Box 151 Toppenish, Washington 98948 -16- With a copy to: The Confederated Tribes and Bands of the Yakama Indian Nation P.O. Box 151 Toppenish, Washington 98948 Attn: Chairperson, Tribal Council and: Levine & Associates 2049 Century Park East, Suite 710 Los Angeles, CA 90017 Attn: Jerome Levine, Esq. (b) If to Lender: HP Yakama, Inc. c/o Hollywood Park, Inc. 1050 South Prairie Avenue Inglewood, CA 90301 Attn: Chief Financial Officer With simultaneous copies to: Irell & Manella LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, CA 90067 Attn: Alvin Segel, Esq. or to such other address(es) as the parties provide to each other in writing. 11.2 Amendments, Etc. This Agreement and the Transaction Documents --------------- may not be amended or modified, nor may any of their terms (including, without limitation, terms affecting the maturity of or rate of interest on the Note) be modified or waived, except by written instruments signed by Lender and Borrower. 11.3 Time of Essence. Time is of the essence in the performance of --------------- this Agreement. 11.4 Binding Effect and Assignment. This Agreement shall be binding ----------------------------- upon and inure to the benefit of the Nation and Lender and their respective successors and permitted assigns, except that neither party may transfer or assign its rights hereunder without the prior written consent of the other. -17- 11.5 Waivers. No waiver by a party of any right, remedy or Event ------- of Default hereunder shall operate as a waiver of any other right, remedy, or Event of Default or of the same right, remedy or Event of Default on a future occasion. No delay on the part of a party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude other or future exercise thereof or the exercise of any other right or remedy. 11.6 Limited Waiver of Sovereign Immunity. ------------------------------------ 11.6.1 Retention of Sovereign Immunity. By this Agreement, ------------------------------- the Nation and Borrower do not waive, limit or modify their respective sovereign immunity from unconsented suit or proceedings in arbitration, except as provided in this Section. 11.6.2 Scope of Waiver. Subject to the provisions of this --------------- Section the Nation and Borrower hereby expressly grant to Lender and other Persons within the scope of Section 11.6.5, a limited waiver of their respective sovereign immunity from unconsented suit and proceedings in arbitration, their respective right to require exhaustion of Tribal remedies, its right to seek Tribal remedies and their respective right to be sued in the Courts of the Nation, as such Courts are or may be established, and consents to suit in accordance with this Section. 11.6.3 Procedural Requirements. The Nation and Borrower ----------------------- grant a limited waiver of their respective sovereign immunity as to suit involving a claim if, and only if, each and every one of the following conditions is met: 11.6.3.1 The claim is made by a party designated under Section 11.6.5, and not by any other Person; 11.6.3.2 The claim alleges a breach by the Nation or Borrower of one or more of the specific obligations or duties expressly assumed by the Nation or Borrower under the terms of this Agreement or the other Loan Documents (including, without limitation, all indemnification obligations hereunder); 11.6.3.3 The claim seeks: (a) some specific action, or discontinuance of some action, by the Nation, Borrower or the Enterprise to bring the Nation or Borrower into full compliance with the duties and obligations expressly assumed by the Nation or Borrower under this Agreement or the other Loan Documents; or (b) money damages for noncompliance with the terms and provisions of this Agreement or the other Loan Documents (including, without limitation, all indemnification obligations hereunder). 11.6.3.4 The claim is made in a detailed written statement to the Nation or Borrower, as applicable, stating the specific action or discontinuance of action -18- by the Nation, Borrower, or the Enterprise which would cure the alleged breach or non-performance, or the sum of money claimed to be due and owing from the Nation or Borrower, as applicable, to Lender by reason of such specific breach or non-performance, and, except where Lender is seeking injunctive relief, the Nation or Borrower shall have thirty (30) calendar days to cure such breach or non-performance or to make such payment before arbitration or judicial proceedings may be instituted. 11.6.4 Time Period. With respect to any claim authorized in ----------- this Section, initial judicial proceedings, as authorized herein, shall be commenced within the later of two (2) years after the claim accrues or one year after the claim is discovered, or such claim shall be forever barred. The waiver granted herein shall commence on the Execution Date and shall continue for two years following the expiration, termination, or cancellation of this Agreement or the other Loan Documents (whichever is later), except that the waiver shall remain effective for any proceedings then pending, and all appeals therefrom. 11.6.5 Recipient of Waiver. The recipients of the benefit ------------------- of this waiver of sovereign immunity are limited to Lender, its successors and assigns, and any and all Persons covered by the indemnification provisions hereof. 11.6.6 Federal Question. The parties agree that any dispute ---------------- raised under the provisions of this Section 11.6 shall be resolved first pursuant to applicable federal law, and if no federal law applies, pursuant to the applicable laws of the State. 11.6.7 Service of Process. In any proceeding brought ------------------ pursuant to this Section 11.6, the Nation and Borrower consent to service made in accordance with the notice provisions of this Agreement. 11.6.8 Enforcement. The Nation and Borrower waive their ----------- respective sovereign immunity from a judgment or order consistent with the terms and provisions of this Section 11.6, which is final because either the time for appeal thereof has expired or the judgment or order is issued by a court having final appellate jurisdiction over the matter. The Nation and Borrower consent to the jurisdiction of the United States District Court for the Eastern District of Washington and any court having appellate jurisdiction thereover, consistent with the terms and conditions of this Section 11.6. None of the parties shall object to the jurisdiction or venue of said federal court. Without in any way limiting the generality of the foregoing, the Nation and Borrower expressly authorize any Governmental authorities who have the right and duty under Applicable Law to take any action authorized by any court, to take such action to give effect to any judgment entered against the Nation or Borrower, including, without limitation, entering on to the Property, or any other lands within the Nation's jurisdiction, and the Facility to seize possession of any Collateral for the purpose of giving effect to any judgment entered against the Nation or Borrower pursuant to this Section 11.6. -19- 11.6.9 Assets Pledged to Satisfy Enforcement Proceedings. ------------------------------------------------- The foregoing limited waiver of sovereign immunity is expressly conditioned on the parties' agreement, set forth herein, that the only assets, including property and funds, which shall be available, and which are thus specifically pledged and assigned hereby, to satisfy any enforcement proceedings or judgment in connection with this Agreement, or any other Loan Document, shall be limited to (i) the Collateral, and (ii) possession of the Leased Premises as provided in the Master Lease. 11.6.10 Limitation Upon Enforcement. Except with respect to --------------------------- damages arising under the indemnification provisions of this Agreement awarded against the Borrower and/or the Enterprise, damages awarded against the Nation, Borrower, or the Enterprise shall be satisfied solely from assets specified in Section 11.6.9, and shall not constitute a lien upon or be collectible from any other income or assets of the Nation or Borrower, except with the written consent of the Nation or Borrower. 11.6.11 Expenses of Judicial Enforcement. Except as ordered -------------------------------- by a court of competent jurisdiction and as set forth in the indemnification provisions hereof, all parties shall bear their own costs, including attorneys' fees, in connection with any judicial proceedings authorized under this Agreement. The parties expressly agree that this provision shall survive the termination, for any reason, or expiration of this Agreement. 11.6.12 Guaranty. The Nation and Borrower agree not to -------- revoke or limit, in whole or in part, the limited waiver of sovereign immunity of the Nation and Borrower contained in this Section 11.6 or in any way attempt to revoke or limit, in whole or in part, such limited waiver of sovereign immunity. In the event of any such revocation or attempted revocation, the parties expressly recognize and agree that there remains no adequate remedy at law available to Lender or the Persons covered by the indemnification provisions hereof, and the Nation and Borrower hereby consent to the entry of appropriate injunctive relief consistent with the terms and conditions of this Agreement, as may be granted by any court of competent jurisdiction. 11.7 Remedies Cumulative. The rights and remedies herein specified ------------------- of the parties hereto are cumulative and not exclusive of any rights or remedies which the parties hereto would otherwise have at law or in equity or by statute. 11.8 Governing Law and Entire Agreement. This Agreement shall be ---------------------------------- governed by federal law, if applicable, then by the laws of the State of Washington. The Loan Documents and the Transaction Documents contain the entire agreement of the parties on the matters covered herein. 11.9 Counterparts. This Agreement may be executed in any number of ------------ counterparts, each of which when so executed and delivered shall be an original, but such counterparts shall together constitute one and the same instrument. -20- 11.10 Not Joint Venturers. Lender is not, and shall not by reason of ------------------- any provision of any of the Transaction Documents be deemed to be, a joint venturer with or partner or agent of the Nation and/or Borrower. 12. Indemnification. --------------- 12.1 Indemnification by Nation and Borrower. The Nation and -------------------------------------- Borrower agree to indemnify and hold harmless Lender, its directors, officers, agents and employees, against any and all claims of or losses, damages or liability to third parties to which Lender, its directors, officers, agents and employees, may become subject under any law in connection with the carrying out of the transactions contemplated by this Agreement or the other Loan Documents, or the conduct of any activity on the Property (other than as a result of gross negligence or willful misconduct of any such party) and to reimburse Lender, its directors, officers, agents and employees, for any out-of-pocket legal and other expenses (including reasonable attorneys' fees) incurred by Lender, its directors, officers, agents and employees, in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions relating thereto. Lender agrees, at the request and reasonable expense of the Nation and Borrower, to cooperate in the making of any investigation in defense of any such claim and promptly to assert any or all of the rights and privileges and defenses which may be available to Lender. The Nation and Borrower further release and agree to hold harmless Lender, its directors, officers, agents and employees, from any claims of or losses, damages or liability to third parties arising out of any covenant, representation or undertaking of the Nation or Borrower contained in this Agreement, or the other Loan Documents. The provisions of this Section shall survive the termination of this Agreement and the other Loan Documents. 12.1.1 Indemnification by Lender. Lender agrees to indemnify and ------------------------- hold harmless the Nation and Borrower and their respective directors, officers, agents and employees, against any and all claims of or losses, damages or liability to third parties to which the Nation and Borrower and their respective directors, officers, agents and employees, may become subject under any law as a result of the gross negligence or willful misconduct of the directors, officers, agents or employees of the Lender, and to reimburse the Nation and Borrower and their respective directors, officers, agents and employees, for any out-of- pocket legal and other expenses (including reasonable attorneys' fees) incurred by the Nation or Borrower or their respective directors, officers, agents and employees, in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions relating thereto. The Nation and Borrower agree, at the request and reasonable expense of the Lender, to cooperate in the making of any investigation in defense of any such claim and promptly to assert any or all of the rights and privileges and defenses which may be available to the Nation and Borrower. Lender further releases and agrees to hold harmless the Nation and Borrower and their respective directors, officers, agents and employees, from any claims of or losses, damages or liability to third parties arising out of any covenant, representation or warranty of the Lender contained in this Agreement or the other Loan -21- Documents. The provisions of this Section shall survive the termination of this Agreement and the other Loan Documents. 12.1.2 Rights of Persons Covered. The Persons covered by the ------------------------- indemnification provisions hereof shall be third party beneficiaries of this Agreement and shall have the right, subject to the provisions of this Agreement, to enforce such indemnification provisions. -22- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their authorized representatives and delivered as of the day and year first above written. "Borrower" YAKAMA TRIBAL GAMING CORPORATION, a tribal corporation formed under the laws of the Confederated Nations and Bands of the Yakama Indian Nation By:______________________________ Name:____________________________ Title:___________________________ "Lender" HP YAKAMA, INC., a Delaware corporation By:______________________________ Name:____________________________ Title:___________________________ As to Sections 3, 5, 6, 7, 10, 11.4, 11.6, 11.8 and 12 only "Nation" CONFEDERATED NATIONS AND BANDS OF THE YAKAMA INDIAN NATION, a federally recognized Indian Nation By:______________________________ Name:____________________________ Title:___________________________ -23- Exhibit A --------- [description of property] -1- Exhibit B --------- Master Definitions List -1- Exhibit C --------- COST BREAKDOWNS The Cost Breakdown shall be an analysis, prepared by Borrower and approved by Lender, of the total amount needed by Borrower to construct, develop and initiate operations of the Facility and the Enterprise and to perform Borrower's other obligations under the Loan Documents and the Transaction Documents. The Cost Breakdown shall set forth the maximum amount of Loan funds allocated to each line item. Lender will disburse the Loan according to those allocations, all on the terms and subject to the conditions of this Agreement. Whenever a revised Cost Breakdown is required, Borrower must prepare and submit it for Lender's approval all in accordance with this Agreement. Any revised Cost Breakdown approved by Lender will be a more recent version of the analysis provided in the initial cost breakdown, and must include revised versions of any detailed breakdowns included in the initial cost breakdown. The signature of Borrower or any of its authorized agents or representatives on the initial Cost Breakdown or any revised Cost Breakdown constitutes representations and warranties made by Borrower to Lender under this Agreement. -1- Exhibit D --------- DISBURSEMENT PROCEDURES I. Conditions to Disbursement -------------------------- Before Lender becomes obligated to make any disbursement under this Agreement, all conditions to the disbursement must have been satisfied at Borrower's sole cost and expense in a manner reasonably acceptable to Lender. No waiver of any condition to disbursement is effective unless expressly made by Lender in writing. If Lender makes a disbursement before fulfillment of one or more required conditions, that disbursement alone will not be a waiver of such conditions, and Lender reserves the right to require their fulfillment before making any subsequent disbursements. If all conditions are not satisfied, Lender, acting in its reasonable judgment, may disburse as to certain items or categories of costs and not others. 1.1 Loan Closing and First Disbursement ----------------------------------- Lender is not required to make the first disbursement until all conditions to close the Loan are satisfied. In addition to the conditions set forth in the body of this Agreement, these conditions include the following: (a) Lender must receive a Draw Request, as defined and described hereinafter. (b) The plans and specifications for the Facility must be approved by Lender. (c) The account(s) to be established for funding of the Loan must be opened. (d) Lender must receive such financial statements, tax returns and other financial information as it may reasonably require regarding the financial condition of Borrower or any of its other parties or the Property. (e) Lender shall have received and approved the first Cost Breakdown. 1.2 Subsequent Disbursements ------------------------ After the first disbursement, Lender shall not be required to make any further disbursements if: (a) Lender does not receive a Draw Request; or -2- (b) Lender has not received copies of all building permits (or their equivalent) for the Facility or evidence satisfactory to Lender from the appropriate Governmental authorities that, except for the payment of permit issuance fees, all conditions to the issuance of permits (or their equivalent) have been satisfied and the Governmental authorities are in a position to deliver such permits (or their equivalent) to Borrower; or (c) The Facility (or any portion thereof) is materially damaged and not repaired, unless Lender receives funds from Borrower or insurance proceeds sufficient to pay for all repairs in a timely manner; or (d) The Property or any interest in it is affected by eminent domain or condemnation proceedings; or (e) Lender receives a bonded stop notice or notice of a mechanics lien or notice of a claim from a contractor for unpaid and delinquent amounts owing, unless Borrower files a bond satisfactory to Lender; or (f) The Loan is "out of balance" according to this Agreement; or (g) Lender determines that there has been or will be a material failure to meet the projections of the Cost Breakdown, and Borrower fails to comply with any demand by Lender to submit a revised Cost Breakdown or Lender does not approve any revised Cost Breakdown proposed by Borrower; or (h) Lender has notified Borrower that a reasonable basis to believe that a breach, default or failure of condition under any of the Loan Documents and/or the Transaction Documents exists. (i) An Event of Default has occurred and is continuing, or an event has occurred that with notice or the passage of time could become such an Event of Default. II. Disbursement Amounts -------------------- Set forth in one of the columns of the cost breakdown will be a "Loan Disbursement Budget" broken down by line items. From each line item, Lender will disburse Loan funds in a total amount not to exceed the Loan Disbursement Budget for that line item, taking into account all prior disbursements, any applicable retention requirements and any reallocation of funds to which Lender has consented in writing. -3- III. Disbursement Procedures ----------------------- 3.1 Draw Requests ------------- (a) For each disbursement, Borrower must submit to Lender a written request signed by Borrower or its agent designated below and its contractor, together with such documentation and information as Lender requires (collectively, a "Draw Request"). Each Draw Request must be acceptable in form and substance to Lender in the exercise of its reasonable judgment and include such items of information and documentation, including invoices, canceled checks, lien waivers and other evidence as Lender requires, to show that Borrower is in compliance with the Loan Documents. If Lender so requires, any given Draw Request also must include written certification by the Facility architect and the contractor that the Facility as constructed to date conform to the plans and specifications previously approved by Lender. (b) In each Draw Request, Borrower must request disbursement for one or more specified line items of the cost breakdown. Borrower may submit a Draw Request to Lender on or about the 1st day of each month, unless Lender agrees to make disbursements more frequently than once a month. Borrower must use all Loan funds strictly for the purposes for which they are disbursed. (c) Unless Borrower has notified Lender in writing to the contrary, each Draw Request constitutes Borrower's representation and warranty to Lender that (i) the Loan is "in balance," (ii) all prior disbursements, as well as that currently being requested, were and will be used in strict compliance with the cost breakdown and (iii) no Event of Default has occurred, and no event has occurred that, with notice or the passage of time, could become an Event of Default. 3.2 Account ------- Unless Lender and Borrower have agreed otherwise in writing, Lender shall make disbursements into a single account established for the funding of the Loan. 3.3 Disbursements to Other Parties ------------------------------ Notwithstanding the foregoing, Lender if it so chooses may make disbursements directly to Borrower's contractor, subcontractors, laborers or material suppliers designated by Borrower. 3.4 Interest on Disbursements ------------------------- Interest on each disbursement, whether initiated by Borrower or Lender, is payable from the time Lender debits the Loan funds in the amount of the disbursement. -4- 3.5 Authorized Signatories ---------------------- Borrower authorizes either Richard Steve Isaac or Mitzie Smart Lowit to sign all Draw Requests and other documents in connection with the administration of the Loan. Borrower represents and warrants to Lender that the following signatures are specimen signatures of the persons named in the preceding sentence: _____________________________ _____________________________ -5- EXHIBIT B --------- MASTER DEFINITIONS LIST In addition to the words and terms elsewhere defined in this Agreement, the words and terms set forth in this Exhibit A shall have the meanings herein set forth. All references herein to any agreement or instrument shall include such agreement or instrument as the same may be amended, restated, modified, supplemented, replaced or substituted from time to time. Such definitions shall be equally applicable to both singular and plural forms of any of the words and terms therein defined. As used herein: Affiliate: With respect to a specified person or entity, any other person --------- or entity that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with the specified person or entity. For the purpose of this definition, "control" means the ability to directly or indirectly, by voting securities, partnership interests, contract or otherwise, direct or cause the direction of the policies or management of the specified person or entity. Applicable Law: All laws of the Nation, the United States and any state -------------- which apply to any activity herein, which laws shall include, but are not limited to, IGRA (including all regulations, rules or ordinances promulgated thereunder, or any amendments or successors in whole or in part thereto), the Tribal Gaming Ordinance (including all regulations, rules or ordinances promulgated thereunder and all amendments or successors thereto), and any law made applicable under the Compact. Available Distributable Cash: Net Receipts after deduction of the ---------------------------- following items in the following order of priority: (1) interest payments on the Loan, (2) a set aside as a reserve for operating and contingent needs of the Enterprise made with HP's prior written consent, which consent or the denial thereof shall not be unreasonably denied or delayed, and (3) the Tribal Preference. BIA: The Bureau of Indian Affairs, United States Department of Interior. --- Borrower: The Tribal Corporation. -------- Business Day: Monday through Friday, excluding legal holidays. ------------ Chairman: The Chairman of the NIGC. -------- Commencement Date: The first date the Enterprise is open to the public for ----------------- Gaming. Collateral: The property defined in the Security Agreement as ---------- "Collateral." Compact: The tribal-state compact between the Nation and the State dated ------- June 9, 1996 which has been approved by the Secretary pursuant to 25 U.S.C. (S)2710(d). Construction and Development Agreement: The Construction and Development -------------------------------------- Agreement dated as of the date first stated above between the Nation, the Tribal Corporation and Consultant. Consultant: HP Yakama Consulting, Inc., a Delaware corporation. ---------- Consulting Agreement: The Consulting Agreement dated as of the date first -------------------- stated above between the Nation, the Tribal Corporation and Consultant. Effective Date: The first business day after (i) the Consultant and the -------------- Nation have received written notice from (x) the Chairman or NIGC that the Loan Documents and the Transaction Documents both collectively and individually, do not constitute a "management contract," as defined in 25 C.F.R. (S)502.15, and (y) the Secretary, or his designee, that the Loan Documents and the Transaction Documents have been approved, and (ii) the receipt by Lender and Consultant and their respective Affiliates, officers, shareholders, directors, employees or others, of all licenses or other permissions as may be required from the Tribal Gaming Commission, the Washington State Gambling Commission and any other Governmental agency as required by Applicable Law. Enterprise: The Gaming operations and ancillary business activities ---------- conducted in the Facility. Execution Date: The date set forth in the first paragraph of the document -------------- in which the term is used. Facility: The bingo hall and casino to be constructed on the Property, -------- together with all related infrastructure, parking, landscaping, interior design, engineering, architectural and other services, on Yakama Indian lands in Toppenish, Washington. GAAP: Generally accepted accounting principles, consistently applied ---- pursuant to IGRA. Gaming: Any "Class II" or "Class III" gaming activity under IGRA. ------ Gaming Control Ordinance: That certain ordinance adopted by the Nation in ------------------------ accordance with IGRA authorizing Gaming on the Property. Government: Any federal, state, county or local government body or a ---------- governing body of the Nation having jurisdiction over the Property, the Facility or the Enterprise. Gross Revenues: The total revenues received by the Enterprise from all -------------- sources less cash and prizes paid to Gaming winners. -2- IGRA: The Indian Gaming Regulatory Act of 1988 (Public Law 100-497; Title ---- 25, United States Code, Sections 2701 et seq.) and the regulations adopted by ------ the Commission pursuant thereto, and as they may be amended or replaced from time-to-time. Initial HP Loan: The loan of up to One Million Six Hundred Hundred --------------- Thousand Dollars ($1,600,000) in principal amount evidenced by the promissory notes dated August 4, 1997 and November 25, 1997 executed by the Nation in favor of Lender. Lender: HP Yakama, Inc., a Delaware corporation. ------ Loan: The loan made by Lender to the Tribal Corporation pursuant to the ---- Loan Agreement. Loan Agreement: The Loan Agreement dated as of the date first stated above -------------- among the Nation, Borrower and Lender. Loan Documents: The Loan Agreement, the Note, the Security Agreement and -------------- all other documents evidencing and/or securing the Loan. Master Lease: The Master Lease dated as of the date first stated above ------------ between the Nation and Lender pursuant to which the Leased Premises (as defined therein), including, without limitation, the Property, is leased to Lender. MOU: The Memorandum of Understanding, dated August 4, 1997, between the --- Nation and HP Yakama, Inc., a Delaware corporation. Nation: The Confederated Tribes and Bands of the Yakama Indian Nation, a ------ federally recognized Indian tribe. Net Receipts: Gross Revenues less normal and necessary operating expenses ------------ of the Enterprise as determined in accordance with GAAP, provided that such -------- operating expenses shall not include (i) extraordinary losses or expenses, (ii) consulting fees paid to third parties, (iii) any depreciation, amortization or interest expense included in the determination of Net Revenues, or (iv) amounts paid for Sublease Rent. Net Revenues: Gross Revenues less normal and necessary operating expenses ------------ of the Enterprise as determined in accordance with GAAP, provided that such -------- operating expenses shall (i) include interest payments on the Loan and, to the extent required by the NIGC, depreciation and amortization (over the maximum allowable period), and (ii) exclude (A) extraordinary losses or expenses and consulting fees, and (B) amounts paid for Sublease Rent. NIGC: The National Indian Gaming Commission established pursuant to IGRA. ---- NORAM: North American Sports Management, Inc., a Florida corporation. ----- -3- Note: The Secured Promissory Note dated as of the date first stated above ---- executed by Borrower and payable to the order of Lender in the maximum principal amount equal to Nine Million Dollars ($9,000,000). Person: Any individual, corporation, partnership, joint venture, ------ association, joint stock company, trust, unincorporated organization, Government or Indian tribe, or any agency, instrumentality or political subdivision thereof. Pre-Development Amount: The funds expended by NORAM, which equal Eight ---------------------- Hundred and Ninety Two Thousand, Eight Hundred Eighty-five Dollars and Eight Cents ($892,885.08), in connection with the planning and development of a gaming facility, the benefit of which expenditures will be assumed by the Nation. Property: The real property within the Nation's reservation in the State -------- of Washington which is held in trust by the United States for the benefit of the Nation and over which it exercises governmental jurisdiction and upon which the Facility will be constructed. Representatives: Those parties designated by Consultant and the Nation to --------------- oversee the development and construction of the Facility. Secretary: The Secretary of the United States Department of Interior, or --------- his or her designee. Security Agreement: The Security Agreement dated as of the date first ------------------ stated above between Lender and Borrower. State: The State of Washington. ----- Sublease: The Sublease dated as the date first stated above between Lender -------- and Borrower. Sublease Rent: Shall have the meaning ascribed thereto in the Sublease. ------------- Transaction Documents: The Master Lease, the Sublease, the Construction --------------------- and Development Agreement, and/or all other documents other than the Loan Documents relating to the operation, development or occupancy of the Property and the Facility. Tribal Corporation: Yakama Tribal Gaming Corporation, a tribal corporation ------------------ formed under the laws of the Nation. Tribal Gaming Ordinance: The ordinance adopted by the Nation and approved ----------------------- by the Chairman, pursuant to 25 U.S.C. (S)2710. Tribal Preference: An amount equal to (a) thirty thousand dollars ----------------- ($30,000) (or such other amount as the parties shall agree upon in accordance with the next sentence) -4- minus (b) the Tribal Rent, which amount shall be paid to the Nation on a monthly basis from and to the extent of Net Receipts. It is understood that the Tribal Preference is based on projections of over $100,000 per month in Net Revenues being earned on average over a five-year period. Prior to signing the Documents, further market studies may be done and if so, the parties shall negotiate in good faith to adjust the Tribal Preference if such studies indicate that the initial projections were materially lower or higher than such studies indicate should be expected from the Enterprise. Tribal Rent: The sum of one thousand dollars ($1,000) per month. ----------- United States: The United States of America, its authorized officials, ------------- agents and representatives. WSGC: The Washington State Gambling Commission. ---- -5- SECURED PROMISSORY NOTE $9,000,000 Toppenish, Washington September 11, 1997 FOR VALUE RECEIVED, the YAKAMA TRIBAL GAMING CORPORATION, a tribal corporation established under the laws of Confederated Bands and Tribes of the Yakama Indian Nation ("Maker"), agrees and promises to pay to the order of HP YAKAMA, INC., a Delaware corporation, its endorsees, successors and assigns ("Holder"), at c/o Hollywood Park, Inc., 1050 South Prairie Avenue, Inglewood, California 90301, or such other place as Holder may from time to time at its sole discretion designate, the principal sum of Nine Million Dollars ($9,000,000), or so much thereof as may be advanced together with interest on the unpaid principal balance at an annual rate of interest of ten percent (10%)(the "Stated Rate"). (a) Loan Agreement. All capitalized terms used herein and not defined -------------- herein shall have the respective meanings ascribed thereto in the Loan Agreement by and between Maker and Holder of even date herewith (the "Loan Agreement"). This Secured Promissory Note is issued pursuant to the Loan Agreement, and is entitled to the benefits thereof, including, without limitation, all collateral provided for therein or in connection therewith. Reference is made to the Loan Agreement for certain rights of Holder as to the acceleration of the unpaid principal balance hereof before its stated maturity upon the happening of certain events and/or the giving of notice and/or the passage of time. (b) Repayment. Principal and interest at the Stated Rate shall be paid in --------- eighty-four (84) equal consecutive monthly installments on the first day of each month beginning on the twentieth (20) day of the first complete month following the Commencement Date. Interest shall be payable monthly from and after such date from Net Receipts irrespective of the amount of Available Distributable Cash and shall be paid prior to setasides for reserves or payment of the Tribal Preference or Tribal Rent. Principal shall only be payable from and to the extent of Available Distributable Cash remaining and shall be paid prior to Sublease Rent or Tribal Rent. Principal or interest amounts unable to be repaid in any month due to insufficiency of Available Distributable Cash shall be added to the next month's payment. The remaining principal balance hereof together with all accrued interest thereon shall be due and payable on the seventh (7th) anniversary of the Commencement Date. (c) Limitations on Repayment: The parties acknowledge that the Borrower's ------------------------ obligations to repay the Loan are subject to the following limitations: ().1 On September 8, 1997, $30,000 of the principal amount of the Loan shall be forgiven if the Commencement Date has not yet occurred, and an additional like amount of the principal of the Loan shall be forgiven in each month thereafter, on the eighth day thereof, if the Commencement Date has not yet occurred, provided, that the maximum amount forgiven pursuant to this Section shall not - -------- exceed $150,000. ().2 All Loan amounts accrued but remaining unpaid more than 31 days (extended by the number of days of any periods during which Maker and/or Nation is in material default under any of the Loan Documents and/or the Transaction Documents) after) the last day of the eighty-fourth month following the Commencement Date as a consequence of insufficient Net Receipts (as to interest payable hereunder or Available Distributable Cash (as to principal payable hereunder) (unless accelerated prior thereto in accordance with the Loan Agreement) shall no longer by payable. (d) Application of Payments; Calculations. All payments made hereunder ------------------------------------- shall be made in lawful money of the United States applied first to interest and then to principal. Interest shall be calculated on the basis of a 360 day year consisting of twelve (12) thirty (30) day months. (e) Prepayments. This Secured Promissory Note may be prepaid by Maker (a) ----------- in whole or (b) in part in amounts not less than Fifty Thousand Dollars ($50,000), at anytime, upon 15 days advance written notice to Holder, without any prepayment premium or penalty. Upon such prepayment, the remaining principal balance shall not be reamortized, and monthly installments shall neither be readjusted nor avoided; rather, prepayments shall be applied to the final remaining principal payments owing pursuant to the amortization schedule in inverse order. Prepayment of this Note does not, and shall not be deemed to, relieve Maker from any other obligations to the Holder or to any other party under the Transaction Documents, or any one of them (including, without limitation, the obligation to make monthly rental payments under the Sublease (including, without limitation, the obligation to pay Sublease Rent as provided therein)). (f) Mandatory Prepayments. Maker shall pay and there shall become due and --------------------- payable, concurrently with the receipt by Maker of the proceeds of (i) any sale, lease, conveyance, transfer, financing or disposition of any asset of Maker from or relating to the Facility, the Property or the Enterprise (including, without limitation, insurance proceeds) in excess of $100,000 in any calendar year, or (ii) cash receipts of Maker from or relating to the Facility, the Property or the Enterprise not in the ordinary course of business, a prepayment in respect of the indebtedness evidenced hereby equal to 100% of such proceeds, such prepayment to be applied to the final remaining principal payments owing pursuant to the amortization schedule in inverse order in accord with the preceding paragraph). (g) Grid. Each portion of the amount of each disbursement of the Loan ---- which Holder has made to Maker and the amount of each payment or prepayment made on account of principal thereof shall be recorded by Holder and endorsed on the grid schedule attached hereto, which is made a part of this Secured Promissory Note (or so noted in its records); provided, however, that the failure of Holder -------- ------- to make any such endorsement or recordation shall not in any manner affect the obligation of Maker to repay the Loan in accordance with the terms hereof. Any such endorsement or 2 recordation shall represent prima facie evidence of the date and amount of the date and amount of disbursements of the Loan or any payment or prepayment of principal thereon, absent manifest error. (h) Late Charge. In the event that any payment required hereunder is not ----------- paid on its due date, for any reason other than a good faith accounting dispute as to the amount of such payment which is payable in accordance herewith Maker shall pay a late charge equal to 2% of the late payment to defray the costs of Holder incident to collecting and accounting for such payment. This late charge shall not be deemed to excuse a late payment or be deemed a waiver of any other rights Holder may have (including, without limitation, the right to declare the entire unpaid principal and interest immediately due and payable upon the occurrence of certain events). (i) Waiver of Sovereign Immunity. Maker hereby waives its sovereign ---------------------------- immunity from suit and consents to jurisdiction and arbitration as provided in the Loan Agreement. (j) Notices. All notices to be given by any party to the other hereunder ------- shall be in writing and deemed to have been given when delivered in accordance with the Loan Agreement. (k) Governing Law. Subject to the waiver of sovereign immunity set forth ------------- in the Loan Agreement, this Secured Promissory Note shall be governed by federal law, if applicable, then by the laws of the State of Washington. (l) Time of Essence; Waiver. Time is of the essence. No delay or omission ----------------------- on the part of Holder in exercising any right hereunder shall operate as a waiver of such right or of any other remedy under this Secured Promissory Note. A waiver on any one occasion shall not be construed as a bar to or waiver of any such right or remedy on a future occasion. (m) Waivers; Consent. Presentment for payment, protest and notice of non- ---------------- payment are waived; provided, however, that the foregoing waiver shall not be deemed to be applicable to the notice requirements set forth in the waiver of sovereign immunity set forth in the Loan Agreement. Consent is given to any extension or alteration of the time or terms of payment hereof, any renewal, and any release or resort to any party liable for payment hereof. (n) Binding Effect. This Secured Promissory Note shall be binding upon -------------- and inure to the benefit of Maker and Holder and their respective successors and assigns. 3 IN WITNESS WHEREOF, Maker has duly executed this Secured Promissory Note as of the date first above written. YAKAMA TRIBAL GAMING CORPORATION, a tribal corporation established under the laws of Confederated Bands and Tribes of the Yakama Indian Nation By:_________________________ Name:_______________________ Title:______________________ 4 GRID SCHEDULE ------------- Unpaid Amount of Amount of Principal Name of Person Date Disbursement Principal Paid Balance Making Notation ---- ------------ -------------- ------- --------------- 5 SECURITY AGREEMENT This SECURITY AGREEMENT (this "Security Agreement") made and delivered as of this 11th day of September, 1997, by and between (i) YAKAMA TRIBAL GAMING CORPORATION, a tribal corporation established under the laws of the Confederated Tribes and Bands of the Yakama Indian Nation ("Debtor") (references herein to and Debtor referring to Debtor only and not referring to Nation), THE CONFEDERATED TRIBES AND BANDS OF THE YAKAMA INDIAN NATION ("Nation") and (ii) HP YAKAMA, INC., a Delaware corporation ("Secured Party"), with reference to the following facts and circumstances: 3.6 The Secured Party and the Debtor have entered into a Loan Agreement dated as of the date first set forth above (as the same may be amended, modified, restated or supplemented from time to time (the "Loan Agreement," all capitalized terms used herein without definition shall have the respective meanings ascribed thereto in the Loan Agreement) pertaining to the Loan. 3.7 The Secured Party and the Debtor have entered into the Sublease pursuant to which the Debtor is leasing the Leased Premises (as defined in the Sublease) from the Secured Party. 3.8 The Loan and the Debtor's obligations under the Sublease are to be secured by, among other things, this Security Agreement, creating a first priority security interest in the Collateral (as defined hereinafter) in favor of Secured Party. 3.9 As used herein the term "Indebtedness Secured Hereby" shall mean (i) payment of the indebtedness evidenced by performance of the terms and conditions of, and payment of all other sums with interest thereon becoming due and payable to the Secured Party and contained in the Note and the Loan Agreement; (ii) payment of the rent owing under, performance of the terms and conditions of, and payment of all other sums with interest thereon becoming due and payable to the Secured Party and contained in the Sublease; and (iii) performance and discharge of each and every obligation, covenant and agreement, whether involving the payment of money or not, contained in any of the other Loan Documents or the other Transaction Documents. NOW THEREFORE, in consideration of the Loan and the Sublease and in order to induce the Secured Party to make the Loan and enter into the Sublease, the parties agree as follows: (a) For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Debtor and Nation hereby convey, assign, transfer and grant to the Secured Party a first priority security interest in all of their present right and hereafter acquired right, title and interest in and to the following (collectively, the "Collateral"): (a).1 all present and hereafter acquired equipment owned by the Debtor in all of its forms and wherever located (a).2 any and all machinery, equipment, controls, attachments, parts, tools, furniture and furnishings used in the conduct of the Enterprise, and all attachments, accessories, accessions, replacements, substitutions, additions and improvements to any of the foregoing (the property in a. and b. being referred to collectively herein as the "Equipment"); (a).3 all insurance proceeds (including but not limited to proceeds of insurance and refunds of unearned premiums) due or to become due to Debtor or Nation under, and all other rights of Debtor or Nation under or with respect to, any and all policies of insurance covering all or any portion of the Property, the Facility, the Leased Premises, and/or the Equipment; (a).4 all Available Distributable Cash; and (a).5 all proceeds and products of the foregoing, including but not limited to accounts, general intangibles, equipment, inventory, money, deposit accounts, goods, chattel paper, documents, instruments and insurance proceeds, all refunds, equities, benefits, book equities, returns, credits, revolving fund withholdings, return of capital and certificates evidencing any right to receive payment in any form from any marketer of goods or inventory and any other tangible or intangible property received upon the sale, lease, transfer or other disposition of any of the foregoing. (b) The Debtor warrants and represents to Secured Party that: (b).1 Debtor and Nation are the true and lawful owners of the Collateral and have good and valid title to the Collateral free and clear from any and all liens, security interests, encumbrances or other rights, title or interest of any other person, firm or corporation, excepting the rights and interest of the Secured Party hereunder. The Equipment has been delivered to and accepted and installed by the Debtor, and is in good working order. The Equipment is all of the equipment used in the conduct of the Enterprise. (b).2 The Collateral is not subject to any other lien or security interests (including, without limitation, "blanket" security interests). (b).3 The Debtor shall defend the Secured Party's interest in the Collateral against all claims and demands of all or any other persons at any time claiming the same or any interest therein adverse to the Secured Party. (b).4 There are no actions at law, suits in equity, or proceedings before any governmental agency, commission, bureau or tribunal or any arbitration proceedings that if adversely determined would adversely affect the present condition, financial or otherwise, of the Collateral or would adversely affect the right of the Debtor to pledge and assign all or any -2- part of the Collateral or rights and security afforded Secured Party hereunder. (b).5 The Equipment is and will be used for the business purpose of equipping the Enterprise located within the Facility. The Collateral will at all times be located at the Property. (b).6 The Debtor will keep the Collateral insured at all times against loss by fire and/or other hazards concerning which, in the judgment of the Secured Party, insurance protection is reasonably necessary, in a company or companies reasonably satisfactory to the Secured Party and in amounts sufficient to protect Secured Party against loss or damage to said Collateral and will pay the premiums therefore; such policy or policies of insurance will be delivered to and held by the Secured Party, together with loss payable clauses in favor of the Secured Party as its interest may appear, in form satisfactory to the Secured Party; and Secured Party may act as attorney for Debtor in obtaining, adjusting, settling and canceling such insurance and endorsing any drafts. (b).7 The Debtor will keep the Equipment in good condition and repair, reasonable wear and tear excepted. The Debtor will permit Secured Party to enter upon any lands owned, leased or otherwise controlled by or on behalf of the Debtor at reasonable times for the purpose of examining the Collateral, subject to the security requirements of the Enterprise. (b).8 The Debtor will pay as part of the Indebtedness Secured Hereby all amounts, including reasonable attorneys' fees and legal expenses, with interest thereon, paid by Secured Party (a) for taxes, levies, insurance, repairs to, or maintenance of the Collateral, and (b) in taking possession of, disposing of or preserving the Collateral after any default hereinafter described. (b).9 Debtor will not without the prior written consent of Secured Party (a) permit any liens or security interests (other than the security interest granted hereby) to attach to any of the Collateral; (b) permit any of the Collateral to be levied upon or attached by legal process; (c) except as permitted by the Loan Agreement, sell or offer to sell or otherwise transfer the Collateral; (d) do or permit anything to be done that may impair the value of the Collateral; or (e) except as permitted by the Loan Agreement, remove or permit the Collateral to be removed from the Property. (b).10 If any of the Collateral is or is to become a fixture, the Debtor agrees to furnish Secured Party, at its request, with a statement or statements signed by all persons who have or claim an interest in the real estate concerned, which statements shall provide that the signer consents to the security -3- interest created hereby and disclaims any interest in the Collateral as fixtures. (b).11 Debtor acknowledges that the Equipment is of the design, capacity and manufacture specified for and by the Debtor and that Debtor is satisfied that the same is suitable for its intended purposes. Debtor further acknowledges and agrees that Secured Party is not a manufacturer or vendor of the Equipment and that Secured Party has not made, and does not make, any representation, warranty or covenant with respect to merchantability, fitness for any purpose, condition, quality, delivery, installation, durability, patent, copyright or trademark infringement, suitability or capability of any item of Equipment in any respect or in connection with any other purpose or use of Debtor, or any other representation, warranty or covenant of any kind or character expressed or implied with respect thereto. Debtor accordingly agrees not to assert any claim whatsoever against Secured Party based thereon. Secured Party shall have no obligation to install, erect, test, adjust or service the Equipment. Debtor shall look to the manufacturer or vendor for any claims related to the Equipment. (b).12 Debtor shall provide Secured Party with sixty (60) days' prior written notice of any change in its name or the location of its principals offices (b).13 The Debtor will derive economic benefit from the Loan and the Sublease, and the Debtor acknowledges that Secured Party is relying upon the security interests granted herein and in the remaining Collateral Agreements in making the Loan. (c) This Agreement constitutes a Security Agreement under the Uniform Commercial Code (the "UCC") as in effect in the State of Washington. (d) (d).1 Debtor shall give prompt written notice to Secured Party of any damage or injury to the Property, the Facility, the Leased Premises and/or the Equipment or of any loss or diminution in value thereof, and Debtor shall give whatever notice to insurers of any such damage, injury, loss or diminution of value as may be required. All insurance proceeds of the Property, the Facility, the Leased Premises and/or the Equipment and all causes of action, claims, compensation, awards and recoveries for any damage or injury to the Property, the Facility, the Leased Premises and/or the Equipment or for any loss or diminution in value of the Property, the Facility, the Leased Premises and/or the Equipment are hereby assigned to and shall be paid to Secured Party, and Debtor agrees to execute such further evidence of such assignment of such insurance proceeds, causes of action, claims, compensation, awards and recoveries as Secured Party may require. Secured Party may (but shall not be obligated to) participate in any suits or proceedings relating to any such proceeds, causes of action, -4- claims, compensation, awards or recoveries and may join with Debtor in adjusting any loss covered by insurance. Debtor hereby directs the issuer of any such policy to pay any such money directly to Secured Party. Both before and after the occurrence of an Event of Default (defined below), Secured Party may (but need not) in Secured Party's own name or in Debtor's name, execute and deliver proofs of claim, receive all such money, endorse checks and other instruments representing payment of such money and adjust, litigate, compromise or release any claim against the issuer of any such policy. (d).2 In the event of loss, Secured Party is hereby authorized either (a) to settle, adjust or compromise any claim under the above insurance policies without consent of Debtor, which consent is hereby expressly waived; or (b) to allow Debtor to agree with the insurance company or companies on the amount to be paid upon the loss. In either case, Secured Party is authorized to collect and receive any such insurance money. Notwithstanding anything to the contrary contained herein, Debtor may, without the consent of Secured Party, so long as Debtor is not in default hereunder, settle, adjust or compromise any claim in an original amount less than Fifty Thousand Dollars ($50,000). (d).3 Notwithstanding anything to the contrary herein contained, if (i) the insurers do not deny liability as to the original amount of the claim; (ii) no Event of Default exists and no event exists that, with the passage of time or the giving of notice or both, would constitute such an Event of Default; (iii) Secured Party has received evidence, reasonably satisfactory to Secured Party in its sole discretion, that there are sufficient funds available and/or committed, including such insurance proceeds, to effectuate a restoration and to cover the expenses of operating and maintaining the Property, the Facility, the Leased Premises and/or the Equipment, (iv) Secured Party has reasonably approved the plans and specifications to be used in connection with such restoration; and (v) the restoration will be completed within one (1) year (and in any event prior to the last day of the seventy-eighth (78th) month following the Commencement Date) and will return the Property, the Facility, the Leased Premises and/or the Equipment to substantially the same condition, character and utility and to at least the value that existed immediately prior to such casualty; then such insurance proceeds shall be used to pay Debtor for the cost of rebuilding, replacing, restoring or repairing the Property, the Facility, the Leased Premises and/or the Equipment so insured in accordance with the disbursement procedures herein contained. The 31 day time period set forth in Section 3(b) of the Note shall be extended by the number of days in which the Enterprise is not operational as a consequence of such restoration. In all other cases, such insurance proceeds may at Secured Party's discretion, either be applied in payment or reduction of the Indebtedness Secured Hereby (whether then due or not) -5- or be held by Secured Party and used to reimburse Debtor or any other party for the cost of the rebuilding, replacing, restoring or repairing the Property, the Facility, the Leased Premises and/or the Equipment so insured. (d).4 In the event Debtor is entitled (whether pursuant to the terms hereof or pursuant to Secured Party's election or otherwise) to payment out of insurance proceeds for any repair, rebuilding, restoration or replacement, such proceeds shall be made available, from time to time, upon Secured Party being furnished with satisfactory evidence of progress in such repair, rebuilding, restoration or replacement, together with satisfactory evidence of the estimated cost of completion thereof and together with any such architect's certificates, waivers of lien, contractors' sworn statements and other evidence of cost and payments as Secured Party may require and approve. If the estimated cost of the work exceeds ten percent (10%) of the original principal amount of the indebtedness secured hereby, Secured Party shall also be furnished with all plans and specifications for such rebuilding, replacement, restoration or repair as Secured Party may require and reasonably approve. At all times the undisbursed balance of said proceeds remaining in the hands of Secured Party shall be at least sufficient to pay for the cost of completion of the work free and clear of liens. Any surplus that may remain out of said insurance proceeds after payment of such cost of repair, rebuilding, restoration or replacement shall, at the option of Secured Party, be applied on account of the Indebtedness Secured Hereby (whether then due or not). (e) Upon the occurrence of an Event of Default and or any event that, with the passage of time or the giving of notice or both, would constitute such an Event of Default, Secured Party may require Debtor to establish a cash management and depositary arrangement acceptable to Secured Party in its sole and absolute discretion pursuant to which, among other things, (i) the depositary bank shall enter into an agreement in form and substance acceptable to Secured Party in its sole and absolute discretion acknowledging Secured Party's first priority security interest in the Available Distributable Cash and waiving all set off, banker's lien and similar rights, (ii) Debtor shall cause all revenues of the Enterprise to be transferred to such depositary bank pursuant thereto, and (iii) the parties shall agree as to use of revenues from the Enterprise for the Debtor's continued operation of the Enterprise (including, without limitation, the continued payment of normal and necessary operating expenses thereof). (f) Upon one (1) day's written notice, Debtor shall make available for inspection and copying by Secured Party all present and future books, records, accounting logs and stored data pertaining to the Collateral or to the Enterprise, including, without limitation, computer programs, software and the equipment containing said books, records, accounting logs and stored data. -6- (g) ().1 Upon the occurrence and during the continuance of an Event of Default, the Secured Party or its designee may without demand, advertisement or notice of any kind (except such notice as may be required under the UCC) all of which are, to the extent permitted by law, hereby expressly waived: (().1.1 Exercise any of the remedies available to a secured party under the UCC or other applicable law; (().1.2 Proceed immediately to exercise each and all of the powers, rights, and privileges reserved or granted to Secured Party hereunder and under the Note and the Sublease and the other Loan Documents and the Transaction Documents; (().1.3 Proceed to protect and enforce this Security Agreement by suits or proceedings or otherwise, and for the enforcement of any other legal or equity available to Secured Party; and/or (().1.4 Realize upon the Collateral and hold, own or dispose of the same as its own property to the extent permitted pursuant to Applicable Law. ().2 Upon the occurrence of an Event of Default the Debtor shall make the Collateral available to Secured Party or its designee at a place to be designated by Secured Party or its designee which is reasonably convenient, and authorizes Secured Party or its designee to enter the Property and/or the Facility to assemble, possess, store and sell the Collateral. Debtor further agrees to pay all costs and expenses of Secured Party or its designee, including reasonable attorneys' fees, in the enforcement of any of Secured Party's rights hereunder. If any notice of sale, disposition or other intended action by Secured Party or its designee is required by law to be given to Debtor, such notice shall be deemed reasonably and properly given if mailed to Debtor at the notice address specified in accordance with the Loan Agreement at least ten (10) days before such sale, disposition or other intended action. Waiver of any default hereunder by Secured Party shall not be waiver of any other default or of a same default on any other occasion. No delay or failure by Secured Party to exercise any right or remedy shall be a waiver of such right or remedy and no single or partial exercise by Secured Party of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy at any other time. (h) Debtor agrees to execute such financing statements or other instruments as may be required under the UCC or similar state, federal or tribal laws to perfect the security interest hereunder and shall from time to time at Debtor's expense execute and deliver such assignments and endorsements and file such additional financing statements or other instruments as may be required to create and continue to perfect the security interest intended to be created herein. Debtor hereby authorizes Secured Party at Debtor's expense, to do all reasonable acts and things which Secured Party may deem -7- necessary to perfect and continue perfected the security interest created by this Security Agreement and to protect the Collateral. (i) This Security Agreement shall be governed by federal law, if applicable, then by the laws of the State of Washington. (j) Without in any way limiting the waiver of sovereign immunity contained herein, the Nation and the Debtor expressly authorize any governmental or other agency authorities who have the right and duty under Applicable Law to take any and all action authorized or ordered by any court, including without limitation, entering Indian land within the Nation's jurisdiction for the purpose of repossessing the Collateral or otherwise giving effect to any judgment entered. It is the intent of the parties that the Secured Party or its designee will be able to obtain possession of the Collateral in accordance with the rights afforded it under applicable laws and/or any court order. (k) This Security Agreement and each and every covenant and agreement and other provisions hereunder shall be binding upon the Debtor and its successors and assigns and shall inure to the benefit of Secured Party and its successors and assigns. (l) Any unenforceability or invalidity of any provision hereof shall not render any other provision or provisions herein contained unenforceable or invalid. (m) Debtor hereby waives its sovereign immunity from suit and consents to jurisdiction to the extent provided and as limited in the Loan Agreement. (n) Any notice any party may hereto desire may be required to give to any other party shall be sent in accordance with the Loan Agreement. -8- IN WITNESS WHEREOF, the undersigned have caused this Security Agreement to be duly executed as of the date first above written. HP YAKAMA, INC., a Delaware corporation By:__________________________ Name:________________________ Title:_______________________ YAKAMA TRIBAL GAMING CORPORATION, a tribal corporation established under the laws of the Confederated Tribes and Bands of the Yakama Indian Nation By:__________________________ Name:________________________ Title:_______________________ THE CONFEDERATED TRIBES AND BANDS OF THE YAKAMA INDIAN NATION By:__________________________ Name:________________________ Title:_______________________ -9- MASTER LEASE by and between THE CONFEDERATED TRIBES AND BANDS OF THE YAKAMA INDIAN NATION and HP YAKAMA, INC. September 11, 1997 U.S. Department of the Interior Bureau of Indian Affairs Lessee: HP Yakama, Inc. Lease No. ____________ Lessor: The Confederated Tribes and Bands of the Yakama Indian Nation -i- Administrative Fee: $ _______ UNITED STATES DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs Yakama Agency Yakama Reservation Toppenish, Washington Lease No._________ Approved:_________ Land:_____________ __________________ MASTER LEASE This LEASE, handsigned and notarized in quadruplicate, is made and entered into this 11th day of September, 1997 by and between the parties duly identified below as "Lessor" and "Lessee": Lessor: The Confederated Tribes and Bands of the Yakama Indian Nation P.O. Box 151 Toppenish, Washington 98948-0151 Lessee: HP Yakama, Inc. c/o Hollywood Park, Inc. 1050 South Prairie Avenue Inglewood, California 90301 under the provisions of the Act of August 9, 1955 (69 Stat. 539; 25 U.S.C. (S) 415), as amended, and as supplemented by Part 162 - Leasing and Permitting, of the Code of Federal Regulations, Title 25, INDIANS, and any amendments thereto relative to Business Leases on restricted Indian lands, all of which by reference are made a part hereof. ARTICLE 1 --------- Unless otherwise defined herein, the capitalized words and terms used in this Lease shall have the meanings set forth in Exhibit A hereto, "Master Definitions List." ARTICLE 2 LAND DESCRIPTION ---------------- For and in consideration of the rents and agreements hereinafter set out, the Lessor hereby leases to the Lessee the lands described, and identified in Exhibit B, together with all buildings and structures thereon and improvements thereto (the "Leased Premises"). Said lands are a part of the lands held in trust by the United States for the benefit of Lessor situated in Yakima County, Washington, and subject to any prior, valid existing rights of way. ARTICLE 3 --------- TERM ---- The initial term of this Lease shall begin on the Effective Date and shall continue thereafter until the seventh (7th) anniversary of the Commencement Date; provided, however, that (i) the term of this Lease shall be extended by -------- ------- the number of days of any periods during which Lessor and/or the Tribal Corporation is in material default under any of the Loan Documents and/or the Transaction Documents, and no rent shall be payable hereunder during such extension period and (ii) this Lease shall terminate and be of no force and effect if the Effective Date has not occurred on or before August 1, 1998. ARTICLE 4 --------- PURPOSE OF THIS LEASE --------------------- For and on behalf of the Lessor Lessee shall use the Leased Premises for the specific purposes of developing the Facility to be operated in accordance with Applicable Law or other lawful uses not inconsistent with the customs and practices of the Nation. If the Lessee uses the Leased Premises for any purpose not set forth herein without the consent and written approval of the Lessor and the Secretary, such use shall constitute grounds for cancellation of this Lease. -2- ARTICLE 5 --------- RENTALS ------- The Lessee, in consideration of the foregoing, agrees to pay directly to the Lessor at the address set forth herein in lawful money of the United States of America, rent of One Thousand Dollars ($1,000) per month. The parties hereto agree and acknowledge that such rent is based on the appraised fair annual rental as determined by the Bureau of Indian Affairs, after taking into account the additional consideration from Lessee in the making of this Lease, including Lessee's financing of the development of the Leased Premises and Lessee's concurrence with the terms and conditions of the Loan Documents and the other Transaction Documents. It is expressly agreed that the parties waive periodic review of Lease consideration pursuant to 25 C.F.R. (S) 162.8. ARTICLE 6 --------- PAYMENT OF RENTS ---------------- Rental payments due hereunder shall be paid in arrears with the first monthly payment due on the first day of the first complete month following the month in which the Commencement Date occurs. Rental payments shall be paid directly to the Lessor at the address specified herein unless and until Lessee is notified in writing by the Secretary to remit such payments elsewhere. There is no additional consideration for this Lease based upon income produced on the Leased Premises. Upon receiving written notice from the Secretary, Lessee shall make rent payments accordingly, commencing with the next rental due date and, if requested ------------ by the Secretary, will furnish surety bond as provided in Article 13 (Rental Bond). All rents shall be paid without prior notice or demand. ARTICLE 7 --------- NONRESPONSIBILITY NOTICES ------------------------- Prior to the commencement of the development of the Facility or commencement or construction of each other improvement on the Property, or any repair or alteration thereto, the Lessee shall give the Secretary ten (10) days advance notice in writing of intention to begin said activity, in order that nonresponsibility notices may be posted and recorded as provided by State and local laws. Lessor hereby authorizes the Secretary to post said notices on Lessor's behalf. Nothing contained herein shall be construed as a -3- waiver of immunity of trust property from mechanics' nonresponsibility notices while the Leased Premises are in a trust status. ARTICLE 8 --------- PUBLIC LIABILITY INSURANCE -------------------------- At all times during the terms of this Lease, Lessee shall carry a public liability insurance policy in commercially reasonable amounts. Said policy is to be written jointly to protect Lessee and Lessor. Evidence, acceptable to the Secretary, of such coverage or a change in coverage shall be furnished to Yakama Agency Superintendent, as an authorized representative of the Secretary. Should Lessee sublease the Leased Premises, the sublease therefor may contain a provision shifting responsibility for carrying the insurance provided for in this article to Lessee's lessee thereunder, provided that Lessee and Lessor herein are named covered parties to such insurance. ARTICLE 9 --------- FIRE AND DAMAGE INSURANCE ------------------------- Lessee shall, from the date of approval of this Lease, carry fire insurance with extended coverage endorsements, to include, without limitation, vandalism, jointly in the names of Lessee and Lessor, covering the full value of all improvements and buildings on the Leased Premises. Evidence, acceptable to the Secretary, of such coverage or a change in coverage shall be furnished to an authorized representative of the Secretary. Should Lessee sublease the Leased Premises, the sublease therefor may contain a provision shifting responsibility for carrying the insurance provided for in this Article to Lessee's lessee thereunder, provided that Lessee and Lessor herein are named covered parties to such insurance. Premiums will be paid as an operating expense of the Enterprise. Lessee shall deposit with the Secretary evidence, acceptable to the Secretary, that said premiums or other charges have been paid. Lessee hereby agrees that damage to or destruction of the Leased Premises (or any portion thereof) where the proceeds received from insurance are being applied towards reconstruction in accordance with the Security Agreement shall not cause termination of this Lease or authorize the Lessee or those claiming by, through, or under it to quit or surrender possession of said lands or any part thereof, and shall not release the Lessee in any way from its liability to pay Lessor the considerations hereinabove provided for or from any other agreements, covenants, or conditions of this Lease. If damage to or destruction of the Leased Premises (or any portion thereof) occurs and there are no insurance proceeds or the insurance proceeds are not being -4- applied toward reconstruction in accordance with the Security Agreement, Lessee may elect to either terminate this Lease as of the date the damage occurred, or repair the damage, in which case this Lease shall remain in full force and effect. The Term shall be extended to account for the time required to reconstruct the portion of the Facility damaged and being reconstructed in accordance herewith. ARTICLE 10 ---------- REMOVAL OF IMPROVEMENTS ----------------------- All buildings and improvements, excluding removable personal property and trade fixtures of Lessee and any sublessee (including, without limitation, any Collateral in which Lessee continues to hold an interest pursuant to the Security Agreement), on the Leased Premises shall remain on the Leased Premises after termination of this Lease and shall thereupon become the property of the Lessor. The term "removable personal property and trade fixtures" as used in this Article shall not include property, other than the Collateral, which normally would be attached or affixed to the buildings, improvements, or land in such a way that it would become a part of the realty, regardless of whether such property is in fact so placed in, or on, or affixed to the buildings, improvements, or land in such a way as to legally retain the characteristics of personal property. Personal property and trade fixtures of Lessee and any sublessee (including, without limitation the Collateral) may be removed by Lessee and/or any sublessee at any time during the term of this Lease or within ninety (90) days after termination of this Lease or within such other reasonable time after the termination of this Lease as may be agreed upon between Lessor and Lessee and/or any sublessee. If Lessee and/or any sublessee fails to remove the same within ninety (90) days after termination of this Lease, or such other reasonable time as agreed upon, said fixtures and property shall be deemed abandoned and shall become the property of Lessor. ARTICLE 11 ---------- CONSTRUCTION, MAINTENANCE, REPAIR, ALTERATION --------------------------------------------- Subject to Article 7 (Nonresponsibility Notices) of this Lease and approval of the Lessor, the Lessee shall have the right at any time during the term of this Lease to make alterations, additions, or repairs to any improvement or building on the Leased Premises with a cost not in excess of $100,000 in any year or otherwise with the consent of Lessor. Except in connection with alterations, additions or repairs pursuant to the preceding sentence the development of the Facility in accordance with the plans and specifications therefor, removal or demolition of any improvement or building on the Leased Premises shall not be made without the prior approval of the Lessor. The Lessee shall at all times during the term of this Lease maintain the Leased Premises in good -5- order and repair and in a neat, sanitary and attractive condition and in compliance with Applicable Laws. ARTICLE 12 ---------- RENTAL BOND ----------- Upon the occurrence of an Event of Default under this Lease or if Lessee is consistently delinquent in making its rental payments hereunder, the Secretary may require the Lessee to post a bond satisfactory to the Secretary in a sum of not less than the succeeding 3 months' rent, which bond shall be deposited with the Secretary. Any other type of security which may be offered by Lessee to satisfy the requirement of this Article will be given reasonable consideration by the Secretary, but it is agreed that acceptance of other security shall be at the sole discretion of the Lessor and the Secretary. It is agreed that bond required by this provision will guarantee payment of rent only. ARTICLE 13 ---------- COMPANIES BONDING AND INSURING ------------------------------ All corporate surety bonds provided by Lessee in compliance with this Lease shall be furnished by companies holding certificates of authority from the Secretary of the Treasury as acceptable sureties of Federal bonds. Insurance policies shall be furnished and maintained by such responsible companies as are rate A plus--Class XI or better in the current edition of Best's Insurance Guide. ARTICLE 14 ---------- SUBLEASE, ASSIGNMENT, TRANSFER ------------------------------ The Lessee shall not, unless otherwise expressly authorized herein, sublease, assign or transfer any right to or interest in this Lease to any Person other than an Affiliate without the written consent of the Lessor and approval of the Secretary and sureties. No such sublease, assignment or transfer shall be valid or binding without said consent and approval and then only upon the condition that sublessee has agreed in writing that in the event of conflict between the provisions of this Lease and of said sublease, the provisions of this Lease shall prevail. The term of any sublease shall not exceed the term of this Lease. No sublease shall release the Lessee from any obligation under this Lease or substitute the sublessee for the Lessee hereunder. Any sublease made, except as aforesaid shall be deemed a breach of this Lease. -6- Lessor and the Secretary, in approving this Lease, acknowledge and consent in advance to Lessee's sublease of the Leased Premises to the Tribal Corporation pursuant to the Sublease. The parties acknowledge and agree that the Tribal Corporation will assume Lessee's obligations under this Lease pursuant to the Sublease submitted herewith to the Secretary for approval. If a proposal to assign this Lease to a qualified assignee or other successor in interest is submitted while a default in this Lease exists, neither the Secretary nor the Lessor will be obligated to consider said proposal until the Lease is restored to good standing. ARTICLE 15 ---------- STATUS OF SUBLEASES ------------------- Termination of this Lease, by cancellation or otherwise, shall not serve to cancel approved sublease and/or subtenancies (including, without limitation, the Sublease), but shall operate as an assignment to Lessor of any and all such subleases and/or subtenancies. ARTICLE 16 ---------- AGREEMENTS FOR UTILITY FACILITIES --------------------------------- Upon entering into any agreements with public utility companies and the State or any of its political subdivisions to provide utility services to the Leased Premises, the Lessee shall furnish the Lessor and the Secretary with executed copies thereof together with a plat or diagram showing the true location of the utility lines to be constructed. ARTICLE 17 ---------- RIGHTS OF WAY FOR STREETS AND UTILITY EASEMENTS ----------------------------------------------- Any rights of way for streets and utility facilities for the enjoyment and development of the Lease Premises shall be granted by the Secretary in accordance with the approved general development plan and pursuant to the Act of February 5, 1948 (62 Stat. 17), and any amendment thereto, and as implemented by regulations appearing in Title 25, INDIANS, Code of Federal Regulations, at Part 169. -7- ARTICLE 18 ---------- ENCUMBRANCE ----------- This Lease, or any right to or interest in this Lease, or any of the Leased Premises, may not be encumbered by the Lessee without the written approval of the Secretary and the Lessor. ARTICLE 19 ---------- IMPOSITIONS ----------- Lessee shall pay all taxes, license and permit fees, charges for public utilities of any kind including, both utilities supplied by Governmental authorities and utilities supplied by private companies, and obligations for any and all other Governmental charges, general and special, ordinary and extraordinary, unforeseen as well as foreseen, of any kind and nature whatsoever, including, but not limited to, assessments for sidewalks, streets, sewers, water, or any public improvements, and any other improvements or benefits which shall, prior to the Effective Date, be made, assessed, levied, or imposed upon, or become due and payable in connection with or a lien upon, the Leased Premises, or any part thereof, (all of such items being herein referred to as "Impositions") prior to any fine, penalty, interest or other charge which may be added thereto for the nonpayment thereof being assessed. Impositions shall be deemed to be operating expenses of the Enterprise and shall be paid and accounted for as such. Any Imposition, or part thereof properly allocable to periods before or after the Term, shall be equitably apportioned between Lessor and Lessee. The parties agree to send promptly to the other party copies of any notices in respect of any Imposition, and to furnish to the other party, upon specific request in each instance, official receipts of the proper taxing or other Governmental authorities or other satisfactory proof, evidencing the full payment of that party's share any and all such Impositions. ARTICLE 20 ---------- DEFAULT ------- In the event of default by Lessee in any of the terms and provisions of this Lease, Lessee shall be given notice citing the defaults in the Lease and allowing Lessee, thirty (30) days from receipt of said notice to cure such default or show cause (including, without limitation, pursuant to Article 34 (Sublessee Responsibility) hereof why this Lease should not be cancelled. Lessor and the Secretary may grant a reasonable extension of time is Lessee so requests. -8- If Lessee fails to cure such default or show cause why this Lease should not be cancelled, the Secretary may terminate the Lease and the Lessee shall quit and surrender the Leased Premises to Lessor. The Secretary may proceed by suit or otherwise to enforce collection or rents or compliance with other obligations or provisions of the Lease. Any action taken or suffered by Lessee as a debtor under any insolvency or bankruptcy act shall constitute a breach of this Lease, and in such event, subject to the provisions of the Bankruptcy Act of the United States, the Lessor or the Secretary may enter the premises and remove all persons and property therefrom, excluding the persons and property belonging to authorized sublessees and may relet the premises without terminating this Lease. ARTICLE 21 ---------- LESSEE'S OBLIGATIONS -------------------- Because the Leased Premises are held in trust by the United States, all of the Lessee's obligations under this Lease and the obligations of Lessee's sureties, are to the United States as well as to the Lessor. Lessee shall furnish the Secretary and Lessor documentary evidence of any change in name or structure of its organization within thirty (30) days of such change. Lessee shall also keep the Lessor and the Secretary informed of any change of person and/or persons authorized to represent Lessee and execute documents on behalf of Lessee and shall furnish the Secretary documentary evidence of such change in authority within ten (10) days of any such change. ARTICLE 22 ---------- NOTICES ------- Any notice required to be given pursuant to this Lease shall be delivered by overnight courier or U.S. Express Mail with notice deemed effective on the later of the first business day after deposit or the day on which the courier confirms delivery, addressed as follows: (a) If to Lessor: The Confederated Tribes and Bands of the Yakama Indian Nation P.O. Box 151 Toppenish, Washington 98948 -9- With a copy to: Levine & Associates 2049 Century Park East, Suite 710 Los Angeles, CA 90017 Attn: Jerome Levine, Esq. (b) If to Lessee: c/o Hollywood Park, Inc. 1050 South Prairie Avenue Inglewood, CA 90301 Attn: Chief Financial Officer With simultaneous copies to: Irell & Manella LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, CA 90067 Attn: Alvin Segel, Esq. or to such other address(es) as the parties provide to each other in writing. ARTICLE 23 ---------- INSPECTION ---------- The Secretary and the Lessor or their authorized representative shall have the right, at any reasonable times upon one (1) day's advance written notice during the term of this Lease to enter upon the Leased Premises to inspect the same. ARTICLE 24 ---------- DELIVERY OF PREMISES -------------------- At the termination or expiration of this Lease, Lessee will peaceably and without legal process deliver up the possession of the Leased Premises in good condition. Holding over by Lessor after the termination or expiration of this Lease shall not constitute a renewal or extension thereof. -10- ARTICLE 25 ---------- LEASE BINDING AND PRIORITY OF LEASE ----------------------------------- This Lease and the covenants, conditions and restrictions hereof shall extend to, be binding upon and inure to the benefit of the successors, heirs, assigns, executors and administrators of the parties hereto, and the provisions of such agreement(s) conflict with this Lease, the terms of this Lease shall prevail. ARTICLE 26 ---------- INTEREST OF MEMBER OF CONGRESS ------------------------------ No member of, or delegate to, Congress, shall be admitted to any share or part of this Lease or to any benefit that may arise herefrom, but his provision shall not be construed to extend to this contract if made with a corporation or company for its general benefit. ARTICLE 27 ---------- VALIDITY -------- This Lease, and any modification or amendment to this Lease, shall not be valid or binding upon either party hereto until approved by the Secretary. Additionally, approval of any proposed modification or amendment to this Lease may not be considered by the Lessor or the Secretary unless the Lease is in good standing. ARTICLE 28 ---------- APPROVAL BY LESSOR AND/OR SECRETARY ----------------------------------- Whenever under the terms of this Lease the acceptance, consent or approval of the Lessor and/or the Secretary is required, said acceptance, consent or approval shall not be unreasonably withheld. ARTICLE 29 ---------- FORCE MAJEURE ------------- Whenever under this instrument a time is stated within which or by which original construction, repairs or reconstruction of said improvements shall be completed, and if during such period a general or sympathetic strike or lockout, war or rebellion or -11- some other event occurs that is beyond Lessee's power to control, the period of delay so caused shall be added to the period allowed herein for the completion of such work. This provision is in no way intended to extend the term of this Lease. ARTICLE 30 ---------- ENVIRONMENTAL PROTECTION REQUIREMENTS ------------------------------------- It is agreed that it shall be the responsibility of the Lessee to satisfy all applicable environmental protection requirements as set forth in the National Environmental Policy Act of 1969 and its implementing regulations. It is further agreed that Lessee will furnish the Secretary, at Lessee's sole cost and expense, a copy of all environmental assessments and/or environmental impact statements received by Lessee with respect to the Property. ARTICLE 31 ---------- ARCHAEOLOGICAL, CULTURAL AND HISTORIC RESOURCES PROTECTION ---------------------------------------------------------- Lessee agrees that whenever in the course of construction on the Leased Premises involving ground disturbing activities, a qualified archaeologist (specified at 43 C.F.R. 7.8) will monitor to insure that if archaeological or historical resources are uncovered, the construction activity shall immediately be halted and the involved area evaluated regarding the significance of the discovered resource. Within 12 hours of the discovery, the Superintendent of the Yakama Agency shall immediately be notified by the Lessee's archaeologist. Upon notification of the discovery, the Superintendent, or his designee, will initiate a preliminary resource assessment. At the completion of the assessment, the Bureau of Indian Affairs will initiate consultation with the State Historic Preservation Officer and the Advisory Council on Historic Preservation pursuant to the required procedures at 36 C.F.R. 800 (Protection of Historic Properties) and specifically at 36 C.F.R. 800.11 (Properties discovered during implementation of an undertaking) to determine the disposition of the resource. The Lessee will comply with any mitigation measures determined appropriate as a result of the consultation completed pursuant to 36 C.F.R. 800.11. The cost of any required archaeological evaluation, mitigation, analysis, and curation shall be borne by the Lessee. To the extent that performance of the obligations contained in this Article results in any suspension of development of the Facility or the Enterprise, the Term shall be extended by a like amount. -12- ARTICLE 32 ---------- TERMINATION OF FEDERAL TRUST ---------------------------- Nothing contained in this Lease shall operate to delay or prevent a termination of Federal trust responsibilities with respect to the land by the issuance of a fee patent or otherwise during the term of the Lease; however, such termination shall not serve to abrogate the Lease. The owners of the land and the Lessee and his surety or sureties shall be notified of any such change in the status of the land. ARTICLE 33 ---------- UNLAWFUL USE ------------ The Lessee agrees not to use or cause to be used any part of the Leased Premises for any unlawful conduct or purpose. ARTICLE 34 ---------- SUBLESSEE RESPONSIBILITY ------------------------ Should Lessee sublease the Leased Premises (including, without limitation, pursuant to the Sublease), the sublease therefor may contain a provision shifting all of the responsibilities of Lessee hereunder to Lessee's lessee thereunder. To the extent that any failure to comply with this Lease arises as a consequence of Sublessee's failure to perform such shifted responsibilities, such failure shall not constitute an Event of Default hereunder. ARTICLE 35 ---------- TERMINATION BY LESSEE --------------------- Upon the occurrence of an Event of Default by Lessor and/or Sublessee under any of the Loan Documents and/or the Transaction Documents, Lessee, in addition to and without limitation of any rights it may have pursuant hereto, thereto or Applicable Laws shall be entitled to terminate and cancel this Lease and from and after such termination shall have no further liability hereunder. -13- ARTICLE 36 ---------- LIMITED WAIVER OF SOVEREIGN IMMUNITY ------------------------------------ 1. Retention of Sovereign Immunity. By this Agreement, Lessor does ------------------------------- not waive, limit or modify its sovereign immunity from unconsented suit or proceedings in arbitration, except as provided in this Article. 2. Scope of Waiver. Subject to the provisions of this Article, --------------- Lessor hereby expressly grants to Lessee and the other Persons within the scope of Article 36, Section 5, a limited waiver of its sovereign immunity from unconsented suit and proceedings in arbitration, its right to require exhaustion of Tribal remedies, its right to seek Tribal remedies and its right to be sued in the Courts of the Nation, as such Courts are or may be established, and consents to suit in accordance with this Article. 3. Procedural Requirements. Lessor grants a limited waiver of its ----------------------- sovereign immunity as to suit involving a claim if, and only if, each and every one of the following conditions is met: a. The claim is made by a party designated under Article 36, Section 5, and not by any other Person; b. The claim alleges a breach by Lessor of one or more of the specific obligations or duties expressly assumed by Lessor under the terms of this Agreement or the other Transaction Documents; c. The claim seeks: (i) some specific action, or discontinuance of some action, by Lessor or the Enterprise to bring Lessor into full compliance with the duties and obligations expressly assumed by Lessor under this Agreement or the other Transaction Documents; or (ii) money damages for noncompliance with the terms and provisions of this Agreement or the other Transaction Documents. d. The claim is made in a detailed written statement to Lessor stating the specific action or discontinuance of action by Lessor or the Enterprise which would cure the alleged breach or non-performance, or the sum of money claimed to be due and owing from Lessor to Lessee by reason of such specific breach or non-performance, and, except where Lessee is seeking injunctive relief, Lessor shall have thirty (30) calendar days to cure such breach or non-performance or to make such payment before arbitration or judicial proceedings may be instituted. 4. Time Period. With respect to any claim authorized in this ----------- Article, initial judicial proceedings, as authorized herein, shall be commenced within the -14- later of two (2) years after the claim accrues or one year after the claim is discovered, or such claim shall be forever barred. The waiver granted herein shall commence on the Execution Date and shall continue for two years following the expiration, termination, or cancellation of this Agreement or the other Transaction Documents (whichever is later), except that the waiver shall remain effective for any proceedings then pending, and all appeals therefrom. 5. Recipient of Waiver. The recipients of the benefit of this ------------------- waiver of sovereign immunity are limited to Lessee, its successors and assigns. 6. Federal Question. The parties agree that any dispute raised ---------------- under the provisions of this Article shall be resolved first pursuant to applicable federal law, and if no federal law applies, pursuant to the applicable laws of the State. 7. Service of Process. In any proceeding brought pursuant to this ------------------ Article, Lessor consents to service made in accordance with the notice provisions of this Agreement. 8. Enforcement. Lessor waives its sovereign immunity from a ----------- judgment or order consistent with the terms and provisions of this Article, which is final because either the time for appeal thereof has expired or the judgment or order is issued by a court having final appellate jurisdiction over the matter. Lessor consents to the jurisdiction of the United States District Court for the Eastern District of Washington and any court having appellate jurisdiction thereover, consistent with the terms and conditions of this Article. None of the parties shall object to the jurisdiction or venue of said federal court. Without in any way limiting the generality of the foregoing, Lessor expressly authorizes any Governmental authorities who have the right and duty under Applicable Law to take any action authorized by any court, to take such action to give effect to any judgment entered against Lessor, including, without limitation, entering on to the Property, or any other lands within Lessor's jurisdiction, and the Facility to seize possession of any Collateral for the purpose of giving effect to any judgment entered against Lessor pursuant to this Article. 9. Assets Pledged to Satisfy Enforcement Proceedings. The foregoing ------------------------------------------------- limited waiver of sovereign immunity is expressly conditioned on the parties' agreement, set forth herein, that the only assets, including property and funds, which shall be available, and which are thus specifically pledged and assigned hereby, to satisfy any enforcement proceedings or judgment in connection with this Agreement, or any other Transaction Document, shall be limited to (i) the Collateral, and (ii) possession of the Leased Premises as provided herein. 10. Limitation Upon Enforcement. Damages awarded against Lessor or --------------------------- the Enterprise shall be satisfied solely from assets specified in Article 36, Section 9, and shall not constitute a lien upon or be collectible from any other income or assets of Lessor, except with the written consent of Lessor. -15- 11. Expenses of Judicial Enforcement. Except as ordered by a court -------------------------------- of competent jurisdiction, all parties shall bear their own costs, including attorneys' fees, in connection with any judicial proceedings authorized under this Agreement. The parties expressly agree that this provision shall survive the termination, for any reason, or expiration of this Agreement. 12. Guaranty. Lessor agrees not to revoke or limit, in whole or in -------- part, the limited waiver of sovereign immunity of Lessor contained in this Article or in any way attempt to revoke or limit, in whole or in part, such limited waiver of sovereign immunity. In the event of any such revocation or attempted revocation, the parties expressly recognize and agree that there remains no adequate remedy at law available to Lessee, and Lessor hereby consents to the entry of appropriate injunctive relief consistent with the terms and conditions of this Agreement, as may be granted by any court of competent jurisdiction. -16- IN WITNESS WHEREOF, the parties hereto sign and execute this document, as of the date first noted above, as authorized representative of their respective parties: THE CONFEDERATED TRIBES AND BANDS OF THE YAKAMA INDIAN NATION, a federally-recognized Indian Tribe By: __________________________________ Name:_________________________________ Title: _______________________________ SECRETARY OF INTERIOR By: __________________________________ Name:_________________________________ Title: ______________________________ HP YAKAMA, INC., a Delaware corporation By: __________________________________ Name:_________________________________ Title:________________________________ -17- ACKNOWLEDGMENTS TO LEASE ------------------------ State of Washington : : SS County of Yakima : On this ____ day of _______________, 1997, before me, the undersigned Notary Public, appeared The Confederated Tribes and Bands of the Yakama Indian Nation, by and through _______________, its _______________, personally known to be, or proved to me on the basis of satisfactory evidence to be, the person who executed the attached document as the authorized representative of The Confederated Tribes and Bands of the Yakama Indian Nation, who swore that the same was an act of his own free will and of the free will of The Confederated Tribes and Bands of the Yakama Indian Nation. ____________________________ Notary Public State of __________ : : SS County of _________ : On this ____ day of _______________, 1997, before me, the undersigned Notary Public, appeared HP Yakama, Inc., a _______ corporation, by and through _______________, its ______________________, personally known to be, or proved to me on the basis of satisfactory evidence to be, the person who executed the attached document as the authorized representative of HP Yakama, Inc., who swore that the same was an act of his own free will and of the free will of HP Yakama, Inc. ____________________________ Notary Public -18- SUBLEASE By and Between HP YAKAMA, INC. and YAKAMA TRIBAL GAMING CORPORATION September 11, 1997 SUBLEASE This SUBLEASE (this "Sublease") is made this 11th day of September, 1997, by and between HP YAKAMA, INC., a Delaware corporation ("Sublessor"), and Yakama Tribal Gaming Corporation (the "Tribal Corporation"), a tribal corporation established under the laws of THE CONFEDERATED TRIBES AND BANDS OF THE YAKAMA INDIAN NATION (the "Nation"), a federally recognized Indian tribe located in the State of Washington, with reference to the following facts and circumstances: A. Sublessor is leasing the Leased Premises (as defined in the Master Lease (as defined hereinafter)) from the Tribal Corporation pursuant to that certain Master Lease dated as of the date first set forth above by and between the Nation and the Sublessor (the "Master Lease") (all capitalized terms used herein without definition shall have the respective meanings ascribed thereto in the Master Lease). B. Sublessor is subleasing the Leased Premises to the Tribal Corporation upon the terms and conditions set forth herein, including, without limitation, the Nation's assumption of all of Sublessor's obligations under the Master Lease. NOW, THEREFORE, Sublessor, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, for the execution and performance of the Loan Documents and the other Transaction Documents and the covenants, agreements and conditions contained in this Sublease to be performed and kept by the Tribal Corporation, does hereby let and rent to the Tribal Corporation, and the Tribal Corporation does hereby take and hire as tenant of Sublessor, the Leased Premises, upon the terms and conditions set forth in this Sublease. ARTICLE I PRELIMINARY PROVISIONS 1.1 The Tribal Corporation. The Tribal Corporation represents and warrants ---------------------- that it has full right, power and authority to enter into this Sublease. 1.2 Notices. Any notice required to be given pursuant to this Sublease shall ------- be delivered by overnight courier or U.S. Express Mail with notice deemed effective on the later of the first business day after deposit or the day on which the courier confirms delivery, addressed as follows: (a) If to the Tribal Corporation: YAKAMA TRIBAL GAMING CORPORATION c/o The Confederated Tribes and Bands of the Yakama Indian Nation P.O. Box 151 Toppenish, Washington 98948 -1- With a copy to: The Confederated Tribes and Bands of the Yakama Indian Nation P.O. Box 151 Toppenish, Washington 98948 Attention: Chairperson, Tribal Council and: Levine & Associates 2049 Century Park East, Suite 710 Los Angeles, CA 90017 Attn: Jerome Levine, Esq. (b) If to Sublessor: c/o Hollywood Park, Inc. 1050 South Prairie Avenue Inglewood, CA 90301 Attn: Chief Financial Officer With simultaneous copies to: Irell & Manella LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, CA 90067 Attn: Alvin Segel, Esq. or to such other address(es) as the parties provide to each other in writing. 1.3 Assumption of Master Lease Obligations. The Tribal Corporation hereby -------------------------------------- assumes each and every obligation of Sublessor, as lessee, under the Master Lease. Without limitation of the foregoing, the Tribal Corporation hereby acknowledges and agrees that all responsibilities under the Master Lease have shifted to the Tribal Corporation and the Tribal Corporation has full responsibility with respect thereto (including, without limitation, all obligations with respect to payment of rents, completion of development of the Facility, insurance, indemnification, accounting and audits, bonding, maintenance, environmental conditions and reports and encumbrances). ARTICLE II TERM 2.1 Term. The term of this Sublease (the "Term") shall commence on the ---- Effective Date and shall continue thereafter, unless sooner terminated in accordance with the -2- provisions hereof, through and including the seventh (7th) anniversary of the Commencement Date (the "Lease Termination Date"); provided, however, that the -------- ------- Term (i) shall be extended to the same extent that the term of the Master Lease is extended pursuant to Article 9 thereof, (ii) shall, at Sublessor's option, be extended by the number of days of any period during which the Tribal Corporation and/or Nation is in material default under any of the Loan Documents and/or the Transaction Documents and rent shall continue to be payable hereunder during such extension period, and (iii) this Sublease shall terminate and be of no force and effect if the Effective Date has not occurred on or before August 1, 1998. 2.2 Surrender of the Leased Premises. On the Lease Termination Date, or upon -------------------------------- the sooner termination of this Sublease pursuant to the provisions hereof, the Tribal Corporation shall peaceably and quietly leave, surrender and yield up to Sublessor the Leased Premises, broom clean and in good order and condition, reasonable wear and tear excepted; provided, however, that the Tribal -------- ------- Corporation shall have the right to remove personal property to the extent such property is not required to remain on the Leased Premises pursuant to the Master Lease. ARTICLE III RENTALS 3.1 Rent. ---- (a) During the Term, the Tribal Corporation shall pay to Sublessor, at the address set forth herein and in lawful money of the United States, monthly payments ("Sublease Rent") in an amount equal to the applicable percentage of Net Revenues for the preceding month set forth below: (i) Twenty-eight percent (28%), until such time as the aggregate Net Revenues which have accrued since the Commencement Date equal $26,000,000; (ii) Twenty-five percent (25%), until such time as the aggregate Net Revenues which have accrued since the Commencement Date equal $41,000,000; and (iii) Twenty-two percent (22%) after such time as the aggregate Net Revenues exceed $41,000,000; provided, however, that in the event that the Tribal Corporation fully repays - -------- ------- the Loan before the maturity thereof, the applicable percentage of Net Revenues payable as Sublease Rent shall be reduced from the date of such repayment by three percent (3%); provided, further, that no such reduction shall be made in -------- ------- the applicable percentage of Net Revenues payable as Sublease Rent prior to the fifth anniversary of the Commencement Date. -3- (b) Rental payments due hereunder shall be payable, in arrears, with the first monthly rental payment due on the twentieth (20th) day of the first complete month following the month in which the Commencement Date occurs, and continuing on the twentieth (20th) day of each month thereafter. Sublease Rent shall be payable solely out of and to the extent of Available Distributable Cash. Sublease Rent which is earned but not paid shall be accrued without interest. Payments of Sublease Rent shall be based on the following priority of payments: (i) principal amounts on the Loan that were previously accrued but unpaid; (ii) principal amounts on the Loan that are currently due and payable; (iii) Sublease Rent that was previously accrued but unpaid; and (iv) Sublease Rent that is currently due and payable. (c) All Sublease Rent accrued but unpaid because of insufficient Available Distributable Cash and still unpaid more than thirty-one (31) days (extended by the number of days of any period during which the Tribal Corporation and/or Nation is in material default under any of the Loan Documents and/or the Transaction Documents) after the seventh anniversary of the Commencement Date shall no longer be payable. ARTICLE IV USE and OCCUPANCY 4.1 Use of the Facility. The Tribal Corporation shall use the Leased Premises ------------------- solely for the establishment and operation of the Enterprise in accordance with the provisions of Applicable Laws and the Master Lease. 4.2 Maintenance and Repairs. The Tribal Corporation shall make or cause to be ----------------------- made all necessary repairs, alterations and/or replacements thereto, interior, exterior, structural and nonstructural, reasonable wear and tear excepted. All such repairs, alterations and replacements shall be equal in quality to the original work. Further, the Tribal Corporation shall keep the sidewalks, curbs, entrances, passageways and areas adjoining or appurtenant to the Facility in a clean and orderly condition, free of snow, ice, rubbish and obstruction. Any and all expenses incurred in connection with the performance of the obligations imposed under this Section shall be deemed an operating expense of the Enterprise. 4.3 Right to Enter. Sublessor shall have access to the Facility in company -------------- with an agent of the Tribal Corporation at any and all reasonable times for the purpose of inspecting the Facility, or for the purpose of carrying out Sublessor's rights described in this Sublease, subject to the security requirements of the Enterprise. ARTICLE V IMPROVEMENTS -4- 5.1 Quality. Any construction, maintenance and repair work, alterations, or ------- replacements to the Facility shall be of first class quality in accordance with the Master Lease. 5.2 Liens. The Tribal Corporation shall have no authority, express or implied ----- to create or place any lien or encumbrance, of any kind or nature whatsoever, upon, or in any manner to bind the interest of Sublessor in the Leased Premises. Sublessor will pay promptly all sums legally due and payable by Sublessor on account of any labor performed, or on account of any material supplied, to the Leased Premises as to which any lien is or legally can be asserted against the Leased Premises. ARTICLE VI INSURANCE The parties agree that at all times during the Term, the Tribal Corporation shall obtain and maintain such insurance coverage for the Facility as is required pursuant to the Loan Agreement and the Master Lease. ARTICLE VII ENCUMBRANCES The Tribal Corporation shall have no right or privilege to mortgage or otherwise encumber its interest, in whole or in part in the Leased Premises without the express, written consent of Sublessor, which consent, or the denial thereof, shall be in Sublessor's sole and absolute discretion. ARTICLE VIII ASSIGNMENT AND SUBLETTING. The Tribal Corporation shall not, unless otherwise expressly authorized herein, sublease, assign or transfer any right to or interest in this Sublease to any Person other than an Affiliate without the written consent of the Lessor and approval of the Secretary and sureties. No such sublease, assignment or transfer shall be valid or binding without said consent and approval and then only upon the condition that sublessee has agreed in writing that in the event of conflict between the provisions of this Sublease and of said sublease, the provisions of this Sublease shall prevail. The term of any sublease shall not exceed the term of this Sublease. No sublease shall release the Tribal Corporation from any obligation under this Sublease or substitute the sublessee for the Tribal Corporation hereunder. Any sublease made, except as aforesaid shall be deemed a breach of this Sublease. -5- ARTICLE IX EVENTS OF DEFAULT; RIGHTS AND REMEDIES 9.1 Event of Default. Any one or more of the following events shall constitute ---------------- an Event of Default hereunder: (a) Failure to pay any amount or any part thereof payable by the Tribal Corporation under this Sublease or the Master Lease (including, without limitation, rental payments hereunder, payments of Impositions and payment of rent owing under the Master Lease) within five (5) days of when due and payable. (b) Any set of facts which would cause the Secretary to cancel this Sublease, pursuant to any Applicable Law (including, without limitation, 25 U.S.C. (S) 415 and regulations promulgated thereunder). (c) Any other act or omission in breach of the terms hereof which act or omission shall continue for a period of fifteen (15) days after written notice specifying such omission or breach and requesting that it be remedied, unless Sublessor has agreed in writing to an extension of such time prior to its expiration, or for such longer period as may be reasonably necessary to remedy such act or omission, provided that the Tribal Corporation is proceeding with reasonable diligence to remedy the same. (d) An Event of Default under any of the Loan Documents or the other Transaction Documents. 9.2 Notice of Termination. In the event that an Event of Default occurs and is --------------------- not cured, then the Term shall expire and terminate with the same force and effect as though the date so specified were the Lease Termination Date, and Sublessor shall have the remedies with respect to the Leased Premises set forth below. 9.3 The Tribal Corporation's Obligations upon Termination. Upon the expiration ----------------------------------------------------- or termination of this Sublease, without limitation of any and all rights and remedies available to Sublessor pursuant to Applicable Laws (including, without limitation, the right to evict Tribal Corporation from the Leased Premises) which rights are expressly reserved by and made available to Sublessor hereby, the Tribal Corporation shall quit and peaceably surrender the Leased Premises, without any payment by Sublessor, without further notice, any and all notice to quit, notice of intention to re-enter or any other notices and any institution of legal proceedings being hereby waived. ARTICLE X LIMITED WAIVER OF SOVEREIGN IMMUNITY 10.1 Limited Waiver of Sovereign Immunity. ------------------------------------ -6- 10.1.1 Retention of Sovereign Immunity. By this Agreement, the ------------------------------- Tribal Corporation does not waive, limit or modify its sovereign immunity from unconsented suit or proceedings in arbitration, except as provided in this Article. 10.1.2 Scope of Waiver. Subject to the provisions of this --------------- Article, the Tribal Corporation hereby expressly grants to Sublessor and the other Persons within the scope of Article X, Section 10.1.5, a limited waiver of its sovereign immunity from unconsented suit and proceedings in arbitration, its right to require exhaustion of Tribal remedies, its right to seek Tribal remedies and its right to be sued in the Courts of the Nation, as such Courts are or may be established, and consents to suit in accordance with this Article. 10.1.3 Procedural Requirements. the Tribal Corporation grants ----------------------- a limited waiver of its sovereign immunity as to suit involving a claim if, and only if, each and every one of the following conditions is met: (a) The claim is made by a party designated under Article X, Section 10.1.5, and not by any other Person; (b) The claim alleges a breach by the Tribal Corporation of one or more of the specific obligations or duties expressly assumed by the Tribal Corporation under the terms of this Agreement or the other Transaction Documents (including, without limitation, all indemnification obligations hereunder); (c) The claim seeks: (i) some specific action, or discontinuance of some action, by the Tribal Corporation or the Enterprise to bring the Tribal Corporation into full compliance with the duties and obligations expressly assumed by the Tribal Corporation under this Agreement or the other Transaction Documents; or (ii) money damages for noncompliance with the terms and provisions of this Agreement or the other Transaction Documents (including, without limitation, all indemnification obligations hereunder). (d) The claim is made in a detailed written statement to the Tribal Corporation stating the specific action or discontinuance of action by the Tribal Corporation or the Enterprise which would cure the alleged breach or non-performance, or the sum of money claimed to be due and owing from the Tribal Corporation to Sublessor by reason of such specific breach or non-performance, and, except where Sublessor is seeking injunctive relief, the Tribal Corporation shall have thirty (30) calendar days to cure such breach or non-performance or to make such payment before arbitration or judicial proceedings may be instituted. 10.1.4 Time Period. With respect to any claim authorized in ----------- this Article, initial judicial proceedings, as authorized herein, shall be commenced within the -7- later of two (2) years after the claim accrues or one year after the claim is discovered, or such claim shall be forever barred. The waiver granted herein shall commence on the Execution Date and shall continue for two years following the expiration, termination, or cancellation of this Agreement or the other Transaction Documents (whichever is later), except that the waiver shall remain effective for any proceedings then pending, and all appeals therefrom. 10.1.5 Recipient of Waiver. The recipients of the benefit of ------------------- this waiver of sovereign immunity are limited to Sublessor, its successors and assigns and any and all Persons covered by the indemnification provisions hereof. 10.1.6 Federal Question. The parties agree that any dispute ---------------- raised under the provisions of this Article shall be resolved first pursuant to applicable federal law, and if no federal law applies, pursuant to the applicable laws of the State. 10.1.7 Service of Process. In any proceeding brought pursuant ------------------ to this Article, the Tribal Corporation consents to service made in accordance with the notice provisions of this Agreement. 10.1.8 Enforcement. the Tribal Corporation waives its ----------- sovereign immunity from a judgment or order consistent with the terms and provisions of this Article, which is final because either the time for appeal thereof has expired or the judgment or order is issued by a court having final appellate jurisdiction over the matter. the Tribal Corporation consents to the jurisdiction of the United States District Court for the Eastern District of Washington and any court having appellate jurisdiction thereover, consistent with the terms and conditions of this Article. None of the parties shall object to the jurisdiction or venue of said federal court. Without in any way limiting the generality of the foregoing, the Tribal Corporation expressly authorizes any Governmental authorities who have the right and duty under Applicable Law to take any action authorized by any court, to take such action to give effect to any judgment entered against the Tribal Corporation, including, without limitation, entering on to the Property, or any other lands within the Tribal Corporation's or the Nation's jurisdiction, and the Facility to seize possession of any Collateral for the purpose of giving effect to any judgment entered against the Tribal Corporation pursuant to this Article. 10.1.9 Assets Pledged to Satisfy Enforcement Proceedings. The ------------------------------------------------- foregoing limited waiver of sovereign immunity is expressly conditioned on the parties' agreement, set forth herein, that the only assets, including property and funds, which shall be available, and which are thus specifically pledged and assigned hereby, to satisfy any enforcement proceedings or judgment in connection with this Agreement, or any other Transaction Document, shall be limited to (i) the Collateral, and (ii) possession of the Leased Premises as provided in the Master Lease. 10.1.10 Limitation Upon Enforcement. Damages awarded against --------------------------- the Tribal Corporation or the Enterprise shall be satisfied solely from assets specified in Article X, Section 10.1.9, and shall not constitute a lien upon or be collectible from any -8- other income or assets of the Tribal Corporation, except with the written consent of the Tribal Corporation. 10.1.11 Expenses of Judicial Enforcement. Except as ordered by -------------------------------- a court of competent jurisdiction, all parties shall bear their own costs, including attorneys' fees, in connection with any judicial proceedings authorized under this Agreement. The parties expressly agree that this provision shall survive the termination, for any reason, or expiration of this Agreement. 10.1.12 Guaranty. the Tribal Corporation agrees not to revoke -------- or limit, in whole or in part, the limited waiver of sovereign immunity of the Tribal Corporation contained in this Article or in any way attempt to revoke or limit, in whole or in part, such limited waiver of sovereign immunity. In the event of any such revocation or attempted revocation, the parties expressly recognize and agree that there remains no adequate remedy at law available to Sublessor, and the Tribal Corporation hereby consents to the entry of appropriate injunctive relief consistent with the terms and conditions of this Agreement, as may be granted by any court of competent jurisdiction. ARTICLE XI NO MERGER It is the intention of the parties hereto that the leasehold interest created by this Sublease shall not merge into fee title to the Leased Premises by reason of such interests coming into common or related ownership. ARTICLE XII MISCELLANEOUS 12.1 Indemnification by the Tribal Corporation. ----------------------------------------- 12.1.1 Indemnification by The Tribal Corporation. The Tribal ----------------------------------------- Corporation agrees to indemnify and hold harmless Sublessor, its directors, officers, agents and employees, against any and all claims of or losses, damages or liability to third parties to which Sublessor, its directors, officers, agents and employees, may become subject under any law in connection with the carrying out of the transactions contemplated by this Agreement or the other Transaction Documents, or the conduct of any activity on the Property (other than as a result of gross negligence or willful misconduct of any such party) and to reimburse Sublessor, its directors, officers, agents and employees, for any out-of-pocket legal and other expenses (including reasonable attorneys' fees) incurred by Sublessor, its directors, officers, agents and employees, in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions relating thereto. Sublessor agrees, at the request and reasonable expense of the Tribal Corporation, to cooperate in the making of any investigation in defense of any such claim and promptly to assert any or all of the rights -9- and privileges and defenses which may be available to Sublessor. The Tribal Corporation further releases and agrees to hold harmless Sublessor, its directors, officers, agents and employees, from any claims of or losses, damages or liability to third parties arising out of any covenant, representation or undertaking of the Tribal Corporation contained in this Agreement, or the other Transaction Documents. The provisions of this Section shall survive the termination of this Agreement and the other Transaction Documents. 12.1.2 Indemnification by Sublessor. Sublessor agrees to ---------------------------- indemnify and hold harmless the Tribal Corporation and its directors, officers, agents and employees, against any and all claims of or losses, damages or liability to third parties to which the Tribal Corporation and its directors, officers, agents and employees, may become subject under any law as a result of the gross negligence or willful misconduct of the directors, officers, agents or employees of the Sublessor, and to reimburse the Tribal Corporation and its directors, officers, agents and employees, for any out-of-pocket legal and other expenses (including reasonable attorneys' fees) incurred by the Tribal Corporation and its directors, officers, agents and employees, in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any actions relating thereto. The Tribal Corporation agrees, at the request and reasonable expense of the Sublessor, to cooperate in the making of any investigation in defense of any such claim and promptly to assert any or all of the rights and privileges and defenses which may be available to the Tribal Corporation. Sublessor further releases and agrees to hold harmless the Tribal Corporation and its directors, officers, agents and employees, from any claims of or losses, damages or liability to third parties arising out of any covenant, representation or warranty of the Sublessor contained in this Agreement or the other Transaction Documents. The provisions of this Section shall survive the termination of this Agreement and the other Transaction Documents. 12.1.3 Rights of Persons Covered. The Persons covered by the ------------------------- indemnification provisions hereof shall be third party beneficiaries of this Agreement and shall have the right, subject to the provisions of this Agreement, to enforce such indemnification provisions. 12.2 Recording. This Sublease shall be filed and recorded in the --------- appropriate branch of the Land Titles and Records Office of the Department of the Interior. Sublessor agrees that if so requested by the Tribal Corporation, Sublessor will execute in recordable form for purposes of recordation at the Tribal Corporation's expense a short form of Sublease containing the names of the parties, the description of the Leased Premises and the Facility, the Term of the Sublease, a statement regarding the use of the Facility, and such other provisions as either party may require. 12.3 Right to Perform. If the Tribal Corporation defaults in the making of ---------------- any payment required to be made by the Tribal Corporation and which is capable of being made or done by Sublessor, then Sublessor may, but shall not be required to, make such payment, and the amount of such payment, if made by Sublessor, with interest thereon at -10- the rate of ten percent (10%) per annum, shall be paid by the Tribal Corporation to Sublessor. The making of such payment by Sublessor shall not operate to cure such default or to estop Sublessor from the pursuit of any remedy to which Sublessor may be entitled because of any breach on the part of the Tribal Corporation of any covenant or condition herein, nor the acceptance of rent herein by Sublessor either from the Tribal Corporation or any tenant, whether or not such delay or acceptance be with knowledge on the part of Sublessor of such breach, shall prejudice Sublessor's privilege to invoke such remedy, which privilege shall continue until such breach is cured. 12.4 No Partnership. The Tribal Corporation shall not be construed or held -------------- to be a partner or associate of Sublessor in the conduct of Sublessor's business, it being expressly understood and agreed that the relationship between the parties hereto is and shall at all times remaining during the Term, that of lessor and lessee. 12.5 No Waiver. No failure by the Tribal Corporation to insist upon the --------- performance of any covenant, agreement, provision or condition of this Sublease or to exercise any right or remedy consequent upon a default hereunder, and no acceptance of full or partial rent during the continuance of any such default shall constitute a waiver of any such default or of such covenant, agreement, provision or condition. 12.6 Execution in Counterparts, in Quadruplicate. This Sublease is being ------------------------------------------- executed in counterparts in four (4) originals, one to be retained by each party and one each for the Secretary and the Chairman. 12.7 Covenants to Run with the Land. During the Term, the covenants ------------------------------ contained herein shall run with the land and be binding on and inure to the benefit of the parties, their heirs, successors and assigns. 12.8 Entire Agreement. This Sublease cannot be changed or terminated ---------------- orally. This Sublease, along with the Loan Documents and the other Transaction Documents, contain the entire agreement between the parties; any prior agreement (including, without limitation, the MOU) is hereby superceded and any agreement hereafter made shall be ineffective to change, modify or discharge this Sublease in whole or in part, unless such subsequent agreement is in writing and signed by the party against whom enforcement of the change, modification or discharge is sought. 12.9 No Third Party Beneficiary Rights. Except as provided in Section --------------------------------- 12.1.3, nothing contained in this Sublease is intended nor shall be construed as creating any third party beneficiary rights. -11- IN WITNESS WHEREOF, on the day and year first above written, the Tribal Corporation and Sublessor have duly executed this Sublease as their free act and deed, by and through their authorized representatives. YAKAMA TRIBAL GAMING CORPORATION, a tribal corporation established under the laws of THE CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION By:____________________________ Name:__________________________ Title:_________________________ HP YAKAMA, INC., a Delaware corporation By:____________________________ Name:__________________________ Title:_________________________ -12- ACKNOWLEDGMENTS TO SUBLEASE --------------------------- State of Washington : : SS County of__________ : On this ____ day of ________, 1997, before me, the undersigned Notary Public, appeared Yakama Tribal Gaming Corporation, by and through _______________________, its __________, personally known to be, or proved to me on the basis of satisfactory evidence to be, the person who executed the attached document as the authorized representative of the Yakama Tribal Gaming Corporation, who swore that the same was an act of his own free will and of the free will of the Yakama Tribal Gaming Corporation. _____________________________ Notary Public State of __________ : : SS County of__________ : On this ____ day of _______________, 1997, before me, the undersigned Notary Public, appeared HP YAKAMA, INC., a _______________ , by and through __________________, its __________________ personally known to be, or proved to me on the basis of satisfactory evidence to be, the person who executed the attached document as the authorized representative of HP YAKAMA, Inc., who swore that the same was an act of his own free will and of the free will of HP YAKAMA, INC. _____________________________ Notary Public -13- CONSTRUCTION AND DEVELOPMENT AGREEMENT By and Between YAKAMA TRIBAL GAMING CORPORATION and HP YAKAMA CONSULTING, INC. Dated: September 11, 1997 CONSTRUCTION AND DEVELOPMENT AGREEMENT THIS CONSTRUCTION AND DEVELOPMENT AGREEMENT ("Agreement") is entered into this 11th day of September 1997 by and between YAKAMA TRIBAL GAMING CORPORATION (the "Tribal Corporation"), a tribal corporation established under the laws of The Confederated Tribes And Bands Of The Yakama Indian Nation (the "Nation"), a federally recognized Indian tribe located in the State of Washington and having a mailing address of P.O. Box 151, Toppenish, Washington 98948, and HP CONSULTING, INC. ("Consultant"), a Delaware corporation, having a mailing address of c/o Hollywood Park, Inc., 1050 South Prairie Avenue, Inglewood, CA 90301. RECITALS -------- A. The Tribal Corporation wishes to engage Consultant and Consultant is willing to provide certain services in connection with the construction and development of the Enterprise as contemplated herein and in the Transaction Documents executed concurrently herewith. Simultaneously with the execution of this Agreement, the Tribal Corporation has borrowed certain monies from Consultant's Affiliate, HP Yakama, Inc., to finance the construction and development of the Enterprise. All of such agreements are more particularly set forth in the Transaction Documents and the Loan Documents, all of which have been executed concurrently with one another. The parties expressly acknowledge and agree that each of the Transaction Documents shall serve as essential and mutually interdependent consideration for each of the other agreements. B. Nation has determined that the construction of the Facility and the development and operation of the Enterprise is an important tribal governmental project which is intended to improve the economic condition of the Nation and its members, increase tribal revenues, enhance the Nation's economic self- sufficiency, and enable the Nation's government to better serve the social, economic, educational and health needs of the Nation's members. C. This Agreement is intended only to be for pre-Commencement Date construction and development services with respect to the Facility and Enterprise. Nothing in this Agreement is intended or shall be construed as authorizing Consultant to engage in gaming on Nation's reservation or in connection with the Enterprise, either directly or indirectly, as a manager or otherwise. This Agreement is not intended to be and shall not be construed as constituting a contract for management services as contemplated by IGRA. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged by the parties, the parties hereby agree, as of the date first stated above, as follows: 13. Defined Terms. Unless otherwise defined herein, the capitalized words ------------- and terms used in this Agreement shall have the meanings set forth in Exhibit A hereto, "Master Definitions List." 13.1 Appointment of the Consultant as Development Manager. ---------------------------------------------------- 13.2 Consultant Retained. The Tribal Corporation hereby retains ------------------- and appoints the Consultant as development manager to perform, during the term and in accordance with all of the provisions of this Agreement, the design, development, construction, and other functions described in this Agreement, and the Consultant hereby accepts such appointment. It shall be the Consultant's duty to cause, as owner's agent, the construction of the Facility subject to Tribal Corporation's approval rights hereunder. Said development and construction shall be on the terms set forth herein, and the Consultant shall use commercially reasonable efforts to ensure that the Commencement Date occurs no later than six (6) months after the Effective Date. 13.3 No Gaming Management Functions. Nothing herein is intended to ------------------------------ confer on the Consultant and this Agreement shall not be construed as conferring on the Consultant, any rights, duties or obligations as a manager of any Gaming activity. 14. Term of Agreement. This Agreement shall become effective on the ----------------- Effective Date and shall remain in effect until the earlier of (i) one (1) month after the Commencement Date or (ii) the date on which this Agreement is terminated. If the Effective Date has not occurred on or before August 1, 1998, this Agreement shall terminate and be of no further force and effect. Regardless of the cause of termination, the warranties included or incorporated herein shall survive termination of this Agreement. 15. Construction Management. Following the Effective Date and prior to ----------------------- the Commencement Date, the Consultant shall serve as the Tribal Corporation's construction manager, and shall be responsible for supervision of the development and construction of the Facility on a day-to-day basis. In discharging its duties, the Consultant shall use commercially reasonable efforts to ensure that (i) the Facility shall have no less than 45,000 sq. ft. in floor space and shall be finished generally in a quality equal to that of the Muckleshoot Indian Casino in Auburn, Washington; (ii) the Facility shall be constructed on time and within the Development Budget (as hereinafter defined), in accordance with all approved plans and specifications as contemplated in the Transaction Documents and under Applicable Law; (iii) all contractors shall carry out in all material respects the duties and responsibilities prescribed under their respective contracts, and will follow the Nation's Indian preference and subcontractor bidding guidelines, and (iv) such development and construction complies in all material respects with applicable codes and building standards. -1- 16. Consultation. The parties hereby agree to designate one or more ------------ individuals who shall serve as their representatives (the "Representatives") and who shall meet as often as necessary (but no less frequently than once per week unless the parties otherwise agree) to provide ongoing supervision, information and consultation with respect to the construction and development of the Enterprise and Facility. All decisions shall be reached by consensus whenever possible, and disagreements shall be resolved if necessary through arbitration (or such other means to expedite the process as the parties shall agree) as set forth herein. 17. Construction Management Responsibilities. The Consultant shall ---------------------------------------- have responsibility for the following: 17.1 Selection of Architect and Engineer. It is acknowledged that ----------------------------------- a project architect has already been selected. Such architect, and any replacement or substitute architect hired in accordance with this Agreement, is referred to herein as the "Architect." Consultant shall provide advice and assistance to the Tribal Corporation in determining the terms of and causing to be prepared an owner/architect agreement with an Architect (such agreement and any substitute agreement therefor shall be referred to as the "Owner/Architect Agreement"). The Owner/Architect Agreement shall provide that the Architect shall provide the following services (the "Architect Services"): (1) design the Facility; (2) prepare plans and specifications for the construction of the Facility; (3) inspect the Facility and review the appropriateness of requests for payments submitted by the Contractor (as hereinafter defined) during the construction of the Facility; and (4) notify the Tribal Corporation of the substantial completion of the Facility and determine the timing of the final payment to the Contractor. In the event it should become necessary to replace said architect or engage an additional architect, the following shall apply: 17.1.1 Recommendation and Scope. Consultant shall recommend to --------------------------- the Tribal Corporation an architect and, if deemed appropriate by the Consultant, a civil engineer to provide the Architect Services (to the extent such services have not previously been provided). 17.1.2 Acceptance of Recommendation. Upon receipt of ---------------------------- Consultant's recommendation, the Tribal Corporation's Representative shall review the recommendation and if acceptable forward it to the Tribal Corporation for formal -3- acceptance. Unless there is no reasonable basis for Tribal Corporation to reject Consultant's recommendation, Tribal Corporation shall designate the recommended architect as the "Architect" under this Agreement, and designate the recommended engineer, if any, as the "Engineer" under this Agreement, and enter into such agreements as may be necessary to acquire their services. 17.1.3 Rejection of Recommendation. If there is a reasonable --------------------------- basis for Tribal Corporation to reject a recommendation by Consultant, and the Tribal Corporation rejects such recommendation, the Tribal Corporation shall notify Consultant of such rejection and provide a written description of the basis for such rejection. Consultant shall then submit additional recommendations to the Tribal Corporation's Representative until the Tribal Corporation accepts a recommendation and designates the Architect under this Agreement and the Engineer under this Agreement. 17.1.4 Preparation of New Owner/Architect Agreement. Upon the -------------------------------------------- Tribal Corporation's acceptance of an Architect, the Tribal Corporation shall cause to be prepared a new Owner/Architect Agreement between the Tribal Corporation and the Architect to be signed by the Tribal Corporation and the Architect. The new Owner/Architect Agreement shall be consistent with this Agreement and approved by the Tribal Corporation's legal counsel. Consultant and its counsel shall have a reasonable opportunity to review, and give comments on, the new Owner/Architect Agreement prior to its execution. 17.1.5 Preparation of Engineer's Agreement. Upon the Tribal ----------------------------------- Corporation's acceptance of an Engineer, the Tribal Corporation shall cause to be prepared an owner/engineer agreement (the "Owner/Engineer Agreement") between the Tribal Corporation and the Engineer to be signed by the Tribal Corporation and the Engineer. The Owner/Engineer Agreement shall be consistent with this Agreement and approved by the Tribal Corporation's legal counsel. Consultant shall have a reasonable opportunity to review, and give comments on, the Owner/Architect Agreement prior to its execution. 17.2 Designation of Consultant Reports. The Tribal Corporation hereby ------------------------------------ designates and appoints Consultant as the owner's representative for the purpose of the administration and implementation of the Owner/Architect Agreement and Owner/Engineer Agreement (the "Architect and Engineering Agreements"). Consultant shall have the authority as the owner's representative, to exercise all of the powers of the owner in its reasonable business judgment under the Architect and Engineering Agreements, including, without limitation, supervising the completion of all construction, renovation, development and related activities undertaken on the Facility pursuant to the terms and conditions of such agreements; provided, however, that Consultant shall not amend or terminate -------- ------- either such agreement without the prior approval of the Tribal Corporation, which shall not be unreasonably withheld. Consultant shall provide the Tribal Corporation with written progress reports on the implementation of such agreements on a weekly basis, and shall confer and consult with the Tribal Corporation over any material disputes or developments with respect to the administration of such -4- agreements provided such consultation will not unreasonably delay progress on the construction. Consultant shall be responsible for completing all construction and project preparation development as set forth herein. 17.3 Amendments. The Tribal Corporation shall not amend the ---------- Architect and Engineering Agreements without first obtaining Consultant's written approval of the amendment. 17.4 Design Standards. Neither the State of Washington nor any ---------------- of the state's political subdivisions has the power to enforce any building, fire, energy or life/safety code or requirements which would apply if such state or political subdivision had jurisdiction over the Property. The Tribal Corporation, however, hereby finds and determines that the application of the standards and methods included in such codes and requirements will be in the best interest of the Tribal Corporation. Accordingly, Consultant and Tribal Corporation shall cause the Architect and Engineering Agreements to require the Architect and any Engineer to design the Facility to comply in all material respects with state and local standards and methods that would otherwise be applicable, provided that if for any reason an applicable standard cannot be determined as provided, then the parties shall apply standards and methods set forth in the applicable and current Uniform Building Code. Using qualified inspectors, Consultant shall conduct such inspections as are necessary to ensure compliance in all material respects with these standards. Nothing in this Section shall be deemed to grant the State of Washington or any of such state's political subdivisions any jurisdiction over any property owned by or held for the benefit of the Tribal Corporation, or the right to apply or enforce any such building, fire, energy or life/safety code or requirements with respect to such property. 17.5 Approval of Plans and Specifications. Upon receipt from ------------------------------------ the Architect and any Engineer of plans and specifications for the Facility (which plans and specifications may be submitted in stages, rather than all at one time), Consultant shall promptly submit such plans and specifications to the Representatives for discussion and approval. Upon the approval of such plans and specifications by the Tribal Corporation, Consultant shall, as the owner's representative, notify the Architect and any Engineer that such plans and specifications have been approved. No construction shall begin until all plans and specifications for such construction shall have been approved under this Section. 18. Selection of Contractor. It is acknowledged that a project contractor ----------------------- has already been selected. Such contractor, and any replacement or substitute therefor hired in accordance with this Agreement, is referred to herein as the "Contractor." Consultant shall provide advice and assistance to the Tribal Corporation in determining the terms of and causing to be prepared an owner/contractor agreement consistent with the Loan Documents and the Transaction Documents and the budgets thereunder (such agreement and any substitute therefor shall be referred to as the "Owner/Contractor Agreement"). -5- 18.1 Replacement of Contractor. In the event it should become ------------------------- necessary to replace said Contractor or engage an additional contractor, the following shall apply: 18.1.1 Recommendation. Consultant shall recommend to the Tribal -------------- Corporation's Representative one or more contractors to construct the Facility in accordance with the plans and specifications approved or to be, approved pursuant to Section 17.5 above. 18.1.2 Acceptance of Recommendation. Upon receipt of ---------------------------- Consultant's recommendation, the Tribal Corporation's Representative shall review the recommendation and if acceptable forward it to the Tribal Corporation for formal acceptance. Unless there is a reasonable basis for the Tribal Corporation to reject Consultant's recommendation, the Tribal Corporation shall designate the recommended general contractor as the Contractor under this Agreement, and enter into an agreement to acquire the Contractor's services. 18.1.3 Rejection of Recommendation. If there is a reasonable --------------------------- basis for the Tribal Corporation to reject Consultant's recommendation, and the Tribal Corporation rejects such recommendation, the Tribal Corporation shall notify Consultant of such rejection and provide a written description of the basis for such rejection. Consultant shall then submit additional recommendations until the Tribal Corporation accepts a recommendation and designates the Contractor under this Agreement. 18.1.4 Contract with Contractor. Upon the Tribal Corporation's ------------------------ designation of a Contractor, the Tribal Corporation shall cause to be prepared a new Owner/Contractor Agreement between the Tribal Corporation and the Contractor to be signed by the Tribal Corporation and the Contractor. The Owner/Contractor Agreement, including any general and special conditions, shall be consistent with this Agreement and approved by the Tribal Corporation's legal counsel. 18.2 The Owner/Contractor Agreement shall provide for commencement and completion of construction as soon as practicable after said agreement is executed, but no later than six (6) months after the Effective Date. The Tribal Corporation shall cause the Owner/Contractor Agreement to provide that the Contractor warrants that the work performed under the Owner/Contractor Agreement will be completed in a workmanlike manner and be free of defects for a period ending thirty-six (36) months after the Architect provides a certificate of substantial completion. 18.3 The Tribal Corporation hereby designates and appoints Consultant as the owner's representative for the purpose of the administration and implementation of the Owner/Contractor Agreement and agrees that, with the Tribal Corporation's approval, which shall not be unreasonably withheld, Consultant may enter into the Owner/Contractor Agreement (or any agreement to be entered into in connection therewith) directly as "Owner" thereunder, provided that the representations, warranties and indemnities contained therein also run in favor of the Tribal Corporation and the -6- Nation. Consultant shall have the authority as the owner's representative to exercise all of the powers of the owner under the Owner/Contractor Agreement, including, without limitation, supervising the completion of all construction, renovation, development and related activities undertaken on the Facility pursuant to the terms and conditions of such agreements; provided, however, that -------- ------- Consultant shall not exceed the construction budget and items therein approved by Tribal Corporation, without Tribal Corporation's prior written consent, which shall not be unreasonably withheld, or amend or terminate such agreement without the prior written approval of the Tribal Corporation, which approval shall not be unreasonably withheld. Consultant shall provide the Tribal Corporation's Representative with written progress reports on the implementation of such agreement on a weekly basis. 18.4 Amendments. The Tribal Corporation shall not amend the ---------- Owner/Contractor Agreement without first obtaining Consultant's written approval of the Amendment. 18.5 Payment and Performance Bonds. Unless the parties determine ----------------------------- otherwise, the Owner/Contractor Agreement shall require the Contractor to provide to the Tribal Corporation a payment bond and a performance bond (the "Contractor's Bonds") in the full amount of the costs of construction of the work and performance of the work under the Owner/Contractor Agreement and issued by a surety reasonably acceptable to the Tribal Corporation. The form of the Contractor's Bond shall be approved by the Tribal Corporation's legal counsel and by Consultant's legal counsel. 18.6 Contract Terms. The parties have estimated that the total cost -------------- of developing and constructing the Facility and commencing operation of the Enterprise will not exceed Nine Million Dollars ($9,000,000). To enable Consultant to maintain total costs within said amount, Consultant shall have the right to require that any Architect and Engineering Agreements and any Owner/Contractor Agreement provide for either a fixed fee or a guaranteed maximum fee in an amount reasonably established by the parties. 18.7 Development Budget. Prior to the commencement of ------------------ construction, and in conjunction with the Loan Agreement, Consultant shall submit to the Tribal Corporation's Representative, and the Tribal Corporation shall approve, a proposed construction budget for the construction of the Facility ("Development Budget"). Consultant shall supervise the progress of construction and take such action as may be necessary to maintain construction costs within said budget. In doing so, Consultant shall have the following powers and duties: 18.7.1 Consultant shall, as the owner's representative, receive and review requests for payments from the Architect, any Engineer and each Contractor under the Architect and Engineering Agreements and the Owner/Contractor Agreement, respectively, and if in conformity with the applicable agreement, shall promptly authorize payment of same. Expenditures made under contracts previously approved and within the Development Budget shall not require further approval. In reviewing such -7- requests, Consultant shall be entitled to reasonably rely on any certification by the Architect, Engineer or Contractor regarding such request, including any certification regarding the extent of work completed. Consultant shall maintain accurate records regarding each authorization for such payment, and shall provide the Tribal Corporation with a written monthly report of all such payments. 18.8 Compensation of the Consultant. In consideration of its ------------------------------ services hereunder, the Consultant shall be entitled to receive annual compensation equal to One Dollar ($1.00). 18.9 Reimbursement of Expenses to Consultant. The Consultant shall --------------------------------------- be reimbursed, if approved by the Tribal Corporation, for all actual, reasonable and necessary out-of-pocket expenses, incurred in connection with the discharge of its duties hereunder as Consultant, and previously approved as estimated costs by the Tribal Corporation, provided, however, that any such out-of-pocket -------- ------- expense shall not exceed two thousand dollars ($2,000) per month unless the Tribal Corporation has approved the same prior to the occurrence thereof. Such reimbursement shall be made on a regular basis within thirty (30) days after submission of a reimbursement request by the Consultant and consistent with the formal procedural requirements of the Tribal Corporation for reimbursement of expenses. 19. Revisions to Plans; Change Orders; Additional Work or Time Claims. ----------------------------------------------------------------- 19.1 Consultant shall, as the owner's representative, submit to the Tribal Corporation for approval or disapproval: (1) material revisions to the plans and specifications approved pursuant to Section 17.5 above and Section 7.2 below, (2) material change orders under the Owner/Contractor Agreement; and (3) any material claim by the Contractor for payment for additional work or for additional time to complete the work described in the Owner/Contractor Agreement. 19.2 Consultant shall submit to the Tribal Corporation with each request for approval of such revision, change order or claim, a written statement of the amount, if any, by which the cost of the development and construction of the Facility will increase or decrease if such revision, change order or claim is approved, which approval shall not be unreasonably withheld. 19.3 Notwithstanding Section 7.2 hereof, the Tribal Corporation shall approve any reasonable revision, change order or claim which is attributable to any delay or failure of the Tribal Corporation, the Nation, Tribal Council or the Representative to make in a timely manner any decision or selection required under this -8- Agreement or required to administer the Architect and Engineering Agreements or the Owner/Contractor Agreement and the work contemplated therein. 20. Multiple Shifts. The budgets for the Facility assume that the --------------- Contractor may use multiple shifts to complete the Facility and the Tribal Corporation may approve the use of multiple shifts to expedite the construction process. 21. Selection, Delivery and Installation of Equipment and Furnishings. ----------------------------------------------------------------- Consultant shall select furniture, fixtures, furnishings, machinery and equipment, including gaming equipment, to be installed in the Facility (the "FF&E"). Consultant shall arrange for and coordinate the delivery to the Facility and installation in the Facility of such FF&E, ensuring that delivery thereof is in conformity with the specifications and orders for such FF&E and is in time for the Commencement Date and any training that must precede such date. Subject to approval by the Tribal Corporation, FF&E may be leased, but the capital cost thereof shall be included in any Maximum Loan Amount and shall appear on the Cost Breakdown (as defined in the Loan Agreement). 22. Disclosure of Proposed Transactions with Related Companies. Any ---------------------------------------------------------- transaction between Consultant and any vendor or lessor to acquire FF&E shall be a commercially reasonable, arms-length transaction. Any existing or prior relationship or direct or indirect financial transaction between Consultant or its Affiliates and the vendor or lessor, or to the extent known by Consultant, any of the principal shareholders, directors or executive officers of such vendor or lessor, shall be disclosed in writing to the Tribal Corporation prior to the time the proposed transaction is presented to the Tribal Corporation for approval. 23. Indian Preference. To maximize the benefits of the Enterprise to ----------------- the Nation, all contracts and subcontracts relating to this Agreement shall give preference to qualified Nation members and other Native Americans in accordance with the Nation's standard tribal employment policies. 24. Compliance. Consultant shall, in performing its obligations under ---------- this Agreement, comply in all material respects with Applicable Laws, ordinances and regulations adopted by the Tribal Corporation. 25. Non-interference in Nation Affairs. In performing its duties ---------------------------------- hereunder, Consultant shall not intentionally interfere with the internal affairs of the Nation or its government, or any subdivision, department or agency of the Nation (including, without limitation, the Tribal Corporation). For the purposes of this Section, "interfere" shall mean any attempt by Consultant to influence a decision of the Tribal Council or any -9- officer or employee of the Nation or the Tribal Corporation, or to influence any Tribal election, by doing any of the following in connection with such decision or election: (1) offering any incentive; or (2) making any written or oral threat against any person or thing; provided, however, that neither Consultant's assertion of its rights under this - -------- ------- Agreement nor any recommendation, suggestion or assertion of opinion made by Consultant regarding the Enterprise or any action of Consultant at a meeting of any committee, officers, agency or council of the Nation or the Tribal Corporation or to any employee of the Nation in the ordinary course of such employee's duties, shall be deemed to be "interference" for the purpose of this Section. 25.1 Remedies. If the Nation believes that Consultant has -------- violated the provisions of this Section by engaging in prohibited interference, the Nation shall give Consultant written notice describing the incident which the Nation claims constitutes prohibited interference and identifying the person or persons claimed to have acted on Consultant's behalf in engaging in such interference. Consultant shall have ten (10) business days from the date of receipt of such notice to respond to such notice. 26. Insurance. Consultant shall, during the term of this Agreement, --------- recommend to and assist the Tribal Corporation in obtaining on a timely basis on behalf of the Tribal Corporation and Consultant the following insurance coverages: 26.1 Builder's Risk. During the construction of the Facility, -------------- builder's risk insurance with such limits as the parties from time-to-time agree upon; 26.2 Casualty. After the substantial completion of the Facility -------- as determined by Consultant in its reasonable discretion, casualty insurance for the Facility and all FF&E, providing coverage against fire, wind, theft, vandalism, malicious mischief, sprinkler leakage and such other casualties, for their full replacement cost, without depreciation; 26.3 Liability. During the term of the Transaction Documents, --------- commercial liability insurance against claims for injury, death and property damage occurring on, in or about the Property, the Facility, or in connection with the Enterprise or any operation thereof, with such limits in excess of an annual aggregate limit as the parties from time-to-time may agree upon; 26.4 Worker's Compensation. During the term of this Agreement, --------------------- worker's compensation insurance to the extent (i) deemed appropriate by the parties or (ii) required by Applicable Law. 26.5 Other. During the term of this Agreement, such other insurance ----- coverages as the parties from time-to-time may agree upon. -10- 26.6 Nature of Coverages. The parties shall from time-to-time ------------------- determine the appropriate limits, deductibles and endorsements for the coverages to be obtained pursuant to this section. 26.7 No Jurisdiction. Except as specifically provided herein, --------------- nothing in this Agreement or the other Transaction Documents shall be deemed or construed to subject the Tribal Corporation or its officers, agents, employees or representatives (including Tribal Corporation employees assigned to the Enterprise) to the jurisdiction of the State of Washington or any political subdivision thereof. 26.8 Policy Requirements. Each policy of insurance obtained by ------------------- Consultant pursuant to this Section shall be issued by an entity reasonably acceptable to the Tribal Corporation. The Tribal Corporation shall be named as insured and Consultant and any parent of Consultant shall be named as additional insureds in all such policies. 26.9 Enterprise Expenses. The premiums and other charges required ------------------- to obtain and maintain insurance coverage pursuant to this Agreement shall be paid in advance for the first year from Loan proceeds, and thereafter as operating expenses of the Enterprise. 27. Condition Precedent to the Consultant's Duties. It shall be a ---------------------------------------------- condition precedent to Consultant's duties hereunder that the Effective Date shall have occurred. Within five (5) business days following the Execution Date, the Tribal Corporation shall seek the approval of the NIGC that the Loan Documents and the Transaction Documents, or any of them taken individually, do not constitute a management contract as defined under IGRA, 25 U.S.C. (S) 2711, and if such verification is not obtained within ninety (90) days after such approval is sought, this Agreement and the other Transaction Documents shall terminate and be of no further force and effect; provided further that the parties shall negotiate in good faith regarding any modifications to the Transaction Documents or the Loan Documents which may be required or suggested by the NIGC or BIA in order to receive the approvals referred to herein. In addition, within five (5) business days following the Execution Date, the Tribal Corporation shall seek the approval of the Loan Documents and the Transaction Documents, to the extent required by Applicable Law, from the Bureau of Indian Affairs, and if such approval is not obtained within sixty (60) days after such approval is sought, this Agreement and the other Transaction Documents shall terminate and be of no further force and effect, subject to the good faith negotiation requirements set forth above. -11- Each of the parties hereto agrees to execute, deliver and, if necessary, record any and all additional instruments, certifications, amendments, modifications and other documents as may be required by the Secretary, the BIA, the NIGC, or any applicable statute, rule or regulation in order to effectuate, complete, perfect, continue or preserve the respective rights, obligations, liens and interests of the parties thereto to the fullest extent permitted by law; provided, however, that any such additional instrument, certification, amendment, modification or other document shall not materially change the respective rights, remedies or obligations of the Tribal Corporation or Consultant under this instrument or any other agreement or document related hereto. 28. Termination and Suspension. -------------------------- 28.1 By Mutual Agreement. This Agreement may be terminated at any ------------------- time by written agreement executed on behalf of both parties. 28.2 Consultant Default. If the Consultant defaults in any ------------------ material way in the performance of its obligation under this Agreement or breaches in any material way any representation or warranty made by it herein, and such default or breach is not cured within 10 days after the Tribal Corporation gives the Consultant written notice of such default or breach, then the Tribal Corporation shall have the right to terminate this Agreement by giving the Consultant written notice of termination (except that the Tribal Corporation may not exercise such right if such default or breach cannot be cured within such 10-day period and the Consultant commences a cure within such 10-day period and diligently pursues such cure to completion). 28.3 Default of Nation or Tribal Corporation. If the Nation --------------------------------------- and/or the Tribal Corporation default in any material way in the performance of any obligation under this Agreement, and such default is not cured within 10 days after the Consultant gives the defaulting party written notice describing such default, then Consultant shall have the right to seek specific enforcement of the provisions of this Agreement or terminate this Agreement by giving the Tribal Corporation written notice of termination (except that the Consultant may not exercise such right if such default cannot be cured within such 10-day period and the defaulting party commences a cure within such 10-day period and diligently pursues such cure). 28.4 Termination by Consultant. Consultant may terminate this ------------------------- Agreement in the event that the Nation and/or the Tribal Corporation breach or are in default under any of the Loan Documents or the Transaction Documents and such default is not cured within the applicable cure period. 28.5 Suspension by Consultant. Consultant may suspend the ------------------------ performance of its services hereunder pursuant to the terms and subject to the limitations of Section 1 of the Exhibit B attached hereto. -12- 29. Incorporation by Reference. The parties hereby incorporate into this -------------------------- Agreement by this reference Exhibit B attached hereto, which provisions shall apply as if set forth in full herein. 30. Notices. Any notice required to be given pursuant to this Agreement ------- shall be delivered by overnight courier or U.S. Express Mail with notice deemed effective on the later of the first business day after deposit or the day on which the courier confirms delivery, addressed as follows: (a) If to the Tribal Corporation: YAKAMA TRIBAL GAMING CORPORATION c/o The Confederated Tribes and Bands of the Yakama Indian Nation P.O. Box 151 Toppenish, Washington 98948 with a copy to: The Confederated Tribes and Bands of the Yakama Indian Nation P.O. Box 151 Toppenish, Washington 98948 Attention: Chairperson, Tribal Council and: Levine & Associates 2049 Century Park East, Suite 710 Los Angeles, CA 90067 Attn: Jerome Levine, Esq. (b) If to Consultant: HP YAKAMA CONSULTING, INC. c/o Hollywood Park, Inc. 1050 South Prairie Avenue Inglewood, CA 90301 Attn: Chief Financial Officer -13- with a copy to: Irell & Manella LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, CA 90067 Attn: Alvin Segel, Esq. 31. Miscellaneous Provisions. ------------------------ 31.1 Captions. The captions in this Agreement are inserted for -------- convenience of reference only; they are not part of this Agreement and shall not affect its interpretation. 31.2 Successors and Assigns. This Agreement shall be binding upon ---------------------- and inure to the benefit of the parties hereto and their respective permitted successors and permitted assigns, provided neither party hereto shall assign or encumber its interest in this Agreement without the prior written consent of the other party, which consent may be withheld in the sole discretion of that party. 31.3 Entire Agreement; Modifications. This Agreement and the ------------------------------- Transaction Documents contain the entire understanding of the parties regarding their subject matter, and supersede all prior negotiations, understandings and agreements of the parties with respect thereto (including, without limitation, the MOU). The express terms of this Agreement shall control and supersede any course of performance and/or customary practice inconsistent with such terms. Any subsequent agreement between the parties hereto shall not change or modify this Agreement unless in writing and signed by the party against whom enforcement of such change or modification is sought. 31.4 No Waiver. No failure or delay by either party to this --------- Agreement to exercise any right, remedy, power or privilege under this Agreement shall be a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege with respect to any occurrence. No waiver shall be effective unless it is in writing and signed by the party asserted to have granted such waiver. 31.5 No Joint Venture. Consultant shall be an independent ----------------- contractor engaged by the Tribal Corporation to perform the duties and obligations described in this Agreement. Accordingly, nothing in this Agreement shall be deemed or construed to create a joint venture or other partnership relationship between the Tribal Corporation and the Consultant. 31.6 No Conveyance. Nothing in this Agreement shall be deemed or ------------- construed to transfer or convey to the Consultant any lien on or interest in the Property or Facility, or to transfer or convey to the Consultant any proprietary interest in the Enterprise. -14- 31.7 Time of Essence. Time is of the essence in the performance --------------- by the parties hereto of their respective obligations under this Agreement. 31.8 Execution. Four original copies of this Agreement are being --------- executed on behalf of each of the parties hereto. Each such party is retaining two original copies of this Agreement. Each of the four original copies of this Agreement shall be equally valid. 31.9 Tribal Corporation's Obligations Limited. Nothing in this ---------------------------------------- Agreement shall obligate the Tribal Corporation to encumber or make any payment from assets of the Tribal Corporation other than (i) revenues and receipts and personal property of the Enterprise; and (ii) the revenues and receipts of any other Gaming operation conducted by the Tribal Corporation, during the term of this Agreement. 31.10 Severability. If any part, term or provision of this ------------ Agreement is invalid, unenforceable, illegal, or in conflict with any federal, state or local laws, such part, term or provision shall be considered severable from the rest of this Agreement and the remaining portions of this Agreement shall not be thereby affected or impaired and this Agreement shall be construed and enforced as if this Agreement did not contain such part, term or provision, provided that the removal of such part, term or provision does not materially and adversely alter the ability of the parties to achieve the intended of the transactions contemplated by this Agreement. -15- 31.11 Choice of Law. This Agreement shall be governed first by ------------- federal law, if applicable, then by the laws of the State of Washington. 31.12 Binding Effect. This Agreement shall be binding upon, and -------------- inure to the benefit of and be enforceable by the parties and by their successors and assigns as permitted herein. 31.13 Further Assurances. Each party hereto shall from time-to- ------------------ time, at the reasonable request of the other party (i) execute and deliver or cause to be executed and delivered such additional documents and papers, and (ii) take or cause to be taken such additional actions as may be reasonably required to effectively evidence and implement the transactions described in and contemplated by this Agreement. 31.14 Interpretation. No provision of this Agreement shall be -------------- interpreted for or against either party because that party or that party's legal representative or counsel drafted such provision. 31.15 Attorneys' Fees. The prevailing party in any arbitration --------------- proceeding relating to this Agreement shall recover from the other party reasonable attorneys' fees and all costs and expenses incurred by the prevailing party in such proceeding or action. IN WITNESS WHEREOF, the parties hereto have executed this Construction and Development Agreement as of the date stated in the introduction hereof. YAKAMA TRIBAL GAMING CORPORATION, a tribal corporation established under the laws of The Confederated Tribes And Bands Of The Yakama Nation By:__________________________________ Name:________________________________ Title:_______________________________ HP YAKAMA CONSULTING, INC., a Delaware corporation By:__________________________________ Name:________________________________ Title:_______________________________ -16- The undersigned hereby agrees to be bound by the terms and provisions of Section 17 hereof. CONFEDERATED TRIBES AND BANDS OF THE YAKAMA INDIANS, a federally recognized Indian Tribe By:___________________________ Name:_________________________ Title:________________________ -17- EX-10.43 4 PUBLIC TRUST TIDELANDS LEASE PUBLIC TRUST TIDELANDS LEASE ---------------------------- STATE OF MISSISSIPPI COUNTY OF HINDS THIS AGREEMENT, made and entered into this the 15 day of August, 1994, by and between the SECRETARY OF STATE, with the approval of the GOVERNOR, for and on behalf of the STATE OF MISSISSIPPI, hereinafter referred to as "LESSOR," and Mississippi-I Gaming, L.P., doing business as Boomtown Biloxi Casino, a Mississippi Limited Partnership registered to do and doing business in the State of Mississippi, hereinafter referred to as "LESSEE." WITNESSETH: ----------- THAT FOR THE TERM and in consideration of the rentals hereinafter set forth, and covenants, conditions, and obligations to be observed and performed by LESSEE, LESSOR does hereby lease and rent unto LESSEE, pursuant to the authority of MISS. CODE ANN. (S) 29-1-107 (Supp. 1994), the following described submerged land or tideland, hereinafter referred to as SAID PROPERTY, to-wit: A parcel located in Section 28, Township 7 South, Range 9 West, in the Second Judicial District of Harrison County, Mississippi, more particularly described as follows: COMMENCE at a point on the North margin of Bay View Avenue, said point being at the intersection of said North margin with the extension of the East margin of Main Street; thence run North 0 degrees 30 minutes 7 seconds East, for a distance of 352.72 feet to a point on the water's edge in the Back Bay of Biloxi, and the POINT OF BEGINNING; thence continue North 0 degrees 30 minutes 07 seconds East for a distance of 627.28 feet to a point; thence run South 89 degrees 29 minutes 53 seconds East, for a distance of 421.62 feet to a point; thence run South 0 degrees 30 minutes 07 seconds West, for a distance of 567.28 feet to a point on the water's edge in the Back Bay of Biloxi, thence run along the waters edge, the following bearings and distances, to wit: North 89 degrees 00 minutes 25 seconds West, 54.89 feet, North 59 degrees 34 minutes 39 seconds West, 35.62 feet; North 02 degrees 39 minutes 47 seconds East, 9.06 feet; North 65 degrees 11 minutes 04 seconds West, 89.88 feet; North 00 degrees 47 minutes 05 seconds West, 18.55 feet; North 07 degrees 16 minutes 10 seconds west, 25.28 feet; South 75 degrees 11 minutes 01 seconds West, 39.18 feet; South 09 degrees 13 minutes 15 seconds East 7.92 feet; South 81 degrees 54 minutes 06 seconds West, 49.27 feet; North 08 degrees 11 minutes 59 seconds West, 22.25 feet; South 81 degrees 26 minutes 23 seconds West, 94.03 feet; South 11 degrees 19 minutes 27 seconds East, 27.44 feet; South 14 degrees 59 minutes 07 seconds East, 79.84 feet and South 65 degrees 01 minutes 07 seconds West, for a distance of 106.37 feet to the POINT OF BEGINNING, containing 222,022 square feet, or 5.10 acres, more or less. (See survey prepared by Terry J. Moran, Jr., R.L.S., dated June 29, 1994, attached hereto as Exhibit 1 and incorporated herein by reference.) 1. TERM. The primary term of this lease shall be for ten (10) years, beginning on the 1st day of July, 1994, and terminating on the 30th day of June, 2004. If LESSEE has complied with all terms, covenants, conditions, and obligations of this lease, as of the expiration of the primary term, LESSEE shall have the option to extend this lease for a renewal term of five (5) years under the same terms and provisions of this lease, subject to the renegotiation of annual rental based on appraisal obtained by the LESSOR. 2. CONSIDERATION. The parties hereto agree that SAID PROPERTY contains 222,022 square feet of submerged lands or tidelands. The parties agree that consideration for this lease is in part predicated on LESSEE developing and operating a single dockside gaming facility licensed by the State of Mississippi which will contain up to 1,010 games as shown on Statement of Games dated April 27, 1994 from LESSEE to Mississippi State Tax Commission, a copy of which is attached hereto as Exhibit 2. Should LESSEE desire to expand the gaming area within its casino beyond these 1,010 games, notice shall first be given to LESSOR and a corresponding adjustment to the annual rental shall be made. During the period July 1, 1994, to June 30, 1999, LESSEE covenants and agrees to pay annual rental to LESSOR in the sum of FIVE HUNDRED TWENTY FIVE THOUSAND ($525,000.00) AND NO/100THS DOLLARS. Payment of the first year's rent shall be made in four (4) installments, with one payment of NINETY THOUSAND ($90,000.00) AND NO/100THS DOLLARS to be made on or before August 1, 1994, and the remaining balance of FOUR HUNDRED THIRTY FIVE THOUSAND ($435,000.00) AND NO/100THS DOLLARS to be paid in three (3) equal installments on or before the 1st days of September, October and November, 1994. 2 3. RENT ADJUSTMENT. LESSOR shall, at the end of the first five year period of the lease term, determine the annual rental in accordance with MISS. CODE ANN. Sec. 29-1-107(2) (Supp. 1994) or as amended by subsequent legislation and the adopted and published rules of the Secretary of State for the administration, control and leasing of public trust tidelands, as amended and revised. In the event LESSOR and LESSEE cannot agree on an adjusted rental amount, the lease may be canceled at the option of LESSOR. 4. PLACE AND TIME OF PAYMENT. Subject to Article 2 above regarding the first year's payment, rent shall be payable annually on or before July 1st to the STATE OF MISSISSIPPI and shall be submitted to the SECRETARY OF STATE or his successor in office, through the Public Lands Division, 401 Mississippi Street, Post Office Box 136, Jackson, Mississippi 39205. 5. INTEREST PENALTY FOR PAST DUE RENT BALANCES. LESSEE shall pay a late charge equal to interest at the rate of twelve percent (12%) per annum from the date due until paid on any lease rentals, fees, or other charges due and payable hereunder, which are not paid within thirty (30) days of their due date. 6. RIGHT TO RE-LEASE. Pursuant to MISS. CODE ANN. (S) 29-1-107 (Supp. 1994), LESSEE is hereby granted the prior right, exclusive of all other persons, to re-lease at the expiration of this lease, as may be agreed upon between LESSEE and LESSOR, so long as LESSEE continues to present satisfactory evidence of LESSEE's right to occupy the adjacent uplands. 3 7. TAXES, SURVEY COSTS, RECORDING FEES. LESSEE covenants and agrees to pay any and all general taxes and special assessments, if ever any there be, applicable to the above described property and LESSEE'S interest therein and improvements thereon; further, LESSEE covenants and agrees to pay any and all survey costs and recording fees in connection with this lease or any other fees so determined by law. 8. TRANSFERABILITY OF LEASE. Subject to the provisions of Article 10 below, LESSEE shall NOT sublease, assign, or transfer SAID PROPERTY (except for a lease of the gift shop within the casino, for which permission is hereby granted by LESSOR) without the prior written permission of the Secretary of State or his successor, which permission shall not arbitrarily or unreasonably be withheld. 9. PUBLIC ACCESS ASSURED. LESSEE covenants and agrees to maintain free public access to SAID PROPERTY during the term of the lease, subject to rules and regulations reasonably necessary to ensure the safety and convenience of all users. This provision does not imply free access to enter the casino vessel. LESSEE further covenants to construct and maintain all piers, wharfs and boardwalks shown on Exhibit 1 attached hereto. 10. LEASEHOLD MORTGAGEE PROTECTIONS This Article is included to give additional rights to the Leasehold Mortgagee, as defined herein. Unless specifically so stated, the additional rights herein shall not amend the remaining provisions of the Lease with regard to the LESSEE, and may not be exercised, claimed or used in any manner by the LESSEE. (a) LESSOR does hereby consent to a Leasehold Construction and Permanent Deed of Trust, Security Agreement and Fixture Filing with Assignment of Rents, executed by the LESSEE as Trustor in favor of First Trust National Association, as Beneficiary, dated as of November 10, 1993, and a Leasehold Construction and 4 Permanent Deed of Trust, Security Agreement and Fixture Filing with Assignment of Rents (Subordinated), executed by the LESSEE, as Trustor, in favor of Boomtown, Inc., as Beneficiary, collectively referred to as the Leasehold Mortgage. The Leasehold Mortgage will be a lien on the interest of the LESSEE in certain real estate described in and leased to the LESSEE pursuant to a Ground Lease, as amended, dated as of October 19, 1993, by and between the LESSEE and Raphael Skrmetta and public trust tideland leasehold property interest described herein. This Leasehold Mortgage is not an encumbrance on the fee interest in the public trust tidelands real property leased from the State of Mississippi, but is limited strictly to a leasehold interest only. Furthermore, it is understood and agreed that in the event the Leasehold Mortgage holder should foreclose, it shall have the right to make a one time assignment of SAID PROPERTY to any financially responsible person licensed by the Mississippi Gaming Commission. (b) When a notice of default or termination is to be given to the LESSEE under the terms of this Lease, such notice shall also be given to the Leasehold Mortgagee at the following address: First Trust National Association, First Trust Center, 180 East Fifth Street, St. Paul, Minnesota, 55101; and the Trustee thereunder at the following address: Stephen H. Leech, Jr., c/o Phelps Dunbar, Security Center North, 200 S. Lamar Street, Suite 500, Jackson, Mississippi, 39225. Should there be more than one (1) Leasehold Mortgagee, only one address shall be designated. (c) For purposes of this Lease, "Leasehold Mortgage" means the deed of trust, mortgage or lien consented to in paragraph (a) above, on this Lease Agreement and/or the LESSEE's leasehold interest under this Lease Agreement, which shall include facilities constructed or placed on SAID PROPERTY including any vessels, and "Leasehold Mortgagee" shall mean the beneficiary or beneficiaries under the Leasehold Mortgage. Any Leasehold Mortgagee may exercise any of its right hereunder through a designee, nominee, or wholly owned subsidiary. (d) Notwithstanding anything to the contrary in this Article or elsewhere in this Lease: (1) LESSOR consents to the execution, delivery and recording or filing of the 5 Leasehold Mortgage and the collateral assignment of such Leasehold Mortgage; (2) LESSOR acknowledges that any beneficiary of the Leasehold Mortgage (and/or their representatives or assignees) are Leasehold Mortgagee(s) for all purposes of this Lease Agreement and no further conditions need to be satisfied for such holder (and/or their representatives or assignees) to be Leasehold Mortgagee. (e) If the Leasehold Mortgagee, as such term is hereinabove defined, shall forward to LESSOR a copy of the Leasehold Mortgage together with a written notice setting forth its name and address, then any such copy of said mortgage and any such notice shall be deemed also to have been forwarded to any successor to LESSOR's interest in SAID PROPERTY and until the time, if any, that said mortgage shall be satisfied of record or said Leasehold Mortgagee shall give LESSOR written notice that said mortgage has been satisfied, and further, LESSOR agrees and acknowledges as follows for the benefit of the Leasehold Mortgagee (all of which agreements and covenants shall be cumulative, so that if a Leasehold Mortgagee exercises rights or remedies under any one of the following paragraphs the same shall not be deemed an election of remedies and the Leasehold Mortgagee shall continue to have all other rights and remedies provided for below): (1) LESSOR shall not accept any voluntary cancellation, surrender, termination or abandonment of the Lease by LESSEE and no modification or amendment of this Lease shall be binding upon the Leasehold Mortgagee or affect the lien of the leasehold Mortgage if done without the written consent of the Leasehold Mortgagee. (2) If LESSOR shall give any notice, demand or election (hereafter in this paragraph collectively referred to as "notices") to LESSEE hereunder, LESSOR shall at the same time send a copy of such notice by United States Mail, postage prepaid, certified mail, to the Leasehold Mortgagee, and the giving of such notice shall be deemed complete upon the date the United States mail certifies that notice was delivered to the Leasehold Mortgagee. No notice given by LESSOR to LESSEE shall be binding upon or affect the Leasehold Mortgagee unless a copy of said notice shall be delivered as provided herein 6 to said Leasehold Mortgagee. In the case of any assignment of the mortgage or mortgages held by it or change in address of any Leasehold Mortgagee, said assignee of Leasehold Mortgagee, by written notice by United States Mail, postage prepaid, certified mail, to LESSOR, may change the name of said Leasehold Mortgagee and/or the address to which such copies of notices are to be sent by notice to LESSOR. (3) Notwithstanding anything to the contrary herein, the Leasehold Mortgagee shall have the right to perform any term, covenant, condition or agreement of this Lease to be performed by LESSEE (excluding any covenant, condition or term in which the performance thereof would require a gaming license) and to remedy any default by LESSEE hereunder, and LESSOR shall accept such performance by the Leasehold Mortgagee with the same force and effect as if furnished by LESSEE. However, should Leasehold Mortgagee exercise its rights under this provision, it will indemnify and hold LESSOR harmless from and against any and all loss, costs, liability and expense (including reasonable attorneys' fees) resulting from such action to the extent and so long as LESSOR's actions are pursuant to and in compliance with instructions from the Leasehold Mortgagee. (4) If LESSOR shall give a notice by United States Mail, postage prepaid, certified mail, of a default by LESSEE under this Lease and if such default shall not be remedied within any applicable grace period and LESSOR shall become entitled to re-enter SAID PROPERTY or terminate this Lease, then, before re-entering SAID PROPERTY or terminating this Lease, LESSOR shall give the Leasehold Mortgagee not less than thirty (30) days additional written notice of the default and shall allow the Leasehold Mortgagee such additional thirty (30) days within which to cure the default, or, in the case of a default (other than a default in the payment of any rent or other sum of money under this Lease) which cannot in the exercise of diligence be cured within said thirty (30) day period, shall allow the Leasehold Mortgagee such additional thirty (30) days to commence the curing of the default, in which event LESSOR shall not re-enter 7 SAID PROPERTY or terminate this Lease, so long as the Leasehold Mortgagee, or LESSEE, is diligently and in good faith engaged in curing default, so long as all payments under the Lease remain current as described in the Lease during the additional time to cure. (5) LESSEE may delegate irrevocably to the Leasehold Mortgagee the authority to exercise any or all of LESSEE's rights hereunder (including without limitation the authority to exercise any option to extend or renew the term hereof), but no such delegation shall be binding upon LESSOR unless and until either LESSEE or the Leasehold Mortgagee shall give to LESSOR a true copy by United States Mail, postage prepaid, certified mail, of a written instrument effecting such delegation and indemnifying LESSOR for any dispute between Lessor and Leasehold Mortgagee relating to such delegation or any conflicting claims as between LESSEE and Leasehold Mortgagee so long as LESSOR's actions are in compliance with and pursuant to instructions from the Leasehold Mortgagee. For the purpose of exercising such rights, Leasehold Mortgagee shall, for the purposes of this Lease, be deemed to be the LESSEE. However, LESSEE shall remain entitled to receive the notices provided for under the Lease. (f) If LESSOR terminates this Lease, then LESSOR will notify the Leasehold Mortgagee of such termination (a "Termination Notice"), which notice shall set forth all sums due to LESSOR under the Lease, and upon the written request of the Leasehold Mortgagee, LESSOR will enter into a now lease of SAID PROPERTY with the Leasehold Mortgagee for the remainder of the Lease term, effective as of the date of such termination, at the rent and additional rent and upon the terms, provisions, covenants and agreements herein contained (including, without limitation, all rights, options, or privileges to extend or renew the term hereof) provided: (1) the Leasehold Mortgagee shall request LESSOR for such a new lease within thirty (30) days after the date of the Termination Notice and such written request by United States Mail, postage prepaid, certified mail, is 8 accompanied by payment to LESSOR of all sums then due to LESSOR under this Lease as described in the Termination Notice; (2) the Leasehold Mortgagee shall pay to LESSOR, at the time of the execution and delivery of said new lease, any and all reasonable expenses, including legal and attorneys' fees, to which the LESSOR shall have been subjected by reason of such termination; and (3) the Leasehold Mortgagee shall, on or before execution and delivery of said new lease, perform and observe all the other covenants and conditions on LESSEE's part to be performed and observed to the extent that LESSEE shall have failed to perform and observe the same, except that (a) with respect to any default which cannot be cured by the Leasehold Mortgagee until it obtains possession of SAID PROPERTY, the Leasehold Mortgagee shall have a reasonable time after the Leasehold Mortgagee obtains possession, to cure such default, provided the Leasehold Mortgagee shall first agree in writing to proceed diligently to remedy said default after it obtains possession of SAID PROPERTY and shall in fact proceed diligently and in good faith to do so and shall in fact so do, and (b) in no event shall the Leasehold Mortgagee be required to cure a default related to bankruptcy, insolvency, a prohibited transfer, failure to deliver financial information relating to LESSEE, (to the extent, if any, that any of the foregoing actually constitute(s) a non-monetary default under this Lease), and any other non-monetary default that by its nature relates only to LESSEE or its affiliates or can reasonably be performed only by LESSEE or its affiliates. Upon execution and delivery of such new lease, any subleases which may have theretofore been assigned and transferred to LESSOR shall thereupon be assigned and transferred by LESSOR to the new lessee. During the period from the date of the termination of this Lease until the date the term of the new lease commences, LESSOR shall not terminate any sublease or seek to recover possession of any sublet space without permission of the Leasehold Mortgagee, except that LESSOR may elect to do so by reason of a default (beyond any applicable notice or grace periods) by 9 any subtenant under the terms, covenants or conditions on such subtenant's part to be performed or complied with pursuant to such sublease. (g) Any now lease entered into pursuant to this Lease shall be in recordable form. Notice is hereby given to any intervening claimants that such new lease shall be superior to all rights, liens and interests intervening between the date of this lease and the date of such new lease period. Such new lease shall be free of all rights of the originally named LESSEE hereunder. The provisions of the immediately preceding sentence shall be self-executing. LESSOR, however, does not in any way assure, guarantee or warrant that said new lease shall be superior under applicable law and therein granted a priority status. (h) Upon written request of LESSEE or of the Leasehold Mortgagee, LESSOR will: (1) deliver to them or any of them a separate written instrument signed and acknowledged by LESSOR setting forth and confirming the provisions of this Lease; (2) acknowledge to them or any of them in writing the receipt by LESSOR of any notice or instrument received by the LESSOR pursuant to the provisions of this Lease. (i) To the best of the ability of the LESSOR, when a new lease is entered into with the Leasehold Mortgagee or its designee (such holder or designee being herein called the "Acquiring Holder" and the leasehold mortgage of such Acquiring Holder being herein called the "Acquiring Holder's Leasehold Mortgage"), the liens on and estates and other interests in SAID PROPERTY or this Lease of all persons holding directly or indirectly under or through LESSEE (including the Acquiring Holder's Leasehold Mortgage), other than liens, estates and interests which are subordinate to the Acquiring Holder's Leasehold Mortgage, shall immediately and without documentation continue in effect, attach to the new lease and be reinstated as to each other to the same extent, and in the same manner, order and priority, as if (1) the new lease were this Lease, (2) this Lease had not been terminated and (3) the Acquiring Holder had acquired the leasehold estate under this Lease by 10 assignment on the date the term of the new lease commences. For the purposes of the preceding sentences, each lien, estate or interest which could have been extinguished by the foreclosure of the Acquiring Holder's Leasehold Mortgage shall be deemed to be subordinate to the Acquiring Holder's Leasehold Mortgage. (j) Notwithstanding anything in this Lease to the contrary, the Leasehold Mortgagee shall be entitled to participate in any proceedings relating to any condemnation of all or part of the Lease or the leasehold interest created by this Lease. In both a partial and total taking, any award paid with respect to the Lease or the Leasehold Interest created by this Lease shall first be applied to pay off in full, the Indebtedness secured by the Leasehold Mortgage. Notwithstanding the foregoing, in the event of a partial condemnation, and with the consent of the Leasehold Mortgagee, any condemnation proceeds may be applied instead to restore the portion of SAID PROPERTY not condemned pursuant to disbursement procedures deemed appropriate by the Leasehold Mortgagee. (k) Notwithstanding anything in this Lease to the contrary, all proceeds of fire and other hazard insurance policies shall be delivered to the Leasehold Mortgagee, if any. Such insurance proceeds shall be applied first to pay off in full, in order of priority, the indebtedness secured by the Leasehold Mortgage, or as otherwise provided in the senior Leasehold Mortgage. The Leasehold Mortgagees are hereby empowered to participate in any settlement, arbitration or proceeding involving such a casualty. (l) The Leasehold Mortgagee shall have the right, by giving notice in writing by United States Mail, postage prepaid, certified mail, to LESSOR, to irrevocably and exclusively delegate any rights and remedies granted by this Lease to the Leasehold Mortgage to any collateral assignee of the Leasehold Mortgagee's Leasehold Mortgage. Such collateral assignee shall be entitled to all the same rights, benefits, privileges, protections and notices as would apply to the Leasehold Mortgagee. In the event of any conflicting claims between the Leasehold Mortgagee and a collateral assignee of such Leasehold Mortgagee's Leasehold Mortgage, LESSOR shall honor the claims of the collateral assignee (to the exclusion of the claims of the Leasehold 11 Mortgagee), provided that such collateral assignee agrees to indemnify LESSOR and hold LESSOR harmless from and against any and all loss, cost, liability and expense (including reasonable attorneys' fees) arising from any litigation or other dispute between such collateral assignee and the Leasehold Mortgagee from which its rights derive. (m) Within fifteen days after written request therefor from the Leasehold Mortgagee, LESSOR shall deliver to the Leasehold Mortgagee a certificate signed by LESSOR in form reasonably designated by the Leasehold Mortgagee, certifying as to: (1) the rent payable under this Lease; (2) the term of this Lease and the status of LESSEE's extension rights, if any; (3) the nature of any known defaults by LESSEE alleged by LESSOR; and (4) any other matters reasonably requested by the Leasehold Mortgagee. (n) Should Leasehold Mortgagee for any reason take possession of SAID PROPERTY, it shall be subject to and comply fully with all of the provisions and conditions of this Lease which would bind the LESSEE, but only for so long as the Leasehold Mortgagee has not assigned its interest under the lease or abandoned SAID PROPERTY. (o) The LESSOR agrees with Mortgagee of the Leasehold Mortgagee consented to in subparagraph (a) of this Article that the rights hereunder of Leasehold Mortgagee shall be exercisable by such Leasehold Mortgagee in the order of the priority of lien or other security interest of their respective Leasehold Mortgage, but it shall not be the duty or obligation of the LESSOR to assure compliance with this provision. (p) LESSOR consents to any exercise of remedies by any Leasehold Mortgagee including acceptance of an assignment, deed or other conveyance in lieu of foreclosure. (q) Any notice which LESSOR is required to give to any Leasehold Mortgagee hereunder shall be deemed to have been given when the United States Postal Service certifies that such notice was delivered to the Leasehold Mortgagee at the address 12 specified in this lease or at such other address as may be specified from time to time by the Leasehold Mortgagee. 11. DEFAULT. The parties herein expressly agree that if DEFAULT shall be made in the payment of any tax, assessment or rent due pursuant to this LEASE, then and in any such event of DEFAULT it shall be lawful for LESSOR to enter upon SAID PROPERTY, or any part thereon, upon LESSOR's thirty (30) day written notice to LESSEE, either with or without process of law, to re-enter and repossess the same, and to distrain for any rent or assessment that may be due thereon, at the election of LESSOR, but nothing herein is to be construed to mean that LESSOR is not permitted to hold the said LESSEE liable for any unpaid rent or assessment to that time. As to all other conditions, covenants, and obligations imposed on LESSEE herein, enforcement shall be by proceeding at law or in equity against any person violating or attempting to violate said conditions, covenants, and obligations, to restrain violation and to recover damages, if any, including reasonable expenses of litigation and reasonable attorney's fees, which LESSEE expressly agrees to pay. Such enforcement by proceedings at law or in equity may be instituted at any time after thirty (30) days written notice to LESSEE if the default or violation has not been corrected within that thirty (30) day period. Invalidation of any provision of this lease by judgment or court order shall, unless agreed otherwise by the parties, operate as an approved cancellation of this lease. 12. FORFEITURE, DEFAULT OR CANCELLATION. In the event of any FORFEITURE, DEFAULT OR CANCELLATION of this lease or termination of the term as aforesaid, said LESSEE shall quit, deliver up and surrender possession of SAID PROPERTY, and thereupon this lease and all agreements and covenants on LESSOR's behalf to be performed and kept, shall cease, terminate and be utterly void, the same as if the lease had not been made. In addition thereof, LESSOR shall be entitled to whatever remedies It may have at law or 13 equity for the collection of any unpaid rental hereunder, or for any other sums, for damages or otherwise, that it may have sustained on account of LESSEE'S nonfulfillment or nonperformance of the terms and conditions of this lease. Immediately upon the termination of this lease, whether by FORFEITURE, DEFAULT, or CANCELLATION, LESSOR shall be entitled to take possession of SAID PROPERTY, custom and usage to the contrary notwithstanding. If LESSEE declines or fails to remove structures and equipment occupying and erected upon the leased premises within ninety (90) days after expiration or termination of this lease, such structures and equipment will be deemed forfeited by LESSEE, and may be removed and/or sold by LESSOR after ten (10) days written notice by certified mail addressed to LESSEE. Any costs incurred by LESSOR in removal of said structures and equipment shall be paid for from the proceeds of sale of such structures and equipment. If funds derived from sale of structures and equipment are insufficient to pay costs of removal, LESSOR shall have, and is hereby granted a lien upon the interest, if any, of LESSEE enforceable by law provided. 13. RENT NOT REFUNDABLE. LESSOR and LESSEE agree that any rent paid during the term of this lease is non-refundable and LESSEE waives any right or claim it may have to refund of rents paid under the term of this lease. 14. IMPROVEMENTS. LESSOR acknowledges that the improvements which presently exist and which are to be constructed on SAID PROPERTY are not the property of LESSOR. LESSEE shall not construct under the terms of this lease any building or pier of any type on adjoining State property. 14 15. RESTRICTIONS ON USE. LESSEE shall comply with any and all applicable federal, state, county or city laws, statutes, regulations, building codes, building requirements, safety or conservation regulations, fire codes, ordinances, pollution standards, or zoning regulations. LESSEE specifically agrees to provide parking for all permitted uses developed on SAID PROPERTY in conformance with City of Biloxi requirements. LESSEE further agrees to conform with City of Biloxi Landscaping Rules and Regulations. LESSEE further agrees not to fill or cover more than 66.7% of the surface area of SAID PROPERTY with structures or other improvements of any kind in order to maintain at least one third of the surface area of SAID PROPERTY as open water. If LESSEE fails to make permitted use of SAID PROPERTY or abandons SAID PROPERTY, or uses SAID PROPERTY in violation of any applicable law or regulation as aforesaid, this lease may be terminated or canceled by LESSOR after thirty (30) days written notice to LESSEE. 16. SUSPENSION OR CANCELLATION OF LICENSE. Should the Gaming Commission suspend or cancel the gaming license pursuant to which the "dockside casino" contemplated by this lease is operated, said suspension or cancellation shall, at the option of the LESSOR, be sufficient grounds for immediate termination of the lease and removal of the casino vessel at the sole expense of LESSEE. 17. NO CLAIM OF TITLE OR INTEREST. LESSEE, in accepting this lease, does hereby agree that no claim of title or interest to SAID PROPERTY shall be made by reason of the occupancy or use thereof; that all title and interest to SAID PROPERTY is vested in the LESSOR. LESSEE further acknowledges and agrees that he is entitled to no rights to adjoining submerged lands or tidelands as a result of this lease. 15 18. CATASTROPHIC DESTRUCTION. In the event of catastrophic destruction by natural causes of LESSEE'S improvements on SAID PROPERTY, LESSEE may terminate this lease at its option, provided SAID PROPERTY is surrendered in a condition at least equal to that at the inception of this lease. LESSOR agrees that it shall interpose no objection should LESSEE decide to rebuild those improvements demolished in such a catastrophe. 19. DUE DILIGENCE. LESSEE shall be responsible for any damages that may be caused to LESSOR'S property by the activities of LESSEE under this lease, and shall exercise due diligence in the protection of other property of LESSOR in the vicinity thereof against damage or waste from any and all causes. LESSEE shall not deposit any refuse on any State property adjoining SAID PROPERTY. Disposition of refuse and waste shall be consistent with local and State health regulations. 20. INDEMNITY AND HOLD HARMLESS. LESSEE agrees to hold and save harmless, protect and indemnify LESSOR, the Secretary of State and his successors, employees, officers and agents, from and against any and all loss, damages, claims, suits or actions at law or equity, judgments and costs, including attorney's fees, which may arise or grow out of any injury or death of persons or loss or damage to property connected with LESSEE'S exercise of any right granted or conferred hereby, or LESSEE'S use, maintenance, operation or condition of the property herein leased or the activities thereon conducted by LESSEE, whether sustained by LESSEE, his respective agents or employees, or by any other persons, or corporations which seek to hold LESSOR liable. In addition to the general indemnity agreement set forth in the immediately preceding paragraph, LESSEE also specifically agrees to hold and save harmless, protect and indemnify LESSOR, the Secretary of State and his successors, employees, officers and agents, from and against any and all loss, damages, claims, suits or actions at law or equity, judgments and costs, including attorney's fees, which may 16 arise or grow out of LESSOR'S reliance upon LESSEE'S representation that LESSEE has the right to occupy the uplands adjacent to SAID PROPERTY and to exercise littoral rights in connection therewith. In executing this Lease, LESSOR is relying on a survey and/or legal description (see Exhibit 1) provided by the LESSEE. LESSEE expressly assumes all liability for the correctness thereof and expressly agrees to indemnify and save harmless LESSOR, its employees, officers and agents, for all liability, damages (including damages to land, aquatic life and other natural resources), expenses, causes of actions, suits, claims, costs, fees, including attorneys' fees and costs, penalties (civil and criminal) or judgments arising out of State's reliance on LESSEE's survey. 21. QUIET AND PEACEFUL POSSESSION. LESSEE shall have quiet and peaceful possession of SAID PROPERTY so long as compliance is made by LESSEE with the terms of this agreement. LESSEE agrees to deliver possession of SAID PROPERTY peaceably and promptly within ten (10) days after the expiration or termination of this lease. 22. RIGHT OF ENTRY. LESSOR reserves the right to enter onto SAID PROPERTY to inspect the premises to determine compliance with the lease terms herein. 23. PERMITTED USE. All property of LESSEE shall be maintained by LESSEE at LESSEE'S expense and in a clean, orderly, healthful, and attractive condition, subject to inspection by LESSOR or his representative at any time. LESSEE shall, at its sole cost and expense, make any and all additions to, repairs, alterations, maintenance, replacements, or changes about and to the improvements on SAID PROPERTY, which may be required by any public authority affecting the property and its use. It is expressly agreed by and between the parties that LESSEE will not occupy or use, nor permit to be occupied or used, SAID PROPERTY for any unlawful purposes. 17 It is specifically agreed that LESSEE will use SAID PROPERTY for the docking of a single gaming vessel as shown on attached Exhibit 1, to be operated under a Mississippi gaming license issued to LESSEE, as shown in Exhibit 3 attached hereto. LESSEE shall commence permitted use on or before September 1, 1994. 24. LESSOR NOT RESPONSIBLE. LESSEE assumes full responsibility for the condition of the promises and LESSOR shall not be liable or responsible for any damages or injuries caused by any vices or defects therein to LESSEE or to any occupant or to anyone in or on SAID PROPERTY who derives his right to be thereon from LESSEE. LESSEE agrees to maintain the leased premises in good condition, keeping the structures and equipment located thereon in a good state of repair in the interests of public health and safety. 25. LIABILITY INSURANCE. LESSEE shall secure and maintain throughout the term of the lease a liability insurance policy providing coverage in an amount not less than Five Million Dollars against accidents, death or bodily injury or loss or damage to property occurring on or in connection to SAID PROPERTY, or LESSEE's vessel, or arising out of or associated with any activity of LESSEE on SAID PROPERTY. LESSEE shall annually supply a certificate evidencing said insurance to LESSOR. 26. RESERVATION OF MINERAL RIGHTS. LESSEE further covenants and agrees that this lease and interest of LESSEE SHALL NOT include any mineral, oil or gas, coal, lignite, or other subterranean rights WHATSOEVER. 27. RIGHT TO CANCEL UPON INSOLVENCY OF LESSEE. LESSEE covenants and agrees that if an execution or process is levied upon SAID PROPERTY or if a Petition in Bankruptcy be filed by or against LESSEE in any court of competent jurisdiction, LESSOR shall have the right at its option, to cancel 18 this lease. LESSEE covenants and agrees that this lease and the interest of LESSEE hereunder shall not, without the written consent of the Secretary of State or his successor first obtained, be subject to garnishment or sale under execution or otherwise in any suit or proceeding which may be brought by or against said LESSEE. 28. WAIVER NOT A DISCHARGE. No failure, or successive failures, on the part of LESSOR to enforce any provisions, nor any waiver or successive waivers on its part of any provision herein, shall operate as a discharge thereof or render the same inoperative or impair the right of LESSOR to enforce the same upon any renewal thereof or in the event of subsequent breach or breaches. 29. CANCELLATION UPON FAILURE TO COMPLY. LESSEE'S failure to comply with the provisions of this lease shall result, at the option of LESSOR, in the termination or cancellation of this lease within thirty (30) days after written notice of default is given, unless such default is cured within thirty (30) days of receipt of such notice, except as set forth in Article 15. 30. NOTICE. All notifications required under the terms of this lease shall be made by U.S. mail, return receipt requested, to the parties at the following addresses: Secretary of State: 401 Mississippi Street Post Office Box 136 Jackson, Mississippi 39205 Mississippi-I Gaming, L.P.: Wayne Yarbrough, General Manager Post Office Box 369 Biloxi, Mississippi 39533 Copy to: Thomas B. Shepherd III, Esq. Watkins Ludlam & Stennis Post Office Box 427 Jackson, Mississippi 39205-0427 Leasehold Mortgagee: First Trust National Association First Trust Center 180 East Fifth Street St. Paul, Minnesota 55101 19 Trustee: Stephen H, Leech, Jr. c/o Phelps Dunbar Security Center North 200 S. Lamar Street, Suite 500 Jackson, Mississippi 39225 31. LAWS OF MISSISSIPPI TO GOVERN. This agreement is to be governed by the laws of the STATE OF MISSISSIPPI, both as to Interpretation and performance. IN WITNESS WHEREOF, this lease is executed by LESSOR and LESSEE, this the 15 day of August, 1994. LESSOR: ------ STATE OF MISSISSIPPI DICK MOLPUS SECRETARY OF STATE BY: /s/ James O. Nelson, II ------------------------------ JAMES O. NELSON, II ASSISTANT SECRETARY OF STATE FOR PUBLIC LANDS LESSEE: ------ MISSISSIPPI-I GAMING, L.P., a Mississippi Limited Partnership By: Bayview Yacht Club, Inc. a Mississippi Corporation, its Sole General Partner BY: /s/ Richard N. Scott, ----------------------------- RICHARD N. SCOTT, PRESIDENT APPROVED BY THE GOVERNOR of the State of Mississippi on the 15 day of August, 1994. [SIGNATURE ILLEGIBLE] --------------------------------- GOVERNOR 20 STATE OF MISSISSIPPI COUNTY OF Hinds PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for said county and state, on this 15 day of August, 1994, within my jurisdiction the within named KIRK FORDICE, personally known to me to be the GOVERNOR of the STATE OF MISSISSIPPI, who acknowledged that he executed the above and foregoing LEASE AGREEMENT as the act and deed of said GOVERNOR for and on behalf of the STATE OF MISSISSIPPI, on the date and for the purposes therein stated, being first duly authorized to so do. [SIGNATURE ILLEGIBLE] ----------------------- Assistant Secretary of State My Commission Expires: January 1, 1996 - ---------------------- 21 [LETTERHEAD OF WATKINS LUDLAM & STENNIS APPEAR HERE] May 2, 1994 (601) 949-4863 VIA HAND DELIVERY Mr. Gary McGee Mississippi Gaming commission 723 North President Street Suite 100 Jackson, MS RE: Mississippi I Gaming, L.P. d/b/a Boomtown Biloxi Dear Gary; I have enclosed a revised Form 3001 Statement of Games, Tables and Slot Machines as a supplement to the above captioned limited partnership's application for a gaming license. By copy of this letter I am also providing this statement to Margaret Bretz of the Secretary of State's office, Public Lands Division for the tideland's lease application. Please call me if you have any questions regarding the above or need any further information. Sincerely, WATKINS LUDLAM & STENNIS /s/ Cheryn L. Nett Cheryn L. Nett CLN/ssb Enclosures cc: Wayne Yarbrough Margaret Bretz (w/enclosures) Thomas B. Shepherd III, Esq. EXHIBIT 2 STATEMENT OF GAMES, TABLES, AND SLOT MACHINES GAMES NO. TABLES NO. SLOT MACHINES NO. Craps - 5 ___ ??? 0 ___ $.05 219 ___ Roulette -2 ___ ??? - 8 ___ $.10 0 ___ Twenty-one - 24 1 Multi-Action ___ $.25 490 ___ Keno - 1 ___ ______________ ___ ???? 27 Wheel of Fortune 0 ___ ______________ ___ $ 1.00 206 ___ Casino de Fal 0 ___ ______________ ___ $ 5.00 22 ___ Baccarat 0 ___ ______________ ___ $ 25.00 2 ___ Faro 0 ___ ______________ ___ $100.00 0 ___ ??? 0 ___ ______________ ___ $500.00 0 ___ ??? - 1 ___ ______________ ___ _____________ ___ Chuck-A-Luck 0 ___ ______________ ___ _____________ ___ ??? 0 ___ ______________ ___ _____________ ___ Black Jack 0 ___ ______________ ___ _____________ ___ Seven-and-a-half 0 ___ ______________ ___ _____________ ___ Big Injue 0 ___ ______________ ___ _____________ ___ Klondike 0 ___ ______________ ___ _____________ ___ Beat the Banker 0 ___ ______________ ___ _____________ ___ Other (describ) 2- Caribbean Stud ___ _____________ ___ TOTAL 35 ___ TOTAL 9 ___ TOTAL 966 ___ PAGE 2 OF 2 [LETTERHEAD OF MORAN, SEYMOUR & ASSOC. APPEARS HERE] LEGAL DESCRIPTION - OVERALL TIDELANDS BOUNDARY - ---------------------------------------------- COMMENCE at a point on the North margin of Bay View Avenue, said point being at the intersection of said North margin with the extension of the East margin of Main Street; thence run North 0 degrees 30'07" East, for a distance of 352.72 feet to a point on the waters edge in the Back Bay of Biloxi, and the POINT OF BEGINNING; thence continue North 0 degrees 30'07" East, for a distance of 627.28 feet to a point; thence run South 89 degrees 29'53" East, for a distance of 421.62 feet to a point; thence run South 0 degrees 30'07" West, for a distance of 567.28 feet to a point on the waters edge in the Back Bay of Biloxi, thence run along the waters edge, the following bearings and distances, to wit; North 89 degrees 00'25" West, 54.89 feet, North 59 degrees 34'39" West, 35.62 feet; North 02 degrees 39'47" East, 9.06 feet; North 65 degrees 11'04" West, 89.88 feet; North 0 degrees 47'05" West, 18.55 feet; North 07 degrees 16'10" West, 25.28 feet; South 75 degrees 11'01" West, 39.18 feet, South 09 degrees 13'15" East, 7.92 feet; South 81 degrees 54'06" West, 49.27 feet; North 08 degrees 11'59" West, 22.25 feet; South 81 degrees 26',23" West, 94.03 feet; South 11 degrees 19'27" East, 27,44 feet; South 14 degrees 59'07" East, 79.84 feet and South 65 degrees 01'07" West, for a distance of 106.37 feet to the POINT OF BEGINNING, containing 222,022 Square Feet, or 5.10 Acres, approximately. EXHIBIT 1 CERTIFICATION - ------------- This is to CERTIFY that I have surveyed the property hereon described and del????, and that the measurements and other data indicated are correct to the best of my knowledge and belief. [SIGNATURE ILLEGIBLE] 6/29/94 - -------------------------------- ------------- ?RAH R.L.S 1779 Dated [PLAN APPEARS HERE] This property has been graphically plotted to be in Zone(s) "A9" & "A12" ------------ as published by the Federal Insurance Administration, Official Flood Hazard Map, Community Panel Number 289252 OODBC . revised 3/15/B4. ------------- ------- EXHIBIT 1 Page 2 of 2 MISSISSIPPI-I GAMING, INC. LEASE INFORMATION PROPERTY IDENTIFICATION/LOCATION: - --------------------------------- 222,022 square feet of submerged tidelands located in Section 28, Township 7 South, Range 9 West, in the second judicial district of Harrison County, Mississippi. LESSOR'S NAME AND ADDRESS: - -------------------------- Secretary of State State of Mississippi c/o Public Lands Division 401 Mississippi Street P. 0. Box 136 Jackson, MS 39205 LESSEE'S NAME AND ADDRESS: - -------------------------- Mississippi-I Gaming, L.P. P. 0. Box 369 Biloxi, MS 39533-0369 DATE CONTRACT EXECUTED: - ----------------------- Executed July 15, 1994; commencement date July 1, 1994. LEASE-TERMS/PRICE/PAYMENT TERMS: - -------------------------------- Ten years from commencement date (July 1, 1994 - June 30, 2004). Annual rent $525,000 for July 1, 1994 - June 30, 1999. Annual rent for the second five-year period of the lease will be determined in accordance with MISS. CODE ANN. Sec. 29-1-107 (2) (Supp. 1994) or as amended and revised. First year's rent is payable in four installments as follows: $ 90,000.00 August 1, 1994 $145,000.00 September 1, 1994 $145,000.00 October 1, 1994 $145,000.00 November1, 1994 Subsequent rent is due annually on or before July 1. RENEWAL TERMS/PRICE: - -------------------- Option to extend for a renewal term of five years subject to renegotiation of annual rent based on appraisal obtained by the lessor. 1 MISSISSIPPI-I GAMING, INC. LEASE INFORMATION OTHER TERMS/CONDITIONS: - ----------------------- If Boomtown expands the gaming area within the casino beyond 1,010 games, notice shall first be given to lessor and a corresponding adjustment to the annual rental shall be made. Boomtown cannot sublease, assign or transfer the property without prior written permission of the Secretary of State. Boomtown agrees to maintain free public access to the property and to construct and maintain all piers, wharfs and boardwalks existing at lease execution date (see Exhibit 1). Boomtown will pay all general taxes, special assessments, survey costs and recording fees on the property and improvements. Boomtown will not fill or cover more than 2/3 of the surface area of the property with structures or other improvements; 1/3 of the surface area must be open water. Boomtown must maintain a liability insurance policy providing coverage of at least $5,000,000. We must annually supply a certificate evidencing insurance. 2 STATE OF MISSISSIPPI SECRETARY OF STATE [LETTERHEAD OF STATE OF MISSISSIPPI] July 15, 1994 General Paul Harvey, Executive Director Mississippi Gaming Commission Post Office Box 23577 Jackson MS 39255-3577 Via Facsimile - 359-5731 - ------------------------ Re: Boomtown Casino (Mississippi-I Gaming, L.P.) Dear General Harvey: Mississippi-I Gaming, L.P. has executed a lease for public trust tidelands for its casino located in Biloxi. We therefore have no objection to the casino opening at this time. Thank you very much for your cooperation. Sincerely, /s/ Margaret Anne Bretz Margaret Anne Bretz Senior Attorney MAB:rd cc: Mr. Wayne Yarbrough PUBLIC TRUST TIDELANDS LEASE ---------------------------- STATE OF MISSISSIPPI COUNTY OF HINDS THIS AGREEMENT, made and entered into this the _____ day of ____________, 1994, by and between the SECRETARY OF STATE, with the approval of the GOVERNOR, for and on behalf of the STATE OF MISSISSIPPI, hereinafter referred to as "LESSOR," and Mississippi-I Gaming, L.P., doing business as Boomtown Biloxi Casino, a Mississippi Limited Partnership registered to do and doing business in the State of Mississippi, hereinafter referred to as "LESSEE." WITNESSETH: ----------- THAT FOR THE TERM and in consideration of the rentals hereinafter set forth, and covenants, conditions, and obligations to be observed and performed by LESSEE, LESSOR does hereby lease and rent unto LESSEE, pursuant to the authority of MISS. CODE ANN. (S) 29-1-107 (Supp. 1994), the following described submerged land or tideland, hereinafter referred to as SAID PROPERTY, to-wit: A parcel located in Section 28, Township 7 South, Range 9 West, in the Second Judicial District of Harrison County, Mississippi, more particularly described as follows: COMMENCE at a point on the North margin of Bay View Avenue, said point being at the intersection of said North margin with the extension of the East margin of Main Street; thence run North 0 degrees 30 minutes 7 seconds East, for a distance of 352.72 feet to a point on the water's edge in the Back Bay of Biloxi, and the POINT OF BEGINNING; thence continue North 0 degrees 30 minutes 07 seconds East for a distance of 627.28 feet to a point; thence run South 89 degrees 29 minutes 53 seconds East, for a distance of 421.62 feet to a point; thence run South 0 degrees 30 minutes 07 seconds West, for a distance of 567.28 feet to a point on the water's ' edge in the Back Bay of Biloxi, thence run along the waters edge, the following bearings and distances, to wit: North 89 degrees 00 minutes 25 seconds West, 54.89 feet, North 59 degrees 34 minutes 39 seconds West, 35.62 feet; North 02 degrees 39 minutes 47 seconds East, 9.06 feet; North 65 degrees 11 minutes 04 seconds West, 89.88 feet; North 00 degrees 47 minutes 05 seconds West, 18.55 feet; North 07 degrees 16 minutes 10 seconds west, 25.2B feet; South 75 degrees 11 minutes 01 seconds West, 39.18 feet; South 09 degrees 13 minutes 15 seconds East 7.92 feet; South 81 degrees 54 minutes 06 seconds West, 49.27 feet; North 08 degrees 11 minutes 59 seconds West, 22.25 feet; South 81 degrees 26 minutes 23 seconds West, 94.03 feet; South 11 degrees 19 minutes 27 seconds East, 27.44 feet; South 14 degrees 59 minutes 07 seconds East, 79.84 feet and South 65 degrees 01 minutes 07 seconds West, for a distance of 106.37 feet to the POINT OF BEGINNING, containing 222,022 square feet, or 5.10 acres, more or less. (See survey prepared by Terry J. Moran, Jr., R.L.S., dated June 29, 1994, attached hereto as Exhibit 1 and incorporated herein by reference.) 1. TERM. The primary term of this lease shall be for ten (10) years, beginning on the 1st day of July, 1994, and terminating on the 30th day of June, 2004. If LESSEE has compiled with all terms, covenants, conditions, and obligations of this lease, as of the expiration of the primary term, LESSEE shall have the option to extend this lease for a renewal term of five (5) years under the same terms and provisions of this lease, subject to the renegotiation of annual rental based on appraisal obtained by the LESSOR. 2. CONSIDERATION. The parties hereto agree that SAID PROPERTY contains 222,022 square feet of submerged lands or tidelands. The parties agree that consideration for this lease is in part predicated on LESSEE developing and operating a single dockside gaming facility licensed by the State of Mississippi which will contain up to 1,010 games as shown on Statement of Games dated April 27, 1994 from LESSEE to Mississippi State Tax Commission, a copy of which is attached hereto as Exhibit 2. Should LESSEE desire to expand the gaming area within its casino beyond these 1,010 games, notice shall first be given to LESSOR and a corresponding adjustment to the annual rental shall be made. During the period July 1, 1994, to June 30, 1999, LESSEE covenants and agrees to pay annual rental to LESSOR in the sum of FIVE HUNDRED TWENTY FIVE THOUSAND ($525,000.00) AND NO/100THS DOLLARS. Payment of the first year's rent shall be made in four (4) installments, with one payment of NINETY THOUSAND ($90,000.00) AND NO/100THS DOLLARS to be made on or before August 1, 1994, and the remaining balance of FOUR HUNDRED THIRTY FIVE THOUSAND ($435,000.00) AND NO/100THS DOLLARS to be paid in three (3) equal installments on or before the 1st days of September, October and November, 1994. 2 3. RENT ADJUSTMENT. LESSOR shall, at the end of the first five year period of the lease term, determine the annual rental in accordance with MISS. CODE ANN. Sec. 29-1-107(2) (Supp. 1994) or as amended by subsequent legislation and the adopted and published rules of the Secretary of State for the administration, control and leasing of public trust tidelands, as amended and revised. In the event LESSOR and LESSEE cannot agree on an adjusted rental amount, the lease may be canceled at the option of LESSOR, 4. PLACE AND TIME OF PAYMENT. Subject to Article 2 above regarding the first year's payment, rent shall be payable annually on or before July 1st to the STATE OF MISSISSIPPI and shall be submitted to the.SECRETARY OF STATE or his successor in office, through the Public Lands Division, 401 Mississippi Street, Post Office Box 136, Jackson, Mississippi 39205. 5. INTEREST PENALTY FOR PAST DUE RENT BALANCES. LESSEE shall pay a late charge equal to interest at the rate of twelve percent (12%) per annum from the date due until paid on any lease rentals, fees, or other charges due and payable hereunder, which are not paid within thirty (30) days of their due date. 6. RIGHT TO RE-LEASE. Pursuant to MISS. CODE ANN. (S) 29-1-107 (Supp. 1994), LESSEE is hereby granted the prior right, exclusive of all other persons, to re-lease at the expiration of this lease, as may be agreed upon between LESSEE and LESSOR, so long as LESSEE continues to present satisfactory evidence of LESSEE's right to occupy the adjacent uplands. 3 7. TAXES, SURVEY COSTS, RECORDING FEES. LESSEE covenants and agrees to pay any and all general taxes and special assessments, if ever any there be, applicable to the above described property and LESSEE'S interest therein and improvements thereon; further, LESSEE covenants and agrees to pay any and all survey costs and recording fees in connection with this lease or any other fees so determined by law. 8. TRANSFERABILITY OF LEASE. Subject to the provisions of Article 10 below, LESSEE shall NOT sublease, assign, or transfer SAID PROPERTY (except for a lease of the gift shop within the casino, for which permission is hereby granted by LESSOR) without the prior written permission of the Secretary of State or his successor, which permission shall not arbitrarily or unreasonably be withheld. 9. PUBLIC ACCESS ASSURED. LESSEE covenants and agrees to maintain free public access to SAID PROPERTY during the term of the lease, subject to rules and regulations reasonably necessary to ensure the safety and convenience of all users. This provision does not imply free access to enter the casino vessel. LESSEE further covenants to construct and maintain all piers, wharfs and boardwalks shown on Exhibit I attached hereto. 10. LEASEHOLD MORTGAGEE PROTECTIONS This Article is included to give additional rights to the Leasehold Mortgagee, as defined herein. Unless specifically so stated, the additional rights herein shall not amend the remaining provisions of the Lease with regard to the LESSEE, and may not be exercised, claimed or used in any manner by the LESSEE. (a) LESSOR does hereby consent to a Leasehold Construction and Permanent Deed of Trust, Security Agreement and Fixture Filing with Assignment of Rents, executed by the LESSEE as Trustor in favor of First Trust National Association, as Beneficiary, dated as of November 10, 1993, and a Leasehold Construction and 4 Permanent Deed of Trust, Security Agreement and Fixture Filing with Assignment of Rents (Subordinated), executed by the LESSEE, as Trustor, in favor of Boomtown, Inc., as Beneficiary, collectively referred to as the Leasehold Mortgage. The Leasehold Mortgage will be a lien on the interest of the LESSEE in certain real estate described in and leased to the LESSEE pursuant to a Ground Lease, as amended, dated as of October 19, 1993, by and between the LESSEE and Raphael Skrmetta and public trust tideland leasehold property interest described herein. This Leasehold Mortgage is not an encumbrance on the fee interest in the public trust tidelands real property leased from the State of Mississippi, but is limited strictly to a leasehold interest only. Furthermore, it is understood and agreed that in the event the Leasehold Mortgage holder should foreclose, it shall have the right to make a one time assignment of SAID PROPERTY to any financially responsible person licensed by the Mississippi Gaming Commission. (b) When a notice of default or termination is to be given to the LESSEE under the terms of this Lease, such notice shall also be given to the Leasehold Mortgagee at the following address: First Trust National Association, First Trust Center, 180 East Fifth Street, St. Paul, Minnesota, 55101; and the Trustee thereunder at the following address: Stephen H. Leech, Jr., c/o Phelps Dunbar, Security Center North, 200 S. Lamar Street, Suite 500, Jackson, Mississippi, 39225. Should there be more than one (1) Leasehold Mortgagee, only one address shall be designated. (c) For purposes of this Lease, "Leasehold Mortgage" means the deed of trust, mortgage or lien consented to in paragraph (a) above, on this Lease Agreement and/or the LESSEE's leasehold interest under this Lease Agreement, which shall include facilities constructed or placed on SAID PROPERTY including any vessels, and "Leasehold Mortgagee" shall mean the beneficiary or beneficiaries under the Leasehold Mortgage. Any Leasehold Mortgagee may exercise any of its right hereunder through a designee, nominee, or wholly owned subsidiary. (d) Notwithstanding anything to the contrary in this Article or elsewhere in this LEASE: (1) LESSOR consents to the execution, delivery and recording or filing of the 5 Leasehold Mortgage and the collateral assignment of such Leasehold Mortgage; (2) LESSOR acknowledges that any beneficiary of the Leasehold Mortgage (and/or their representatives or assignees) are Leasehold Mortgagee(s) for all purposes of this Lease Agreement and no further conditions need to be satisfied for such holder (and/or their representatives or assignees) to be Leasehold Mortgagee. (e) If the Leasehold Mortgagee, as such term is hereinabove defined, shall forward to LESSOR a copy of the Leasehold Mortgage together with a written notice setting forth its name and address, then any such copy of said mortgage and any such notice shall be deemed also to have been forwarded to any successor to LESSOR's interest in SAID PROPERTY and until the time, if any, that said mortgage shall be satisfied of record or said Leasehold Mortgagee shall give LESSOR written notice that said mortgage has been satisfied, and further, LESSOR agrees and acknowledges as follows for the benefit of the Leasehold Mortgagee (all of which agreements and covenants shall be cumulative, so that if a Leasehold Mortgagee exercises rights or remedies under any one of the following paragraphs the same shall not be deemed an election of remedies and the Leasehold Mortgagee shall continue to have all other rights and remedies provided for below): (1) LESSOR shall not accept any voluntary cancellation, surrender, termination or abandonment of the Lease by LESSEE and no modification or amendment of this Lease shall be binding upon the Leasehold Mortgagee or affect the lien of the Leasehold Mortgage if done without the written consent of the Leasehold Mortgagee. (2) If LESSOR shall give any notice, demand or election (hereafter in this paragraph collectively referred to as "notices") to LESSEE hereunder, LESSOR shall at the same time send a copy of such notice by United States Mail, postage prepaid, certified mail, to the Leasehold Mortgagee, and the giving of such notice shall be deemed complete upon the date the United States mail certifies that notice was delivered to the Leasehold Mortgagee. No notice given by LESSOR to LESSEE shall be binding upon or affect the Leasehold Mortgagee unless a copy of said notice shall be delivered as provided herein 6 to said Leasehold Mortgagee. In the case of any assignment of the mortgage or mortgages held by it or change in address of any Leasehold Mortgagee, said assignee of Leasehold Mortgagee, by written notice by United States Mail, postage prepaid, certified mail, to LESSOR, may change the name of said Leasehold Mortgagee and/or the address to which such copies of notices are to be sent by notice to LESSOR. (3) Notwithstanding anything to the contrary herein, the Leasehold Mortgagee shall have the right to perform any term, covenant, condition or agreement of this Lease to be performed by LESSEE (excluding any covenant, condition or term in which the performance thereof would require a gaming license) and to remedy any default by LESSEE hereunder, and LESSOR shall accept such performance by the Leasehold Mortgagee with the same force and effect as if furnished by LESSEE. However, should Leasehold Mortgagee exercise its rights under this provision, it will indemnify and hold LESSOR harmless from and against any and all loss, costs, liability and expense (including reasonable attorneys' fees) resulting from such action to the extent and so long as LESSOR's actions are pursuant to and in compliance with instructions from the Leasehold Mortgagee. (4) If LESSOR shall give a notice by United States Mail, postage prepaid, certified mail, of a default by LESSEE under this Lease and if such default shall not be remedied within any applicable grace period and LESSOR shall become entitled to re-enter SAID PROPERTY or terminate this Lease, then, before reentering SAID PROPERTY or terminating this Lease, LESSOR shall give the Leasehold Mortgagee not less than thirty (30) days additional written notice of the default and shall allow the Leasehold Mortgagee such additional thirty (30) days within which to cure the default, or, in the case of a default (other than a default in the payment of any rent or other sum of money under this Lease) which cannot in the exercise of diligence be cured within said thirty (30) day period, shall allow the Leasehold Mortgagee such additional thirty (30) days to commence the curing of the default, in which event LESSOR shall not re-enter 7 SAID PROPERTY or terminate this Lease, so long as the Leasehold Mortgagee, or LESSEE, is diligently and in good faith engaged in curing default, so long as all payments under the Lease remain current as described in the Lease during the additional time to cure. (5) LESSEE may delegate irrevocably to the Leasehold Mortgagee the authority to exercise any or all of LESSEE's rights hereunder (including without limitation the authority to exercise any option to extend or renew the term hereof), but no such delegation shall be binding upon LESSOR unless and until either LESSEE or the Leasehold Mortgagee shall give to LESSOR a true copy by United States Mail, postage prepaid, certified mail, of a written instrument effecting such delegation and indemnifying LESSOR for any dispute between Lessor and Leasehold Mortgagee relating to such delegation or any conflicting claims as between LESSEE and Leasehold Mortgagee so long as LESSOR's actions are in compliance with and pursuant to instructions from the Leasehold Mortgagee. For the purpose of exercising such rights, Leasehold Mortgagee shall, for the purposes of this Lease, be deemed to be the LESSEE. However, LESSEE shall remain entitled to receive the notices provided for under the Lease. (f) If LESSOR terminates this Lease, then LESSOR will notify the Leasehold Mortgagee of such termination (a "Termination Notice"), which notice shall set forth all sums due to LESSOR under the Lease, and upon the written request of the Leasehold Mortgagee, LESSOR will enter into a new lease of SAID PROPERTY with the Leasehold Mortgagee for the remainder of the Lease term, effective as of the date of such termination, at the rent and additional rent and upon the terms, provisions, covenants and agreements herein contained (including, without limitation, all rights, options, or privileges to extend or renew the term hereof) provided: (1) the Leasehold Mortgagee shall request LESSOR for such a new lease within thirty (30) days after the date of the Termination Notice and such written request by United States Mail, postage prepaid, certified mail, is 8 accompanied by payment to LESSOR of all sums then due to LESSOR under this Lease as described in the Termination Notice; (2) the Leasehold Mortgagee shall pay to LESSOR, at the time of the execution and delivery of said new lease, any and all reasonable expenses, including legal and attorneys' fees, to which the LESSOR shall have been subjected by reason of such termination; and (3) the Leasehold Mortgagee shall, on or before execution and delivery of said new lease, perform and observe all the other covenants and conditions on LESSEE's part to be performed and observed to the extent that LESSEE shall have failed to perform and observe the same, except that (a) with respect to any default which cannot be cured by the Leasehold Mortgagee until it obtains possession of SAID PROPERTY, the Leasehold Mortgagee shall have a reasonable time after the Leasehold Mortgagee obtains possession, to cure such default, provided the Leasehold Mortgagee shall first agree in writing to proceed diligently to remedy said default after it obtains possession of SAID PROPERTY and shall in fact proceed diligently and in good faith to do so and shall in fact so do, and (b) in no event shall the Leasehold Mortgagee be required to cure a default related to bankruptcy, insolvency, a prohibited transfer, failure to deliver financial information relating to LESSEE, (to the extent, if any, that any of the foregoing actually constitute(s) a non-monetary default under this Lease), and any other non-monetary default that by its nature relates only to LESSEE or its affiliates or can reasonably be performed only by LESSEE or its affiliates. Upon execution and delivery of such new lease, any subleases which may have theretofore been assigned and transferred to LESSOR shall thereupon be assigned and transferred by LESSOR to the new lessee. During the period from the date of the termination of this Lease until the date the term of the new lease commences, LESSOR shall not terminate any sublease or seek to recover possession of any sublet space without permission of the Leasehold Mortgagee, except that LESSOR may elect to do so by reason of a default (beyond any applicable notice or grace periods) by 9 any subtenant under the terms, covenants or conditions on such subtenant's part to be performed or complied with pursuant to such sublease. (g) Any now lease entered into pursuant to this Lease shall be in recordable form. Notice Is hereby given to any intervening claimants that such new lease shall be superior to all rights, liens and interests intervening between the date of this lease and the date of such new lease period. Such new lease shall be free of all rights of the originally named LESSEE hereunder. The provisions of the immediately preceding sentence shall be self-executing. LESSOR, however, does not in any way assure, guarantee or warrant that said new lease shall be superior under applicable law and therein granted a priority status. (h) Upon written request of LESSEE or of the Leasehold Mortgagee, LESSOR will: (1) deliver to them or any of them a separate written instrument signed and acknowledged by LESSOR setting forth and confirming the provisions of this Lease; (2) acknowledge to them or any of them in writing the receipt by LESSOR of any notice or instrument received by the LESSOR pursuant to the provisions of this Lease. (i) To the best of the ability of the LESSOR, when a new lease is entered into with the Leasehold Mortgagee or Its designee (such holder or designee being herein called the "Acquiring Holder" and the leasehold mortgage of such Acquiring Holder being herein called the "Acquiring Holder's Leasehold Mortgage"), the liens on and estates and other interests in SAID PROPERTY or this Lease of all persons holding directly or indirectly under or through LESSEE (including the Acquiring Holder's Leasehold Mortgage), other than liens, estates and interests which are subordinate to the Acquiring Holder's Leasehold Mortgage, shall immediately and without documentation continue in effect, attach to the new lease and be reinstated as to each other to the same extent, and in the same manner, order and priority, as if (1) the new lease were this Lease, (2) this Lease had not been terminated and (3) the Acquiring Holder had acquired the leasehold estate under this Lease by 10 assignment on the date the term of the.new lease commences. For the purposes of the preceding sentences, each lien, estate or interest which could have been extinguished by the foreclosure of the Acquiring Holder's Leasehold Mortgage shall be deemed to be subordinate to the Acquiring Holder's Leasehold Mortgage. (j) Notwithstanding anything in this Lease to the contrary, the Leasehold Mortgagee shall be entitled to participate in any proceedings relating to any condemnation of all or part of the Lease or the leasehold interest created by this Lease. In both a partial and total taking, any award paid with respect to the Lease or the Leasehold Interest created by this Lease shall first be applied to pay off in full, the Indebtedness secured by the Leasehold Mortgage. Notwithstanding the foregoing, in the event of a partial condemnation, and with the consent of the Leasehold Mortgagee, any condemnation proceeds may be applied instead to restore the portion of SAID PROPERTY not condemned pursuant to disbursement procedures deemed appropriate by the Leasehold Mortgagee. (k) Notwithstanding anything in this Lease to the contrary, all proceeds of fire and other hazard insurance policies shall be delivered to the Leasehold Mortgagee, if any. Such insurance proceeds shall be applied first to pay off in full, in order of priority, the indebtedness secured by the Leasehold Mortgage, or as otherwise provided in the senior Leasehold Mortgage. The Leasehold Mortgagees are hereby empowered to participate in any settlement, arbitration or proceeding involving such a casualty. (l) The Leasehold Mortgagee shall have the right, by giving notice in writing by United States Mail, postage prepaid, certified mail, to LESSOR, to irrevocably and exclusively delegate any rights and remedies granted by this Lease to the Leasehold Mortgage to any collateral assignee of the Leasehold Mortgagee's Leasehold Mortgage. Such collateral assignee shall be entitled to all the same rights, benefits, privileges, protections and notices as would apply to the Leasehold Mortgagee. In the event of any conflicting claims between the Leasehold Mortgagee and a collateral assignee of such Leasehold Mortgagee's Leasehold Mortgage, LESSOR shall honor the claims of the collateral assignee (to the exclusion of the claims of the Leasehold 11 Mortgagee), provided that such collateral assignee agrees to indemnify LESSOR and hold LESSOR harmless from and against any and all loss, cost, liability and expense (including reasonable attorneys' fees) arising from any litigation or other dispute between such collateral assignee and the Leasehold Mortgagee from which its rights derive. (m) Within fifteen days after written request therefor from the Leasehold Mortgagee, LESSOR shall deliver to the Leasehold Mortgagee a certificate signed by LESSOR in form reasonably designated by the Leasehold Mortgagee, certifying as to: (1) the rent payable under this Lease; (2) the term of this Lease and the status of LESSEE's extension rights, if any; (3) the nature of any known defaults by LESSEE alleged by LESSOR; and (4) any other matters reasonably requested by the Leasehold Mortgagee. (n) Should Leasehold Mortgagee for any reason take possession of SAID PROPERTY, it shall be subject to and comply fully with all of the provisions and conditions of this Lease which would bind the LESSEE, but only for so long as the Leasehold Mortgagee has not assigned its interest under the lease or abandoned SAID PROPERTY. (o) The LESSOR agrees with Mortgagee of the Leasehold Mortgagee consented to in subparagraph (a) of this Article that the rights hereunder of Leasehold Mortgagee shall be exercisable by such Leasehold Mortgagee in the order of the priority of lien or other security interest of their respective Leasehold Mortgage, but it shall not be the duty or obligation of the LESSOR to assure compliance with this provision. (p) LESSOR consents to any exercise of remedies by any Leasehold Mortgagee including acceptance of an assignment, deed or other conveyance in lieu of foreclosure. (q) Any notice which LESSOR is required to give to any Leasehold Mortgagee hereunder shall be deemed to have been given when the United States Postal Service certifies that such notice was delivered to the Leasehold Mortgagee at the address 12 specified In this lease or at such other address as may be specified from time to time by the Leasehold Mortgagee. 11. DEFAULT. The parties herein expressly agree that K DEFAULT shall be made in the payment of any tax, assessment or rent due pursuant to this LEASE, then and in any such event of DEFAULT it shall be lawful for LESSOR to enter upon SAID PROPERTY, or any part thereon, upon LESSOR's thirty (30) day written notice to LESSEE, either with or without process of law, to re-enter and repossess the same, and to distrain for any rent or assessment that may be due thereon, at the election of LESSOR, but nothing herein is to be construed to mean that LESSOR is not permitted to hold the said LESSEE liable for any unpaid rent or assessment to that time. As to all other conditions, covenants, and obligations imposed on LESSEE herein, enforcement shall be by proceeding at law or in equity against any person violating or attempting to violate said conditions, covenants, and obligations, to restrain violation and to recover damages, if any, including reasonable expenses of litigation and reasonable attorney's fees, which LESSEE expressly agrees to pay. Such enforcement by proceedings at law or in equity may be instituted at any time after thirty (30) days written notice to LESSEE if the default or violation has not been corrected within that thirty (30) day period. Invalidation of any provision of this lease by judgment or court order shall, unless agreed otherwise by the parties, operate as an approved cancellation of this lease. 12. FORFEITURE, DEFAULT OR CANCELLATION. In the event of any FORFEITURE, DEFAULT OR CANCELLATION of this lease or termination of the term as aforesaid, said LESSEE shall quit, deliver up and surrender possession of SAID PROPERTY, and thereupon this lease and all agreements and covenants on LESSOR's behalf to be performed and kept, shall cease, terminate and be utterly void, the same as if the lease had not been made. In addition thereof, LESSOR shall be entitled to whatever remedies It may have at law or 13 equity for the collection of any unpaid rental hereunder, or for any other sums, for damages or otherwise, that it may have sustained on account of LESSEE'S nonfulfillment or nonperformance of the terms and conditions of this lease. Immediately upon the termination of this lease, whether by FORFEITURE, DEFAULT, or CANCELLATION, LESSOR shall be entitled to take possession of SAID PROPERTY, custom and usage to the contrary notwithstanding. If LESSEE declines or fails to remove structures and equipment occupying and erected upon the leased premises within ninety (90) days after expiration or termination of this lease, such structures and equipment will be deemed forfeited by LESSEE, and may be removed and/or sold by LESSOR after ten (10) days written notice by certified mail addressed to LESSEE. Any costs incurred by LESSOR in removal of said structures and equipment shall be paid for from the proceeds of sale of such structures and equipment. If funds derived from sale of structures and equipment are insufficient to pay costs of removal, LESSOR shall have, and is hereby granted a lien upon the interest, if any, of LESSEE enforceable by law provided. 13. RENT NOT REFUNDABLE. LESSOR and LESSEE agree that any rent paid during the term of this lease is non-refundable and LESSEE waives any right or claim it may have to refund of rents paid under the term of this lease. 14. IMPROVEMENTS. LESSOR acknowledges that the improvements which presently exist and which are to be constructed on SAID PROPERTY are not the property of LESSOR. LESSEE shall not construct under the terms of this lease any building or pier of any type on adjoining State property. 14 15. RESTRICTIONS ON USE. LESSEE shall comply with any and all applicable federal, state, county or city laws, statutes, regulations, building codes, building requirements, safety or conservation regulations, fire codes, ordinances, pollution standards, or zoning regulations. LESSEE specifically agrees to provide parking for all permitted uses developed on SAID PROPERTY in conformance with City of Biloxi requirements. LESSEE further agrees to conform with City of Biloxi Landscaping Rules and Regulations. LESSEE further agrees not to fill or cover more than 66.7% of the surface area of SAID PROPERTY with structures or other improvements of any kind in order to maintain at least one third of the surface area of SAID PROPERTY as open water. If LESSEE fails to make permitted use of SAID PROPERTY or abandons SAID PROPERTY, or uses SAID PROPERTY in violation of any applicable law or regulation as aforesaid, this lease may be terminated or canceled by LESSOR after thirty (30) days written notice to LESSEE. 16. SUSPENSION OR CANCELLATION OF LICENSE. Should the Gaming Commission suspend or cancel the gaming license pursuant to which the "dockside casino" contemplated by this lease is operated, said suspension or cancellation shall, at the option of the LESSOR, be sufficient grounds for immediate termination of the lease and removal of the casino vessel at the sole expense of LESSEE. 17. NO CLAIM OF TITLE OR INTEREST. LESSEE, in accepting this lease, does hereby agree that no claim of title or interest to SAID PROPERTY shall be made by reason of the occupancy or use thereof; that all title and interest to SAID PROPERTY is vested in the LESSOR. LESSEE further acknowledges and agrees that he is entitled to no rights to adjoining submerged lands or tidelands as a result of this lease. 15 18. CATASTROPHIC DESTRUCTION. In the event of catastrophic destruction by natural causes of LESSEE'S improvements on SAID PROPERTY, LESSEE may terminate this lease at its option, provided SAID PROPERTY is surrendered in a condition at least equal to that at the inception of this lease. LESSOR agrees that it shall interpose no objection should LESSEE decide to rebuild those improvements demolished in such a catastrophe. 19. DUE DILIGENCE. LESSEE shall be responsible for any damages that may be caused to LESSOR'S property by the activities of LESSEE under this lease, and shall exercise due diligence in the protection of other property of LESSOR in the vicinity thereof against damage or waste from any and all causes. LESSEE shall not deposit any refuse on any State property adjoining SAID PROPERTY. Disposition of refuse and waste shall be consistent with local and State health regulations. 20. INDEMNITY AND HOLD HARMLESS. LESSEE agrees to hold and save harmless, protect and indemnify LESSOR, the Secretary of State and his successors, employees, officers and agents, from and against any and all loss, damages, claims, suits or actions at law or equity, judgments and costs, including attorney's fees, which may arise or grow out of any injury or death of persons or loss or damage to property connected with LESSEE'S exercise of any right granted or conferred hereby, or LESSEE'S use, maintenance, operation or condition of the property herein leased or the activities thereon conducted by LESSEE, whether sustained by LESSEE, his respective agents or employees, or by any other persons, or corporations which seek to hold LESSOR liable. In addition to the general indemnity agreement set forth in the immediately preceding paragraph, LESSEE also specifically agrees to hold and save harmless, protect and indemnify LESSOR, the Secretary of State and his successors, employees, officers and agents, from and against any and all loss, damages, claims, suits or actions at law or equity, judgments and costs, including attorney's fees, which may 16 arise or grow out of LESSOR'S reliance upon LESSEE'S representation that LESSEE has the right to occupy the uplands adjacent to SAID PROPERTY and to exercise littoral rights in connection therewith. In executing this Lease, LESSOR is relying on a survey and/or legal description (see Exhibit 1) provided by the LESSEE. LESSEE expressly assumes all liability for the correctness thereof and expressly agrees to indemnify and save harmless LESSOR, its employees, officers and agents, for all liability, damages (including damages to land, aquatic life and other natural resources), expenses, causes of actions, suits, claims, costs, fees, including attorneys' fees and costs, penalties (civil and criminal) or judgments arising out of State's reliance on LESSEE's survey. 21. QUIET AND PEACEFUL POSSESSION. LESSEE shall have quiet and peaceful possession of SAID PROPERTY so long as compliance is made by LESSEE with the terms of this agreement. LESSEE agrees to deliver possession of SAID PROPERTY peaceably and promptly within ten (10) days after the expiration or termination of this lease. 22. RIGHT OF ENTRY. LESSOR reserves the right to enter onto SAID PROPERTY to inspect the premises to determine compliance with the lease terms herein. 23. PERMITTED USE. All property of LESSEE shall be maintained by LESSEE at LESSEE'S expense and in a clean, orderly, healthful, and attractive condition, subject to inspection by LESSOR or his representative at any time. LESSEE shall, at its sole cost and expense, make any and all additions to, repairs, alterations, maintenance, replacements, or changes about and to the improvements on SAID PROPERTY, which may be required by any public authority affecting the property and its use. It is expressly agreed by and between the parties that LESSEE will not occupy or use, nor permit to be occupied or used, SAID PROPERTY for any unlawful purposes. 17 It is specifically agreed that LESSEE will use SAID PROPERTY for the docking of a single gaming vessel as shown on attached Exhibit 1, to be operated under a Mississippi gaming license issued to LESSEE, as shown in Exhibit 3 attached hereto. LESSEE shall commence permitted use on or before September 1, 1994. 24. LESSOR NOT RESPONSIBLE. LESSEE assumes full responsibility for the condition of the promises and LESSOR shall not be liable or responsible for any damages or injuries caused by any vices or defects therein to LESSEE or to any occupant or to anyone in or on SAID PROPERTY who derives his right to be thereon from LESSEE. LESSEE agrees to maintain the leased premises in good condition, keeping the structures and equipment located thereon in a good state of repair in the interests of public health and safety. 25. LIABILITY INSURANCE. LESSEE shall secure and maintain throughout the term of the lease a liability insurance policy providing coverage in an amount not less than Five Million Dollars against accidents, death or bodily injury or loss or damage to property occurring on or in connection to SAID PROPERTY, or LESSEE's vessel, or arising out of or associated with any activity of LESSEE on SAID PROPERTY. LESSEE shall annually supply a certificate evidencing said insurance to LESSOR. 26. RESERVATION OF MINERAL RIGHTS. LESSEE further covenants and agrees that this lease and interest of LESSEE SHALL NOT include any mineral, oil or gas, coal, lignite, or other subterranean rights WHATSOEVER. 27. RIGHT TO CANCEL UPON INSOLVENCY OF LESSEE. LESSEE covenants and agrees that if an execution or process is levied upon SAID PROPERTY or if a Petition in Bankruptcy be filed by or against LESSEE in any court of competent jurisdiction, LESSOR shall have the right at its option, to cancel 18 this lease. LESSEE covenants and agrees that this lease and the interest of LESSEE hereunder shall not, without the written consent of the Secretary of State or his successor first obtained, be subject to garnishment or sale under execution or otherwise in any suit or proceeding which may be brought by or against said LESSEE. 28. WAIVER NOT A DISCHARGE. No failure, or successive failures, on the part of LESSOR to enforce any provisions, nor any waiver or successive waivers on its part of any provision herein, shall operate as a discharge thereof or render the same inoperative or impair the right of LESSOR to enforce the same upon any renewal thereof or in the event of subsequent breach or breaches. 29. CANCELLATION UPON FAILURE TO COMPLY. LESSEE'S failure to comply with the provisions of this lease shall result, at the option of LESSOR, in the termination or cancellation of this lease within thirty (30) days after written notice of default is given, unless such default is cured within thirty (30) days of receipt of such notice, except as set forth in Article 15. 30. NOTICE. All notifications required under the terms of this lease shall be made by U.S. mail, return receipt requested, to the parties at the following addresses: Secretary of State: 401 Mississippi Street Post Office Box 136 Jackson, Mississippi 39205 Mississippi-I Gaming, L.P.: Wayne Yarbrough, General Manager Post Office Box 369 Biloxi, Mississippi 39533 Copy to: Thomas B. Shepherd III, Esq. Watkins Ludlam & Stennis Post Office Box 427 Jackson, Mississippi 39205-0427 Leasehold Mortgagee: First Trust National Association First Trust Center 180 East Fifth Street St. Paul, Minnesota 55101 19 Trustee: Stephen H, Leech, Jr. c/o Phelps Dunbar Security Center North 200 S. Lamar Street, Suite 500 Jackson, Mississippi 39225 31. LAWS OF MISSISSIPPI TO GOVERN. This agreement is to be governed by the laws of the STATE OF MISSISSIPPI, both as to Interpretation and performance. IN WITNESS WHEREOF, this lease is executed by LESSOR and LESSEE, this the _____ day of __________, 1994. LESSOR: ------- STATE OF MISSISSIPPI DICK MOLPUS SECRETARY OF STATE BY: __________________________ JAMES O. NELSON, II ASSISTANT SECRETARY OF STATE FOR PUBLIC LANDS LESSEE: ------- MISSISSIPPI-I GAMING, L.P., a Mississippi Limited Partnership By: Bayview Yacht Club, Inc. a Mississippi Corporation, its Sole General Partner BY: /s/ Richard N. Scott -------------------------- RICHARD N. SCOTT, PRESIDENT APPROVED BY THE GOVERNOR of the State of Mississippi on the ___ day of _______________, 19__. ______________________________ GOVERNOR 20 STATE OF MISSISSIPPI COUNTY OF________________ PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for said county and state, on this ___ day of ________, 1994, within my jurisdiction the within named KIRK FORDICE, personally known to me to be the GOVERNOR of the STATE OF MISSISSIPPI, who acknowledged that he executed the above and foregoing LEASE AGREEMENT as the act and deed of said GOVERNOR for and on behalf of the STATE OF MISSISSIPPI, on the date and for the purposes therein stated, being first duly authorized to so do. ____________________________ NOTARY PUBLIC My Commission Expires: _______________________ 21 STATE OF MISSISSIPPI COUNTY OF_________________ PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for said county and state, on this __ day of _________, 1994, within my jurisdiction the within named JAMES 0. NELSON 11, personally known to me to be the ASSISTANT SECRETARY OF STATE FOR PUBLIC LANDS of the STATE OF MISSISSIPPI, who acknowledged that he executed the above and foregoing LEASE AGREEMENT as the act and deed of said ASSISTANT SECRETARY OF STATE for and an behalf of the STATE OF MISSISSIPPI, on the date and for the purposes therein stated, being first duly authorized to so do. ________________________ NOTARY PUBLIC My Commission Expires: _______________________ STATE OF Mississippi ------------ COUNTY OF Harrison ----------- PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for the said county and state, on this 15th day of July, 1994, within my jurisdiction, the within named RICHARD N. SCOTT, who acknowledged that he is PRESIDENT of BAYVIEW YACHT CLUB, INC., a Mississippi corporation, and that for and on behalf of said corporation, and as its act and deed as sole general partner of MISSISSIPPI I GAMING, L.P., a Mississippi Limited Partnership, and as its act and deed he executed the above and foregoing instrument, after first having been duly authorized by said corporation so to do. /s/ R K. D ------------------------------ NOTARY PUBLIC My Commission Expires: ______________________ (SEAL) 22 [SITE PLAN FOR PARKING OF BOOMTOWN CASINO] * In the lot North of Bayview, the lot is stripped for trucks/trailers. Boomtown has parked indiscriminately approx. 157 cars throughout - including up to the luster's (Back Boy) edge. [MAP APPEARS HERE] [LETTER HEAD APPEARS HERE] LEGAL DESCRIPTION - OVERALL TIDELANDS BOUNDARY - ----------------------------------------------- COMMENCE at a point on the North margin of Bay View Avenue, said point being at the intersection of said North margin with the extension of the East Margin of Main Street; thence run North degrees 30'07" East, for a distance of 352.72 feet to a point on the waters edge in the Back Bay of Biloxi, and the POINT OF BEGINNING; thence continue North degrees 30'07" East, for a distance of 627.28 feet to a point; thence run South 89 degrees 29'53" East, for a distance of 421.62 feet to a point; thence run South 0 degrees 30'07" West, for a distance of 567.28 feet to a point on the waters edge in the Back Bay of Biloxi, thence run along the waters edge, the following bearings and distance, to wit; North 89 degrees 00'25" West, 54.89 feet, North 59 degrees 34'39" West, 35.62 feet; North 02 degrees 39'47" East, 9.06 feet; North 65 degrees 11'04" West, 89.88 feet; North 0 degrees 47'05" West, 18.55 feet; North 07 degrees 16'10" West; 25.28 feet; South 75 degrees 11'01" West, 39.18 feet, South 09 degrees 13'15" East, 7.92 feet; South 81 degrees 54'06" West, 49.27 feet; North 08 degrees 11'59" West, 22.25 feet; South 81 degrees 26'23" West, 94.03 feet; South 11 degrees 19'27" East, 27,44 feet; South 14 degrees 59'07" East, 79.84 feet and South 65 degrees 01'07" West, for a distance of 106.37 feet to the POINT OF BEGINNING; containing 222,022 Square Feet, or 5.10 Acres, approximately. EXHIBIT 1 CERTIFICATION - ------------- This is to CERTIFY that I have surveyed the property hereon described and del????, and that the measurements and other data indicated are correct to the best of my knowledge and belief. /s/ Terry J. Moran 6/29/94 - ----------------------------------- ----------- TERRY J. MORAN R.I.S. 1779 Dated [PLAN APPEARS HERE] This property has been graphically plotted to be in Zone(s) "A9" & "A12" ------------ as published by the Federal Insurance Administration, Official Flood Hazard Map, Community Panel Number 289252 OODBC . revised 3/15/84. ------------- ------- EXHIBIT 1 Page 2 of 2 [LETTER HEAD OF WATKINS LUDLAM & STENNIS] May 2, 1994 (601) 949-4863 VIA HAND DELIVERY Mr. Gary McGee Mississippi Gaming commission 723 North President Street Suite 100 Jackson, MS RE: Mississippi I Gaming, L.P. d/b/a Boomtown Biloxi Dear Gary; I have enclosed a revised Form 3001 Statement of Games, Tables and Slot Machines as a supplement to the above captioned limited partnership's application for a gaming license. By copy of this letter I am also providing this statement to Margaret Bretz of the Secretary of State's office, Public Lands Division for the tideland's lease application. Please call me if you have any questions regarding the above or need any further information. Sincerely, WATKINS LUDLAM & STENNIS /s/ Cheryn L. Nett Cheryn L. Nett CLN/ssb Enclosures cc. Wayne Yarbrough Margaret Bretz (w/enclosures) Thomas B. Shepherd 111, Esq. EXHIBIT 2 PAGE 1 OF 2 STATEMENT OF GAMES, TABLES, AND SLOT MACHINES GAMES NO. TABLES NO. SLOT MACHINES NO. Craps - 5 ___ ??? 0 ___ $.05 219 ___ Roulette -2 ___ ??? - 8 ___ $.10 0 ___ Twenty-one - 24 1 Multi-Action ___ $.25 490 ___ Keno - 1 ___ ______________ ___ ???? 27 Wheel of Fortune 0 ___ ______________ ___ $ 1.00 206 ___ Casino de Fal 0 ___ ______________ ___ $ 5.00 22 ___ Baccarat 0 ___ ______________ ___ $ 25.00 2 ___ Faro 0 ___ ______________ ___ $100.00 0 ___ ??? 0 ___ ______________ ___ $500.00 0 ___ ??? - 1 ___ ______________ ___ _____________ ___ Chuck-A-Luck 0 ___ ______________ ___ _____________ ___ ??? 0 ___ ______________ ___ _____________ ___ Black Jack 0 ___ ______________ ___ _____________ ___ Seven-and-a-half 0 ___ ______________ ___ _____________ ___ Big Injue 0 ___ ______________ ___ _____________ ___ Klondike 0 ___ ______________ ___ _____________ ___ Beat the Banker 0 ___ ______________ ___ _____________ ___ Other (describe) 2- Caribbean Stud ___ _____________ ___ TOTAL 35 ___ TOTAL 9 ___ TOTAL 966 ___ EXHIBIT 2 PAGE 2 OF 2 EX-10.44 5 PUBLIC TRUST TIDELANDS LEASE AMENDMENT Hollywood Park, Inc. Exhibit 10.44 Form 10-K, 1997 BOOK 306 PAGE 314 PUBLIC TRUST TIDELANDS LEASE AMENDMENT -------------------------------------- STATE OF MISSISSIPPI COUNTY OF HINDS WHEREAS, under date of August 15, 1994, a Public Trust Tidelands Lease was executed by and between the SECRETARY OF STATE, with the approval of the GOVERNOR, for and on behalf of the STATE OF MISSISSIPPI, "LESSOR," and MISSISSIPPI-I GAMING, L.P., doing business as BOOMTOWN CASINO, a Mississippi Limited Partnership registered to do and doing business in the State of Mississippi, having been recorded in Book 274, Pages 329 -35, of the records of the Chancery Clerk of the Second Judicial District of Harrison County Mississippi, and which lease covered certain lands situated in Harrison County, Mississippi, "SAID PROPERTY," described as follows to-wit: A parcel located in Section 28, Township 7 South, Range 9 West, in the Second Judicial District of Harrison County, Mississippi, more particularly described as follows: COMMENCE at a point on the North margin of Bay View Avenue, said point being at the intersection of said North margin with the extension of the East margin of Main Street; thence run North 0 degrees 30 minutes 7 seconds East, for a distance of 352.72 feet to a point on the water's edge in the Back Bay of Biloxi, and the POINT OF BEGINNING; thence continue North 0 degrees 30 minutes 07 seconds East for a distance of 627.28 feet to a point; thence run South 89 degrees 29 minutes 53 seconds East, for a distance of 421.62 feet to a point; thence run South 0 degrees 30 minutes 07 seconds West, for a distance of 567.28 feet to a point on the water's edge in the Back Bay of Biloxi, thence run along the waters edge, the following bearings and distances, to wit: North 89 degrees 00 minutes 25 seconds West, 54.89 feet, North 59 degrees 34 minutes 39 seconds West, 35.62 feet; North 02 degrees 39 minutes 47 seconds East, 9.06 feet; North 65 degrees 11 minutes 04 seconds West, 89.88 feet; North 00 degrees 47 minutes 05 seconds West, 18.55 feet; North 07 degrees 16 minutes 10 seconds west, 25.28 feet; South 75 degrees 11 minutes 01 seconds West, 39.18 feet; South 09 degrees 13 minutes 15 seconds East 7.92 feet; South 81 degrees 54 minutes 06 seconds West, 49.27 feet; North 08 degrees 11 minutes 59 seconds West, 22.25 feet; South 81 degrees 26 minutes 23 seconds West, 94.03 feet; South 11 degrees 19 minutes 27 seconds East, 27.44 feet; South 14 degrees 59 minutes 07 seconds East, 79.84 feet and South 65 degrees 01 minutes 07 seconds West, for a distance of 106.37 feet to the POINT OF BEGINNING, containing 222,022 square feet, or 5.10 acres, more or less. AND WHEREAS, in Paragraph 2 of the lease, the parties agreed that SAID PROPERTY contains 222,022 square feet, more or less of submerged lands or tidelands. The parties now desire to amend the legal description of said lease to recite as follows: February 15, 1997 1 A parcel located in Section 28, Township 7 South, Range 9 West, in the Second Judicial District of Harrison County, Mississippi, more particularly described as follows: COMMENCING at a point on the North margin of Bay View Avenue, said point being at the intersection of said North margin with the extension of the East margin of Main Street; thence run North 0 degrees 30 minutes 07 seconds East, for a distance of 352.72 feet to a point on the waters edge in the Back Bay of Biloxi, and the POINT OF BEGINNING; thence continue North 0 degrees 30 minutes 07 seconds East, for a distance of 545.28 feet to a point; thence run South 89 degrees 29 minutes 53 seconds East, for a distance of 210.0 feet to a point; thence run South 0 degrees 30 minutes 07 seconds West, for a distance of 155.0 feet to a point; thence run South 89 degrees 29 minutes 53 seconds East, for a distance of 150.0 feet to a point; thence run South 0 degrees 30 minutes 07 seconds West for a distance of 116.0 feet to a point; thence run South 89 degrees 29 minutes 53 seconds East for a distance of 61.62 feet to a point; thence run South 0 degrees 30 minutes 07 seconds West, for a distance of 214.28 feet to a point on the waters edge in the Back Bay of Biloxi; thence run along the waters edge the following bearings and distances to wit; North 89 degrees 0 minutes 25 seconds West, 54.89 feet, North 59 degrees 34 minutes 39 seconds West, 35.62 feet; North 02 degrees 39 minutes 47 seconds East, 9.06 feet; North 65 degrees II minutes 04 seconds West, 89.88 feet; North 00 degrees 47 minutes 05 seconds West, 18.55 feet; North 07 degrees 16 minutes 10 seconds West, 25.28 feet; South 75 degrees II minutes 01 seconds West, 39.18 feet, South 09 degrees 13 minutes 15 seconds East, 7.92 feet; South 81 degrees 54 minutes 06 seconds West, 49.27 feet; North 08 degrees II minutes 59 seconds West, 22.25 feet; South 81 degrees 26 minutes 23 seconds West 94.03 feet; South II degrees 19 minutes 27 seconds East, 27.44 feet; South 14 degrees 59 minutes 07 seconds East, 79.94 feet and South 65 degrees 01 minutes 07 seconds West, for a distance of 106.37 feet to the POINT OF BEGINNING; containing 147,500 square feet, or 3.39 acres, approximately. (See survey prepared by Terry J. Moran, Jr., R.L.S., dated December 30, 1996, attached hereto as Exhibit I and incorporated herein by reference). AND WHEREAS, Paragraph 2 provides that consideration for this lease is in part predicated on LESSEE developing and operating a single dockside gaming facility licensed by the State of Mississippi which will contain up to 1,010 games. It is agreed by and between the parties hereto that as a result of this Amendment, the total effective gaming area under the lease will not increase. AND WHEREAS, Article 2 provides during the period July 1, 1994, to June 30, 1999, LESSEE covenants and agrees to pay annual rental to LESSOR in the sum of FIVE HUNDRED TWENTY FIVE THOUSAND AND NO/100THS ($525,000.00) DOLLARS. It is agreed by and between the parties hereto that as a result of a reappraisal of SAID PROPERTY performed by Jack K. Mann, MAI, CRE, the annual rental to LESSOR from the period of July 1, 1997, to June 30, 1999, shall be decreased to FOUR HUNDRED TWENTY FIVE THOUSAND AND FEBRUARY 15, 1997 2 NO/100THS ($425,000.00) DOLLARS. NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00), cash in hand paid, and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree to the amendments as reflected hereinabove. Except as hereby amended, said lease and all of its terms and provisions shall otherwise remain unchanged. EXECUTED this 27 day of February, 1997. LESSOR: ------- STATE OF MISSISSIPPI ERIC CLARK SECRETARY OF STATE /s/ James O. Nelson BY:----------------------------------- JAMES O. NELSON, II ASSISTANT SECRETARY OF STATE FOR PUBLIC LANDS LESSEE: ------- MISSISSIPPI-1 GAMING, L.P., A MISSISSIPPI LIMITED PARTNERSHIP BY: Bayview Yacht Club, Inc., a Mississippi Corporation, its sole General Partner /s/ Wayne Yarbrough BY:----------------------------------- WAYNE YARBROUGH VICE-PRESIDENT APPROVED BY THE GOVERNOR of the State of Mississippi on the 13th day of March, 1997. /s/ Kirk, Governor -------------------------------------- KIRK FORDICE, GOVERNOR FEBRUARY 15, 1997 3 STATE OF MISSISSIPPI COUNTY OF HINDS PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for said county and state, on this 13th day of March, 1997, within my jurisdiction the within named KIRK FORDICE, personally known to me to be the GOVERNOR OF THE STATE OF MISSISSIPPI, who acknowledged that he executed the above and foregoing instrument as tile act and deed of said GOVERNOR for and on behalf of tile STATE OF MISSISSIPPI, on the date and for the purposes therein stated, being first duly authorized to so do. /s/ Bethany F. Bryant ----------------------------- NOTARY PUBLIC (SEAL) STATE OF MISSISSIPPI COUNTY OF HINDS PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for said county and state, on this 27th day of February 1997, within my jurisdiction the within named JAMES O. NELSON II, personally known to me to be the ASSISTANT SECRETARY OF STATE FOR PUBLIC LANDS of the STATE OF MISSISSIPPI, who acknowledged that he executed the above and foregoing LEASE AMENDMENT as the act and deed of said ASSISTANT SECRETARY OF STATE for and on behalf of the STATE OF MISSISSIPPI, on the date and for the purposes therein stated, being first duly authorized to so do. /s/ Linda Q. Smith ----------------------------- NOTARY PUBLIC (SEAL) FEBRUARYS 15, 1997 4 STATE OF MISSISSIPPI COUNTY OF HARRISON PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for the said county and state, on this 24 day of Feb 1997, within my jurisdiction, the within named WAYNE YARBROUGH, who acknowledged that he is Vice-President of BAYVIEW YACHT CLUB, INC., a Mississippi Corporation, the sole General Partner of MISSISSIPPI-I GAMING, L.P., a Mississippi Limited Partnership registered to do business in Mississippi, and that for and on behalf of the said limited partnership, and as its act and deed he executed the above and foregoing instrument, after first having been duly authorized by said corporation as general partner of said limited partnership so to do. /s/ Rita B. Wilkinson ------------------------------ NOTARY PUBLIC My Commission Expires: My Commission Expires Dec. 27, 1997 - ----------------------------- FEBRUARY 15, 1997 5 CERTIFICATiON - ------------- This is to CERTIFY that I have surveyed the property thereon described and ???, and that the measurements and other data indicated are correct to the best of my knowledge and behalf. Update ??/20/96 /s/ Terry J. Moran 6/29/94 (SEAL) - --------------------- ------ TERRY J. MORAN Dated [DIAGRAM OF PLOT APPEARS HERE] This property has been GRAPHICALLY plotted to be in Zone(a) "As" a "A12" ------------ as published by the Federal insurance Administration, Offical flood Hazard Map. Community ?? Number 2?3252 000?C ???? 3/15/84 6 RECORDING INSTRUCTIONS - ---------------------- Please record in Section 28, Township 7 South, Range 9 West, in Second judicial District of Harrison County, Mississippi. Please return to Gerald Blessey, P.O. Box 1930, Biloxi, Mississippi. ph: 601-388-8887. STATEMENT, OF FEES. STATE OF MISSISSIPPI, COUNTY OF HARRISON, SECOND JUDICIAL DISTRICT: Recording Fee $6.00 I hereby certify that this instrument was received ---------- Abstracting/Section Fee at and filed for record at 10 o'clock and 05 minutes A.M. $1.00 each______________ on 31 day of Mar, A.D. 1997 and recorded Mar 31, 1997 in Records of Deeds____________________________________________ Marginal Entry at .50 each____ Book 306 Pages 314-320 Records Mgmt. Fee Other $1.00_________________ John McAdams, Chancery Clerk [SIGNATURE ILLEGIBLE] TOTAL FEES COLLECTED 8.00 By--------------------------------------, D.C.
7 EX-23.1 6 CONSENT OF ARTHUR ANDERSEN LLP Hollywood Park, Inc. Exhibit 23.1 to Form 10-K 1997 Consent of Independent Public Accountants We consent to the incorporation by reference in the registration statement of Form S-8 with respect to the registration of shares issued (i) upon exercise of options granted pursuant to the 1996 Stock Option Plan of Hollywood Park, Inc. and (ii) upon the exercise of options to purchase an aggregate of 20,000 shares of Common Stock granted to certain directors of Hollywood Park, Inc. of our report dated February 27, 1998 on the consolidated balance sheets of Hollywood Park, Inc. and subsidiaries as of December 31, 1997 and 1996, and the related consolidated statements of operations, shareholders' equity and cash flows for the three years ended December 31, 1997, which report appears in the Annual Report on Form 10-K of Hollywood Park, Inc. for the fiscal year ended December 31, 1997. We further consent to the incorporation by reference in the registration statement on Form S-8, with respect to the registration of shares issued upon exercise of options granted pursuant to the 1990 Stock Option Plan and the 1992 Director Option Plan of Boomtown, Inc. of our report dated February 27, 1998 on the consolidated balance sheets of Hollywood Park, Inc. and subsidiaries as of December 31, 1997 and 1996, and the related consolidated statements of operations, shareholders' equity and cash flows for the three years ended December 31, 1997, which report appears in the Annual Report on Form 10-K of Hollywood Park, Inc. for the fiscal year ended December 31, 1997. ARTHUR ANDERSEN LLP Los Angeles, California March 26, 1998 EX-23.2 7 CONSENT OF ARTHUR ANDERSEN LLP Hollywood Park, Inc. Exhibit 23.2 to Form 10-K 1997 Consent of Independent Public Accountants We consent to the incorporation by reference in the registration statement on Form S-8, with respect to the registration of shares issued (i) upon exercise of options granted pursuant to the 1996 Stock Option Plan of Hollywood Park, Inc. and (ii) upon exercise of options to purchase an aggregate of 20,000 Common Shares granted to certain directors of Hollywood Park, Inc. of our report dated February 18, 1998 on the balance sheets of Mississippi - I Gaming, L.P. as of December 31, 1997 and June 30, 1997, and the related statements of operations, partners' capital (deficit) and cash flows for the six months ended December 31, 1997, and nine months ended June 30, 1997, and our report on Schedule II - Valuation and Qualifying Accounts, which reports appear in the Annual Report on Form 10-K of Hollywood Park, Inc. for the fiscal year ended December 31, 1997. We further consent to the incorporation by reference in the registration statement on Form S-8, with respect to the registration of shares issued upon exercise of options granted pursuant to the 1990 Stock Option Plan and the 1992 Director Option Plan of Boomtown, Inc. of our report dated February 18, 1998 on the balance sheets of Mississippi - I Gaming, L.P. as of December 31, 1997 and June 30, 1997, and the related statements of operations, partners' capital (deficit) and cash flows for the six months ended December 31, 1997, and the nine months ended June 30, 1997, and our report on Schedule II - Valuation and Qualifying Accounts, which reports appear in the Annual Report on Form 10-K of Hollywood Park, Inc. for the fiscal year ended December 31, 1997. ARTHUR ANDERSEN New Orleans, Louisiana March 26, 1998 EX-23.3 8 CONSENT OF ARTHUR ANDERSEN LLP Hollywood Park, Inc. Exhibit 23.3 to Form 10-K 1997 Consent of Independent Public Accountants We consent to the incorporation by reference in the registration statement on Form S-8, with respect to the registration of shares issued (i) upon exercise of options granted pursuant to the 1996 Stock Option Plan of Hollywood Park, Inc. and (ii) upon the exercise of options to purchase an aggregate of 20,000 shares of Common Stock granted to certain directors of Hollywood Park, Inc. of our report dated February 18, 1998, except for the last sentence in the second paragraph of Note 1 as to which the date is February 27, 1998, on the balance sheets of Crystal Park Hotel and Casino Development Company, LLC as of December 31, 1997 and 1996, and related statements of operations, members' equity and cash flows for the year ended December 31, 1997, and for the period from July 18, 1996 (date of inception) to December 31, 1996 which report appears in the Annual Report on Form 10-K of Hollywood Park, Inc. for the fiscal year ended December 31, 1997. We further consent to the incorporation by reference in the registration statement on Form S-8, with respect to the registration of shares issued upon exercise of options granted pursuant to the 1990 Stock Option Plan and the 1992 Director Option Plan of Boomtown, Inc. of our report dated February 18, 1998, except for the last sentence in the second paragraph of Note 1 as to which the date is February 27, 1998, on the balance sheets of Crystal Park Hotel and Casino Development Company, LLC as of December 31, 1997 and 1996, and the related statements of operations, members' equity and cash flows for the year ended December 31, 1997, and for the period from July 18, 1996 (date of inception) to December 31, 1996 which report appears in the Annual Report on Form 10-K of Hollywood Park, Inc. for the fiscal year ended December 31, 1997. ARTHUR ANDERSEN LLP Los Angeles, California March 26, 1998 EX-23.4 9 CONSENT OF ERNST & YOUNG LLP Hollywood Park, Inc. Exhibit 23.4 to Form 10-K, 1997 Consent of Ernst & Young LLP, Independent Auditors We consent to the incorporation by reference in the Registration Statement (Form S-8 No. 333-27501) pertaining to the 1996 Stock Option Plan of Hollywood Park, Inc. and the Registration Statement (Form S-8 No. 333-31065) of Hollywood Park, Inc. pertaining to the 1990 Stock Option Plan and the 1992 Director Option Plan of Boomtown, Inc. of our reports dated October 31, 1996, with respect to the balance sheet of Mississippi - I Gaming, L.P. as of September 30, 1996 and the related statements of operations, partners capital (deficit) and cash flows for the years ended September 30, 1995 and 1996 and Schedule II - Valuation and Qualifying Accounts of Mississippi - I Gaming, L.P. for the year ended September 30, 1996 included in this Annual Report (Form 10-K) of Hollywood Park, Inc. for the year ended December 31, 1997. Ernst & Young LLP New Orleans, Louisiana March 26, 1998 EX-23.5 10 CONSENT OF ERNST & YOUNG LLP Hollywood Park, Inc. Exhibit 23.5 to Form 10-K, 1997 Consent of Ernst & Young LLP, Independent Auditors We consent to the incorporation by reference in this Annual Report (Form 10-K) of Hollywood Park, Inc. for the year ended December 31, 1997 of our report dated November 15, 1996 (except for the first paragraph of Note 13 and the first two paragraphs of Note 12 as to which the dates are November 18, 1996 and January 5, 1998, respectively) with respect to the consolidated balance sheets of Boomtown, Inc. as of September 30, 1995 and 1996, and the related consolidated statements of operations, stockholders' equity and cash flows for each of the three years in the period ended September 30, 1996 included in the Registration Statement (Form S-4 No. 333-34471) and related Prospectus of Hollywood Park, Inc. for the registration of $125,000,000 Series B 9.5% Senior Subordinated Notes due 2007. Ernst & Young LLP Reno, Nevada March 26, 1998 EX-27.1 11 FINANCIAL DATA SCHEDULE
5 0000356213 HOLLYWOOD PARK, INC. YEAR DEC-31-1997 DEC-31-1997 23,749,000 0 18,887,000 (749,000) 0 60,206,000 439,374,000 (138,708,000) 419,029,000 57,317,000 135,539,000 0 0 2,622,000 218,732,000 419,029,000 19,894,000 248,128,000 25,745,000 223,826,000 2,480,000 754,000 0 14,520,000 5,850,000 8,670,000 0 0 0 8,670,000 0.33 0.32
EX-27.2 12 FINANCIAL DATA SCHEDULE
5 0000356213 HOLLYWOOD PARK, INC. 9-MOS DEC-31-1997 SEP-30-1997 22,007,000 0 19,540,000 1,111,000 0 61,466,000 429,100,000 (135,363,000) 413,379,000 47,703,000 136,168,000 0 0 2,619,000 216,856,000 413,379,000 17,913,000 158,349,000 21,381,000 142,744,000 0 51,000 3,782,000 11,743,000 4,624,000 7,119,000 0 0 0 7,119,000 0.27 0.27
EX-27.3 13 FINANCIAL DATA SCHEDULE
5 0000356213 HOLLYWOOD PARK, INC. 6-MOS DEC-31-1997 JUN-30-1997 38,409,000 1,275,000 20,129,000 780,000 0 89,718,000 407,808,000 130,724,000 426,098,000 80,654,000 122,618,000 0 28,000 2,380,000 214,199,000 426,098,000 6,860,000 73,139,000 8,819,000 59,359,000 5,843,000 75,000 129,000 7,808,000 3,100,000 4,708,000 0 0 0 4,708,000 0.20 0.20
EX-27.4 14 FINANCIAL DATA SCHEDULE
5 0000356213 HOLLYWOOD PARK, INC. 3-MOS DEC-31-1997 MAR-31-1997 9,825,000 5,135,000 7,322,000 787,000 0 35,821,000 213,493,000 83,502,000 199,514,000 30,156,000 323,000 0 28,000 1,838,000 155,518,000 199,514,000 2,543,000 26,815,000 4,027,000 25,315,000 2,884,000 25,000 64,000 (1,470,000) (575,000) (895,000) 0 0 0 (895,000) (0.07) (0.07)
EX-27.5 15 FINANCIAL DATA SCHEDULE
5 0000356213 HOLLYWOOD PARK, INC. 3-MOS DEC-31-1996 MAR-31-1996 15,367,000 5,679,000 5,945,000 1,502,000 0 35,151,000 263,996,000 90,692,000 265,911,000 70,699,000 47,946,000 0 28,000 1,850,000 149,994,000 265,911,000 3,174,000 27,853,000 4,868,000 27,457,000 14,259,000 126,000 844,000 (14,707,000) (1,329,000) (13,378,000) 0 0 0 (13,378,000) (0.74) (0.74)
EX-27.6 16 FINANCIAL DATA SCHEDULE
5 0000356213 HOLLYWOOD PARK, INC. 3-MOS DEC-31-1996 JUN-30-1996 30,830,000 4,053,000 10,741,000 960,000 0 60,384,000 200,168,000 79,125,000 223,801,000 50,507,000 3,662,000 0 28,000 1,850,000 154,770,000 223,801,000 7,637,000 74,280,000 10,750,000 62,255,000 16,812,000 253,000 898,000 (5,685,000) 2,444,000 (8,129,000) 0 0 0 (8,129,000) (0.49) (0.49)
EX-27.7 17 FINANCIAL DATA SCHEDULE
5 0000356213 HOLLYWOOD PARK, INC. 9-MOS DEC-31-1996 SEP-30-1996 15,683,000 3,498,000 8,075,000 953,000 0 36,435,000 208,992,000 81,420,000 198,631,000 31,530,000 310,000 0 28,000 1,829,000 152,970,000 198,631,000 10,403,000 104,527,000 15,308,000 88,800,000 19,310,000 417,000 918,000 (4,501,000) 3,025,000 (7,526,000) 0 0 0 (7,526,000) (0.48) (0.48)
EX-27.8 18 FINANCIAL DATA SCHEDULE
5 0000356213 HOLLYWOOD PARK, INC. YEAR DEC-31-1996 DEC-31-1996 11,922,000 4,766,000 9,056,000 1,089,000 0 40,959,000 214,809,000 (83,974,000) 205,886,000 35,364,000 317,000 0 28,000 1,833,000 156,299,000 205,886,000 13,947,000 143,225,000 0 120,951,000 22,107,000 544,000 942,000 (775,000) 3,459,000 0 0 0 0 (4,249,000) (0.33) (0.33)
EX-27.9 19 FINANCIAL DATA SCHEDULE
5 0000356213 HOLLYWOOD PARK, INC. YEAR DEC-31-1995 DEC-31-1995 22,406,000 6,447,000 9,038,000 1,841,000 0 48,641,000 262,847,000 88,130,000 286,706,000 75,202,000 47,939,000 0 28,000 1,850,000 163,868,000 286,706,000 19,783,000 130,572,000 25,162,000 109,647,000 18,165,000 2,000 3,922,000 (469,000) 693,000 (1,162,000) 0 0 0 (1,162,000) (0.17) (0.17)
EX-99.1 20 HOLLYWOOD PARK, INC., PROXY STATEMENT EXHIBIT 99 [LOGO OF HOLLYWOOD PARK(R)] HOLLYWOOD PARK, INC. 1050 SOUTH PRAIRIE AVENUE INGLEWOOD, CALIFORNIA 90301 February 13, 1998 Dear Fellow Stockholder: You are cordially invited to attend the Annual Meeting of Stockholders of Hollywood Park, Inc. to be held at the New York Palace, 455 Madison Avenue, New York, New York, on Monday, April 13, 1998 at 9:00 a.m. local time. As you know, Hollywood Park has been evaluating the restoration of its paired-share structure, with the company being reorganized into two parts, a real estate investment trust and an operating company. Your Board has concluded that this reorganization has significant potential benefits for our stockholders, including increasing dividends paid to our stockholders, possibly enhancing investor perception of the market value of Hollywood Park's stock and affording Hollywood Park greater financing flexibility, as well as the other potential benefits described in the attached Proxy Statement. ACCORDINGLY, THE BOARD HAS APPROVED EACH OF THE PROPOSALS DESCRIBED IN THE ATTACHED PROXY STATEMENT AND RECOMMENDS THAT YOU VOTE FOR THEIR APPROVAL. At the Annual Meeting, you will be asked to vote upon the following matters: First, the adoption of amendments to Hollywood Park's Certificate of Incorporation necessary to effect the planned reorganization; Second, the adoption of a stock option plan for the new operating company to be effective following the reorganization; Third, the adoption of a deferred compensation plan for directors of the operating company, also to be effective following the reorganization; Fourth, the adoption of an amendment to Hollywood Park's Certificate of Incorporation to eliminate the requirement that certain transactions be approved by 70% of Hollywood Park's outstanding stock; Fifth, the adoption of an amendment to Hollywood Park's Certificate of Incorporation, which would expand the restrictions on stock ownership intended to protect Hollywood Park's gaming licenses to cover the licenses of its subsidiaries; and Sixth, the election of eleven directors to the Hollywood Park Board of Directors. The reorganization has important tax implications. As the accompanying Proxy Statement explains, in voting on the matters relating to the reorganization, the Board believes you should assume that the reorganization will result in taxable events for Hollywood Park and its stockholders. We estimate that Hollywood Park could incur a tax liability of approximately $54 million and that stockholders could be treated as having received a taxable distribution of approximately $4.95 per share. However, your Board believes that the potential benefits of the reorganization may significantly outweigh its potential tax costs. Hollywood Park requested advance rulings from the IRS as to certain aspects of the reorganization and other tax matters, but withdrew its ruling requests after being advised informally that the IRS had tentatively concluded that it would not issue the requested rulings. Although Hollywood Park expects to receive an opinion of counsel as to certain tax matters, including certain of those issues which were the subject of the IRS ruling requests, there can be no assurance that the IRS will not take a contrary position on these issues. We urge you to read the accompanying Proxy Statement carefully, including the "Risk Factors" and "Federal Income Tax Matters" sections, which contain a discussion as to the nature of and qualifications to the anticipated opinion of counsel. Accompanying this letter is the formal Notice of Annual Meeting, Proxy Statement and Proxy Card relating to the meeting, as well as Hollywood Park's Annual Report to Stockholders for the year ended December 31, 1996. The Proxy Statement contains important information about the reorganization and about the two companies that would result if the reorganization is approved. This Annual Meeting is of great significance given the importance of the matters being voted upon. I hope you can attend the Annual Meeting in person. However, whether or not you plan to attend the Annual Meeting, please complete, sign, date and return your proxy in the enclosed envelope. If you attend the Annual Meeting, you may vote in person if you wish, even though you have previously returned your proxy. Sincerely, /s/ R. D. Hubbard R. D. Hubbard Chairman of the Board of Directors and Chief Executive Officer HOLLYWOOD PARK, INC. 1050 SOUTH PRAIRIE AVENUE INGLEWOOD, CALIFORNIA 90301 NOTICE OF ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON APRIL 13, 1998 TO THE STOCKHOLDERS OF HOLLYWOOD PARK, INC.: NOTICE IS HEREBY GIVEN that an Annual Meeting of Stockholders of Hollywood Park, Inc., a Delaware corporation ("Hollywood Park"), will be held on Monday, April 13, 1998, at 9:00 a.m., local time, at the New York Palace, 455 Madison Avenue, New York, New York (the "Annual Meeting"). At the Annual Meeting, Hollywood Park's stockholders will be asked to consider and vote upon: 1. Proposed amendments to Hollywood Park's Certificate of Incorporation (the "Reorganization Amendments") necessary to effect the planned reorganization of the Company into a real estate investment trust (a "REIT") and an operating company, whose stock would be "paired" to trade publicly as units consisting of one share of the REIT's stock and one share of the operating company's stock (the "Reorganization"). The Reorganization would be effected through a series of transactions, including a reclassification of Hollywood Park's outstanding stock and a distribution to Hollywood Park's stockholders of all of the outstanding stock of Hollywood Park's wholly-owned subsidiary Hollywood Park Operating Company ("HP Operating Company"). After the Reorganization, HP Operating Company would conduct substantially all of Hollywood Park's current and future operating businesses and Hollywood Park (renamed Hollywood Park Realty Enterprises, Inc. ("HP Realty")) would operate as a REIT which would initially derive most of its income from leasing its real estate assets to HP Operating Company. The pairing would commence upon completion of the Reorganization and would be facilitated through various provisions in the By- Laws of the companies and by a Pairing Agreement between the companies. The Reorganization Amendments generally provide for: . The change of Hollywood Park's name to Hollywood Park Realty Enterprises, Inc.; . The authorization of three new classes of stock that may be issued by the REIT: (a) 100,000,000 shares of common stock, $.01 par value ("HP Realty Common Stock"); (b) 25,000,000 shares of excess common stock, $.01 par value ("Excess Stock"); and (c) 40,000,000 shares of preferred stock, $.01 par value. The HP Realty Common Stock would be subject to certain restrictions on transfer which are intended to protect HP Realty's qualification as a REIT. (These restrictions are set forth in Article IV of HP Realty's Restated Certificate of Incorporation, which is attached to the Proxy Statement as Appendix A); . The conversion of each outstanding share of Hollywood Park's Common Stock, $.10 par value ("Hollywood Park Common Stock"), into one share of HP Realty Common Stock; and . The reduction in the number of authorized shares of Hollywood Park Common Stock after the conversion from 40,000,000 to 1,000. Following the Reorganization, the Pairing Agreement between HP Realty and HP Operating Company will effectively prohibit the issuance of Hollywood Park Common Stock. The first two items listed above will be effected through one Reorganization Amendment, and the last two items listed above will be effected through a separate Reorganization Amendment to be filed with the Delaware Secretary of State after the first Reorganization Amendment is effective. 2. The adoption of the Hollywood Park Operating Company 1998 Stock Option Plan, providing for the grant of stock options following the Reorganization to HP Operating Company officers, employees and directors that are exercisable for paired shares of HP Realty Common Stock and HP Operating Company Common Stock (the "1998 Option Plan"), to be effective following the Reorganization and which will replace Hollywood Park's existing stock option plans. 3. The adoption of the Hollywood Park Operating Company 1998 Directors Deferred Compensation Plan (the "HP Operating Company Directors Plan"), which would permit directors of HP Operating Company to defer receipt of their directors fees and to receive the deferred compensation in cash or in paired shares, also to be effective following the Reorganization. 4. A proposed amendment to Hollywood Park's Certificate of Incorporation (which will be the HP Realty Certificate of Incorporation if the Reorganization is completed) to eliminate the requirement in the Certificate of Incorporation that certain transactions be approved by 70% of Hollywood Park's outstanding stock (the "Supermajority Elimination Amendment"). 5. A proposed amendment to Article XIV of Hollywood Park's Certificate of Incorporation, which would expand the restrictions on ownership of Hollywood Park securities intended to protect Hollywood Park's California gaming licenses to cover the gaming licenses of Hollywood Park and its subsidiaries in all jurisdictions in which they operate now or in the future (the "Gaming Amendment"). 6. The election of eleven directors to serve on the Hollywood Park Board of Directors for the coming year. 7. Such other business as may properly come before the Annual Meeting (including any motion to adjourn to a later date to permit further solicitation of proxies if necessary) or before any adjournments or postponements thereof. The effectiveness of the 1998 Option Plan and the HP Operating Company Directors Plan is conditioned upon the approval of the Reorganization Amendments and the completion of the Reorganization. The Reorganization and the Reorganization Amendments, the other proposals listed above and the director nominees are all more fully described in the accompanying Proxy Statement. Only stockholders of record of Hollywood Park Common Stock at the close of business on February 18, 1998 are entitled to notice of and to vote at the Annual Meeting or any adjournments or postponements thereof. A list of such stockholders entitled to vote will be available for inspection at the Annual Meeting by any stockholder and, for 10 days prior to the Annual Meeting, at ChaseMellon Shareholder Services, L.L.C., 450 West 33rd Street, 15th Floor, New York, N.Y., 10001. TO ENSURE THAT YOUR SHARES ARE REPRESENTED AT THE ANNUAL MEETING, YOU ARE URGED TO COMPLETE, DATE AND SIGN THE ENCLOSED PROXY AND MAIL IT PROMPTLY IN THE POSTAGE PAID ENVELOPE PROVIDED, WHETHER OR NOT YOU PLAN TO ATTEND THE ANNUAL MEETING IN PERSON. YOUR PROXY CAN BE WITHDRAWN BY YOU AT ANY TIME BEFORE IT IS VOTED. BY ORDER OF THE BOARD OF DIRECTORS /s/ Donald M. Robbins Donald M. Robbins Secretary Inglewood, California February 13, 1998 2 HOLLYWOOD PARK, INC. 1050 SOUTH PRAIRIE AVENUE INGLEWOOD, CALIFORNIA 90301 PROXY STATEMENT RELATING TO ANNUAL MEETING OF STOCKHOLDERS TO BE HELD APRIL 13, 1998 This Proxy Statement is being furnished to the stockholders of Hollywood Park, Inc., a Delaware corporation ("Hollywood Park"), in connection with the solicitation of proxies by the Hollywood Park Board of Directors for use at the Annual Meeting of Hollywood Park stockholders (the "Annual Meeting") to be held at 9:00 a.m., local time, on Monday, April 13, 1998, at the New York Palace, 455 Madison Avenue, New York, New York, and at any adjournments or postponements thereof. At the Annual Meeting, holders of Hollywood Park's common stock, $.10 par value ("Hollywood Park Common Stock"), will be asked to vote upon the following matters: 1. The adoption of amendments to Hollywood Park's Certificate of Incorporation (the "Reorganization Amendments") necessary to effect the planned reorganization of Hollywood Park into a real estate investment trust (a "REIT") and an operating company, whose stock would be "paired" to trade publicly as units consisting of one share of the REIT's stock and one share of the operating company's stock (the "Reorganization"); 2. The adoption of a stock option plan for the new operating company (the "1998 Option Plan"); 3. The adoption of a deferred compensation plan for directors of the operating company (the "HP Operating Company Directors Plan"); 4. The adoption of an amendment to Hollywood Park's Certificate of Incorporation to eliminate the requirement that certain transactions be approved by 70% of Hollywood Park's outstanding stock (the "Supermajority Elimination Amendment"); 5. The adoption of an amendment to Hollywood Park's Certificate of Incorporation, which would expand the restrictions on stock ownership intended to protect Hollywood Park's gaming licenses to cover the licenses of its subsidiaries (the "Gaming Amendment"); and 6. The election of eleven directors to the Hollywood Park Board of Directors. The effectiveness of the 1998 Option Plan and the HP Operating Company Directors Plan is conditioned upon the approval of the Reorganization Amendments and the completion of the Reorganization. SEE "RISK FACTORS" ON PAGE 15 FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED IN CONNECTION WITH THE REORGANIZATION AND THE REORGANIZATION AMENDMENTS. This Proxy Statement and the accompanying Proxy Cards are first being mailed to stockholders of Hollywood Park on or about February 13, 1998. TABLE OF CONTENTS
PAGE ---- SUMMARY........................................... 5 The Annual Meeting.............................. 5 The Reorganization.............................. 6 The 1998 Option Plan............................ 10 The HP Operating Company Directors Plan......... 10 The Supermajority Elimination Amendment......... 11 The Gaming Amendment............................ 11 Election of Directors........................... 11 Recommendation of the Board of Directors........ 12 Summary Pro Forma Financial Data................ 13 RISK FACTORS...................................... 15 Absence of Rulings from the Internal Revenue Service ....................................... 15 Potential Consequences of Proposed Legislation.. 17 Uncertain Amount of Corporate and Stockholder Tax Liability...................... 17 Consequences of Failure to Qualify as a REIT.... 19 Dependence on Future Borrowings................. 20 Consequences of REIT Dividend Requirement....... 21 Constraints on Equity Financing................. 21 Constraints on Future Transactions.............. 22 Uncertain Level of Dividends.................... 22 Effect of Reorganization on Stockholder Rights.. 22 Factors Influencing Stock Market Price of the Paired Shares.............................. 23 Separate and Increased Expenses................. 23 THE REORGANIZATION AMENDMENTS..................... 24 Background...................................... 24 The Proposed Reorganization Amendments.......... 24 Required Vote; Recommendation of the Board of Directors............................. 25 THE REORGANIZATION................................ 26 Purpose of the Reorganization................... 26 Effect of the Reorganization.................... 28 Business Strategies of the Reorganized Companies...................................... 29 Transactions in Connection with the Reorganization................................. 30 Dividend Policy................................. 33 Directors, Officers and Employees of HP Operating Company and HP Realty................ 33 Conditions to the Reorganization................ 33 Regulatory Approvals and Third-Party Consents... 35 Relationship Between the Companies After the Reorganization................................. 35 Effect of the Reorganization on Rights of Stockholders................................... 36 Trading......................................... 36 Employee Benefits and Compensation Matters...... 37 Allocation of Indebtedness...................... 37 Interest of Certain Persons in the Reorganization................................. 38 Stock Certificates; Method of Exchange.......... 38 BUSINESS OF HP OPERATING COMPANY AFTER THE REORGANIZATION................................... 40 General......................................... 40 Business Strategy............................... 40 Gaming Operations............................... 40 Racing Operations............................... 41 Regulation and Licensing........................ 42 BUSINESS OF HP REALTY AFTER THE REORGANIZATION.... 43 General......................................... 43 Business Strategy............................... 43
2
PAGE ---- FEDERAL INCOME TAX MATTERS................................................. 44 Federal Income Tax Consequences of Contributions and Spin-Offs........... 44 Federal Income Taxation of HP Realty and Requirements for Qualification as REIT................................................................. 50 Federal Income Taxation of HP Operating Company.......................... 59 Constraints on Future Transactions....................................... 60 Federal Income Taxation of Holders of Paired Shares...................... 60 Information Reporting Requirements and Backup Withholding................ 61 UNAUDITED PRO FORMA COMBINED CONSOLIDATED CONDENSED FINANCIAL STATEMENTS... 62 SELECTED HISTORICAL AND PRO FORMA FINANCIAL DATA........................... 79 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS................................................. 85 Overview................................................................. 85 Historical Results of Operations......................................... 87 Post-REIT Pro Forma Results of Operations................................ 96 Liquidity and Capital Resources.......................................... 98 DESCRIPTION OF CAPITAL STOCK OF THE COMPANIES.............................. 104 Common Stock............................................................. 104 Preferred Stock.......................................................... 104 Excess Stock............................................................. 105 Unpaired Common Stock.................................................... 105 The Pairing Agreement.................................................... 106 Certain Provisions of the Charters and By-Laws........................... 106 THE HOLLYWOOD PARK OPERATING COMPANY 1998 STOCK OPTION PLAN................ 110 Background............................................................... 110 Proposal................................................................. 110 Required Vote; Recommendation of the Board of Directors.................. 111 Summary of the 1998 Option Plan.......................................... 111 Federal Income Tax Matters............................................... 114 THE HOLLYWOOD PARK OPERATING COMPANY DIRECTORS PLAN........................ 117 Background............................................................... 117 Proposal................................................................. 117 Required Vote; Recommendation of the Board of Directors.................. 117 Summary of the HP Operating Company Directors Plan....................... 118 Federal Income Tax Matters............................................... 120 THE SUPERMAJORITY ELIMINATION AMENDMENT.................................... 121 Background............................................................... 121 Description of the Proposed Supermajority Elimination Amendment.......... 121 Required Vote; Recommendation of the Board of Directors.................. 122 THE GAMING AMENDMENT....................................................... 123 Background............................................................... 123 Description of the Proposed Gaming Amendment............................. 123 Required Vote; Recommendation of the Board of Directors.................. 124 ELECTION OF DIRECTORS...................................................... 125 General.................................................................. 125 Information Regarding the Directors of Hollywood Park.................... 125 Board Committees and Director Compensation............................... 126 Directors Deferred Compensation Plan..................................... 128 Compensation Committee Interlocks and Insider Participation.............. 129 Executive Officers....................................................... 130
3
PAGE ---- Executive Compensation................................................. 131 Compensation Committee Report on Executive Compensation................ 133 Performance Graph...................................................... 135 Certain Relationships and Related Transactions......................... 136 Section 16(a) Beneficial Ownership Reporting Compliance................ 137 SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT........... 138 ADDITIONAL INFORMATION REGARDING THE ANNUAL MEETING...................... 140 General................................................................ 140 Record Date and Outstanding Shares..................................... 140 Voting of Proxies...................................................... 140 Abstentions; Broker Non-Votes.......................................... 140 Solicitation of Proxies and Expenses................................... 141 No Dissenters' Rights.................................................. 141 STOCKHOLDER PROPOSALS FOR THE NEXT ANNUAL MEETING........................ 141 INDEPENDENT PUBLIC ACCOUNTANTS........................................... 142 ADJOURNMENT OF MEETING................................................... 142 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.......................... 142 AVAILABLE INFORMATION.................................................... 143 INDEX TO FINANCIAL STATEMENTS............................................ S-1 HOLLYWOOD PARK CONSOLIDATED FINANCIAL STATEMENTS......................... S-2 BOOMTOWN CONSOLIDATED FINANCIAL STATEMENTS............................... S-42 APPENDIX A--RESTATED CERTIFICATE OF INCORPORATION OF HP REALTY........... A-1 APPENDIX B--RESTATED CERTIFICATE OF INCORPORATION OF HP OPERATING COMPANY.................................................... B-1 APPENDIX C--SECTIONS 7.2 AND 7.6 OF AMENDED BY-LAWS OF HP REALTY......... C-1 APPENDIX D--SECTIONS 7.2 AND 7.6 OF AMENDED BY-LAWS OF HP OPERATING COMPANY.................................................... D-1 APPENDIX E--HOLLYWOOD PARK OPERATING COMPANY 1998 STOCK OPTION PLAN...... E-1 APPENDIX F--HOLLYWOOD PARK OPERATING COMPANY 1998 DIRECTORS DEFERRED COMPENSATION PLAN....................................................... F-1
4 SUMMARY The following is a brief summary of certain information contained elsewhere in this Proxy Statement. The summary does not contain a complete description of the Reorganization, the Reorganization Amendments, the 1998 Option Plan, the HP Operating Company Directors Plan, the Supermajority Elimination Amendment or the Gaming Amendment. The summary is qualified in its entirety by reference to the full text of this Proxy Statement, the attached Appendices (which are hereby incorporated herein by reference) and the other documents incorporated by reference herein. Hollywood Park stockholders are urged to read carefully this Proxy Statement and the attached Appendices in their entirety. Reference to "Hollywood Park" or the "Company" generally refer to Hollywood Park, Inc. and all of its subsidiaries (including Hollywood Park Operating Company) taken as a whole before the Reorganization. References to "HP Realty" and "HP Operating Company" generally refer to Hollywood Park Realty Enterprises, Inc. and its subsidiaries taken as a whole, and Hollywood Park Operating Company and its subsidiaries taken as a whole, respectively, after the Reorganization. The proposed Reorganization structure discussed in this Proxy Statement contemplates, among other things, that HP Realty will retain the real estate assets of the Company's Turf Paradise, Inc. subsidiary and will lease the Turf Paradise Race Track to HP Operating Company, which will operate the track. See "The Reorganization--Effect of the Reorganization" and "--Transactions in Connection with the Reorganization." Based on the facts and circumstances existing immediately prior to the completion of the Reorganization transactions, Hollywood Park may also decide to transfer the Turf Paradise real estate to HP Operating Company in the Reorganization. In that event, the discussion of the Reorganization and the respective businesses of HP Realty and HP Operating Company contained in this Proxy Statement shall be deemed to be modified accordingly. See "Federal Income Tax Matters." THE ANNUAL MEETING Date, Time and Place. The Annual Meeting will be held on Monday, April 13, 1998 at 9:00 a.m., local time, at the New York Palace, 455 Madison Avenue, New York, New York. Purposes of the Annual Meeting. At the Annual Meeting, stockholders of record of Hollywood Park as of the close of business on the Record Date (as defined below) will be asked (1) to consider and vote upon the Reorganization Amendments, (2) to consider and vote upon the 1998 Option Plan, (3) to consider and vote upon the HP Operating Company Directors Plan, (4) to consider and vote upon the Supermajority Elimination Amendment, (5) to consider and vote upon the Gaming Amendment, and (6) to elect eleven directors to serve on the Hollywood Park Board of Directors (the "Board") for the coming year. Record Date, Outstanding Shares and Quorum. Holders of record of Hollywood Park Common Stock at the close of business on February 18, 1998 (the "Record Date") are entitled to notice of and to vote at the Annual Meeting. At the close of business on February 9, 1998, there were 26,284,138 shares of Hollywood Park Common Stock outstanding, each of which will be entitled to one vote on each matter to be acted upon. The required quorum for the transaction of business at the Annual Meeting is a majority of the shares of Hollywood Park Common Stock issued and outstanding on the Record Date. Votes Required. The Reorganization Amendments and the Gaming Amendment must be approved by a majority of the outstanding shares of Hollywood Park Common Stock. The 1998 Option Plan and the HP Operating Company Directors Plan must be approved by a majority of the shares represented in person or by proxy and entitled to vote at the Annual Meeting. The Supermajority Elimination Amendment must be approved by at least 70% of the outstanding shares of Hollywood Park Common Stock. The affirmative vote of a plurality of shares of Hollywood Park Common Stock represented at the Annual Meeting in person or by proxy and voting is required to elect any nominee for director. For purposes of determining whether the Reorganization 5 Amendments, the Supermajority Elimination Amendment and the Gaming Amendment have been approved, abstentions and broker non-votes will be treated as votes against the proposal. For purposes of determining whether the 1998 Option Plan and the HP Operating Company Directors Plan have been approved, abstentions will be treated as votes against the proposal and broker non-votes will not be counted as represented or voting at the meeting. With respect to the election of directors, abstentions and broker non-votes will have no effect on the outcome of the vote. As of January 31, 1998, the directors, executive officers and other affiliates of Hollywood Park owned an aggregate of 3,651,091 shares of Hollywood Park Common Stock (approximately 13.9% of the shares entitled to vote at the Annual Meeting). R.D. Hubbard, Chairman of the Board of Directors and Chief Executive Officer of Hollywood Park, and Harry Ornest, a director of Hollywood Park, have indicated that they intend to vote in favor of the Reorganization Amendments, and the other proposals and the director nominees described in this Proxy Statement. Although Hollywood Park's other directors and executive officers have not indicated their voting intentions, Hollywood Park believes that each of them will also vote in favor of such proposals and director nominees. THE REORGANIZATION General The Reorganization provides for the reinstatement of Hollywood Park's paired- share structure, which was previously in effect from 1982 through 1991. In the Reorganization, Hollywood Park would be divided into a REIT and an operating company, whose stock would be "paired" to trade publicly as units consisting of one share of the REIT's stock and one share of the operating company's stock. The Reorganization will be effected through a series of transactions, including a reclassification of Hollywood Park's outstanding stock and a distribution to Hollywood Park's stockholders of all of the outstanding stock of Hollywood Park Operating Company ("HP Operating Company"). See "The Reorganization-- Transactions in Connection with the Reorganization." After the Reorganization, HP Operating Company would conduct substantially all of Hollywood Park's current and future operating businesses and Hollywood Park (renamed Hollywood Park Realty Enterprises, Inc. ("HP Realty")) would operate as a REIT which would initially derive most of its income from leasing its real estate assets to HP Operating Company. The pairing of the stock of HP Realty and HP Operating Company will commence upon completion of the Reorganization, and will be facilitated by various provisions in the By-Laws of the companies and by a Pairing Agreement between the companies. Upon completion of the Reorganization, HP Realty will elect to be taxed as a REIT commencing with the 1999 calendar year. The Reorganization Amendments At the Annual Meeting, the stockholders of Hollywood Park will be asked to consider and vote upon the Reorganization Amendments, which are necessary to effect the planned Reorganization. The Reorganization Amendments provide for: . The change of Hollywood Park's name to Hollywood Park Realty Enterprises, Inc.; . The authorization of three new classes of stock that may be issued by the REIT: (i) 100,000,000 shares of common stock, $.01 par value ("HP Realty Common Stock"); (ii) 25,000,000 shares of excess common stock, $.01 par value ("Excess Stock"); and (iii) 40,000,000 shares of preferred stock, $.01 par value ("Preferred Stock"); . The conversion of each share of Hollywood Park Common Stock that is outstanding before the Reorganization into one share of HP Realty Common Stock; and . The reduction in the number of authorized shares of Hollywood Park Common Stock after the conversion from 40,000,000 to 1,000. Following the Reorganization, the Pairing Agreement between HP Realty and HP Operating Company will effectively prohibit the issuance of Hollywood Park Common Stock. 6 HP Realty Common Stock will be subject to certain restrictions on transfer and ownership intended to protect HP Realty's qualification as a REIT. See "The Reorganization--The Reorganization Amendments" and "Description of Capital Stock of the Companies." The first two items listed above will be effected through one Reorganization Amendment and the last two items listed above will be effected through a separate Reorganization Amendment to be filed with the Delaware Secretary of State after the first Reorganization Amendment is effective. Purpose of the Reorganization The Board believes that the reinstatement of Hollywood Park's paired REIT- operating company structure has several significant potential benefits for Hollywood Park's stockholders. These potential benefits include the following: Realize Value Inherent in the Paired Share Structure. The Board believes that the paired REIT-operating company structure will provide HP Realty and HP Operating Company with certain advantages, including (i) advantages not generally available to other REITs and operating companies by enabling holders of the paired shares of the HP Realty Common Stock and HP Operating Company Common Stock (the "Paired Shares") to retain the economic benefit of ownership of the real estate assets of HP Realty and the full operating profits earned by HP Operating Company without having to lease real estate properties to third- party operators, and (ii) potentially enhancing investor perception of the combined value of Hollywood Park's businesses (gaming/sports/entertainment and real estate) once reorganized into the paired-share structure, due in part to the dividends HP Realty will be required to pay as a REIT and the separate reporting of HP Realty's and HP Operating Company's financial results. In any acquisitions made by the companies after the Reorganization, the companies may structure such transactions so that the real estate assets of the acquired businesses would be held by HP Realty and the operating businesses would be conducted by HP Operating Company. After the Reorganization, HP Realty and HP Operating Company will be one of only five publicly-traded paired REIT- operating companies in existence. Under the Internal Revenue Code, no new paired REIT-operating companies may be established. Greater Financing Flexibility. Each of HP Realty and HP Operating Company intends to expand its existing properties and businesses and to pursue acquisitions consistent with its strategic plans, which will require each of the companies to obtain additional debt and/or equity financing. The Board believes that, by separating Hollywood Park's assets generally along functional lines (gaming/sports/entertainment and real estate) and by allowing separate financial reporting with respect to each of gaming/sports/entertainment and real estate, the Reorganization may provide HP Realty and HP Operating Company with greater flexibility in structuring their credit facilities with lenders and may enable each of them to borrow on better nonfinancial terms than would be possible if HP Operating Company remained a subsidiary of Hollywood Park. In particular, the Board believes that separating the gaming/sports/entertainment business from the real estate business should enhance HP Realty's ability to obtain project financing for potential real estate developments while preserving HP Operating Company's ability to raise bank and bond financing to support its operating businesses. Increase Dividends Paid to Stockholders. Hollywood Park currently pays no dividends on its common stock. After the Reorganization, HP Realty intends to operate as a REIT. Generally, under the Internal Revenue Code of 1986, as amended (the "Code"), HP Realty will be required to distribute as dividends to its stockholders at least 95% of the taxable income (other than net capital gains) that it earns from lease payments received from HP Operating Company on the Hollywood Park Race Track, Hollywood Park-Casino and Turf Paradise Race Track, as well as income earned from future real estate acquisition and development activities, and the amounts distributed generally will not be subject to federal income tax at the corporate level. Accordingly, the Reorganization will result in HP Realty paying virtually all of its income in the form of dividends to stockholders. Based on the proposed terms of the leases for the Hollywood Park and Turf Paradise properties, on a pro forma basis assuming the Reorganization became effective on January 1, 1996, HP Realty would have been required to pay at least $7.5 million ($0.29 per Paired Share) and $4.5 million ($0.17 per Paired Share) in dividends for the year ended December 31, 1996 and the nine months ended September 30, 1997, respectively. 7 Hollywood Park has retained Morgan Stanley & Co. Incorporated to advise it in connection with matters relating to the Reorganization, including assisting the Board in evaluating a proposed business combination with or investment by a potential strategic partner (a "Strategic Transaction"). Although management intends to pursue vigorously, and consummate as expeditiously as possible, a Strategic Transaction, there can be no assurance such a transaction will occur either prior to or after completion of the Reorganization. To date, Hollywood Park has received inquiries from certain entities concerning a Strategic Transaction, and has held discussions with several of the interested parties. However, no agreement or understanding has been reached, and no serious discussions are currently in progress, relating to such a transaction. See "The Reorganization--Purpose of the Reorganization," "--Dividend Policy" and "Management's Discussion and Analysis of Financial Condition and Results of Operations--Post-REIT Pro Forma Results of Operations." Effect of the Reorganization As a result of the Reorganization, it is expected that (i) HP Realty will own the land and facilities at the 378-acre Hollywood Park property in Inglewood, California (the location of the Hollywood Park Race Track and the Hollywood Park-Casino) and the 275-acre Turf Paradise property in Phoenix, Arizona, and (ii) HP Operating Company will own substantially all of Hollywood Park's other assets and conduct substantially all of Hollywood Park's current and future operating businesses. The Company's Boomtown subsidiaries, including all associated real estate, would be transferred to HP Operating Company. See "The Reorganization--Effect of the Reorganization." The Reorganization will be effected through the series of transactions discussed under "The Reorganization--Transactions in Connection with the Reorganization." Diagrams illustrating the corporate structures of Hollywood Park before, and HP Realty and HP Operating Company after, the Reorganization may be found at pages 31 and 32 of this Proxy Statement. Business Strategies of the Reorganized Companies After the Reorganization, HP Realty intends to operate as a REIT, and initially will derive most of its income from HP Operating Company in the form of lease payments on the Hollywood Park Race Track, the Hollywood Park-Casino, and the Turf Paradise Race Track properties. HP Realty will also pursue additional development at its existing properties, acquisitions and development of new properties, and the raising of additional debt and/or equity capital as necessary to finance these activities. In addition, HP Realty and HP Operating Company may make joint acquisitions, principally in the gaming industry, in which the real estate assets of the acquired businesses would be held by HP Realty and the remaining assets would be held, and the operating businesses would be conducted, by HP Operating Company. See "The Reorganization--Effect of the Reorganization" and "Business of HP Realty After the Reorganization." After the Reorganization, HP Operating Company intends to grow its gaming, sports and entertainment businesses by (i) expanding and increasing the utilization of its Boomtown Reno and Boomtown New Orleans properties, possibly its Boomtown Biloxi property, and its other existing properties and (ii) making selected acquisitions, principally in the gaming industry to diversify its operations and to achieve economies of scale. See "Business of HP Operating Company After the Reorganization." Dividend Policy Hollywood Park currently pays no dividends on its common stock. Generally, after the Reorganization HP Realty would be required as a REIT to distribute as dividends to its stockholders a minimum of 95% of its taxable income (other than net capital gains), and such amounts distributed generally would not be subject to federal income tax at the corporate level. Accordingly, HP Realty would distribute at least 95% of the taxable income that it earns from lease payments received from HP Operating Company and from any future real estate acquisition and development activities. However, there can be no assurance that significant taxable income, if any, will be earned and be available for distribution by HP Realty after the Reorganization. 8 HP Operating Company is not expected to pay dividends in the foreseeable future. See "The Reorganization--Dividend Policy," and "Risk Factors--Uncertain Level of Dividends." Conditions to the Reorganization The Reorganization is subject to (i) approval of the Reorganization Amendments by Hollywood Park stockholders; (ii) all necessary regulatory approvals (including the gaming and racing authorities of Arizona, California, Louisiana, Mississippi and Nevada, and other governmental or regulatory bodies) and consents of third parties having been obtained; (iii) effectiveness of the Reorganization Amendments under Delaware law; and (iv) there not being in effect any statute, rule, regulation or order of any court, governmental or regulatory body which prohibits or makes illegal the transactions contemplated by the Reorganization. The terms of the Reorganization may be modified or conditions thereto may be waived by the Board. In addition, the Board has retained discretion, even if stockholder approval of the Reorganization Amendments is obtained and the other conditions to the Reorganization are satisfied, to abandon, defer or modify the Reorganization. See "The Reorganization--Conditions to the Reorganization," "--Regulatory Approvals and Third-Party Consents" and "Federal Income Tax Matters." Effect of Reorganization on Rights of Stockholders The Reorganization will change the rights of Hollywood Park's stockholders in several significant respects. First, the Amended and Restated By-Laws of HP Realty and HP Operating Company (respectively, the "HP Realty By-Laws" and "HP Operating Company By-Laws") will impose restrictions on the transferability of shares of HP Realty Common Stock and HP Operating Company Common Stock designed to implement the pairing of such shares. Second, the Amended and Restated Certificates of Incorporation of HP Realty and HP Operating Company (respectively, the "HP Realty Charter" and "HP Operating Company Charter") will impose on stockholders additional transfer restrictions designed to protect HP Realty's qualification as a REIT, including restrictions generally prohibiting any stockholder from owning more than 9.8% of the outstanding Paired Shares. See "The Reorganization--Effect of Reorganization on Rights of Stockholders" and "Description of Capital Stock of the Companies." Trading The Paired Shares to be issued in the Reorganization will be publicly traded as units under the name "Hollywood Park Enterprises." Hollywood Park intends to file an application for the listing of the units on the New York Stock Exchange (the "NYSE") under Hollywood Park's current symbol "HPK." See "The Reorganization--Trading." Federal Income Tax Consequences The federal income tax consequences of the Reorganization are complex and involve numerous factors. In addition, the federal income tax consequences associated with a paired-share REIT structure are also complex. The Company strongly urges stockholders to carefully read, in their entirety, the summary of the material federal income tax consequences relating to the Reorganization and the paired-share REIT structure under the heading "Federal Income Tax Matters" and the other tax information contained elsewhere in this Proxy Statement. See "Risk Factors--Absence of Rulings from the Internal Revenue Service," "--Uncertain Amount of Corporate and Stockholder Tax Liability" and "--Consequences of Failure to Qualify as a REIT." Hollywood Park will proceed with the Reorganization without obtaining advance rulings from the Internal Revenue Service (the "IRS") as to the tax consequences of the Reorganization. Therefore, in considering and voting upon the Reorganization Amendments and any other matters that are necessary to effect the Reorganization, the stockholders of Hollywood Park should assume that the Reorganization transactions 9 (including the TPI Restructuring and the HPOC Spin-Off, as defined herein) generally will be taxable to Hollywood Park and its stockholders and will have the anticipated federal income tax consequences described in this Proxy Statement under "Federal Income Tax Matters--Federal Income Tax Consequences of Contributions and Spin-Offs." Based on estimates prepared by the Company, Hollywood Park's tax liability associated with the Reorganization could be approximately $54 million and the taxable distribution to Hollywood Park's stockholders associated with the Reorganization could be approximately $130 million (or $4.95 per share of Hollywood Park Common Stock). Stock Certificates; Method of Exchange Promptly after completion of the Reorganization, ChaseMellon Shareholder Services, L.L.C., as Exchange Agent, will send to each Hollywood Park stockholder of record a Letter of Transmittal to be used in surrendering certificates which, prior to the Reorganization, represented shares of Hollywood Park Common Stock in exchange for new certificates representing Paired Shares. Each Hollywood Park stockholder should promptly complete and sign the Letter of Transmittal and forward it together with the old certificates to the Exchange Agent, who will thereafter deliver to the stockholder a new "back-to-back" certificate representing Paired Shares. HOLLYWOOD PARK STOCKHOLDERS SHOULD NOT SEND IN THEIR OLD STOCK CERTIFICATES UNTIL THEY HAVE RECEIVED A LETTER OF TRANSMITTAL. See "The Reorganization-- Stock Certificates; Method of Exchange." Risk Factors Hollywood Park stockholders are urged to read the section of this Proxy Statement relating to the various factors to be considered in connection with the Reorganization. See "Risk Factors." THE 1998 OPTION PLAN Hollywood Park stockholders will be asked to approve the adoption of the HP Operating Company 1998 Stock Option Plan, to be effective upon completion of the Reorganization. This plan would provide for the grant of stock options to officers, employees, directors, and other persons who provide services to HP Operating Company (including employees of HP Realty who also provide services to HP Operating Company) that are exercisable for Paired Shares. After the Reorganization, no new options will be granted under Hollywood Park's existing stock option plans and Hollywood Park's outstanding stock options will be adjusted so that option holders receive Paired Shares upon exercise. Because the 1998 Stock Option Plan is intended to provide for the continuation of an existing benefit, the number of Paired Shares that will be issuable under the 1998 Stock Option Plan will equal the same number of shares that will be available for issuance and not subject to outstanding options immediately prior to completion of the Reorganization under Hollywood Park's existing stock option plans. Therefore, adoption of the 1998 Stock Option Plan will not increase the number of shares that may be subject to option grants. See "The Hollywood Park Operating Company 1998 Stock Option Plan." THE HP OPERATING COMPANY DIRECTORS PLAN Hollywood Park stockholders will also be asked to approve the adoption of the Hollywood Park Operating Company 1998 Directors Deferred Compensation Plan (the "HP Operating Company Directors Plan"), to be effective upon completion of the Reorganization. The HP Operating Company Directors Plan would permit directors of HP Operating Company to elect to defer all or a portion of the compensation they receive in their capacity as directors and to receive the deferred compensation in cash or in Paired Shares of HP Realty Common Stock and HP Operating Company Common Stock. The terms of the HP Operating Company Directors Plan are substantially similar to the terms of the Hollywood Park Directors Deferred Compensation Plan which is currently in effect. The HP Operating Company Directors Plan is intended to provide to directors of HP Operating Company after the Reorganization a benefit that directors of Hollywood Park are currently receiving. If the Hollywood Park stockholders do not approve the adoption of the HP Operating Company Directors Plan, 10 and the Reorganization is completed, the HP Operating Company Directors Plan will still go into effect, but will only permit directors to defer their compensation in cash. See "The Hollywood Park Operating Company Directors Plan." THE SUPERMAJORITY ELIMINATION AMENDMENT Hollywood Park stockholders will be asked to vote on a proposal to remove Article XII from Hollywood Park's Certificate of Incorporation. Article XII requires that a merger, consolidation, sale of substantially all of Hollywood Park's assets or dissolution of Hollywood Park be approved by 70% of Hollywood Park's outstanding stock. If the Supermajority Elimination Amendment is approved, stockholder approval of the foregoing actions would be required only to the extent required by Delaware law which, in the cases where a vote is required at all, would generally be the approval of a majority of Hollywood Park's outstanding stock entitled to vote. In the case of certain mergers and certain transfers of substantially all of Hollywood Park's assets (not otherwise constituting a sale, lease or exchange), in the absence of Article XII Delaware law would not require any stockholder approval. This amendment would enhance management's ability to pursue beneficial corporate combinations and other transactions and would prevent a minority of the shares (i.e., 30%) from blocking a corporate opportunity that the Board and holders of a majority of the shares might consider desirable. See "The Supermajority Elimination Amendment." THE GAMING AMENDMENT Hollywood Park stockholders will be asked to vote on a proposal to amend and restate Article XIV of Hollywood Park's Certificate of Incorporation. Article XIV currently grants Hollywood Park the power to redeem its stock and other securities from a holder who, because the holder lacks prescribed qualifications, would cause Hollywood Park or its subsidiaries to lose, or prevent the reinstatement of, any government-issued franchise or license necessary for the operation of Hollywood Park's California card club casinos. The Gaming Amendment would amend Article XIV to: (i) require Hollywood Park and all holders of its and its affiliated companies' securities to comply with the gaming laws of all jurisdictions in which Hollywood Park and its affiliated companies conduct gaming activities, and to provide that all securities of Hollywood Park will be subject to the requirements of those gaming laws; (ii) grant Hollywood Park the power to redeem its securities from persons who are deemed unsuitable by any gaming authority or who could jeopardize any of Hollywood Park's required gaming licenses; and (iii) prohibit the exercise of any voting rights by, or the payment of dividends, interest or remuneration for services to, unsuitable persons. The Gaming Amendment is being submitted for stockholder approval at the Annual Meeting because, as a result of Hollywood Park's 1997 acquisition of Boomtown, Inc., Hollywood Park now conducts gaming activities in Nevada, Louisiana and Mississippi, in addition to California. The Board of Directors believes that the Gaming Amendment is necessary to enable Hollywood Park and its subsidiaries to obtain or maintain required gaming licenses in all jurisdictions in which they currently conduct gaming activities and in which they may conduct gaming activities in the future, and to ensure compliance with the gaming laws of such jurisdictions by Hollywood Park, its subsidiaries and its stockholders. See "The Gaming Amendment." ELECTION OF DIRECTORS The stockholders of Hollywood Park will be asked to elect eleven directors of Hollywood Park to serve for the coming year on the Board. Hollywood Park has nominated as candidates R.D. Hubbard, Harry Ornest, J.R. Johnson, Timothy J. Parrott, Richard Goeglein, Peter L. Harris, Robert T. Manfuso, Lynn P. Reitnouer, Herman Sarkowsky, Warren B. Williamson and Delbert W. Yocam. Each of the nominees is a current director of Hollywood Park. If the Reorganization is completed, each individual elected as a director of Hollywood Park at the Annual Meeting will become a director of HP Operating Company or HP Realty. See "The Reorganization--Directors, Officers and Employees of HP Operating Company and HP Realty" and "Election of Directors." 11 RECOMMENDATION OF THE BOARD OF DIRECTORS The Board has approved the Reorganization and the Reorganization Amendments and has determined that the Reorganization is in the best interests of Hollywood Park and its stockholders and therefore unanimously recommends approval of the Reorganization Amendments. See "The Reorganization--Purpose of the Reorganization." In conjunction with the Annual Meeting, the Board also recommends approval of the 1998 Option Plan, the HP Operating Company Directors Plan, the Supermajority Elimination Amendment and the Gaming Amendment, and a vote in favor of election of each of the director nominees set forth herein. 12 SUMMARY PRO FORMA FINANCIAL DATA The following tables summarize certain unaudited pro forma combined consolidated condensed financial data for (i) Hollywood Park, Inc., prior to giving effect to the Reorganization (the "Pre-REIT Summary Financial Data"), and (ii) each of HP Realty and HP Operating Company after giving effect to the Reorganization (the "Post-REIT Summary Financial Data"), in each case for the year ended December 31, 1996 and the nine months ended September 30, 1997. The Pre-REIT Summary Financial Data gives effect to Hollywood Park's acquisition of Boomtown, Inc. ("Boomtown") as a purchase, the divestiture of Boomtown's Las Vegas property, the issuance by Hollywood Park, Inc. and HP Operating Company of $125 million aggregate principal amount of 9 1/2% Senior Subordinated Notes due 2007 (the "Notes") and the application of the proceeds therefrom. The Pre- REIT Summary Financial Data was prepared by combining the consolidated statement of operations of Hollywood Park with the unaudited consolidated statement of operations of Boomtown, for the year ended December 31, 1996 (though historically Boomtown reported results on a September 30 fiscal year end), and by combining the unaudited statement of operations of Hollywood Park for the nine months ended September 30, 1997, which includes the results of operations of Boomtown from and after July 1, 1997, with Boomtown's unaudited results of operations for the six months ended June 30, 1997. The Post-REIT Summary Financial Data includes pro forma adjustments to give effect to the Reorganization, and assumes that the real property assets of Turf Paradise, Inc. will be retained by a subsidiary of HP Realty. The information set forth below should be read in conjunction with the information set forth under "Unaudited Pro Forma Combined Consolidated Condensed Financial Statements," "Management's Discussion and Analysis of Financial Condition and Results of Operations" and Hollywood Park's and Boomtown's consolidated financial statements and the notes thereto included in this Proxy Statement. The following information is qualified in its entirety by the information and financial statements appearing elsewhere in this Proxy Statement. This pro forma information is presented for illustrative purposes only and is not necessarily indicative of the operating results or financial position that would have occurred if the Boomtown acquisition, the issuance of the Notes, and the Reorganization had been consummated in an earlier period, nor is it necessarily indicative of future operating results or financial position.
YEAR ENDED DECEMBER 31, 1996 --------------------------------- PRE-REIT POST-REIT HOLLYWOOD POST-REIT HP OPERATING PARK, INC. HP REALTY COMPANY ---------- --------- ------------ (IN THOUSANDS, EXCEPT PER SHARE DATA) STATEMENT OF OPERATIONS DATA: Revenues.................................... $336,583 $15,777 $335,429 Operating expenses.......................... 354,666 7,746 361,543 Operating income (loss)..................... (18,083) 8,031 (26,114) Interest expense............................ 15,468 134 15,334 Income (loss) before extraordinary item..... (37,523) 7,897 (41,168) Dividends on convertible preferred stock(a)................................... 1,925 1,925 0 Income (loss) before extraordinary item available to (attributable to) common shareholders............................... (39,448) 5,972 (41,168) Per common share: Income (loss) before extraordinary item: Primary................................... $ (1.65) $ 0.25 $ (1.72) Fully diluted............................. $ (1.65) $ 0.25 $ (1.72) OTHER DATA: Funds from operations(b)................... -- $14,031 --
13
NINE MONTHS ENDED SEPTEMBER 30, 1997 --------------------------------- PRE-REIT POST-REIT HOLLYWOOD POST-REIT HP OPERATING PARK, INC. HP REALTY COMPANY ---------- --------- ------------ (IN THOUSANDS, EXCEPT PER SHARE DATA) STATEMENT OF OPERATIONS DATA: Revenues................................... $259,305 $10,750 $258,365 Operating expenses......................... 234,627 5,829 238,608 Operating income........................... 24,678 4,921 19,757 Interest expense........................... 11,051 155 10,896 Income before extraordinary item........... 7,715 4,766 4,856 Dividends on convertible preferred stock(a).................................. 1,520 1,520 0 Income before extraordinary item available to common shareholders.................... 6,195 3,246 4,856 Per common share: Income before extraordinary items-- primary................................... $ 0.26 $ 0.13 $ 0.20 OTHER DATA: Funds from operations(b)................... -- $ 9,394 -- BALANCE SHEET DATA: Cash and cash equivalents.................. $ 22,007 $ 3,567 $ 18,440 Long term obligations...................... 132,163 0 132,163 Stockholders' equity....................... 219,475 56,091 119,902
- -------- (a) On August 28, 1997, Hollywood Park redeemed the outstanding convertible preferred stock for shares of Hollywood Park Common Stock, and cash dividends on the convertible preferred stock ceased to accrue as of that date. (b) Funds from operations is defined as income before minority interest (computed in accordance with generally accepted accounting principles) excluding gains (losses) from debt restructuring and sale of property, provision for losses, and real estate related depreciation and amortization (excluding amortization of financing costs). Funds from operations does not necessarily represent cash generated from operating activities in accordance with generally accepted accounting principles and is not necessarily indicative of cash available to fund cash needs. Funds from operations should not be considered an alternative to net income as an indication of HP Realty's financial performance or as an alternative to cash flows from operating activities as a measure of liquidity.
NINE MONTHS YEAR ENDED ENDED DECEMBER 31, SEPTEMBER 30, 1996 1997 ------------ ------------- Calculation of funds from operations: Income before minority interest.................. $ 7,897 $4,766 Excluding gains (losses) from debt restructuring................................... 0 0 Excluding gains (losses) from sale of property... 0 0 Excluding provision for losses................... 0 0 Add back real estate related depreciation and amortization.................................... 6,134 4,628 ------- ------ $14,031 $9,394 ======= ======
14 RISK FACTORS THIS PROXY STATEMENT CONTAINS CERTAIN STATEMENTS WITH RESPECT TO, AMONG OTHER THINGS, THE FINANCIAL CONDITION, RESULTS OF OPERATIONS, BUSINESS AND PROSPECTS OF HOLLYWOOD PARK (AND OF HP REALTY AND HP OPERATING COMPANY FOLLOWING THE REORGANIZATION) THAT ARE FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF SECTION 27A OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND SECTION 21E OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"), INCLUDING STATEMENTS RELATING TO EXPANSION OPPORTUNITIES, PRO FORMA COMBINED COMPANY FINANCIAL RESULTS OF HOLLYWOOD PARK, INC. AND BOOMTOWN, INC., THE POTENTIAL BENEFITS OF THE PROPOSED REORGANIZATION (INCLUDING THE POSSIBLE ENHANCEMENT OF INVESTOR PERCEPTION OF THE COMBINED COMPANIES' VALUE), THE DECLARATION AND PAYMENT OF DISTRIBUTIONS BY HP REALTY, THE AVAILABILITY OF DEBT FINANCING ON FAVORABLE TERMS AND TRENDS AFFECTING FINANCIAL CONDITION AND RESULTS OF OPERATIONS, AND SUCH STATEMENTS ARE INTENDED TO BE COVERED BY THE SAFE HARBOR CREATED THEREBY (SEE "SUMMARY--THE REORGANIZATION," "--SUMMARY PRO FORMA FINANCIAL DATA," "THE REORGANIZATION-- PURPOSE OF THE REORGANIZATION," "--EFFECT OF THE REORGANIZATION," "BUSINESS OF HP OPERATING COMPANY AFTER THE REORGANIZATION," "BUSINESS OF HP REALTY AFTER THE REORGANIZATION," "FEDERAL INCOME TAX MATTERS," "UNAUDITED PRO FORMA COMBINED CONSOLIDATED CONDENSED FINANCIAL STATEMENTS," "SELECTED HISTORICAL AND PRO FORMA FINANCIAL DATA" AND "MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS"). THESE FORWARD-LOOKING STATEMENTS CONCERN MATTERS WHICH INVOLVE CERTAIN RISKS AND UNCERTAINTIES. FACTORS THAT MAY CAUSE ACTUAL PERFORMANCE OF HOLLYWOOD PARK (AND OF HP REALTY AND HP OPERATING COMPANY) TO DIFFER MATERIALLY FROM THOSE CONTEMPLATED BY SUCH FORWARD-LOOKING STATEMENTS INCLUDE, AMONG OTHERS, FAILURE OF THE PROPOSED REIT TO QUALIFY AS SUCH UNDER THE CODE, FAILURE OF EITHER HP REALTY OR HP OPERATING COMPANY TO COMPLETE OR SUCCESSFULLY OPERATE PLANNED EXPANSION PROJECTS, FAILURE OF EITHER HP REALTY OR HP OPERATING COMPANY TO OBTAIN SUFFICIENT DEBT OR EQUITY FINANCING ON ADVANTAGEOUS TERMS TO MEET ITS STRATEGIC GOALS, FAILURE OF HP REALTY OR HP OPERATING COMPANY TO OBTAIN OR RETAIN GAMING LICENSES OR REGULATORY APPROVALS, GENERAL ECONOMIC AND STOCK MARKET CONDITIONS, AND THE FACTORS SET FORTH UNDER THIS HEADING. In deciding whether to vote to approve the Reorganization Amendments, stockholders should carefully consider, among others, the following factors: ABSENCE OF RULINGS FROM THE INTERNAL REVENUE SERVICE No rulings have been or will be issued by the IRS on any tax issue connected with the Reorganization or on any other tax matter discussed in this Proxy Statement. In August 1997, Hollywood Park submitted a request for advance rulings (the "Ruling Request") to the IRS on certain aspects of the Reorganization, including certain tax issues connected with (i) the TPI Restructuring and the HPOC Spin-Off (as defined under "The Reorganization-- Transactions in Connection with the Reorganization"), and (ii) the qualification of HP Realty as a REIT. In January 1998, the IRS informally advised Hollywood Park's tax counsel and accounting firm that the IRS had tentatively concluded that it would not issue the requested rulings. As a result, Hollywood Park withdrew the Ruling Request and will proceed with the Reorganization as described in this Proxy Statement without any advance rulings from the IRS. Holders should note that without advance rulings from the IRS there can be no assurance that the IRS will take a view similar to Hollywood Park's with respect to the tax consequences described in this Proxy Statement. The Contributions and Spin-Offs. Because the Reorganization will be consummated without IRS rulings, the stockholders of Hollywood Park should assume, in considering and voting upon the Reorganization Amendments and any other matters that are necessary to effect the Reorganization, that the TPI Restructuring and the HPOC Spin-Off will both constitute taxable transactions which will result in tax liabilities for both Hollywood Park and its stockholders as discussed under "Federal Income Tax Matters--Federal Income Tax Consequences of Contributions and Spin-Offs." Because the taxable distribution to stockholders would be in the form of HP Operating Company Common Stock and not in the form of cash, stockholders will be required to fund their resulting tax liability out of other assets, including, if necessary, through the sale of Paired Shares. Based on estimates prepared by the Company, the tax liability associated with the Reorganization could be approximately $54 million for Hollywood Park and the taxable distribution to Hollywood Park's stockholders associated with the Reorganization could be approximately $130 million (or $4.95 per share of Hollywood Park 15 Common Stock). See "Federal Income Tax Matters--Federal Income Tax Consequences of Contributions and Spin-Offs--Tax Consequences of TPI Restructuring and HPOC Spin-Off: Assumption that Transactions Will Be Taxable." In addition, there can be no assurance the amount of Hollywood Park's tax liability or the taxable distribution to stockholders will not be significantly greater than the foregoing estimates. See "Risk Factors-- Uncertain Amount of Corporate and Stockholder Tax Liability." Hollywood Park, based on a review of the applicable facts and circumstances at the time of the HPOC Spin-Off, may report the TPI Restructuring and the HPOC Spin-Off generally as tax-free transactions. See "Federal Income Tax Matters--Federal Income Tax Consequences of Contributions and Spin-Offs-- Possibility that Transactions May Be Reported as Tax-Free." However, there can be no assurance that, if Hollywood Park were to take such reporting positions, the IRS would not challenge them or not prevail in such challenge. In the event the IRS prevailed in such challenge, then in addition to the tax liabilities previously referred to, Hollywood Park would become liable for interest (based on the applicable rates provided by the IRS from time to time) on the tax owed by it and could also become liable for a 20% penalty on its underpayment of income tax. The stockholders of Hollywood Park would also become liable for interest on the tax owed by them, and depending on their individual circumstances, could also become subject to understatement penalties. Section 269B. Section 269B of the Code generally prevents the use of a paired REIT-operating company structure. However, pursuant to the terms of the grandfathering rule set forth in Section 136(c)(3) of P.L. 98-369 (the "Grandfathering Rule"), Section 269B does not apply if the shares of the REIT and the non-REIT were paired as of June 30, 1983 and the REIT was taxable as a REIT as of June 30, 1983. The shares of HP Realty and HP Operating Company were paired as of June 30, 1983 through the end of 1991, and HP Realty filed its tax return as a REIT for the taxable period including June 30, 1983 and all subsequent periods through the end of the 1991 taxable year. Although HP Realty and HP Operating Company ceased operating as a paired-share REIT in 1992, the Grandfathering Rule does not, by its terms, require that the shares of HP Realty and HP Operating Company have been paired at all times after June 30, 1983, or that HP Realty have been taxed as a REIT at all times after June 30, 1983. A bill that is currently pending in Congress, H.R. 2676 (the "Technical Corrections Bill"), contains a provision (the "Grandfathering Rule Amendment") that would clarify that the Grandfathering Rule applies to entities that were paired-share REITs as of June 30, 1983 whether or not they were paired entities for all periods after June 30, 1983. The bill was passed by the U.S. House of Representatives on November 5, 1997 and is currently pending in the U.S. Senate. However, there can be no assurance that the Technical Corrections Bill will be passed by Congress and signed into law by the President, or if it is, that the Grandfathering Rule Amendment will survive in the final bill. In the absence of enactment of the Grandfathering Rule Amendment, Hollywood Park still intends to proceed with the Reorganization based on an opinion of counsel substantially to the effect that the termination of the paired-share status of Hollywood Park and HP Operating Company and of Hollywood Park's REIT election for the taxable years ended December 31, 1992 through 1998 should not result in Section 269B becoming applicable to HP Realty. The opinion formulation using the term "should" means that if the IRS were to assert a contrary view and if all the facts and issues were completely and competently presented to a court, it is more likely than not that the view stated in such opinion would prevail. See "Federal Income Tax Matters--Federal Income Taxation of HP Realty and Requirements for Qualification as REIT--Requirements for Qualification as REIT--Opinion of Irell & Manella." Irell & Manella LLP ("Irell & Manella"), Hollywood Park's tax counsel, has indicated that it would be willing to render such an opinion, unless there is a change in federal tax law adversely impacting the availability of the Grandfathering Rule. See "-- Potential Consequences of Proposed Legislation." There are, however, no judicial or administrative authorities interpreting the Grandfathering Rule, and Irell & Manella's opinion would be based solely on the literal language of the Grandfathering Rule and certain factual representations made by Hollywood Park, including that Hollywood Park and HP Operating Company were stapled entities as of June 30, 1983, and that as of such date, Hollywood Park was a REIT. Therefore, in the absence of enactment of the Grandfathering Rule Amendment and notwithstanding the issuance of such opinion of counsel, there can be no assurance that the IRS would not take a contrary position as to the availability of the Grandfathering Rule and the applicability of Section 269B or that the IRS would not prevail in its position. Indeed, during the Ruling Request process, when 16 the IRS was presented with the same applicable facts and circumstances as would be addressed in such opinion of counsel, the IRS informally advised Hollywood Park's tax counsel and accounting firm that the IRS disagreed with Hollywood Park's position on this matter. If the IRS finds, after the Reorganization is completed, that HP Realty is subject to Section 269B and the IRS prevails in its position, the paired-share REIT structure would not be respected for federal income tax purposes and HP Realty would not qualify as a REIT. In that event, HP Realty would be required to pay corporate income taxes and would not be able to deduct from its taxable income the amount of any dividends paid to its stockholders. It is possible that, because of prior dividend distributions, HP Realty would not have the funds to pay this tax liability, and HP Realty's corporate tax liability would reduce the funds available for distribution as dividends to HP Realty's stockholders. Accordingly, a finding by the IRS that HP Realty is subject to Section 269B of the Code would have a material adverse effect on the business, results of operations and financial condition of HP Realty, and would significantly reduce the return on investment earned by holders of the Paired Shares. See "--Consequences of Failure to Qualify as a REIT" and "Federal Income Tax Matters--Federal Income Taxation of HP Realty and Requirements for Qualification as REIT--Failure to Qualify." POTENTIAL CONSEQUENCES OF PROPOSED LEGISLATION There can be no assurance that the federal government will not enact legislation in the future that limits or eliminates the ability of paired- share REITs, including HP Realty and HP Operating Company, to avail themselves of the Grandfathering Rule. In early February 1998, the Clinton administration proposed legislation that would limit the tax-favored status enjoyed by paired-share REITs. According to the Treasury Department's General Explanations of the Administration's Revenue Proposals, under the proposed legislation, for purposes of determining whether any grandfathered entity is a REIT, the paired entities would be treated as one entity with respect to properties acquired on or after the date of first Congressional committee action regarding the proposed legislation and with respect to activities or services relating to such properties (i.e., properties acquired on or after the effective date) that are undertaken or performed by one of the paired entities on or after such date. If the proposed legislation is enacted before the Reorganization has been consummated, or in Hollywood Park's judgment is likely to be enacted, Hollywood Park may abandon the Reorganization. If the proposed legislation is enacted after the Reorganization has been consummated, the legislation would substantially impair the ability of HP Realty and HP Operating Company to avail themselves of the benefits of a paired-share REIT structure. Hollywood Park believes that, at the present time, it cannot be predicted whether such proposal will be enacted or, if enacted, in what form. The proposed legislation could also deter third parties from pursuing Strategic Transactions with Hollywood Park and thereby reduce the potential benefits of the Reorganization. The staff of the Congressional Joint Committee on Taxation also has indicated that it plans to look at the issue of paired- share REITs at some point in the future. See "Federal Income Tax Matters-- Federal Income Taxation of HP Realty and Requirements for Qualification as REIT--Paired Shares." There also can be no assurance legislation will not be enacted that adversely affects REITs in general. The Clinton administration has proposed legislation that would eliminate the ability of REITs to defer, under IRS Notice 88-19, taxable gain on appreciated assets at the time REIT status is elected or a REIT makes an acquisition of assets of a regular corporation subject to full corporate-level tax. Based on the Treasury Department's explanations of this proposal, it is expected that the proposed legislation would be effective for REIT elections that are first effective for a taxable year beginning after January 1, 1999 and would also apply to acquisitions after December 31, 1998. See "Federal Income Tax Matters--Federal Income Taxation of HP Realty and Requirements for Qualification as REIT--General." If the proposed legislation is enacted, it could substantially reduce the benefits of the Reorganization because the cost of making certain acquisitions would be increased on account of the inability to defer tax on appreciated acquired assets. Hollywood Park believes that, at the present time, it cannot be predicted whether such proposal will be enacted or, if enacted, in what form. UNCERTAIN AMOUNT OF CORPORATE AND STOCKHOLDER TAX LIABILITY In considering and voting upon the Reorganization Amendments and any other matters that are necessary to effect the planned Reorganization, the stockholders of Hollywood Park should assume that the TPI Restructuring 17 and the HPOC Spin-Off will both constitute taxable transactions. See "-- Absence of Rulings from the Internal Revenue Service." If the TPI Restructuring is a taxable transaction, it would result in the recognition of gain by the Company equal to either (i) the excess, if any, of the fair market value of the assets contributed by Turf Paradise to Turf Paradise Operating Company over Turf Paradise's tax basis in such assets, or (ii) the excess of the fair market value of the assets retained by Turf Paradise over Turf Paradise's tax basis in such assets. If the HPOC Spin-Off is a taxable transaction, then (i) Hollywood Park would be required to recognize gain on the HPOC Spin-Off to the extent that the fair market value of the shares of HP Operating Company Common Stock distributed in the HPOC Spin-Off exceeded Hollywood Park's tax basis in such shares; and (ii) each holder of Hollywood Park Common Stock who receives shares of HP Operating Company Common Stock in the HPOC Spin-Off would be treated as receiving a taxable distribution in an amount equal to the fair market value of the shares of HP Operating Company Common Stock distributed to such holder as part of the HPOC Spin-Off, taxed first as a dividend to the extent of such holder's pro rata share of Hollywood Park's current and accumulated earnings and profits and then as a nontaxable return of capital to the extent of such holder's adjusted tax basis in the Hollywood Park Common Stock, with any remaining amount being taxed as capital gain (assuming such stock is held as a capital asset). Depending on the fair market value of the shares of HP Operating Company Common Stock on the date of the HPOC Spin-Off, the HPOC Spin-Off could result in significant tax liabilities to stockholders without the companies having distributed to stockholders any cash out of which to satisfy such liabilities. Based on Hollywood Park's tax basis in its HP Operating Company shares, its earnings and profits as of December 31, 1997 (which amounts may increase or decrease prior to completion of the Reorganization on account of 1998 events), and Hollywood Park's estimate that the aggregate fair market value of the shares of HP Operating Company to be distributed in the HPOC Spin-Off would be approximately $130 million (approximately six times estimated 1997 earnings before interest, taxes, depreciation and amortization ("EBITDA"), less the amount of certain liabilities), (i) the combined state and federal tax liability to Hollywood Park would be approximately $29 million and (ii) Hollywood Park stockholders would be treated as receiving a taxable dividend of approximately $71 million (or $2.70 per share of Hollywood Park Common Stock, based on the current number of outstanding shares). In addition, stockholders who have a tax basis in shares of Hollywood Park Common Stock of less than $2.25 per share would realize taxable capital gain equal to the amount by which $2.25 exceeds such stockholders' tax basis in such a share of Hollywood Park Common Stock (assuming such stock is held as a capital asset). However, there can be no assurance that the fair market value of the HP Operating Company shares would not be found to be significantly greater than $130 million, resulting in increased tax liabilities for Hollywood Park and its stockholders. Among other things, if it were determined that some portion of the value attributable to HP Realty's exemption from Section 269B of the Code, providing it with special rights to reinstate a paired REIT-operating company structure, should be allocated to HP Operating Company, then the fair market value of the HP Operating Company shares might be increased to reflect such value. Hollywood Park has retained Morgan Stanley & Co. Incorporated to advise it in connection with matters relating to the restoration of the paired-share structure, including evaluation of a proposed business combination with or investment by a potential strategic partner (a "Strategic Transaction"). A Strategic Transaction could provide evidence of the value of the paired share structure. See "Federal Income Tax Matters--Federal Income Tax Consequences of Contributions and Spin-Offs--Tax Consequences of TPI Restructuring and HPOC Spin-Off: Assumption that Transactions Will Be Taxable." If the IRS were to assert that the valuation of the HP Operating Company shares, as reported for tax purposes by Hollywood Park, was too low and should therefore be increased for purposes of determining the foregoing tax liabilities, and if the IRS were to prevail in its position, then Hollywood Park would also become liable for interest (based on the applicable rates provided by the IRS from time to time) on the additional tax owed by it and could also become liable for a 20% penalty on its underpayment of income tax, and the stockholders of Hollywood Park would also become liable for interest on the additional tax owed by them and, depending on their individual circumstances, could also become subject to understatement penalties. Based on Turf Paradise's tax basis in its operating and real estate assets, and the fair market value of such assets, as of December 31, 1997 (which amounts may increase or decrease prior to completion of the Reorganization on account of 1998 events), Hollywood Park estimates that the additional combined state and federal tax liability to Hollywood Park from the TPI Restructuring could be as much as $9 million, although 18 there can be no assurance that such tax liability will not be significantly higher. See "Federal Income Tax Matters--Federal Income Tax Consequences of Contributions and Spin-Offs." Whether or not the HPOC Spin-Off constitutes a taxable transaction, (i) Hollywood Park will also be required to recognize income in the amount of any excess loss accounts with respect to the stock of certain of its subsidiaries, and (ii) Hollywood Park may be required to recognize gain as a result of the transfer of certain real estate assets from HP Operating Company to Hollywood Park. Hollywood Park estimates that the combined state and federal tax liability associated with these income items could equal approximately $8 million for the excess loss accounts and approximately $8 million for the transfer of the real estate assets, based on the estimated values of the excess loss accounts and the fair market value of HP Operating Company's real estate as of December 31, 1997 (which values could increase prior to completion of the Reorganization due to 1998 events). However, there can be no assurance that such tax liability will not be significantly higher. See "Federal Income Tax Matters--Federal Income Tax Consequences of Contributions and Spin-Offs." CONSEQUENCES OF FAILURE TO QUALIFY AS A REIT Subject to the limitations and qualifications referred to in this Proxy Statement, Hollywood Park intends that, following implementation of the Reorganization, HP Realty will be organized and operate in a manner so as to satisfy the requirements for qualification and taxation as a REIT and HP Realty's proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT. However, such qualification and taxation as a REIT depends, as described in this Proxy Statement, upon HP Realty's status under a federal tax law grandfathering rule, upon the treatment of HP Realty's continuing relationships with HP Operating Company, and upon HP Realty's ability to meet, through annual operating results, certain requirements relating to its sources of income, nature of assets, distributions to stockholders, diversity of stock ownership, and various other tests imposed under the REIT provisions of the Code. See "Federal Income Tax Matters--Federal Income Taxation of HP Realty and Requirements for Qualification as REIT." Paired Shares and the Grandfathering Rule. If the paired-share REIT structure is not respected for federal income tax purposes, then HP Realty would be unable to qualify as a REIT. There are several uncertainties as to whether such a structure will be respected for federal income tax purposes, including the following: (i) Section 269B of the Code generally prevents the use of a paired REIT- operating company structure. Hollywood Park will complete the Reorganization in reliance on either the Grandfathering Rule Amendment, if enacted, or based on an opinion of counsel substantially to the effect that the termination of the paired-share status of Hollywood Park and HP Operating Company and of Hollywood Park's REIT election for the taxable years ended December 31, 1992 through 1998 should not result in Section 269B becoming applicable to HP Realty. There can be no assurance that the Grandfathering Rule Amendment will be enacted. If Hollywood Park completes the Reorganization based on an opinion of counsel, there can be no assurance that the IRS would not take a contrary position as to the applicability of Section 269B or that the IRS would not prevail in its position. Indeed, during the Ruling Request process, the IRS informally advised Hollywood Park's tax counsel and accounting firm that the IRS disagreed with Hollywood Park's position on this matter. See "--Absence of Rulings from the Internal Revenue Service." In addition, the federal government may enact legislation in the future that limits or eliminates the ability of paired-share REITs to avail themselves of the Grandfathering Rule. In early February 1998, the Clinton administration proposed such legislation. See "--Potential Consequences of Proposed Legislation." (ii) The IRS has announced that it will not issue a ruling on whether a corporation whose stock is "paired" with or "stapled" to stock of another corporation will qualify as a REIT, if the activities of the corporations are integrated. This issue has never been resolved by the courts and, thus, there can be no assurance that the IRS would not challenge HP Realty's qualification as a REIT on this basis, or that, if the IRS did so, it would not prevail. Gross Income Tests. In order to maintain qualification as a REIT, HP Realty must annually satisfy certain gross income requirements under the REIT provisions of the Code (the "Gross Income Tests"). There are 19 several uncertainties as to whether the income HP Realty will derive from its leases with HP Operating Company and Turf Paradise Operating Company will qualify as "rents from real property" for purposes of the Gross Income Tests, including whether such leases are true leases and not joint ventures or other arrangements, the practical difficulties of monitoring the 10% stock ownership limitations on a continuous basis, and whether the percentage rent under such leases satisfies all the necessary conditions to qualify as "rents from real property." Prior to completion of the Reorganization, Irell & Manella will render an opinion substantially to the effect that the leases should be treated as true leases for federal income tax purposes. However, because there are no authorities involving leases between paired companies, Irell & Manella's opinion will be based upon an analysis of the facts and circumstances (and in that regard, Irell & Manella will rely on factual representations made by Hollywood Park) and upon rulings and judicial decisions involving analogous situations. There can be no assurance that the leases will not be recharacterized by the IRS as joint ventures or other arrangements rather than as true leases. See "Federal Income Tax Matters--Federal Income Taxation of HP Realty and Requirements for Qualification as REIT--Gross Income Tests." In addition, although the income derived by HP Realty from the operation of the Hollywood Park Golf and Sports Center and the Turf Paradise Travel Trailer Park may not be considered to be qualifying income, Hollywood Park expects that other qualifying income will be large enough in amount for HP Realty to satisfy the Gross Income Tests. However, if Hollywood Park's expectation is not met and HP Realty failed the Gross Income Tests, HP Realty would be unable to satisfy the requirements to be taxed as a REIT (unless it were entitled to relief under certain narrow provisions of the Code). Consequences of Failure to Qualify Tax Liability. If HP Realty fails for any reason to qualify for taxation as a REIT in any taxable year and no relief provisions apply, then HP Realty will be subject to tax (including any applicable alternative minimum tax) on its taxable income at regular corporate rates. In addition, distributions to stockholders in any year in which HP Realty fails to qualify will not be deductible by HP Realty nor will they be required to be made. HP Realty's failure to qualify as a REIT could result in significant tax liabilities to HP Realty at a time when, due to prior distributions to stockholders, it may not have sufficient cash or other liquid assets to pay the tax. To obtain the funds necessary to pay such tax liabilities, HP Realty may be required to arrange for short-term or possible long-term borrowings or to sell some of its assets. There can be no assurance that such borrowings or asset sales would be in the best interests of, or could be effected on terms favorable to, HP Realty and its stockholders. As a result, the corporate tax liabilities arising from such failure to qualify could have a material adverse effect on the business, results of operations and financial condition of HP Realty. Reduced Dividends. As stated above, if HP Realty failed to qualify as a REIT, it will be required to pay corporate income taxes and would not be able to deduct from its taxable income the amount of any dividends paid to its stockholders. Accordingly, HP Realty's failure to qualify as a REIT would significantly reduce the cash available for distribution by HP Realty to its stockholders. Under such circumstances, the dividend income (and total return on investment) earned by holders of the Paired Shares would be significantly reduced. See "Federal Income Tax Matters--Federal Income Taxation of HP Realty and Requirements for Qualification as REIT." DEPENDENCE ON FUTURE BORROWINGS The Board believes that, by separating Hollywood Park's assets along functional lines (gaming/sports/entertainment and real estate) and by allowing separate financial reporting with respect to each of gaming/sports/entertainment and real estate, the Reorganization may provide HP Realty and HP Operating Company with greater flexibility in structuring their credit facilities with lenders and may enable each of them to borrow on better nonfinancial terms than would be possible if HP Operating Company remained a subsidiary of Hollywood Park. See "The Reorganization--Purpose of the Reorganization." In order for HP Realty and HP Operating Company to realize this benefit, they will have to negotiate and obtain financing arrangements on more favorable terms than those under Hollywood Park's current $100 million bank credit facility, either from the 20 current lenders under that credit facility or from an alternative group of lenders. There can be no assurance, however, that either HP Realty or HP Operating Company will be successful in doing so, or that lenders will not impose less favorable lending terms. Because HP Operating Company will be required to make substantial lease payments to HP Realty and HP Realty will be required, in order to maintain its qualifications as a REIT, to distribute most of its income to its stockholders on an annual basis, lenders might be reluctant to extend financing on improved or comparable terms. See "The Reorganization--Relationship Between the Companies After the Reorganization" and "Federal Income Tax Matters." In addition, each of HP Operating Company's and HP Realty's access to third-party financing will depend upon a number of factors beyond their control, including competitive forces in the banking industry and the general availability of credit in the U.S. market. A failure by HP Realty and/or HP Operating Company to obtain third-party financing on improved terms would prevent Hollywood Park stockholders from realizing one of the anticipated benefits of the Reorganization and could have a material adverse effect on the business, results of operations and financial condition of HP Realty and HP Operating Company. In addition, following the Reorganization, holders of $125 million aggregate principal amount of Series A and Series B 9 1/2% Senior Subordinated Notes due 2007 issued by Hollywood Park and HP Operating Company (the "Notes") will have the right to cause Hollywood Park and HP Operating Company to repurchase the Notes at 101% (or 102% in certain circumstances) of the aggregate principal amount of the Notes. See "The Reorganization--Allocation of Indebtedness" and "Management's Discussion and Analysis of Financial Condition and Results of Operations-- Liquidity and Capital Resources." There can be no assurance, in the event HP Realty and HP Operating Company are required to repurchase a significant portion of the Notes, that replacement financing will be available on favorable terms. A failure to obtain replacement financing on favorable terms for the redeemed Notes would have a material adverse effect on the business, results of operations and financial condition of HP Realty and HP Operating Company. CONSEQUENCES OF REIT DIVIDEND REQUIREMENT Management intends that, after the Reorganization, HP Realty will operate, and elect to be taxed, as a REIT. In order to qualify as a REIT, HP Realty must meet on a continuing basis certain requirements relating to its organization, sources of income, nature of assets, and distribution of income to stockholders. See "Federal Income Tax Matters--Federal Income Taxation of HP Realty and Requirements for Qualification as REIT." Under the income distribution requirement, HP Realty must generally distribute as dividends to its stockholders a minimum of 95% of its taxable income (other than net capital gains). As a result, it may be difficult for HP Realty to retain a significant amount of cash from operations for use in acquiring and developing real estate or otherwise growing its business. Because HP Realty's strategic plan contemplates further real estate acquisition and development (see "Business of HP Realty After the Reorganization"), HP Realty will need to seek debt or equity financing from external sources to execute its strategic plan. The Board believes that the Reorganization should enhance HP Realty's ability to obtain project financing for potential real estate developments while preserving HP Operating Company's ability to raise bank and bond financing to support its operating businesses. See "The Reorganization--Purpose of the Reorganization." However, there can be no assurance that the required debt financing will be available in sufficient amounts or on sufficiently favorable terms. See "--Dependence on Future Borrowings." In addition, the paired-share structure imposes certain constraints that will make it more difficult for HP Realty than other companies to finance growth through the issuance of equity securities. See "--Constraints on Equity Financing." CONSTRAINTS ON EQUITY FINANCING As a result of the pairing of HP Realty Common Stock and HP Operating Company Common Stock, after the Reorganization HP Realty and HP Operating Company will face certain constraints in issuing equity securities that do not exist with Hollywood Park owning HP Operating Company as a subsidiary. In particular, under the Pairing Agreement, (i) neither HP Realty nor HP Operating Company will be able to issue shares of capital stock (with the exception of certain non-convertible preferred stock) except in combination with shares of like securities of the other company; and (ii) a portion of the consideration received from any paired issuance will have to be allocated and paid to each company (based upon the relative value of the securities so issued), even though one company may have a greater need for capital than the other. See "Description of Capital Stock of the Companies--The Pairing Agreement." Because HP Realty and HP Operating Company will have independent business plans and 21 financing needs after the Reorganization, the foregoing constraints will at times impair, and possibly preclude, the issuance of equity securities (other than certain non-convertible preferred stock) as a means for funding the companies' respective operations. Under these circumstances, HP Realty and HP Operating Company might be required to fund their operations through other means (including by issuing debt or non-convertible preferred stock) which, depending on market conditions, might carry a higher cost of capital than common stock or convertible securities. In addition, the pairing will place certain constraints on HP Realty's and HP Operating Company's ability to make acquisitions with stock, which could have a material adverse effect on the companies' ability to pursue their respective strategic plans. See "-- Constraints on Future Transactions." CONSTRAINTS ON FUTURE TRANSACTIONS In recent years, Hollywood Park has expanded its properties and businesses primarily through corporate acquisitions. Both HP Realty and HP Operating Company intend to continue to pursue selected acquisitions after the Reorganization as a means of expanding their respective businesses. See "Business of HP Operating Company After the Reorganization" and "Business of HP Realty After the Reorganization." However the Reorganization will place several constraints on the ability of HP Realty and HP Operating Company to acquire other companies or to be acquired by other companies. Following the Reorganization, in order to maintain the paired-share REIT structure, HP Realty and HP Operating Company will be limited in the types of tax-free techniques that they can use to effect an acquisition of another company and, as a result, may be required (i) to use techniques that are taxable, in whole or in part, to the acquired company and its stockholders, and (ii) to use cash or other non- stock consideration to effect the acquisition. See "Federal Income Tax Matters--Constraints on Future Transactions." The foregoing constraints may make proposed acquisitions by HP Realty and HP Operating Company less attractive to potential acquisition targets. Furthermore, because a REIT is generally required to distribute as dividends to its stockholders a minimum of 95% of its taxable income (other than net capital gains), it may be difficult for HP Realty to retain any significant amount of cash from operations for use in making acquisitions or in taking other actions to grow its business. See "-- Consequences of REIT Dividend Requirement." The Board believes that the Reorganization may provide both HP Realty and HP Operating Company with greater flexibility in structuring debt financing to fund acquisitions, and in particular may enhance HP Realty's ability to obtain project financing to fund development. See "The Reorganization--Purpose of the Reorganization." However, the above-mentioned constraints on acquisitions could offset some or all of the beneficial effects that the Reorganization is expected to have on the companies' debt financing capabilities and accordingly could have a material adverse effect on the companies' ability to pursue their strategic plans. UNCERTAIN LEVEL OF DIVIDENDS Achievement of the anticipated benefits of the Reorganization (see "The Reorganization--Purpose of the Reorganization") will depend, in part, on the amount of HP Realty's rental income that will be available for distribution to holders of the Paired Shares. Rents payable to HP Realty under its lease agreements with HP Operating Company are generally based, subject to certain minimum monthly payments, on fixed percentages of various sources of HP Operating Company's revenues from the Hollywood Park Race Track, the Hollywood Park-Casino and the Turf Paradise Race Track, including revenues from pari- mutuel wagering, card club gaming revenues and race track concession sales. See "The Reorganization--Relationship Between the Companies After the Reorganization." These rental payments will be a substantial, if not the exclusive, source of income for HP Realty for the foreseeable future, and accordingly the amount of income available for distribution by HP Realty to holders of the Paired Shares may be directly related to the level of HP Operating Company's revenues from its Hollywood Park and Turf Paradise operations. Any failure of such revenues to meet expectations will result in a corresponding shortfall in dividends paid by HP Realty. The amount of dividends that HP Realty can be expected to pay would also be reduced if the real estate assets of Turf Paradise, Inc. are contributed to HP Operating Company in the Reorganization. EFFECT OF REORGANIZATION ON STOCKHOLDER RIGHTS After the Reorganization, stockholders of Hollywood Park will become stockholders of HP Realty and HP Operating Company. Particularly with respect to the pairing requirement and the ownership limitations to protect 22 HP Realty's REIT status, the rights of stockholders of HP Realty and HP Operating Company under the provisions of the HP Realty and HP Operating Company Charters and By-Laws will differ significantly from the existing rights of Hollywood Park stockholders under Hollywood Park's Certificate of Incorporation (the "Hollywood Park Charter") and By-Laws (the "Hollywood Park By-Laws"). Certain new provisions of the HP Realty and HP Operating Company Charters and the HP Realty and HP Operating Company By-Laws could have a potential anti-takeover effect on HP Realty and HP Operating Company. The HP Realty and HP Operating Company Charters will impose restrictions on the transfer of the Paired Shares intended to protect HP Realty's qualification as a REIT (the "REIT Restrictions"), and the HP Realty and HP Operating Company By-Laws will impose transfer restrictions necessary to effect the pairing (the "Pairing Restrictions," and collectively with the REIT Restrictions, the "Transfer Restrictions"). Among other things, the REIT Restrictions prohibit any stockholder from owning, directly or indirectly, more than 9.8% of the outstanding Paired Shares, and will prevent direct or indirect ownership of more than 50% of the outstanding Paired Shares by five or fewer individuals (defined in the Code to include certain entities). Under the HP Realty and HP Operating Company Charters, owners of more than 5% of the outstanding shares of any class of HP Realty or HP Operating Company capital stock must provide the companies with information regarding their holdings on an annual basis, and HP Realty and HP Operating Company may demand that any owner of HP Realty or HP Operating Company capital stock (regardless of the size of such owner's holdings) provide the companies with such information in order to determine compliance with the Code. The Pairing Restrictions will prohibit any transfer or acquisition of shares of HP Realty Common Stock or HP Operating Company Common Stock unless such shares are paired with an equivalent number of shares of common stock of the other company. The Transfer Restrictions could have the effect of making it more difficult for a third party to acquire control of HP Realty and/or HP Operating Company, including certain acquisitions that stockholders may deem to be in their best interests. See "Description of Capital Stock of the Companies." FACTORS INFLUENCING STOCK MARKET PRICE OF THE PAIRED SHARES Several factors may influence the stock market price of the Paired Shares after the Reorganization that did not influence, or had a lesser influence on, the trading price of Hollywood Park Common Stock before the Reorganization, including the market perception of paired REIT stocks and REIT stocks in general, and legislative changes affecting REITs. In particular, the price of the Paired Shares in public trading markets may be influenced by the annual yield from distributions by HP Realty and HP Operating Company on the Paired Shares as compared to yields on certain financial instruments. An increase in market interest rates will result in higher yields on certain financial instruments, which could adversely affect the market price of the Paired Shares. In addition, the stock market price of the Paired Shares will be influenced by the same factors as Hollywood Park Common Stock before the Reorganization, including fluctuations in quarterly earnings, the profitability and growth prospects of Hollywood Park's gaming and racing businesses, the ability to make acquisitions yielding an attractive return on investment, market perception of gaming and racing companies, as well as general economic and stock market conditions. Although the Board believes that the Reorganization may possibly enhance investor perception of the combined value of Hollywood Park's businesses (gaming/sports/ entertainment and real estate), there can be no assurance that this benefit will be realized due to the foregoing factors. Furthermore, following the Reorganization, the Paired Shares of Hollywood Park Common Stock and HP Realty Common Stock will be subject to the REIT Restrictions, which do not apply to Hollywood Park Common Stock. There can be no assurance that the market price of the Paired Shares will be comparable to the market price of Hollywood Park Common Stock, or that the market price of the Paired Shares will not be adversely affected by the Transfer Restrictions. SEPARATE AND INCREASED EXPENSES HP Realty and HP Operating Company will incur higher expenses as a result of their separate status, including increased director fees, stock transfer costs, state franchise taxes, and expenses resulting from compliance with the proxy solicitation and periodic reporting requirements of the federal securities laws (and the auditing and legal fees associated with such activities). 23 THE REORGANIZATION AMENDMENTS (ITEM NO. 1 ON PROXY CARD) BACKGROUND On September 16, 1997, the Board approved the Reorganization Amendments, and directed the Reorganization Amendments to be submitted to the stockholders of Hollywood Park for their approval at the Annual Meeting. The Reorganization Amendments are a group of amendments to the Hollywood Park Charter that are necessary to effect the proposed Reorganization and to protect HP Realty's qualification as a REIT. Because all of the Reorganization Amendments are necessary to effectuate the foregoing, they are being voted upon as a single item. THE PROPOSED REORGANIZATION AMENDMENTS Approval of the Reorganization Amendments by Hollywood Park stockholders will constitute approval of all of the amendments to the Hollywood Park Charter discussed below: Name Change. Article I of the Hollywood Park Charter would be amended to change Hollywood Park's corporate name from "Hollywood Park, Inc." to "Hollywood Park Realty Enterprises, Inc.," effective only if the Reorganization is consummated. Because Hollywood Park intends to operate as a REIT after the Reorganization, the name change is intended to better describe the nature of Hollywood Park's business after the Reorganization relative to that of HP Operating Company. Authorization of New Classes of Stock. Article IV of the Hollywood Park Charter would be amended to authorize the following new classes of HP Realty capital stock: . 100,000,000 shares of HP Realty Common Stock. If the Reorganization is consummated, each share of Hollywood Park Common Stock outstanding before the Reorganization will be converted into one share of HP Realty Common Stock. HP Realty Common Stock will, by its terms, be subject to the "REIT Restrictions" discussed below. In addition, under the terms of HP Realty's By-Laws and a Pairing Agreement between HP Realty and HP Operating Company (the "Pairing Agreement"), HP Realty Common Stock will be "paired" or "stapled" to HP Operating Company Common Stock so that they will be transferable and tradeable only in combination as units consisting of one share of HP Realty Common Stock and one share of HP Operating Company Common Stock. . 25,000,000 shares of Excess Stock. Shares of Excess Stock may be issued from time to time after the Reorganization upon the occurrence of certain events specified in the REIT Restrictions, including in the event a stockholder exceeds the 9.8% ownership limitation. . 40,000,000 shares of Preferred Stock, $.01 par value. The Hollywood Park Charter currently authorizes the issuance of 250,000 shares of preferred stock, $1.00 par value, which shares will no longer be authorized following effectiveness of the Reorganization Amendments. Article IV of the Hollywood Park Charter, as amended, would contain certain restrictions on the transfer of HP Realty Common Stock which are intended to protect HP Realty's qualification as a REIT (the "REIT Restrictions"). The REIT Restrictions prohibit any transfer or acquisition of HP Realty Common Stock that would (i) result in any person owning, directly or indirectly, more than 9.8% of the outstanding shares of HP Realty Common Stock, (ii) result in the capital stock of HP Realty being beneficially owned by fewer than 100 persons, (iii) result in HP Realty being "closely held" or (iv) cause HP Realty to own, actually or constructively, 10% or more of the ownership interests in a tenant of the real property of HP Realty or a subsidiary of HP Realty, all of the foregoing being determined under the attribution rules of the Code. Any prohibited transfer or acquisition would be deemed to be void ab initio, and the intended transferee or acquiror would acquire no right or interest in the stock intended to be transferred or acquired. A prohibited transfer or acquisition would also trigger the conversion of the stock intended to be transferred or acquired into shares of Excess Stock and the transfer of the Excess Stock to a charitable trust. 24 In connection with the Reorganization, the HP Operating Company Charter will be amended to authorize 100,000,000 shares of HP Operating Company Common Stock (to be paired with HP Realty Common Stock), as well as 25,000,000 shares of Excess Stock and 40,000,000 shares of Preferred Stock, and to contain transfer restrictions substantially similar to the REIT Restrictions. In addition, the HP Realty By-Laws and HP Operating Company By-Laws will be amended to impose additional restrictions on transfer necessary to effect the pairing of HP Realty Common Stock and HP Operating Company Common Stock (the "Pairing Restrictions," and collectively with the REIT Restrictions, the "Transfer Restrictions"). As is the case with the preferred stock that Hollywood Park is currently authorized to issue, after the Reorganization the Board of Directors of each of HP Realty and HP Operating Company would be able, without stockholder approval, to issue Preferred Stock in one or more series with such voting, dividend, conversion, redemption and other rights as the HP Realty Board or the HP Operating Company Board determined in its discretion. The Hollywood Park Board of Directors believes that authorizing the issuance of 40,000,000 shares of the Preferred Stock by each of HP Realty and HP Operating Company will provide the companies with the flexibility to address potential future financing needs by enabling them to create a series of Preferred Stock customized to the needs of any particular transaction (including an acquisition) and to market conditions. However, the HP Realty Board and the HP Operating Company Board would be able, without stockholder approval, to issue Preferred Stock with voting and other rights that could adversely affect the voting power of the holders of the Paired Shares of HP Realty Common Stock and HP Operating Company Common Stock and could have certain anti-takeover effects. The issuance of Preferred Stock could also reduce the funds available for distribution to holders of the Paired Shares as dividends or upon liquidation of the companies. See "Description of Capital Stock of the Companies" for a more detailed discussion of the HP Realty Common Stock, the Excess Stock, the Preferred Stock and the Transfer Restrictions. Reclassification of Hollywood Park Common Stock into HP Realty Common Stock. Article IV of the Hollywood Park Charter would be amended to provide for the automatic conversion of each outstanding share of Hollywood Park Common Stock into one share of HP Realty Common Stock (the "Reclassification"). Following the Reclassification, all shares of Hollywood Park Common Stock will be cancelled and cease to be outstanding. The Reclassification is being effected to make the Transfer Restrictions binding on all HP Realty stockholders. See "--Transactions in Connection with the Reorganization." Reduction in Authorized Shares of Hollywood Park Common Stock. Article IV of the Hollywood Park Charter would be amended to reduce the number of authorized shares of Hollywood Park Common Stock from 40,000,000 to 1,000 after effectiveness of the Reclassification. Although no Hollywood Park Common Stock will be outstanding and the Pairing Agreement will effectively prohibit HP Realty from issuing Hollywood Park Common Stock after the Reorganization, a nominal number of shares of Hollywood Park Common Stock will remain authorized to evidence that the shares of HP Realty Common Stock were issued in a reclassification under Delaware law. The name change and the authorization of new classes of stock described above will be effected through one Reorganization Amendment, and the reclassification of Hollywood Park Common Stock into HP Realty Common Stock and the reduction in authorized shares of Hollywood Park Common Stock will be effected through a separate Reorganization Amendment to be filed with the Delaware Secretary of State after the first Reorganization Amendment is effective. The HP Realty Charter, as it will be amended and restated following the Reorganization assuming the Supermajority Elimination Amendment and the Gaming Amendment are also approved, is attached to this Proxy Statement as Appendix A. The Reorganization Amendments are embodied in Articles I and IV of such appendix. REQUIRED VOTE; RECOMMENDATION OF THE BOARD OF DIRECTORS Approval of the Reorganization Amendments requires the affirmative vote of a majority of the outstanding shares of Hollywood Park Common Stock. For purposes of calculating the votes for and against the proposal, abstentions and broker non-votes will be treated as votes against the proposal. THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" APPROVAL OF THE REORGANIZATION AMENDMENTS. 25 THE REORGANIZATION PURPOSE OF THE REORGANIZATION The Board believes that the reinstitution of Hollywood Park's paired REIT and operating company structure has several significant potential benefits for Hollywood Park's stockholders, including the following: Realize Value Inherent in the Paired Share Structure. The paired REIT- operating company structure will provide HP Realty and HP Operating Company with advantages not generally available to other REITs and operating companies. Under the Code, REITs are generally prohibited from conducting operating businesses using their real estate assets and must lease their properties to third-party operators. These leases must be structured so that the third-party operator captures a portion of each property's current cash flow and current growth. With the paired-share structure, HP Operating Company will be able to lease from HP Realty and operate the Hollywood Park Race Track, the Hollywood Park-Casino and the Turf Paradise Race Track, and may also be the lessee of properties that HP Realty develops or acquires after the Reorganization. As a result, stockholders will be able to retain the economic benefit of ownership of the real estate assets of HP Realty and the full operating profits of HP Operating Company. In addition, the Board believes that the Reorganization may possibly enhance investor perception of the combined value of Hollywood Park's businesses (gaming/sports/entertainment and real estate) due to the foregoing economic benefit, the dividends HP Realty will be required to pay as a REIT and the separation of Hollywood Park's businesses for financial reporting purposes. In that regard, the Board has taken note of the substantial premium other paired-share companies have attracted in the last twelve months in relation to pure operating companies. Therefore, the Board believes that the Reorganization may possibly enhance the stock market value of the Hollywood Park companies, although stock prices are inherently subject to fluctuations, including as a result of general economic and market factors unrelated to the subject company. See "Risk Factors-- Factors Influencing Stock Market Price of the Paired Shares." The Board believes that the pairing of HP Realty and HP Operating Company, as opposed to the creation of separately-traded companies, is desirable because HP Realty and HP Operating Company will continue to have a close business relationship and questions of corporate opportunity and conflicts of interest inherent in such a relationship will be minimized through common ownership. After the Reorganization, HP Realty and HP Operating Company will be one of only five publicly-traded paired REIT-operating companies in existence. Under the Code, no new paired REIT-operating companies may be established. Greater Financing Flexibility. Each of HP Realty and HP Operating Company intends to expand its existing properties and businesses and to pursue acquisitions consistent with its strategic plans. HP Operating Company's strategic plan includes a $25 million enhancement of its Boomtown Reno property and a $10 million enhancement of its Boomtown New Orleans property. HP Operating Company also intends to make selected acquisitions, principally in the gaming industry, to further diversify its operations and to achieve certain economies of scale. In addition, HP Realty will explore the further development of its Inglewood, California and Phoenix, Arizona properties. These projects and acquisitions will require the companies to obtain additional debt and/or equity financing. The Board believes that, by separating Hollywood Park's businesses generally along functional lines (gaming/sports/entertainment and real estate) and by allowing separate financial reporting with respect to each of gaming/sports/entertainment and real estate, the Reorganization may provide HP Realty and HP Operating Company with greater flexibility in structuring their credit facilities with lenders. The Company's bank lenders have historically required that, as a condition to advancing loans to finance the Company's casino and racing operations, the Company grant its lenders liens on its real estate. Management's experience has been that the amount and cost of these bank loans has been driven by the Company's operating cash flow, and that the value of the real estate that has been subject to the banks' liens, although significant, has not provided a basis for additional financing. Nonetheless, these liens have inhibited Hollywood Park from pursuing project financing to support its real estate development activities. Based on conversations with the Company's bank lenders and other financial professionals, the Board believes that the separation of HP Operating Company and HP Realty will permit HP Operating Company to obtain necessary financing based on its cash flow without the necessity of 26 granting liens on HP Realty's real estate. Likewise, since HP Realty's real estate would not be encumbered by HP Operating Company's cash flow financing, the Reorganization would provide HP Realty with the opportunity to pursue project financing in a manner that is precluded by the present structure and its attendant financing arrangements. Conversely, the Board believes that the Reorganization would allow HP Realty to pursue development opportunities and raise additional financing to develop such projects without impairing HP Operating Company's ability to raise bank and bond financing at levels sufficient to support its proposed expansion plans. Accordingly, the Reorganization will enable the companies to borrow on better non-financial terms than would be possible if HP Operating Company remained a subsidiary of Hollywood Park. In order for HP Realty and HP Operating Company to realize this benefit, they will have to negotiate and obtain financing arrangements on more favorable terms than those under Hollywood Park's current $100 million bank credit facility, either from the current lenders under that credit facility or from an alternative group of lenders. Although the Board believes HP Realty and HP Operating Company will be successful in obtaining beneficial financing arrangements, their ability to do so will be affected by factors beyond their control, including competitive forces in the banking industry and the general availability of credit in the U.S. market. Accordingly, there can be no assurance that HP Realty and HP Operating Company will be able to borrow money on better terms after the Reorganization. In addition, following the Reorganization, holders of the Notes (which have an aggregate principal of $125 million) will have the right to cause Hollywood Park and HP Operating Company to redeem the Notes at 101% (or, if there is a decline in the rating of the Notes as a result of the Reorganization, at 102%) of the aggregate principal amount of the Notes. See "Risk Factors--Dependence on Future Borrowings" and "The Reorganization--Allocation of Indebtedness." Increase Dividends Paid to Stockholders. After the Reorganization, HP Realty intends to operate as a REIT. Generally, under the Code, a REIT is required to distribute as dividends to its stockholders a minimum of 95% of its taxable income (other than net capital gains), and the amounts distributed generally are not subject to federal income tax at the corporate level. As a REIT, HP Realty generally will be required to distribute at least 95% of the net taxable income (undiminished by corporate level taxes) that it earns from lease payments received from HP Operating Company on the Hollywood Park Race Track, Hollywood Park-Casino and Turf Paradise Race Track properties, and from any future real estate acquisition and development activities. Accordingly, the Reorganization will result in HP Realty paying virtually all of its income in the form of dividends to stockholders, whereas Hollywood Park currently pays no dividends on its common stock. Based on the proposed terms of the leases for the Hollywood Park and Turf Paradise properties, on a pro forma basis assuming the Reorganization became effective on January 1, 1996, HP Operating Company would have paid HP Realty approximately $14.6 million and $9.8 million in lease payments, and HP Realty would have been required to pay at least $7.5 million ($0.29 per Paired Share) and $4.5 million ($0.17 per Paired Share) in dividends, for the year ended December 31, 1996 and the nine months ended September 30, 1997, respectively. See "Unaudited Pro Forma Combined Consolidated Condensed Financial Statements." HP Realty intends to file an election with the Internal Revenue Service (the "IRS") to qualify as a REIT beginning with the 1999 calendar year. If HP Realty fails to qualify as a REIT, either in 1999 or any subsequent year, it will be taxed at regular corporate income tax rates on all taxable income during such periods. In addition, if HP Realty loses its REIT qualification, HP Realty will also be disqualified from taxation as a REIT for the four taxable years following the year during which qualification was lost (unless the IRS has waived the applicability of such waiting period), after which HP Realty could seek to qualify again. See "Federal Income Tax Matters." HP Operating Company will continue to be taxed at regular corporate income tax rates on its income. The Company previously operated in a paired-share structure from 1982 through the end of 1991. The Company abandoned this structure and terminated its REIT status in 1992 because, in light of the Company's then financial condition and operating results and the market perception of paired share companies at the time, the paired-share structure was determined to be a hinderance to the Company in its efforts to reduce its debt (totalling approximately $63 million at December 31, 1991) and grow its business. In the several years prior to 1992, the Company had experienced losses and had considerable debt. The mandatory requirement that REITs 27 pay out 95% of their income as dividends effectively prevented the Company from reinvesting whatever income it generated in its business and reducing its outstanding debt. Moreover, because the Company's then existing asset base produced virtually no income, the stockholders were not realizing meaningful tax benefits from the Company's paired-share status. The Company also believed that, in that time frame, the market was not valuing paired-share REITs highly and, in fact, that the market discounted the value of paired-share entities. Since that time circumstances have changed dramatically, both with respect to the Company's asset base and financial condition as well as with respect to the market's valuation of paired-share entities. As a result, the Company now believes that the Company's financial position and market conditions will allow shareholders to realize the full value of the paired-share structure. Since 1992, the Company has raised substantial capital through equity offerings of both common and preferred stock. This capital has allowed the Company to engage in significant acquisitions and to repay its outstanding debt. This process has transformed Hollywood Park into a company with relatively low debt (other than the Notes, which were used principally to refinance Boomtown's debt) and strong cash flow. Further, the Company's Board has taken note of the substantial premiums the paired-share structure has recently attracted in relation to pure operating companies. For the foregoing reasons, the Company's Board, with the advice of its financial advisors, has determined that the restoration of the paired-share structure may be an appropriate way to seek to maximize shareholder value, and expects the Reorganization will have the benefits discussed above. However, there can be no assurance that any of the foregoing benefits will be achieved. Hollywood Park has retained Morgan Stanley & Co. Incorporated to advise it in connection with matters relating to the Reorganization, including assisting the Board in evaluating a proposed business combination with or investment by a potential strategic partner (a "Strategic Transaction"). Although management intends to pursue vigorously, and consummate as expeditiously as possible, a Strategic Transaction, there can be no assurance such a transaction will occur either prior to or after completion of the Reorganization. Hollywood Park's decision to proceed with the Reorganization without advance rulings from the IRS could deter third parties from pursuing Strategic Transactions with Hollywood Park and thereby reduce the potential benefits of the Reorganization. To date, Hollywood Park has received inquiries from certain entities concerning a Strategic Transaction, and has held discussions with several of the interested parties. However, no agreement or understanding has been reached, and no serious discussions are currently in progress, relating to such a transaction. EFFECT OF THE REORGANIZATION In the Reorganization, Hollywood Park's current assets and operating businesses will be divided between HP Realty and HP Operating Company as follows: HP Realty will be the: . Owner of Hollywood Park Race Track real property and facilities (to be leased to HP Operating Company); . Owner of Hollywood Park-Casino real property and facilities (to be leased to HP Operating Company); . Owner of Turf Paradise Race Track real property and facilities (to be leased by HP Realty's Turf Paradise, Inc. subsidiary ("Turf Paradise") to Turf Paradise Operating Company, a subsidiary of HP Operating Company); . Owner of 150 acres of undeveloped land at the Hollywood Park property in Inglewood, California; . Owner of 100 acres of undeveloped land at the Turf Paradise property in Phoenix, Arizona; . Owner and operator of Hollywood Park Golf and Sports Center, featuring miniature golf, putting course, pro shop, driving ranges, and batting cages; and . Owner and operator of Turf Paradise Travel Trailer Park. HP Operating Company will be the: . Operator of Hollywood Park Race Track, including thoroughbred horse racing and simulcast wagering (under real property lease from HP Realty); 28 . Operator of gaming and other operations at Hollywood Park-Casino (under real property lease from HP Realty); . Operator (through Turf Paradise Operating Company) of Turf Paradise Race Track, including thoroughbred, quarter horse and arabian horse racing and simulcast wagering (under real property lease from HP Realty); . Owner and operator (through Boomtown, Inc.) of gaming and other operations at Boomtown Reno, Boomtown New Orleans and Boomtown Biloxi (including the ownership of all real estate currently owned by Boomtown); . Owner (through Crystal Park Hotel and Casino Development Company LLC ("Crystal Park LLC")) of a 93.2% interest in the Crystal Park Hotel and Casino (the "Crystal Park Casino"); . Owner (through Sunflower Racing, Inc. ("Sunflower")) of The Woodlands, including greyhound and thoroughbred racing; and . Owner (through HP Yakama, Inc. ("HP Yakama") and HP Yakama Consulting, Inc. ("HPY Consulting")) of an interest in an Indian gaming facility in Washington State (the "Yakama Project"), subject to regulatory approval. In the Reorganization, the real estate assets of Hollywood Park's Boomtown, Crystal Park LLC and Sunflower subsidiaries will not be retained by HP Realty and will instead be transferred to HP Operating Company together with the related operating businesses. Hollywood Park believes that the tax liability that would result from dividing Boomtown's real estate and operating businesses would outweigh the advantages of HP Realty retaining the Boomtown real estate. Hollywood Park also believes that Boomtown's real estate has a less significant development potential than the Hollywood Park property in Inglewood, California and the Turf Paradise property in Phoenix, Arizona. In addition, it is not practical to divide Crystal Park LLC into real estate and operating businesses because Hollywood Park intends to seek one or more suitable minority investors for this subsidiary, and dividing Crystal Park LLC could limit Hollywood Park's flexibility in negotiating such a transaction. Likewise, it is not practical to divide the Sunflower real estate and operating businesses because Sunflower is currently the subject of a reorganization proceeding under Chapter 11 of the Bankruptcy Code. Under certain circumstances, all of the assets of Hollywood Park's Turf Paradise subsidiary (including all real estate and the operations of the Turf Paradise Travel Trailer Park) may be transferred to HP Operating Company in the Reorganization. As discussed below under "Federal Income Tax Matters," Hollywood Park may decide, based on the facts and circumstances existing immediately prior to the completion of the Reorganization transactions, to report the distribution of the stock of HP Operating Company in the Reorganization as a tax-free spin-off with the IRS. In such an event, transferring Turf Paradise in its entirety to HP Operating could potentially reduce Hollywood Park's corporate tax liability from the Reorganization transactions. This structural change would reduce the lease payments made by HP Operating Company to HP Realty and the amount of income that HP Realty would be able to distribute as dividends to holders of the Paired Shares. See "Federal Income Tax Matters" and "Notes to Post-REIT Unaudited Pro Forma Consolidated Statements of Operations." BUSINESS STRATEGIES OF THE REORGANIZED COMPANIES After the Reorganization, HP Realty intends to operate as a REIT and make an election with the Internal Revenue Service to be taxed as such as of the beginning of the following calendar year. Under the Code, REITs are strictly limited in their ability to engage, either directly or through a subsidiary, in the active conduct of a business. Accordingly, HP Realty will initially derive most of its income from HP Operating Company in the form of lease payments on the real property and facilities used to conduct operations at the Hollywood Park Race Track, the Hollywood Park-Casino, and the Turf Paradise Race Track. See "--Relationship Between the Companies After the Reorganization." HP Realty will also consider raising additional debt and/or equity capital as necessary to finance additional development at its existing properties and to acquire and develop new properties. In addition, HP Realty and HP Operating Company may make joint acquisitions, principally in the gaming industry, in which the real estate assets of the acquired businesses would be held by HP Realty and the 29 remaining assets would be held, and the operating businesses would be conducted, by HP Operating Company. See "Federal Income Tax Matters" and "Business of HP Realty After the Reorganization." After the Reorganization, HP Operating Company intends to grow its gaming, sports and entertainment businesses by (i) expanding and increasing the utilization of its Boomtown properties and its other existing properties and (ii) making selected acquisitions, principally in the gaming industry to diversify its operations and to achieve economies of scale. Some of these acquisitions could be made jointly with HP Realty, with HP Realty holding the real estate assets, and HP Operating Company holding the other assets and conducting the operations, of the acquired businesses. See "Business of HP Operating Company After the Reorganization." TRANSACTIONS IN CONNECTION WITH THE REORGANIZATION The Reorganization will be effected through the following series of transactions: Spin-off of Turf Paradise Operating Company. Turf Paradise, a wholly-owned subsidiary of Hollywood Park, will transfer all of its non-real estate assets to Turf Paradise Operating Company, a newly created subsidiary (the "TPOC Contribution"). Turf Paradise will then distribute all of the stock of Turf Paradise Operating Company to Hollywood Park (the "TPOC Spin-Off," and collectively with the TPOC Contribution and the contribution of the stock of Turf Paradise Operating Company to HP Operating Company as described in the following paragraph, the "TPI Restructuring"). Contribution of Assets to HP Operating Company. Except for the Hollywood Park real property, the Turf Paradise real property, the Hollywood Park Golf and Sports Center and the Turf Paradise Travel Trailer Park, Hollywood Park will transfer all of its assets and operating businesses to HP Operating Company, including all of the stock of Turf Paradise Operating Company, Sunflower, Boomtown, HP/Compton, Inc., HP Casino, Inc., HP Yakama and HPY Consulting and the non-real estate assets of the Hollywood Park-Casino (the "HPOC Contribution"). In connection with this transfer, HP Operating Company will effect a stock split so that prior to the HPOC Spin-Off (as defined below), HP Operating Company and Hollywood Park will have an equal number of shares outstanding. During 1998, and in any event prior to completion of the Reorganization, HP Operating Company will transfer to Hollywood Park all of HP Operating Company's real estate assets (consisting primarily of leasehold improvements at the Hollywood Park Race Track) in partial satisfaction of HP Operating Company's rent payment obligations to Hollywood Park for periods prior to the completion of the Reorganization. The Reclassification. Subject to approval of the Reorganization Amendments by Hollywood Park's stockholders, Hollywood Park will file with the Delaware Secretary of State an amendment to the Hollywood Park Charter that will (i) change Hollywood Park's name to HP Realty Enterprises, Inc., (ii) authorize 100,000,000 shares of HP Realty Common Stock, (iii) authorize 25,000,000 shares of Excess Stock, and (iv) authorize 40,000,000 shares of Preferred Stock. By a subsequent filing with the Delaware Secretary of State, the Hollywood Park Charter will be further amended (iv) to effect the Reclassification, so that each outstanding share of Hollywood Park Common Stock will be converted into one share of HP Realty Common Stock and (v) to reduce the number of authorized shares of Hollywood Park Common Stock from 40,000,000 to 1,000. The Board will also amend Hollywood Park's By-Laws to add the Pairing Restrictions, which are necessary to implement the pairing of HP Realty Common Stock and HP Operating Company Common Stock. In addition, prior to the HPOC Spin-Off, the HP Operating Company Charter and the HP Operating Company By-Laws will be amended to be substantially the same as the Hollywood Park Charter and the Hollywood Park By-Laws (including similar REIT Restrictions and Pairing Restrictions but excluding, regardless of whether the Supermajority Elimination Amendment is approved, the supermajority provisions of Article XII of the current Hollywood Park Charter), and HP Realty and HP Operating Company will enter into a Pairing Agreement (the "Pairing Agreement") to coordinate the pairing of their stock. The HPOC Spin-Off. Finally, all of the outstanding HP Operating Company Common Stock will be distributed to HP Realty stockholders on the basis of one share of HP Operating Company Common Stock for 30 each share of HP Realty Common Stock held (the "HPOC Spin-Off"). The Board intends to declare the distribution of the HP Operating Company Common Stock immediately after the time the Reclassification becomes effective (the "Effective Time"). The distribution will be payable and effective for all purposes at the Effective Time to holders of record of HP Realty Common Stock. Immediately after the HPOC Spin-Off, each Hollywood Park stockholder will hold one share of HP Realty Common Stock and one share of HP Operating Company Common Stock, which will be paired and will trade together as one unit, in replacement of each share of Hollywood Park Common Stock held before the Effective Time. HP Realty will elect to be taxed as a REIT commencing with the 1999 calendar year. The Transfer Restrictions are intended to protect HP Realty's qualification as a REIT and to effect the pairing of HP Realty Common Stock and HP Operating Company Common Stock. Under Section 202 of the Delaware General Corporation Law (the "DGCL"), a restriction on the transfer or registration of transfer of securities of a corporation may be imposed either by the certificate of incorporation or the by-laws or by an agreement among any number of security holders or among such holders and the corporation. However, no such restriction is binding with respect to securities issued prior to the adoption of the restriction unless the holders of the securities are parties to an agreement or voted in favor of the restriction. In determining the most effective method for imposing the Transfer Restrictions, Hollywood Park, with the advice of its Delaware counsel, Morris, Nichols, Arsht & Tunnell, reviewed these provisions of the DGCL, relevant cases decided thereunder, and other instances where public companies had imposed transfer restrictions on their shares in order to protect their tax benefits. Hollywood Park concluded that, while there was no structure under which the enforceability of the Transfer Restrictions with respect to shares held by stockholders not voting in favor of the transactions contemplated by the Reorganization was certain, the structure contemplated by the Reorganization Amendments and the By-Law amendments described in this Proxy Statement is most likely to result in such enforceability under Section 202 of the DGCL. The following diagrams (including the footnote explanations on the following page) illustrate the corporate structure of Hollywood Park and its subsidiaries before the Reorganization, and HP Realty and HP Operating Company and their respective subsidiaries after the Reorganization: HOLLYWOOD PARK PRIOR TO THE REORGANIZATION [CHART SHOWING HOLLYWOOD PARK AND ITS PRINCIPAL DIRECT AND INDIRECT SUBSIDIARIES APPEARS HERE] 31 HP REALTY AND HP OPERATING COMPANY AFTER THE REORGANIZATION [CHART SHOWING HP OPERATING COMPANY, HP REALTY AND THEIR RESPECTIVE PRINCIPAL DIRECT AND INDIRECT SUBSIDIARIES APPEARS HERE] - -------- (1) Owns the Hollywood Park Race Track and the Hollywood Park-Casino properties and leases the Hollywood Park Race Track property to its subsidiary HP Operating Company. (2) HP/Compton, Inc. and HP Casino, Inc. own 89.8% and 3.4%, respectively, of the membership interests of Crystal Park LLC. (3) Filed for reorganization under Ch. 11 of the Bankruptcy Code. Sunflower has presented to the Bankruptcy Court a plan of reorganization that would provide for, subject to regulatory and other required approvals, the sale of The Woodlands to the Wyandotte Tribe of Oklahoma and the construction of a casino on the property. A Hollywood Park subsidiary and a non- affiliated partner would make loans to fund the acquisition and development of, provide consulting services to, and receive a share of the revenues of the casino. (4) Hollywood Park has delivered a notice exercising its option to purchase the minority interest. (5) Proposed Joint Venture with Hilton Gaming (Switzerland County) Corporation. (6) Includes HP Yakama, Inc. and HP Yakama Consulting, Inc., which, subject to regulatory approval, will fund the construction and development of, provide development services to, and receive a share of the net revenues of, an Indian casino in Yakima County, Washington. (7) Will own the Hollywood Park Race Track and the Hollywood Park-Casino properties and will lease the properties to HP Operating Company. (8) Will own the Turf Paradise Race Track property and will lease the property to Turf Paradise Operating Company. 32 As a result of the Reclassification and the HPOC Spin-Off, each record owner of shares of Hollywood Park Common Stock immediately before the Effective Time will, immediately after the Effective Time, own of record an identical number of Paired Shares. As of the Effective Time, each Hollywood Park stock certificate issued and not canceled prior to that time will be deemed to evidence for all corporate purposes, except with respect to the payment of dividends and delivery of stock certificates, an equal number of Paired Shares. At the same time, each holder of record of Hollywood Park Common Stock will be registered on the stock records of HP Realty and HP Operating Company, respectively, as owning the number of shares of HP Realty Common Stock into which such stockholder's shares of Hollywood Park Common Stock were converted in the Reclassification and the number of shares of HP Operating Company Common Stock which were received in the HPOC Spin-Off. See "--Stock Certificates; Method of Exchange" for important information pertaining to the exchange of Hollywood Park stock certificates for new "back-to-back" certificates of HP Realty and HP Operating Company. As of the Effective Time, Hollywood Park's outstanding stock options will be adjusted so that the option holders will be entitled to receive Paired Shares upon exercise. DIVIDEND POLICY Hollywood Park has not paid any dividends on Hollywood Park Common Stock since March 1992. To qualify as a REIT, HP Realty will be generally required to distribute at least 95% of its taxable income (other than net capital gains) to its stockholders during each calendar year. HP Realty presently intends to pay approximately equal quarterly dividends based upon its board of directors' estimate of earnings for the entire year. If the quarterly dividends result in less than 95% of HP Realty's income being paid out for any year, it intends to pay an additional special dividend after the close of the year. Based on the proposed terms of the leases for the Hollywood Park and Turf Paradise properties, on a pro forma basis assuming the Reorganization became effective on January 1, 1996, HP Operating Company would have paid Hollywood Park approximately $14.6 million and $9.8 million in lease payments, and HP Realty would have been required to pay at least $7.5 million ($0.29 per Paired Share) and $4.5 million ($0.17 per Paired Share) in dividends, for the year ended December 31, 1996 and the nine months ended September 30, 1997, respectively. See "Unaudited Pro Forma Combined Consolidated Condensed Financial Statements" and "Management's Discussion and Analysis of Financial Condition and Results of Operations -- Post-REIT Pro Forma Results of Operations." It is anticipated that HP Operating Company will not pay dividends for the foreseeable future and will retain earnings, if any, to finance the growth of its business. DIRECTORS, OFFICERS AND EMPLOYEES OF HP OPERATING COMPANY AND HP REALTY It is anticipated that, upon completion of the Reorganization, (i) each of the 11 individuals elected to the Hollywood Park Board of Directors at the Annual Meeting will become a director of HP Operating Company or HP Realty, and (ii) each of Hollywood Park's current executive officers will become an executive officer of HP Operating Company or HP Realty. Additional individuals may also be appointed as directors and executive officers of the companies upon completion of the Reorganization. The composition of the respective Boards of Directors and management teams of HP Operating Company and HP Realty will be determined by Hollywood Park prior to completion of the Reorganization based upon, among other things, federal tax law requirements applicable to REITs. It is also anticipated that, upon completion of the Reorganization, HP Realty will retain approximately 10 to 20 employees. All of Hollywood Park's other employees will become employees of HP Operating Company. CONDITIONS TO THE REORGANIZATION The Reorganization is subject to (i) approval of the Reorganization Amendments by Hollywood Park stockholders; (ii) all necessary regulatory approvals (including the gaming and racing authorities of Arizona, California, Louisiana, Mississippi and Nevada, and other governmental or regulatory bodies) and consents of third parties having been obtained; (iii) effectiveness of the Reorganization Amendments under Delaware law; 33 and (iv) there not being in effect any statute, rule, regulation or order of any court, governmental or regulatory body which prohibits or makes illegal the transactions contemplated by the Reorganization. The terms of the Reorganization may be modified or the conditions thereto may be waived by the Board. In addition, the Board has retained discretion, even if stockholder approval of the Reorganization Amendments is obtained and the other conditions to the Reorganization are satisfied, to abandon, defer or modify the Reorganization. See "--Regulatory Approvals and Third-Party Consents" and "-- Effect of the Reorganization." Under the Code, HP Realty will not be able to qualify as a REIT until the beginning of the calendar year following the year in which the Reorganization is completed. Therefore, the Reorganization must be completed by December 31, 1998 for HP Realty to qualify as a REIT for the 1999 calendar year. REGULATORY APPROVALS AND THIRD-PARTY CONSENTS To complete the Reorganization, Hollywood Park and its subsidiaries will need to obtain the consent or approval of a number of governmental authorities which administer gaming and racing laws applicable to their operations. In particular, since the Reorganization will result in a change in control of Hollywood Park's Boomtown, Inc. subsidiary (as defined under applicable gaming laws), it may not occur without the prior approval of the Nevada Gaming Commission, the Mississippi Gaming Commission and the Louisiana Gaming Control Board. Such approvals will require, among other things, (i) registration of HP Operating Company as a publicly traded corporation, (ii) approval of HP Operating Company's acquisition of control of Boomtown, including a finding of suitability of HP Operating Company, and (iii) licensing or a finding of suitability of the officers and directors of HP Operating Company. Because the operations of the Hollywood Park-Casino will be transferred to HP Operating Company in the Reorganization, the prior approval of the California State Attorney General and the City of Inglewood, California may be required. Furthermore, the prior approval of the Arizona Racing Commission could be required under certain circumstances if the racing operations, but not the real estate, of Turf Paradise are transferred to HP Operating Company. In addition, if Hollywood Park is successful in obtaining necessary licenses for its proposed riverboat casino operations in Switzerland County, Indiana, and its participation in the Yakama Project, approval of the Reorganization by the Indiana Gaming Commission, federal gaming authorities, and the state and tribal gaming commissions of Washington may also be necessary. Hollywood Park and its subsidiaries are in the process of filing initial applications for these gaming and racing approvals. It is anticipated that the required approvals will be obtained on a timely basis to permit the Reorganization to be completed in 1998. Hollywood Park does not believe that any other material federal, state or local regulatory approvals or other material third-party consents will be necessary in connection with the Reorganization. RELATIONSHIP BETWEEN THE COMPANIES AFTER THE REORGANIZATION Prior to the completion of the Reorganization, Hollywood Park and HP Operating Company will enter into certain agreements, described below, governing their relationship subsequent to the Reorganization (at which time Hollywood Park will have been renamed Hollywood Park Realty Enterprises, Inc.) and providing for the allocation of tax and certain other liabilities and obligations arising from periods prior to the completion of the Reorganization. Hollywood Park believes that the agreements are fair to the parties to the relevant agreements and contain terms which generally are comparable to those which would have been reached in arm's-length negotiations with unaffiliated parties (although such comparisons are difficult with respect to certain agreements which relate to the specific circumstances of the Reorganization and the transactions contemplated thereby). The following description summarizes the material terms of such agreements, but is qualified in its entirety by reference to the texts of such agreements. Distribution Agreement Hollywood Park and HP Operating Company will enter into the Distribution Agreement providing for, among other things, certain corporate transactions required to effect the Reorganization and other arrangements between Hollywood Park and HP Operating Company subsequent to the Reorganization. 34 The Distribution Agreement will provide for assumptions of liabilities and cross-indemnities designed to allocate generally, effective as of the Effective Date, financial responsibility for the liabilities arising out of or in connection with (i) the real estate business of HP Realty and its subsidiaries and (ii) the gaming/sports/entertainment business of HP Operating Company and its subsidiaries. The Distribution Agreement will also provide for the allocation generally of the financial responsibility for the liabilities arising out of or in connection with former and present businesses not described in the immediately preceding sentence to or among HP Realty and HP Operating Company. The Distribution Agreement will also provide that HP Realty and HP Operating Company will use their respective commercially reasonable efforts to achieve an allocation of indebtedness of Hollywood Park that reflects the capital structure after the Reorganization of HP Realty and HP Operating Company as contemplated in the discussion under "--Allocation of Indebtedness." The Distribution Agreement will provide that neither HP Realty nor HP Operating Company will take any action that would jeopardize the intended tax consequences of the Reorganization. Specifically, in the event Hollywood Park decides to report the principal Reorganization transactions generally as tax- free transactions, each of HP Realty and HP Operating Company will agree to maintain indefinitely its status as a company engaged in the active conduct of a trade or business, as defined in Section 355(b) of the Internal Revenue Code. Neither HP Realty nor HP Operating Company expects this limitation to inhibit its financing or other activities or its ability to respond to unanticipated developments. The Distribution Agreement will also provide that, except as otherwise set forth therein or in any other agreement, all costs or expenses incurred on or prior to the Effective Date in connection with the Reorganization will be charged to and paid by Hollywood Park, provided that Hollywood Park shall not be responsible for those costs or expenses specifically incurred by HP Operating Company. Except as set forth in the Distribution Agreement or any related agreement, each party shall bear its own costs and expenses incurred after the Effective Date. Tax Allocation Agreement HP Realty and HP Operating Company will enter into a Tax Allocation Agreement to the effect that HP Operating Company and its subsidiaries will pay their share of the tax liability of the affiliated group for the tax years that HP Operating Company and its subsidiaries were included in Hollywood Park's consolidated federal income tax return. The Tax Allocation Agreement will also provide for sharing, where appropriate, of state, local and foreign taxes attributable to periods prior to the Reorganization, as well as certain other matters. Employee Benefits Agreement HP Realty and HP Operating Company will enter into an Employee Benefits Agreement which will provide for the allocation of Hollywood Park's 401(k) Investment Plan, and of medical, dental, life, disability, and other employee welfare benefit plans, among HP Realty and HP Operating Company upon the completion of the Reorganization. The Agreement will provide for the treatment described below of the 401(k) Investment Plan and of medical, dental, life, disability, and other employee welfare benefits. See "--Employee Benefits and Compensation Matters." In addition, the Employee Benefits Agreement will provide that, as of the completion of the Reorganization, HP Realty and HP Operating Company shall generally each assume all liability for their respective active employees under their respective employee welfare benefit plans, compensation and bonus plans, and 401(k) plans. Lease Agreements After the Reorganization, HP Realty and its subsidiary Turf Paradise (which will be renamed Turf Paradise Realty Enterprises, Inc. ("Turf Paradise Realty")) will lease to HP Operating Company and its subsidiary Turf Paradise Operating Company the land and facilities at the Hollywood Park Race Track, the Hollywood Park-Casino and the Turf Paradise Race Track. The following is a summary of the principal terms of these leases: Hollywood Park Property Lease Agreement. This lease, between HP Realty and HP Operating Company, covers the land and facilities relating to the Hollywood Park Race Track and simulcast operations and the 35 Hollywood Park-Casino. Under the terms of this lease, HP Operating Company will be required to make rental payments to HP Realty equal to $720,000 per month plus the amount by which the sum of the following amounts exceeds the aggregate monthly rent in each calendar year: (i) 1.5% of the wagers placed at Hollywood Park on live Hollywood Park races, (ii) 0.75% of Hollywood Park's remaining pari-mutuel handle, including wagers placed at Hollywood Park on races simulcast at Hollywood Park and off-track wagers placed on Hollywood Park races, (iii) 5% of HP Operating Company's other revenues from the Hollywood Park Race Track, including admission fees and concession sales, and (iv) 5% of HP Operating Company's gross gaming revenues from the Hollywood Park-Casino. This lease will become effective upon completion of the Reorganization, and expires five years thereafter, with two options to renew for five years each, and with rent to be adjusted to the fair market rental value of the leased premises at the time of each renewal. Turf Paradise Property Lease Agreement. This lease, between Turf Paradise Realty (a subsidiary of HP Realty) and Turf Paradise Operating Company (a subsidiary of HP Operating Company), covers the land and facilities relating to the Turf Paradise Race Track and simulcast operations. Under the terms of this lease, Turf Paradise Operating Company will be required to make rental payments to Turf Paradise Realty equal to $120,000 per month plus the amount by which the sum of the following amounts exceeds the aggregate monthly rent in each calendar year: (i) 1.5% of the wagers placed at Turf Paradise on live Turf Paradise races, (ii) 1% of Turf Paradise's remaining pari-mutuel handle, including wagers placed at Turf Paradise on races simulcast at Turf Paradise and off-track wagers placed on Turf Paradise races, and (iii) 5% of Turf Paradise Operating Company's other revenues from the Turf Paradise Race Track, including admission fees and concession sales. This lease will become effective upon completion of the Reorganization, and expires five years thereafter, with two options to renew for five years each, and with rent to be adjusted to the fair market rental value of the leased premises at the time of each renewal. Each of the foregoing leases will be "triple net", i.e., the lessee will pay directly, or reimburse the lessor for, all costs related to the operation of the property, including utilities, insurance, property taxes and the cost of all maintenance, repairs, replacements and improvements on the property. Achievement of the anticipated benefits of the Reorganization (see "-- Purpose of the Reorganization") will be dependent, in part, upon the amount of HP Realty's rental income that is available for distribution to holders of the Paired Shares. See "--Federal Income Tax Consequences" and "Risk Factors-- Uncertain Level of Dividends." The Board believes that the conflicts of interest that could otherwise arise from the contractual relationships described above will be minimized due to the common ownership of HP Realty and HP Operating Company that will result from the pairing of their stock. Accordingly, none of the foregoing agreements or any other agreement will provide for a formal mechanism for avoiding or resolving conflicts of interest. EFFECT OF REORGANIZATION ON RIGHTS OF STOCKHOLDERS The Reorganization will change the rights of Hollywood Park's stockholders in several significant respects. First, the HP Realty By-Laws, the HP Operating Company By-Laws and the Pairing Agreement will impose restrictions on the transferability of shares of HP Realty Common Stock and HP Operating Company Common Stock designed to implement the pairing. Second, the HP Realty Charter and the HP Operating Company Charter will impose on stockholders additional transfer restrictions designed to protect HP Realty's qualification as a REIT, including restrictions generally prohibiting any stockholder from owning more than 9.8% of the outstanding Paired Shares. See "Description of Capital Stock of the Companies." TRADING Hollywood Park Common Stock is currently publicly held and traded on the New York Stock Exchange (the "NYSE") under the symbol "HPK." After the Reorganization, HP Realty Common Stock and HP Operating Company Common Stock will be publicly held and will trade only in combination as units (each unit 36 consisting of one share of HP Realty Common Stock and one share of HP Operating Company Common Stock) under the name "Hollywood Park Enterprises." Hollywood Park intends to file an application for the listing of the units on the NYSE under Hollywood Park's existing symbol "HPK." EMPLOYEE BENEFITS AND COMPENSATION MATTERS Hollywood Park maintains a 401(k) Investment Plan for the benefit of its employees and employees of certain subsidiaries, including HP Operating Company. Hollywood Park also maintains certain plans providing medical, dental, life, disability, and similar insurance coverages to its employees and employees of certain subsidiaries, including HP Operating Company. On or before the completion of the Reorganization, HP Operating Company will become an additional sponsor, for the benefit of its employees and employees of certain subsidiaries, of the 401(k) Investment Plan and other employee benefit plans heretofore maintained by Hollywood Park. HP Realty will continue to sponsor, or will adopt as an additional sponsor, the 401(k) Investment Plan and other employee benefit plans for the benefit of its employees and Turf Paradise's employees. HP Realty will reimburse HP Operating Company for any costs and expenses HP Operating Company incurs under the 401(k) Investment Plan and other employee benefit plans for the benefit of HP Realty employees, and vice versa. HP Realty and HP Operating Company will each maintain its own compensation and bonus plans after the Reorganization. At the Annual Meeting, Hollywood Park's stockholders will be asked to approve the adoption of the new stock option plan for HP Operating Company. In connection with the Reorganization, Hollywood Park's outstanding stock options will be adjusted so that option holders receive Paired Shares upon exercise. See "The Hollywood Park Operating Company 1998 Stock Option Plan." ALLOCATION OF INDEBTEDNESS Hollywood Park currently has a $100 million reducing revolving credit facility (the "Bank Credit Facility") with a bank syndicate led by Bank of America NT&SA. As of February 9, 1998, Hollywood Park had outstanding under the Bank Credit Facility borrowings of $10 million and a $2 million letter of credit. It is anticipated that, in connection with the Reorganization, Hollywood Park will repay any outstanding borrowings under the Bank Credit Facility, and HP Realty and HP Operating Company will negotiate new lines of credit that will reflect their separate existence. Although Hollywood Park believes that the Reorganization may enable HP Realty and HP Operating Company to borrow on favorable terms after the Reorganization, negotiations have not commenced with any banks regarding new lines of credit, and there can be no assurance that HP Realty and HP Operating Company will be able to obtain bank lines of credit on as favorable terms as the terms of the Bank Credit Facility. See "Risk Factors--Dependence on Future Borrowings." On August 6, 1997, Hollywood Park and HP Operating Company, as co-obligors, issued $125 million aggregate principal amount of Series A 9 1/2% Senior Subordinated Notes due 2007 (together with any Series B Notes that may be issued in exchange for Series A Notes, the "Notes"). The Notes are guaranteed on a senior subordinated basis by all of Hollywood Park's other existing and certain future direct and indirect material subsidiaries (the "Guarantors"). Following the Reorganization, each of HP Realty and HP Operating Company would continue to be a co-obligor on the Notes and the Guarantors would remain as guarantors. Hollywood Park and HP Operating Company have entered into an agreement that, as between Hollywood Park and HP Operating Company, HP Operating Company would be primarily responsible for payments on the Notes, but that agreement in no way limits the obligations of Hollywood Park under the Notes to third-party creditors. Following the Reorganization, HP Realty and HP Operating Company will be required to make an offer to repurchase the Notes at 101% of the aggregate principal amount of the Notes (or if there is a decline in the rating of the Notes as a result of the Reorganization, the repurchase price shall be 102%), plus accrued and unpaid interest to the date of repurchase. Management does not believe that a significant amount of the outstanding Notes will be submitted for redemption in connection with the Reorganization because the Notes are currently trading at a premium to the repurchase price, and believes HP Realty and HP Operating Company will 37 be able to refinance any Notes redeemed with bank and/or subordinated debt financing on terms at least as favorable to the companies as the Notes. However, if HP Realty and HP Operating Company are required to repurchase a significant portion of the Notes, there can be no assurance that replacement financing will be available on favorable terms. See "Risk Factors--Dependence on Future Borrowings" and "Management's Discussion and Analysis of Financial Condition and Results of Operations--Liquidity and Capital Resources." The indenture (the "Indenture") governing the Notes permits Hollywood Park and HP Operating Company, without the consent of the holders of the Notes, to amend the Indenture covenants to provide for the Reorganization and such related modifications to the Indenture and the Notes as may be necessary to permit the implementation of, and the continuing operations of HP Operating Company and Hollywood Park after giving effect to, the Reorganization, including the making of operating lease payments by HP Operating Company to HP Realty, the distribution by HP Realty of such amounts as may be required by the Code and the regulations promulgated thereunder to maintain REIT status, which would include 95% of its taxable income (excluding net capital gains) under current law, and any other modifications to the covenants that may be necessary to comply with the applicable provisions of the Code and the regulations promulgated thereunder, or may be necessary, in the good faith determination of the respective Boards of Directors of Hollywood Park and HP Operating Company as evidenced by Board resolutions, to provide for the same relative benefits and restrictions as existed under the Indenture prior to the Reorganization. INTEREST OF CERTAIN PERSONS IN THE REORGANIZATION As a result of the Reorganization, individuals who are directors and executive officers of Hollywood Park (each of whom will be a director or executive officer of HP Realty and/or HP Operating Company) will receive Paired Shares in respect of the Hollywood Park Common Stock held by such individuals. See "Security Ownership of Certain Beneficial Owners and Management." In addition, stock options currently held by such individuals will be adjusted in the Reorganization so that such individuals receive Paired Shares upon exercise. See "The Hollywood Park Operating Company 1998 Stock Option Plan." Information concerning the management of HP Realty and HP Operating Company after the Reorganization is set forth under "--Directors, Officers and Employees of HP Operating Company and HP Realty" and "Election of Directors." STOCK CERTIFICATES; METHOD OF EXCHANGE After the Reorganization is completed, each outstanding stock certificate that previously evidenced ownership of shares of Hollywood Park Common Stock shall be deemed for all corporate purposes (including voting), other than for dividends or transfers of securities, to evidence ownership of the same number of shares of HP Realty Common Stock and an equal number of shares of HP Operating Company Common Stock. The stock transfer books of Hollywood Park will be closed at the close of business on the business day immediately preceding the Effective Time, and the holders of record of Hollywood Park Common Stock as of the Effective Time will be the holders of record of Paired Shares immediately after the Effective Time. As soon as practicable after the Effective Time, ChaseMellon Shareholder Services, L.L.C. (the "Exchange Agent") will mail to each Hollywood Park stockholder of record a letter of transmittal with instructions to be used by such stockholder in surrendering certificates which, prior to the Reorganization, represented shares of Hollywood Park Common Stock in exchange for new certificates representing Paired Shares. Letters of transmittal will also be available after the Effective Time at the offices of the Exchange Agent. YOU SHOULD NOT SURRENDER YOUR HOLLYWOOD PARK STOCK CERTIFICATES FOR EXCHANGE UNTIL THE REORGANIZATION HAS BEEN COMPLETED AND YOU HAVE OBTAINED A LETTER OF TRANSMITTAL. Upon the surrender of a Hollywood Park Common Stock certificate to the Exchange Agent together with a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent, the holder of such certificate will be entitled to receive in exchange therefor a new certificate representing a number of Paired Shares of each of HP Realty Common Stock and HP Operating Company Common Stock equal to the number of Hollywood Park shares represented by the certificate surrendered. The new certificates 38 will be printed "back-to-back," such that each certificate evidencing shares of HP Operating Company Common Stock will be printed on the reverse side of a certificate evidencing an equal number of shares of HP Realty Common Stock. Each back-to-back certificate will bear legends referring to the restrictions on transfer of the Paired Shares which are imposed by the Pairing Agreement and the Certificate of Incorporation and By-Laws of each company. It will be a condition to the issuance of any certificate for any Paired Shares in a name other than the name in which the surrendered Hollywood Park Common Stock certificate is registered that the person requesting the issuance of such certificate either pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of a certificate for Paired Shares in a name other than the registered holder of the certificate surrendered, or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable. After the Effective Time, there will be no further registration of transfers on the stock transfer books of Hollywood Park of shares of Hollywood Park Common Stock that were issued and outstanding immediately prior to the Effective Time. If, after the Effective Time, certificates representing shares of Hollywood Park Common Stock are presented for transfer, no transfer shall be effected on the stock transfer books of HP Realty or HP Operating Company with respect to such shares and no certificate shall be issued representing the Paired Shares exchangeable for such shares of Hollywood Park Common Stock unless and until the old stock certificate representing such shares of Hollywood Park Common Stock is delivered to the Exchange Agent together with a properly completed letter of transmittal (or such other documents as are satisfactory to HP Realty, HP Operating Company and the Exchange Agent in their sole discretion). Until a certificate representing Hollywood Park Common Stock has been surrendered to the Exchange Agent, each such certificate will be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing the Paired Shares to which the Hollywood Park stockholder is entitled under the terms of the Reorganization. Upon completion of the Reorganization, shares of Hollywood Park Common Stock will cease to be traded on the New York Stock Exchange, and there will be no further market for Hollywood Park Common Stock. IT IS IMPORTANT FOR FORMER HOLDERS OF HOLLYWOOD PARK COMMON STOCK TO EXCHANGE THEIR HOLLYWOOD PARK STOCK CERTIFICATES FOR NEW "BACK-TO-BACK" STOCK CERTIFICATES PROMPTLY AFTER THE EFFECTIVE DATE OF THE REORGANIZATION SINCE THE HOLLYWOOD PARK CERTIFICATES WILL NOT CONSTITUTE GOOD DELIVERY FOR SETTLEMENT OF TRADES IN THE PAIRED SHARES THEY WILL EVIDENCE. MOREOVER, NO DIVIDENDS OR OTHER DISTRIBUTIONS DECLARED BY HP REALTY OR BY HP OPERATING COMPANY AFTER THE EFFECTIVE TIME WILL BE PAID ON THE HP REALTY COMMON STOCK OR THE HP OPERATING COMPANY COMMON STOCK EVIDENCED BY OUTSTANDING HOLLYWOOD PARK CERTIFICATES UNTIL SUCH OLD CERTIFICATES ARE SURRENDERED FOR EXCHANGE, BUT UPON SURRENDER OF THE HOLLYWOOD PARK CERTIFICATES, ANY UNPAID DIVIDENDS OR DISTRIBUTIONS WILL BE PAID WITHOUT INTEREST. 39 BUSINESS OF HP OPERATING COMPANY AFTER THE REORGANIZATION GENERAL After the Reorganization, HP Operating Company will be the owner of all of Hollywood Park's current holdings and operations except the land and facilities at the Hollywood Park property in Inglewood and the Turf Paradise property in Phoenix, both of which it will operate under a lease from HP Realty, and except for certain ancillary businesses. Consequently, like Hollywood Park currently, HP Operating Company will continue as a diversified gaming, sports and entertainment company. HP Operating Company (through Boomtown) will own and operate the Boomtown Reno, Boomtown Biloxi and Boomtown New Orleans casino properties. HP Operating Company will also operate, under leases from HP Realty, the Hollywood Park Race Track and simulcast facilities, the Hollywood Park-Casino and the Turf Paradise Race Track and simulcast facilities. See "The Reorganization-- Relationship Between the Companies After the Reorganization." HP Operating Company will also own (through HP/Compton, Inc. and HP Casino, Inc.) Crystal Park LLC, whose Crystal Park Hotel and Casino will continue to be operated, under lease, by an unaffiliated operator, and will operate (through Sunflower) The Woodlands Race Track pending resolution of the Sunflower reorganization. Subject to receipt of regulatory approvals, HP Operating Company (through HP Yakama and HPY Consulting) will also fund the construction of, provide consulting services to, and receive a share of the net revenues of, an Indian casino in Washington State. BUSINESS STRATEGY HP Operating Company's strategic plan will be to grow its gaming, sports and entertainment businesses by (i) expanding its existing properties, (ii) working with HP Realty to develop and operate new projects on the currently unimproved real estate at HP Realty's existing sites and developing profits at new sites (including sites not owned by HP Realty), and (iii) making selected acquisitions, principally in the gaming industry, to diversify its operations and to achieve economies of scale. Some of these acquisitions would be made in cooperation with HP Realty, where HP Realty would own and lease to HP Operating Company the real estate assets and HP Operating Company would actively manage the operating businesses acquired. GAMING OPERATIONS HP Operating Company's gaming establishments will consist of Boomtown's western-themed casinos located in or near Reno, Nevada, New Orleans, Louisiana and Biloxi, Mississippi, as well as two card club casinos located in the metropolitan Los Angeles, California area and (subject to regulatory approvals) interests in Indian gaming facilities in Yakima County, Washington and Kansas City, Kansas. Boomtown Reno. Boomtown Reno operates on 569 acres in Verdi, Nevada (seven miles west of Reno, Nevada and two miles from the California border) on Interstate 80, the major highway connecting Northern California and Reno. Boomtown Reno, which caters to middle-income customers, offers its guests a 40,000-square foot casino, including 1,320 slot machines and 44 table games and two Keno games. Boomtown Reno also offers a 122-room hotel, a 35,000- square foot entertainment center featuring a theater, an indoor miniature golf course, a restaurant and a ferris wheel, a 16-acre truck stop with approximately 200 parking spaces, a 203-space full-service recreational vehicle park, a service station, a mini-mart and other related amenities. Boomtown New Orleans. Boomtown New Orleans operates on a 50-acre site in Harvey, Louisiana, approximately ten miles from the French Quarter of New Orleans, and caters to the approximately 300,000 local residents of the West Bank of the Mississippi River near New Orleans. Gaming operations are conducted from a 250-foot replica of a paddle-wheel riverboat, offering 911 slot machines and 55 table games in a 30,000 square foot casino. The land- based facility adjacent to the riverboat dock is composed of a western-themed, 88,000-square foot facility, which includes a restaurant, a 20,000 square foot family entertainment center and a western saloon/dancehall. 40 Boomtown Biloxi. Boomtown Biloxi operates on nineteen acres on Biloxi, Mississippi's historic Back Bay, one-half mile from Interstate 110, the main highway connecting Interstate 10 and the Gulf of Mexico. This facility consists of a land-based facility which houses all non-gaming activities and a 33,632-square foot casino constructed on a 400 x 110 foot barge permanently moored to the land-based building. The property offers 1,038 slot machines, 35 table games and various restaurants and other nongaming amenities, and caters principally to the over 250,000 local residents of the Biloxi area and to the employees of other casinos in the area. Hollywood Park-Casino. The Hollywood Park-Casino, which operates on the same premises as the Hollywood Park Race Track, offers 145 gaming tables in 30,000- square feet of gaming space. The Hollywood Park-Casino offers certain forms of card games which are permitted in California, including Poker, Pai Gow and California Blackjack. Patrons of the Hollywood Park-Casino bet solely against each other and pay a fee for seats at gaming tables or for each hand played. Therefore, the casino does not participate in the wagers made or in the outcome of any of the games played. Crystal Park Casino. The Crystal Park Casino operates in the metropolitan Los Angeles area and features 100 gaming tables and 282 hotel rooms which operate under the Radisson Hotels International, Inc. flag. Games offered are similar to those offered at the Hollywood Park-Casino. In order to comply with California law, which does not allow publicly-traded companies to operate card club casinos (other than on the same property as a race track, such as the Hollywood Park-Casino), the Crystal Park Casino has been leased to and operated by unaffiliated operators. Yakama Project. HP Yakama and HPY Consulting, which will be wholly-owned subsidiaries of HP Operating Company after the Reorganization, have entered into agreements under which they will fund (up to $9,000,000) the construction and development of, provide development services to, and receive a share of the net revenues of, an Indian casino in Washington State. The casino, which is currently under construction and is expected to open in the second quarter of 1998, will feature a 600 seat bingo hall, certain table games including Blackjack, Poker, Craps, Roulette, Mini-bac and Caribbean Stud, and will offer electronic pull tabs and electronic bingo, but will not offer slot machines. See "Management's Discussion and Analysis of Financial Condition and Results of Operations--Overview." Kansas Project. HP Kansas, Inc. (which will be a wholly-owned subsidiary of HP Operating Company after the Reorganization) has entered into a partnership agreement with respect to the development of an Indian gaming facility to be constructed on the grounds of The Woodlands property in Kansas City, Kansas. The project is subject to regulatory approval, as well as the approval of Sunflower's plan of reorganization by the U.S. Bankruptcy Court and Sunflower's creditors. See "--Racing Operations--Sunflower Racing" below. RACING OPERATIONS Hollywood Park Race Track. The Hollywood Park Race Track is situated on 378- acre Hollywood Park property in Inglewood, California, in the Los Angeles metropolitan area. Since 1938, the Hollywood Park Race Track has been ranked among the country's most distinguished thoroughbred racing facilities and, in 1997, hosted the Breeders' Cup championship racing series for the third time. Hollywood Park conducts two live on-track thoroughbred horse race meets annually, totalling approximately 100 race days per year. Hollywood Park simulcasts its live races, directly or indirectly through re-transmissions, to 861 locations in 40 states and four countries. Turf Paradise. Turf Paradise operates on approximately 275 acres in the northwest section of Phoenix, Arizona. Turf Paradise conducts a live thoroughbred meet that starts in September and runs through May and also offers limited quarter horse and Arabian horse racing during certain periods of the year. Turf Paradise simulcasts its live races to 34 off-track sites in Arizona and 34 out-of-state hubs, from which the signal is further disseminated to sites in New York, New Jersey, Pennsylvania, Nevada and Canada, among others. 41 Sunflower Racing. Hollywood Park also owns, through its subsidiary Sunflower, The Woodlands Racetrack in Kansas City, Kansas. In 1996, Sunflower filed for reorganization under Chapter 11 of the U.S. Bankruptcy Code. A plan of reorganization was filed with the Bankruptcy Court but remains subject to approval of the court and the creditors. The plan of reorganization provides for, subject to the approval of federal, state and tribal gaming authorities, the sale of The Woodlands to the Wyandotte Tribe of Oklahoma and the construction of a casino on the property. HP Kansas, Inc. and a non-affiliated partner would make loans to fund (up to a currently estimated amount of approximately $15 million to $20 million) the acquisition and development of, provide consulting services to, and receive a share of the revenues of the casino. See "Management's Discussion and Analysis of Financial Condition and Results of Operations--Liquidity and Capital Resources." REGULATION AND LICENSING Because HP Operating Company, after the Reorganization, will operate the Hollywood Park and Turf Paradise race tracks and the Hollywood Park-Casino, and will own and operate (through its various subsidiaries) Boomtown and all of Hollywood Park's other current gaming and racing properties, HP Operating Company will be subject to the various federal, state and local regulations and licensing requirements that are currently applicable to the gaming and racing activities of Hollywood Park and its subsidiaries. Hollywood Park and HP Operating Company will seek all approvals that are required under applicable gaming and racing laws for it to effect the Reorganization and will apply for all licenses that will be necessary for HP Operating Company and its subsidiaries to conduct their gaming and racing activities after the Reorganization, the receipt of which is a condition to completion of the Reorganization. See "The Reorganization--Conditions to the Reorganization" and "--Regulatory Approvals and Third-Party Consents." For a detailed discussion of these regulations and requirements, see the discussion under the heading "Regulation and Licensing" in Hollywood Park's Registration Statement on Form S-4 (Registration No. 333-34471) filed with the Securities and Exchange Commission on August 27, 1997, as amended, which is hereby incorporated by reference into this Proxy Statement. See "Incorporation of Certain Documents by Reference." 42 BUSINESS OF HP REALTY AFTER THE REORGANIZATION GENERAL After the Reorganization, HP Realty will be a REIT, and will primarily be an owner, developer and lessor of real property. In particular, HP Realty will own the Hollywood Park Race Track land and facilities and, through its subsidiary Turf Paradise, Inc., the Turf Paradise Race Track land and facilities, both of which it will lease to HP Operating Company. In the immediate future, it is anticipated that substantially all of HP Realty's revenues will consist of lease payments from HP Operating Company and HP Operating Company's subsidiaries on these facilities. HP Realty will own approximately 378 acres in Inglewood, California, which is located in the heart of the Los Angeles metropolitan area. The property houses the 60,000 square foot Hollywood Park-Casino, the Hollywood Park Race Track and the executive offices of Hollywood Park, which will be the executive offices of both HP Realty and HP Operating Company (under a lease with HP Realty). In addition, HP Realty will operate the Hollywood Park Golf and Sports Center, located on the Inglewood property. The Hollywood Park Race Track, Hollywood Park-Casino and required parking covers approximately 228 acres, leaving approximately 150 acres available for immediate development. HP Realty will lease the race track, simulcast wagering, and card club casino facilities on its Inglewood property to HP Operating Company which will operate the facilities. See "The Reorganization--Relationship Between the Companies After the Reorganization" and "Business of HP Operating Company After the Reorganization." Turf Paradise, located in the northwest section of Phoenix, Arizona, covers approximately 275 acres. The property includes the Turf Paradise Race Track, a thoroughbred racing facility located in Phoenix, Arizona and approximately 100 acres of undeveloped land. HP Realty, through Turf Paradise, will lease the race track and simulcast wagering facilities on this property to Turf Paradise Operating Company, a subsidiary of HP Operating Company, which will operate the facilities. See "The Reorganization--Relationship Between the Companies After the Reorganization" and "Business of HP Operating Company After the Reorganization." In addition, Turf Paradise will operate the Turf Paradise Travel Trailer Park. BUSINESS STRATEGY HP Realty's strategic plan is to maximize the net income it distributes to its stockholders in the long-term by expanding its real estate holdings and increase their value by (i) continuing to derive lease income from HP Operating Company and its subsidiaries on the Hollywood Park and Turf Paradise properties; (ii) developing unimproved real estate at its existing properties and (iii) acquiring and developing new properties. Some of HP Realty's acquisitions may be made in conjunction with future acquisitions of gaming, sports, entertainment and related businesses by HP Operating Company, with HP Realty owning and leasing to HP Operating Company the land and facilities, and HP Operating Company conducting the operations of the business acquired. Hollywood Park is exploring further development at its Inglewood and Phoenix properties, and continues to have discussions with developers regarding proposed retail, entertainment and other projects for both of these properties, including a proposed state-of-the-art football stadium at the Inglewood property. HP Realty would continue these efforts, and would seek to develop such multi-use retail, entertainment and/or sports venues. Hollywood Park has not entered into any definitive agreements concerning any of these projects, and the ultimate uses have not yet been determined. Any decisions by Hollywood Park (or HP Realty after the Reorganization) to begin these projects would be dependent upon, among other things, the execution of definitive agreements, the availability of project financing with acceptable terms, and the attainment of the necessary permits and certifications, for which there can be no assurance. 43 FEDERAL INCOME TAX MATTERS The following sets forth a summary of the material federal income tax consequences that are generally applicable to holders of Hollywood Park Common Stock from the Reorganization and to holders of the Paired Shares from the ownership and disposition of the Paired Shares. The following summary is based upon current provisions of the Code, applicable Treasury regulations, judicial authority and administrative rulings and practice. Legislative, judicial or administrative changes or interpretations may be forthcoming that could alter or modify the statements and conclusions set forth herein. Any such changes or interpretations may or may not be retroactive and could affect the tax consequences to holders. The following summary rests on a number of factual bases and assumptions and could be adversely affected if Hollywood Park's understanding of the applicable facts or expectations as to the applicable facts are inaccurate. In addition, certain future events could cause all or part of the federal income tax consequences of the Reorganization to differ from those anticipated and, thus, could render any description of the anticipated federal income tax consequences in this Proxy Statement inaccurate. No rulings have been or will be issued by the Internal Revenue Service (the "IRS") on any tax issue connected with the Reorganization or on any other tax matter discussed in this Proxy Statement. In August 1997, Hollywood Park submitted a request for advance rulings (the "Ruling Request") to the IRS on certain aspects of the Reorganization, including certain tax issues connected with the TPI Restructuring, the HPOC Spin-Off, and the qualification of HP Realty as a REIT. In January 1998, the IRS informally advised Irell & Manella LLP ("Irell & Manella"), tax counsel for Hollywood Park, and Arthur Andersen LLP, Hollywood Park's accounting firm, that the IRS had tentatively concluded that it would not issue the requested rulings. As a result, Hollywood Park withdrew the Ruling Request and will proceed with the Reorganization as described in this Proxy Statement without any advance rulings from the IRS. Holders should note that without advance rulings from the IRS there can be no assurance that the IRS will take a view similar to Hollywood Park's with respect to the tax consequences described below. Except for the opinion of counsel described below relating to certain tax issues connected with the qualification of HP Realty as a REIT, no opinions of counsel have been or will be rendered on any tax issue connected with the Reorganization or on any other tax matter discussed in this Proxy Statement. The tax treatment of a holder of the Hollywood Park Common Stock or of the Paired Shares may vary depending on such holder's particular situation. Certain holders (including tax-exempt organizations, insurance companies, financial institutions, broker-dealers, holders who do not hold their stock as a capital asset, holders who acquired their stock in connection with stock option plans or other compensation transactions, taxpayers subject to the alternative minimum tax, foreign corporations and persons who are not citizens or residents of the United States) may be subject to special rules not discussed below. In addition, the following summary does not address any tax consequences under foreign, state or local tax laws. EACH HOLDER OF THE HOLLYWOOD PARK COMMON STOCK OR OF THE PAIRED SHARES IS URGED TO CONSULT SUCH HOLDER'S OWN TAX ADVISOR AS TO THE SPECIFIC TAX CONSEQUENCES OF THE REORGANIZATION OR OF OWNING AND DISPOSING OF THE PAIRED SHARES, INCLUDING THE APPLICABILITY AND EFFECT OF ANY FEDERAL, STATE, LOCAL OR FOREIGN TAX LAWS IN SUCH HOLDER'S PARTICULAR CIRCUMSTANCES. FEDERAL INCOME TAX CONSEQUENCES OF CONTRIBUTIONS AND SPIN-OFFS Tax Consequences of TPI Restructuring and HPOC Spin-Off: Assumption that Transactions Will Be Taxable Hollywood Park intends to proceed with the Reorganization without any advance rulings from the IRS. Although proceeding with the Reorganization without such rulings may result in significant tax liabilities to Hollywood Park and its stockholders without a distribution of any cash to pay the tax, Hollywood Park believes that the benefits from the reinstatement of paired- share REIT status are likely to more than offset such tax liabilities. Although the Company, based on a review of the applicable facts and circumstances at the time of the HPOC Spin-Off, may report the TPI Restructuring and the HPOC Spin-Off generally as tax-free transactions, in considering and voting upon the Reorganization Amendments and any other matters that are necessary to effect 44 the planned Reorganization, the stockholders of Hollywood Park should assume that the TPI Restructuring and the HPOC Spin-Off will both constitute taxable transactions which will result in tax liabilities for both Hollywood Park and its stockholders. Based on that assumption, the anticipated federal income tax consequences for Hollywood Park and its stockholders are as described below. See "--Effects on Hollywood Park" and "--Effects on Stockholders of Hollywood Park." Based upon estimates prepared by the Company, the tax liability associated with the Reorganization could be approximately $54 million for Hollywood Park and the taxable distribution (consisting of dividends, return of capital, and taxable gain in excess of return of capital) to Hollywood Park's stockholders associated with the Reorganization could be approximately $130 million (or $4.95 per share of Hollywood Park Common Stock, based on the current number of outstanding shares of common stock). See "--Calculation of Estimated Tax Liabilities of Hollywood Park and Stockholders" and "--Possibility that Transactions May Be Reported as Tax-Free." Further, since such calculations are only based on estimates, the actual tax liabilities may be less but could be significantly more than the estimated amounts. Effects on Hollywood Park. If the TPI Restructuring is a taxable transaction, it would result in the recognition of gain by the Company equal to (i) the excess, if any, of the fair market value of the assets contributed by Turf Paradise to Turf Paradise Operating Company over Turf Paradise's tax basis in such assets or (ii) the excess of the fair market value of the assets retained by Turf Paradise over Turf Paradise's tax basis in such assets. The gain recognized by the Company would be equal to the amount described in (ii) if Turf Paradise, as a result of becoming a qualified REIT subsidiary (see "Federal Income Taxation of HP Realty and Requirements for Qualification as REIT--Requirements for Qualification as REIT--Qualified REIT Subsidiary"), were treated as being liquidated as part of the Reorganization and, as a consequence, as having made a taxable distribution to Hollywood Park of the assets retained by Turf Paradise. For a calculation of estimated tax liabilities, see "--Calculation of Estimated Tax Liabilities of Hollywood Park and Stockholders." If the HPOC Spin-Off is a taxable transaction, it would result in the recognition of gain by Hollywood Park to the extent that the fair market value of the shares of HP Operating Company Common Stock distributed in the HPOC Spin-Off exceeds Hollywood Park's tax basis in such shares. Depending on the fair market value of the shares of HP Operating Company Common Stock on the date of the HPOC Spin-Off, the foregoing tax liability could be substantial. For a calculation of estimated tax liabilities, see "--Calculation of Estimated Tax Liabilities of Hollywood Park and Stockholders." As a result of the HPOC Spin-Off and regardless of whether the HPOC Spin-Off constitutes a taxable transaction, Hollywood Park will also be required to recognize (i) deferred intercompany gain, if any, resulting from any transaction between any company leaving the Hollywood Park affiliated group with any other member of the affiliated group, and (ii) income in the amount of any excess loss account with respect to the stock of one or more of the companies leaving the Hollywood Park affiliated group. See "--Deferred Intercompany Gain and Excess Loss Accounts." In addition, Hollywood Park may be required to recognize gain as a result of the transfer of certain real estate assets from HP Operating Company to Hollywood Park. See "--Transfer of HP Operating Company Real Estate Assets." Effects on Stockholders of Hollywood Park. If the HPOC Spin-Off is a taxable transaction, it would also result in a taxable distribution to the stockholders of Hollywood Park. Each holder of Hollywood Park Common Stock would be treated as receiving a taxable distribution in an amount equal to the fair market value of the shares of HP Operating Company Common Stock distributed to such holder as part of the HPOC Spin-Off. This distribution will be taxed first as a dividend to the extent of such holder's pro rata share of Hollywood Park's current and accumulated earnings and profits (which would include the amount of gain recognized by the Company as a result of the TPI Restructuring and the HPOC Spin-Off, less the applicable corporate tax), and then as a nontaxable return of capital to the extent of such holder's adjusted tax basis in the Hollywood Park Common Stock, with any remaining amount being taxed as capital gain (assuming such stock is held as a capital asset). Any dividends may be subject to back-up withholding with respect to individuals who, prior to the Reorganization, had not provided their correct taxpayer identification numbers on the IRS's Form W-9 or a 45 substitute thereof. The dividends-received deduction under Section 243 of the Code may be available for some corporate holders, subject to the limitations applicable to the dividends-received deduction including those pertaining to "extraordinary dividends" under Section 1059 of the Code. Depending on the fair market value of the shares of HP Operating Company Common Stock on the date of the HPOC Spin-Off, the foregoing distributions may result in significant tax liabilities to stockholders without the companies having distributed to stockholders any cash out of which to satisfy such liabilities. For a calculation of estimated tax liabilities, see "--Calculation of Estimated Tax Liabilities of Hollywood Park and Stockholders." Calculation of Estimated Tax Liabilities of Hollywood Park and Stockholders. Assuming the HPOC Spin-Off is a taxable transaction, based on Hollywood Park's tax basis in its HP Operating Company shares and its earnings and profits as of December 31, 1997 (which amounts may increase or decrease prior to completion of the Reorganization on account of 1998 events), and based on Hollywood Park's estimate that the aggregate fair market value of the shares of HP Operating Company distributed in the HPOC Spin-Off would be approximately $130 million (approximately six times estimated 1997 EBITDA, less the amount of certain liabilities), (i) the combined state and federal tax liability to Hollywood Park would be approximately $29 million and (ii) Hollywood Park stockholders would be treated as receiving a taxable dividend of approximately $71 million (or $2.70 per share of Hollywood Park Common Stock, based on the current number of outstanding shares). In addition, stockholders who have a tax basis in shares of Hollywood Park Common Stock of less than $2.25 per share would realize taxable capital gain equal to the amount by which $2.25 exceeds such stockholders' tax basis in such a share of Hollywood Park Common Stock (assuming such stock is held as a capital asset). To the extent the distribution does not result in such dividend or capital gain treatment, it will reduce the tax basis of the shares of Hollywood Park Common Stock for stockholders. Although Hollywood Park believes that a valuation equal to six times estimated 1997 EBITDA less the amount of certain liabilities represents a fair estimate of the fair market value of HP Operating Company, there can be no assurance that the fair market value of the HP Operating Company shares would not be found to be significantly greater than the $130 million used in the foregoing example, resulting in increased tax liabilities for Hollywood Park and its stockholders. Among other things, if it were determined that some portion of the value attributable to HP Realty's exemption from Section 269B of the Code, providing it with special rights to reinstate a paired REIT-operating company structure, should be allocated to HP Operating Company, then the fair market value of the HP Operating Company shares might be increased to reflect such value. Hollywood Park has retained Morgan Stanley & Co. Incorporated to advise it in connection with matters relating to the restoration of the paired share structure, including evaluation of a proposed business combination with or investment by a potential strategic partner (a "Strategic Transaction"). A Strategic Transaction could provide evidence of the value of the paired share structure. Any additional value (in excess of the $130 million valuation used in the foregoing example) attributed to the HP Operating Company shares distributed to Hollywood Park stockholders in the HPOC Spin-Off would (i) increase the combined state and federal tax liability of Hollywood Park by approximately 41% of the amount of such additional value and (ii) increase the total amount of the taxable distribution to Hollywood Park stockholders by 100% of the amount of such additional value (approximately 59% of which would be treated as taxable dividend and approximately 41% of which would be treated as taxable capital gain or return of tax basis in their Hollywood Park Common Stock). See also "Risk Factors--Uncertain Amount of Corporate and Stockholder Tax Liability" and "Unaudited Pro Forma Combined Consolidated Condensed Financial Statements--Notes to Post-REIT Unaudited Pro Forma Consolidated Condensed Balance Sheets." If the IRS were to assert that the valuation of the HP Operating Company shares, as reported for tax purposes by Hollywood Park, was too low and should therefore be increased for purposes of determining the foregoing tax liabilities, and if the IRS were to prevail in its position, then Hollywood Park would also become liable for interest (based on the applicable rates provided by the IRS from time to time) on the additional tax owed by it and could also become liable for a 20% penalty on its underpayment of income tax, and the stockholders of Hollywood Park would also become liable for interest on the additional tax owed by them and, depending on their individual circumstances, could also become subject to understatement penalties. 46 Whether or not the HPOC Spin-Off constitutes a taxable transaction, Hollywood Park will also be required to recognize income in the amount of any excess loss accounts with respect to the stock of certain of its subsidiaries. See "--Deferred Intercompany Gain and Excess Loss Accounts." Hollywood Park estimates that the aggregate amount of the excess loss accounts will be approximately $21 million (corresponding to a combined state and federal tax liability of approximately $8 million) as of December 31, 1997, although the amount of the excess loss accounts (and thus the amount of income required to be recognized and corresponding tax liability) could increase or decrease prior to completion of the Reorganization as a result of 1998 events. In addition, Hollywood Park may be required to recognize gain as a result of the transfer of certain real estate assets from HP Operating Company to Hollywood Park. See "--Transfer of HP Operating Company Real Estate Assets." In that event, based on the estimated value of HP Operating Company's real estate assets as of December 31, 1997 (which amount may increase or decrease prior to the HPOC Contribution on account of 1998 events), Hollywood Park would expect to recognize gain in the amount of approximately $20 million (corresponding to a combined state and federal tax liability of approximately $8 million), reduced to reflect the amount of basis, if any, that it is permitted to use to offset such gain. Assuming the TPI Restructuring is a taxable transaction, it would result in the recognition of gain by the Company. Based on Turf Paradise's tax basis in its assets as of December 31, 1997 (which amounts may increase or decrease prior to completion of the Reorganization on account of 1998 events), the combined state and federal tax liability to the Company would be approximately (i) $4 million (which is already reflected in the approximately $29 million combined state and federal tax liability to Hollywood Park described above), or (ii) if the IRS was to successfully assert that Turf Paradise, because it would become a qualified REIT subsidiary, should be treated as having made a taxable distribution to Hollywood Park of the assets retained by Turf Paradise, $9 million (which would be in addition to the approximately $29 million combined state and federal tax liability to Hollywood Park described above). If the additional tax liability reflected in (ii) applies, then Hollywood Park stockholders would also be treated as receiving approximately $13 million more (or $.49 more per share of Hollywood Park Common Stock, based on the current number of outstanding shares) in taxable dividend and approximately $13 million less (or $.49 less per share of Hollywood Park Common Stock, based on the current number of outstanding shares) in taxable capital gain and return of tax basis in their Hollywood Park Common Stock. Possibility that Transactions May Be Reported as Tax-Free Although in voting on the proposal to amend Hollywood Park's charter in order to facilitate the Reorganization, stockholders should assume that both the TPI Restructuring and the HPOC Spin-Off will constitute taxable transactions and will be reported as such, Hollywood Park may, based on a review of the applicable facts and circumstances at the time of the HPOC Spin- Off (including the structure of any Strategic Transaction), determine instead to report the TPI Restructuring and the HPOC Spin-Off as generally tax-free transactions under Section 355 and Section 368(a)(1)(D) of the Code. In that event, subject to the limitations and qualifications referred to herein, Hollywood Park may report that (i) the TPOC Contribution, followed by the TPOC Spin-Off, qualifies as a tax-free reorganization pursuant to Section 368(a)(1)(D) of the Code (a "Section 368(a)(1)(D) Reorganization"); (ii) the TPOC Spin-Off qualifies as a tax-free distribution pursuant to Section 355 of the Code (a "Section 355 Spin-Off"); (iii) the HPOC Contribution, followed by the HPOC Spin-Off, qualifies as a Section 368(a)(1)(D) Reorganization; and (iv) the HPOC Spin-Off qualifies as a Section 355 Spin-Off. However, there can be no assurance that, if Hollywood Park were to take such positions, the IRS would not challenge them and prevail on one or more of the positions. If the IRS were to prevail on its positions, then in addition to the tax liabilities previously described for a taxable TPI Restructuring and HPOC Spin-Off, Hollywood Park would become liable for interest thereon (based on the applicable rates provided by the IRS from time to time) and could also become liable for a 20% penalty on its underpayment of income tax if the IRS successfully asserts that the Reorganization should be treated as falling within the corporate tax shelter provisions of Section 6662 of the Code. The stockholders of Hollywood Park would also become liable for interest on the tax owed by them, and depending on their individual circumstances, could also become subject to understatement penalties. 47 If Hollywood Park determines to report the TPI Restructuring and the HPOC Spin-Off as generally tax-free transactions, then it would be reported that (i) no gain or loss was recognized by the Company as a result of the TPOC Contribution or the TPOC Spin-Off; (ii) no gain or loss was recognized by Hollywood Park on its receipt of Turf Paradise Operating Company common stock in the TPOC Spin-Off; (iii) no gain or loss was recognized by Hollywood Park or HP Operating Company as a result of the HPOC Contribution or the HPOC Spin- Off (except as noted below in "--Deferred Intercompany Gain and Excess Loss Accounts" and "--Transfer of HP Operating Company Real Estate Assets"); and (iv) no gain or loss was recognized by holders of Hollywood Park Common Stock on their receipt of HP Operating Company Common Stock in the HPOC Spin-Off. The Code and applicable Treasury regulations impose both subjective and objective requirements that must be met in order for a distribution of stock of a subsidiary to qualify as a Section 355 Spin-Off. Because of the subjective nature of some of these requirements and the lack of relevant legal authority on others, there is no assurance that the IRS would not challenge the qualifications of the TPOC Spin-Off and the HPOC Spin-Off as Section 355 Spin-Offs or that it would not prevail in such a challenge. Among the factors that, if not resolved consistently with the requirements for a tax-free spin- off, could cause the TPI Restructuring and the HPOC Spin-Off to be taxable transactions are the following: whether the TPOC Spin-Off and the HPOC Spin- Off (collectively, the "Spin-Offs") will be carried out for a real and substantial, non-federal tax, corporate business purpose; whether Hollywood Park and various subsidiaries satisfy the five-year active trade or business requirements; whether the Spin-Offs will be used principally as a device for the distribution of earnings and profits to stockholders; whether Turf Paradise (as a result of becoming a qualified REIT subsidiary) is treated as having made a taxable distribution of its retained assets to Hollywood Park; and the nature or structure of one or more Strategic Transactions. If, based on a review of facts and circumstances at the time of the HPOC Spin-Off, Hollywood Park determines that the HPOC Spin-Off may be reported as a generally tax-free transaction but that the TPI Restructuring, if implemented, should be reported as a taxable transaction, Hollywood Park may, depending on the facts and circumstances at the time, choose to eliminate the TPOC Contribution and TPOC Spin-Off in order to avoid the corporate tax liabilities that the TPI Restructuring may generate. Instead, Hollywood Park would contribute all of the stock of Turf Paradise to HP Operating Company in the HPOC Contribution. Effect of New Legislation on Tax-Free Treatment. In August 1997, the President signed into law the Taxpayer Relief Act of 1997 (the "1997 Act"), Section 1012 of which adds new subsections (e) and (f) to Section 355 of the Code. Even if Hollywood Park determines to report either the TPOC Spin-Off or the HPOC Spin-Off as tax-free Section 355 Spin-Offs, if Section 355(e)-(f) were to become applicable to the Spin-Offs, these provisions might cause the Spin-Offs to be taxable to Hollywood Park (but not to Hollywood Park's stockholders). This legislation would apply to the Spin-Offs only if, as part of a plan including the Spin-Offs, 50% or more of the voting power or value (in stock or assets) of HP Realty or HP Operating Company was acquired directly or indirectly, by one or more persons (for purposes of this discussion, a "Change of Control"). Under the 1997 Act, any Change of Control within two years before or after the Spin-Offs will be presumed part of a plan including the Spin-Offs. Accordingly, there is some chance that the Spin-Offs could become taxable to Hollywood Park if HP Realty or HP Operating Company undergoes a Change of Control within two years after the Spin-Offs. If a Strategic Transaction within two years after the Spin-Offs resulted in a Change of Control, the IRS would likely argue that the Spin-Offs are taxable to Hollywood Park. In addition, Section 1012 of the 1997 Act adds a new subsection (g) to Section 358 of the Code. Under Section 358(g), in the case of a distribution to which Section 355 of the Code applies and which, as in the case of the TPOC Spin-Off, involves the distribution of stock from one member of an affiliated group to another member of such group, the government may provide adjustments to the adjusted basis of any stock which (1) is in a corporation which is a member of such group, and (2) is held by another member of such group, to appropriately reflect the proper treatment of such distribution. This new provision could affect the amount of the tax basis allocated to the Turf Paradise common stock and the Turf Paradise Operating Company common stock, and the allocation of other tax attributes between HP Realty and HP Operating Company. If this new provision were applied retroactively to the TPOC Spin- Off, the collateral effects that it would have on the Reorganization, 48 such as on the amount of the earnings and profits required to be distributed as a dividend by HP Realty in its first REIT year, are unclear and could adversely affect some of the tax consequences of the Reorganization. Effect of Other Transactions on Tax-Free Treatment. In addition to the provisions of new Section 355(e)-(f), certain other requirements applicable to tax-free spin-off transactions might, as a result of transactions entered into by Hollywood Park before or after the Reorganization, preclude Hollywood Park from reporting the Spin-Offs as generally tax-free transactions (for either Hollywood Park or its stockholders) or, if Hollywood Park has already taken such a reporting position, have an adverse impact thereon. Such other requirements include and relate to whether, despite the implementation of such transactions, the Hollywood Park stockholders at the time of the Spin-Offs are treated as retaining sufficient control of HP Operating Company (under standards applicable to Section 368(a)(1)(D) Reorganizations) and a sufficient continuity of interest in each of HP Realty and HP Operating Company (under standards applicable to Section 355 Spin-Offs). In particular, these issues could be implicated if HP Realty and HP Operating Company later issue additional Paired Shares in acquisitions and such acquisitions are treated as integrated with the Spin-Offs. Deferred Intercompany Gain and Excess Loss Accounts Regardless of whether the HPOC Spin-Off constitutes a taxable or tax-free transaction, Hollywood Park will be required to recognize deferred intercompany gain, if any, resulting from any transaction between any company leaving the Hollywood Park affiliated group with any other member of the affiliated group. The amount of deferred intercompany gain which is not already reflected in the other tax liabilities described herein is estimated by Hollywood Park to be relatively insubstantial as of December 31, 1997, although that amount could increase prior to completion of the Reorganization as a result of events subsequent to December 31, 1997. In addition, immediately prior to the HPOC Spin-Off, Hollywood Park will have an excess loss account with respect to the stock of one or more of the companies leaving the Hollywood Park affiliated group as a result of the Spin-Offs, including Sunflower. Whether or not the HPOC Spin-Off is taxable, Hollywood Park will be required to recognize income in the amount of any such excess loss account. Hollywood Park estimates that the aggregate amount of the excess loss accounts will be approximately $21 million as of December 31, 1997, although the amount of the excess loss accounts (and the amount of income required to be recognized) could increase or decrease prior to completion of the Reorganization as a result of Sunflower's 1998 operating results and other events subsequent to December 31, 1997. Transfer of HP Operating Company Real Estate Assets Prior to the HPOC Spin-Off, HP Operating Company will transfer all of its real estate assets located at the Hollywood Park property in Inglewood to Hollywood Park in partial satisfaction of HP Operating Company's rent payment obligations to Hollywood Park for periods preceding the completion of the Reorganization. Because HP Operating Company's tax basis in these assets equals the estimated fair market value of these assets, HP Operating Company will not recognize any gain in this transaction. However, if the IRS were to recharacterize this transfer as an exchange of HP Operating Company's real estate assets for some of the assets transferred to HP Operating Company as part of the HPOC Contribution and the IRS prevailed in its position, then even if the HPOC Contribution otherwise qualifies as a tax-free transaction, based on the estimated value of HP Operating Company's real estate assets as of December 31, 1997 (which amount may increase or decrease prior to the HPOC Contribution on account of 1998 events), Hollywood Park would expect to recognize gain in the amount of approximately $20 million, less the amount of basis, if any, that it is permitted to use to offset such gain. The Boomtown Merger On June 30, 1997, Boomtown became a wholly-owned subsidiary of Hollywood Park in a reverse triangular merger (the "Boomtown Merger") qualifying as a tax-free reorganization under Section 368(a)(2)(E) of the Code, which requires Hollywood Park to be in control of Boomtown immediately after the merger. As a part of the Reorganization, Hollywood Park will contribute all of its Boomtown stock to HP Operating Company, the stock of which will be distributed to the Hollywood Park stockholders, and Hollywood Park will no longer 49 control Boomtown. The Boomtown Merger and the Reorganization are not part of the same plan and should not be analyzed together. Accordingly, the Boomtown Merger should retain its qualification as a tax-free reorganization under Section 368(a)(2)(E) of the Code. Reclassification of Hollywood Park Common Stock In order to pair the stocks of HP Realty and HP Operating Company after the Spin-Offs, the existing Hollywood Park Common Stock will be converted into the new HP Realty Common Stock in a reclassification. Section 1036 of the Code permits the exchange, without the recognition of gain or loss, of common stock for common stock in the same corporation. Thus, the reclassification of the existing Hollywood Park Common Stock to facilitate pairing of HP Realty and HP Operating Company common stocks should not trigger any recognition of gain or loss for Hollywood Park stockholders. FEDERAL INCOME TAXATION OF HP REALTY AND REQUIREMENTS FOR QUALIFICATION AS REIT General HP Realty plans to make an election to be taxed as a REIT under Sections 856 through 860 of the Code and applicable Treasury regulations (the "REIT Provisions"), commencing with its taxable year ending December 31, 1999. In order for HP Realty to be eligible to elect REIT status for such taxable year, Hollywood Park will be required to complete the Reorganization by December 31, 1998. Hollywood Park believes that, commencing with such taxable year, HP Realty will be organized and will operate in such a manner so as to qualify for taxation as a REIT, and Hollywood Park intends for HP Realty to continue to operate in such a manner; however, no assurance can be given that HP Realty will qualify as a REIT or will continue to so qualify. The REIT Provisions are highly technical and complex. The following sets forth the material aspects of the REIT Provisions that govern the federal income tax treatment of a REIT and its stockholders, including changes made by the 1997 Act to the extent such changes will take effect on or before January 1, 1999. This summary is qualified in its entirety by the REIT Provisions and administrative and judicial interpretations thereof. As long as HP Realty qualifies for taxation as a REIT, it generally will not be subject to federal corporate income taxes on net income that it distributes currently to stockholders. This treatment substantially eliminates the "double taxation" (once at the corporate level and again at the stockholder level) that generally attaches to the income of a regular corporation subject to full corporate-level tax (a "C corporation"). Even if HP Realty qualifies for taxation as a REIT, however, it may be subject to federal income or excise tax as follows. First, HP Realty will be taxed at regular corporate rates on any undistributed REIT taxable income (as discussed below), including undistributed net capital gains. Second, under certain circumstances, HP Realty may be subject to the "alternative minimum tax" on its items of tax preference, if any. Third, if HP Realty has (i) net income from the sale or other disposition of "foreclosure property" (which is, in general, property acquired on foreclosure or otherwise on default on a loan secured by such property or a lease of such property) or (ii) other non- qualifying income from foreclosure property, it will be subject to tax at the highest corporate rate on such income. Fourth, if HP Realty has net income from "prohibited transactions" (which are, in general, certain sales or other dispositions of property, other than foreclosure property, held primarily for sale to customers in the ordinary course of business), such income will be subject to a 100% tax. Fifth, if HP Realty should fail to satisfy the 75% Gross Income Test or the 95% Gross Income Test (each of which is discussed below), but has nonetheless maintained its qualification as a REIT because certain other requirements have been met, it will be subject to a 100% tax on the gross income attributable to the greater of the amount by which HP Realty fails the 75% or 95% test, multiplied by a fraction intended to reflect HP Realty's profitability. Sixth, if HP Realty should fail to distribute during each calendar year at least the sum of (i) 85% of its REIT ordinary income for such year, (ii) 95% of its REIT capital gain net income for such year, and (iii) any undistributed taxable income from prior periods, HP Realty will be subject to a 4% excise tax on the excess of such required distributions over the amounts actually distributed. Seventh, pursuant to IRS Notice 88-19, 1988- 1 C.B. 486, if 50 HP Realty has a net unrealized built-in gain with respect to any asset (a "Built-In Gain Asset") held by HP Realty on January 1, 1999 or acquired by HP Realty thereafter from a corporation that is or has been a C corporation in certain transactions in which the basis of the Built-In Gain Asset in the hands of HP Realty is determined by reference to the basis of the asset in the hands of the C corporation, and HP Realty directly or indirectly recognizes gain on the disposition of such asset during the 10-year period (the "Recognition Period") beginning on January 1, 1999 with respect to assets held by HP Realty on such date or, with respect other assets, the date on which such asset is acquired by HP Realty, then, to the extent of the Built-In Gain (i.e., the excess of (a) the fair market value of such asset over (b) HP Realty's adjusted basis in such asset, determined as of the beginning of the Recognition Period), such gain will be subject to tax at the highest regular corporate rate pursuant to Treasury regulations that have not yet been promulgated. The results described above with respect to the recognition of Built-In Gain assume that HP Realty will make an election pursuant to IRS Notice 88-19 with respect to assets held by HP Realty on January 1, 1999 and with respect to assets acquired by HP Realty thereafter from a corporation that is or has been a C corporation. Hollywood Park expects that it will have Built-In Gain Assets as of January 1, 1999 and, thus, direct or indirect sales of such Built-In Gain Assets by HP Realty after 1998 in excess of available loss carryforwards will result in a federal income tax liability to HP Realty. If HP Realty were not to make an election pursuant to IRS Notice 88-19 or that election no longer were available because of a change in applicable law, Hollywood Park would recognize taxable gain on the Reorganization under the Built-In Gain rules, regardless of whether the HPOC Spin-Off otherwise constitutes a taxable transaction or a Section 355 Spin-Off. In early February 1998, the Clinton administration proposed legislation that would eliminate the availability of the election under IRS Notice 88-19. Based on the Treasury Department's General Explanations of the Administration's Revenue Proposals, it is expected that the proposed legislation would be effective for REIT elections that are first effective for a taxable year beginning after January 1, 1999 and would also apply to acquisitions (e.g., the merger of a C corporation into a REIT) after December 31, 1998. Thus, it is expected that C corporations would continue to be permitted to elect REIT status effective for taxable years beginning in 1998 or on January 1, 1999 without incurring the tax on conversion. If the proposed legislation is enacted, it could substantially reduce the benefits of the Reorganization because the cost of making certain acquisitions would be increased on account of the inability to defer Built-In Gain on the acquired assets. Hollywood Park believes that, at the present time, it cannot be predicted whether such proposal will be enacted or, if enacted, in what form. Requirements for Qualification as REIT To qualify as a REIT, HP Realty must elect to be so treated and must meet on a continuing basis certain requirements (as discussed below) relating to HP Realty's organization, sources of income, nature of assets, and distribution of income to stockholders. The Code defines a REIT as a corporation, trust or association: (i) that is managed by one or more trustees or directors; (ii) the beneficial ownership of which is evidenced by transferable shares, or by transferable certificates of beneficial interest; (iii) that would be taxable as a domestic corporation, but for the REIT Provisions; (iv) that is neither a financial institution nor an insurance company subject to certain provisions of the Code; (v) the beneficial ownership of which is held by 100 or more persons; (vi) during the last half of each taxable year not more than 50% in value of the outstanding stock of which is owned, directly or indirectly, by five or fewer individuals (defined in the Code to include certain entities); (vii) that as of the close of the taxable year, has no earnings and profits accumulated in any non-REIT year; (viii) that is not electing to be taxed as a REIT for any taxable year prior to the fifth taxable year which begins after the first taxable year for which its REIT status terminated or was revoked (unless the IRS has waived the applicability of such waiting period); (ix) that has the calendar year as its taxable year; and (x) that meets certain other tests, described below, regarding the nature of its income and assets. The REIT Provisions provide that conditions (i) to (iv), inclusive, must be met during the entire taxable year and that condition (v) must be met during at least 335 days of a taxable year of 12 months, or during a proportionate part of a taxable year of less than 12 months. Conditions (v) and (vi) will not apply until after the first taxable year for which an election is made by the REIT to be taxed as a REIT. 51 Hollywood Park believes that HP Realty will satisfy conditions (i) through (x) (described above). The HP Realty and HP Operating Company Charters will provide for restrictions regarding the transfer and ownership of shares, which restrictions are intended to assist HP Realty in satisfying and in continuing to satisfy the share ownership requirements described in conditions (v) and (vi) above. See "Description of Capital Stock of the Companies--Certain Provisions of the Charters and By-Laws--Restrictions on Ownership and Transfer." For the taxable year beginning January 1, 1999, Hollywood Park expects that HP Realty will satisfy condition (vii) as long as the Reorganization has been completed by such date and all accumulated non-REIT earnings and profits are distributed to stockholders prior to January 1, 2000; for subsequent taxable years, Hollywood Park expects that the dividends to be paid by HP Realty will enable it to continue to satisfy condition (vii). Because Hollywood Park has not been taxed as a REIT since 1991, it satisfies condition (viii). As noted above in condition (vii), in order to be taxed as a REIT, HP Realty generally must not have any earnings and profits at the close of a taxable year that were accumulated in any taxable year in which the REIT provisions did not apply. If, as assumed above, the HPOC Spin-Off will constitute a taxable transaction (see "Tax Consequences of TPI Restructuring and HPOC Spin- Off--Assumption that Transactions Will Be Taxable"), then the amount of Hollywood Park's taxable distribution to stockholders as part of the HPOC Spin-Off would be expected to eliminate any earnings and profits that had been accumulated by Hollywood Park in any taxable year in which the REIT provisions had not applied to it, and no cash distribution, in addition to distribution of HP Operating Company stock, would be required. However, if Hollywood Park were to determine that it will report the HPOC Spin-Off as a generally tax-free transaction (see "--Possibility that Transactions May Be Reported as Tax-Free"), then as a result of the HPOC Spin- Off, the earnings and profits of Hollywood Park immediately before the HPOC Spin-Off would be allocated between HP Realty and HP Operating Company pursuant to applicable Treasury regulations, which prescribe certain alternative methods for making such allocation. In the case of the HPOC Spin- Off, it is expected that, under the regulations, such allocation would be made based on the relative net asset bases of HP Realty and HP Operating Company. It is expected that, taking into account its estimated earnings and profits through December 31, 1997, the earnings and profits to be allocated to HP Realty on that basis would be approximately $7.7 million. Events during 1998 would affect the amount of earnings and profits to be allocated to HP Realty as a result of the HPOC Spin-Off, if such an allocation were to be made. In any event, if Hollywood Park were to determine to report the HPOC Spin-Off as a generally tax-free transaction, it would be Hollywood Park's intention that HP Realty distribute the amount of such earnings and profits allocated to it prior to the end of the first taxable year for which HP Realty elects to be taxed as a REIT. If the IRS were subsequently to challenge the method by which Hollywood Park's earnings and profits were allocated between HP Realty and HP Operating Company, it could be determined that HP Realty failed to distribute the entire amount of such earnings and profits prior to the end of the first taxable year for which HP Realty elected to be taxed as a REIT. If this were to occur, HP Realty would fail to qualify as a REIT for one or more taxable years. Pursuant to applicable Treasury regulations, in order to avoid certain penalties, HP Realty must maintain certain records and request certain information from its stockholders designed to disclose the actual ownership of its stock. HP Realty intends to comply with these requirements. Opinion of Irell & Manella. Prior to completion of the Reorganization, Irell & Manella will issue an opinion letter on certain tax matters connected with the qualification of HP Realty as a REIT (the "Tax Opinion"). The Tax Opinion is not binding on the IRS or any court, and no assurance can be given that the IRS will not challenge part or all of the conclusions reflected in the Tax Opinion or that such a challenge would not be successful. When this summary describes that Irell & Manella will, as part of the Tax Opinion, render an opinion that a result "should" pertain, it means that if the IRS were to assert a contrary view and if all of the facts and issues were completely and competently presented to a court, it is more likely than not that the view stated herein and in the Tax Opinion would prevail. The Tax Opinion will be subject to certain limitations and qualifications and will rely upon and be premised on the accuracy of certain assumptions and certain representations and statements of Hollywood Park. No assurance can be given that the IRS will not take a contrary position as to the applicable facts or that the IRS would not prevail in its position. Further, the 52 anticipated federal income tax treatment described in the Tax Opinion may be changed, perhaps retroactively, by legislative, administrative, or judicial action at any time. Irell & Manella will, as part of the Tax Opinion, render an opinion substantially to the effect that, commencing with HP Realty's taxable year ending December 31, 1999, HP Realty should be organized and operated in conformity with the requirements for qualification as a REIT, and its proposed method of operation should enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code for its subsequent taxable years. This opinion will be based, in part, on certain assumptions and on certain factual representations of Hollywood Park, including without limitation an assumption that HP Realty and HP Operating Company will be respected as separate corporate entities despite the pairing of their shares and representations concerning HP Realty's business and properties, ownership, organization, sources of income, prior status and operations, future operations, and levels of distributions. Such qualification and taxation as a REIT depends upon HP Realty's ability to meet, through annual operating results, certain distribution levels, specified diversity of stock ownership, and various other qualification tests imposed under the REIT Provisions, as discussed below. HP Realty's annual operating results will not be reviewed by Irell & Manella. No assurance can be given that the actual results of HP Realty's operations for any particular taxable year will satisfy such requirements. For a discussion of the potential effect of the pairing of the shares on REIT qualification and the tax consequences of failure to qualify as a REIT, see "--Paired Shares" and "--Failure to Qualify" below. Paired Shares. Section 269B of the Code provides that if the shares of a REIT and a non-REIT are paired, then the REIT and the non-REIT shall be treated as one entity for purposes of determining whether either company qualifies as a REIT, including for purposes of applying the Gross Income Tests and the Asset Tests (described below). As described above, the shares of HP Realty and HP Operating Company will be paired after the Reorganization. If Section 269B applied to HP Realty and HP Operating Company, for example, then HP Realty would not be able to satisfy the Gross Income Tests (described below). This is because HP Realty would be considered to have received the gross income from the racing and casino businesses of HP Operating Company, and thus would not be eligible to be taxed as a REIT. Pursuant to the terms of the grandfathering rule set forth in Section 136(c)(3) of P.L. 98-369 (the "Grandfathering Rule"), however, Section 269B does not apply if the shares of the REIT and the non-REIT were paired as of June 30, 1983 and the REIT was taxable as a REIT as of June 30, 1983. The shares of HP Realty (as Hollywood Park would be renamed) and HP Operating Company were paired as of June 30, 1983 and remained so through the end of 1991, and HP Realty filed its tax return as a REIT for the taxable period including June 30, 1983 and for all subsequent periods through the end of the 1991 taxable year. Although HP Realty and HP Operating ceased operating as a paired-share REIT in 1992, the Grandfathering Rule does not, by its terms, require that the shares of the REIT and the non-REIT be paired at all times after June 30, 1983, or that the REIT be taxed as a REIT at all times after June 30, 1983. The IRS may take the position that the Grandfathering Rule was intended to protect only the expectations of existing paired-share REITs and their stockholders who had relied on the validity of paired-share REIT arrangements in issuing and purchasing paired shares and that, consequently, HP Realty and HP Operating Company would not come within the Grandfathering Rule's intention because Hollywood Park's current stockholders have purchased or held their stock without relying on law allowing that corporation to be part of a paired- share arrangement with a REIT. However, no such intention is stated in the Grandfathering Rule or its legislative history. Moreover, grandfathering clauses, by their very nature, are intended to be exceptions from the policy supporting the related change in the law. They are added to legislation for the specific purpose of permitting conduct inconsistent with the legislation to which they relate. Accordingly, a grandfathering clause should generally be interpreted in strict accordance with its language. Since the literal language of the Grandfathering Rule applies to Hollywood Park's situation, Hollywood Park believes that Section 269B should not apply to HP Realty and HP Operating Company and is prepared to proceed with the Reorganization, taking the position that Section 269B does not apply to HP Realty and HP Operating Company based on the literal language of the Grandfathering Rule. 53 A bill currently pending in Congress, H.R. 2676 (the "Technical Corrections Bill"), contains a provision (the "Grandfathering Rule Amendment") that would clarify that the Grandfathering Rule applies to entities that were paired REITs as of June 30, 1983 whether or not they were paired entities for all periods after June 30, 1983. This bill was passed by the U.S. House of Representatives on November 5, 1997 and is currently pending in the U.S. Senate. However, there can be no assurance that the Technical Corrections Bill will be passed by Congress and signed into law by the President, or if it is, that the Grandfathering Rule Amendment will survive in the final bill. In the absence of enactment of the Grandfathering Rule Amendment, Hollywood Park intends to seek an opinion of counsel regarding the availability of the Grandfathering Rule to HP Realty and HP Operating Company. Irell & Manella has indicated that, unless there is a change in federal tax law adversely impacting the availability of the Grandfathering Rule (see immediately following paragraph), it would be willing, as part of the Tax Opinion, to render an opinion substantially to the effect that the termination of the paired-share status of Hollywood Park and HP Operating Company and of Hollywood Park's REIT election for the taxable years ended December 31, 1992 through 1998 should not result in Section 269B becoming applicable to HP Realty. There are, however, no judicial or administrative authorities interpreting the Grandfathering Rule, and Irell & Manella's opinion would be based solely on the literal language of the Grandfathering Rule and certain factual representations made by Hollywood Park, including without limitation that Hollywood Park and HP Operating Company were stapled entities as of June 30, 1983, and that as of such date, Hollywood Park was a REIT. There can be no assurance that the IRS would not take a contrary position as to the availability of the Grandfathering Rule and the applicability of Section 269B or that the IRS would not prevail in its position. Indeed, during the Ruling Request process, when the IRS was presented with the same applicable facts and circumstances as would be addressed in such opinion of counsel, the IRS informally advised Hollywood Park's tax counsel and accounting firm that the IRS disagreed with Hollywood Park's position on this matter. See "Risk Factors--Absence of Rulings from the Internal Revenue Service" and "-- Consequences of Failure to Qualify as a REIT--Paired Shares and Grandfathering Rule." Also, there can be no assurance that the federal government will not enact legislation in the future that limits or eliminates the ability of paired- share REITs, including HP Realty and HP Operating Company, to avail themselves of the Grandfathering Rule. In early February 1998, the Clinton administration proposed legislation that would limit the tax-favored status enjoyed by paired-share REITs. According to the Treasury Department's General Explanations of the Administration's Revenue Proposals (the "Treasury Explanation"), under the proposed legislation, for purposes of determining whether any grandfathered entity is a REIT, the paired entities would be treated as one entity with respect to properties acquired on or after the date of first Congressional committee action regarding the proposed legislation and with respect to activities or services relating to such properties (i.e., properties acquired on or after the effective date) that are undertaken or performed by one of the paired entities on or after such date. The Treasury Explanation states that while the market largely ignored the grandfathered paired-share REITs for a significant period of time after 1984, recently promoters have begun exploiting these paired-share REITs to accumulate large holdings of properties that could not be operated directly by a REIT and that these entities have used their tax-favored grandfathered status to obtain a competitive advantage over others and to expand their operations greatly beyond the levels and types of businesses conducted in 1984. If the proposed legislation is enacted before the Reorganization has been consummated, or in Hollywood Park's judgment is likely to be enacted, Hollywood Park may abandon the Reorganization. If the proposed legislation is enacted after the Reorganization has been consummated, the legislation would substantially impair the ability of HP Realty and HP Operating Company to avail themselves of the benefits of a paired-share REIT structure. Hollywood Park believes that, at the present time, it cannot be predicted whether such proposal will be enacted or, if enacted, in what form. The proposed legislation could also deter third parties from pursuing Strategic Transactions with Hollywood Park and thereby reduce the potential benefits of the Reorganization. The staff of the Congressional Joint Committee on Taxation also has indicated that it plans to look at the issue of paired-share REITs at some point in the future. See "Risk Factors--Potential Consequences of Proposed Legislation." Even if Section 269B of the Code does not apply to HP Realty and HP Operating Company, the IRS could assert that HP Realty and HP Operating Company should be treated as one entity under general tax principles 54 and that, therefore, HP Realty does not qualify to be taxed as a REIT. In general, such an assertion should be upheld only if the separate corporate identities are a sham or unreal. Not all of the directors of HP Operating Company will also be directors of HP Realty. In addition, HP Realty and HP Operating Company will have separate creditors (with certain exceptions) and will be subject to different state law licensing and regulatory requirements. HP Realty and HP Operating Company will each maintain separate books and records and all material transactions among them have been and will be negotiated and structured with the intention of achieving an arm's-length result. Based on the foregoing, Hollywood Park expects the separate corporate identities of HP Realty and HP Operating Company to be respected. Due to the paired structure, HP Realty and HP Operating Company will be controlled by the same interests. As a result, the IRS could, pursuant to Section 482 of the Code, seek to distribute, apportion or allocate gross income, deductions, credits or allowances between or among them, including with respect to any such items arising under HP Realty's leases of real property to HP Operating Company and Turf Paradise Operating Company, if the IRS determines that such distribution, apportionment or allocation is necessary in order to prevent evasion of taxes or clearly to reflect income. Hollywood Park and HP Operating Company intend that all material transactions between HP Realty and HP Operating Company will be negotiated and structured with the objective of achieving an arm's-length result. As a result, the potential application of Section 482 of the Code should not have a material effect on HP Realty or HP Operating Company. As described above, all material transactions between HP Realty and HP Operating Company will be negotiated and structured with the intention of achieving an arm's-length result. HP Realty and HP Operating Company intend to diligently pursue arriving at such a result. However, because HP Realty and HP Operating Company will be controlled by the same interests, they may, in practice, face certain difficulties that are normally not confronted by parties bargaining at arm's length, and thus there can be no assurance that the IRS would not challenge the terms of such transactions. The IRS has announced that it will not issue a ruling on whether a corporation whose stock is "paired" with or "stapled" to stock of another corporation will qualify as a REIT, if the activities of the corporations are integrated. This issue has never been resolved by the courts and, thus, there can be no assurance that the IRS would not challenge HP Realty's qualification as a REIT on this basis, or that, if the IRS did so, it would not prevail. Before the IRS adopted the foregoing no-ruling policy in 1981, several taxpayers had obtained rulings from the IRS holding substantially to the effect that if they established a paired-share REIT structure, which several of them then did, such pairing would not preclude the purported REIT from qualifying as such under the REIT Provisions. Such rulings are directed only to the taxpayers that requested them and may not be used or cited as precedent by other taxpayers, such as Hollywood Park. Hollywood Park, before establishing a paired-share REIT structure in 1982, had initially submitted a request for such a ruling from the IRS. However, while that request for a ruling was pending in 1981, the IRS adopted the no-ruling policy described above, and thus no such ruling was issued to Hollywood Park. Qualified REIT Subsidiary. A corporation which is a "qualified REIT subsidiary" will not be treated as a separate corporation for purposes of applying the REIT Provisions. A qualified REIT subsidiary is any corporation if 100% of the stock of such corporation is held by the REIT. Because 100% of the stock of Turf Paradise Realty (as Turf Paradise, Inc. would be renamed) will be held by HP Realty, Turf Paradise Realty should be a qualified REIT subsidiary. Thus, the separate entity status of Turf Paradise Realty should be disregarded in applying the Gross Income Tests, the Asset Tests and other REIT Provisions described below to HP Realty. Gross Income Tests. In order to maintain qualification as a REIT, HP Realty must annually satisfy two gross income requirements (the "Gross Income Tests"). First, at least 75% of HP Realty's gross income (excluding gross income from prohibited transactions) for each taxable year must be "qualifying income." Qualifying income generally includes certain defined types of income derived directly or indirectly from investments relating to real property or mortgages on real property (including "rents from real property," as described below, and in certain circumstances, interest) or from certain types of qualified temporary investments. Second, at least 95% of HP Realty's gross income (excluding gross income from prohibited transactions) for 55 each taxable year must be derived from the same items which qualify under the 75% Gross Income Test and from dividends, interest, and gain from the sale or disposition of stock or securities that do not constitute dealer property or from any combination of the foregoing. Rents received from a tenant will not qualify as "rents from real property" in satisfying the Gross Income Tests if HP Realty, or a direct or indirect owner of 10% or more of the stock of HP Realty, directly or constructively owns 10% or more of such tenant. In addition, if rent attributable to personal property leased in connection with a lease of real property is greater than 15% of the total rent received under the lease, then the portion of rent attributable to such personal property will not qualify as "rents from real property." Moreover, an amount received or accrued will not qualify as "rents from real property" (or as interest income) for purposes of the Gross Income Tests if it is based in whole or in part on the income or profits of any person. However, an amount received or accrued generally will not fail to qualify as "rents from real property" solely by reason of being based on a fixed percentage or percentages of receipts or sales. Finally, for rents received to qualify as "rents from real property," HP Realty generally must not operate or manage the real property or furnish or render services to tenants, other than through an "independent contractor" from whom HP Realty derives no revenue. The "independent contractor" requirement, however, does not apply to the extent that the services provided by HP Realty are "usually or customarily rendered" in connection with the rental of space for occupancy only, and are not otherwise considered "rendered for the convenience of the occupant." If HP Realty receives income for services not usually or customarily rendered to tenants in connection with the rental of space for occupancy ("impermissible tenant services income") in an amount that exceeds 1% of all amounts received or accrued by the REIT during such taxable year with respect to such property, no amounts received with respect to that property will constitute "rents from real property." In addition, the REIT will be treated as receiving an amount of impermissible tenant services income equal to at least 150% of the direct cost of the REIT in furnishing such service or managing or operating such property. Substantially all of HP Realty's income will initially be derived from leases of real property to HP Operating Company and Turf Paradise Operating Company. These leases will be "triple-net" leases that generally provide for payment of rent equal to the greater of a fixed rent or fixed percentages of various sources of revenues, including pari-mutuel handle at the race tracks and gross gaming revenues at the Hollywood Park-Casino. See "The Reorganization--Relationship Between the Companies After the Reorganization." In order for the rents paid under such leases to constitute "rents from real property," the leases must be respected as true leases for federal income tax purposes and not treated as service contracts, joint ventures, ownership interests in lessees or some other type of arrangement. The determination of whether the leases are true leases depends upon an analysis of all of the surrounding facts and circumstances. In making such a determination, courts have considered a variety of factors, including the intent of the parties, the form of the agreement, the degree of control over the property that is retained by the property owner, the extent to which the property owner retains the risk of loss with respect to the property, the existence of a business purpose for entering into the lease, the opportunity to profit from the lease, the payment of rent at fair market value, the existence of terms and conditions consistent with an arm's-length negotiation, and conformity to normal business practices. Prior to completion of the Reorganization, Irell & Manella will, as part of the Tax Opinion, render an opinion substantially to the effect that the leases should be treated as true leases for federal income tax purposes. This opinion will be based, in part, on factual representations of Hollywood Park, including without limitation the following: (i) the lessors and the lessees intend for their relationship to be that of lessor and lessee and each such relationship will be documented by a lease agreement; (ii) the lessees will have the right to exclusive possession and use and quiet enjoyment of the leased premises during the term of the leases; (iii) the lessees will bear the cost of, and be responsible for, day-to-day maintenance and repair of the leased premises, other than the cost of certain capital expenditures, and will dictate how the leased premises are operated and maintained; (iv) the lessees will bear all of the costs and expenses of operating the leased premises during the term of the leases; (v) the term of the leases is less than the economic life of the leased premises and the lessees do not have purchase options with respect to the leased premises; (vi) the lessees are required to pay substantial fixed rent during the term of the leases; (vii) each lessee stands to incur substantial losses or reap substantial profits 56 depending on how successfully it operates the leased premises; (viii) the lessors and the lessees have a valid business purpose for entering into the leases; (ix) the rents under the leases will be determined based on fair market value; (x) the terms and conditions of the leases will be consistent with arm's-length negotiations; and (xi) the leases will conform to normal business practices. However, there are no authorities involving leases between paired companies. Therefore, the opinion of Irell & Manella will be based upon an analysis of the facts and circumstances (and in this regard Irell & Manella would rely on factual representations made by Hollywood Park) and upon rulings and judicial decisions involving situations that are analogous. There can be no assurance that the IRS would not take a contrary position as to whether the leases constitute true leases for federal income tax purposes or that the IRS would not prevail in its position. If any lease is recharacterized as a service contract, a partnership agreement, or an ownership interest in a lessee, rather than as a true lease, HP Realty would not be able to satisfy either the 75% or 95% Gross Income Tests and, as a result, would lose its REIT status. See "Risk Factors--Consequences of Failure to Qualify as a REIT--Gross Income Tests." If HP Realty were to own, directly or indirectly, 10% or more of HP Operating Company or Turf Paradise Operating Company, the rent paid to HP Realty by HP Operating Company or Turf Paradise Operating Company with respect to property leased by HP Realty to HP Operating Company or Turf Paradise Operating Company would not qualify as "rents from real property." In order to reduce the risk of such a situation, which would result in the disqualification of HP Realty as a REIT, the HP Realty and HP Operating Company Charters will contain restrictions on the amount of HP Realty shares and HP Operating Company shares that any one person can own. These restrictions generally will provide that any attempt by any one person to actually or constructively acquire 9.8% or more of the outstanding Paired Shares will be ineffective. See "Description of Capital Stock of the Companies--Certain Provisions of the Charters and By-Laws--Restrictions on Ownership and Transfer." However, notwithstanding such restrictions, because the Code's constructive ownership rules for purposes of the 10% ownership limit are broad and it is not possible to continually monitor direct and indirect ownership of Paired Shares, it is possible that some person may at some time own sufficient Paired Shares to prevent HP Realty from satisfying the requirements to be taxed as a REIT. Another requirement for rent payments under a lease to constitute "rents from real property" is that the rent attributable to personal property under the lease must not be greater than 15% of the rent received under the lease. For this purpose, rent attributable to personal property is the amount that bears the same ratio to the total rent for the taxable year as the average of the adjusted basis of the personal property at the beginning and at the end of the taxable year bears to the average of the aggregate adjusted basis of both the real property and personal property leased under, or in connection with, such lease. If the IRS were successfully to assert that with respect to one or more of the leases rent attributable to personal property is greater than 15% of the total rent, then it is possible that HP Realty would not be able to satisfy either the 75% or 95% Gross Income Test and, as a result, would lose its REIT status. With respect to both the leases and future acquisitions, HP Realty will monitor the 15% test to continue to qualify as a REIT. A further requirement for qualification of rent under the leases as "rents from real property" is that the rent must not be based on the income or profits of any person. The percentage rent under the leases will qualify as "rents from real property" if it is based on percentages of receipts or sales and the percentages (i) are fixed at the time the leases are entered into; (ii) are not renegotiated during the term of the leases in a manner that has the effect of basing percentage rent on income or profits; and (iii) conform with normal business practice. More generally, percentage rent will not qualify as "rents from real property" if, considering the leases and all the surrounding circumstances, the arrangement does not conform with normal business practice, but is in reality used as a means of basing the percentage rent on income or profits. Hollywood Park intends for the leases to conform with normal business practice and expects the percentage rent to be treated as "rents from real property" under this requirement. Finally, rent under HP Realty's leases will not qualify as "rents from real property" if HP Realty renders or furnishes certain prohibited services to the occupants of the properties. So long as the leases are treated as true leases, HP Realty should not be treated as rendering or furnishing any prohibited services to the occupants of the properties. 57 Although the income from the operation of the Hollywood Park Golf and Sports Center and the income from the operation of the Turf Paradise Travel Trailer Park will not be considered to be qualifying income, Hollywood Park expects that other qualifying income will be large enough in amount for HP Realty to satisfy the Gross Income Tests. Even if this expectation is met, however, a REIT is, as described earlier, subject to a 100% tax on net income from "prohibited transactions" (including the sale or other disposition of property held primarily for sale to customers in the ordinary course of business), and thus in the case of the Hollywood Park Golf and Sports Center, certain net income from sales of inventory items will be subject to such tax. In addition, if Hollywood Park's expectation is not met and HP Realty failed the Gross Income Tests, HP Realty may lose its status as a REIT, and, even if it retains its status, it will be subject to a 100% tax with respect to certain excess net income (the gross income attributable to the greater of the amount by which HP Realty fails the 75% Gross Income Test or the 95% Gross Income Test, multiplied by a fraction intended to reflect HP Realty's profitability). See "--Failure to Qualify." If HP Realty fails to satisfy one or both of the 75% or 95% Gross Income Tests for any taxable year, it may nevertheless qualify as a REIT for such year if it is entitled to relief under certain provisions of the Code. These relief provisions generally will be available if HP Realty's failure to meet such tests is due to reasonable cause and not willful neglect, HP Realty attaches a schedule of the sources of its income to its tax return, and any incorrect information on the schedule was not due to fraud with intent to evade tax. It is not possible to state whether in all circumstances HP Realty would be entitled to the benefit of these relief provisions. As discussed above, even if these relief provisions apply, a 100% tax would be imposed with respect to the excess net income. Asset Tests. In order to maintain qualification as a REIT, HP Realty, at the close of each quarter of its taxable year, must also satisfy three tests relating to the nature of its assets (the "Asset Tests"). First, at least 75% of the value of HP Realty's total assets must be represented by real estate assets (including (i) its allocable share of real estate assets held by partnerships in which HP Realty owns a direct or indirect interest, (ii) stock or debt instruments held for not more than one year purchased with the proceeds of a stock offering or long-term (at least five years) debt offering of HP Realty, and (iii) shares in qualified REITs, cash, cash items and government securities. Second, not more than 25% of HP Realty's total assets may be represented by securities other than those in the 75% asset class. Third, of the investments included in the 25% asset class, the value of any one issuer's securities owned by HP Realty may not exceed 5% of the value of HP Realty's total assets, and HP Realty may not own more than 10% of any one issuer's outstanding voting securities (excluding securities of a qualified REIT subsidiary or another REIT). Hollywood Park anticipates that commencing with the taxable year ending December 31, 1999, HP Realty will be able to comply with the Asset Tests if the Reorganization is completed during 1998. Substantially all of HP Realty's investments will be qualifying real estate assets, with certain exceptions which are small enough in amount so as not to disqualify HP Realty from satisfying the Asset Tests, and except for the stock of Turf Paradise Realty, which will be disregarded as a qualified REIT subsidiary (discussed above). After initially meeting the Asset Tests at the close of any quarter, HP Realty will not lose its status as a REIT for failure to satisfy the Asset Tests at the end of a later quarter solely by reason of changes in asset values. If the failure to satisfy the Asset Tests results from an acquisition of securities or other property during a quarter, the failure can be cured by disposition of sufficient non-qualifying assets within 30 days after the close of that quarter. HP Realty intends to maintain adequate records of the value of its assets to comply with the Asset Tests and to take such actions within 30 days after the close of any quarter as may be required to cure any non- compliance. Annual Distribution Requirements. HP Realty, in order to qualify as a REIT, will be required to distribute dividends (other than capital gain dividends) to its stockholders in an amount at least equal to (i) the sum of (a) 95% of HP Realty's "REIT taxable income" (computed without regard to the dividends paid deduction and HP Realty's net capital gain) and (b) 95% of the net income (after tax), if any, from foreclosure property, minus (ii) the sum of certain items of non-cash income. In addition, if HP Realty disposes of any Built-In Gain Asset during its Recognition Period, HP Realty will be required, pursuant to Treasury regulations that have not yet been promulgated, to distribute at least 95% of the Built-In Gain (after tax), if any, recognized on the disposition 58 of such asset. Distributions must be paid in the taxable year to which they relate, or in the following taxable year if declared before HP Realty timely files its tax return for such year and if paid on or before the first regular dividend payment after such declaration. To the extent that HP Realty does not distribute all of its net capital gain or distributes at least 95%, but less than 100%, of its "REIT taxable income," as adjusted, it will be subject to tax on the undistributed portion at the applicable regular corporate tax rates. Furthermore, if HP Realty should fail to distribute during each calendar year at least the sum of (i) 85% of its REIT ordinary income for such year, (ii) 95% of its REIT capital gain income for such year, and (iii) any undistributed taxable income from prior periods, HP Realty will be subject to a 4% excise tax on the excess of such required distribution over the amounts actually distributed. HP Realty intends to make timely distributions sufficient to satisfy the annual distribution requirements and to the extent practical, avoid payment of material amounts of federal income or excise tax by HP Realty. It is possible, however, that HP Realty, from time to time, may experience timing differences between the actual receipt of income and actual payment of deductible expenses and the inclusion of such income and deduction of such expenses in arriving at REIT taxable income. In addition, it is also possible that, from time to time, HP Realty may be allocated a share of net capital gain attributable to the sale of depreciated property that exceeds its allocable share of cash attributable to that sale. In such cases, HP Realty may not have sufficient cash or other liquid assets to meet the distribution requirements described above. In order to meet the distribution requirements in such cases, HP Realty may find it necessary to arrange for short-term or possible long-term borrowings or to pay dividends in the form of taxable stock dividends. Under certain circumstances, HP Realty may be able to rectify a failure to meet the above distribution requirements for a year by paying "deficiency dividends" to stockholders in a later year, which may be included in HP Realty's deduction for dividends paid for the earlier year. Thus, HP Realty may be able to avoid being taxed on amounts distributed as deficiency dividends; however, HP Realty will be required to pay interest based upon the amount of any deduction taken for deficiency dividends. Failure to Qualify If HP Realty fails to qualify for taxation as a REIT in any taxable year, and the relief provisions do not apply, HP Realty will be subject to tax (including any applicable alternative minimum tax) on its taxable income at regular corporate rates. Distributions to stockholders in any year in which HP Realty fails to qualify will not be deductible by HP Realty nor will they be required to be made. The corporate tax liabilities arising from such failure to qualify could have a material adverse effect on HP Realty. Such failure could result in significant tax liabilities to HP Realty at a time when, due to prior distributions to stockholders, it may not have sufficient cash or other liquid assets to pay the tax. To obtain the funds necessary to pay such tax liabilities, HP Realty may be required to arrange for short-term or possible long-term borrowings or to sell some of its assets. In addition, HP Realty's failure to qualify as a REIT would reduce the cash available for distribution by HP Realty to its stockholders. Furthermore, if HP Realty fails to qualify as a REIT, all distributions to stockholders will be taxable as ordinary income to the extent of HP Realty's current and accumulated earnings and profits, without the possibility of designating certain capital gain income to be taxed to the stockholders as capital gains, and, subject to certain limitations of the Code, corporate distributees may be eligible for the dividends-received deduction. Unless entitled to relief under specific statutory provisions, HP Realty will also be disqualified from taxation as a REIT for the four taxable years following the year during which qualification was lost. It is not possible to state whether in all circumstances HP Realty would be entitled to such statutory relief. FEDERAL INCOME TAXATION OF HP OPERATING COMPANY Substantially all of HP Operating Company's taxable income will consist of income derived from the operation of its race tracks and casinos. HP Operating Company will be subject to federal income tax on its taxable income. 59 CONSTRAINTS ON FUTURE TRANSACTIONS The proposed paired-share REIT structure will limit the types of tax-free techniques that HP Realty and HP Operating Company can use to effect acquisitions following the Reorganization. Stockholders of the acquired company may be taxed on a portion of the non-cash consideration received in the acquisition, and large stockholders of the acquired company may be required to receive enough taxable non-stock consideration to assure that they do not own, directly or indirectly, more than 9.8% of either HP Operating Company or HP Realty after the acquisition. In addition, if HP Operating Company and HP Realty seek to divide the assets of an acquired corporation to exploit the paired-share REIT structure in connection with its business, some part of the acquisition transaction will likely be taxable to the acquired corporation. Finally, the Clinton administration has proposed legislation that would eliminate the ability of REITs to defer, under IRS Notice88-19, taxable gain on appreciated assets at the time a REIT makes certain acquisitions; if the proposed legislation is enacted, it could substantially reduce the benefits of the Reorganization because the cost of making certain acquisitions would be increased on account of the inability to defer tax on appreciated acquired assets. These factors may make proposed acquisitions by HP Operating Company and HP Realty less attractive to potential acquisition targets. See "Risk Factors--Potential Consequences of Proposed Legislation," "--Constraints on Equity Financing" and "--Constraints on Future Transactions." FEDERAL INCOME TAXATION OF HOLDERS OF PAIRED SHARES If the separate corporate identities of HP Realty and HP Operating Company are respected, then notwithstanding that the Paired Shares may be transferred only as a unit, holders of Paired Shares will be treated for U.S. federal income tax purposes as holding equal numbers of shares of HP Realty Common Stock and HP Operating Company Common Stock. The tax treatment of distributions to stockholders and of any gain or loss upon sale or other disposition of the Paired Shares (as well as the amount of any gain or loss) must therefore be determined separately with respect to each share of HP Realty Common Stock and each share of HP Operating Company Common Stock contained within each Paired Share. As long as HP Realty qualifies as a REIT, distributions up to the amount of HP Realty's current or accumulated earnings and profits (and not designated as capital gain dividends) will be taken into account by holders of HP Realty Shares as ordinary income and will not be eligible for the dividends-received deduction for corporations. Distributions that are properly designated by HP Realty as capital gain dividends will be treated as gain from the sale or exchange of a capital asset held for more than one year (to the extent they do not exceed HP Realty's actual net capital gain for the taxable year) without regard to the period for which the holder has held such holder's stock. Corporate holders may be required to treat up to 20% of certain capital gain dividends as ordinary income, and capital gains dividends are not eligible for the dividends-received deduction. Distributions in excess of HP Realty's current and accumulated earnings and profits will not be taxable to a holder to the extent that they do not exceed the adjusted basis of the holder's HP Realty shares, but rather will reduce the adjusted basis of such HP Realty shares. To the extent that such distributions exceed the adjusted basis of a holder's HP Realty shares they will be included in income as gain realized from the sale of such shares, as discussed below. In addition, any dividend declared by HP Realty in October, November or December of any year payable to a holder of record on a specified date in any such month shall be treated as both paid by HP Realty and received by the holder on December 31 of such year, provided that the dividend is actually paid by HP Realty during January of the following calendar year. If HP Realty elects to retain and pay tax on its net capital gains, HP Realty's stockholders will be required to include their proportionate share of the undistributed long-term capital gains in income and will receive a credit for their share of the tax paid by HP Realty. The basis of HP Realty's stockholders' shares would be increased by a corresponding amount. HP Realty will be treated as having sufficient earnings and profits to treat as a dividend any distribution by HP Realty up to the amount required to be distributed in order to avoid imposition of the 4% excise tax discussed above. As a result, holders may be required to treat certain distributions that would otherwise result in a tax-free 60 return of capital as taxable distributions. Moreover, any "deficiency dividend" will be treated as a "dividend" (either as ordinary or capital gain dividend, as the case may be), regardless of HP Realty's earnings and profits. Distributions from HP Realty and gain from the disposition of HP Realty shares will not be treated as passive activity income and, therefore, stockholders generally will not be able to apply any "passive losses" against such income. Dividends from HP Realty (to the extent they do not constitute a return of capital) will generally be treated as investment income for purposes of the investment interest expense limitation. Gain from the disposition of shares and capital gains dividends will not be treated as investment income unless the holders elect to have the gain taxed at ordinary income rates for purposes of the investment interest expense limitation. Distributions from HP Operating Company up to the amount of HP Operating Company's current or accumulated earnings and profits will be taken into account by holders of HP Operating Company Shares as ordinary income and will be eligible for the dividends-received deduction for corporations. Distributions in excess of HP Operating Company's current and accumulated earnings and profits will not be taxable to a holder to the extent that they do not exceed the adjusted basis of the holder's HP Operating Company Shares, but rather will reduce the adjusted basis of such HP Operating Company Shares. To the extent that such distributions exceed the adjusted basis of a holder's HP Operating Company Shares they will be treated as gain realized from the sale of such shares, as discussed below. In general, a holder of Paired Shares will realize capital gain or loss on the disposition of Paired Shares equal to the difference between the amount realized on such disposition and the holder's adjusted basis in such Paired Shares. The tax basis for each share of HP Realty Common Stock and each share of HP Operating Company Common Stock should be determined separately by allocating a holder's basis in its Hollywood Park Common Stock between the HP Realty Common Stock and the HP Operating Company Common Stock based on their relative fair market values at the time of the Reorganization. Upon a taxable sale of a Paired Share, the amount realized should be allocated between HP Realty Common Stock and HP Operating Company Common Stock based on their then relative fair market values. Such gain or loss will generally constitute long- term capital gain or loss if the holder held such Paired Shares for more than one year and, in the case of an individual, will be taxed at a lower rate if the shares have been held for more than 18 months. However, any loss upon a sale or exchange of HP Realty Shares by a holder who has held such shares for six months or less (after applying certain holding period rules) will be treated as a long-term capital loss to the extent of distributions from HP Realty required to be treated by such holder as long-term capital gain. Holders of Paired Shares may not include in their individual income tax returns any net operating losses or capital losses of HP Realty or HP Operating Company. INFORMATION REPORTING REQUIREMENTS AND BACKUP WITHHOLDING Under certain circumstances, holders of Paired Shares may be subject to backup withholding at a rate of 31% on payments made with respect to, or on cash proceeds of a sale or exchange of, Paired Shares. Backup withholding will apply only if the holder: (i) fails to furnish its taxpayer identification number ("TIN") (which, for an individual, would be his or her Social Security number); (ii) furnishes an incorrect TIN; (iii) is notified by the IRS that it has failed to report properly payments of interest and dividends; or (iv) under certain circumstances, fails to certify, under penalty of perjury, that it has furnished a correct TIN and has not been notified by the IRS that it is subject to backup withholding for failure to report interest and dividend payments. Backup withholding will not apply with respect to payments made to certain exempt recipients, such as corporations and tax-exempt organizations. In addition, HP Realty and HP Operating Company may be required to withhold a portion of capital gain distributions made to any holders who fail to certify their non-foreign status. Additional issues may arise pertaining to information reporting and withholding with respect to non-U.S. holders of Paired Shares and each non-U.S. holder should consult his or her tax advisor with respect to any such information reporting and withholding requirements. 61 UNAUDITED PRO FORMA COMBINED CONSOLIDATED CONDENSED FINANCIAL STATEMENTS The following unaudited pro forma combined consolidated condensed financial statements (the "Pro Forma Statements") are first presented prior to giving effect to the Reorganization ("Pre-REIT") by combining the financial results of Hollywood Park and Boomtown giving effect to the Boomtown Merger and the issuance of the Notes. Following the Pre-REIT Pro Forma Statements, are Pro Forma Statements presented after giving effect to the Reorganization ("Post- REIT") for each of HP Realty and HP Operating Company. The Pre-REIT unaudited pro forma consolidated statements of operations ("Pro Forma Statements of Operations") were prepared by combining the audited consolidated statement of operations of Hollywood Park for the year ended December 31, 1996, with the unaudited consolidated statement of operations of Boomtown for the year ended December 31, 1996, and by combining the unaudited statement of operations of Hollywood Park for the nine months ended September 30, 1997, which includes the results of operations of Boomtown from and after July 1, 1997, with Boomtown's results of operations for the six months ended June 30, 1997. Historically, Boomtown reported results on a fiscal year end of September 30. The acquisition of Boomtown was accounted for under the purchase method of accounting for a business combination. The Pre-REIT unaudited consolidated condensed balance sheet ("Pro Forma Balance Sheet") as of September 30, 1997, includes the accounts of both Hollywood Park and Boomtown and reflects the accounting for the issuance of the Notes. The Pre-REIT Pro Forma Statements are presented exclusive of the financial results of Boomtown's Las Vegas property, which was divested in connection with the Boomtown Merger. The Pre-REIT Pro Forma Statements of Operations include pro forma adjustments to give effect to the issuance of the Notes and the application of the proceeds therefrom. The Post-REIT Pro Forma Statements include pro forma adjustments to give effect to the Reorganization, and assume that the real estate assets of Turf Paradise will be retained by a wholly-owned subsidiary of HP Realty. The Pre-REIT and Post-REIT Pro Forma Statements are presented for illustrative purposes only, and are not necessarily indicative of the operating results or financial position that would have occurred if the Boomtown Merger, the issuance of the Notes and the Reorganization had been consummated in an earlier period, nor are they necessarily indicative of future operating results or financial position. The Pre-REIT and Post-REIT Pro Forma Statements are based on, and should be read in conjunction with, the historical consolidated financial statements and related notes thereto of Hollywood Park and Boomtown. 62 HOLLYWOOD PARK, INC. UNAUDITED PRO FORMA COMBINED CONSOLIDATED STATEMENTS OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 1996 (PRIOR TO GIVING EFFECT TO THE REORGANIZATION)
PRO FORMA ADJUSTMENTS TO PRO FORMA PRE-REIT HOLLYWOOD ELIMINATE ADJUSTED PRO FORMA PARK, BOOMTOWN, BOOMTOWN BOOMTOWN, PRO FORMA COMBINED INC. INC. LAS VEGAS INC. ADJUSTMENTS CONSOLIDATED --------- --------- ----------- --------- ----------- ------------ (IN THOUSANDS, EXCEPT PER SHARE DATA) REVENUES: Gaming................. $ 50,717 $188,942 $(30,960) $157,982 $ 0 $ 208,699 Racing................. 71,308 0 0 0 0 71,308 Food and beverage...... 13,947 16,677 (7,887) 8,790 0 22,737 Hotel and recreational vehicle park.......... 0 7,427 (5,744) 1,683 0 1,683 Truck stop and service station............... 0 14,859 (159) 14,700 0 14,700 Other income........... 7,253 13,413 (3,210) 10,203 0 17,456 -------- -------- -------- -------- -------- --------- 143,225 241,318 (47,960) 193,358 0 336,583 -------- -------- -------- -------- -------- --------- EXPENSES: Gaming................. 27,249 111,364 (21,644) 89,720 0 116,969 Racing................. 30,167 0 0 0 0 30,167 Food and beverage...... 19,573 20,015 (9,860) 10,155 0 29,728 Hotel and recreational vehicle park.......... 0 3,110 (2,471) 639 0 639 Truck stop and service station............... 0 13,462 (83) 13,379 0 13,379 Administrative......... 41,477 63,021 (17,272) 45,749 0 87,226 Other.................. 2,485 4,132 (143) 3,989 0 6,474 Depreciation and amortization.......... 10,695 10,880 (956) 9,924 (312)(a) 20,818 -- -- -- -- 444 (b) -- -- -- -- -- 67 (c) -- Hollywood Park/Boomtown Merger costs.......... 0 1,291 0 1,291 0 1,291 Write off of investment in a business......... 11,412 0 0 0 0 11,412 Loss on sale of business.............. 0 36,563 0 36,563 0 36,563 -------- -------- -------- -------- -------- --------- 143,058 263,838 (52,429) 211,409 199 354,666 -------- -------- -------- -------- -------- --------- Operating income (loss)................. 167 (22,520) 4,469 (18,051) (199) (18,083) Interest expense ...... 942 13,988 (299) 13,689 (216)(d) 15,468 -- -- -- -- 329 (e) -- -- -- -- -- (11,843)(f) -- -- -- -- -- 692 (g) -- -- -- -- -- 11,875 (h) -- -------- -------- -------- -------- -------- --------- Income (loss) before minority interests and income taxes........... (775) (36,508) 4,768 (31,740) (1,036) (33,551) Minority interest ..... 15 (164) 0 (164) 0 (149) -------- -------- -------- -------- -------- --------- Income (loss) before income taxes........... (790) (36,344) 4,768 (31,576) (1,036) (33,402) Income tax expense (benefit)............. 3,459 (320) 1,370 1,050 (388)(i) 4,121 -------- -------- -------- -------- -------- --------- Income (loss) before extraordinary item..... $ (4,249) $(36,024) $ 3,398 $(32,626) $ (648) $ (37,523) ======== ======== ======== ======== ======== ========= Dividend requirement on convertible preferred stock.................. $ 1,925 $ 1,925 Loss before extraordinary item allocated to common shareholders........... $ (6,174) $ (39,448) ======== ========= Per common share: Loss before extraordinary item-- primary............... $ (1.65) Loss before extraordinary item-- fully diluted......... $ (1.65) Number of common shares-primary........ 23,868 Number of common shares-fully diluted.. 26,160
63 HOLLYWOOD PARK, INC. UNAUDITED PRO FORMA COMBINED CONSOLIDATED STATEMENTS OF OPERATIONS FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1997 (PRIOR TO GIVING EFFECT TO THE REORGANIZATION)
PRO FORMA ADJUSTMENTS TO PRO FORMA HOLLYWOOD ELIMINATE ADJUSTED PRE-REIT PARK, BOOMTOWN, BOOMTOWN BOOMTOWN, PRO FORMA PRO FORMA INC.(1) INC.(2) LAS VEGAS INC. ADJUSTMENTS CONSOLIDATED --------- --------- ----------- --------- ----------- ------------ (IN THOUSANDS, EXCEPT PER SHARE DATA) REVENUES: Gaming................. $83,990 $ 98,787 $(15,438) $ 83,349 $ 0 $167,339 Racing................. 48,084 0 0 0 0 48,084 Food and beverage...... 13,016 9,028 (4,107) 4,921 0 17,937 Hotel and recreational vehicle park.......... 581 3,768 (2,973) 795 0 1,376 Truck stop and service station............... 4,897 6,646 (76) 6,570 0 11,467 Other income........... 7,781 5,737 (416) 5,321 0 13,102 ------- -------- -------- -------- ------- -------- 158,349 123,966 (23,010) 100,956 0 259,305 ------- -------- -------- -------- ------- -------- EXPENSES: Gaming................. 45,117 54,804 (11,918) 42,886 0 88,003 Racing................. 21,615 0 0 0 0 21,615 Food and beverage...... 16,920 11,698 (5,115) 6,583 0 23,503 Hotel and recreational vehicle park.......... 199 1,714 (1,380) 334 0 533 Truck stop and service station............... 4,461 6,093 (47) 6,046 0 10,507 Administrative......... 39,231 30,678 (7,082) 23,596 0 62,827 Other.................. 3,262 1,882 (66) 1,816 0 5,078 Depreciation and amortization.......... 11,939 8,820 (298) 8,522 222 (b) 20,717 -- -- -- -- 34 (c) -- Hollywood Park/Boomtown Merger costs.......... 0 1,487 0 1,487 0 1,487 Write off of investment in a business......... 0 0 0 0 0 0 Loss on sale of business.............. 0 1,271 (914) 357 0 357 ------- -------- -------- -------- ------- -------- 142,744 118,447 (26,820) 91,627 256 234,627 ------- -------- -------- -------- ------- -------- Operating income (loss)................. 15,605 5,519 3,810 9,329 (256) 24,678 Interest expense....... 3,782 6,951 (101) 6,850 (108)(d) 11,051 -- -- -- -- 165 (e) -- -- -- -- -- (5,922)(f) -- -- -- -- -- 346 (g) -- -- -- -- -- 5,938 (h) -- ------- -------- -------- -------- ------- -------- Income (loss) before minority interests and income taxes........... 11,823 (1,432) 3,911 2,479 (675) 13,627 Minority interest...... 80 0 0 0 0 80 ------- -------- -------- -------- ------- -------- Income (loss) before income taxes........... 11,743 (1,432) 3,911 2,479 (675) 13,547 Income tax expense (benefit)............. 4,624 (587) 2,051 1,464 (256)(i) 5,832 ------- -------- -------- -------- ------- -------- Income (loss) before extraordinary item..... $ 7,119 $ (845) $ 1,860 $ 1,015 $ (419) $ 7,715 ======= ======== ======== ======== ======= ======== Dividend requirement on convertible preferred stock.................. $ 1,520 $ 1,520 Income before extraordinary item available to common shareholders........... $ 5,599 $ 6,195 ======= ======== Per common share: Income before extraordinary item-- primary............... $ 0.26 Number of common shares--primary....... 24,073
- -------- (1)Includes Boomtown's results of operations from and after July 1, 1997. (2)Includes Boomtown's results of operations for the six months ended June 30, 1997. 64 HOLLYWOOD PARK, INC. UNAUDITED CONSOLIDATED CONDENSED BALANCE SHEET AS OF SEPTEMBER 30, 1997 (PRIOR TO GIVING EFFECT TO THE REORGANIZATION)
HOLLYWOOD PARK, INC.(1) -------------- (IN THOUSANDS) ASSETS ------ Current Assets: Cash and cash equivalents..................................... $ 22,007 Restricted cash............................................... 1,209 Other receivables............................................. 10,049 Deferred tax assets........................................... 8,103 Prepaid expenses and other assets............................. 20,098 -------- Total current assets......................................... 61,466 Notes receivable................................................ 9,450 Property, plant and equipment, net.............................. 293,737 Goodwill, net................................................... 33,342 Other assets.................................................... 15,384 -------- $413,379 ======== LIABILITIES AND STOCKHOLDERS' EQUITY -------------------- Current Liabilities: Accounts payable.............................................. $ 10,625 Accrued liabilities........................................... 33,073 Current portion of notes payable.............................. 4,005 -------- Total current liabilities.................................... 47,703 Notes payable................................................... 132,163 Deferred tax liabilities........................................ 11,005 -------- Total liabilities............................................ 190,871 Minority interest............................................... 3,033 Stockholders' equity: Capital stock-- Common........................................................ 2,619 Capital in excess of par...................................... 222,023 Accumulated deficit........................................... (5,167) -------- Total stockholders' equity................................... 219,475 -------- $413,379 ========
- -------- (1) Includes the accounts of Boomtown, and all activity related to the issuance of the Notes and the redemption of the Boomtown Notes (as defined). 65 HOLLYWOOD PARK, INC. NOTES TO PRE-REIT UNAUDITED PRO FORMA COMBINED CONSOLIDATED STATEMENTS OF OPERATIONS ASSUMPTIONS. The Pre-REIT Pro Forma Statements of Operations for the year ended December 31, 1996, and for the nine months ended September 30, 1997, are presented as if the Boomtown acquisition, the divestiture of Boomtown Las Vegas, and the issuance of the Notes had taken place on January 1, 1996 and 1997, respectively. The Pre-REIT Pro Forma Statements of Operations have been prepared by combining the audited consolidated statements of operations of Hollywood Park for the year ended December 31, 1996, with the unaudited consolidated statements of operations of Boomtown for the year ended December 31, 1996, and by combining the unaudited consolidated statements of operations for the nine months ended September 30, 1997 for Hollywood Park, which includes Boomtown's results of operations from and after July 1, 1997, with Boomtown's results of operations for the six months ended June 30, 1997. (Historically, Boomtown reported results on a fiscal year end of September 30.) The Boomtown Merger was accounted for under the purchase method of accounting for a business combination. The total purchase price was based on the issuance of approximately 5,809,000 shares of Hollywood Park Common Stock at a price of $9.8125 per share. PRE-REIT PRO FORMA ADJUSTMENTS. The following adjustments have been made to the Pre-REIT Pro Forma Statements of Operations: (a) To eliminate the amortization of the issuance costs associated with Boomtown's 11.5% First Mortgage Notes due 2003 (the "Boomtown Notes"). (b) To record the amortization of the issuance costs associated with the Notes. (c) To record the amortization of the excess purchase price over net assets acquired. Total estimated excess purchase price of approximately $2.7 million will be amortized over 40 years on a straight line basis. (d) To eliminate the amortization of the discount associated with the Boomtown Notes. (e) To record the interest expense associated with the promissory note from the Company to the lessor of Boomtown's Las Vegas property as required by the agreement to divest this property. (f) To eliminate the interest expense associated with the Boomtown Notes. (g) To amortize the up-front loan fees associated with the Bank Credit Facility. (h) To record the interest expense associated with the Notes at 9.5%. (i) To record the estimated 40% tax benefit associated with the pro forma expenses, after adding back the amortization of goodwill (see (c)) which is not deductible for income tax purposes. EXTRAORDINARY ITEM. The accompanying pro forma statements of operations exclude an extraordinary loss of approximately $14.2 million (approximately $8.4 million net of tax effect) recorded by Boomtown in the period June 30, 1997, related to the tender and consent costs (approximately $9.0 million) and the write-off of deferred financing costs (approximately $5.2 million) associated with the early extinguishment of the Boomtown Notes. RECLASSIFICATIONS. Certain reclassifications have been made to Hollywood Park's and Boomtown's historical consolidated statements of operations to conform to the Pre-REIT Pro Forma Statements of Operations. PRO FORMA PER SHARE DATA. The pro forma per share amounts, as presented in the Pre-REIT Pro Forma Statements of Operations, were based on the weighted average number of shares outstanding during the period, inclusive of the effect, when dilutive, of the exercise of stock options. Included were approximately 5.4 million shares of Hollywood Park Common Stock issued in the Boomtown Merger (after giving effect to the retirement of the approximately 446,000 shares of Hollywood Park Common Stock that were issued in the Boomtown 66 HOLLYWOOD PARK, INC. NOTES TO PRE-REIT UNAUDITED PRO FORMA COMBINED CONSOLIDATED STATEMENTS OF OPERATIONS--(CONTINUED) Merger but then repurchased by Hollywood Park from the lessor of Boomtown's Las Vegas property concurrently with the disposition of that property). COMBINATION COSTS. Hollywood Park recorded costs of approximately $5.6 million related to the Boomtown Merger. These costs were incorporated into the price of the acquisition under the purchase method of accounting for a business combination. Costs incurred by Boomtown were expensed as incurred. 67 HOLLYWOOD PARK, INC. NOTES TO PRE-REIT UNAUDITED CONSOLIDATED CONDENSED BALANCE SHEET BASIS OF PRESENTATION. As of September 30, 1997, Hollywood Park's balance sheet reflects all activity related to the issuance of the Notes and the Boomtown Merger. EXTRAORDINARY ITEM. The historical "Hollywood Park, Inc." column on the accompanying pro forma balance sheet reflects the write-off of the deferred financing costs (approximately $5.2 million) associated with the Boomtown Notes, which was recorded by Boomtown in the period ended June 30, 1997, and it reflects a corresponding reduction to retained earnings. 68 HOLLYWOOD PARK REALTY ENTERPRISES, INC. UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 1996 (AFTER GIVING EFFECT TO THE REORGANIZATION)
PRE-REIT PRO FORMA PRE-REIT HOLLYWOOD PRO FORMA REIT POST-REIT PARK, INC. HP REALTY PRO FORMA PRO FORMA CONSOLIDATED RECLASSIFIED ADJUSTMENTS HP REALTY ------------ ------------ ----------- --------- (IN THOUSANDS, EXCEPT PER SHARE DATA) REVENUES: Gaming..................... $208,699 $ 0 $ 0 $ 0 Racing..................... 71,308 0 0 0 Food and beverage.......... 22,737 0 0 0 Hotel and recreational vehicle park.............. 1,683 0 0 0 Truck stop and service station................... 14,700 0 0 0 Rental of property......... 0 0 14,623(1) 14,623 Other...................... 17,456 1,154 0 1,154 -------- ------- ------- ------- 336,583 1,154 14,623 15,777 -------- ------- ------- ------- EXPENSES: Gaming..................... 116,969 0 0 0 Racing..................... 30,167 0 0 0 Food and beverage.......... 29,728 0 0 0 Hotel and recreational vehicle park.............. 639 0 0 0 Truck stop and service station................... 13,379 0 0 0 Administrative............. 87,226 937 0 937 Other...................... 6,474 675 0 675 Depreciation and amortization.............. 20,818 6,134 0 6,134 Hollywood Park/Boomtown Merger costs.............. 1,291 0 0 0 Write off of investment in a business................ 11,412 0 0 0 Loss on sale of business... 36,563 0 0 0 -------- ------- ------- ------- 354,666 7,746 0 7,746 -------- ------- ------- ------- Operating income (loss)...... (18,083) (6,592) 14,623 8,031 Interest expense............. 15,468 134 0 134 -------- ------- ------- ------- Income (loss) before minority interests and income taxes.. (33,551) (6,726) 14,623 7,897 Minority interest............ (149) 0 0 0 -------- ------- ------- ------- Income (loss) before income taxes....................... (33,402) (6,726) 14,623 7,897 Income tax expense (benefit)................... 4,121 (1,597) 1,597(2) 0 -------- ------- ------- ------- Income (loss) before extraordinary item.......... $(37,523) $(5,129) $13,026 $ 7,897 ======== ======= ======= ======= Dividend requirement on convertible preferred stock....................... $ 1,925 $ 1,925 $ 0 $ 1,925 Income available to common shareholders before extraordinary item.......... $(39,448) $(7,054) $13,026 $ 5,972 ======== ======= ======= ======= Per common share: Income before extraordinary item--primary............. $ 0.25 Income before extraordinary item--fully diluted....... $ 0.25 Number of common shares-- primary..................... 23,868 Number of common shares-- fully diluted............... 26,160
69 HOLLYWOOD PARK OPERATING COMPANY UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 1996 (AFTER GIVING EFFECT TO THE REORGANIZATION)
PRE-REIT PRE-REIT PRO FORMA PRO FORMA POST-REIT HOLLYWOOD HP OPERATING REIT PRO FORMA PARK, INC. COMPANY PRO FORMA HP OPERATING CONSOLIDATED RECLASSIFIED ADJUSTMENTS COMPANY ------------ ------------ ----------- ------------ (IN THOUSANDS, EXCEPT PER SHARE DATA) REVENUES: Gaming................ $208,699 $208,699 $ 0 $208,699 Racing................ 71,308 71,308 0 71,308 Food and beverage..... 22,737 22,737 0 22,737 Hotel and recreational vehicle park......... 1,683 1,683 0 1,683 Truck stop and service station.............. 14,700 14,700 0 14,700 Other................. 17,456 16,302 0 16,302 -------- -------- -------- -------- 336,583 335,429 0 335,429 -------- -------- -------- -------- EXPENSES: Gaming................ 116,969 116,969 0 116,969 Racing................ 30,167 30,167 0 30,167 Food and beverage..... 29,728 29,728 0 29,728 Hotel and recreational vehicle park......... 639 639 0 639 Truck stop and service station.............. 13,379 13,379 0 13,379 Administrative........ 87,226 86,289 0 86,289 Rental of property.... 0 0 14,623 (3) 14,623 Other................. 6,474 5,799 0 5,799 Depreciation and amortization......... 20,818 14,684 0 14,684 Hollywood Park/Boomtown Merger costs................ 1,291 1,291 0 1,291 Write off of investment in a business............. 11,412 11,412 0 11,412 Loss on sale of business............. 36,563 36,563 0 36,563 -------- -------- -------- -------- 354,666 346,920 14,623 361,543 -------- -------- -------- -------- Operating loss.......... (18,083) (11,491) (14,623) (26,114) Interest expense...... 15,468 15,334 0 15,334 -------- -------- -------- -------- Loss before minority interests and income taxes.................. (33,551) (26,825) (14,623) (41,448) Minority interest..... (149) (149) 0 (149) -------- -------- -------- -------- Loss before income taxes.................. (33,402) (26,676) (14,623) (41,299) Income tax expense (benefit)............ 4,121 5,718 (5,849)(4) (131) -------- -------- -------- -------- Loss before extraordinary item..... $(37,523) $(32,394) $ (8,774) $(41,168) ======== ======== ======== ======== Per common share: Loss before extraordinary item-- primary.............. $ (1.72) Loss before extraordinary item-- fully diluted........ $ (1.72) Number of common shares--primary........ 23,868 Number of common shares--fully diluted... 26,160
70 HOLLYWOOD PARK REALTY ENTERPRISES, INC. UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1997 (AFTER GIVING EFFECT TO THE REORGANIZATION)
PRE-REIT PRO FORMA PRE-REIT HOLLYWOOD PRO FORMA REIT POST-REIT PARK, INC. HP REALTY PRO FORMA PRO FORMA CONSOLIDATED RECLASSIFIED ADJUSTMENTS HP REALTY ------------ ------------ ----------- --------- (IN THOUSANDS, EXCEPT PER SHARE DATA) REVENUES: Gaming..................... $167,339 $ 0 $ 0 $ 0 Racing..................... 48,084 0 0 0 Food and beverage.......... 17,937 0 0 0 Hotel and recreational vehicle park.............. 1,376 0 0 0 Truck stop and service station................... 11,467 0 0 0 Rental of property......... 0 0 9,810(1) 9,810 Other...................... 13,102 940 0 940 -------- ------- ------ ------ 259,305 940 9,810 10,750 -------- ------- ------ ------ EXPENSES: Gaming..................... 88,003 0 0 0 Racing..................... 21,615 0 0 0 Food and beverage.......... 23,503 0 0 0 Hotel and recreational vehicle park.............. 533 0 0 0 Truck stop and service station................... 10,507 0 0 0 Administrative............. 62,827 691 0 691 Other...................... 5,078 510 0 510 Depreciation and amortization.............. 20,717 4,628 0 4,628 Hollywood Park/Boomtown Merger costs.............. 1,487 0 0 0 Loss on sale of business... 357 0 0 0 -------- ------- ------ ------ 234,627 5,829 0 5,829 -------- ------- ------ ------ Operating income (loss)...... 24,678 (4,889) 9,810 4,921 Interest expense............. 11,051 155 0 155 -------- ------- ------ ------ Income (loss) before minority interests and income taxes.. 13,627 (5,044) 9,810 4,766 Minority interest............ 80 0 0 0 -------- ------- ------ ------ Income (loss) before income taxes....................... 13,547 (5,044) 9,810 4,766 Income tax expense (benefit)................... 5,832 (2,018) 2,018(2) 0 -------- ------- ------ ------ Income (loss) before extraordinary item.......... $ 7,715 $(3,026) $7,792 $4,766 ======== ======= ====== ====== Dividend requirement on convertible preferred stock....................... $ 1,520 $ 1,520 $ 0 $1,520 Income (loss) available to common shareholders before extraordinary item.......... $ 6,195 $(4,546) $7,792 $3,246 ======== ======= ====== ====== Per common share: Income before extraordinary item--primary............. $ 0.13 Number of common shares-- primary..................... 24,073
71 HOLLYWOOD PARK OPERATING COMPANY UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1997 (AFTER GIVING EFFECT TO THE REORGANIZATION)
PRE-REIT PRE-REIT PRO FORMA PRO FORMA POST-REIT HOLLYWOOD HP OPERATING REIT PRO FORMA PARK, INC. COMPANY PRO FORMA HP OPERATING CONSOLIDATED RECLASSIFIED ADJUSTMENTS COMPANY ------------ ------------ ----------- ------------ (IN THOUSANDS, EXCEPT PER SHARE DATA) REVENUES: Gaming................. $167,339 $167,339 $ 0 $167,339 Racing................. 48,084 48,084 0 48,084 Food and beverage...... 17,937 17,937 0 17,937 Hotel and recreational vehicle park.......... 1,376 1,376 0 1,376 Truck stop and service station............... 11,467 11,467 0 11,467 Other.................. 13,102 12,162 0 12,162 -------- -------- ------- -------- 259,305 258,365 0 258,365 -------- -------- ------- -------- EXPENSES: Gaming................. 88,003 88,003 0 88,003 Racing................. 21,615 21,615 0 21,615 Food and beverage...... 23,503 23,503 0 23,503 Hotel and recreational vehicle park.......... 533 533 0 533 Truck stop and service station............... 10,507 10,507 0 10,507 Administrative......... 62,827 62,136 0 62,136 Rental of property..... 0 0 9,810 (3) 9,810 Other.................. 5,078 4,568 0 4,568 Depreciation and amortization.......... 20,717 16,089 0 16,089 Hollywood Park/Boomtown Merger costs.......... 1,487 1,487 0 1,487 Loss on sale of business.............. 357 357 0 357 -------- -------- ------- -------- 234,627 228,798 9,810 238,608 -------- -------- ------- -------- Operating income (loss).. 24,678 29,567 (9,810) 19,757 Interest expense......... 11,051 10,896 0 10,896 -------- -------- ------- -------- Income (loss) before minority interests and income taxes............ 13,627 18,671 (9,810) 8,861 Minority interest........ 80 80 0 80 -------- -------- ------- -------- Income (loss) before income taxes............ 13,547 18,591 (9,810) 8,781 Income tax expense (benefit)............... 5,832 7,849 (3,924)(4) 3,925 -------- -------- ------- -------- Income (loss) before extraordinary item...... $ 7,715 $ 10,742 $(5,886) $ 4,856 ======== ======== ======= ======== Per common share: Income before extraordinary item-- primary............... $ 0.20 Number of common shares-- primary................. 24,073
72 HOLLYWOOD PARK REALTY ENTERPRISES, INC. UNAUDITED PRO FORMA CONSOLIDATED CONDENSED BALANCE SHEET AS OF SEPTEMBER 30, 1997 (AFTER GIVING EFFECT TO THE REORGANIZATION)
PRE-REIT PRE-REIT PRO FORMA PRO FORMA HOLLYWOOD HOLLYWOOD REIT POST-REIT PARK, INC. PARK, INC. PRO FORMA PRO FORMA CONSOLIDATED RECLASSIFIED ADJUSTMENTS HP REALTY ------------ ------------ ----------- --------- (IN THOUSANDS) ASSETS ------ Real estate investments: Hollywood Park Race Track and Casino, net........... $ 0 $ 85,732 $ 0 $ 85,732 Turf Paradise Race Track, net....................... 0 10,251 0 10,251 -------- -------- ------- -------- 0 95,983 0 95,983 Cash and cash equivalents.... 22,007 3,567 0 3,567 Restricted cash.............. 1,209 0 0 0 Other receivables............ 10,049 61 0 61 Deferred tax assets.......... 8,103 0 0 0 Prepaid expenses and other assets...................... 20,098 198 0 198 Notes receivable............. 9,450 788 0 788 Property, plant and equipment, net.............. 293,737 0 0 0 Goodwill, net................ 33,342 0 0 0 Other assets................. 15,384 102 0 102 -------- -------- ------- -------- $413,379 $100,699 $ 0 $100,699 ======== ======== ======= ======== LIABILITIES AND STOCKHOLDERS' EQUITY -------------------- Liabilities: Accounts payable........... $ 10,625 $ 459 $ 0 $ 459 Accrued liabilities........ 33,073 6,062 2,600 (1) 44,149 -- -- 6,487 (2) -- -- -- 29,000 (3) -- Notes payable.............. 136,168 0 0 0 Deferred tax liabilities... 11,005 3,181 (3,181)(4) 0 -------- -------- ------- -------- Total liabilities.......... 190,871 9,702 34,906 44,608 Minority interest............ 3,033 0 0 0 Stockholders' equity: Capital stock-- Common..................... 2,619 2,619 0 2,619 Capital in excess of par... 222,023 133,783 0 133,783 Accumulated deficit........ (5,167) (45,405) (2,600)(1) (80,311) -- -- (6,487)(2) -- -- -- (29,000)(3) -- -- -- 3,181 (4) -- -------- -------- ------- -------- Total stockholders' equity.................... 219,475 90,997 (34,906) 56,091 -------- -------- ------- -------- $413,379 $100,699 $ 0 $100,699 ======== ======== ======= ========
73 HOLLYWOOD PARK OPERATING COMPANY UNAUDITED PRO FORMA CONSOLIDATED CONDENSED BALANCE SHEET AS OF SEPTEMBER 30, 1997 (AFTER GIVING EFFECT TO THE REORGANIZATION)
PRE-REIT PRE-REIT PRO FORMA PRO FORMA POST-REIT HOLLYWOOD HP OPERATING REIT PRO FORMA PARK, INC. COMPANY PRO FORMA HP OPERATING CONSOLIDATED RECLASSIFIED ADJUSTMENTS COMPANY ------------ ------------ ----------- ------------ (IN THOUSANDS) ASSETS ------ Current Assets: Cash and cash equivalents............ $ 22,007 $ 18,440 $ 0 $ 18,440 Restricted cash......... 1,209 1,209 0 1,209 Other receivables....... 10,049 10,029 0 10,029 Deferred tax assets..... 8,103 8,104 0 8,104 Prepaid expenses and other assets........... 20,098 19,854 0 19,854 -------- -------- ------- -------- Total current assets.... 61,466 57,636 0 57,636 Notes receivable........ 9,450 8,662 0 8,662 Property, plant and equipment, net......... 293,737 197,754 0 197,754 Goodwill, net........... 33,342 33,342 0 33,342 Other assets............ 15,384 15,283 0 15,283 -------- -------- ------- -------- $413,379 $312,677 $ 0 $312,677 ======== ======== ======= ======== LIABILITIES AND STOCKHOLDERS' EQUITY -------------------- Current Liabilities: Accounts payable........ $ 10,625 $ 9,879 $ 0 $ 9,879 Accrued liabilities..... 33,073 27,296 8,576 (5) 35,872 Current portion of notes payable................ 4,005 4,004 0 4,004 -------- -------- ------- -------- Total current liabilities............ 47,703 41,179 8,576 49,755 Notes payable........... 132,163 132,163 0 132,163 Deferred tax liabilities............ 11,005 7,824 0 7,824 -------- -------- ------- -------- Total liabilities....... 190,871 181,166 8,576 189,742 Minority interest....... 3,033 3,033 0 3,033 Stockholders' equity: Capital stock-- Common.................. 2,619 0 2,619 (6) 2,619 Capital in excess of par.................... 222,023 88,241 (2,619)(6) 85,622 Retained earnings (accumulated deficit).. (5,167) 40,237 (8,576)(5) 31,661 -------- -------- ------- -------- Total stockholders' equity................. 219,475 128,478 (8,576) 119,902 -------- -------- ------- -------- $413,379 $312,677 $ 0 $312,677 ======== ======== ======= ========
74 HOLLYWOOD PARK REALTY ENTERPRISES, INC. HOLLYWOOD PARK OPERATING COMPANY NOTES TO POST-REIT UNAUDITED PRO FORMA CONSOLIDATED STATEMENTS OF OPERATIONS ASSUMPTIONS. The HP Realty and HP Operating Company Post-REIT Pro Forma Statements of Operations for the year ended December 31, 1996, and for the nine months ended September 30, 1997, have been prepared by starting with the Pre-REIT Pro Forma Statements of Operations, and reclassifying certain Pre- REIT revenues and expenses to generate the Pre-REIT reclassified Pro Forma Statements of Operations. RECLASSIFICATIONS. Reclassifications were made between the historical Hollywood Park, Inc. statements of operations and the historical HP Operating Company statements of operations to reclassify certain expenses between Hollywood Park, Inc. and HP Operating Company. The reclassifications included equity in subsidiaries previously owned by Hollywood Park, Inc. (see Pre-REIT and Post-REIT corporate organization charts, presented elsewhere herein), staff salaries and benefits, legal fees, expansion costs, Turf Paradise Trailer Park expenses, and similar historical expenses. Turf Paradise Trailer Park revenue was reclassified to Hollywood Park, Inc. PRO FORMA ADJUSTMENTS. The following adjustments have been made to generate the Post-REIT Pro Forma Statements of Operations: (1) To record rental revenue relating to the lease of real estate assets from HP Realty to HP Operating Company. (2) To eliminate the tax benefit reclassified to HP Realty. The Post-REIT Pro Forma Statements of Operations have been prepared assuming that HP Realty satisfies the requirements for qualification and taxation as a REIT. Therefore, no corporate tax provision has been included in the accompanying Post-REIT Pro Forma Statements of Operations for HP Realty. For a discussion relating to HP Realty's qualification and taxation as a REIT, see "Risk Factors--Absence of Rulings from the Internal Revenue Service," "--Potential Consequences of Proposed Legislation," "--Consequences of Failure to Qualify as a REIT" and "Federal Income Tax Matters--Federal Income Taxation of HP Realty and Requirements for Qualification as REIT." (3) To record rental expense relating to the lease of real estate assets from HP Realty to HP Operating Company. (4) To record 40% tax benefit associated with the rental expense. The Post-REIT Pro Forma Statements of Operations do not include pro forma adjustments for any additional expenses expected to be incurred by HP Operating Company as a result of the Reorganization such as directors fees, shareholder relations expenses, or other miscellaneous expenses. EARNINGS PER SHARE. The pro forma per share amounts were based on the weighted average number of shares outstanding during the period, inclusive of the effect, when dilutive of the exercise of stock options. NONRECURRING CHARGE. The Post-REIT Pro Forma Statements of Operations do not reflect the one-time charge for the estimated combined federal and state tax liability, assuming the HPOC Spin-Off is a taxable transaction, of approximately $29 million, which is described in note (3) to the Post-REIT Pro Forma Balance Sheet. 75 HOLLYWOOD PARK REALTY ENTERPRISES, INC. HOLLYWOOD PARK OPERATING COMPANY NOTES TO POST-REIT UNAUDITED PRO FORMA CONSOLIDATED STATEMENTS OF OPERATIONS--(CONTINUED) TURF PARADISE. The Post-REIT Pro Forma Statements of Operations have been prepared assuming that the real estate assets of Turf Paradise are retained by a wholly-owned subsidiary of HP Realty, thereby generating rental revenue for HP Realty and rental expense for HP Operating Company. If Hollywood Park decides, based on the facts and circumstances existing immediately prior to the completion of the Reorganization transactions, to report the distribution of the stock of HP Operating Company as a tax-free spin-off with the IRS, Turf Paradise's real estate assets may be transferred (along with Turf Paradise's operating businesses) in the Reorganization to a HP Operating Company subsidiary instead of being retained by a subsidiary of HP Realty. See "The Reorganization--Effect of the Reorganization" and "Federal Income Tax Matters." The following table summarizes the impact on the Post-REIT Pro Forma Statements of Operations if Turf Paradise's real estate assets are transferred to a HP Operating Company subsidiary instead of being retained by a subsidiary of HP Realty:
POST-REIT POST-REIT PRO FORMA PRO FORMA STATEMENT OF STATEMENT OF OPERATIONS OPERATIONS INCLUDING EXCLUDING TURF PARADISE TURF PARADISE REAL ESTATE REAL ESTATE IN THE REIT FROM THE REIT ------------- ------------- FOR THE YEAR ENDED DECEMBER 31, 1996 --------------------------- (IN THOUSANDS, EXCEPT PER SHARE DATA) HP REALTY POST-REIT: Income before extraordinary item................. $ 7,897 $ 6,612 Income available to common shareholders before extraordinary item.............................. $ 5,972 $ 4,687 Earnings per share before extraordinary item..... $ 0.25 $ 0.20 HP OPERATING COMPANY POST-REIT: Loss before extraordinary item (a)............... $(41,168) $(40,513) Loss per share before extraordinary item......... $ (1.72) $ (1.70) FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1997 --------------------------- (IN THOUSANDS, EXCEPT PER SHARE DATA) HP REALTY POST-REIT: Income before extraordinary item................. $ 4,766 $ 3,542 Income available to common shareholders before extraordinary item.............................. $ 3,246 $ 2,022 Earnings per share before extraordinary item-- primary......................................... $ 0.13 $ 0.08 HP OPERATING COMPANY POST-REIT: Income before extraordinary item................. $ 4,856 $ 6,031 Earnings per share before extraordinary item-- primary ........................................ $ 0.20 $ 0.25
- -------- (a) Includes non-recurring expenses of $1,291,000 of Boomtown Merger expense, $11,412,000 of expense for the write off of Hollywood Park's investment in Sunflower, and $36,563,000 for Boomtown's loss on the sale of its Las Vegas property. 76 HOLLYWOOD PARK REALTY ENTERPRISES, INC. HOLLYWOOD PARK OPERATING COMPANY NOTES TO POST-REIT UNAUDITED PRO FORMA CONSOLIDATED CONDENSED BALANCE SHEETS ASSUMPTIONS. The HP Realty, HP Operating Company and Combined Post-REIT Pro Forma Balance Sheets, as of September 30, 1997, have been prepared by starting with the Pre-REIT unaudited Balance Sheet, and reclassifying certain Pre-REIT assets and liabilities to generate the Pre-REIT reclassified Pro Forma Balance Sheets. RECLASSIFICATIONS. Reclassifications were made between Hollywood Park, Inc.'s historical balance sheet and HP Operating Company's historical balance sheet. The reclassifications primarily related to the transfer of certain real estate assets to Hollywood Park, Inc., and the reclassification of deferred tax assets and liabilities. Similar reclassifications were made between Turf Paradise, Inc. (which will be a wholly owned subsidiary of HP Realty) and Turf Paradise Operating Company (which will be a wholly owned subsidiary of HP Operating Company). PRO FORMA ADJUSTMENTS. The following adjustments have been made to generate the Post-REIT Pro Forma Balance Sheets: (1) To accrue the estimated legal, and other professional costs associated with the Reorganization. (2) To accrue dividends payable to shareholders for Earnings and Profits allocable to the pre- Reorganization period. (3) To accrue estimated combined federal and state tax liability, assuming the HPOC Spin-Off is a taxable transaction, of approximately $29 million. This amount is based on Hollywood Park's tax basis in its HP Operating Company shares as of December 31, 1997 (which amount may increase or decrease prior to completion of the Reorganization on account of 1998 events) and Hollywood Park's estimate that the aggregate fair market value of the shares of HP Operating Company to be distributed in the HPOC Spin- Off would be approximately $130 million (approximately six times estimated 1997 EBITDA, less the amount of certain liabilities). However, there can be no assurance that the fair market value of the HP Operating Company shares would not be found to be significantly greater than $130 million. Any additional value in excess of the $130 million valuation attributed to the HP Operating Company shares distributed to Hollywood Park stockholders in the HPOC Spin-Off would increase the combined state and federal tax liability of HP Realty by approximately 41% of the amount of such additional value, and would also result in increased tax liabilities for Hollywood Park's stockholders. See "Risk Factors--Uncertain Amount of Corporate and Stockholder Tax Liability" and "Federal Income Tax Matters-- Federal Income Tax Consequences of Contributions and Spin-Offs." (4) To eliminate reclassified deferred tax liabilities. (5) To accrue for the Excess Loss Accounts related to the stock of Sunflower and Hollywood Park Food Services, Inc. (a wholly owned subsidiary of HP Operating Company) owned by Hollywood Park, Inc., which will be triggered by the Reorganization. Under federal tax law, these Excess Loss Accounts (i.e., the amount by which subsidiary losses and other negative adjustments exceed Hollywood Park's basis in the stock of these subsidiaries) are required to be included in Hollywood Park's income immediately before Hollywood Park's transfer of these subsidiaries to HP Operating Company. (6) To record the effect of the stock split of HP Operating Company Common Stock to be paired with HP Realty Common Stock. With respect to any asset as to which there is an excess of fair market value over HP Realty's adjusted basis ("Built in Gain") as of the beginning of the ten-year period starting on the date on which such asset was acquired by HP Realty (the "Recognition Period"), if HP Realty recognizes gain on the disposition of such asset during the Recognition Period, then, to the extent of the Built in Gain, such gain will be subject to tax at the highest regular corporate tax rate. No amount has been recorded in the accompanying Pro Forma Statements to reflect any such potential liability. 77 HOLLYWOOD PARK REALTY ENTERPRISES, INC. HOLLYWOOD PARK OPERATING COMPANY NOTES TO POST-REIT UNAUDITED PRO FORMA CONSOLIDATED CONDENSED BALANCE SHEETS--(CONTINUED) TURF PARADISE. The Post-REIT Pro Forma Balance Sheets have been prepared assuming that the real estate assets of Turf Paradise are retained by a wholly-owned subsidiary of HP Realty and thus are included in the REIT. The following table summarizes the impact on the Post-REIT Pro Forma Balance Sheets if the real estate assets of Turf Paradise are transferred to a subsidiary of HP Operating Company, instead of being retained by a subsidiary of HP Realty:
AS OF SEPTEMBER 30, 1997 ------------------------------------------------- POST-REIT PRO FORMA POST-REIT PRO FORMA BALANCE SHEET BALANCE SHEET INCLUDING TURF PARADISE EXCLUDING TURF PARADISE REAL ESTATE IN THE REIT REAL ESTATE FROM THE REIT ----------------------- ------------------------- (IN THOUSANDS) HP REALTY POST-REIT: Real estate investments, net....................... $ 95,983 $ 85,732 Total assets............... $100,699 $ 90,346 Total liabilities.......... $ 44,608 $ 44,608 Shareholders' equity....... $ 56,091 $ 45,738 HP OPERATING COMPANY POST- REIT: Property, plant and equipment, net............ $197,754 $208,005 Total assets............... $312,677 $323,030 Total liabilities.......... $189,742 $189,742 Minority interests......... $ 3,033 $ 3,033 Shareholders' equity....... $119,902 $130,255
78 SELECTED HISTORICAL AND PRO FORMA FINANCIAL DATA The following selected historical financial data of Hollywood Park and Boomtown has been derived from their respective historical financial statements and should be read in conjunction with such consolidated financial statements and the notes thereto included elsewhere herein. The Hollywood Park and Boomtown unaudited historical financial statement data as of and for the nine months ended September 30, 1997 and 1996 has been prepared on the same basis as the historical information derived from the audited financial statements and, in the opinion of management, contains all adjustments, consisting only of normal recurring accruals, necessary for the fair presentation of the results of operations for such periods and financial position as of such dates. Historically, Boomtown has reported operating results on a fiscal year end of September 30. The selected unaudited pro forma combined consolidated condensed financial data (the "Selected Pro Forma Financial Data") is first presented prior to giving effect to the Reorganization ("Pre-REIT") by combining the financial results of Hollywood Park and Boomtown. Following the Pre-REIT Selected Pro Forma Financial Data, are Selected Pro Forma Financial Data schedules after giving effect to the Reorganization ("Post-REIT") for each of HP Realty and HP Operating Company. The Pre-REIT Selected Pro Forma Financial Data was derived from the unaudited pro forma combined consolidated condensed Pre-REIT financial statements appearing elsewhere herein, which give effect to the Boomtown Merger as a purchase, the divestiture of Boomtown's Las Vegas property, the issuance of the Notes and the application of the proceeds therefrom. For comparison purposes, the Pre-REIT Selected Pro Forma Financial Data is presented for both Hollywood Park and Boomtown with a year end of December 31. The Post-REIT Selected Pro Forma Financial Data was derived from the unaudited pro forma combined consolidated condensed Post-REIT financial statements appearing elsewhere herein, which include pro forma adjustments to give effect to the Reorganization, and assume that the real property assets of Turf Paradise will be retained by a subsidiary of HP Realty. Certain amounts from the Pre-REIT Hollywood Park and Pre-REIT Boomtown selected historical financial data have been reclassified to conform with the selected presentation hereto. The pro forma information is presented for illustrative purposes only and is not necessarily indicative of the operating results or financial position that would have occurred had the Boomtown Merger, the issuance of the Notes and the Reorganization been consummated in an earlier period, nor is it necessarily indicative of future operating results or financial position. 79 HOLLYWOOD PARK, INC. SELECTED HISTORICAL FINANCIAL DATA (PRIOR TO GIVING EFFECT TO THE REORGANIZATION)
NINE MONTHS YEARS ENDED ENDED DECEMBER 31, SEPTEMBER 30, ------------------------------------------------ ------------------ 1992 1993 1994 1995 1996 1996 1997 -------- -------- -------- -------- -------- -------- -------- (UNAUDITED) (IN THOUSANDS, EXCEPT PER SHARE DATA) STATEMENT OF OPERATIONS DATA: REVENUES: Gaming................. $ 0 $ 0 $ 11,745 $ 26,656 $ 50,717 $ 37,917 $ 83,990 Racing................. 66,983 63,850 78,719 79,862 71,308 50,897 48,084 Food and beverage...... 10,957 10,908 20,540 19,783 13,947 10,516 13,016 Other.................. 3,004 4,227 6,320 4,271 7,253 5,197 13,259 -------- -------- -------- -------- -------- -------- -------- 80,944 78,985 117,324 130,572 143,225 104,527 158,349 -------- -------- -------- -------- -------- -------- -------- EXPENSES: Gaming................. 0 0 0 5,291 27,249 19,516 45,117 Racing................. 21,097 20,860 23,393 30,960 30,167 21,623 21,615 Food and beverage...... 8,922 9,400 21,852 24,749 19,573 14,058 16,920 Administrative and other................. 33,480 32,538 51,151 48,647 43,962 33,603 46,544 Depreciation and amortization.......... 5,899 6,402 9,563 11,384 10,695 7,898 11,939 Non-recurring expenses.............. 0 850 2,964 6,088 11,412 11,412 609 -------- -------- -------- -------- -------- -------- -------- 69,398 70,050 108,923 127,119 143,058 108,110 142,744 -------- -------- -------- -------- -------- -------- -------- Operating income (loss)................. 11,546 8,935 8,401 3,453 167 (3,583) 15,605 Interest expense....... 4,883 1,517 3,061 3,922 942 918 3,782 -------- -------- -------- -------- -------- -------- -------- Income (loss) before mi- nority interests and income taxes........... 6,663 7,418 5,340 (469) (775) (4,501) 11,823 Minority interest...... 0 0 0 0 15 0 80 -------- -------- -------- -------- -------- -------- -------- Income (loss) before in- come taxes and extraor- dinary item............ 6,663 7,418 5,340 (469) (790) (4,501) 11,743 Income tax expense..... 3,135 1,025 1,568 693 3,459 3,025 4,624 -------- -------- -------- -------- -------- -------- -------- Income (loss) before ex- traordinary item....... 3,528 6,393 3,772 (1,162) (4,249) (7,526) 7,119 Extraordinary item--Uti- lization of tax benefits from net operating loss carryforwards.......... 1,894 0 0 0 0 0 0 -------- -------- -------- -------- -------- -------- -------- Net income (loss)....... $ 5,422 $ 6,393 $ 3,772 $ (1,162) $ (4,249) $ (7,526) $ 7,119 ======== ======== ======== ======== ======== ======== ======== Dividend requirements on convertible preferred stock.................. $ 0 $ 1,718 $ 1,925 $ 1,925 $ 1,925 $ 1,443 $ 1,520 Net income (loss) at- tributable to (allo- cated to) common share- holders................ $ 5,422 $ 4,675 $ 1,847 $ (3,087) $ (6,174) $ (8,969) $ 5,599 ======== ======== ======== ======== ======== ======== ======== PER COMMON SHARE: Income (loss) before extraordinary item.... $ 0.27 $ 0.30 $ 0.10 $ (0.17) $ (0.33) $ (0.48) $ 0.27 Net income (loss)--pri- mary.................. $ 0.41 $ 0.30 $ 0.10 $ (0.17) $ (0.33) $ (0.48) $ 0.27 Net income (loss)-- fully diluted......... $ 0.41 $ 0.30 $ 0.10 $ (0.17) $ (0.33) $ (0.48) -- Cash dividends......... $ 0.04 $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00 Number of common shares--primary........ 13,084 15,418 18,224 18,399 18,505 18,605 20,596 Number of common shares--fully diluted.. 13,084 17,465 20,516 20,691 20,797 20,896 -- OTHER DATA: Cash flows provided by (used in): Operating activities... $ 11,262 $ 13,280 $ (7,287) $ 20,291 $ 13,137 $ 11,761 $ 6,059 Investing activities... (5,250) (32,677) (7,331) (31,322) (19,893) (14,692) (5,884) Financing activities... (4,416) 74,391 (8,877) (3,685) (3,728) (3,792) 9,910 Capital expenditures... 5,319 12,902 27,584 25,150 23,786 17,969 23,059 BALANCE SHEET DATA: (A) Total assets........... $ 90,219 $176,424 $246,573 $283,303 $205,886 $198,631 $413,379 Other liabilities...... 34,494 21,876 36,518 101,928 47,444 43,522 61,741 Long term obligations.. 45,538 348 42,800 15,629 282 282 132,163 Stockholders' equity... 10,187 154,200 167,255 165,746 158,160 154,827 219,475
- ------- (a) Balance sheet data as of September 30, 1997, includes the accounts of Boomtown. 80 BOOMTOWN, INC. SELECTED HISTORICAL FINANCIAL DATA (PRIOR TO GIVING EFFECT TO THE REORGANIZATION)
NINE MONTHS ENDED JUNE 30, YEARS ENDED SEPTEMBER 30, (UNAUDITED) ---------------------------------------------- ------------------ 1992 1993 1994 1995 1996 1996 1997 ------- -------- -------- -------- -------- -------- -------- (IN THOUSANDS, EXCEPT PER SHARE DATA) STATEMENT OF OPERATIONS DATA: Revenues: Gaming................. $42,009 $ 42,416 $ 76,326 $189,306 $188,368 $139,350 $144,353 Food and beverage...... 3,785 3,877 7,973 15,613 16,314 12,293 13,036 Hotel, truck stop and other................. 10,059 12,780 21,700 29,929 35,553 24,882 24,070 ------- -------- -------- -------- -------- -------- -------- 55,853 59,073 105,999 234,848 240,235 176,525 181,459 ------- -------- -------- -------- -------- -------- -------- EXPENSES: Gaming................. 20,677 21,732 38,753 98,637 102,634 76,206 83,118 Food and beverage...... 3,170 3,349 8,179 17,639 19,213 14,569 17,159 General and administra- tive and other........ 18,750 21,133 41,019 97,822 91,977 66,189 60,355 Depreciation and amor- tization.............. 3,528 3,839 5,891 10,422 10,618 8,135 11,636 Compensation stock appreciation rights and stock options..... 2,229 0 0 0 0 0 0 Pre-opening expenses... 0 0 15,787 0 0 0 0 Loss on marketable se- curities.............. 0 0 1,691 0 0 0 0 Hollywood Park/Boomtown merger costs.......... 0 0 0 0 301 712 1,610 Loss on sale of a busi- ness.................. 0 0 0 0 36,563 36,563 1,271 ------- -------- -------- -------- -------- -------- -------- 48,354 50,053 111,320 224,520 261,306 202,374 175,149 ------- -------- -------- -------- -------- -------- -------- Operating income (loss)................. 7,499 9,020 (5,321) 10,328 (21,071) (25,849) 6,310 Interest expense....... 3,369 1,033 5,632 13,434 13,838 10,362 10,439 ------- -------- -------- -------- -------- -------- -------- Income (loss) before mi- nority interests and income taxes........... 4,130 7,987 (10,953) (3,106) (34,909) (36,211) (4,129) Minority interest...... 0 0 (351) (1,105) (645) (878) 96 ------- -------- -------- -------- -------- -------- -------- Income (loss) before in- come taxes and extraor- dinary item............ 4,130 7,987 (10,602) (2,001) (34,264) (35,333) (4,225) Income tax expense (ben- efit).................. 1,669 3,035 (2,779) 876 794 (50) (2,103) ------- -------- -------- -------- -------- -------- -------- Income (loss) before ex- traordinary item....... 2,461 4,952 (7,823) (2,877) (35,058) (35,283) (2,122) Extraordinary item (a).. 0 (370) (229) 0 0 0 8,420 ------- -------- -------- -------- -------- -------- -------- Net income (loss)....... $ 2,461 $ 4,582 $ (8,052) $ (2,877) $(35,058) $(35,283) $(10,542) ======= ======== ======== ======== ======== ======== ======== Dividend requirements on preferred stock........ $ 200 $ 50 $ 0 $ 0 $ 0 $ 0 $ 0 Net income (loss) at- tributable to (allo- cated to) common shareholders........... $ 2,261 $ 4,532 $ (8,052) $ (2,877) $(35,058) $(35,283) $(10,542) ======= ======== ======== ======== ======== ======== ======== PER COMMON SHARE: Income (loss) before extraordinary item.... $ 0.61 $ 0.65 $ (0.90) $ (0.31) $ (3.79) $ (3.82) $ (0.21) Net income (loss)...... $ 0.61 $ 0.60 $ (0.93) $ (0.31) $ (3.79) $ (3.82) $ (1.07) Number of common shares................. 3,708 7,503 8,690 9,228 9,248 9,243 9,830 BALANCE SHEET DATA: Total assets........... $55,916 $108,616 $238,467 $239,198 $205,988 $204,186 $ -- (b) Other liabilities...... 10,632 7,581 25,309 27,405 31,871 29,351 -- Long term obligations.. 31,973 0 105,140 106,547 103,729 104,732 -- Stockholders' equity... 13,311 101,035 108,018 105,246 70,388 70,103 --
- -------- (a) Write off of unamortized loan fees associated with the early repayment of a $15 million senior note, net of tax effect of approximately $226,000 and $140,000, for the years ended September 30, 1993 and 1994, respectively. Tender and consent costs associated with early extinguishment of the Boomtown Notes for the year ended September 30, 1996 and the nine months ended June 30, 1997, net of tax effect of approximately $5.9 million for the nine months ended June 30, 1997. (b) As of June 30, 1997, the accounts of Boomtown were consolidated with Hollywood Park's. 81 HOLLYWOOD PARK, INC. SELECTED UNAUDITED PRO FORMA FINANCIAL DATA (PRIOR TO GIVING EFFECT TO THE REORGANIZATION)
NINE MONTHS YEAR ENDED ENDED DECEMBER 31, SEPTEMBER 30, 1996 1997 ------------ ------------- (IN THOUSANDS, EXCEPT PER SHARE DATA) STATEMENT OF OPERATIONS DATA: REVENUES: Gaming..................................... $208,699 $167,339 Racing..................................... 71,308 48,084 Food and beverage.......................... 22,737 17,937 Hotel, truck stop and other................ 33,839 25,945 -------- -------- 336,583 259,305 -------- -------- EXPENSES: Gaming..................................... 116,969 88,003 Racing..................................... 30,167 21,615 Food and beverage.......................... 29,728 23,503 Administrative and other................... 107,718 78,336 Depreciation and amortization.............. 20,818 20,717 Non-recurring expenses..................... 49,266 2,453 -------- -------- 354,666 234,627 -------- -------- Operating income (loss)..................... (18,083) 24,678 Interest expense........................... 15,468 11,051 -------- -------- Income (loss) before minority interests and income taxes............................... (33,551) 13,627 Minority interest (benefit)................ (149) 80 -------- -------- Income (loss) before income taxes and extraordinary item......................... (33,402) 13,547 Income tax expense......................... 4,121 5,832 -------- -------- Income (loss) before extraordinary item..... $(37,523) $ 7,715 ======== ======== Dividend requirements on convertible preferred stock............................ $ 1,925 $ 1,520 Income (loss) before extraordinary item attributable to (allocated to) common shareholders............................... $(39,448) $ 6,195 ======== ======== PER COMMON SHARE: Income (loss) before extraordinary item-- primary................................... $ (1.65) $ 0.26 Income (loss) before extraordinary item-- fully diluted............................. $ (1.65) -- Cash dividends............................. $ 0.00 $ 0.00 Number of common shares--primary............ 23,868 24,073 Number of common shares--fully diluted...... 26,160 -- AS OF SEPTEMBER 30, 1997 PRE-REIT ------------- BALANCE SHEET DATA: Total assets............................... $413,379 Other liabilities.......................... 58,708 Minority interests......................... 3,033 Long term obligations...................... 132,163 Stockholders' equity....................... 219,475
82 HOLLYWOOD PARK REALTY ENTERPRISES, INC. SELECTED UNAUDITED PRO FORMA FINANCIAL DATA (AFTER GIVING EFFECT TO THE REORGANIZATION)
NINE MONTHS YEAR ENDED ENDED DECEMBER 31, SEPTEMBER 30, 1996 1997 ------------ ------------- (IN THOUSANDS, EXCEPT PER SHARE DATA) STATEMENT OF OPERATIONS DATA: REVENUES: Gaming........................................... $ 0 $ 0 Racing........................................... 0 0 Food and beverage................................ 0 0 Rental of property............................... 14,623 9,810 Hotel, truck stop and other...................... 1,154 940 ------- -------- 15,777 10,750 ------- -------- EXPENSES: Gaming........................................... 0 0 Racing........................................... 0 0 Food and beverage................................ 0 0 Administrative and other......................... 1,612 1,201 Rental of property............................... 0 0 Depreciation and amortization.................... 6,134 4,628 Loss on sale of a business....................... 0 0 Hollywood Park/Boomtown Merger costs............. 0 0 ------- -------- 7,746 5,829 ------- -------- Operating income (loss)............................ 8,031 4,921 Interest expense................................. 134 155 ------- -------- Income (loss) before minority interests and income taxes............................................. 7,897 4,766 Minority interest................................ 0 0 ------- -------- Income (loss) before income taxes and extraordinary item.............................................. 7,897 4,766 Income tax expense............................... 0 0 ------- -------- Income (loss) before extraordinary item............ $ 7,897 $ 4,766 ======= ======== Dividend requirements on convertible preferred stock (a)......................................... $ 1,925 $ 1,520 Income (loss) attributable to (allocated to) common shareholders before extraordinary item............ $ 5,972 $ 3,246 ======= ======== PER COMMON SHARE: Income (loss) before extraordinary item-- primary......................................... $ 0.25 $ 0.13 Cash dividends................................... $ 0.00 $ 0.00 Number of common shares--primary................... 23,868 24,073 Number of common shares--fully diluted............. 26,160 -- OTHER DATA: Funds from operations (b)........................ $14,031 -- BALANCE SHEET DATA: Total assets..................................... $100,699 Other liabilities................................ 44,608 Stockholders' equity............................. 56,091 - -------- (a) On August 28, 1997, Hollywood Park redeemed the outstanding convertible preferred stock for shares of Hollywood Park Common Stock, and cash dividends on the convertible preferred stock ceased to accrue as of that date. (b) Funds from operations is defined as income before minority interest (computed in accordance with generally accepted accounting principals) excluding gains (losses) from debt restructuring and sale of property, provision for losses, and real estate related depreciation and amortization (excluding amortization of financing costs). Funds from operations does not necessarily represent cash generated from operating activities in accordance with generally accepted accounting principals and is not necessarily indicative of cash available to fund cash needs. Funds from operations should not be considered an alternative to net income as an indication of HP Realty's financial performance or as an alternative to cash flows from operating activities as a measure of liquidity. Calculation of funds from operations: Income before minority interest................. $ 7,897 $ 4,766 Excluding gains (losses) from debt restructuring.................................. 0 0 Excluding gains (losses) from sale of property.. 0 0 Excluding provision for losses.................. 0 0 Add back real estate related depreciation and amortization................................... 6,134 4,628 ------- -------- $14,031 $ 9,394 ======= ========
83 HOLLYWOOD PARK OPERATING COMPANY SELECTED UNAUDITED PRO FORMA FINANCIAL DATA (AFTER GIVING EFFECT TO THE REORGANIZATION)
NINE MONTHS YEAR ENDED ENDED DECEMBER 31, SEPTEMBER 30, 1996 1997 ------------ ------------- (IN THOUSANDS, EXCEPT PER SHARE DATA) STATEMENT OF OPERATIONS DATA: REVENUES: Gaming........................................... $208,699 $167,339 Racing........................................... 71,308 48,084 Food and beverage................................ 22,737 17,937 Rental of property............................... 0 0 Hotel, truck stop and other...................... 32,685 25,005 -------- -------- 335,429 258,365 -------- -------- EXPENSES: Gaming........................................... 116,969 88,003 Racing........................................... 30,167 21,615 Food and beverage................................ 29,728 23,503 Administrative and other......................... 106,106 77,744 Rental of property............................... 14,623 9,810 Depreciation and amortization.................... 14,684 16,089 Write off of investment in a business............ 1,291 Loss on sale of a business....................... 11,412 357 Hollywood Park/Boomtown Merger costs............. 36,563 1,487 -------- -------- 361,543 238,608 -------- -------- Operating income................................... (26,114) 19,757 Interest expense................................... 15,334 10,896 -------- -------- Income before minority interests and income taxes.. (41,448) 8,861 Minority interest.................................. (149) 80 -------- -------- Income before income taxes and extraordinary item.. (41,299) 8,781 Income tax expense................................. (131) 3,925 -------- -------- Income before extraordinary item................... $(41,168) $ 4,856 ======== ======== Dividend requirements on convertible preferred stock(a).......................................... $ 0 $ 0 Income attributable to common shareholders......... $(41,168) $ 4,856 ======== ======== PER COMMON SHARE: Income before extraordinary item--primary......... $ (1.72) $ 0.20 Income (loss) before extraordinary item--fully diluted.......................................... $ (1.72) $ 0.00 Cash dividends.................................... $ 0.00 $ 0.00 Number of common shares--primary................... 23,868 24,073 Number of common shares--fully diluted............. 26,160 -- BALANCE SHEET DATA: Total assets...................................... $312,677 Other liabilities................................. 57,579 Minority interest................................. 3,033 Long term obligations............................. 132,163 Stockholders' equity.............................. 119,902
- -------- (a) On August 28, 1997, Hollywood Park redeemed the outstanding convertible preferred stock for shares of Hollywood Park Common Stock, and cash dividends on the convertible preferred stock ceased to accrue as of that date. 84 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS The following discussion should be read in conjunction with, and is qualified in its entirety by, Hollywood Park's and Boomtown's financial statements (including the pro forma financial statements), including the notes thereto, and the other financial information appearing elsewhere in this Proxy Statement, as well as the discussion under "Risk Factors." The discussion herein reflects the historical results of operations of Hollywood Park and Boomtown which, prior to the Boomtown Merger, had been operated separately by Hollywood Park and Boomtown, respectively, and the pro forma results of operations of HP Realty and HP Operating Company giving effect to the Reorganization. OVERVIEW Historically, Hollywood Park's primary business was the operation of thoroughbred racing facilities. Hollywood Park is the successor to the Hollywood Park Turf Club, which was originally organized in 1938 and incorporated in 1981 under the name HP Realty Enterprises, Inc. Hollywood Park's principal business was owning and operating the Hollywood Park Race Track, located in the Los Angeles metropolitan area, one of the premier thoroughbred racing facilities in the United States. Since 1991, Hollywood Park has continuously diversified itself from an owner and operator of a single horse racing property into a multi-jurisdictional gaming, sports and entertainment company. Hollywood Park has implemented this strategic plan through internal development of properties and a series of selective acquisitions with a particular focus on middle-market operations which could benefit from improved management and the access to Hollywood Park's financial resources. Since 1991, Hollywood Park's strategic plan has been to maximize the revenue and cash flow of its core businesses through expansion and increased utilization of those properties, to continue to diversify its gaming operations, to broaden the scope of its activities to include other sports and entertainment attractions and to maximize the revenue of its horse racing business through selective acquisitions and, as opportunities arise, through continued expansion and technological improvements in off-track wagering. In late 1993 and early 1994, Hollywood Park attempted to take advantage of the trend toward legalizing gaming in new jurisdictions by acquiring race tracks in jurisdictions where expanded gaming legislation appeared reasonably likely. In 1994, Hollywood Park acquired Turf Paradise, a thoroughbred racing facility located in Phoenix, Arizona, and Sunflower, a greyhound and thoroughbred racing facility located in Kansas City, Kansas. In Arizona, Native American casinos have opened, at least one in close proximity to Turf Paradise, and off-track wagering is permitted in bars. However, to date, the Arizona legislature has not authorized expanded forms of gaming at race tracks. In Kansas, though several legislative proposals to expand gaming were made, none has been enacted, and competition from riverboat gaming in nearby Missouri has resulted in Sunflower filing for reorganization under Chapter 11 of the Bankruptcy Code. Hollywood Park's racing operations (including racing related concessions) generated approximately $84.1 million in revenues for the year ended December 31, 1996. Following the acquisitions of Turf Paradise and Sunflower, Hollywood Park has focused its expansion efforts on California card club casinos and other casino operations, as well as on expanding its pari-mutuel operations at its existing facilities. Since 1994, Hollywood Park has opened two California card club casino facilities. The Hollywood Park-Casino, which opened in July 1994 and is located on the premises of the Hollywood Park Race Track, has a total of 145 gaming tables which offer Poker, Pai Gow and California Blackjack. Hollywood Park assumed operational control over the Hollywood Park-Casino effective November 1995, following an amendment to California law to permit any publicly-traded pari-mutuel racing association to operate card club casinos on its race track premises. Until that time, the Hollywood Park-Casino was operated under a lease arrangement by an unaffiliated operator with Hollywood Park receiving a fixed lease payment. In late 1996, the Crystal Park Hotel and Casino, located in the Los Angeles metropolitan area, opened with 100 table games and 282 hotel rooms. The Crystal Park Casino offers the same games as the Hollywood Park-Casino. Crystal Park LLC, controlled by two wholly-owned subsidiaries of Hollywood Park as discussed below, 85 owns the facility and, since the Crystal Park Casino is not on any race track premises, Crystal Park LLC entered into a five-year lease with Compton Entertainment, Inc. ("CEI"), an unaffiliated party, to operate the card club casino. The lease provided for monthly payments of approximately $200,000 for the first six months, $350,000 for the months 7 through 12 and $759,000 for months 13 through 60. On October 11, 1997, the California Attorney General accepted CEI's withdrawal of its conditional gaming registration pursuant to a previously negotiated agreement, and the City of Compton concurrently revoked CEI's city gaming license. Crystal Park LLC subsequently terminated CEI's lease, and on November 4, 1997, Crystal Park LLC obtained a judgment in an action for unlawful detainer against CEI, due to CEI's failure to pay a portion of the June 1997 rent and to make required additional rent payments. In addition to the judgment for possession and for damages of approximately $150,000, Crystal Park LLC has a claim against CEI for additional damages relating to subsequent unpaid rent and additional unpaid amounts. As of September 30, 1997, CEI owed Crystal Park LLC $600,000, of which $200,000 is covered by a rent security deposit Crystal Park LLC received from CEI in October 1996, and of which $350,000 was not recorded as revenues but instead was fully allowed for with a $350,000 valuation allowance. After evicting CEI, Crystal Park LLC entered into a new lease for the Crystal Park Casino with California Casino Management, Inc. ("CCM"), a California corporation, owned by Mr. Leo Chu. Mr. Chu presently has a conditional gaming registration from the California Attorney General and a gaming license from the City of Compton to operate the Crystal Park Casino. Mr. Chu presently holds a California gaming registration to operate a small card club in Northern California. CCM reopened the Crystal Park Casino on December 26, 1997 for a term of four years. The lease provides for monthly payments of $100,000 for the first six months, $350,000 for months 7 through 18, and $550,000 for months 19 through 48. As of December 4, 1997, HP Casino, Inc. ("HP Casino"), a wholly-owned subsidiary of Hollywood Park, acquired the membership interests in Crystal Park LLC held by First Park Investments, LLC for $1,000,000, the amount initially invested. HP Casino is in negotiations with Redwood Gaming, LLC to purchase Redwood Gaming's membership interest. As a result of the First Park transaction, Hollywood Park (through HP Casino and HP/Compton, Inc.) owns 93.2% of the membership interests of Crystal Park LLC and would own 100% of such membership interests if the Redwood Gaming transaction is completed. Hollywood Park significantly expanded its gaming operations when it completed its strategic combination with Boomtown on June 30, 1997. Hollywood Park now owns and operates, through its subsidiaries, land-based, dockside and riverboat gaming operations in or near Reno, Nevada, New Orleans, Louisiana and Biloxi, Mississippi, respectively. The Boomtown properties offer full casino gaming, hotel accommodations (at Boomtown Reno), and other entertainment amenities to primarily middle income, value-oriented customers. On July 1, 1997, Boomtown and its subsidiaries divested their interests in Boomtown Las Vegas, Nevada, which had consistently performed below projections and generated significant losses. Together with its California card club casino operations, as of September 30, 1997, Hollywood Park's casino operations consist of 3,269 slot machines, 379 table games and 404 hotel rooms at its gaming properties. Hollywood Park is the only company that currently owns and operates casinos in Nevada and other states and card club casinos in California. Hollywood Park's efforts to expand its gaming operations are now focused on expanding its existing core gaming facilities and on new opportunities in jurisdictions (other than Las Vegas and Atlantic City) in which gaming has already been legalized. In connection with the Boomtown Merger, Hollywood Park supplied Boomtown with the funds necessary to repurchase approximately $103 million in aggregate principal amount of Boomtown's 11.5% First Mortgage Notes due 2003 (the "Boomtown Notes"). In addition, Hollywood Park intends to utilize its financial resources to reduce or repurchase the financial interests of third parties in Boomtown's operations, such as the repurchase of minority interests in Boomtown New Orleans and National Gaming's participation in the EBITDA of Boomtown Biloxi and the restructuring of certain Boomtown equipment operating leases into capital leases. During 1996 and 1997, Boomtown restructured several operating leases into capital leases through negotiated payments on the operating lease residual purchase options, with a corresponding reduction in operating expenses. 86 Hollywood Park, through its wholly-owned subsidiaries HP Yakama, Inc. ("HP Yakama") and HP Yakama Consulting, Inc. ("HPY Consulting"), recently entered into agreements with the Yakama Tribal Gaming Corporation (the "Tribal Corporation") and The Confederated Tribes and Bands of the Yakama Indian Nation (the "Tribes") to fund the construction and development of (through HP Yakama), and provide development services with respect to (through HPY Consulting), a casino in Yakima County, Washington. HP Yakama has committed to fund up to $9,000,000 to construct and equip the casino. HP Yakama has also entered into an agreement under which it will lease the completed casino and underlying land (the "Facility") from the Tribes, for a seven-year term commencing with the opening of the casino, for $12,000 per year, and then sublease the Facility to the Tribal Corporation, for the same seven-year term. Rent due from the Tribal Corporation to HP Yakama under such sublease will initially be 28% of net revenues (as defined in the sublease), decreasing to as low as 22% of net revenues if aggregate net revenues exceed certain levels. Under a Profit Participation Agreement between Hollywood Park and North American Sports Management, Inc. ("NORAM"), which entered into the original Memorandum of Understanding with the Tribes, NORAM will receive 22% of the portion of the net revenues actually received by HP Yakama under the sublease. Presently, Hollywood Park, the Tribes and the Tribal Corporation are awaiting final approval of the documentation from the Bureau of Indian Affairs (the "BIA"). Hollywood Park and HP Yakama also have applications pending with the Washington State Gambling Commission (the "WGC") for Class III Indian Gaming--Financier approval. There can be no assurance the BIA will approve the documentation or that the WGC will grant Hollywood Park and HP Yakama the Class III Indian Gaming--Financier approval. For a discussion of HP Operating Company's intended efforts to continue this strategic expansion of its gaming, sports and entertainment business of Hollywood Park after the Reorganization, see "Business of HP Operating Company After the Reorganization." As of December 31, 1996, the Company had repurchased and retired (with the last purchase being made on November 13, 1996) 222,300 common shares, at a cost of approximately $1,962,000 pursuant to a previously announced intention to repurchase and retire up to 2,000,000 shares of its common stock on the open market or in negotiated transactions. The mailing address of the principal executive offices of Hollywood Park and HP Operating Company is 1050 South Prairie Avenue, Inglewood, California 90301, and their telephone number is (310) 419-1500. HISTORICAL RESULTS OF OPERATIONS The following discussion relates to historical results of operations for Hollywood Park (excluding Boomtown) and for Boomtown separately. Hollywood Park's revenues consist primarily of pari-mutuel wagering revenues and gaming revenues from Hollywood Park-Casino table games, and operator lease payments for Crystal Park and (for applicable periods) the Hollywood Park-Casino. In fiscal 1996, pari-mutuel wagering and casino table game operations contributed approximately 37.6% and 35.1%, respectively, of Hollywood Park's total revenues. Boomtown's revenues consist primarily of gaming revenues from slot and video poker machines ("slot machines"), table games and keno as well as non-gaming revenues generated from the properties' family entertainment centers, food and beverage sales, hotel room sales (at Boomtown Reno) and from recreational vehicle parks. Gaming operations have historically contributed a significant portion of Boomtown's total revenues and substantially all of its income from operations. In fiscal 1996, gaming operations contributed approximately 80% of Boomtown's total revenues, and gaming revenues from slot machines provided approximately 80% of Boomtown's gaming revenues. Boomtown's non-gaming operations are designed primarily to enhance the gaming operations and contribute a relatively small percentage of Boomtown's income from operations after deducting promotional allowances and operating costs. Boomtown's historical financial data includes results of operations at Boomtown Las Vegas, which has since been divested pursuant to the Blue Diamond Swap. See "--Boomtown--Disposition of Boomtown 87 Las Vegas." Boomtown Las Vegas consistently generated losses and reduced the overall profitability of Boomtown for the periods described herein. Hollywood Park Nine Months Ended September 30, 1997 Compared to the Nine Months Ended September 30, 1996 As of June 30, 1997, the results of operations of Boomtown were consolidated with those of Hollywood Park, and since the Boomtown Merger was accounted for under the purchase method of accounting for a business combination, there is no corresponding Boomtown activity in the 1996 results of operations. As of April 1, 1996, Sunflower's results of operations were no longer consolidated with Hollywood Park's results; therefore, the results of operations for the nine months ended September 30, 1997, are exclusive of Sunflower's results of operations, but the financial results for the nine months ended September 30, 1996, included Sunflower's results of operations through March 31, 1996. Also included in the results of operations for the nine months ended September 30, 1996, was the $11,412,000 one time, non-cash write off of Hollywood Park's investment in Sunflower. On May 2, 1996, the Kansas Legislature adjourned without passing legislation that would have allowed additional gaming at Sunflower so that Sunflower could compete with Missouri riverboat gaming. On May 17, 1996, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code. Management is currently evaluating all options available to Sunflower, and expects to continue to operate Sunflower at least until the Bankruptcy Court issues its pending ruling regarding approval of Sunflower's proposed plan of reorganization and all appeals of that ruling (if any) have been finalized. Total revenues for the nine months ended September 30, 1997, increased by $53,822,000, or 51.5%, as compared to the nine months ended September 30, 1996, due primarily to the inclusion of $55,441,000 of Boomtown revenues in 1997, with no corresponding revenues recorded during 1996. Gaming revenues increased by $46,073,000, or 121.5%, due primarily to Boomtown gaming revenues of $43,765,000, and Crystal Park LLC rent revenues of $2,202,000, in 1997, with no corresponding Boomtown or Crystal Park LLC revenues in 1996. The Crystal Park Casino opened on October 25, 1996, under a triple net lease with CEI. Crystal Park LLC recorded a 100% valuation allowance against the $350,000 of rent revenue due from CEI for the month of September 1997, due to the California Attorney General revoking CEI's conditional California gaming registration. The Company is presently in lease negotiations with CCM to assume the lease of the Crystal Park Casino, if CEI is unable to regain its conditional California gaming registration, subject to CCM obtaining all required gaming registrations and licenses to operate the Crystal Park Casino (as more fully discussed above). Racing revenues decreased by $2,813,000, or 5.5%, due primarily to one fewer live race day at Hollywood Park, and the inclusion of $1,317,000 of racing revenues attributable to Sunflower in 1996, and no corresponding Sunflower Racing revenues in 1997. Food and beverage revenues increased by $2,500,000, or 23.8%, due primarily to the inclusion of Boomtown food and beverage revenues in 1997, with no corresponding revenues in 1996. Hotel and recreational vehicle park and truck stop and service station revenues related to Boomtown's Reno property, and there are no corresponding revenues in 1996. Other income increased by $2,584,000, or 49.7%, due primarily to the inclusion of Boomtown revenues in 1997 with no corresponding revenues in 1996. Total operating expenses (inclusive of approximately $44,003,000 of Boomtown expenses in 1997) increased by $34,634,000, or 32.0%, during the nine months ended September 30, 1997, as compared to the nine months ended September 30, 1996. Gaming expenses increased by $25,601,000, or 131.2%, primarily due to the inclusion of Boomtown gaming expenses of $23,356,000 and increased tournament costs at the Hollywood Park-Casino. Food and beverage expenses increased by $2,862,000, or 20.4%, due primarily to the inclusion of $4,039,000 of Boomtown costs in the 1997 period with no corresponding expense in the 1996 period, netted against savings generated at the Hollywood Park- Casino of approximately $1,194,000 during the 1997 period which resulted primarily from the closing of a restaurant and other labor and inventory savings. Hotel and recreational vehicle expenses and truck stop and service station expenses related to Boomtown Reno and there are no corresponding expenses in 1996. Administrative expenses increased by $7,047,000, or 22.3%, due primarily to the inclusion of $10,717,000 of Boomtown expenses in the 1997 period with no corresponding expense in the 1996 period, netted against the following items: (i) the inclusion of approximately $1,030,000 of 88 Sunflower administrative costs in the 1996 period with no corresponding expense in the 1997 period; (ii) reduced expansion and legal costs of approximately $950,000 related to the Inglewood master site plan; (iii) approximately $500,000 in savings related to the termination of Hollywood Park's pension plan; and (iv) a 1997 reclassification of workers' compensation expense from administrative expense to the functional departments. REIT reorganization expense consisted primarily of legal and tax expenses incurred by Hollywood Park with respect to the reinstatement of the Company's REIT as previously discussed. Other expenses increased by $1,234,000, or 60.8%, due primarily to the inclusion of Boomtown expenses in 1997 with no corresponding expenses in 1996. Depreciation and amortization increased by $4,041,000, primarily due to the Boomtown and Crystal Park LLC depreciation expense in 1997 with no corresponding expenses in 1996. Interest expense increased by $2,864,000, or 312.0%, due to the interest on the Notes, short term bank borrowings (all of which have been repaid) and bank commitment fees (See Item 2. Liquidity and Capital Resources). Income tax expense increased by $1,599,000, or 52.9%, due to increased income before income taxes in 1997 as compared to 1996. Year Ended December 31, 1996 Compared to the Year Ended December 31, 1995 The results of operations for the year ended December 31, 1996, included the results of Hollywood Park operating all aspects of the Hollywood Park-Casino, including the Casino gaming floors. Hollywood Park acquired the Hollywood Park-Casino gaming floor business from Pacific Casino Management ("PCM") on November 17, 1995; therefore, the results of operations for the year ended December 31, 1995, do not include the operating results of the Hollywood Park- Casino gaming floor business prior to November 17, 1995, but rather are reflective of the lease arrangement then in place. The results of operations for the year ended December 31, 1996, included Sunflower's results of operations for the three months ended March 31, 1996, only. As of March 31, 1996, Sunflower's results of operations were no longer consolidated with Hollywood Park's due to Sunflower's May 17, 1996, filing for reorganization under Chapter 11 of the Bankruptcy Code. Sunflower's results of operations are consolidated in the financial statements for the year ended December 31, 1995. Total revenues increased by $12,653,000, or 9.7%, for the year ended December 31, 1996, as compared to the year ended December 31, 1995, primarily due to Hollywood Park-Casino gaming revenues. Gaming revenues of $50,272,000 were generated from the Hollywood Park-Casino gaming activities, which Hollywood Park acquired from PCM on November 17, 1995. During the year ended December 31, 1995, Hollywood Park recorded $20,624,000 of lease revenues, $6,032,000 of gaming revenues (covering the period November 17, 1995, through December 31, 1995), and concession sales to PCM of approximately $2,773,000, or total 1995 Hollywood Park-Casino gaming and lease related revenues of $29,429,000. On October 25, 1996, Crystal Park opened under a triple net lease between Hollywood Park and CEI (the operator of Crystal Park). Monthly lease rent is fixed at $200,000 per month for months one through six; $350,000 per month for months seven through twelve, and approximately $759,000 per month for the remaining 48 months of the lease. Racing revenues decreased by $5,728,000, or 7.4%, primarily due to the exclusion of Sunflower's racing revenues for the nine months ended December 31, 1996. Food and Beverage sales decreased by $5,836,000, or 29.5%, with approximately $2,773,000 of the difference attributable to the inclusion of sales to PCM in 1995 with no corresponding sales in 1996, with approximately $2,414,000 of the difference due to the inclusion of a full year of food and beverage sales recorded for Sunflower in 1995 and just three months of Sunflower sales recorded in 1996, with the balance of the difference primarily due to on-track attendance declines at Hollywood Park. Total operating expenses increased by $15,939,000, or 12.5%, for the year ended December 31, 1996, compared to the year ended December 31, 1995, primarily due to the inclusion of $27,249,000 of Hollywood Park-Casino gaming floor expenses (with corresponding gaming floor expenses of $4,919,000 in 1995), which more than offset a $7,479,000 reduction in expenses arising from the exclusion in 1996 of Sunflower's expenses for the nine months ended December 31, 1996. Food and Beverage expense decreased by $5,589,000, or 22.2% with $2,089,000 of the savings attributable to the exclusion of Sunflower's expenses subsequent to the first quarter of 1996, and with the balance of the savings primarily attributable to cost savings programs implemented at the Hollywood Park-Casino. Administrative expenses decreased by $5,315,000, or 11.3%, due to the inclusion of a full year of Sunflower expenses in 1995 and just three months of corresponding costs recorded in 1996. 89 Included in the 1996 results of operations was the $11,412,000 one time, non-cash write off of Hollywood Park's investment in Sunflower. On May 2, 1996, the Kansas Legislature adjourned without passing legislation that would have allowed additional gaming at Sunflower, and thereby, allowing Sunflower to compete with Missouri riverboat gaming. On May 17, 1996, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code. Management is currently evaluating all options available to Sunflower, and expects to continue operate Sunflower at least until the Bankruptcy Court issues its pending ruling regarding approval of Sunflower's proposed plan of reorganization and all appeals of that ruling (if any) have been finalized. Included in the 1995 results of operations was $6,088,000 of expenses (with no corresponding expenses in 1996) related to the settlement of certain claims in connection with a shareholder class action and related shareholder derivative suit, as more fully described in Hollywood Park's 1996 Annual Report on Form 10-K. Depreciation and amortization expenses decreased by $689,000, or 6.1%, primarily due to the exclusion of Sunflower's expenses for the nine months ended December 31, 1996, netted against the amortization of the goodwill associated with the November 17, 1995, acquisition of PCM. Interest expense decreased by $2,980,000, or 76.0%, due to the exclusion of Sunflower's interest expense for the nine months ended December 31, 1996. Income tax expense increased by $2,766,000, due primarily to the establishment of certain tax reserves. Year Ended December 31, 1995 Compared to the Year Ended December 31, 1994 The 1995 consolidated financial statements include the results of operations at Hollywood Park, the Hollywood Park-Casino, Sunflower, and Turf Paradise. From July 1, 1994 until November 17, 1995, the Hollywood Park-Casino was operated under a lease by an unaffiliated operator who operated the gaming floor business and Hollywood Park operated all other activities. After a change in California law permitting Hollywood Park to operate the casino directly, the gaming floor business was acquired from the operator as of November 17, 1995, accounted for under the purchase method of accounting. The 1995 Hollywood Park-Casino operating results included ten and a half months of operations under the lease, and one and a half months under Hollywood Park's direct ownership and control. The 1994 operating results include the six months of Hollywood Park-Casino activities under the lease arrangement. Sunflower was acquired as of March 31, 1994, in a transaction accounted for under the purchase method of accounting, and therefore the 1994 statement of operations does not include Sunflower's first quarter results. Turf Paradise was acquired as of August 11, 1994, accounted for under the pooling of interests method of accounting. Accordingly, the 1994 results have been restated to include the operating results of Turf Paradise for the full year. Total revenues increased by $13,248,000, or 11.3%, during 1995, as compared to the year ended December 31, 1994. Included in 1995 Gaming revenues was $20,624,000 of Hollywood Park-Casino fixed lease rent revenue (of which the operator paid $12,000,000 in 1995 plus $4,377,000 for food and beverage and interest on accrued and unpaid rent) and $6,032,000 of gaming floor revenue, compared to $11,745,000 of Hollywood Park-Casino fixed lease rent revenue in 1994, (covering six months of casino operations). Racing revenues decreased by $1,683,000, or 2.1%, as a result of a $3,151,000 decline in racing revenues at Sunflower due to intense competition from nearby Missouri riverboat gaming, which more than offset simulcast racing revenue increases at both Hollywood Park and Turf Paradise. Food and beverage revenues decreased by $757,000, or 3.7%. Food and beverage sales at Sunflower declined in 1995 by $1,343,000, as compared to 1994, also as a result of competition from Missouri riverboat gaming. Such Sunflower food and beverage revenues declines were offset by increased Hollywood Park-Casino revenues, due to the casino being open for all 1995 (as opposed to only six months in 1994). Other income increased by $777,000, or 12.3%, principally because (i) other non-casino income increased by $940,000, or 15.0%, and (ii) revenue declines of $769,000 at Hollywood Park due to the cancellation of the Forum Parking Agreement were offset by a full year of Hollywood Park-Casino gift shop and health club sales in 1995 (as opposed to only six months of such sales in 1994). A new Forum Parking Agreement was executed on October 24, 1995, covering the one year from October 1, 1995. Total operating expenses, inclusive of $31,938,000 of Hollywood Park-Casino operating expenses (representing a month and a half of gaming floor operations and twelve months of other Hollywood Park-Casino 90 operations, for which there were no gaming floor expenses and just six months of comparable other Hollywood Park-Casino operations activity in 1994), increased by $18,196,000, or 16.7%, during the year ended December 31, 1995, as compared to the year ended December 31, 1994. Gaming expenses of $4,919,000 were recorded in 1995, due to the November 17, 1995, acquisition of the Hollywood Park-Casino gaming floor business from PCM. Racing expenses decreased by $824,000, or 2.7%, primarily due to five fewer live race days at Hollywood Park in 1995 as compared to 1994. Food and beverage expenses increased by $3,310,000, or 15.1%, primarily due to a full year of Hollywood Park-Casino food and beverage services in 1995 (as compared to only six months of such activity in 1994). Administrative expenses increased by $3,294,000, or 7.8%, primarily due to expansion costs incurred in connection with card club casino initiative campaigns, which were defeated in September and November, as well as costs for other expansion endeavors such as a proposed stadium and other card club casinos. All costs associated with expansion projects are expensed during the evaluation stages. As previously reported by the Company, and described in the Company's Annual Report on Form 10-K for 1994, six purported class actions (the "Class Actions") were filed beginning in September 1994, against the Company and certain of its directors and officers in the United States District Court, Central District of California (the "District Court") and consolidated in a single action entitled In re Hollywood Park Securities Litigation. On September 15, 1995, a related stockholder derivative action, entitled Barney v. Hubbard, et al. (the "Derivative Action"), was filed in the California Superior Court for the County of San Diego (the "State Court"). As previously reported, on February 26, 1996, the District Court approved the settlement of the Class Actions and entered a judgment dismissing them in their entirety. On April 3, 1996, the State Court entered an order approving the settlement of the Derivative Action. Hollywood Park also separately settled all purported claims against Hollywood Park and its officers and directors by the former controlling stockholder of Turf Paradise in connection with Hollywood Park's acquisition of Turf Paradise. After giving effect to the amounts to be received by Hollywood Park in settlement of the Derivative Action and from its insurance carrier, Hollywood Park's net settlement payment in the Class Actions, the Derivative Action and in resolving the claims of the former controlling stockholder of Turf Paradise, was approximately $6,100,000 (inclusive of all related costs and expenses), which was expensed in the fourth quarter of 1995. The 1994 Hollywood Park-Casino pre-opening and training costs of $2,337,000 were primarily related to wages paid during the on-the-job training of staff hired to open the Hollywood Park-Casino on July 1, 1994. There were no similar costs in 1995. The Turf Paradise acquisition costs were a result of the August 11, 1994, acquisition of Turf Paradise by Hollywood Park; there were no similar costs in 1995. Depreciation and amortization increased by $1,821,000, or 19.0%, for the year ended December 31, 1995, as compared to the year ended December 31, 1994. The increase was mainly due to Hollywood Park-Casino operations, and costs associated with the first quarter of 1995 at Sunflower with no corresponding amount in 1994. Interest expense increased by $860,000, or 28.1%, principally due to an additional three months of Sunflower interest expense in the 1995 results. Sunflower's 1994 results are exclusive of the first quarter. Income tax expense decreased by $875,000, due primarily to the decrease in pre-tax income in the year ended December 31, 1995 as compared to the year ended December 31, 1994. Allowance for bad debts increased by $1,682,000 as of the year ended December 31, 1995, as compared to the year ended December 31, 1994. The increase was attributable to the November 17, 1995 acquisition of the gaming floor business of the Hollywood Park-Casino. To remain competitive in the local card club business, the Hollywood Park-Casino extends credit to card players; whereas, the Company's racing business does not extend credit to players. Boomtown Disposition of Boomtown Las Vegas On July 1, 1997, Boomtown and its subsidiaries exchanged substantially all of their interest in Boomtown Las Vegas (including substantially all of the operating assets and the notes receivable of approximately $27.3 91 million from the landowner/lessor of the Boomtown Las Vegas property, IVAC, a California general partnership of which Edward P. Roski, Jr. ("Roski"), a former Boomtown director, is a general partner) with Majestic Resorts, LLC ("Majestic") for two notes aggregating approximately $8.5 million in principal amount issued by IVAC, cash, assumption by Majestic (guaranteed by Roski) of the note and lease obligations of Boomtown Las Vegas, and relief from the real estate lease obligations of Boomtown Las Vegas payable to IVAC (such transactions being collectively referred to as the "Blue Diamond Swap"). Boomtown Las Vegas was divested by Boomtown because it had generated significant operating losses since it opened, and had reduced the overall profitability of Boomtown. As a result of the Blue Diamond Swap, IVAC was relieved of the obligation to repay Boomtown the aforementioned loans of $27.3 million. In addition, concurrently with the consummation of the Blue Diamond Swap, Hollywood Park purchased 446,491 shares of Hollywood Park Common Stock received by Roski in the Boomtown Merger for a purchase price of approximately $3.5 million, paid in the form of a Hollywood Park promissory note. See "Election of Directors--Certain Relationships and Related Transactions." Nine Months Ended June 30, 1997 Compared to Nine Months Ended June 30, 1996 For the nine months ended June 30, 1997, total revenues increased by $4.9 million, or 2.8%, as compared to total revenues for the nine months ended June 30, 1996. Gaming revenues increased by $5.0 million, or 3.6%, primarily a result of increase in gaming revenues at Boomtown Biloxi. Boomtown Biloxi has been able to increase market share in the Gulf Coast region due to enhanced marketing and player promotions. The increase in gaming revenues during the nine months ended June 30, 1997, was offset by a 13.9% decrease in gaming revenues at Boomtown Reno, primarily due to severe winter weather conditions. During the three months ended December 31, 1996, the Pacific Northwest, including Reno and northern California, experienced unusually intense weather conditions, thereby reducing the traffic flow on Interstate 80, upon which Boomtown Reno depends on as a primary source of gaming patrons. Food and beverage sales increased by $0.7 million, or 6.0%, due primarily to quality improvements and marketing programs. Total operating expenses for the nine months ended June 30, 1997, decreased by $27.6 million, or 13.6%, as compared to the nine months ended June 30, 1996. Included in the expenses for the nine months ended June 30, 1996, was the one time $36.6 million loss incurred on the sale of Boomtown's Las Vegas property. Upon the closing of the sale of the Las Vegas property, Boomtown incurred an additional $1.2 million of expenses that were reflected in the results of operations for the nine months ended June 30, 1997. The one time charge of $14.2 million related to Boomtown's consent and tender of the Boomtown Notes was treated as an extraordinary loss for the nine months ended June 30, 1997. There was no comparable charge for the nine months ended June 30, 1996. Boomtown recorded non-recurring costs of $1.6 million related to the Boomtown Merger during the nine months ended June 30, 1997, compared to $0.7 million of Boomtown Merger costs during the corresponding period in 1996. Operating expenses, adjusted for the various one time/non-recurring charges discussed above, for the nine months ended June 30, 1997, increased by $6.8 million, or 4.1%, as compared to similarly adjusted operating expenses for the nine months ended June 30, 1996. Gaming equipment leases expense decreased by $1.7 million, or 34.6%, primarily as a result of restructuring several operating leases to capital leases; thereby, eliminating gaming lease rent expense. Food and beverage expense increased by $2.9 million, or 20.2%, primarily due to the 1997 expansion of food and beverage services at Boomtown New Orleans. General and administrative expenses decreased by $2.1 million, or 4.3%, with approximately $1.1 million of the decrease primarily a result of the restructuring of operating leases for furniture and fixtures to capital leases; thereby, eliminating the associated lease rent expense, and with the balance of the decrease primarily related to payroll saving at Boomtown Reno due to the associated gaming revenue declines, as previously discussed. Marketing and promotion expenses increased by $2.2 million, or 12.7%, primarily related to enhanced marketing efforts at Boomtown Biloxi. Depreciation and amortization expenses increased by $3.5 million, or 43.0%, primarily due to reductions in the estimated useful lives of existing assets, and due to the restructuring of several operating leases to capital leases during the nine months ended June 30, 1997. 92 Fiscal Year 1996 Compared to Fiscal Year 1995 Net loss for the fiscal year ended September 30, 1996, was $35.1 million compared to a net loss of $2.9 million for the fiscal year ended September 30, 1995. Included in the results of operations for the fiscal year ended September 30, 1996, was a one time non-cash charge of $36.6 million related to the Blue Diamond Swap (as described previously). There was no corresponding expense in the results of operations for the fiscal year ended September 30, 1995. During the fiscal year ended September 30, 1996 total revenues were $236.0 million compared to $231.8 million in the prior year. Gaming revenues were $188.4 million in 1996 as compared to $189.3 million in 1995. Gains in gaming revenues at Boomtown Reno and Boomtown Biloxi during 1996 were offset by decreases in gaming revenues at Boomtown New Orleans and Boomtown Las Vegas (which was divested in the Blue Diamond Swap). Gaming revenues primarily consist of revenues from slot machines, table games and Keno. Boomtown Reno's gaming revenues grew 5.2% over the prior year primarily as a result of increased casino patronage due to higher traffic volume on Interstate 80, on which Boomtown Reno is heavily dependent for customers. Boomtown Biloxi's gaming revenues have improved due to expansion of the gaming market in the Gulf Coast region combined with increased marketing and promotional efforts. Boomtown Biloxi's gaming revenues increased by 10.0% over the prior year. Boomtown New Orleans' gaming revenues were negatively affected by additional cruising of its riverboat casino as mandated by law. Gaming revenues at Boomtown Las Vegas continued to be less than expected and lower than the prior year resulting from increased competition with other casino operators for the local customer market. Non-gaming revenues primarily consist of revenues generated from food and beverage, hotel, recreational vehicle park, family entertainment center, truckstop, service station, mini-mart and other. Non-gaming revenues for the years ended September 30, 1996 and 1995 were $47.7 million and $42.5 million, respectively. Increases in non-gaming revenues were recorded at all four of the Boomtown properties, with the majority of the consolidated improvement due to higher fuel sales at the Boomtown Reno truckstop as well as the expansion of the cabaret show at Boomtown New Orleans. The consolidated gaming margin was 57.4% for fiscal 1996, compared to 58.2% in the prior year. The decline is primarily a result of a change in the calculation of gaming taxes at Boomtown New Orleans resulting in the taxes being reclassified and charged as a gaming expense in the current year. During the prior year, the taxes were calculated based on a flat charge per admission and recorded as general and administrative expenses. Additionally, Boomtown's consolidated gaming margin was negatively affected by additional gaming leases entered into in April 1995 resulting in higher gaming equipment lease expense during the period. This decline in the consolidated gaming margin was offset by improvements from Boomtown Biloxi resulting from the discontinuance of the property's FunFlight program in October 1995. Marketing, general and administrative expenses primarily consist of advertising and promotional costs, salaries and wages and related benefits, non-gaming taxes and licenses, professional fees and other overhead expenses. Marketing expenses were $22.4 million for the year ended September 30, 1996, a 14.3% increase over the prior year's expense of $19.6 million. Marketing expenses consist of costs associated with printed advertising, outdoor signs, media advertising, promotional events, Boomtown's bus tour and FunFlight programs and other marketing and administrative expenses. The increase in marketing expenses during fiscal 1996 resulted from additional advertising at Boomtown Biloxi and Boomtown Las Vegas in order to promote the Boomtown brand and compete for the local customer market in those areas. Higher promotional events and player's club redemption costs at all Boomtown casinos also contributed to the increase. General and administrative ("G&A") expenses were $70.6 million for the year ended September 30, 1996, a 6.2% decline from the $75.3 million recorded during the prior year. G&A expenses were less at Boomtown Las Vegas and Boomtown New Orleans, offset by higher expenses at Boomtown Biloxi. The reduction at Boomtown New Orleans primarily resulted from a reclassification of gaming taxes from G&A to gaming operating expenses during the current year. Lower expenses at Boomtown Las Vegas resulted from a reduction 93 of costs in most overhead departments due to cost control efforts. The increase in Boomtown Biloxi's G&A expenses was attributable to higher property rent as well as building and grounds maintenance costs associated with the aging of the building and barge. Boomtown continues to concentrate on aggressive cost reduction programs for all of its properties. During the year ended September 30, 1996 Boomtown incurred charges of approximately $1.1 million related to the Boomtown Merger, as well as $500,000 associated with its license application in the state of Indiana. Depreciation and amortization expense rose 1.9% to $10.6 million for the year ended September 30, 1996, a result of ordinary course capital improvements and additions and the restructuring of certain operating leases to capital leases at Boomtown Biloxi and Boomtown New Orleans, thereby capitalizing the equipment and depreciating the costs over the remaining estimated useful lives. During the year ended September 30, 1996, Boomtown took a non-cash charge of $36.6 million related to the Blue Diamond Swap. The charge included the write- off of Boomtown's investment in lease of $12.7 million, an $18.9 million write-down of the related party notes receivable to $8.5 million, and the write-off of the remaining net assets less the liabilities assumed by Roski of $5.0 million (approximate value at June 30, 1996). The after-tax loss amounted to $35.7 million, or $3.86 per share. The recorded provision for income taxes for the year ended September 30, 1996, does not reflect the anticipated benefit from the write-off associated with the Blue Diamond Swap. The write-off of the $12.7 million investment in lease is not deductible for income tax purposes. In addition, the remaining income tax benefit arising from the Blue Diamond Swap has been offset by a valuation allowance because of the uncertainty regarding the future realization of the related deferred tax asset. Fiscal Year 1995 Compared to Fiscal Year 1994 Gaming revenues as a percent of total revenues increased from 73.8% to 81.7% from fiscal 1994 to fiscal 1995. This was due to the opening of the three new gaming properties, particularly Boomtown Biloxi and Boomtown New Orleans. Boomtown Biloxi's and Boomtown New Orleans' gaming revenues provided approximately 90% and 97% of each partnership's total revenues, respectively. Gaming revenues increased 148% or $113 million, primarily due to the opening of the three new gaming properties in the third and fourth quarters of fiscal 1994. Boomtown Reno's gaming revenue decreased 3%, from $43.8 million to $42.6 million due to severe winter weather conditions in the first two fiscal quarters. The new properties, Boomtown Las Vegas, Boomtown Biloxi and Boomtown New Orleans, contributed $32.9 million, $41.7 million and $72.2 million, respectively, to casino revenues. Non-gaming revenues increased $15.5 million from $27.0 million to $42.5 million. The increases were primarily related to the opening of the new gaming properties. Boomtown Biloxi contributed an increase of $1.9 million and $1.6 million from its food and beverage operation and its family entertainment center, respectively in addition to other income of $223,000; Boomtown New Orleans contributed increases of $789,000 and $548,000 from its family entertainment center, its food and beverage operation and the cabaret, respectively, in addition to other income of $374,000; and Boomtown Las Vegas contributed increases of $4.9 million, $2.2 million and $1.2 million from its food and beverage, hotel operations and recreational vehicle park, respectively, in addition to other income of $581,000. Boomtown Reno's non- gaming revenues increased by $717,000 of which $314,000 was due to the opening of a steakhouse in May 1994. The remainder of the increases at Boomtown Reno were related to the family entertainment center, hotel, recreational vehicle park, and entry fees for gaming and golf tournaments. Gaming expenses increased $47.8 million or 153% from fiscal 1994 to fiscal 1995 and as a percent of revenues from 30.2% to 34.1%. Gaming expenses as a percent of total revenues were 29.6%, 31.9%, 41.9% and 34.5% at Boomtown Reno, Boomtown Las Vegas, Boomtown Biloxi, and Boomtown New Orleans, respectively. Except for Boomtown Biloxi, the variance is due primarily to the difference in gaming tax rates. Boomtown 94 Biloxi's variance is primarily due to the addition of the FunFlight program in fiscal 1995 which had operating expenses of $3.1 million and revenues of $1.4 million. In addition, an increase of $5.4 million was related to gaming equipment lease expenses due to the sale and leaseback of certain furniture, fixtures and equipment at the various properties that occurred during the end of the 1994 fiscal year and at the beginning of the 1995 fiscal year. Non-gaming operating expenses consist of costs incurred for food and beverage, hotel, recreational vehicle park, family entertainment center, truckstop, service station, mini-mart and other. Non-gaming operating expenses increased $10.7 million. The increases were primarily related to the opening of the three new gaming properties in fiscal 1994. Marketing, general and administrative expenses increased from $33.3 million in fiscal 1994 to $94.9 million in fiscal 1995, an increase of $61.6 million. This increase was primarily due to the opening of the three new gaming properties ($59.9 million) in fiscal 1994. The remainder of the increase is due to the addition of the player's slot club and promotions related to bus tour programs at Boomtown Reno. Discontinued projects primarily consist of write-offs and accruals for development costs associated with Boomtown's research and pursuit into various gaming jurisdictions for the purpose of applying for gaming licenses. Significant write-offs in the third quarter included development costs related to the following projects; Lawrenceburg, Indiana (approximately $4.3 million), the state of Missouri ($727,000), the state of Iowa ($335,000) and other miscellaneous projects ($220,000). In addition, Boomtown terminated a merger and related agreements with National Gaming Corporation, Inc. in April 1995. As a result, Boomtown wrote-off $450,000 of accumulated expenses related to the transaction. Depreciation and amortization expense increased $4.5 million or 77% but decreased as a percent of revenues. The increase primarily reflects a full years depreciation on the new assets purchased and constructed for Boomtown Las Vegas, Boomtown Biloxi and Boomtown New Orleans during fiscal 1994. The decrease as a percent of total revenues is due to the sale and leaseback of certain furniture, fixtures and gaming equipment at the end of the second quarter totalling approximately $5.2 million. Income from operations improved from a loss from operations of $6.3 million in fiscal 1994 to income from operations of $7.2 million in fiscal 1995, for the reasons set forth above. Interest expense, net of capitalized interest increased by $7.8 million. This was due to a decrease in capitalized interest of $5.2 million offset by an increase in interest expense of $2.6 million. Capitalized interest was significantly higher in the prior fiscal year due to the construction of Boomtown Biloxi, Boomtown Las Vegas and Boomtown New Orleans. Interest expense is higher for fiscal 1995 compared to fiscal 1994 primarily due to the additions of $3.1 million of long-term debt during the end of the fourth quarter of fiscal 1994 and additions of $5.9 million in the second quarter of fiscal 1995. The weighted average long-term debt outstanding and the related interest rate for the year ended September 30, 1995 was $111.9 million and 11.7%, respectively, as compared to $109.1 million and 12.7%, respectively, for the year ended September 30, 1994. Loss on marketable securities was $1.7 million in fiscal 1994 due to a decline in the market value of investments in two short-term government bond funds purchased for approximately $50.0 million. The minority partners' share of operations of the consolidated partnership of Mississippi-I Gaming, L.P. and Louisiana-I Gaming, L.P. are reported as "minority interest." The $1.1 million of loss related to minority interests in fiscal 1995 is comprised of $2.0 million loss related to Mississippi-I Gaming, L.P. offset by $.9 million of income related to Louisiana-I Gaming, L.P. The $352,000 of minority interest in fiscal 1994 is related primarily to the minority interest in Mississippi-I Gaming, L.P. Boomtown has a state income tax provision of $1.1 million related to net income generated from Boomtown New Orleans and a federal income tax benefit of approximately $300,000 during fiscal 1995. Boomtown's federal income tax benefit (effective rate of 15%) is lower than the federal statutory rate due to amortization of goodwill 95 and an increase in nondeductible items as a result of a change in deductibility of meals and entertainment from 80% to 50%. At September 30, 1995, Boomtown had deferred tax assets and deferred tax liabilities of approximately $7.1 million and $8.2 million respectively. Hollywood Park believes that the future benefits from the deferred tax assets will be realized in full. As a result of the factors discussed above, the net loss decreased $5.2 million from a loss of $8.1 million in fiscal 1994 to a loss of $2.9 million in fiscal 1995. POST-REIT PRO FORMA RESULTS OF OPERATIONS The following discussion relates to the pro forma results of operations for each of HP Realty and HP Operating Company, after giving effect to the Reorganization, as well as to the Boomtown Merger and the issuance of the Notes. HP Realty Immediately after the Reorganization, substantially all of HP Realty's revenues will be derived from rent payments made by HP Operating Company under the leases covering the Hollywood Park Race Track, the Hollywood Park-Casino and the Turf Paradise Race Track. See "Business of HP Realty After the Reorganization." Rents payable to HP Realty under these leases will generally be based, subject to certain minimum monthly payments, on varying percentages (based on the source of revenue) of HP Operating Company's revenues from these facilities, including revenues from pari-mutuel wagering, card club gaming revenues and race track concession sales. See "The Reorganization-- Relationship Between the Companies After the Reorganization." Therefore, the pro forma results of operations of HP Realty are almost entirely dependent on the operations of these facilities. HP Realty's pro forma results of operations also include the operations of the Hollywood Park Golf and Sports Center (the "Golf Center") and the Turf Paradise Travel Trailer Park (the "Trailer Park"). Nine months ended September 30, 1997 On a pro forma basis for the nine months ended September 30, 1997, HP Realty recorded total revenues of $10,750,000. Total revenues consisted of rental of property income of $9,810,000, related to the leasing of the Hollywood Park Race Track, the Hollywood Park-Casino and the Turf Paradise Race Tracks to HP Operating Company. Total revenues also included other income of $940,000, primarily attributable to the Golf Center and the Trailer Park. Total pro forma operating expenses during the period equaled $5,829,000. Operating expenses consisted primarily of depreciation and amortization expense of $4,628,000 on the assets leased to HP Operating Company and HP Realty's other assets. Administrative costs of $691,000 consisted primarily of legal costs, audit fees, directors fees and expenses, and general business operating costs. Other expenses of $510,000 were primarily related to the operation of the Golf Center and the Trailer Park. During the period, HP Realty also incurred interest expense of $155,000, relating to general banking fees. Pro forma net income before extraordinary item of $4,766,000 was recorded for the nine months ended September 30, 1997. Assuming that HP Realty's taxable income for this period was equal to its financial statement income for this period and assuming that such nine-month period constituted an entire taxable year, under the Code HP Realty would have been required to distribute at least 95% of this amount (approximately $4,528,000) to stockholders as dividends. Year ended December 31, 1996 On a pro forma basis for the year ended December 31, 1996, HP Realty recorded total revenues of $15,777,000. Total revenues consisted of rental of property income of $14,623,000, related to the leasing of the 96 Hollywood Park Race Track, the Hollywood Park-Casino and the Turf Paradise Race Tracks to HP Operating Company. Total revenues also included other income of $1,154,000, primarily attributable to interest income and the Golf Center and Trailer Park. Total pro forma operating expenses during the period equaled $7,746,000. Operating expenses consisted primarily of depreciation and amortization expense of $6,134,000 on the assets leased to HP Operating Company and HP Realty's other assets. Administrative costs of $937,000 consisted primarily of legal costs, audit fees, directors fees and expenses, and general business operating costs. Other expenses of $675,000 were primarily related to the operation of the Golf Center and the Trailer Park. During the period, HP Realty also incurred interest expense of $134,000, relating to general banking fees. Pro forma net income before extraordinary item of $7,897,000 was recorded for the year ended December 31, 1996. Assuming that HP Realty's taxable income for this period was equal to its financial statement income for this period, under the Code HP Realty would have been required to distribute at least 95% of this amount (approximately $7,502,000) to stockholders as dividends. HP Operating Company Immediately after the Reorganization, HP Operating Company will be the owner of all of Hollywood Park's current assets and operating businesses except for (i) the land and facilities at the Hollywood Park property in Inglewood, California, (ii) the land and facilities at the Turf Paradise property in Phoenix, Arizona, (iii) the Golf Center operations, and (iv) the Trailer Park operations. See "Business of HP Operating Company After the Reorganization." HP Operating Company's pro forma revenues (both by sources and by levels of revenues) are substantially the same as the combined revenues of Hollywood Park and Boomtown. In addition, HP Operating Company's pro forma expenses are substantially the same as the combined expenses of Hollywood Park and Boomtown, except HP Operating Company's pro forma expenses also include rent payments to HP Realty on the Hollywood Park Race Track, the Hollywood Park- Casino and the Turf Paradise Race Track. See "--Results of Operations-- Hollywood Park" and "--Results of Operations--Boomtown" above. Nine months ended September 30, 1997 On a pro forma basis, total revenues for HP Operating Company were $258,365,000 during the nine months ended September 30, 1997. Total revenues primarily consisted of gaming revenues of $167,339,000 from the three Boomtown casinos and the two California card clubs, and racing revenues of $48,084,000 from the Hollywood Park Race Track and the Turf Paradise Race Track. During the period, HP Operating Company also recorded revenues of $17,937,000 from food and beverage sales at its casinos and race tracks, $11,467,000 from the operations of the truck stop and service station at Boomtown Reno, and $1,376,000 from the operations of the hotel and recreational vehicle park at Boomtown Reno. In addition, HP Operating Company recorded other revenue of $12,162,000, consisting primarily of other non-gaming revenues at the Boomtown properties and parking fees paid by Great Western Forum patrons at the Hollywood Park Race Track property. Total pro forma operating expenses during the nine months ended September 30, 1997 were $238,608,000. Included in total operating expenses for the period was rental of property expense of $9,810,000 relating to the rental of the Hollywood Park Race Track, the Hollywood Park-Casino and the Turf Paradise Race Track. All other operating expenses were related to the various businesses and subsidiaries of HP Operating Company. Interest expense was recorded with respect to the Notes, the remaining outstanding Boomtown Notes and the short term borrowing against the Bank Credit Facility. The short term borrowing was used to fund the redemption of the majority of the Boomtown Notes, and was repaid with the proceeds from the issuance of the Notes. Because, as between HP Realty and HP Operating Company, HP Operating Company has agreed to by primarily responsible for payments on the Notes, all of the interest expense on the Notes during the period has been allocated to HP Operating Company and none has been allocated to HP Realty. See "The Reorganization--Allocation of Indebtedness." 97 Pro forma income before minority interests and income taxes for the period was $8,861,000. After deducting minority interest of $80,000 and income tax expense of $3,925,000, pro forma income before extraordinary item for the nine months ended September 30, 1997 was $4,856,000. Year ended December 31, 1996 On a pro forma basis, total revenues for HP Operating Company were $335,429,000 during the year ended December 31, 1996. Total revenues primarily consisted of gaming revenues of $208,699,000 from the three Boomtown casinos and the two California card clubs, and racing revenues of $71,308,000 from the Hollywood Park Race Track and the Turf Paradise Race Track. During the period, HP Operating Company also recorded revenues of $22,737,000 from food and beverage sales at its casinos and race tracks, $14,700,000 from the operations of the truck stop and service station at Boomtown Reno, and $1,683,000 from the operations of the hotel and recreational vehicle park at Boomtown Reno. In addition, HP Operating Company recorded other revenue of $16,302,000, consisting primarily of other non-gaming revenues at the Boomtown properties and parking fees paid by Great Western Forum patrons at the Hollywood Park Race Track property. Total pro forma operating expenses during the year ended December 31, 1996 were $361,543,000. Included in total operating expenses for the period was rental of property expense of $14,623,000 relating to the rental of the Hollywood Park Race Track, the Hollywood Park-Casino and the Turf Paradise Race Track. A one time non-cash write off of HP Operating Company's investment in Sunflower of $11,412,000 was recorded during the year ended December 31, 1996, due to Sunflower's inability to effectively compete with nearby Missouri riverboat gaming. On May 17, 1996, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code. Also included in total expenses during the period was a one time charge of $36,563,000 related to the disposition of Boomtown's Las Vegas property. See "--Results of Operations--Boomtown-- Disposition of Boomtown Las Vegas." All other operating expenses were related to the various businesses and subsidiaries of post-Reorganization HP Operating Company. Interest expense of $15,334,000 was recorded during the period on the Notes and the Boomtown's First Mortgage Notes. Pro forma loss before minority interests and income taxes for the period was $41,448,000. After crediting minority interest of $149,000 and income tax benefit of $131,000, pro forma loss before extraordinary item for the year ended December 31, 1996 was $41,168,000. LIQUIDITY AND CAPITAL RESOURCES Hollywood Park's principal source of liquidity as of September 30, 1997, was cash and cash equivalents of $22,007,000. Cash and cash equivalents increased by $10,085,000 during the nine months ended September 30, 1997. Net cash provided by operating activities was $6,059,000. Net cash used by investing activities was $5,884,000. Cash used for capital assets of $23,059,000 included amounts spent for the purchase of a new riverboat for Boomtown New Orleans, the down payment on the purchase of the barge for Boomtown Biloxi, and normal and necessary capital improvements. Cash provided by investing activities related to the cash acquired from Boomtown in the Boomtown Merger (net of Hollywood Park's merger costs) and by the liquidation of the Company's short term corporate bond investments. Net cash provided by financing activities was $9,910,000. Cash of $125,000,000 was raised with the issuance of the Notes on August 6, 1997 (as described below). Cash of approximately $110,924,000 was used to redeem a majority of Boomtown's 11.5% First Mortgage Notes. Cash was disbursed for the payment of the preferred stock dividend through the date of conversion. Cash payments were also made on a variety of secured notes for gaming and other operating assets held by the various Boomtown properties, including the approximately $2,107,000 payment of a Boomtown New Orleans note payable on the original riverboat. Cash and cash equivalents decreased by $6,723,000 during the nine months ended September 30, 1996. Net cash provided by operating activities was $11,761,000. Net cash used in investing activities was $14,692,000, 98 which included disbursements for the construction of the Crystal Park Casino, along with normal and necessary capital improvements. Net cash used in financing activities was $3,792,000, which included the payment of a secured note, the payment of dividends on the preferred stock, and the repurchase of the Company's common stock, netted against cash received from the minority members of Crystal Park LLC. Hollywood Park. On June 30, 1997, Hollywood Park and a bank syndicate led by Bank of America finalized the Bank Credit Facility, a reducing revolving credit facility allowing for drawings up to $225,000,000. On August 7, 1997, the Bank Credit Facility was reduced by $125,000,000 (the aggregate principal amount of the Notes issued as described below) to $100,000,000. Of such $100,000,000, approximately $83.6 million was available at September 30, 1997, as a result of covenant limitations. The Bank Credit Facility is secured by substantially all of the assets of Hollywood Park and its significant subsidiaries, and imposes certain customary affirmative and negative covenants. The Bank Credit Facility has been amended twice. The first amendment, among other matters, reduced the availability of the facility until the Bank Credit Facility was approved by the Louisiana Gaming Control Board. Hollywood Park received this approval on July 10, 1997. The second amendment, among other things, allowed the co-issuance of the Notes by HP Operating Company with Hollywood Park. Debt service requirements on the Bank Credit Facility consist of current interest payments on outstanding indebtedness through September 30, 1999. As of September 30, 1999, and on the last day of each third calendar month thereafter, through June 30, 2001, the Bank Credit Facility will decrease by 7.5% of the commitment in effect on September 30, 1999. As of September 30, 2001, and on the last day of each third calendar month thereafter, the Bank Credit Facility will decrease by 10% of the commitment in effect on September 30, 1999. Any principal amounts outstanding in excess of the Bank Credit Facility commitment, as so reduced, will be payable on such quarterly reduction dates. The Bank Credit Facility provides for a letter of credit sub-facility of $10,000,000, of which $2,035,000 is currently outstanding for the benefit of Hollywood Park's California self insured workers' compensation program. The facility also provides for a swing line sub-facility of up to $10,000,000. Borrowings under the Bank Credit Facility bear interest at an annual rate determined, at the election of Hollywood Park, by reference to the "Eurodollar Rate" (for interest periods of 1, 2, 3 or 6 months) or the "Reference Rate", as such terms are respectively defined in the Bank Credit Facility, plus margins which vary depending upon Hollywood Park's ratio of funded debt to earnings before interest, taxes, depreciation and amortization ("EBITDA"). The margins start at 1.25% for Eurodollar loans and at 0.25% for Base Rate loans, at funded debt to EBITDA ratio of less than 1.50%. Thereafter, the margin for each type of loan increases by 25 basis points for each increase in the ratio of funded debt to EBITDA of 50 basis points or more, up to 2.625% for Eurodollar loans and 1.625% for Base Rate loans. However, if the ratio of senior funded debt to EBITDA exceeds 2.50%, the applicable margins will increase to 3.25% for Eurodollar loans, and 2.25% for Base Rate loans. Thereafter, the margins would increase by 25 basis points for each increase in the ratio of senior funded debt to EBITDA of 50 basis points or more, up to a maximum of 4.25% for Eurodollar loans and 3.25% for Base Rate loans. The applicable margins as of September 30, 1997, were 1.75% with respect to the Eurodollar Rate based interest rate and 0.75% with respect to the Base Rate interest rate. The Bank Credit Facility allows for interest rate swap agreements, or other interest rate protection agreements, up to a maximum notional amount of $125,000,000. Presently, Hollywood Park does not utilize such financial instruments, though it may in the future. Hollywood Park pays a quarterly commitment fee for the average daily amount of unused portions of the Bank Credit Facility. The commitment fee is also dependent upon Hollywood Park's ratio of funded debt to EBITDA. The commitment fee for the Bank Credit Facility starts at 31.25 basis points when the ratio is less than 1.00, and increases by 6.25 basis points for each increase in the ratio of 0.50, up to a maximum of 50 basis points. For the quarter beginning October 1, 1997, this fee is 43.75 basis points. 99 On July 3, 1997, Hollywood Park borrowed $112,000,000 from the Bank Credit Facility to fund Boomtown's offer to purchase the Boomtown Notes, and repaid this amount on August 7, 1997, with a portion of the proceeds from the August 6, 1997, issuance of $125,000,000 of Series A 9.5% Senior Subordinated Notes due 2007 (together with any Series B Notes issued in exchange for the Series A Notes, the "Notes"). The Notes were co-issued by Hollywood Park and HP Operating Company. The balance of the proceeds from the issuance of the Notes was primarily used for the purchase of a new riverboat for Boomtown New Orleans, and other general corporate needs. Interest on the Notes is payable semi-annually, on February 1st and August 1st. The Notes will be redeemable at the option of Hollywood Park and HP Operating Company, in whole or in part, on or after August 1, 2002, at a premium to face amount, plus accrued interest, with the premium to the face amount decreasing on each subsequent anniversary date. The Notes are unsecured obligations of Hollywood Park and HP Operating Company, guaranteed by all other material restricted subsidiaries of either Hollywood Park or HP Operating Company. The indenture governing the Notes contains certain covenants that, among other things, limit the ability of Hollywood Park, HP Operating Company and their restricted subsidiaries to incur additional indebtedness and issue preferred stock, pay dividends or make other distributions, repurchase equity interests or subordinated indebtedness, create certain liens, enter into certain transactions with affiliates, sell assets, issue or sell equity interests in their respective subsidiaries or enter into certain mergers and consolidations. As of February 9, 1998, Hollywood Park had outstanding under the Bank Credit Facility borrowings of $10 million and a $2 million letter of credit. It is anticipated that, in connection with the Reorganization, Hollywood Park will repay any outstanding borrowings under the Bank Credit Facility, and HP Realty and HP Operating Company will negotiate new lines of credit that will reflect their separate existence. Although Hollywood Park believes that the Reorganization may enable HP Realty and HP Operating Company to borrow on favorable terms after the Reorganization, negotiations have not commenced with any banks regarding new lines of credit, and there can be no assurance that HP Realty and HP Operating Company will be able to obtain bank lines of credit on as favorable terms as the terms of the Bank Credit Facility. See "Risk Factors--Need for Third-Party Financing." Furthermore, following the Reorganization, HP Realty and HP Operating Company will be required to make an offer to repurchase the Notes at 101% of the aggregate principal amount of the Notes (or if there is a decline in the rating of the Notes as a result of the Reorganization, the repurchase price shall be 102%), plus accrued and unpaid interest to the date of repurchase. If HP Realty and HP Operating Company are required to repurchase a significant portion of the Notes, there can be no assurance that financing to replace such Notes will be available on favorable terms. See "Risk Factors--Dependence on Future Borrowings." See "The Reorganization--Allocation of Indebtedness" for a discussion of the anticipated effect of the Reorganization on the Notes. On July 1, 1997, in connection with the divestiture of Boomtown's Las Vegas property, Hollywood Park issued an unsecured promissory note of approximately $3,465,000 to purchase the Hollywood Park Common Stock issued to Roski in the Boomtown Merger. The promissory note bears interest equal to the Bank of America reference rate plus 1.0%. Interest is payable annually with five annual principal payments of approximately $693,000 commencing July 1, 1998. During the nine months ended September 30, 1997, Hollywood Park paid dividends of $1,520,000 on its convertible preferred stock, representing $70.00 per share, or $0.70 per depositary share. Effective August 28, 1997, the Company's 2,749,900 outstanding Depositary Shares were converted into approximately 2,291,500 shares of its common stock, thereby eliminating the annual preferred cash dividend payment of approximately $1,925,000 for future periods. As of September 30, 1997, Hollywood Park liquidated its investments in corporate bonds. During the nine months ended September 30, 1997, proceeds from the sale or redemption of the corporate bond investments were approximately $4,766,000, with gross realized gains and losses of approximately $9,000, and $88,000, respectively. 100 Effective December 4, 1997, HP/Compton, Inc., a wholly-owned subsidiary of Hollywood Park, purchased First Park Investments, LLC's (owned by Mr. and Mrs. Chu) 3.4% membership interest in Crystal Park LLC for $1,000,000, increasing Hollywood Park's ownership in Crystal Park LLC to 93.2%. Boomtown. In November 1993, Boomtown sold $103,500,000 of the Boomtown Notes. On July 3, 1997, pursuant to a tender offer, Boomtown repurchased and retired approximately $102,142,000 in principal amount of the Boomtown Notes, at a purchase price of $1,085 per $1,000 in principal amount, along with accrued interest thereon. As a result of the Boomtown Merger, Boomtown, as required under the indenture governing the Boomtown Notes, initiated a change in control purchase offer at a price of $1,010 for each $1,000 for the remaining approximately $1,358,000 aggregate principal amount of Boomtown Notes outstanding. This change in control purchase offer was completed on August 12, 1997, with only $105,000 of the remaining Boomtown Notes tendered. On August 4, 1997, Hollywood Park executed a promissory note pursuant to which one of the Hollywood Park entities purchased the barge and the building shell at Boomtown Biloxi for a total cost of $5,250,000. A payment of $1,500,000 was made on August 4, 1997, with the balance due of $3,750,000 payable in three equal annual installments of $1,250,000. Interest on the promissory note is equal to the prime interest rate in effect on the first day of the quarterly period. The principal amount of the promissory note, together with accrued interest, may be repaid, without penalty, in whole or in part, at any time. On August 7, 1997, Boomtown New Orleans prepaid the 13.0% note payable secured by the original riverboat, currently in use. The cost of the prepayment (inclusive of a 1.0% prepayment penalty) was approximately $2,107,000. As of August 8, 1997, Boomtown New Orleans became wholly-owned by Hollywood Park. Previously, Boomtown New Orleans was owned and operated by the Louisiana Partnership, of which 92.5% was owned by Hollywood Park with the remaining 7.5% owned by Eric Skrmetta ("Skrmetta"). On November 18, 1996, Boomtown entered into an agreement with Skrmetta under which it would pay approximately $5,670,000 in return for Skrmetta's interest in the Louisiana Partnership. Under the terms of the agreement, Boomtown made a down payment of $500,000, and Hollywood Park paid the remaining $5,170,000 on August 8, 1997. On September 25, 1997, Hollywood Park acquired the Crescent City Queen (to be renamed Boomtown Belle II) riverboat from Casino Magic Corporation, at a cost of approximately $11,700,000. Hollywood Park will invest approximately $4,700,000 to renovate and equip the Boomtown Belle II, which is expected to be placed in service mid-December 1997. As of September 30, 1997, Boomtown had two notes payable for gaming and other operating equipment totaling approximately $359,000. Boomtown also has various capital lease obligations for gaming and other operating equipment, totaling approximately $2,055,000. In connection with the sale of its Las Vegas property, Boomtown took back two notes receivable from Edward P. Roski, Jr., the former lessor of the Las Vegas property, totaling approximately $8,465,000. The first note receivable is for $5,000,000, bearing interest at Bank of America's reference rate plus 1.5% per year, with annual principal payments of $1,000,000 plus accrued interest commencing on July 1, 1998. The second note is for approximately $3,465,000, bearing interest at Bank of America's reference rate plus 0.5% per year, with the principal and accrued interest payable, in full, on July 1, 2000. Sunflower. On March 24, 1994, an Amended and Restated Credit and Security Agreement (the "Sunflower Senior Credit") was executed between Sunflower and five banks in connection with Hollywood Park's acquisition of Sunflower. As of September 30, 1997, the outstanding balance of the Sunflower Senior Credit was $28,667,000. The Sunflower Senior Credit is non-recourse to Hollywood Park. 101 On May 17, 1996, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code. The Cash Collateral Agreement suspended any interest or principal payments on the Sunflower Senior Credit until August 12, 1997. The Bankruptcy Court has issued an order extending the Cash Collateral Agreement until it issues its pending ruling regarding approval of Sunflower's proposed plan of reorganization. The Cash Collateral Agreement requires Sunflower to make certain cash payments to Wyandotte County, Kansas, the creditors under the Sunflower Credit and Trak East (the unaffiliated operator of racing at Sunflower). On July 15, 1997, Sunflower presented to the Bankruptcy Court a plan of reorganization (the "Plan") which provides for the sale of Sunflower's property to the Wyandotte Tribe of Oklahoma (the "Wyandotte Tribe"). Under the Plan, some or all of the land would be held by the United States Government in trust for the Wyandotte Tribe, and a casino would be developed on the property. Upon completion of the casino, HP Kansas, Inc. (a wholly-owned subsidiary of Hollywood Park) and a partner (North American Sports Management or an affiliate) will provide consulting services to the casino. Under this arrangement, HP Kansas would be entitled to receive a share of the revenues of the casino. Under the plan, in order to allow the property to be released as collateral and sold to the Wyandotte Tribe, Sunflower will be required to have standby letters of credit issued to support certain payments to be made to the lenders under the Sunflower Senior Credit and the Wyandotte County Treasurer's office. The aggregate amount of such letters of credit is anticipated to be in excess of $29 million. Hollywood Park will arrange for the issuance of such letters of credit on behalf of Sunflower. In 1995, under a promissory note executed in December 1994, between Hollywood Park and Sunflower, Hollywood Park advanced $2,500,000 to Sunflower to make certain payments due on the Sunflower Senior Credit. The amounts borrowed under the promissory note, along with accrued interest, are subordinate to the Sunflower Senior Credit. Although Hollywood Park will continue to pursue payment of the promissory note, for financial reporting purposes the outstanding balance of the promissory note was written off as of March 31, 1996. Capital commitments; Expansion costs. As of September 30, 1997, Hollywood Park had one material capital commitment of approximately $9,000,000 with respect to construction of the casino for the Yakama expansion, as previously described. Expansion Costs. In addition to the financing needs discussed above, and the capital needed for construction of the casino for the Yakama expansion, Hollywood Park has other potential capital needs with respect to the Boomtown Reno and Boomtown New Orleans. The Company expects to spend approximately $25,000,000 on the expansion and renovation of Boomtown Reno, including additional hotel rooms, expanded gaming space and other amenities, which is expected to be completed by the end of 1998. The Company also expects to spend approximately $10,000,000 on the expansion and upgrade of Boomtown New Orleans, including the build-out of the second floor of the land-based facility which is expected to be completed by mid-1998. The Boomtown New Orleans Boomtown Belle II riverboat renovation is expected to cost approximately $4,700,000 and is expected to be completed by the end of the first quarter of 1998. Post-REIT Pro Forma Liquidity and Capital Resources. On a pro forma basis, as of September 30, 1997, HP Realty's principal source of liquidity was cash and cash equivalents of $3,567,000 and HP Operating Company's principal source of liquidity was cash and cash equivalents of $18,440,000. Under the Code's REIT provisions, after the Reorganization HP Realty will be required to distribute as dividends to its stockholders at least 95% of its taxable income (other than net capital gains). Therefore, assuming taxable income was equal to financial statement income for the relevant periods, HP Realty would have been required to make pro forma dividend distributions of at least $4,528,000 and $7,502,000 during the nine months ended September 30, 1997, and the year ended December 31, 1996, respectively. These dividends would have been funded out of operating cash flows. It is expected that, after the Reorganization, HP Realty will be able to fund its dividend obligations and other general business operating needs from the operating cash flows generated from the rental of real estate assets. HP Realty is expected to fund any state and federal tax liabilities arising from the Reorganization transactions by drawing on bank lines of credit. Based on estimates prepared by 102 Hollywood Park, the amount of such tax liabilities could be approximately $54 million, although there can be no assurance that the actual amount will not be significantly higher. See "Risk Factors--Uncertain Amount of Corporate and Stockholder Tax Liability." After the Reorganization, due to its obligation to make rent payments to HP Realty (which were approximately $9,810,000 and $14,523,000 during the nine months ended September 30, 1997, and the year ended December 31, 1996, respectively) and the seasonality of the horse racing and gaming businesses, it is expected that HP Operating Company may be required to make short term borrowings against its bank lines of credit to fund general business needs. It is expected that such borrowings may be required during the first and fourth calendar quarters of each year, but there can be no assurance that borrowings would not be required during other periods. Furthermore, as stated above, after the Reorganization HP Realty and HP Operating Company will need to negotiate new bank lines of credit, and there can be no assurance that such bank lines of credit will be obtained on terms as favorable as those of the Bank Credit Facility. General. Hollywood Park is continually evaluating future growth opportunities in the gaming, sports and entertainment industries. After the Reorganization, HP Realty and HP Operating Company will continue to evaluate these opportunities. See "The Reorganization--Business Strategies of the Reorganized Companies." Hollywood Park expects that funding for growth opportunities, payment of interest on the Notes, payments on notes payable and capital expenditure needs will come from existing cash balances, cash generated from operating activities and borrowings from the credit facilities. In the opinion of management, assuming the Bank Credit Facility is refinanced on favorable terms and the Notes are not redeemed (or if redeemed, they are refinanced on comparable terms), these resources will be sufficient to meet Hollywood Park's (and after the Reorganization, HP Realty and HP Operating Company's) anticipated cash requirements for the foreseeable future and in any event for at least the next twelve months. 103 DESCRIPTION OF CAPITAL STOCK OF THE COMPANIES In connection with the Reorganization, (i) Hollywood Park's Certificate of Incorporation, as amended for the Reorganization Amendments and (if approved) the Supermajority Elimination Amendment and the Gaming Amendment, will become HP Realty's Certificate of Incorporation (the "HP Realty Charter"), (ii) HP Operating Company's Certificate of Incorporation (the "HP Operating Company Charter") will be amended to be substantially similar to the HP Realty Charter, and (iii) HP Realty's (formerly Hollywood Park's) By-Laws and HP Operating Company's By-Laws (respectively, the "HP Realty By-Laws" and "HP Operating Company By-Laws") will be amended to provide for the pairing of HP Realty Common Stock and HP Operating Company Common Stock. Following the Reorganization, the rights of stockholders of HP Realty and HP Operating Company will be governed by the HP Realty Charter and the HP Operating Company Charter (collectively, the "Charters"), the HP Realty By-Laws and the HP Operating Company By-Laws (collectively, the "By-Laws"), and will continue to be governed by the Delaware General Corporation Law. The following discussion summarizes the material terms of the Charters and the By-Laws. This summary does not purport to be complete and is subject to and qualified in its entirety by reference to the Charters and the By-Laws and the relevant provisions of the Delaware General Corporation Law. The HP Realty Charter and the HP Operating Company Charter, as they will be amended and restated following completion of the Reorganization (and assuming stockholder approval of the Supermajority Elimination Amendment and the Gaming Amendment), are attached hereto as Appendices A and B, respectively. Sections 7.2 and 7.6 (relating to the pairing of the HP Realty Common Stock and HP Operating Company Common Stock) of each of the HP Realty By-Laws and the HP Operating Company By-Laws, as they will be amended as of the completion of the Reorganization, are attached hereto as Appendices C and D, respectively. Upon consummation of the Reorganization, under the Charters, each of HP Realty and HP Operating Company will have the authority to issue 40,000,000 shares of preferred stock, $.01 par value ("Preferred Stock"), 100,000,000 shares of common stock, $.01 par value ("Common Stock"), and 25,000,000 shares of excess common stock, $.01 par value ("Excess Stock"). HP Realty will also have the authority to issue 1,000 shares of common stock, $.10 par value ("Unpaired Common Stock"). No shares of Preferred Stock, Excess Stock or Unpaired Common Stock will be outstanding immediately following the consummation of the Reorganization. COMMON STOCK The holders of paired shares of HP Realty Common Stock and HP Operating Company Common Stock will be entitled to one vote per share on all matters voted on by stockholders of each Company, including elections of directors. Except as otherwise required by law, by the Charters with respect to Excess Stock or Unpaired Common Stock, or provided in any resolution adopted by the Board of Directors of either HP Realty or HP Operating Company with respect to any series of Preferred Stock, the holders of paired shares of HP Realty Common Stock and HP Operating Company Common Stock exclusively possess all voting power. The Charters do not provide for cumulative voting in the election of directors. Subject to any preferential rights of any outstanding series of Preferred Stock and the rights of holders of Excess Stock and Unpaired Common Stock, the holders of paired shares of HP Realty Common Stock and HP Operating Company Common Stock are entitled to such dividends as may be declared from time to time by the Board of Directors of HP Realty or HP Operating Company from funds legally available for such purpose, and upon liquidation will be entitled to receive pro rata all assets of HP Realty and HP Operating Company available for distribution to such holders. Upon consummation of the Reorganization, all issued and outstanding paired shares of HP Realty Common Stock and HP Operating Company Common Stock will be fully paid and nonassessable, and the holders thereof will not have preemptive rights. PREFERRED STOCK The Charters provide that each of HP Realty and HP Operating Company may, by vote of its Board of Directors, issue up to 40,000,000 shares of Preferred Stock, $.01 par value, in one or more series, and that its 104 Board may fix the voting powers, preferences and relative, participating, optional or other rights, or the qualifications, limitations or restrictions thereon (including dividend rights, dividend rates, conversion rights, voting rights, terms of redemption, redemption prices, liquidation preferences) and the number of shares constituting any series or designation of such series, without further vote or action by the stockholders. Neither HP Realty nor HP Operating Company may authorize any series of Preferred Stock unless the certificate of designations governing the terms of such series contains restrictions on ownership and transfer substantially similar to those applicable to the Common Stock and a corresponding series of excess preferred stock is simultaneously authorized. The issuance of Preferred Stock may have the effect of delaying, deferring or preventing a change in control of the companies without further action by the stockholders (and as such may be used as an anti-takeover device) and may adversely affect the voting and other rights of the holders of HP Realty Common Stock and HP Operating Company Common Stock. The issuance of Preferred Stock with voting and conversion rights may adversely affect the voting power of the holders of HP Realty Common Stock and HP Operating Company Common Stock, including the loss of voting control to others. Depending on the terms of a particular series of Preferred Stock and other circumstances, the issuance of Preferred Stock could also reduce funds available for distribution to holders of HP Realty Common Stock and HP Operating Common Stock as dividends or upon liquidation of the companies. EXCESS STOCK In the event of a violation of certain transfer restrictions contained in the Charters, shares of HP Realty Common Stock and HP Operating Company Common Stock will automatically be converted into an equal number of shares of Excess Stock of HP Realty and HP Operating Company, and transferred to a trust (a "Trust"). The Excess Stock held in trust shall remain outstanding and will be held by the trustee of the Trust (the "Trustee") for the benefit of a charitable beneficiary (a "Beneficiary"). The Trustee and the Beneficiary will be designated by mutual agreement of the HP Realty and HP Operating Company Boards of Directors pursuant to the terms of the Pairing Agreement. Each share of Excess Stock will entitle the holder to the number of votes the holder would have if such share of Excess Stock was a share of Common Stock, on all matters submitted to a vote of stockholders. The Trustee, as record holder of the Excess Stock, will be entitled to vote all shares of Excess Stock. Each share of Excess Stock will be entitled to the same dividends and distributions (as to timing and amount) as the shares of the Common Stock from which such Excess Stock was converted. The Trustee of the Trust, as record holder of the Excess Stock, will be entitled to receive all dividends and distributions and will hold such dividends and distributions in trust for the benefit of the Beneficiary of the Trust. Upon the sale of the shares of Excess Stock to either a permitted transferee under the Charters (the "Permitted Transferee") or to HP Realty and HP Operating Company (if the Companies exercise their option in the Charters to repurchase the Excess Stock), such shares of Excess Stock will be automatically converted into an equal number of shares of Common Stock. See "--Certain Provisions of the Charters and Bylaws--Restrictions on Ownership and Transfer." UNPAIRED COMMON STOCK In connection with the Reorganization, all outstanding shares of Unpaired Common Stock (also referred to in this Proxy Statement as "Hollywood Park Common Stock") will be converted into shares of HP Realty Common Stock. Following the Reorganization, there will be no shares of Unpaired Common Stock issued or outstanding and HP Realty will be prohibited from issuing any shares of Unpaired Common Stock while the Pairing Agreement is in effect. By the terms, Unpaired Common Stock (i) shares ratably (in proportion to the number of shares held) with HP Realty Common Stock in any dividends or other distributions (including distributions upon liquidation or dissolution) by HP Realty, (ii) except as may be otherwise required by law, votes together (on the basis of one vote per share) with HP Realty Common Stock without regard to class on all matters upon which stockholders are entitled to vote or to which stockholders are entitled to give consent, and (iii) except as may be otherwise required by law, has identical rights, preferences, privileges and restrictions (including rights in liquidation) as HP Realty Common Stock, except that Unpaired Common Stock will not be 105 subject to the restrictions on ownership and transfer described below that are contained in HP Realty's Charter and By-Laws and in the Pairing Agreement. See "--The Pairing Agreement" and "--Certain Provisions of the Charters and By- Laws--Restrictions on Ownership and Transfer." THE PAIRING AGREEMENT Under the Pairing Agreement, shares of HP Realty Common Stock and HP Operating Company Common Stock and shares of Preferred Stock that are convertible into shares of HP Realty Common Stock and HP Operating Company Common Stock (collectively, "Paired Stock") shall not be transferrable or transferred on the books of either HP Realty or HP Operating Company unless a simultaneous transfer is made by the same transferor to the same transferee of an equal number of shares of that same class or series of Paired Stock of the other company. Neither HP Realty nor HP Operating Company may issue shares of HP Realty Common Stock and HP Operating Company Common Stock or shares of Preferred Stock that are convertible into shares of HP Realty Common Stock and HP Operating Company Common Stock unless provision has been made for the simultaneous issuance or transfer to the same person of the same number of shares of that same class or series of Paired Stock of the other company and for the pairing of such shares. The Pairing Agreement also provides for (i) the simultaneous issuance and pairing of Excess Stock upon the violation of the REIT Restrictions, and (ii) either the simultaneous conversion of the Excess Stock of each company back into paired HP Realty Common Stock and HP Operating Company Common Stock (if the Excess Stock is transferred to a Permitted Transferee) or the simultaneous repurchase by HP Realty and HP Operating Company of their respective Excess Stock (if the companies exercise their option to repurchase the Excess Stock). To permit proper allocation of the consideration received in connection with the issuance of shares of Paired Stock by HP Realty and HP Operating Company, the Pairing Agreement provides that HP Realty and HP Operating Company shall, as desired from time to time, jointly make arrangements to determine the fair market value of the stock of each corporation. The Pairing Agreement requires that each certificate issued for paired shares of HP Realty or HP Operating Company must be issued "back-to-back" with a certificate evidencing the same number of shares of the other company. The certificates must bear a conspicuous legend on its face referring to the restrictions on ownership and transfer under the Pairing Agreement. In addition, neither HP Realty nor HP Operating Company may declare a stock dividend, issue any rights or warrants or otherwise reclassify shares unless the other company simultaneously takes the same or equivalent action. The Pairing Agreement and the Pairing may be terminated by either HP Realty or HP Operating Company upon thirty days' written notice provided that such termination has been approved by the affirmative vote of the holders of a majority of the outstanding shares of both HP Realty and HP Operating Company. The Pairing Agreement may be amended by action of the Boards of Directors of HP Realty and HP Operating Company unless the amendment would affect the restriction requiring the stock subject to pairing to be transferred only in combination, in which case stockholder approval as outlined in this paragraph would be required. CERTAIN PROVISIONS OF THE CHARTERS AND BY-LAWS Restrictions on Ownership and Transfer For HP Realty to qualify as a REIT under the Code, it must meet certain requirements concerning the ownership of its outstanding shares of capital stock and the nature of its gross income. See "The Reorganization--Federal Income Tax Consequences." To protect HP Realty's qualification as a REIT, the Charters provide that no person or entity may Beneficially Own or Constructively Own (as those terms are defined in the Charters) in excess of 9.8% (the "Ownership Limit") of the outstanding shares of Common Stock of HP Realty or HP Operating Company. Any transfer of Common Stock of HP Realty or HP Operating Company or other event that would (i) result in any person or entity owning, directly or indirectly, shares of Common Stock of HP Realty or HP Operating Company in excess of the Ownership Limit, unless the Ownership Limit is waived by the Board of Directors of the relevant corporation in accordance with the Charters, (ii) result in the capital stock of HP Realty being beneficially owned 106 (within the meaning of Section 856(a)(5) of the Code) by fewer than 100 persons within the meaning of Section 856(a)(5) of the Code, (iii) result in HP Realty being "closely held" within the meaning of Section 856(h) of the Code (i.e., more than 50% in value of HP Realty's outstanding stock being owned, directly or indirectly, by five or fewer individuals (defined in the Code to include certain entities)) or (iv) cause HP Realty to own, actually or constructively, 10% or more of the ownership interests in a tenant of the real property of HP Realty or a subsidiary of HP Realty within the meaning of section 856(d)(2)(B) of the Code, shall be void ab initio, and the intended transferee will acquire no right or interest in such shares of Common Stock. Upon the occurrence of a purported transfer of shares or other event that would result in a violation of any of the foregoing transfer restrictions, the shares violating the transfer restrictions shall be automatically converted into an equal number of shares of Excess Stock and transferred to a Trust for the benefit of the Beneficiary, and the record holder of the shares of Common Stock that are converted into shares of Excess Stock (a "Prohibited Owner") shall submit certificates representing these shares to HP Realty or HP Operating Company, as the case may be, for registration in the name of the Trustee. In the case of Common Stock that is paired, upon the conversion of a share of Common Stock into a share of Excess Stock, the corresponding paired share of Common Stock of the other company shall simultaneously be converted into a share of Excess Stock of the other company; and such shares of Excess Stock shall be paired and shall be simultaneously transferred to a Trust. The Excess Stock so transferred to a Trust shall be held in trust for the exclusive benefit of the Beneficiary, and shall have the voting, dividend and other rights described above. See "--Excess Stock." The Prohibited Owner must repay to the Trust the amount of any dividends or distributions received by it (i) that are attributable to any shares of Common Stock that have been converted into shares of Excess Stock and (ii) the record date of which was on or after the date that such shares were converted into shares of Excess Stock. HP Realty and HP Operating Company shall take all measures that they determine reasonably necessary to recover the amount of any such dividend or distribution paid to a Prohibited Owner. In the event of any voluntary or involuntary liquidation of, or winding up of, or any distribution of the assets of, HP Realty or HP Operating Company, each holder of shares of Excess Stock shall be entitled to receive, ratably with each other holder of shares of Common Stock, that portion of the assets of HP Realty or HP Operating Company, as the case may be, that is available for distribution to the holders of Common Stock. The Trust shall distribute to the Prohibited Owner the amounts received upon such event; provided that the Prohibited Owner shall not be entitled to receive amounts in excess of, in the case of a purported transfer in which the Prohibited Owner gave value for shares of Common Stock and which transfer resulted in the conversion of the shares into shares of Excess Stock, the price per share the Prohibited Owner paid for the shares of Common Stock (which, in the case of Common Stock that is paired, shall equal the price paid per share multiplied by the most recent Valuation Percentage (as hereinafter defined)) and, in the case of a transfer or other event in which the Prohibited Owner did not give value for such shares (e.g., if the shares were received through a gift or devise) and which transfer or other event resulted in the conversion of the shares into shares of Excess Stock, the price per share equal to the Market Price (as hereinafter defined) on the date of such transfer or other event. Any remaining amount in such Trust shall be distributed to the Beneficiary. "Market Price" on any date means the average of the closing sales prices of the Common Stock on the principal securities exchange on which the Common Stock is then traded for the five consecutive trading days ending on such date. In the case of Common Stock that is paired, "Market Price" means the "Market Price" for the paired shares multiplied by a fraction (expressed as a percentage) determined by dividing the value for such Common Stock most recently determined under the Pairing Agreement over the value of a paired share most recently determined under the Pairing Agreement (the "Valuation Percentage"). Any vote taken by a Prohibited Owner prior to the discovery by HP Realty or HP Operating Company that shares of Common Stock were exchanged for shares of Excess Stock will be rescinded as void ab initio. The Trustee shall have the exclusive and absolute right (subject to certain restrictions set forth in the Charters) to designate a Permitted Transferee of any and all shares of Excess Stock if HP Realty or HP Operating Company or both, in the case of paired shares, fail to exercise its or their purchase option with respect to such shares as described below. Upon the designation by the Trustee of a Permitted Transferee, the Trustee shall cause to be transferred to the Permitted Transferee that number of shares of Excess Stock of HP Realty or HP Operating 107 Company, as the case may be, acquired by the Permitted Transferee. Upon such transfer of the shares of Excess Stock to the Permitted Transferee, such shares of Excess Stock shall be automatically converted into an equal number of shares of Common Stock. In the case of Common Stock that is paired, upon the conversion of a share of Excess Stock into a share of Common Stock, the corresponding paired share of Excess Stock of the other company shall simultaneously be converted into a share of Common Stock and such shares of Common Stock shall be paired. A Prohibited Owner shall be entitled to receive from the Trustee following the sale or other disposition of shares of Excess Stock the lesser of (i) (a) in the case of a purported transfer in which the Prohibited Owner gave value for shares of Common Stock and which transfer resulted in the conversion of such shares into shares of Excess Stock, the price per share such Prohibited Owner paid for the shares of Common Stock (which, in the case of Excess Stock that is paired, shall be determined based on the Valuation Percentage) and (b) in the case of a transfer or other event in which the Prohibited Owner did not give value for such shares (e.g., if the shares were received through a gift or devise) and which transfer or other event resulted in the conversion of such shares into shares of Excess Stock, the price per share equal to the Market Price on the date of such transfer or other event and (ii) the price per share (which, in the case of Excess Stock that is paired, shall be determined based on the Valuation Percentage) received by the Trustee from the sale or other disposition of such shares of Excess Stock. Any amounts received by the Trustee in respect of such shares of Excess Stock and in excess of such amounts to be paid the Prohibited Owner shall be distributed to the Beneficiary. Shares of Excess Stock shall be deemed to have been offered for sale by a Trust to HP Realty or HP Operating Company or both, in the case of paired shares, or a designee of such company or companies, at a price per share equal to the lesser of (i) the price per share (which, in the case of Excess Stock that is paired, shall be determined based on the Valuation Percentage) in the transaction that created such shares of Excess Stock (or, in the case of devise, gift or other event, the Market Price at the time of such devise, gift or other event) or (ii) the Market Price on the date either company or both companies, in the case of paired shares, accept such offer. Either company or both companies, in the case of paired shares, shall generally have the right to accept such offer for a period of 90 days following the date of the event which results in such shares of Excess Stock being issued. In the case of shares of Excess Stock that are paired, neither HP Realty nor HP Operating Company shall accept such an offer with respect to its shares of Excess Stock without the agreement of the other company to accept such offer with respect to the corresponding paired shares of its Excess Stock. Any person or entity that acquires or attempts to acquire shares of Common Stock in violation of the aforementioned transfer restrictions, or any person or entity that owned shares of Common Stock that were transferred to a Trust, shall immediately give written notice to HP Realty or HP Operating Company or both, in the case of paired shares, of such event and shall provide such other information as the appropriate company or both companies, as the case may be, may request to determine the effect, if any, of such violation, on HP Realty's status as a REIT. Each person or entity that is an owner, actually or constructively, of shares of Common Stock and each person or entity that (including the stockholder of record) is holding shares of Common Stock for such an owner shall provide to HP Realty or HP Operating Company or both, in the case of paired shares, a written statement or affidavit stating such information as the appropriate company or both companies, as the case may be, may request to determine HP Realty's status as a REIT and to ensure compliance with the Ownership Limit. In addition, every person or entity that owns, actually or constructively, more than 5%, or such lower percentages as required by the provisions of the Code and IRS regulations, of the outstanding shares of Common Stock of HP Realty or HP Operating Company shall, within 30 days after January 1 of each year, provide to HP Realty or HP Operating Company or both, in the case of paired shares, a written statement or affidavit stating the name and address of such owner, the number of shares of Common Stock owned, actually or constructively, and a description of how such shares are held. All certificates representing shares of Common Stock shall bear a legend referring to the aforementioned transfer restrictions. The transfer restrictions will continue to apply until the Board of Directors of HP Realty publicly announces its determination that it is no longer in the best interests of HP Realty to attempt to qualify, or to continue to qualify, as a REIT. The restrictions on transfer contained in the Charters could have the effect of discouraging a takeover or other transaction in which holders of some, or a majority, of shares of Common Stock might receive a premium 108 from their shares of Common Stock over the then prevailing Market Price or which such holders might believe to be otherwise in their best interest. Binding Effect of Certain Compromises, Arrangements and Reorganziations Article VII of the Hollywood Park Charter (and, after the Reorganization, the HP Realty Charter) provides that if three-fourths in value of the Company's creditors (or a class of creditors) and/or stockholders (or class of stockholders) agree to a compromise or arrangement between the Company and such creditors and/or stockholders, and to any reorganization relating to such compromise or arrangement, at a meeting called by a Delaware court of equity upon proper application by certain eligible persons specified in Article VII, the compromise or arrangement and the reorganization shall, if sanctioned by the court, be binding on all of such creditors and/or stockholders and on the Company. The HP Operating Company Charter will contain no such provision. Gaming Approval; Redemption of Shares Article XIV of the Hollywood Park Charter currently provides that so long as Hollywood Park engages in, or intends to engage in, the operation of licensed card clubs regulated under the California Gaming Registration Act or any other applicable federal, state or local statutes, ordinances, rules or regulations, all securities of Hollywood Park shall be held subject to the restriction that if a person's continued ownership or control of securities would cause Hollywood Park or any of its subsidiaries to lose, or prevent the reinstatement of, any government-issued franchise or license that is necessary for the operation of any such licensed card club and that is conditioned upon some or all of the holders of Hollywood Park securities possessing prescribed qualifications, such securities shall be redeemable by Hollywood Park to the extent necessary to prevent the loss, or to secure the reinstatement of, such franchise or license. The per share redemption price of such securities is generally the closing sales price on the date the notice of redemption is given by Hollywood Park. If the Gaming Amendment is approved, Article XIV of the Hollywood Park Charter (which, after the Reorganization, will be the HP Realty Charter) will be restated to expand the restrictions on ownership to cover the gaming licenses of Hollywood Park (after the Reorganization, HP Realty) and its subsidiaries in all jurisdictions in which they currently conduct, or in the future may conduct, gaming operations, as more fully described below under "The Gaming Amendment." Regardless of whether the Gaming Amendment is approved, the HP Operating Company Charter will contain provisions substantially identical to those of the Gaming Amendment. Supermajority Vote Required for Certain Transactions Article XII of the Hollywood Park Charter currently requires the affirmative vote or written consent of the stockholders of 70% of all outstanding shares of all classes of stock of HP Realty entitled to vote (i) for the adoption of any agreement for the merger of Hollywood Park with or into any other corporation or for the consolidation of Hollywood Park with any other corporation (ii) to authorize any sale, lease, transfer or exchange of all or substantially all of the assets of Hollywood Park to any other person (a corporation, partnership, association or other business entity, trust, estate or individual), (iii) to authorize the dissolution of Hollywood Park and (iv) to alter, amend or repeal this provision. If the Supermajority Elimination Amendment is approved, Article XII will be removed from the HP Realty Charter and Delaware law (which generally requires the approval of a majority of the outstanding shares of each class of stock) will govern mergers, consolidations, sales of substantially all of HP Realty's assets and the dissolution of HP Realty. Otherwise, the HP Realty Charter will contain Article XII. Regardless of whether the Supermajority Elimination Amendment is approved, the HP Operating Company Charter will not contain a supermajority provision such as Article XII. Required Quorum for Stockholder Meetings The Hollywood Park By-Laws currently provide (and the HP Realty By-Laws and HP Operating Company By-Laws will provide) that the holders of one-third of the outstanding shares entitled to vote at any stockholders' meeting shall constitute a quorum for the transaction of business. Other Charter and By-Law Provisions Except as discussed above, after the Reorganization the provisions of the HP Realty and HP Operating Company Charters and By-Laws will be substantially the same as the provisions of the Hollywood Park Charter and By-Laws prior to the Reorganization. 109 THE HOLLYWOOD PARK OPERATING COMPANY 1998 STOCK OPTION PLAN (ITEM NO. 2 ON THE PROXY CARD) BACKGROUND Hollywood Park's 1993 Stock Option Plan was adopted by the Hollywood Park Board and approved by the Hollywood Park stockholders in July 1993, and provides for the issuance of up to 625,000 shares of Hollywood Park Common Stock upon exercise of options granted thereunder. As of January 31, 1998, all shares authorized for issuance under the 1993 Stock Option Plan had either been issued or were subject to outstanding options. Hollywood Park's 1996 Stock Option Plan was adopted by the Hollywood Park Board and approved by the Hollywood Park stockholders in October 1996, and provides for the issuance of up to 900,000 shares of Hollywood Park Common Stock upon exercise of options granted thereunder. As of January 31, 1998, 232,499 shares were subject to outstanding options (net of cancellations) granted under the 1996 Stock Option Plan. Upon completion of the Boomtown Merger, Hollywood Park assumed outstanding stock options granted before the Merger under Boomtown's 1990 Stock Option Plan and 1992 Director Option Plan (collectively, the "Boomtown Plans"). Based on the conversion ratio for Boomtown stock in the Boomtown Merger, approximately 1,088,300 shares of Hollywood Park Common Stock were issuable upon exercise of the assumed options. PROPOSAL Hollywood Park stockholders are being requested to approve the adoption of the Hollywood Park Operating Company 1998 Stock Option Plan (the "1998 Option Plan"), which provides for the issuance of options to purchase up to a number of Paired Shares of HP Realty Common Stock and HP Operating Company Common Stock equal to 900,000 less the aggregate number of shares covered by all options granted and not cancelled (whether or not exercised) under the 1996 Stock Option Plan as of the date the 1998 Option Plan first becomes effective (the "Maximum Option Shares"). The provisions of the 1998 Option Plan are similar to the provisions of Hollywood Park's 1996 Stock Option Plan; the main difference between the two plans is that the options granted under the 1998 Option Plan will cover Paired Shares. The adoption of the 1998 Option Plan is necessary to reflect the status of HP Operating Company as a free-standing corporation, and the pairing of HP Realty Common Stock and HP Operating Company Common Stock, after the Reorganization. The Maximum Option Shares, based on the number of options outstanding under the 1996 Stock Option Plan as of January 31, 1998, are equivalent to 2.5% of the outstanding Hollywood Park Common Stock at January 31, 1998, assuming the exercise of all options and other rights to acquire Hollywood Park Common Stock outstanding at such date, and would have a market value of approximately $10.3 million, based on Hollywood Park's stock price as of that date. After the Reorganization, no new options will be granted under Hollywood Park's 1993 Stock Option Plan and 1996 Stock Option Plan and the Boomtown Plans. Each outstanding stock option granted under such plans will be adjusted so that, upon exercise, the option holder receives the number of Paired Shares equal to the number of shares of Hollywood Park Common Stock covered by the outstanding option, and will continue to have the same aggregate exercise price and vesting schedule as before the Reorganization. Hollywood Park believes that grants of stock options motivate high levels of performance, will align the economic interests of HP Operating Company's officers and executives with those of the stockholders, and provide an effective method of recognizing employee contributions to the success of HP Operating Company. Hollywood Park also believes that HP Operating Company's ability to grant stock options will be critical to its success in attracting and retaining experienced and qualified employees. Hollywood Park therefore believes it is necessary and in the best interests of HP Operating Company and its stockholders to adopt the 1998 Option Plan as described above. 110 Effectiveness of the 1998 Option Plan is conditioned upon approval of the Reorganization Amendments by Hollywood Park's stockholders. REQUIRED VOTE; RECOMMENDATION OF THE BOARD OF DIRECTORS Approval of the adoption of the 1998 Option Plan requires the affirmative vote of a majority of the shares represented in person or by proxy and entitled to vote at the Annual Meeting. Abstentions will be treated as votes against the proposal, and broker non-votes will not be counted as represented at the meeting, for purposes of calculating the votes for and against the proposal. THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" APPROVAL OF THE HOLLYWOOD PARK OPERATING COMPANY 1998 STOCK OPTION PLAN. Approval of the 1998 Option Plan is being sought to establish HP Realty's and HP Operating Company's ability, as applicable, to deduct, for federal income tax purposes, compensation paid pursuant to the exercise of stock options and in respect of other stock awards. Under Section 162(m) of the Code, stockholder approval of performance-based compensation plans is necessary to qualify for the performance-based compensation exception to the limitation on a company's ability to deduct compensation paid to certain specified individuals in excess of $1 million. SUMMARY OF THE 1998 OPTION PLAN The essential features of the 1998 Option Plan are outlined below. A copy of the 1998 Option Plan is attached as Appendix E to this Proxy Statement. The following summary does not purport to be fully descriptive, and is subject in its entirety to the full text of the 1998 Option Plan attached as Appendix E. Shares Subject to the 1998 Option Plan Up to an aggregate number of Paired Shares equal to the Maximum Option Shares are authorized for issuance under the 1998 Option Plan. Shares which are not issued before the expiration or termination of an option may thereafter be available for future options under the 1998 Option Plan and will not be deemed to count against the Maximum Option Shares. The aggregate number of shares available under the 1998 Option Plan and the number of shares subject to outstanding options will be adjusted to reflect any changes in the outstanding Common Stock of HP Operating Company by reason of any recapitalization, reclassification, stock dividend, stock split, reverse stock split, merger, spin-off, combination, termination of the Pairing Agreement or other similar transaction. Upon the exercise of an option, HP Operating Company will issue the shares of HP Operating Company Common Stock covered by the option to the optionholder, and will purchase from HP Realty, for delivery to the optionholder, the number of shares of HP Realty Common Stock covered by the option. HP Operating Company will pay HP Realty the fair market value (as determined under the Pairing Agreement) of shares of HP Realty Common Stock which it purchases for this purpose. Type of Options Each option granted under the 1998 Option Plan will consist of two components: an option to purchase shares of HP Operating Company Common Stock, and an option to purchase an equal number of shares of HP Realty Common Stock. The two component options must be exercised together, so that, in effect, all options granted under the Plan will be for the purchase of Paired Shares. The Committee (as defined below) may designate certain component options to purchase shares of HP Operating Company Common Stock as incentive stock options under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). All other options (including all component options to purchase shares of HP Realty Common Stock) shall constitute non-qualified stock options. Each option shall be subject to a stock option agreement between the optionholder and HP Operating Company. Such stock option agreements shall contain such terms and conditions as the Committee may determine in its discretion, and need not be uniform. 111 Administration The 1998 Option Plan is administered by the Compensation Committee of the Board of Directors of HP Operating Company or another committee so designated by the Board (the "Committee"). The members of the Committee will be (i) "non- employee directors" within the meaning of Rule 16b-3 under the Exchange Act, and (ii) "outside directors" within the meaning of Section 162(m) of the Code. Subject to the provisions of the 1998 Option Plan, the Committee shall have, among other powers, the full, absolute and unconditional discretion and authority (i) to construe and interpret the 1998 Option Plan, (ii) to determine the eligible individuals to whom and the time or times at which options shall be granted, whether any option will include an incentive stock option component, the number of paired shares to be subject to each option, the option price, and the number of installments, if any, in which each option may be exercised, (iii) to determine the circumstances under which exercisability of any option may be accelerated, (iv) to determine the duration of each option, and (v) to make all other determinations necessary or advisable for the administration of the 1998 Option Plan. All determinations and interpretations made by the Committee shall be made in good faith and shall be binding and conclusive on all participants in the 1998 Option Plan and their legal representatives and beneficiaries. Eligibility and Participation All key employees, directors (including members of the Compensation Committee), consultants and advisors of HP Operating Company or of any subsidiary corporation, or other persons who render services to HP Operating Company or a subsidiary corporation (including employees of HP Realty who also render services to HP Operating Company or a subsidiary corporation) shall be eligible for selection to participate in the 1998 Option Plan, except that only regular employees of HP Operating Company or a subsidiary shall be eligible to receive incentive stock options under the 1998 Option Plan. Based on Hollywood Park's historic policies, approximately 150 employees, 11 directors and 15 advisors and other service providers would receive option grants under the 1998 Option Plan. Options are granted in consideration of services rendered or to be rendered by the grantee. An individual who has been granted an option may, if such individual is otherwise eligible, be granted an additional option or options if the Committee shall so determine, subject to the other provisions of the 1998 Option Plan. No participant may receive option grants with respect to more than 90,000 Paired Shares (subject to adjustment in the event of any recapitalization, reclassification, stock split, stock dividend, reverse stock split, merger, spin-off, combination, termination of the Pairing Agreement or other similar transactions) during any fiscal year or portion thereof. Any cancelled option continues to be counted against the maximum number of Paired Shares for which options may be granted to a participant during any fiscal year or portion thereof. Duration of Options Each option shall be of a duration specified by the Committee in the option agreement, but all options shall expire within 10 years of the date of grant. Component options to purchase shares of HP Operating Company Common Stock which are incentive stock options (and the corresponding component options to purchase shares of HP Realty Common Stock) granted to employees owning in excess of 10% of the voting securities of HP Operating Company shall expire within five years of the date of grant. Upon completion of the Reorganization, the HP Operating Company Charter will prohibit any person from owning more than 9.8% of the Paired Shares; accordingly, the 1998 Option Plan's provisions regarding 10% stockholders would not be operative unless the HP Operating Company Charter is amended to delete such prohibition. Rights as a Stockholder and Assignability The recipient of an option will have no rights as a stockholder with respect to shares covered by the recipient's option until the date such recipient becomes the holder of record of such shares. An option which includes an incentive stock option component shall, by its terms, be non-transferable by the optionholder, either voluntarily or by operation of law, other than by will or the laws of descent and distribution, and shall be exercisable during the optionholder's lifetime only by him or her. An option which does not include an incentive 112 stock option component shall be non-transferable by the optionholder, either voluntarily or by operation of law, other than by will or the laws of descent and distribution, pursuant to a "qualified domestic relations order" as defined in the Code, or, with the consent of the Committee, to a member of the optionholder's immediate family or a trust exclusively for the benefit of one or more of the optionholder's immediate family as part of the optionholder's estate plan. Purchase Price The purchase price payable upon the exercise of an option to purchase Paired Shares which contains an incentive stock option component must be at least equal to the fair market value of the Paired Shares on the date the option is granted. A grant of an option including an incentive stock option component to an employee owning over 10% of the voting stock of HP Operating Company must be at an exercise price of not less than 110% of the fair market value on the date of grant of the Paired Shares covered by the option. The exercise price of an option which does not include an incentive stock option component need not be equal to the fair market value of the stock at the date of grant, but may be granted with any exercise price determined by the Committee. Payment in full for the number of shares purchased upon the exercise of stock options shall be made at the same time the option is exercised in cash, or, subject to the approval of the Committee, (i) by the delivery of Paired Shares already owned by and in possession of the optionholder, (ii) by means of a promissory note, (iii) through a "cashless exercise," or (iv) any combination thereof. Exercisability of Options The Committee shall determine when and under what conditions any option shall vest or become exercisable. However, the aggregate fair market value of the shares of HP Operating Company Common Stock (determined at the date of grant) for which incentive stock option components and any other incentive stock options granted by HP Operating Company (whenever granted) are exercisable for the first time by an optionholder during any calendar year shall not exceed $100,000. Options may be exercisable in one or more installments, and, to the extent that an installment is not exercised when it first becomes exercisable, it shall continue to be exercisable until the option terminates or expires. Termination of Employment; Death or Disability If an optionholder ceases to be employed by the Company (or ceases to provide services to the Company) or any of its subsidiaries for any reason other than death or permanent disability, the optionholder's options shall be exercisable for a period of three months (unless otherwise determined by the Committee in the individual option agreement) after the termination of employment (or the ceasing to provide services). If an optionholder dies or becomes permanently disabled, the optionholder's options shall be exercisable for a period of 12 months (unless otherwise determined by the Committee in the individual option agreement) after the date of death or permanent disability. After an optionholder's death, any options which remained exercisable on the date of death may be exercised by the person or persons to whom the optionholder's rights pass by will or the laws of descent and distribution. Corporate Transactions Upon a "Corporate Transaction," the 1998 Option Plan, and all unexercised options granted thereunder, shall terminate, unless the Committee provides for any or all of the following alternatives: (i) the options theretofore granted will become immediately exercisable, (ii) the successor corporation will assume the options, or substitute new options covering the stock of the successor corporation, with the appropriate adjustments as to the number and kind of shares and option prices, (iii) the successor corporation will continue the 1998 Option Plan, or (iv) the options will be cashed out. Under the 1998 Option Plan, a "Corporate Transaction" occurs when (a) any person or group becomes the beneficial owner of securities of HP Operating Company, or of any entity resulting from a merger or consolidation of HP Operating Company, representing more than 50% of the combined voting power of HP Operating Company or such entity, (b) the existing Directors of HP Operating Company cease, for any reason, to constitute more than 50% of the number of authorized Directors of HP 113 Operating Company, except that any new Director shall be considered an existing Director if his or her election or nomination was approved by a vote of at least 50% of the then-existing Directors, or (c) the consummation of a merger, consolidation, or reorganization to which HP Operating Company is a party, or a sale of substantially all of the assets of HP Operating Company, if persons who are not stockholders of HP Operating Company immediately before the consummation of such transaction are the beneficial owners, immediately following the consummation of such transaction, of more than 50% of the combined voting power of the outstanding securities of HP Operating Company or the entity resulting from such transaction. Duration, Amendment and Termination of the 1998 Option Plan The 1998 Option Plan shall become effective after its approval by the Board and by the stockholders and the Pairing Agreement has become effective (i.e., upon completion of the Reorganization). It shall remain in effect until terminated by the Board, until all shares subject to it shall have been purchased pursuant to the exercise of options granted thereunder, or until all options have expired. All options granted under the 1998 Option Plan shall be granted within 10 years from the date of Board approval or stockholder approval of the 1998 Option Plan, whichever is earlier. The Board may amend, suspend, or terminate the 1998 Option Plan as it may deem advisable, except that no amendment without appropriate stockholder approval shall increase the Maximum Option Shares, change the minimum exercise price or increase the maximum term of any option which includes an incentive stock option component, permit the granting of options to anyone other than those eligible under the terms of the 1998 Option Plan, or otherwise materially increase the benefits accruing to participants under the 1998 Option Plan. No amendment, suspension, or termination of the 1998 Option Plan shall affect options already granted, and such options shall remain in full force and effect as if the 1998 Option Plan had not been amended or terminated, unless mutually agreed otherwise in writing between the optionee and the Committee. HP Operating Company's Board of Directors or the Committee, however, may unilaterally amend the 1998 Option Plan or any option, without the consent of the holder thereof, if such amendment is necessary or desirable to comply with the Securities Act, state blue sky laws, or applicable listing requirements of any principal securities exchange on which shares of the same class of securities for which the options are exercisable are listed, to preserve the status of options as incentive stock options, or to preserve the tax deductibility to HP Operating Company of any awards made under the 1998 Option Plan. FEDERAL INCOME TAX MATTERS The following discussion of federal income tax consequences does not purport to be a complete analysis of all of the potential tax effects of the 1998 Option Plan. It is based upon laws, regulations, rulings and decisions now in effect, all of which are subject to change. The recently-enacted Taxpayer Relief Act of 1997 has changed various tax rules, including the rules governing the taxation of capital gains, and there is some uncertainty regarding the impact of the Taxpayer Relief Act of 1997 on the 1998 Option Plan. No information is provided with respect to persons who are not citizens or residents of the United States, or foreign, state or local tax laws, or estate and gift tax considerations. In addition, the tax consequences to a particular participant may be affected by matters not discussed above. ACCORDINGLY, EACH PARTICIPANT IS URGED TO CONSULT HIS OR HER OWN TAX ADVISOR CONCERNING THE TAX CONSEQUENCES TO HIM OR HER OF THE 1998 OPTION PLAN, INCLUDING THE EFFECTS OF STATE, LOCAL, FOREIGN AND OTHER TAX LAWS AND OF CHANGES IN THE TAX LAWS. The 1998 Option Plan is not subject to any of the provisions of the Employee Retirement Income Security Act of 1974 ("ERISA") and is not qualified under Section 401(a) of the Code. Non-Qualified Stock Options Under current federal income tax law, the grant of a non-qualified stock option has no tax effect on HP Operating Company or the optionee to whom it is granted. The exercise of a non-qualified stock option will result in ordinary income to the optionee equal to the excess of the fair market value of the shares at the time of 114 exercise over the option price. The optionee's tax basis in the shares will be equal to the aggregate option price plus the amount of taxable income recognized upon the exercise of the option. Upon any subsequent disposition of the shares, any gain or loss recognized by the optionee will be treated as capital gain or loss, and will be long-term capital gain or loss if the shares are held for the applicable period after exercise. At the time of recognition of ordinary income by the optionee upon exercise, HP Operating Company will normally be allowed to take a deduction for federal income tax purposes in an amount equal to such recognized income. These same principles apply if the non-qualified stock option is not an entire option, but only a component option to purchase shares of HP Realty Common Stock. In that case, the "shares" would refer to shares of HP Realty Common Stock, and the "option price" would refer to the portion of the option price of the entire option allocable to the component option to purchase shares of HP Realty Common Stock. Incentive Stock Options Under the 1998 Option Plan, HP Operating Company can grant incentive stock options only in the form of component options to purchase shares of HP Operating Company Common Stock. As used in this paragraph, therefore, the term "shares" refers only to shares of HP Operating Company Common Stock, and the term "option price" refers to the portion of the option price of the entire option allocable to the component option to purchase shares of HP Operating Company Common Stock. The federal income tax consequences associated with incentive stock options are generally more favorable to the optionee and less favorable to HP Operating Company than those associated with non-qualified stock options. The grant of an incentive stock option does not result in income to the optionee or in a deduction for HP Operating Company at the time of the grant. Generally, the exercise of an incentive stock option will not result in the recognition of income by the optionee if the optionee does not dispose of the shares within two years after the date of grant or within one year after the date of exercise. If these requirements are met, the basis of the shares upon a later disposition will be the option price, any gain on the later disposition will be taxed to the optionee as long-term capital gain, and HP Operating Company will not be entitled to a deduction. The excess of the fair market value on the exercise date over the option price is an adjustment to regular taxable income in determining alternative minimum taxable income, which could cause the optionee to be subject to the alternative minimum tax. Under the Taxpayer Relief Act of 1997, the alternative minimum tax rate may be higher than the rate on long-term capital gains. If the optionee disposes of the shares before the expiration of either of the holding periods described above (a "Disqualifying Disposition"), the optionee will have compensation taxable as ordinary income, and HP Operating Company will normally be entitled to a deduction, equal to the lesser of (a) the fair market value of the shares on the exercise date minus the option price, or (b) the amount realized on the disposition minus the option price. If the price realized in any such Disqualifying Disposition of the shares exceeds the fair market value of the shares on the exercise date, the excess will be treated as long-term or short- term capital gain, depending on the optionee's holding period for the shares. $1,000,000 Limit on Deductible Compensation Section 162(m) of the Code provides that any publicly-traded corporation will be denied a deduction for compensation paid to certain executive officers to the extent that the compensation exceeds $1,000,000 per officer per year. However, the deduction limit does not apply to "performance-based compensation," as defined in Section 162(m). Compensation is performance-based compensation if (i) the compensation is payable on account of the attainment of one or more performance goals; (ii) the performance goals are established by a compensation committee of the board of directors consisting of "outside directors"; (iii) the material terms of the compensation and the performance goals are disclosed to and approved by the stockholders in a separate vote; and (iv) the compensation committee certifies that the performance goals have been satisfied. Hollywood Park believes that, if the stockholders approve the 1998 Option Plan, the stock options granted thereunder (unless granted for purchase prices below the fair market value of the stock subject to the options) will satisfy the requirements to be treated as performance-based compensation, and accordingly will not be subject to the deduction limit of Section 162(m) of the Code. 115 Excess Parachute Payments Under Section 4999 of the Code, certain officers, stockholders, or highly- compensated individuals ("Disqualified Individuals") will be subject to an excise tax (in addition to federal income taxes) of 20% of the amount of certain "excess parachute payments" which they receive as a result of a change in control of HP Operating Company. Furthermore, Section 280G of the Code prevents HP Operating Company from taking a deduction for any "excess parachute payments." The cash out or acceleration of the vesting of stock options upon a Corporate Transaction may cause the holders of such stock options who are Disqualified Individuals to recognize certain amounts as "excess parachute payments" on which they must pay the 20% excise tax, and for which HP Operating Company will be denied a tax deduction. Special Rules; Withholding of Taxes Special tax rules may apply (i) to a participant who is subject to Section 16 of the Exchange Act, (ii) if a participant exercises a stock option by delivering Paired Shares which he or she already owns, or through a "cashless exercise," or (iii) if shares purchased on the exercise of an option are subject to transfer restrictions or to a substantial risk of forfeiture. HP Operating Company may take whatever steps the Committee deems appropriate to comply with any applicable withholding tax obligation, including requiring any participant to pay the amount of any applicable withholding tax to HP Operating Company in cash. 116 THE HOLLYWOOD PARK OPERATING COMPANY DIRECTORS PLAN (ITEM NO. 3 ON PROXY CARD) BACKGROUND Hollywood Park's Directors Deferred Compensation Plan (the "Hollywood Park Directors Plan") was adopted by the Hollywood Park Board and approved by the Hollywood Park stockholders in September, 1991. The Hollywood Park Directors Plan permits each director of Hollywood Park to elect to defer receipt of all or a portion of his compensation in his capacity as a director, and to receive such deferred compensation either in the form of cash or in the form of shares of Hollywood Park Common Stock. The Hollywood Park Directors Plan provides for the issuance of up to 125,000 shares of Hollywood Park Common Stock to directors of Hollywood Park. As of January 31, 1998, 98,063 shares of Hollywood Park Common Stock had been allocated to the directors' accounts under the Hollywood Park Directors Plan. PROPOSAL Hollywood Park stockholders are being asked to approve the adoption of the Hollywood Park Operating Company 1998 Directors Deferred Compensation Plan (the "HP Operating Company Directors Plan"), which will give directors of Hollywood Park Operating Company the opportunity to elect to defer all or a portion of the compensation they receive in their capacities as directors. The maximum number of Paired Shares which may be issued under the HP Operating Company Directors Plan is 125,000. The terms of the HP Operating Company Directors Plan are substantially similar to the terms of the Hollywood Park Directors Plan. After the Reorganization, HP Realty will continue to maintain the Hollywood Park Directors Plan for the benefit of directors of Hollywood Park Realty, but will amend it to change its name to the "Hollywood Park Realty Enterprises, Inc. Directors Deferred Compensation Plan" (the "HP Realty Directors Plan"). The rights of directors to receive shares of Hollywood Park Common Stock under the Hollywood Park Directors Plan will be automatically converted under the terms of the Plan after the Reorganization to rights to receive Paired Shares. Hollywood Park believes that the adoption of the HP Operating Company Directors Plan will enable HP Operating Company to attract and retain persons of outstanding competence to serve as directors by paying such persons all or a portion of their compensation in the form of Paired Shares and by giving them an increased stake in the HP Operating Company and its future. REQUIRED VOTE; RECOMMENDATION OF THE BOARD OF DIRECTORS Approval of the adoption of the HP Operating Company Directors Plan requires the affirmative vote of a majority of the shares represented in person or by proxy and entitled to vote at the Annual Meeting. Abstentions will be treated as votes against the proposal, and broker non-votes will not be counted as represented at the meeting, for purposes of calculating the votes for and against the proposal. Under NYSE rules, the HP Operating Company Directors Plan must be submitted for stockholder approval because it provides for the issuance of stock to directors. If the majority of the shares of Hollywood Park do not approve the adoption of the HP Operating Company Directors Plan, the HP Operating Company Directors Plan will nevertheless go into effect, but will only permit payment of deferred compensation in cash. THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" APPROVAL OF THE HP OPERATING COMPANY DIRECTORS PLAN. Approval of the HP Operating Company Directors Plan is being sought to satisfy the requirements for listing on the New York Stock Exchange. 117 SUMMARY OF THE HP OPERATING COMPANY DIRECTORS PLAN The essential features of the HP Operating Company Directors Plan are outlined below. A copy of the HP Operating Company Directors Plan is attached as Appendix F to this Proxy Statement. The following summary does not purport to be fully descriptive, and is subject in its entirety to the full text of the HP Operating Company Directors Plan attached as Appendix F. Term of the HP Operating Company Directors Plan The HP Operating Company Directors Plan shall become effective upon the approval of the Board of Directors of HP Operating Company and the completion of the Reorganization, and will remain in effect until terminated by the Board of Directors of HP Operating Company. The portions of the HP Operating Company Directors Plan permitting the allocation of all or a portion of a director's deferred compensation to Paired Shares and the distribution of Paired Shares, however, will go into effect only if a majority of the shares of Hollywood Park represented and entitled to vote at the Annual Meeting approve the adoption of the HP Operating Company Directors Plan. Share Authorization HP Operating Company shall not be required to reserve or set aside funds or Paired Shares for the payment of its obligations under the HP Operating Company Directors Plan. HP Operating Company shall make available as and when required a sufficient number of Paired Shares to meet the needs of the HP Operating Company Directors Plan. The Paired Shares to be issued under the HP Operating Company Directors Plan may be either authorized and unissued shares of HP Operating Company Common Stock coupled with the purchase of shares of HP Realty Common Stock under the Pairing Agreement, or Paired Shares which have been purchased on the open market or privately. Shares Issuable The maximum number of Paired Shares that can be issued pursuant to the HP Operating Company Directors Plan is 125,000 shares. Administration The HP Operating Company Directors Plan shall be administered by the Board of Directors (the "HP Operating Company Board") of HP Operating Company. The HP Operating Company Board shall have the discretion and power to interpret provisions of the HP Operating Company Directors Plan, to compute amounts to be credited to and distributed from directors' accounts under the HP Operating Company Directors Plan, to prescribe, amend and rescind rules and regulations relating to the HP Operating Company Directors Plan, and to make all determinations necessary to administer the HP Operating Company Directors Plan. Participants Participation in the HP Operating Company Directors Plan is limited to directors of HP Operating Company. All such directors are eligible to participate. It is anticipated that HP Operating Company will have 11 directors on the effective date of the HP Operating Company Directors Plan. Deferred Compensation Each director of HP Operating Company may elect to defer all or a portion of his or her compensation received his or her capacity as a director. Any such deferred compensation will be credited to a director's account, either in cash or in Paired Shares, at each director's election. As of the date the director's compensation would otherwise have been paid and depending on the director's election, the director's account will be credited with either (a) cash, (b) the number of full and/or fractional Paired Shares obtained by dividing the amount of 118 the director's compensation which he or she elected to defer and to have allocated to Paired Shares by the average of the closing price of the Paired Shares on the principal stock exchange on which the Paired Shares are listed (or, if the Paired Shares are not listed on a stock exchange, the NASDAQ National Market System) on the last ten business days of the calendar quarter or month for which such compensation is payable, or (c) a combination of (a) and (b). All cash amounts credited to the director's account shall bear interest at an amount to be determined from time to time by the HP Operating Company Board. If a director has elected to allocate his or her deferred compensation to Paired Shares, such director's account shall be credited at the end of each calendar quarter with the number of full and/or fractional Paired Shares obtained by dividing the dividends which would have been paid on the Paired Shares credited to the director's account as of the dividend record date, if any, occurring during such calendar quarter if such Paired Shares had been issued and outstanding Paired Shares on such date, by the closing price of the Paired Shares on the principal stock exchange on which the Paired Shares are listed (or, if the Paired Shares are not listed on any stock exchange, the NASDAQ National Market System) on the date such dividend(s) was paid. In addition, if HP Operating Company declares a stock dividend payable in Paired Shares, the director's account shall be credited at the end of each calendar quarter with the number of full and/or fractional Paired Shares which such Paired Shares would have been entitled to if such Paired Shares had been issued and outstanding Paired Shares on the record date for such stock dividend(s). However, the directors shall not have any interest in the cash and/or Paired Shares credited to their accounts until distributed in accordance with the HP Operating Company Directors Plan, and shall not have any voting rights until Paired Shares credited to their accounts are distributed. The rights of a director to receive payments under the HP Operating Company Directors Plan shall be no greater than the rights of an unsecured general creditor of HP Operating Company. Distributions Each participating director may elect to have the aggregate amount of cash and Paired Shares credited to his account distributed to him in one lump-sum payment or in a number of approximately equal quarterly installments over a period of time not to exceed fifteen years. The lump-sum payment or the first installment will be paid as of the first business day of the calendar quarter immediately following the cessation of the director's service as a Director of HP Operating Company. Prior to the beginning of any calendar year, a director may elect to change the method of distribution, but amounts credited to a director's account prior to the effective date of such change shall not be affected and shall be distributed in accordance with the election in effect at the time such amounts were credited to the director's account. No fractional Paired Shares will be distributed; the value of any fractional Paired Shares will be paid in cash. The maximum number of Paired Shares which can be issued under the HP Operating Company Directors Plan and the HP Realty Directors Plan in any fiscal year is one percent of the outstanding number of Paired Shares at the beginning of such fiscal year, except to the extent that the HP Operating Company Board authorizes a larger distribution. If distributions in a fiscal year would exceed this limit, distributions to each director in such fiscal year shall be reduced on a pro rata basis, and excess distributions will be distributed as soon as possible in later fiscal years. Amendment or Termination of the HP Operating Company Directors Plan HP Operating Company reserves the right to amend or terminate the HP Operating Company Directors Plan at any time by action of the HP Operating Company Board, provided that (i) no such amendment or termination adversely affect any eligible director's rights with respect to amounts then credited to his account, and (ii) no amendment (other than a termination) shall accelerate any payments or distributions under the HP Operating Company Directors Plan (except with regard to bona fide financial hardships). 119 FEDERAL INCOME TAX MATTERS Any compensation that a director elects to defer under the HP Operating Company Directors Plan will not be subject to federal income tax for the year in which the director actually earns the compensation. Instead, the director will pay federal income tax on the deferred compensation, and any interest which is deemed to be earned on the deferred compensation, only when it is actually distributed to him. For this purpose, the director will be taxed at ordinary income tax rates on the fair market value of Paired Shares when they are distributed to him. When the director is taxed on the deferred compensation and deemed earnings, HP Operating Company will be entitled to a tax deduction equal to the amount on which the director is taxed. A director's tax basis in any Paired Shares which are distributed to him under the HP Operating Company Directors Plan will equal their fair market value on the date of distribution, and his holding period in them will begin on the date of distribution. Any gain or loss which he recognizes on any later sale of the Paired Shares will be capital gain or loss, and will be long-term capital gain or loss if he holds them for the applicable period after they are distributed to him. This discussion of federal income tax matters does not purport to be a complete analysis of all of the potential tax effects of the HP Operating Company Directors Plan. It is based upon laws, regulations, rulings and decisions now in effect, all of which are subject to change. No information is provided with respect to foreign, state or local tax laws, or estate and gift tax considerations. In addition, the tax consequences to a particular director may be affected by matters not discussed above. Accordingly, each director is urged to consult his or her own tax advisor concerning the tax consequences to him or her of the HP Operating Company Directors Plan, including the effects of state, local, foreign and other tax laws and of changes in the tax laws. The HP Operating Company Directors Plan is not subject to any of the provisions of the Employee Retirement Income Security Act of 1974, as amended, and is not qualified under Section 401(a) of the Code. 120 THE SUPERMAJORITY ELIMINATION AMENDMENT (ITEM NO. 4 ON PROXY CARD) BACKGROUND On September 16, 1997, the Board approved the Supermajority Elimination Amendment, which would amend the Hollywood Park Charter to remove Article XII ("Article XII") from the Hollywood Park Charter, and directed the Supermajority Elimination Amendment to be submitted to the stockholders for their approval at the Annual Meeting. DESCRIPTION OF THE PROPOSED SUPERMAJORITY ELIMINATION AMENDMENT Article XII reads as follows: "The affirmative vote or written consent of the holders of 70% of all outstanding shares of all classes of stock of the Corporation entitled to vote thereon, considered for the purposes of this Article TWELFTH as one class, shall be required: (a) for the adoption of any agreement for the merger of the Corporation with or into any other corporation or for the consolidation of the Corporation with any other corporation; (b) to authorize any sale, lease, transfer or exchange of all or substantially all of the assets of the Corporation to any other person (as hereinafter defined); (c) to authorize the dissolution of the Corporation; (d) to alter, amend or repeal this Article TWELFTH. For the purposes of this Article TWELFTH, the term person shall mean any corporation, partnership, association, or any other business entity, trust, estate or individual. This Article TWELFTH shall not apply to a merger if no vote of stockholders of the Corporation is necessary under Delaware law to authorize it." If Article XII is removed, stockholder approval of the actions that Article XII covers would be required only to the extent required by the Delaware General Corporation Law which, in the cases where a vote is required at all, would generally be the approval of holders of a majority of the outstanding stock entitled to vote. In the case of certain mergers and certain transfers of substantially all of Hollywood Park's assets (not otherwise constituting a sale, lease or exchange), in the absence of Article XII Delaware law would not require any stockholder approval. Therefore, removal of Article XII will enhance management's ability to effect various corporate transactions by reducing the percentage vote of Hollywood Park's stockholders that is required to approve these transactions. Article XII was placed in the Hollywood Park Charter when Hollywood Park was incorporated as an anti-takeover or defensive measure against an unwanted or coercive attempt to acquire the Company. In particular, Article XII was designed to discourage in advance hostile tender offers by persons attempting to acquire, with a view towards a subsequent business combination, only that portion of Hollywood Park's stock necessary to obtain control and force the business combination. However, Article XII may have the negative effect of discouraging non-coercive acquisition proposals and tender offers. In addition, such provision arguably has the additional negative effect of disproportionately benefitting a minority of the Company's stockholders by giving them effective veto power over combinations and other transactions regardless of whether the transaction is desired by or beneficial to the holders of a majority of the Company's shares and the management of the Company. The Board has concluded that, in the case of transactions that Article XII governs, it is no longer in the best interests of the Company or its stockholders to require a 70% vote of all outstanding shares of the Company, but to have in place the less onerous requirements that would exist under the Delaware General Corporation Law in the absence of Article XII., This less onerous requirement would facilitate management's ability to pursue 121 beneficial corporate combinations and other transactions, and would prevent a minority of the shares, i.e., 30% of the shares, from blocking a corporate opportunity that the Board and the holders of a majority of the outstanding shares might consider desirable and beneficial to the long-term prospects of the Company. The Board also believes that Section 203 of the Delaware General Corporation Law, which was enacted after Article XII's adoption and which discourages unwanted and coercive acquisition proposals, provides the Company and its stockholders with sufficient protection and makes Article XII unnecessary and, in light of its potential negative effects, overly burdensome. Further, if the Reorganization is completed, the 9.8% ownership limitation on the Paired Shares will effectively preclude hostile and coercive takeover attempts. If the Reorganization is completed, the Hollywood Park Charter will be the HP Realty Charter. Therefore, approval of the Supermajority Elimination Amendment by Hollywood Park stockholders means that Article XII will be removed from both the Hollywood Park Charter and the HP Realty Charter. On the other hand, if Hollywood Park stockholders do not approve the Supermajority Elimination Amendment, Article XII will continue to be contained in the Hollywood Park Charter and, following the Reorganization, the HP Realty Charter. Regardless of whether the Supermajority Elimination Amendment is approved, the HP Operating Company Charter will not contain a supermajority voting provision analogous to Article XII. As discussed above, Hollywood Park has retained Morgan Stanley & Co. Incorporated to advise it in connection with matters relating to the Reorganization, including assisting the Board in evaluating proposals from potential strategic partners. Although no transaction with a strategic partner is currently pending or under negotiation, it is possible that such a transaction would be of a type requiring the approval of 70% of Hollywood Park's outstanding shares under Article XII. However, if the Supermajority Elimination Amendment is approved, the less onerous stockholder approval requirements of Delaware law would govern the transaction. REQUIRED VOTE; RECOMMENDATION OF THE BOARD OF DIRECTORS Approval of the Supermajority Elimination Amendment requires the affirmative vote of 70% of the outstanding shares of Hollywood Park Common Stock. For purposes of calculating the votes for and against the proposals, abstentions and broker non-votes will be treated as votes against the proposal. THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" APPROVAL OF THE SUPERMAJORITY ELIMINATION AMENDMENT. 122 THE GAMING AMENDMENT (ITEM NO. 5 ON PROXY CARD) BACKGROUND On September 16, 1997, the Board approved the Gaming Amendment, which would restate Article XIV of the Hollywood Park Charter, and directed the Gaming Amendment to be submitted to the stockholders for their approval at the Annual Meeting. DESCRIPTION OF THE PROPOSED GAMING AMENDMENT Article XIV of the Hollywood Park Charter ("Article XIV") currently provides that so long as Hollywood Park engages in, or intends to engage in, the operation of licensed card clubs regulated under the California Gaming Registration Act or any other applicable federal, state or local statutes, ordinances, rules or regulations, all securities of Hollywood Park shall be held subject to the restriction that if a person's continued ownership or control of securities would cause Hollywood Park or any of its subsidiaries to lose, or prevent the reinstatement of, any government-issued franchise or license that is necessary for the operation of any such licensed card club and that is conditioned upon some or all of the holders of Hollywood Park securities possessing prescribed qualifications, such securities shall be redeemable by Hollywood Park to the extent necessary to prevent the loss, or to secure the reinstatement of, such franchise or license. The per share redemption price of such securities is generally the closing sales price on the date the notice of redemption is given by Hollywood Park. Article XIV was added to the Hollywood Park Charter in 1994, after approval by Hollywood Park stockholders at Hollywood Park's 1994 Annual Meeting, in connection with Hollywood Park's entry into the licensed card club business in 1994 when it opened the Hollywood Park-Casino, a California card club casino located on the same property as the Hollywood Park Race Track. Article XIV is intended to facilitate Hollywood Park's compliance with all laws that are applicable to the California card club operations and to protect all franchises and licenses that are required to conduct these operations. As a result of the Boomtown Merger, which was completed on June 30, 1997, Hollywood Park (through Boomtown) now owns and operates casinos in Louisiana, Mississippi and Nevada, in addition to its existing card clubs in California. Accordingly, Hollywood Park, its subsidiaries and its stockholders are now subject to all applicable laws regulating gaming operations in all of those states, not just California. The Gaming Amendment would restate Article XIV to provide, among other things, that (i) Hollywood Park and all persons owning or controlling Hollywood Park securities or securities of Hollywood Park's affiliated companies will be required to comply with the gaming laws of all jurisdictions in which Hollywood Park and its affiliated companies conduct gaming activities, and that all securities of Hollywood Park shall be held subject to the requirements of those gaming laws, (ii) Hollywood Park securities owned or controlled by an Unsuitable Person (as defined below) or an Unsuitable Person's affiliate shall be redeemable by Hollywood Park (or, at Hollywood Park's option, convertible into Excess Stock to be held in a Trust until transferred to a Permitted Transferee) to the extent required by the relevant gaming authority or to the extent deemed necessary or advisable by Hollywood Park, and (iii) it shall be unlawful for an Unsuitable Person to receive any dividends or interest with regard to Hollywood Park securities, to exercise any voting rights conferred by Hollywood Park securities, or to receive any remuneration from Hollywood Park or any of its affiliated companies for services rendered or otherwise. The per share redemption price of any Hollywood Park securities would be the price (if any) required to be paid by the relevant gaming authority, or if not specified by the gaming authority, the price deemed reasonable by Hollywood Park, which in no event may exceed the closing sales price on the date the notice of redemption is given by Hollywood Park. An "Unsuitable Person" is generally defined in the Gaming Amendment as a person who owns or controls Hollywood Park securities or securities of Hollywood Park's affiliated companies (a) who is determined by a gaming authority to be unsuitable to own or control such securities or unsuitable to be connected with an entity engaged in gaming activities in the relevant jurisdiction, or (b) who causes Hollywood Park or any of its affiliated companies to lose or to be threatened with the loss of, or who, in the sole discretion of the Board, is deemed likely to jeopardize Hollywood Park's right to use or be entitled to, any necessary gaming license. The full text of Article XIV, as restated by the Gaming Amendment, is set forth in Article XII 123 of the HP Realty Charter and HP Operating Company Charter attached hereto as Appendices A and B, and the foregoing discussion is qualified in its entirety by the appendices. The Board believes that the restatement or Article XIV pursuant to the Gaming Amendment is necessary to enable Hollywood Park and its subsidiaries to obtain or maintain required gaming licenses in all jurisdictions in which they currently conduct gaming activities (California, Louisiana, Mississippi and Nevada) and in which they may conduct gaming activities in the future, and to ensure compliance with the gaming laws of such jurisdictions by Hollywood Park, its subsidiaries and its stockholders. The Gaming Amendment is being submitted for approval by Hollywood Park's stockholders at the Annual Meeting because it is the first stockholder meeting since the Boomtown Merger. If the Reorganization is completed, the Hollywood Park Charter will be the HP Realty Charter. Therefore, approval of the Gaming Amendment by Hollywood Park stockholders means that Article XIV will be restated in both the Hollywood Park Charter and the HP Realty Charter. On the other hand, if Hollywood Park stockholders do not approve the Gaming Amendment, Article XIV in its current form will continue to be contained in the Hollywood Park Charter and, following the Reorganization, the HP Realty Charter. Regardless of whether the Gaming Amendment is approved, the HP Operating Company Charter will contain the provisions set forth in the Gaming Amendment. REQUIRED VOTE; RECOMMENDATION OF THE BOARD OF DIRECTORS Approval of the Gaming Amendment requires the affirmative vote of a majority of the outstanding shares of Hollywood Park Common Stock. For purposes of calculating the votes for and against the proposals, abstentions and broker non-votes will be treated as votes against the proposal. THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" APPROVAL OF THE GAMING AMENDMENT. 124 ELECTION OF DIRECTORS (ITEM NO. 6 ON PROXY CARD) At the Annual Meeting, holders of Hollywood Park Common Stock will be asked to vote on the election of 11 directors who will constitute the full Board of Directors of Hollywood Park. If the Reorganization is completed, it is expected that each of the 11 individuals elected at the Annual Meeting will serve on the Board of Directors of HP Operating Company or HP Realty. The 11 nominees receiving the highest number of votes from holders of shares of Hollywood Park Common Stock represented and voting at the Annual Meeting will be elected to the Board. Unless a nominee other than the nominees listed below is properly nominated, abstentions and broker non-votes will not be counted as represented or voting at the meeting and therefore will not have an effect on the election of the nominees listed below. Each director so elected will hold office until the next annual meeting of Hollywood Park (or, if the Reorganization is completed, HP Realty and HP Operating Company) and until his successor is elected and qualified. GENERAL Each proxy received will be voted for the election of the persons named below, unless the stockholder signing such proxy withholds authority to vote for one or more of these nominees in the manner described on the proxy. Although it is not contemplated that any nominee named below will decline or be unable to serve as a director, in the event any nominee declines or is unable to serve as a director, the proxies will be voted by the proxy holders as directed by the Board. There are no family relationships between any director, nominee or executive officer and any other director, nominee or executive officer of Hollywood Park. Except as described below, there are no arrangements or understandings between any director, nominee or executive officer and any other person pursuant to which he has been or will be selected as a director and/or executive officer of Hollywood Park. See "--Information Regarding the Directors of Hollywood Park" and "--Board Committees." THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" ELECTION OF ALL OF THE NOMINEES LISTED BELOW. INFORMATION REGARDING THE DIRECTORS OF HOLLYWOOD PARK The following table lists the persons nominated by the Board for election as directors of Hollywood Park, and also provides their ages and current positions with Hollywood Park. Biographical information for each nominee is provided below. All of the following nominees are currently directors of Hollywood Park.
NAME AGE CURRENT POSITION - ---- --- ---------------- R.D. Hubbard................. 62 Chairman of the Board, Chief Executive Officer and Member of the Office of the Chairman Harry Ornest................. 74 Vice Chairman of the Board J.R. Johnson................. 77 Director Timothy J. Parrott........... 50 Director and Member of the Office of the Chairman for Administration of Boomtown Richard Goeglein............. 63 Director Peter L. Harris.............. 54 Director Robert T. Manfuso............ 60 Director Lynn P. Reitnouer............ 65 Director Herman Sarkowsky............. 72 Director Warren B. Williamson......... 69 Director Delbert W. Yocam............. 53 Director
125 Mr. Hubbard has been a Director of Hollywood Park since 1990; Chairman of the Board and Chief Executive Officer of Hollywood Park since September 1991; Member of the Hollywood Park Office of the Chairman since June 1997; Chairman of the Board and Chief Executive Officer of HP Operating Company since February 1991; President of HP Operating Company from February to July 1991; Chairman, AFG Industries, Inc. and its parent company, Clarity Holdings Corp. (glass manufacturing) and director of AFG Industries, Inc.'s subsidiaries, from 1978 to July 1993; Chairman of the Board (and 60% stockholder until March 1994) of Sunflower (Woodlands Race Tracks--greyhound racing and horse racing) from 1988; President, Director, and owner of Ruidoso Downs Racing, Inc. (horse racing) since 1988; Chairman of the Board, Chief Executive Officer and sole stockholder, Multnomah Kennel Club, Inc. (greyhound racing) since December 1991; Owner and breeder of numerous thoroughbreds and quarter horses since 1962. Sunflower, a wholly-owned subsidiary of Hollywood Park, filed for reorganization under Chapter 11 of the U.S. Bankruptcy Code on May 17, 1996. Mr. Ornest has been a Director of Hollywood Park since 1991; Vice Chairman of the Board of Hollywood Park since September 1991; Director, HP Operating Company since 1988; Vice Chairman of the Board, HP Operating Company since February 1991; Owner and Chairman, Toronto Argonauts Football Club (Canadian Football League club) from 1988 to May 1991; Owner, St. Louis Blues (National Hockey League club) 1983 to 1987; Owner, St. Louis Arena, 1983 to 1987; Owner and Founder, Vancouver Canadians (Pacific Coast Baseball League club), 1977 to 1981; Hollywood Park stockholder, 1962 to present. Mr. Johnson has been a Director of Hollywood Park since 1991; Director, HP Operating Company from February 1991 to January 1992; Chairman, President and Chief Executive Officer, NEWMAR (marine electronics manufacturing) since 1980; Trustee, Westminster College. Mr. Parrott has been a Director and member of the Office of the Chairman since June 1997; Chairman of the Board and Chief Executive Officer of Boomtown, Inc. since September 1992; President and Treasurer of Boomtown, Inc. from June 1987 to September 1992; Director of Boomtown, Inc. since 1987; Chairman of the Board and Chief Executive Officer of Boomtown Hotel & Casino, Inc. since May 1988; Chief Executive Officer of Parrott Investment Company (a family-held investment company with agricultural interests in California) since April 1995; Director of The Chronicle Publishing Company since April 1995. Mr. Goeglein has been a Director of Hollywood Park since June 1997; President of Aladdin Gaming LLC since January 1997; Director of Boomtown, Inc. from October 1992 to June 1997; Director of AST Research, Inc. since May 1987; Director of Platinum Software Corp. since October 1994; President and principal shareholder of Gaming Associates, Inc. since 1990; President and Chief Operating Officer of Holiday Corporation (parent corporation of Holiday Inns and Harrah's Hotels and Casinos) from 1984 to 1987; private investor since 1987. Mr. Harris has been a Director of Hollywood Park since June 1997; Director of Boomtown, Inc. from April 1994 to June 1997; Director of Onsale Inc. since 1996; Director of Natural Wonders Inc. since 1996; Director of Pacific Sunwear of California, Inc. since 1994; President and Chief Executive Officer of Expressly Portraits, Inc. (a retail chain of portrait photography studios) since August 1995; Reorganization Administrator of American Fashion Jewels (a retail company) and then as Chief Executive Officer of Accolade, Inc. (a video and personal computer games company) from 1993 to 1995; President and Chief Executive Officer of F.A.O. Schwarz from 1985 to 1992. Mr. Manfuso has been a Director of Hollywood Park since 1991; Director, HP Operating Company from February 1991 to January 1992; Co-Chairman of the Board, Laurel Racing Association (horse race track management) from 1984 to February 1994; Vice Chairman of the Board, The Maryland Jockey Club (horse racing) from 1986 to February 1994; Executive Vice President, Laurel Racing Association from 1984 to May 1990; Executive Vice President, The Maryland Jockey Club from 1986 to June 1990; Director, Maryland Horse Breeders Association from 1984 to 1992 and since 1993; Member, Executive Committee, Maryland Million since 1991. 126 Mr. Reitnouer has been a Director of Hollywood Park since 1991; Director, HP Operating Company from September 1991 to January 1992; Partner, Crowell Weedon & Co. (stock brokerage) since 1969; Director of COHR, Inc., since 1986 and former Chairman of the Board of COHR, Inc.; Director, President and Regent, Forest Lawn Memorial Parks Association since 1975; Trustee, University of California Santa Barbara Foundation since 1992. Mr. Sarkowsky has been a Director of Hollywood Park since 1991; Director, HP Operating Company from February 1991 to January 1992; Owner, Sarkowsky Investment Corporation and SPF Holding, Inc. (real estate development and investments) since 1980; Director, The Sarkowsky Foundation (charitable foundation) since 1982; thoroughbred horse breeder and owner since 1959; Director, Synetics, Inc. (porous plastic manufacturing); Director, Seafirst Corporation (banking); Director, Eagle Hardware & Garden, since 1990. Mr. Williamson has been a Director of Hollywood Park since 1991; Vice President and Secretary of Hollywood Park from September 1991 to August 1996; Chairman of the Board and Chief Executive Officer of Hollywood Park from 1989 to September 1991; Director, HP Operating Company since 1985; Vice President and Secretary, HP Operating Company from February 1991 to August 1996; Secretary and Treasurer, HP Operating Company from 1985 to November 1990; Chairman and Chief Executive Officer, Chandis Securities Co. (holding company) since 1985; Director, Times Mirror Company; Trustee, Hospital of the Good Samaritan; Trustee, California Thoroughbred Breeders Foundation; Trustee, Claremont McKenna College; Chairman Emeritus, Art Center College of Design; Breeder and racer of thoroughbreds since 1970. Mr. Yocam has been a Director of Hollywood Park since June 1997; Director of Boomtown, Inc. from December 1995 to June 1997; Chairman and Chief Executive Officer of Borland International since December 1996; Director of Adobe Systems, Inc., since February 1991; Independent consultant from November 1994 to December 1996; Director of Oracle Corporation since March 1992; President, Chief Operating Officer and a Director of Tektronix, Inc from September 1992 to November 1994; Independent consultant from November 1989 to September 1992. During 1997, the Hollywood Park Board held three meetings and acted by unanimous written consent on two occasions. In accordance with the requirements of the Agreement and Plan of Merger dated as of April 23, 1996 (the "Merger Agreement") governing the Boomtown Merger, the Hollywood Park Board was expanded upon completion of the Boomtown Merger to eleven directors, seven of whom (Messrs. Hubbard, Ornest, Johnson, Manfuso, Reitnouer, Sarkowsky and Williamson) had been serving as members of the Hollywood Park Board (the "Hollywood Park Directors") and four of whom (Messrs. Parrott, Goeglein, Harris and Yocam) had been members of the Boomtown Board of Directors (the "Boomtown Directors"). The Merger Agreement provides that, during the three-year period ending June 30, 2000, any increase in the size of the Hollywood Park Board must be approved by a majority of the Boomtown Directors then on the Hollywood Park Board, except that the number of persons serving on the Hollywood Park Board may be increased without such consent if the increase is divisible by three and one Boomtown Director (to be selected by a majority of the Boomtown Directors then on the Hollywood Park Board) is added for every two Hollywood Park Directors added. Hollywood Park has agreed to cause its Board of Directors and any nominating committee thereof to take the necessary steps to nominate the initial Boomtown Directors or their replacements (selected by a majority of the Boomtown Directors) for re-election at the first three annual stockholders meetings following June 30, 1997, including the current Annual Meeting. BOARD COMMITTEES AND DIRECTOR COMPENSATION Hollywood Park has a standing Executive Committee which is chaired by Mr. Ornest and currently consists of Messrs. Hubbard, Ornest, Reitnouer, Parrott and Goeglein. The Executive Committee has and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of Hollywood Park to the fullest extent authorized by Delaware law. The Executive Committee had four formal meetings in 1997 and acted by unanimous written consent on five occasions. 127 Hollywood Park has a standing Audit Committee which is chaired by Mr. Williamson and currently consists of Messrs. Sarkowsky and Williamson and, since the Boomtown Merger, Mr. Yocam. The functions of the Audit Committee are to review the audits of Hollywood Park's books performed by outside independent auditors, to consider matters of accounting policy and to investigate and recommend to the Board independent auditors for the following year. The Audit Committee met twice in 1997. Hollywood Park has a standing Compensation Committee, which currently consists of Messrs. Johnson and Reitnouer. Mr. Johnson chairs the Compensation Committee. The functions of the Compensation Committee are to make recommendations to the Board of Directors regarding the annual salaries and other compensation of the officers of Hollywood Park, to provide assistance and recommendations with respect to the compensation policies and practices of Hollywood Park and to assist with the administration of Hollywood Park's compensation plans. The Compensation Committee met once in 1997. The Executive Committee acts as Hollywood Park's nominating committee. The Executive Committee generally does not consider nominees recommended by Hollywood Park's stockholders. The Merger Agreement provides that during the three-year period ending June 30, 2000, the Executive Committee (after the Reorganization, of HP Operating Company rather than HP Realty) will consist of five members. Three of such members shall be Hollywood Park representatives (currently Messrs. Hubbard, Ornest and Reitnouer) and two shall be Boomtown representatives (currently Messrs. Parrott and Goeglein). The number of members of the Executive Committee may not be increased beyond five members at any time during such three-year period without the consent of the majority of the Boomtown representatives on the committee. During 1997, each incumbent director of Hollywood Park attended at least 75% of the aggregate of (i) the three meetings of the Board of Directors and (ii) the total number of meetings of the committees on which he served (during the periods that he served). All directors hold office until the next annual meeting of stockholders and until their successors are duly elected and qualified. Directors are entitled to receive, and in 1997 received, an annual retainer fee at the rate of $25,000 per year plus a $1,000 fee for each Board meeting attended, which they may take in cash or in deferred compensation under Hollywood Park's Directors Deferred Compensation Plan (the "Directors Plan") as outlined below. In addition, members of the Executive Committee, Audit Committee and Compensation Committee receive $1,000 for each committee meeting attended, and such amounts are also eligible for the Directors Plan. Furthermore, directors and their guests are entitled, without charge, to use the Directors' Room at Hollywood Park, which is open on weekends and holidays during the racing season. On July 18, 1997, each of Messrs. Johnson, Manfuso, Ornest, Reitnouer, Sarkowsky and Williamson (constituting all of the non-executive directors of Hollywood Park, excluding the Boomtown Directors) was granted a non-qualified stock option to purchase 2,000 shares of Hollywood Park Common Stock at an exercise price of $14.75 per share. One-third of the shares purchasable upon exercise of these options was vested on the grant date, with an additional one-third to vest on each of the first and second anniversary of the grant date. All of these options expire on the tenth anniversary of the grant date and (except for the options granted to Messrs. Johnson and Reitnouer) were granted under the Hollywood Park 1996 Stock Option Plan. DIRECTORS DEFERRED COMPENSATION PLAN Participation in Hollywood Park's Directors Deferred Compensation Plan is limited to directors of Hollywood Park. Pursuant to the Directors Plan, each eligible director may elect to defer all or a portion of his annual retainer and any fees for meetings attended. Any such deferred compensation is credited to a deferred compensation account, either in cash or in shares of Hollywood Park Common Stock, at each director's election. As of the date the director's compensation would otherwise have been paid, and depending on the director's election, the director's deferred compensation account will be credited with either (i) cash, (ii) the number of full and/or fractional shares of Hollywood Park Common Stock obtained by dividing the amount of the director's 128 compensation for the calendar quarter or month which he elected to defer by the average of the closing price of Hollywood Park Common Stock on the principal stock exchange on which the Paired Shares are listed (or, if the Paired Shares are not listed on a stock exchange, the NASDAQ National Market System) on the last ten business days of the calendar quarter or month for which such compensation is payable or (iii) a combination of cash and shares of Hollywood Park Common Stock as described in clause (i) and (ii). All cash amounts credited to the director's deferred compensation account bear interest at an amount to be determined from time to time by the Board of Directors. If a director has elected to receive shares of Hollywood Park Common Stock in lieu of his retainer, such director's deferred compensation account is credited at the end of each calendar quarter with the number of full and/or fractional shares of Hollywood Park Common Stock obtained by dividing the dividends which would have been paid on the shares credited to the director's deferred compensation account as of the dividend record date, if any, occurring during such calendar quarter if such shares had been shares of issued and outstanding Hollywood Park Common Stock on such date, by the closing price of the Hollywood Park Common Stock on the NASDAQ on the date such dividend(s) was paid. In addition, if Hollywood Park declares a dividend payable in shares of Hollywood Park Common Stock, the director's deferred compensation account is credited at the end of each calendar quarter with the number of full and/or fractional shares of Hollywood Park Common Stock which such shares would have been entitled to if such shares had been shares of issued and outstanding Hollywood Park Common Stock on the record date for such stock dividend(s). Participating directors do not have any interest in the cash and/or Hollywood Park Common Stock credited to their deferred compensation accounts until distributed in accordance with the Directors Plan, nor do they have any voting rights with respect to such shares until shares credited to their deferred compensation accounts are distributed. The rights of a director to receive payments under the Plan are no greater than the rights of an unsecured general creditor of Hollywood Park. Each participating director may elect to have the aggregate amount of cash and shares credited to his deferred compensation account distributed to him in one lump sum payment or in a number of approximately equal annual installments over a period of time not to exceed fifteen years. The lump sum payment or the first installment will be paid as of the first business day of the calendar quarter immediately following the cessation of the director's service as a director of Hollywood Park. Prior to the beginning of any calendar year, a director may elect to change the method of distribution, but amounts credited to a director's account prior to the effective date of such change may not be affected, but rather will be distributed in accordance with the election at the time such amounts were credited to the director's deferred compensation account. The maximum number of shares of Hollywood Park Common Stock that can be issued pursuant to the Directors Plan is 125,000 shares. Hollywood Park is not required to reserve or set aside funds or shares of Hollywood Park Common Stock for the payment of its obligations pursuant to the Directors Plan. Hollywood Park is obligated to make available, as and when required, a sufficient number of shares of Common Stock to meet the needs of the Directors Plan. The shares of Hollywood Park Common Stock to be issued under the Directors Plan may be either authorized and unissued shares or reacquired shares. Amendment, modification or termination of the Directors Plan may not (i) adversely affect any eligible director's rights with respect to amounts then credited to his account or (ii) accelerate any payments or distributions under the Directors Plan (except with regard to bona fide financial hardships). COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION The members of the Compensation Committee for the period January 1, 1997, to December 31, 1997 were J.R. Johnson and Lynn P. Reitnouer. None of the members of the Compensation Committee were officers or employees or former officers or employees of Hollywood Park or its subsidiaries. 129 EXECUTIVE OFFICERS Each of the executive officers of Hollywood Park holds office at the pleasure of the Board of Directors. The current executive officers of Hollywood Park are as follows:
NAME AGE POSITION ---- --- -------- R.D. Hubbard............... 62 Chairman of the Board, Chief Executive Officer and Member of the Office of the Chairman Harry Ornest............... 74 Vice Chairman of the Board Donald M. Robbins.......... 50 President of Hollywood Park, Inc., President of Racing and Secretary G. Michael Finnigan........ 49 President, Sports and Entertainment, Executive Vice President, Treasurer, Chief Financial Officer and Member of the Office of the Chairman
In addition, upon the consummation of the Boomtown Merger, the Company established an Office of the Chairman comprised of Hollywood Park's Chief Executive Officer, Hollywood Park's President of Sports and Entertainment and the Chief Executive Officer of Boomtown. The Office of the Chairman provides advice to the Chief Executive Officer of Hollywood Park on such matters as he may request and undertakes such other responsibilities as he may delegate to the Office of the Chairman from time to time. An Office of the Chairman will also be established by HP Operating Company in connection with the Reorganization. Officers serve at the discretion of the Board of Directors, subject to rights, if any, under contracts of employment. See "--Executive Compensation." Background information for Messrs. Hubbard and Ornest is provided above. See "--Information Regarding the Directors of Hollywood Park". Mr. Robbins has been Hollywood Park's President of Racing since February 1994; President of Hollywood Park since September 1991; Secretary of Hollywood Park since 1996 (formerly Assistant Secretary since September 1991); General Manager of HP Operating Company from 1986 to February 1994; Executive Vice President of HP Operating Company since 1988, and President and Secretary of HP Operating Company since July 1991. Mr. Finnigan has been Hollywood Park's President, Sports and Entertainment, since January 1996 and a member of the Office of the Chairman since June 1997; President, Gaming and Entertainment, from February 1994 to January 1996; Executive Vice President and Chief Financial Officer of Hollywood Park and of HP Operating Company since March 1989; and Treasurer of Hollywood Park and of HP Operating Company since March 1992; Chairman of the Board of Southern California Special Olympics since 1996; Chairman of the Board of Centinela Hospital since 1996; and Director of the Shoemaker Foundation since 1993. Mr. Finnigan also serves as Secretary and Treasurer of Sunflower Racing, Inc., a wholly-owned subsidiary of Hollywood Park, which filed for reorganization under Chapter 11 of the U.S. Bankruptcy Code on May 17, 1996. 130 EXECUTIVE COMPENSATION The following tables summarize the annual and long-term compensation of, and stock options held by, Hollywood Park's Chief Executive Officer and the two additional most highly compensated executive officers whose annual salaries and bonuses exceeded $100,000 in total during the fiscal year ended December 31, 1997 (collectively, the "Named Officers"). Summary Compensation Table
OTHER SECURITIES NAME AND ANNUAL COMPENSATION ANNUAL UNDERLYING ALL OTHER PRINCIPAL ----------------------- COMPEN- OPTIONS/ COMPENSA- POSITION YEAR SALARY($) BONUS($) SATION($) SARS(#) TION($) ---------- ---- --------- -------- --------- ---------- --------- R.D. Hubbard............ 1997 $400,000 $40,235 0 45,000 $4,740(1) Chairman of the Board and 1996 400,000 0 0 85,000 0 Chief Executive Officer 1995 400,000 0 0 0 0 G. Michael Finnigan..... 1997 $307,608 $ 0 0 25,000 $3,555(1) President, Sports and 1996 262,608 25,000 0 40,000 0 Entertainment, Executive 1995 262,608 0 0 0 0 Vice President, Treasurer and Chief Financial Officer Donald M. Robbins....... 1997 $295,008 $ 0 0 25,000 $3,373(1) President of Hollywood 1996 250,008 25,000 0 20,000 0 Park, Inc., President of 1995 255,501 0 0 0 0 Racing and Secretary
- -------- (1) Reflects matching contributions under Hollywood Park's 401(k) Plan. Stock Option Plans In 1993, the stockholders of Hollywood Park adopted the Hollywood Park 1993 Stock Option Plan (the "1993 Plan"), which provides for the issuance of up to 625,000 shares of Hollywood Park Common Stock upon exercise of options granted thereunder. In 1996, the stockholders of Hollywood Park adopted the Hollywood Park 1996 Stock Option Plan (the "1996 Plan"), which provides for the issuance of up to 900,000 shares of Hollywood Park Common Stock upon exercise of options granted thereunder. Except for the provisions governing the number of shares issuable thereunder, and except for certain provisions which reflect changes in tax and securities laws, the provisions of the 1993 Plan and the 1996 Plan (collectively, the "Hollywood Park Plans") are substantially similar. The Hollywood Park Plans are administered and terms of option grants are established by the Compensation Committee of the Board of Directors. Under the Hollywood Park Plans, options alone or coupled with stock appreciation rights may be granted to selected key employees, directors, consultants and advisors of Hollywood Park. Options become exercisable according to a vesting period as determined by the Compensation Committee at the date of grant, and expire on the earlier of one month after termination of employment, six months after the death or permanent disability of the optionee, or the expiration of the fixed option term set by the Compensation Committee at the grant date (not to exceed ten years from the grant date). The exercise prices of all options granted under the Hollywood Park Plans are determined by the Compensation Committee on the grant date, provided that the exercise price of an incentive stock option may not be less than the fair market value of the Common Stock at the date of grant. As of January 31, 1998, all of the 625,000 shares eligible for issuance under the 1993 Plan had either been issued or were subject to outstanding options. As of January 31, 1998, of the 900,000 shares eligible for issuance under the 1996 Plan, 232,499 were subject to outstanding options (net of cancellations). In addition, 1,008,460 shares of Hollywood Park Common Stock are issuable upon exercise of options granted before the Boomtown Merger under Boomtown's 1990 Stock Option Plan and 1992 Director Option Plan (collectively, the 131 "Boomtown Plans"), which options were assumed by Hollywood Park in the Boomtown Merger. Hollywood Park has filed registration statements with the Securities and Exchange Commission covering an aggregate of 2,613,308 shares of Hollywood Park Common Stock issuable upon exercise of options granted under the Hollywood Park Plans and the Boomtown Plans. Options/SAR Grants in Last Fiscal Year The following summarizes the option grants to Named Officers during 1997:
INDIVIDUAL GRANTS - ----------------------------------------------------------------------------- PERCENT OF TOTAL NUMBER OF OPTIONS/ POTENTIAL REALIZABLE VALUE SECURITIES SARS AT ASSUMED ANNUAL RATES UNDERLYING GRANTED TO OF STOCK PRICE APPRECIATION OPTIONS/SARS EMPLOYEES PER SHARE FOR OPTION TERM GRANTED IN FISCAL EXERCISE PRICE EXPIRATION --------------------------- NAME (#) YEAR ($) DATE 5%($) 10%($) ---- ------------ ---------- -------------- ------------- --------------------------- R.D. Hubbard............ 45,000 17% $14.75 July 18, 2007 $ 417,429 $ 1,057,847 G. Michael Finnigan..... 25,000 9% $14.75 July 18, 2007 $ 231,905 $ 587,693 Donald M. Robbins....... 25,000 9% $14.75 July 18, 2007 $ 231,905 $ 587,693
Aggregated Option/SAR Exercises in Last Fiscal Year and Fiscal Year-End Option/SAR Values The following table sets forth information with respect to the exercise of stock options during the fiscal year ended December 31, 1997 and the final year-end value of unexercised options. None of the Named Officers exercised stock appreciation rights during the fiscal year ended December 31, 1997 or held any such rights at the end of such fiscal year.
NUMBER OF SHARES UNDERLYING UNEXERCISED VALUE OF UNEXERCISED SHARES OPTIONS/SARS AT IN-THE-MONEY OPTIONS/SARS ACQUIRED VALUE FISCAL YEAR-END (#) AT FISCAL YEAR-END ($)(1) ON EXERCISE REALIZED ------------------------- ------------------------- NAME (#) ($) EXERCISABLE/UNEXERCISABLE EXERCISABLE/UNEXERCISABLE ---- ----------- -------- ------------------------- ------------------------- R.D. Hubbard............ -- -- 28,334/101,666 $340,008/$1,219,992 G. Michael Finnigan..... 25,000 $204,063 38,334/ 51,666 $460,008/$ 619,992 Donald M. Robbins....... 25,000 $175,000 38,334/ 51,666 $460,008/$ 619,992
- -------- (1) Represents the difference between the market price of Hollywood Park Common Stock on December 31, 1997 ($22.00 per share) and the exercise price of the options ($10.00 per share). Pension Plan
YEARS OF QUALIFIED SERVICE --------------------------------------- FINAL AVERAGE ANNUAL SALARY 10 15 20 25 30 --------------------------- ------- ------- ------- ------- ------- $100,000 $24,745 $37,118 $49,490 $61,863 $66,863 $150,000 to $500,000 (a) 37,995 56,993 75,990 94,988 102,488
- -------- (a) Under current provisions of the Internal Revenue Code, the maximum average salary that may be used in calculating retirement benefits in 1996 was $150,000. Benefits accrued on April 1, 1994 (based on prior compensation limits) are grandfathered. Pension benefits were frozen as of September 1, 1996, for all plan participants, except retained participants, whose benefits were frozen as of December 31, 1996. Hollywood Park elected to terminate the Hollywood Park Pension Plan (the "Pension Plan") as of January 31, 1997. Accrued Pension Plan benefits were frozen as of September 1, 1996, for all Pension Plan participants, except retained participants (participants who, because of legal requirements, including the provisions of the National Labor Relations Act, are represented by a collective bargaining agent), whose benefits were frozen as of December 31, 1996. 132 The Pension Plan was a non-contributory, defined benefit plan covering employees of Hollywood Park, Inc., and all employees of HP Operating Company, not eligible for participation in a multi-employer defined benefit plan, who meet the Pension Plan's service requirement. R.D. Hubbard, G. Michael Finnigan, and Donald M. Robbins are the only officers or directors of Hollywood Park who participated in the Pension Plan. At the time their Pension Plan benefits were frozen (September 1, 1996), Messrs. Hubbard, Finnigan and Robbins had two, six and ten years, respectively, of qualified years of service. Only amounts earned by Messrs. Hubbard, Finnigan and Robbins listed under "Annual Compensation Salary" as shown in the Summary Compensation Table, were considered in determining their Pension Plan benefit levels. The amounts listed in the above Pension Plan table are estimated annual retirement benefits under the Pension Plan (assuming payments were made on the normal life annuity basis, and not under the provisions on survivor benefits) at a normal retirement age of 65 in 1996, after various years of qualified service, at selected average annual compensation levels. The amounts listed in the table are not subject to any deduction for Social Security or other offset amounts. Due to the freezing of Pension Plan benefits as of September 1, 1996, and based on their actual years of qualified service and annual compensation levels, the annual retirement benefits under the Pension Plan for Messrs. Hubbard, Finnigan and Robbins, expressed as a joint survivor annuity payment starting at age 65, are $7,521, $29,082 and $51,009, respectively. The amounts required to fund the Pension Plan were determined actuarially, and were paid by Hollywood Park to a life insurance company under an unallocated annuity contract. Hollywood Park has no further obligation to fund the Pension Plan because the plan's assets were sufficient to meet its benefit obligations upon termination. Effective January 31, 1997, in conjunction with the termination of the Pension Plan, Hollywood Park elected to terminate its non-qualified Supplementary Employment Retirement Plan (the "SERP"). The SERP was an unfunded plan, established primarily for the purpose of restoring the retirement benefits for highly compensated employees that were eliminated by the Internal Revenue Service in 1994, when the maximum annual earnings allowed for qualified pension plans was reduced to $150,000 from $235,850. Messrs. Hubbard, Finnigan and Robbins participated in the SERP, prior to its termination. COMPENSATION COMMITTEE REPORT ON EXECUTIVE COMPENSATION The Compensation Committee of the Board of Directors (the "Compensation Committee"), which is composed entirely of independent outside directors, is responsible for making recommendations to the Board regarding the annual salaries and other compensation of the officers of Hollywood Park, providing assistance and recommendations with respect to the compensation policies and practices of Hollywood Park and assisting with the administration of Hollywood Park's compensation plans. In order to attract and retain well-qualified executives, which the Compensation Committee believes is crucial to Hollywood Park's success, the Compensation Committee's general approach to compensating executives is to pay cash salaries which are commensurate with the executives' experience and expertise and, where relevant, are competitive with the salaries paid to executives in Hollywood Park's main industries and primary geographic locations, which are currently land-based, dockside and riverboat casinos in Nevada, Louisiana, Mississippi, and other jurisdictions, thoroughbred horse racing tracks and card clubs in Southern California, and horse and dog racing tracks in Kansas and Arizona. In addition, to align its executives' compensation with Hollywood Park's business strategies, values and management initiatives, both short and long term, the Compensation Committee may, with the Board's approval, authorize the payment of discretionary bonuses based upon an assessment of each executive's contributions to Hollywood Park. In general, the Compensation Committee believes that these discretionary bonuses should be related to Hollywood Park's and the executive's performance, although specific performance criteria have not been established. The Compensation Committee also believes that stock ownership by key executives provides a valuable incentive for such executives and helps align executives' and stockholders' interests. To facilitate these 133 objectives, Hollywood Park adopted the 1993 Plan and the 1996 Plan, pursuant to which Hollywood Park may grant stock options to executives (as well as other employees and directors) to purchase up to 625,000 shares and 900,000 shares, respectively, of Hollywood Park Common Stock. The Compensation Committee believes that the key officers of Hollywood Park have provided excellent services and been diligent in their commitment to Hollywood Park. The Compensation Committee believes that stock ownership by such officers provides an important incentive for their continued efforts and diligence. In July 1997, options aggregating 45,000, 25,000 and 25,000 shares were granted to Messrs. Hubbard, Robbins and Finnigan, respectively, at an exercise price of $14.75 per share. From 1993 through the end of 1997, Mr. Hubbard was paid a base salary of $400,000 per annum. This payment was fixed in 1992 based upon an analysis of (i) the annual compensation received by the Chief Executive Officer of Santa Anita Race Track, (ii) the annual base salaries currently being paid to Messrs. Robbins and Finnigan, (iii) the prominence of Mr. Hubbard in the business community in general and the horse racing community in particular, (iv) the level and value of the contribution that the Compensation Committee believes Mr. Hubbard has made, and can make in the future, to Hollywood Park and (v) the fact that Mr. Hubbard was willing to accept this amount even though the Compensation Committee believes that he could command a much higher compensation level based upon his business experience and expertise. Commencing January 1, 1998, Mr. Hubbard's base salary was increased to $500,000 per annum, based upon the above-mentioned factors, and also Hollywood Park's expansion into the card club and gaming business, where executive salaries tend to be substantially higher than those in the thoroughbred horse racing business. While Mr. Hubbard's base salary is not dependent upon Hollywood Park's performance, it is anticipated that any bonuses he may receive, based upon the recommendation of the Compensation Committee and the approval of the Board of Directors, would be, at least in part, so dependent. January 26, 1998 COMPENSATION COMMITTEE J.R. Johnson (Chairman) Lynn P. Reitnouer 134 PERFORMANCE GRAPH Set forth below is a graph comparing the cumulative total stockholder return for Hollywood Park Common Stock with the cumulative total returns for a designated Peer Group Index and the Nasdaq Market Index. Also included in the graph is the cumulative total return for the Media General Standard Industrial Code Index 7999--Amusement and Recreation Services (the "SIC Code Index"), which Hollywood Park historically included in the performance graph in its proxy statement but which Hollywood Park intends to replace with the Peer Group Index. The total cumulative return calculations are for the period commencing December 31, 1992 and ending December 31, 1997, and include the reinvestment of dividends. As a result of the Boomtown Merger, which was completed June 30, 1997, Hollywood Park now owns and operates land-based, dockside and riverboat casinos in Nevada, Mississippi and Louisiana, in addition to its historical race track and California card club operations. The Peer Group Index consists of publicly-traded multi-jurisdictional gaming companies with small or mid- sized stock market capitalizations. In addition, like Hollywood Park, none of the companies in the Peer Group Index currently operates in the Las Vegas or Atlantic City markets. Hollywood Park believes that, as a result of the Boomtown Merger, the Peer Group Index will provide a more appropriate benchmark against which to measure its stock return performance than the SIC Code Index. The Peer Group Index is comprised of the following publicly-traded gaming companies: Ameristar Casinos, Inc. (included in the index since it commenced trading in November 1993); Argosy Gaming Company (included in the index since it commenced trading in February 1993); Casino America, Inc. (included in the index since it commenced trading in August 1992); Harveys Casino Resorts; Lady Luck Gaming Corporation (included in the index since it commenced trading in September 1993); Players International, Inc.; and President Casinos, Inc. COMPARISON OF CUMULATIVE TOTAL RETURN* AMONG HOLLYWOOD PARK, PEER GROUP INDEX, SIC CODE INDEX & NASDAQ MARKET INDEX PERFORMANCE GRAPH APPEARS HERE
Measurement Period HOLLYWOOD PEER GROUP SIC CODE NASDAQ (Fiscal Year Covered) PARK, INC. INDEX INDEX MARKET INDEX - --------------------- ---------- ---------- -------- ------------ Measurement Pt- 1992 $100.00 $100.00 $100.00 $100.00 FYE 1993 $319.15 $220.31 $162.12 $119.95 FYE 1994 $117.02 $108.14 $128.62 $125.94 FYE 1995 $107.05 $ 76.02 $185.49 $163.35 FYE 1996 $159.57 $ 53.66 $194.3 $202.99 FYE 1997 $234.04 $ 46.14 $202.79 $248.3
- ------- * ASSUMES $100 INVESTED ON DECEMBER 31, 1992 IN HOLLYWOOD PARK COMMON STOCK, PEER GROUP INDEX, MEDIA GENERAL STANDARD INDUSTRIAL CODE 7999 INDEX-- AMUSEMENT AND RECREATION SERVICES & THE NASDAQ MARKET INDEX. TOTAL RETURN ASSUMES REINVESTMENT OF DIVIDENDS. VALUES ARE AS OF DECEMBER 31 OF EACH YEAR. The above graph shows historical stock price performance (including reinvestment of dividends) and is not necessarily indicative of future performance. 135 CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS Except as set forth below regarding the interest rate under the Parrott Promissory Note, Hollywood Park believes that the terms of the following transactions were at least as favorable as could have been obtained by Hollywood Park from third parties in arms length transactions. Since November 1993, Hollywood Park has had an aircraft time sharing agreement with R.D. Hubbard Enterprises, Inc. ("Hubbard Enterprises"), which is wholly owned by Mr. Hubbard. The agreement automatically renews each month unless written notice of termination is given by either party at least two weeks before a renewal date. Hollywood Park reimburses Hubbard Enterprises for expenses incurred as a result of Hollywood Park's use of the aircraft, which totaled approximately $106,000 in 1997, $120,000 in 1996, and $126,000 in 1995. In May 1988, Boomtown acquired all of the outstanding stock of Boomtown Hotel and Casino, Inc. ("Boomtown Casino") for $16.7 million in cash (the "1988 Acquisition"). In order to finance the 1988 Acquisition, including the retirement of existing debt, Boomtown sold equity securities to Kenneth Rainin and Timothy J. Parrott, and Boomtown Casino entered into various loan documents with Merrill Lynch Interfunding Inc. Pursuant to a stock purchase agreement, Mr. Rainin purchased 2,000 shares of Boomtown preferred stock and 3,042,000 shares of Boomtown common stock for an aggregate purchase price of approximately $4 million in cash, and Mr. Parrott purchased 270,738 shares of Boomtown common stock for an aggregate purchase price of $222,000, of which $1,000 was paid in cash and $221,000 by a promissory note (the "Promissory Note") secured by a pledge to Boomtown of all of the shares owned by Mr. Parrott. The Promissory Note, as amended in April 1997, provides that (i) interest on the Promissory Note, which accrues at a rate of 6.0% per annum, compounded annually, is payable in arrears on April 7th of each year, commencing April 7, 1998, and (ii) principal is payable in four annual installments beginning April 7, 1998. The Promissory Note was previously amended in November 1994 to provide that the shares owned by Mr. Parrott would be released from the pledge and would no longer secure the amounts outstanding under the Promissory Note. Hollywood Park notes that the interest rate of 6% under the amended Promissory Note is less than Hollywood Park's current borrowing rate. However, this interest rate was in effect under the original version of the Promissory Note executed in 1988 prior to Boomtown's public offering and Hollywood Park's subsequent acquisition of Boomtown. On July 1, 1997, Hollywood Park completed a swap pursuant to the Blue Diamond Swap Agreement entered into on August 12, 1996, by and between Boomtown, Blue Diamond Hotel and Casino, Inc. ("Blue Diamond"), Hollywood Park, Edward P. Roski, Jr., IVAC, a California general partnership ("IVAC"), and Majestic Realty Co., as amended (the "Swap Agreement"). Under the Swap Agreement, immediately following the consummation on June 30, 1997 of the Boomtown Merger, Boomtown and its subsidiaries transferred their interests in the Blue Diamond hotel/casino facilities in Las Vegas (including Boomtown's leasehold interest in the land and certain IVAC Loans (as defined below) which were transferred to IVAC) (collectively, the "Las Vegas Resort") to Majestic Resorts, LLC, an affiliate of Mr. Roski ("Majestic"), in exchange for cash, two unsecured promissory notes aggregating $8.5 million in principal amount by IVAC and assumption by Mr. Roski and Majestic of certain liabilities (the "Blue Diamond Swap"). In accordance with the terms of the Swap Agreement, Mr. Roski resigned from Boomtown's Board of Directors, effective as of the effective date of the Boomtown Merger. On July 1, 1997, concurrently with the Blue Diamond Swap, Hollywood Park and Mr. Roski consummated a Stock Purchase Agreement dated August 12, 1996 (the "Stock Purchase Agreement") pursuant to which Hollywood Park repurchased from Mr. Roski 446,491 shares of Hollywood Park Common Stock receivable by him in the Boomtown Merger. The purchase price of approximately $3.5 million was paid for by an unsecured promissory note having an interest rate equal to the prime rate plus one percent (1%) per annum and providing for four equal annual principal payments plus accrued interest and maturing on the date that is four years after the closing. Prior to the opening of the Las Vegas Resort, Boomtown owned a 50% interest in Blue Diamond, the operating company leasing the hotel/casino facility and the land in Las Vegas, and was primarily responsible for 136 the development and management of the Las Vegas Resort. In June 1994, Boomtown exercised its right to acquire the remaining 50% of Blue Diamond from Mr. Roski in exchange for 714,286 shares of Boomtown Common Stock. Mr. Roski was a member of the Board of Directors of Boomtown and an affiliate of IVAC, which owns the land and building leased by Boomtown for the Las Vegas Resort. Boomtown loaned IVAC $27.3 million (the "IVAC Loans") which was used to help construct the Las Vegas Resort. The IVAC Loans were secured by separate deeds of trust on the Las Vegas Resort, which deeds of trusts are subordinate to separate deeds of trust securing Blue Diamond's and Boomtown's obligations in connection with an indenture relating to a debt offering. Boomtown received interest income of $2.7 million annually from IVAC as a result of these loans. In turn, Blue Diamond paid rent to IVAC in the amount of $5.4 million annually to lease the facility. Blue Diamond further had the right to purchase the Las Vegas Resort from IVAC in accordance with terms of an option which expired in November 1996. As discussed above, on July 1, 1997, Hollywood Park divested all interests in the Las Vegas Resort by completing a swap pursuant to the Swap Agreement. Mr. Parrott is employed as Chairman of the Board and Chief Executive Officer of Boomtown pursuant to an Employment Agreement entered into as of October 8, 1995 and amended as of April 7, 1997 (the "Employment Agreement"). The Employment Agreement provides for a term expiring on May 30, 2000 and a base salary of at least $375,000 per annum, and entitles Mr. Parrott to participate in Boomtown's cash bonus plan. During 1997, Mr. Parrott's base salary and cash bonus totaled $375,000 and $102,442, respectively. In addition, the Employment Agreement provides that in the event of a change of control of Boomtown, all options granted to Mr. Parrott prior to such change of control shall become fully vested and exercisable. The Boomtown Merger constituted such a change of control. The Employment Agreement also provides that in the event of termination of employment without cause, Mr. Parrott shall receive severance payments consisting of, among other things, base salary for three years after termination, subject to mitigation in the event Mr. Parrott obtains alternative employment during the applicable severance payment period, as well as accelerated vesting of Mr. Parrott's stock options. Under the Employment Agreement, Mr. Parrott is also entitled to receive such fringe benefits and perquisites as may be granted or established by Boomtown from time to time, including an automobile allowance. Effective May 7, 1997, Mark A. Sterbens resigned as Hollywood Park's President and Chief Operating Officer of Gaming. During 1997, Hollywood Park paid Mr. Sterbens approximately $88,000 in base salary prior to his termination, and approximately $162,000 in severance after his termination. SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE Based solely upon a review of reports received by Hollywood Park during or with respect to the year ended December 31, 1997 pursuant to Rule 16a-3(e) of the Exchange Act, all required reports on Form 3, Form 4 and Form 5 were timely filed by Hollywood Park's directors, officers, and 10% stockholders, except that Mr. Ornest failed to file on a timely basis one Form 4 with respect to one disposition of Hollywood Park Common Stock. 137 SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT The following table sets forth the name, address (address is provided for persons listed as beneficial owners of 5% or more of the outstanding Hollywood Park Common Stock) and number of shares and percent of the outstanding Hollywood Park Common Stock beneficially owned as of January 31, 1998, by each person known to the Board of Directors of Hollywood Park to be the beneficial owner of 5% or more of the outstanding shares of Hollywood Park Common Stock, each Director, each Named Officer and all current Directors and Executive Officers as a group. Each individual who is currently expected to be a director or executive officer of HP Realty or HP Operating Company after the Reorganization is included in this table.
SHARES PERCENT OF BENEFICIALLY SHARES NAME AND ADDRESS OF BENEFICIAL OWNER OWNED(A) OUTSTANDING(B) - ------------------------------------ ------------ -------------- R.D. Hubbard............ 2,648,174(c) 10.1% Hollywood Park, Inc. 1050 South Prairie Avenue Inglewood, California 90301 Legg Mason, Inc. ....... 2,474,450(d) 9.4% 111 South Calvert Street Baltimore, Maryland 21202 State of Wisconsin Investment Board....... 1,780,000(e) 6.8% P.O. Box 7842 Madison, Wisconsin 53707 Timothy J. Parrott...... 484,653(f) 1.9% J.R. Johnson............ 376,094(g) 1.4% Harry Ornest............ 164,259(h) * Warren B. Williamson.... 155,251(i) * Lynn P. Reitnouer....... 57,334(j) * Herman Sarkowsky........ 53,272(k) * Robert T. Manfuso....... 35,667(l) * Richard J. Goeglein..... 6,125(m) * Peter L. Harris......... 3,250(n) * Delbert W. Yocam........ 1,896(o) * G. Michael Finnigan..... 53,748(p) * Donald M. Robbins....... 40,672(q) * Current Directors and Executive Officers as a group (13 persons)............... 4,080,395(r) 15.3%
- -------- * Less than one percent (1%) of the outstanding common shares. (a) Reflects the conversion of each of Hollywood Park's outstanding Depositary Shares into 0.8333 shares of Hollywood Park Common Stock effective August 28, 1997. (b) Assumes exercise of stock options beneficially owned by the named individual or entity into shares of Hollywood Park Common Stock. Based on 26,284,138 shares outstanding as of January 31, 1998. (c) Includes 28,333 shares of Hollywood Park Common Stock which Mr. Hubbard has the right to acquire upon the exercise of options which are exercisable within 60 days of January 31, 1998. (d) Includes 562,500 shares of Hollywood Park Common Stock received by Legg Mason Special Investment Trust, Inc. (an affiliate of Legg Mason, Inc.) in connection with the Boomtown Merger. The Company has assumed that Legg Mason, Inc. is a beneficial owner of such shares. Based upon information provided by the stockholder in Schedule 13G filed with the Commission on February 10, 1997 and upon information received from Legg Mason Special Investment Trust, Inc. as of August 1996. 138 (e) Based upon information provided by the stockholder in Schedules 13G filed with the Commission on January 22, 1998. (f) Includes 270,278 shares of Hollywood Park Common Stock which Mr. Parrott has the right to acquire pursuant to options assumed by the Company in connection with the Boomtown Merger which are exercisable within sixty days of January 31, 1998. (g) Includes 7,334 shares of Hollywood Park Common Stock which Mr. Johnson has the right to acquire upon the exercise of options which are exercisable within 60 days of January 31, 1998. (h) Includes 70,000 shares of Hollywood Park Common Stock held by The Ornest Family Foundation, for which Mr. Ornest and his wife Ruth Ornest act as trustees. (Mr. Ornest disclaims any pecuniary interest in these shares.) In addition, as trustees of the Harry and Ruth Ornest Trust, Mr. Ornest and his wife share the power to vote 60% of the interest in the Ornest Family Partnership (the "Partnership"), which in turn has the power to dispose of the 76,300 shares of Hollywood Park Common Stock held in the name of the Partnership. Also includes 7,334 shares of Hollywood Park Common Stock which Mr. Ornest has the right to acquire upon the exercise of options which are exercisable within 60 days of January 31, 1998. (i) Includes 7,334 shares of Hollywood Park Common Stock which Mr. Williamson has the right to acquire upon the exercise of options which are exercisable within 60 days of January 31, 1998. (j) Includes 7,334 shares of Hollywood Park Common Stock which Mr. Reitnouer has the right to acquire upon the exercise of options which are exercisable within 60 days of January 31, 1998. (k) Includes 7,334 shares of Hollywood Park Common Stock which Mr. Sarkowsky has the right to acquire upon the exercise of options which are exercisable within 60 days of January 31, 1998. (l) Includes 7,334 shares of Hollywood Park Common Stock which Mr. Manfuso has the right to acquire upon the exercise of options which are exercisable within 60 days of January 31, 1998. (m) Includes 4,875 shares of Hollywood Park Common Stock which Mr. Goeglein has the right to acquire pursuant to options assumed by the Company in connection with the Boomtown Merger which are exercisable within sixty days of January 31, 1998. (n) Includes 3,250 shares of Hollywood Park Common Stock which Mr. Harris has the right to acquire pursuant to options assumed by the Company in connection with the Boomtown Merger which are exercisable within sixty days of January 31, 1998. (o) Includes 1,896 shares of Hollywood Park Common Stock which Mr. Yocam has the right to acquire pursuant to options assumed by the Company in connection with the Boomtown Merger which are exercisable within sixty days of January 31, 1998. (p) Includes 38,334 shares of Hollywood Park Common Stock which Mr. Finnigan has the right to acquire pursuant to options which are exercisable within sixty days of January 31, 1998. (q) Includes 38,334 shares of Hollywood Park Common Stock which Mr. Robbins has the right to acquire pursuant to options which are exercisable within sixty days of January 31, 1998. (r) Includes 429,304 shares of Hollywood Park Common Stock of which the Directors and Executive Officers may be deemed to have beneficial ownership following the exercise of options to purchase Hollywood Park Common Stock which are exercisable within sixty days of January 31, 1998. Excluding such shares, the Directors and Executive Officers of Hollywood Park have beneficial ownership of 3,651,091 shares of Hollywood Park Common Stock, which represents 13.9% of the shares of Hollywood Park Common Stock outstanding as of January 31, 1998 139 ADDITIONAL INFORMATION REGARDING THE ANNUAL MEETING GENERAL This Proxy Statement is being furnished to holders of Hollywood Park Common Stock as part of the solicitation of proxies by the Board for use at the Annual Meeting to be held on Monday, April 13, 1998 at 9:00 a.m., local time, at the New York Palace, 455 Madison Avenue, New York, New York, and at any adjournments or postponements thereof. This Proxy Statement, and the accompanying Proxy Card, are first being mailed to holders of Hollywood Park Common Stock on or about February 13, 1998. RECORD DATE AND OUTSTANDING SHARES Only holders of record of Hollywood Park Common Stock at the close of business on February 18, 1998 (the "Record Date") are entitled to notice of and to vote at the Annual Meeting. As of the close of business on February 9, 1998, there were 26,284,138 shares of Hollywood Park Common Stock outstanding and entitled to vote, held of record by 3,759 stockholders. Pursuant to NYSE requirements, a majority, or 13,142,070 of these shares, present in person or represented by proxy, will constitute a quorum for the transaction of business. Each Hollywood Park stockholder is entitled to one vote for each share of Hollywood Park Common Stock held as of the Record Date. A list of such stockholders entitled to vote will be available for inspection at the Annual Meeting by any stockholder and, for 10 days prior to the Annual Meeting, at ChaseMellon Shareholder Services, L.L.C., 450 West 33rd Street, 15th Floor, N.Y., N.Y., 10001. VOTING OF PROXIES The accompanying Proxy Card is solicited on behalf of the Board. Stockholders are requested to complete, date, sign and return the proxy in the accompanying envelope. All properly executed, returned, and unrevoked proxies will be voted in accordance with the instructions indicated thereon. EXECUTED BUT UNMARKED PROXIES WILL BE VOTED FOR THE APPROVAL OF THE REORGANIZATION AMENDMENTS, THE 1998 OPTION PLAN, THE HP OPERATING COMPANY DIRECTORS PLAN, THE SUPERMAJORITY ELIMINATION AMENDMENT AND THE GAMING AMENDMENT, AND FOR THE ELECTION OF EACH DIRECTOR NOMINEE LISTED HEREIN. The Board does not presently intend to bring any business before the Annual Meeting other than the specific proposals referred to in this Proxy Statement and specified in the notice of the Annual Meeting. As to any business that may properly come before the Annual Meeting, including any motion made for adjournment of the Annual Meeting (including for purposes of soliciting additional votes for approval of the proposals described in this Proxy Statement and for election of directors), the proxies will vote in their discretion. Any Hollywood Park stockholder who has given a proxy may revoke it at any time before it is exercised at the Annual Meeting, by (i) filing a written notice of revocation with, or delivering a duly executed proxy bearing a later date to, Secretary, Hollywood Park, Inc., 1050 South Prairie Avenue, Inglewood, California 90301, or (ii) attending the Annual Meeting and voting in person (although attendance at the Annual Meeting will not, by itself, revoke a proxy). Messrs. Hubbard and Ornest have indicated that they intend to vote in favor of the Reorganization Amendments, the other proposals and the director nominees described in this Proxy Statement. Although Hollywood Park's other directors and executive officers have not indicated their voting intentions, Hollywood Park believes that each of them will also vote in favor of such proposals and director nominees. ABSTENTIONS; BROKER NON-VOTES If an executed proxy is returned and the stockholder has specifically abstained from voting on any matter, the shares represented by such proxy will be considered present at the Annual Meeting for purposes of determining a quorum and for purposes of calculating the vote, but will not be considered to have been voted in favor of such matter. If an executed proxy is returned by a broker holding shares in street name that indicates that the broker does not have discretionary authority as to certain shares to vote on one or more matters, such shares will be considered present at the meeting for purposes of determining a quorum, but will not be considered to be represented at the meeting for purposes of calculating the votes cast with respect to such matter. Thus, for 140 purposes of determining whether the Reorganization Amendments, the Supermajority Elimination Amendment and the Gaming Amendment have been approved, abstentions and broker non-votes will be treated as votes against the proposal. For purposes of determining whether the 1998 Option Plan and the HP Operating Company Directors Plan have been approved, abstentions will be treated as votes against the proposal and broker non-votes will not be counted as represented or voting at the meeting. With respect to the election of directors, abstentions and broker non-votes will have no effect on the outcome of the vote. SOLICITATION OF PROXIES AND EXPENSES Hollywood Park will bear the cost of the solicitation of proxies in the enclosed form from its stockholders. In addition to solicitation by mail, the directors, officers and employees of Hollywood Park may solicit proxies from stockholders by telephone, telegram, letter, facsimile or in person. Following the original mailing of the proxies and other soliciting materials, Hollywood Park will request that brokers, custodians, nominees and other record holders forward copies of the proxy and other soliciting materials to persons for whom they hold shares of Hollywood Park Common Stock and request authority for the exercise of proxies. In such cases, Hollywood Park will reimburse such record holders for their reasonable expenses. Hollywood Park has retained D.F. King & Co., Inc. to assist in the solicitation of proxies at a cost (including brokers' expenses) of approximately $20,000 plus certain out-of-pocket expenses. NO DISSENTERS' RIGHTS Stockholders of Hollywood Park will not be entitled to appraisal rights under Delaware law in connection with the Reorganization or any of the proposals set forth in this Proxy Statement. STOCKHOLDER PROPOSALS FOR THE NEXT ANNUAL MEETING Under Hollywood Park's By-Laws, stockholders who wish to present proposals for action, or to nominate directors, at the next annual meeting of stockholders of Hollywood Park (that is, the next annual meeting following the Annual Meeting to which this Proxy Statement relates) must give written notice thereof to the Secretary of Hollywood Park at the address set forth on the cover page of this Proxy Statement in accordance with the then current provisions of Hollywood Park's By-Laws. The By-Laws currently require that such notice be given not later than 90 days in advance of such meeting or, if later, the seventh day following the first public announcement of such meeting and must contain the information required by Section 2.13 of Article II of Hollywood Park's By-Laws. In order to be eligible for inclusion in Hollywood Park's proxy statement and proxy card for the next annual meeting pursuant to Rule 14a-8 under the Exchange Act, stockholder proposals would have to be received by the Secretary of Hollywood Park no later than October 16, 1998 if the next annual meeting were held in April 1999. However, Hollywood Park may elect to hold its next annual meeting at a different time of year than the time of year of this Annual Meeting, in which event such stockholder proposals would have to be received by Hollywood Park a reasonable time before Hollywood Park's solicitation is made. Further, in order for such stockholder proposals to be eligible to be brought before the stockholders at the next annual meeting, the stockholder submitting such proposals must also comply with the procedures, including the deadlines, required by Hollywood Park's then current By-Laws, as referenced in the preceding paragraph. Stockholder nominations of directors are not stockholder proposals within the meaning of Rule 14a-8 and are not eligible for inclusion in Hollywood Park's proxy statement. If the Reorganization is completed, notice of director nominations and stockholder proposals relating to the 1999 annual meetings of HP Realty and HP Operating Company (which are expected to be held on the same date) will be subject to the same notice requirements and deadlines as those described above for Hollywood Park. 141 INDEPENDENT PUBLIC ACCOUNTANTS The firm of Arthur Andersen LLP served as Hollywood Park's independent public accountants for the fiscal years ended December 31, 1996 and December 31, 1997. Representatives of Arthur Andersen are expected to be present at the Annual Meeting and will be available to respond to appropriate questions and to make any statements they desire. ADJOURNMENT OF MEETING In the event that there are not sufficient votes to approve the Reorganization Amendments at the time of the Annual Meeting, such proposal could not be approved unless the Annual Meeting were adjourned in order to permit further solicitation of proxies from holders of Hollywood Park Common Stock. Proxies that are being solicited by the Board grant the discretionary authority to vote for any such adjournment, if necessary, except for proxies indicating a vote against the Reorganization Amendments. If it is necessary to adjourn the Annual Meeting and the adjournment is for a period of less than 30 days, no notice of the time and place of the adjourned meeting is required to be given to stockholders other than an announcement of such time and place at the Annual Meeting. A majority of the shares represented and voting at the Annual Meeting is required to approve any such adjournment, provided that a quorum is present. If a quorum is not present, then either the chairman of the meeting or the stockholders entitled to vote at the meeting may adjourn the meeting. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed by Hollywood Park with the Securities and Exchange Commission (the "Commission") are incorporated herein by reference: 1. Annual Report on Form 10-K for the fiscal year ended December 31, 1996, as amended by the Annual Report on Form 10-K/A filed with the Commission on November 5, 1997. 2. Quarterly Report on Form 10-Q for the quarterly period ended March 31, 1997. 3. Quarterly Report on Form 10-Q for the quarterly period ended June 30, 1997. 4. Current Report on Form 8-K, filed with the Commission on July 15, 1997. 5. Current Report on Form 8-K, filed with the Commission on August 12, 1997. 6. Registration Statement on Form S-4 (Registration No. 333-34471), originally filed with the Commission on August 27, 1997, and all amendments thereto. 7. Quarterly Report on Form 10-Q for the period ending September 30, 1997. 8. Registration Statement on Form 8-A, filed with the Commission on November 21, 1997. Hollywood Park will provide without charge to each person, including any beneficial owner, to whom a copy of this Proxy Statement is delivered, on the telephone or written request of any such person, a copy of any or all of the foregoing documents incorporated herein by reference (other than any exhibits to such documents which are not specifically incorporated herein by reference). Requests should be directed to: Hollywood Park, Inc., Investor Relations, 1050 South Prairie Avenue, Inglewood, California 90301 (Telephone (310) 419-1610). In order to ensure timely delivery of the documents in advance of the Annual Meeting, any such request should be made by March 23, 1998. All reports and definitive proxy or information statements filed by Hollywood Park pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Proxy Statement and prior to the date of the Annual Meeting or any adjournment thereof shall be deemed to be incorporated by reference into this Proxy Statement from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated herein shall be deemed to be modified or superseded for purposes of this Proxy Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Proxy Statement. 142 AVAILABLE INFORMATION Hollywood Park is subject to the informational requirements of the Exchange Act and, in accordance therewith, file reports, proxy and information statements and other information with the Commission. These materials can be inspected and copied at the public reference facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's regional offices at Northwest Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center, 13th Floor, New York, New York 10048. The Commission maintains a Web site that contains reports, proxy and information statements and other information regarding registrants that file electronically with the Commission. Such reports, proxy and information statements and other information may be found on the Commission's site address, http://www.sec.gov. Copies of these materials can also be obtained from the Commission at prescribed rates by writing to the Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. Such reports, proxy and information statements and other information concerning Hollywood Park can also be inspected (i) if filed with the Commission before December 1, 1997, at the offices of the National Association of Securities Dealers, Inc., Reports Section, 1935 K Street, N.W., Washington, D.C. 20006, or (ii) if filed with the Commission on or after December 1, 1997, at the offices of the New York Stock Exchange, 20 Broad Street, New York, N.Y. 10005. Hollywood Park and HP Operating Company will file with the Commission a Registration Statement on Form 8-A and Form 10, respectively, with respect to the shares of HP Realty Common Stock and HP Operating Company Common Stock to be received by the stockholders of Hollywood Park in the Reorganization. 143 INDEX TO FINANCIAL STATEMENTS
PAGE ---- HOLLYWOOD PARK, INC. Report of Arthur Andersen LLP, Independent Public Accountants............ S-2 Consolidated Balance Sheets.............................................. S-3 Consolidated Statements of Operations.................................... S-4 Consolidated Statements of Changes in Stockholders' Equity............... S-5 Consolidated Statements of Cash Flows.................................... S-6 Notes to Consolidated Financial Statements............................... S-7 BOOMTOWN, INC. Report of Ernst & Young LLP, Independent Auditors........................ S-42 Consolidated Balance Sheets.............................................. S-43 Consolidated Statements of Operations.................................... S-44 Consolidated Statements of Stockholders' Equity.......................... S-45 Consolidated Statements of Cash Flows.................................... S-46 Notes to Consolidated Financial Statements............................... S-47
S-1 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To The Board of Directors and Stockholders of Hollywood Park, Inc.: We have audited the accompanying consolidated balance sheets of Hollywood Park, Inc. (a Delaware corporation) and subsidiaries (the "Company") as of December 31, 1996, and 1995, and the related consolidated statements of operations, stockholders' equity and cash flows for each of the three years in the period ended December 31, 1996. 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 Hollywood Park, Inc. and subsidiaries as of December 31, 1996, and 1995, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 1996 in conformity with generally accepted accounting principles. Arthur Andersen LLP Los Angeles, California February 18, 1997 S-2 HOLLYWOOD PARK, INC. CONSOLIDATED BALANCE SHEETS
AS OF --------------------------------- DECEMBER 31, ------------------ SEPTEMBER 30, 1996 1995 1997 -------- -------- ------------- (UNAUDITED) ASSETS ------ (IN THOUSANDS) Current Assets: Cash and cash equivalents.................... $ 11,922 $ 22,406 $ 22,007 Restricted cash.............................. 4,486 3,126 1,209 Short term investments....................... 4,766 6,447 0 Other receivables, net of allowance for doubtful accounts of $1,111,000 in 1997, $1,089,000 in 1996, and $1,841,00 in 1995... 7,110 8,147 10,049 Prepaid expenses and other assets............ 6,215 3,888 20,057 Deferred tax assets.......................... 6,422 4,888 8,103 Current portion of notes receivable.......... 38 34 41 -------- -------- -------- Total current assets.................... 40,959 48,936 61,466 Notes receivable.............................. 819 857 9,450 Property, plant and equipment, net............ 130,835 174,717 293,737 Goodwill and lease with TRAK East, net........ 20,370 28,024 33,342 Long term gaming assets....................... 0 19,063 0 Other assets.................................. 12,903 11,706 15,384 -------- -------- -------- $205,886 $283,303 $413,379 ======== ======== ======== LIABILITIES AND STOCKHOLDERS' EQUITY ------------------------------------ Current Liabilities: Accounts payable............................. $ 10,043 $ 12,518 $ 10,625 Accrued lawsuit settlement................... 2,750 5,232 2,750 Accrued liabilities.......................... 9,733 13,762 17,174 Accrued compensation......................... 4,198 3,295 6,843 Gaming liabilities........................... 2,499 3,998 3,696 Racing liabilities........................... 6,106 3,836 2,610 Current portion of notes payable............. 35 32,310 4,005 -------- -------- -------- Total current liabilities............... 35,364 74,951 47,703 Notes payable................................. 282 15,629 132,163 Gaming liabilities............................ 0 16,894 0 Deferred tax liabilities...................... 9,065 10,083 11,005 -------- -------- -------- Total liabilities....................... 44,711 117,557 190,871 Minority interests............................ 3,015 0 3,033 Stockholders' Equity Capital stock-- Preferred--$1.00 par value, authorized 250,000 shares; none issued and outstanding in 1997, and 27,499 issued and outstanding in 1996 and 1995......... 28 28 0 Common--$.10 par value authorized 40,000,000 shares; 26,186,724 issued and outstanding in 1997, 18,332,016 in 1996 and 18,504,798 in 1995................... 1,833 1,850 2,619 Capital in excess of par value.............. 167,074 168,479 222,023 Accumulated deficit......................... (10,775) (4,611) (5,167) -------- -------- -------- Total stockholders' equity.............. 158,160 165,746 219,475 -------- -------- -------- $205,886 $283,303 $413,379 ======== ======== ========
See accompanying notes to consolidated financial statements. S-3 HOLLYWOOD PARK, INC. CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE NINE MONTHS ENDED FOR THE YEARS ENDED DECEMBER 31, SEPTEMBER 30, ---------------------------------- --------------- 1996 1995 1994 1997 1996 ---------- ---------- ---------- ------- ------- (UNAUDITED) (IN THOUSANDS, EXCEPT PER SHARE DATA) REVENUES: Gaming.................. $ 50,717 $ 26,656 $ 11,745 $83,990 $37,917 Racing.................. 71,308 77,036 78,719 48,084 50,897 Food and beverage....... 13,947 19,783 20,540 13,016 10,516 Hotel and recreational vehicle park........... 0 0 0 581 0 Truck stop and service station................ 0 0 0 4,897 0 Other income............ 7,253 7,097 6,320 7,781 5,197 ---------- ---------- ---------- ------- ------- 143,225 130,572 117,324 158,349 104,527 ---------- ---------- ---------- ------- ------- EXPENSES: Gaming.................. 27,249 4,919 0 45,117 19,516 Racing.................. 30,167 29,574 32,099 21,615 21,623 Food and beverage....... 19,573 25,162 22,318 16,920 14,058 Hotel and recreational vehicle park........... 0 0 0 199 0 Truck stop and service station................ 0 0 0 4,461 0 Administrative.......... 41,477 46,792 39,858 38,622 31,575 Other................... 2,485 3,200 2,121 3,262 2,028 Depreciation and amortization........... 10,695 11,384 9,563 11,939 7,898 REIT restructuring...... 0 0 0 609 0 Write off of investment in Sunflower........... 11,412 0 0 0 11,412 Lawsuit settlement...... 0 6,088 0 0 0 Casino pre-opening and training expenses...... 0 0 2,337 0 0 Turf Paradise acquisition costs...... 0 0 627 0 0 ---------- ---------- ---------- ------- ------- 143,058 127,119 108,923 142,744 108,110 ---------- ---------- ---------- ------- ------- Operating income (loss)... 167 3,453 8,401 15,605 (3,583) Interest expense........ 942 3,922 3,061 3,782 918 ---------- ---------- ---------- ------- ------- Income (loss) before minority interest and taxes.................... (775) (469) 5,340 11,823 (4,501) Minority interest....... 15 0 0 80 0 Income tax expense...... 3,459 693 1,568 4,624 3,025 ---------- ---------- ---------- ------- ------- Net income (loss)......... $ (4,249) $ (1,162) $ 3,772 $ 7,119 $(7,526) ========== ========== ========== ======= ======= Dividend requirements on convertible preferred stock.................... $ 1,925 $ 1,925 $ 1,925 $ 1,520 $ 1,443 Net income (loss) available to (allocated to) common shareholders.. $ (6,174) $ (3,087) $ 1,847 $ 5,599 $(8,969) ========== ========== ========== ======= ======= Per common share: Net income (loss)-- primary................ $ (0.33) $ (0.17) $ 0.10 $ 0.27 $ (0.48) Net income (loss)--fully diluted................ $ (0.33) $ (0.17) $ 0.10 $ -- $ (0.48) Number of shares-- primary.................. 18,505 18,399 18,224 20,596 18,605 Number of shares--fully diluted.................. 20,797 20,691 20,516 -- 20,896
See accompanying notes to consolidated financial statements. S-4 HOLLYWOOD PARK, INC. CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY FOR THE YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994 AND THE NINE MONTHS ENDED SEPTEMBER 30, 1997
CAPITAL IN TOTAL PREFERRED COMMON EXCESS OF ACCUMULATED STOCKHOLDERS' STOCK STOCK PAR VALUE DEFICIT EQUITY --------- ------ -------------- ----------- ------------- (IN THOUSANDS) BALANCE AT YEAR END 1993................... $28 $1,772 $155,725 $ (3,325) $154,200 Net income............ 0 0 0 3,772 3,772 Net income--Turf Paradise six months ended December 31, 1993................. 0 0 0 198 198 Issuance of common stock to acquire-- Sunflower Racing, Inc.................. 0 59 11,099 0 11,158 Issuance of contingent shares related to Sunflower Racing, Inc. acquisition..... 0 6 (6) 0 0 Net changes related to Turf Paradise equity............... 0 0 74 (222) (148) Preferred stock dividends--$70.00 per share................ 0 0 0 (1,925) (1,925) --- ------ -------- -------- -------- BALANCE AT YEAR END 1994................... 28 1,837 166,892 (1,502) 167,255 Net loss.............. 0 0 0 (1,162) (1,162) Issuance of common stock to acquire-- Pacific Casino Management, Inc...... 0 13 1,587 0 1,600 Investment in bonds-- unrealized holding loss................. 0 0 0 (22) (22) Preferred stock dividends--$70.00 per share................ 0 0 0 (1,925) (1,925) --- ------ -------- -------- -------- BALANCE AT YEAR END 1995................... 28 1,850 168,479 (4,611) 165,746 Net loss.............. 0 0 0 (4,249) (4,249) Issuance of common stock to acquire-- Pacific Casino Management, Inc...... 0 5 535 0 540 Repurchase and retirement of common stock................ 0 (22) (1,940) 0 (1,962) Investment in bonds-- unrealized holding gain................. 0 0 0 10 10 Preferred stock dividends--$70.00 per share................ 0 0 0 (1,925) (1,925) --- ------ -------- -------- -------- BALANCE AT YEAR END 1996................... 28 1,833 167,074 (10,775) 158,160 Net income............ 0 0 0 7,119 7,119 Issuance of common stock to acquire-- Pacific Casino Management, Inc...... 0 3 497 0 500 Issuance of common stock to acquire-- Boomtown, Inc. ...... 0 581 56,423 0 57,004 Common stock options exercised............ 0 18 1,650 0 1,668 Repurchase and retirement of common stock................ 0 (45) (3,420) 0 (3,465) Investment in bonds-- unrealized holding gain................. 0 0 0 9 9 Conversion of convertible preferred............ (28) 229 (201) 0 0 Preferred stock dividends--$55.27 per share................ 0 0 0 (1,520) (1,520) --- ------ -------- -------- -------- BALANCE AT SEPTEMBER 30, 1997 (UNAUDITED)....... $ 0 $2,619 $222,023 $ (5,167) $219,475 === ====== ======== ======== ========
See accompanying notes to consolidated financial statements. S-5 HOLLYWOOD PARK, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED FOR THE NINE MONTHS DECEMBER 31, ENDED SEPTEMBER 30, ---------------------------- ------------------------ 1996 1995 1994 1997 1996 -------- -------- -------- --------- -------- (UNAUDITED) (IN THOUSANDS) CASH FLOWS FROM OPERATING ACTIVITIES: Net income (loss)....... $ (4,249) $ (1,162) $ 3,772 $ 7,119 $ (7,526) Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities: Depreciation and amortization.......... 10,027 10,857 10,064 11,939 7,342 Minority interests..... 15 0 0 17 0 Changes in accounts due to deconsolidation of subsidiary in bankruptcy: Property, plant and equipment............. 58,380 0 0 0 58,380 Secured notes payable............... (28,918) 0 0 0 (28,918) Unsecured notes payable............... (15,323) 0 0 0 (15,323) Goodwill and lease with TRAK East........ 6,908 0 0 0 6,908 (Gain) loss on sale or disposal of property, plant and equipment.... (2) 64 55 488 (3) Unrealized gain on short term bond investing.... 10 0 0 10 11 Changes in assets and liabilities, net of effects of the purchase of a business: (Increase) decrease in restricted cash....... (1,360) (2,427) (490) 3,277 2,292 Increase in casino lease and related interest receivable, net................... 0 (9,204) (11,745) 0 0 Decrease (increase) in other receivables, net................... 1,037 77 (5,022) (944) 1,891 (Increase) decrease in prepaid expenses and other assets.......... (3,524) (304) (5,488) 894 2,897 (Increase) decrease in deferred tax assets... (1,534) (349) (3,207) (1,681) 10 (Decrease) increase in accounts payable...... (2,475) 5,685 (1,596) (2,151) (3,920) (Decrease) increase in accrued lawsuit settlement............ (2,482) 5,232 0 0 (2,482) (Decrease) increase in accrued gaming liabilities........... (1,499) 3,998 0 1,197 (1,192) (Decrease) increase in accrued liabilities... (3,489) 6,437 1,612 (10,391) (970) (Decrease) increase in accrued compensation.......... 903 (761) 1,559 (1,788) (262) Increase (decrease) in racing liabilities.... 2,270 1,404 1,026 (3,496) (2,313) (Decrease) increase in deferred tax liabilities........... (1,018) 744 2,173 1,569 (5,061) -------- -------- -------- --------- -------- Net cash provided by (used in) operating activities.......... 13,677 20,291 (7,287) 6,059 11,761 -------- -------- -------- --------- -------- Cash flows from investing activities: Additions to property, plant and equipment... (23,786) (25,150) (27,584) (23,059) (17,969) Receipts from sale of property, plant and equipment............. 9 98 75 114 9 Principal collected on notes receivable...... 34 31 31 31 25 Purchase of short term investments........... (16,888) (35,875) (96,822) (1,946) (14,009) Proceeds from short term investments...... 18,569 29,428 116,625 6,712 16,958 Long term gaming assets................ 2,169 (2,169) 0 0 294 Cash acquired in the purchase of a business, net of transaction and other costs................. 0 715 344 12,264 0 -------- -------- -------- --------- -------- Net cash used in investing activities.......... (19,893) (32,922) (7,331) (5,884) (14,692) -------- -------- -------- --------- -------- Cash flows from financing activities: Proceeds from unsecured notes payable............... 0 1,681 1,850 125,000 0 Proceeds from secured notes payable......... 0 3,358 2,300 112,000 0 Payment of unsecured notes payable......... (23) (3,813) (5,019) (31) (30) Payment of secured notes payable......... (3,358) (1,333) (5,998) (116,282) (3,358) Payment of 11.5% Boomtown First Mortgage Notes........ 0 0 0 (110,924) 0 Payments under capital lease obligations..... 0 (53) (135) 0 0 Payments from minority interest partners..... 3,000 0 0 0 3,000 Common stock repurchase and retirement............ (1,962) 0 0 0 (1,961) Turf Paradise equity transactions.......... 0 0 50 0 0 Common stock options exercised............. 0 0 0 1,667 0 Dividends paid to preferred stockholders.......... (1,925) (1,925) (1,925) (1,520) (1,443) -------- -------- -------- --------- -------- Net cash provided by (used for) financing activities.......... (4,268) (2,085) (8,877) 9,910 (3,792) -------- -------- -------- --------- -------- Increase (decrease) in cash equivalents....... (10,484) (14,716) (23,495) 10,085 (6,723) Cash and cash equivalents at the beginning of the period................. 22,406 37,122 60,617 11,922 22,406 -------- -------- -------- --------- -------- Cash and cash equivalents at the end of the period.......... $ 11,922 $ 22,406 $ 37,122 $ 22,007 $ 15,683 ======== ======== ======== ========= ========
See accompanying notes to consolidated financial statements. S-6 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS NOTE 1--SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES CONSOLIDATION The consolidated financial statements for the year ended December 31, 1996, included the accounts of Hollywood Park, Inc. (the "Company" or "Hollywood Park") and its wholly owned subsidiaries: Hollywood Park Operating Company (which has two wholly owned subsidiaries, Hollywood Park Food Services, Inc. and Hollywood Park Fall Operating Company), Sunflower Racing, Inc. ("Sunflower") (which has one wholly owned subsidiary, SR Food and Beverage, Inc.), Turf Paradise, Inc. ("Turf Paradise"), and HP/Compton, Inc., which owned 88% of Crystal Park Hotel and Casino Development Company LLC, as of December 31, 1996, and presently owns 89.8% ("Crystal Park LLC"), which built and presently leases the Crystal Park Hotel and Casino (the "Crystal Park Casino"), to an unaffiliated third party. As of June 30, 1997, the Company owns and operates a casino and hotel in Verdi, Nevada ("Boomtown Reno"), a riverboat casino in Harvey, Louisiana ("Boomtown New Orleans"), and a dockside casino in Biloxi, Mississippi ("Boomtown, Biloxi"). Sunflower was acquired on March 23, 1994, and was accounted for under the purchase method of accounting. Turf Paradise was acquired on August 11, 1994, and was accounted for under the pooling of interests method of accounting. Crystal Park began operations on October 25, 1996. The Hollywood Park-Casino is a division of Hollywood Park, Inc. On May 2, 1996, the Kansas Legislature adjourned without passing legislation that would have allowed additional gaming at Sunflower, thereby permitting Sunflower to more effectively compete with Missouri riverboat gaming. As a result of the outcome of the Kansas Legislative session, Hollywood Park wrote off its approximately $11,412,000 investment in Sunflower. There was no cash involved with the write off of this investment. On May 17, 1996, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code. Sunflower is operating during the reorganization, but Sunflower's operating results from April 1, 1996, forward were not consolidated with Hollywood Park's operating results. The consolidated statements for the nine months ended September 30, 1997 and 1996, are unaudited, however, in the opinion of management they reflect all normal and recurring adjustments that are necessary to present a fair statement of the financial results for the interim periods. It should be understood that accounting measurements at the interim dates inherently involve greater reliance on estimates than at year end. The interim racing results of operations are not indicative of the results for the full year due to the seasonality of the horse racing business. ACQUISITION OF BOOMTOWN, INC. (UNAUDITED). On June 30, 1997, pursuant to the Agreement and Plan of Merger dated as of April 23, 1996, by and among Hollywood Park, HP Acquisition, Inc., a wholly owned subsidiary of the Company, and Boomtown, HP Acquisition, Inc. was merged with and into Boomtown (the "Merger"). As a result of the Merger, Boomtown became a wholly owned subsidiary of the Company and each share of Boomtown common stock was converted into the right to receive 0.625 of a share of Hollywood Park's common stock. Approximately 5,362,850 shares of Hollywood Park common stock, valued at $9.8125, (excluding shares repurchased from Edward P. Roski, Jr. ("Roski") and subsequently retired, as described below) were issued in the Merger. The Merger was accounted for under the purchase method of accounting for a business combination, and thus the consolidated balance sheet of Boomtown as of June 30, 1997, is consolidated with Hollywood Park's, though Boomtown's consolidated statement of operations is not consolidated with Hollywood Park's. The purchase price of the Merger was allocated to the identifiable assets acquired and liabilities assumed based on their estimated fair values at the date of acquisition. Based on financial analyses prepared by the Company which considered the impact of general economic, financial and market conditions on the assets acquired and liabilities assumed, the Company determined that the estimated fair values approximated their carrying amounts. The Merger generated approximately $2,683,000 of excess acquisition cost over the recorded value of the net assets acquired, all of which was allocated to goodwill, to be amortized over 40 years. The amortization of the goodwill S-7 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) is not deductible for income tax purposes. The Company anticipates finalizing any reallocation of the purchase price within the next nine months. The Company acquired three of the four Boomtown properties, Boomtown Reno, Boomtown New Orleans, and Boomtown Biloxi. Boomtown's Las Vegas property was divested following the Merger on July 1, 1997. Boomtown's Las Vegas property was divested because it had generated significant operating losses since it opened, thus reducing the overall profitability of Boomtown. Boomtown and its subsidiaries exchanged substantially all of their interest in the Las Vegas property, including substantially all of the operating assets and notes receivable of approximately $27,300,000 from the landowner/lessor of the Las Vegas property, IVAC, a California general partnership of which Roski, a former Boomtown director, is a general partner, for, among other things, two unsecured notes receivable totaling approximately $8,465,000, cash, assumption of certain liabilities and release from certain lease obligations. The first note receivable is for $5,000,000, bearing interest at Bank of America National Trust and Savings Association's ("Bank of America") reference rate plus 1.5% per year, with annual principal receipts of $1,000,000 plus accrued interest commencing on July 1, 1998. The second note is for approximately $3,465,000, bearing interest at Bank of America's reference rate plus 0.5% per year, with the principal and accrued interest payable to the Company, in full, on July 1, 2000. In addition, concurrently with the divestiture of the Las Vegas property, Hollywood Park purchased and retired 446,491 shares of Hollywood Park common stock received by Roski in the Merger for a price of approximately $3,465,000, payable in the form of a Hollywood Park promissory note. The promissory note bears interest at Bank of America's reference rate plus 1.0%. Interest is payable annually and annual principal payments in five equal installments of approximately $693,000 are due commencing July 1, 1998. Boomtown Reno is situated on 569 acres (though current operations presently utilize approximately 61 acres) in Verdi Nevada, two miles from the California border and seven miles west of downtown Reno, on Interstate 80, the major highway connecting northern California and Nevada. Boomtown Reno draws a significant portion of its customers from Interstate 80 traffic. Boomtown Reno offers a 40,000-square foot casino, with 1,320 slot machines and 44 table games, a 122-room hotel, a 35,000-square foot family entertainment center, a 16-acre truck stop, a full-service recreational vehicle park, a newly renovated service station and mini-mart, and other related amenities. Boomtown New Orleans opened in August 1994 on a 50 acre site in Harvey, Louisiana, approximately ten miles form the French Quarter of New Orleans. Gaming operations are conducted from a 250-foot replica of a paddle-wheel riverboat, offering 911 slot machines and 55 table games in a 30,000-square foot casino. The land-based facility includes a 20,000-square foot family entertainment center, a western saloon and dance hall, with restaurant and buffet services. As of August 8, 1997, Boomtown New Orleans is wholly owned by the Company. Previously, Boomtown New Orleans was owned and operated by a Louisiana limited partnership (the "Louisiana Partnership"), of which 92.5% was owned by Hollywood Park with the remaining 7.5% owned by Eric Skrmetta ("Skrmetta"). On November 18, 1996, Boomtown entered into an agreement with Skrmetta under which it would pay approximately $5,670,000 in return for Skrmetta's interest in the Louisiana Partnership. Under the terms of the agreement, Boomtown made a down payment of $500,000, and the Company paid the remaining $5,170,000 on August 8, 1997. Boomtown Biloxi opened in July 1994 and occupies 19 acres on Biloxi, Mississippi's historic Back Bay. The dockside property consists of a land- based facility which houses all non-gaming amenities including a 20,000-square foot family entertainment center, food and beverage facilities and a western themed dance hall and cabaret. Gaming operations are conducted on a 40,000- square foot barge, which is permanently moored to the land-based facility. The casino covers 33,632-square feet, offering 1,038 slot machines, 35 table games and related amenities. S-8 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) Boomtown Biloxi is operated by a Mississippi limited partnership (the "Mississippi Partnership"), of which 85% is owned and controlled by Hollywood Park, with the remaining 15% owned by Skrmetta. Both Hollywood Park and Skrmetta have an option, exercisable over a four year period, to exchange Skrmetta's interest in the Mississippi Partnership, at Skrmetta's option, for either cash and/or shares of Hollywood Park common stock with an aggregate value equal to the value of Skrmetta's 15% interest in the Mississippi Partnership, with such value determined by a formula set forth in the relevant partnership agreements. On August 13, 1997, Hollywood Park exercised this option and subsequently supplied Skrmetta with the calculation of the value of his 15% interest in the Mississippi Partnership. Skrmetta did not agree to this valuation of his 15% interest, and Hollywood Park and Skrmetta are currently attempting to reach agreement on a value. In the event that Hollywood Park and Skrmetta are unable to reach an agreement, Hollywood Park plans to initiate arbitration proceedings. The Boomtown Biloxi barge and building shell were owned by National Gaming Mississippi, Inc., a subsidiary of Chartwell Leisure, Inc. ("National Gaming"). Boomtown Biloxi leased these assets from National Gaming under a 25- year lease with a 25-year renewal option, and also received marketing services from National Gaming. National Gaming received 16% of the adjusted earnings before interest, taxes, depreciation and amortization ("Adjusted EBITDA"), as defined in the relevant contract. On August 4, 1997, Hollywood Park executed an agreement pursuant to which one of the Hollywood Park entities purchased the assets for $5,250,000, payable through a down payment of approximately $1,500,000, with the balance paid in three equal annual installments of $1,250,000. The Adjusted EBITDA participation and other related agreements were terminated upon repurchase of the assets. PRO FORMA RESULTS OF OPERATIONS The following pro forma results of operations were prepared under the assumption that the acquisition of Boomtown had occurred at the beginning of the period presented. The historical results of operations of Boomtown (excluding the results of operations of Boomtown's Las Vegas property, which was divested in connection with the Merger) were combined with Hollywood Park's. Pro forma adjustments were made for the following: elimination of the amortization of the issuance costs associated with Boomtown's First Mortgage Notes; amortization of the issuance costs of the $125,000,000 of Series A 9.5% Hollywood Park Senior Subordinated Notes due 2007 (the "Series A Notes,"and together with any Series B Notes issued in replacement thereof, the "Notes"); amortization of the excess purchase price over net assets acquired in the Merger; elimination of the amortization of the discount associated with the Boomtown 11.5% First Mortgage Notes; interest expense associated with the promissory notes from Hollywood Park to the former lessor of Boomtown's Las Vegas property; elimination of the interest expense associated with the Boomtown 11.5% First Mortgage Notes; amortization of the up-front loan fees associated with the Company's Bank Credit Facility; interest expense associated with the Notes at 9.5%; and the estimated 40% tax benefit associated with the pro forma adjustments. S-9 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) HOLLYWOOD PARK, INC. UNAUDITED PRO FORMA COMBINED CONSOLIDATED RESULTS OF OPERATIONS
FOR THE TWELVE MONTHS FOR THE NINE MONTHS ENDED ENDED SEPTEMBER 30, DECEMBER 31, ------------------------- ------------- 1997 1996 1996 ------------ ------------ ------------- Revenues: Gaming.............................. $167,339,000 $158,734,000 $208,699,000 Racing.............................. 48,084,000 50,897,000 71,308,000 Other............................... 43,882,000 43,822,000 56,871,000 ------------ ------------ ------------ 259,305,000 253,453,000 336,878,000 ------------ ------------ ------------ Operating income (loss) (a)........... 24,678,000 (22,968,000) (17,788,000) Income (loss) before extraordinary item................................. $ 7,715,000 $(39,867,000) $(37,346,000) ============ ============ ============ Dividend requirements on convertible preferred stock...................... $ 1,520,000 $ 1,443,000 $ 1,925,000 Income (loss) before extraordinary item available to (allocated to) common shareholders.................. $ 6,195,000 $(41,310,000) $(39,271,000) ============ ============ ============ Per common share: Income (loss) before extraordinary item--primary...................... $ 0.25 $ (1.72) $ (1.65) Income (loss) before extraordinary item--fully diluted................ $ 0.25 $ (1.72) $ (1.65)
- -------- (a) The 1996 operating loss included the non-recurring write off of Hollywood Park's investment in Sunflower of $11,412,000, and the non-recurring loss on Boomtown's sale of its Las Vegas property of $36,562,000. ACQUISITION OF PACIFIC CASINO MANAGEMENT, INC. The Hollywood Park-Casino was opened in July 1994 under a third party leasing arrangement with Pacific Casino Management, Inc. ("PCM"). In 1994, under the California Gaming Registration Act, it was the position of the California Attorney General that as a publicly traded company, Hollywood Park was not eligible to register as an operator of a card club, but could lease the site to a registered operator unaffiliated with the Company. On August 3, 1995, Senate Bill ("SB") 100 was enacted into law. SB 100 does the following: (i) allows for a publicly traded racing association, or a subsidiary thereof, (hereafter the "Racing Association") to operate a gaming club on the premises of its race track; (ii) requires the officers, directors and shareholders of 5.0% or more of a Racing Association (excluding institutional investors) to be licensed by the Attorney General; (iii) provisionally licenses a Racing Association and its officers, directors, and 5.0% shareholders to operate a gaming club on the premises of its race track pending licenses pursuant to sub-paragraph (ii) above; (iv) allows a Racing Association and its officers, directors and 5.0% shareholders to have an interest in gaming activities located outside California that are not legal in California. The provisions of SB 100 are repealed effective January 1, 1999, unless prior thereto the California legislature enacts a comprehensive scheme for the regulation of gaming under the jurisdiction of a gaming control commission. The Company supports SB 900, currently pending in the California Legislature, which would remove the sunset clause from SB 100 and, among other things, would allow the Company to operate the Hollywood Park-Casino beyond December 31, 1998. It is too early in the legislative session to comment on the prospects of SB 900. Pursuant to the authority provided by SB 100, on November 17, 1995, Hollywood Park acquired substantially all of the assets, property and business of PCM, and assumed substantially all of PCM's liabilities. Prior to the acquisition, under a lease with the Company, PCM operated the gaming floor activities of the Hollywood Park-Casino. S-10 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) The purchase price of PCM's net assets was an aggregate $2,640,000, payable in shares of Hollywood Park common stock, in three installments: (i) shares of Hollywood Park common stock, having a value of $1,600,000, or 136,008 common shares, issued on November 17, 1995, (ii) shares of Hollywood Park common stock, having a value of $540,000, or 48,674 common shares, issued on November 19, 1996 and (iii) shares of Hollywood Park common stock, having a value of $500,000, or 33,417 common shares, issued on February 10, 1997. Virtually all of the approximately $21,568,000 of excess acquisition cost over the recorded value of the net assets acquired from PCM was allocated to goodwill and will be amortized over 40 years. The amortization of the goodwill is not deductible for income tax purposes. ACQUISITION OF SUNFLOWER On May 17, 1996, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code, due to the Kansas Legislature's failure to pass legislation that would have allowed additional forms of gaming at Sunflower, and thereby allowing Sunflower to more effectively compete with Missouri riverboat gaming. On March 31, 1996, Hollywood Park wrote off its approximately $11,412,000 investment in Sunflower. There was no cash involved with the write off of this investment. On March 23, 1994, the Company finalized the transaction to acquire Sunflower, a greyhound and thoroughbred racing facility located in Kansas City, Kansas. Sunflower, operating as the Woodlands, became a wholly owned subsidiary of Hollywood Park, with the transaction accounted for under the purchase method of accounting. The acquisition price was $15,000,000 paid for with 591,715 shares of Hollywood Park common stock, with a then market price of $25.35 per share. For financial reporting purposes, the transaction was valued at $19.00 per Hollywood Park common share, based on the size of the block of shares issued in the acquisition relative to the then current trading volume. Immediately following the acquisition, the Company contributed $5,000,000 in cash to Sunflower to repay a portion of the subordinated debt Sunflower owed to Mr. Hubbard, in return for more favorable terms on the balance of the subordinated debt. Of the approximately $6,625,000 of restated excess acquisition cost over recorded value of the net assets acquired, $1,153,000 was allocated to the racing facility lease and management agreement Sunflower has with The Racing Association of Kansas East ("TRAK East") and was to be amortized over the remaining lease period of 20 years, with the balance of $5,472,000 allocated to goodwill, to be amortized over 40 years. The amortization of the goodwill was not deductible for income tax purposes. An additional 55,574 shares of Hollywood Park common stock were issued to Mr. Richard Boushka, a former Sunflower shareholder, as required by the agreement of merger, because the market price of Hollywood Park common stock 180 days after closing was more than 10% less than the market price on the closing date of the acquisition. The agreement of merger provided that under certain circumstances the former Sunflower shareholders were entitled to receive additional shares of Hollywood Park common stock. As of March 23, 1995, the former Sunflower shareholders transferred their rights to such additional consideration to Hollywood Park for nominal consideration and have no further entitlements to additional consideration. ACQUISITION OF TURF PARADISE On August 11, 1994, the shareholders of Turf Paradise approved the Agreement of Merger, entered into on March 30, 1994, by Hollywood Park and Turf Paradise and as amended on May 27, 1994, pursuant to which Turf Paradise became a wholly owned subsidiary of Hollywood Park. Turf Paradise owns and operates a thoroughbred race track in Phoenix, Arizona. The transaction was accounted for under the pooling of interests method of accounting, with approximately $627,000 of merger related costs incurred in total and expensed by both the Company and Turf Paradise. In connection with the merger, the Company issued a total of 1,498,016 shares of Hollywood Park common stock, valued as of the date of issuance at approximately $33,800,000. Each share of Turf Paradise common stock was valued at $13.00 and was converted to approximately 0.577 shares of Hollywood Park common stock, which had a then fair market value S-11 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) of $22.53 based on the weighted average of all trades on the NASDAQ National Market System for the twenty trading days up to and including August 10, 1994. As required under the pooling of interests method of accounting, the consolidated financial statements for the periods prior to the acquisition have been restated to include the accounts and results of operations of Turf Paradise. The consolidated financial statements for the year 1994 include the results of operations for the twelve months ended December 31, 1994, for both Hollywood Park and Turf Paradise. Separate results of the combined entities are as follows:
YEAR ENDED DECEMBER 31, 1994 ------------------------------------- HOLLYWOOD TURF PARK PARADISE COMBINED ------------ ----------- ------------ Total revenues......................... $100,010,000 $17,313,000 $117,323,000 Total expenses......................... 97,563,000 15,988,000 113,551,000 ------------ ----------- ------------ Net income........................... $ 2,447,000 $ 1,325,000 $ 3,772,000 ============ =========== ============
PRO FORMA RESULTS OF OPERATIONS The following pro forma results of operations was prepared under the assumption that the acquisition of PCM and Sunflower had occurred at the beginning of the period shown. The historical results of operations for PCM, Sunflower and Turf Paradise were combined with the Company's results and pro forma adjustments related to the PCM acquisition were made for the following: lease rent revenue due to Hollywood Park from PCM and concession sales made to PCM; lease rent expense recorded by PCM; other operating expenses including consulting fees, legal and audit services and other miscellaneous duplicate expenses; amortization of the excess purchase price allocated to goodwill; interest expense on the unpaid lease rent; and income taxes. Adjustments related to the Sunflower acquisition were made for the following: amortization of the excess purchase price allocated to the lease with TRAK East and to goodwill; interest expense reduction related to the reduction in both the principal and interest on Sunflower's subordinated debt; the termination of the management agreement Sunflower had with a former shareholder and the wages and payroll taxes paid to a former Sunflower shareholder; director's fees and income taxes. The pro forma earnings per share reflect the 218,099 common shares actually issued to the former PCM shareholders, as of February 10, 1997. The pro forma earnings per share also reflect the 647,289 shares issued to the former Sunflower shareholders.
YEAR ENDED DECEMBER 31, 1995 ----------------- (UNAUDITED) Revenues................................................... $149,892,000 Operating income........................................... 15,841,000 Net loss................................................. $ (1,866,000) ============ Dividend requirements on convertible preferred stock....... $ 1,925,000 Net loss allocated to common shareholders.................. $ (3,791,000) Per common share: Net loss--primary........................................ $ (0.20) Net loss--fully diluted.................................. $ (0.20)
RESTRICTED CASH Restricted cash as of September 30, 1997 and December 31, 1996, was for amounts due to horsemen for purses, stakes and awards. Restricted cash as of December 31, 1995, included approximately $2,482,000 related to the Class Actions lawsuit settlement (see Note 18 Commitments and Contingencies) and approximately $644,000 related to amounts due to horsemen for purses, stakes and awards. S-12 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) GAMING REVENUE AND PROMOTIONAL ALLOWANCES Gaming revenues at the Boomtown properties consisted of the difference between gaming wins and losses, or net win from gaming activity, and at the Hollywood Park- Casino consisted of fees collected from patrons on a per seat basis. Revenues in the accompanying statements of operations exclude the retail value of food and beverage provided to card players on a complimentary basis. The estimated cost of providing these promotional allowances was $1,316,000 for the year ended December 31, 1996. There were no comparable costs for the year ended December 31, 1995. The estimated costs of providing these promotional allowances during the nine months ended September 30, 1997 and 1996, was $3,410,000 and $2,583,000, respectively. RACING REVENUES AND EXPENSES The Company records pari-mutuel revenues, admissions, food and beverage and other racing income associated with thoroughbred horse racing on a daily basis, except for season admissions which are recorded ratably over the racing season. Expenses associated with thoroughbred horse racing revenues are charged against income in those periods in which the thoroughbred horse racing revenues are recognized. Other expenses are recognized as they actually occur throughout the year. ALLOWANCE FOR DOUBTFUL ACCOUNTS With the November 17, 1995, acquisition of PCM the Company assumed the gaming accounts receivable, and associated allowance for doubtful account balances that were on PCM's balance sheet. CAPITALIZED INTEREST No capitalized interest was recorded during the years ended December 31, 1996, 1995 and 1994, nor for the nine months ended September 30, 1996, because the Company had no outstanding debt, other than Sunflower's debt which was non-recourse to the Company, and Sunflower did not make any capital improvements during the periods covered. ESTIMATES Financial statements prepared in accordance with generally accepted accounting principles require the use of management estimates, including estimates used to evaluate the recoverability of property, plant and equipment, to determine the fair value of financial instruments, to account for the valuation allowance for deferred tax assets, and to determine litigation related obligations. PROPERTY, PLANT AND EQUIPMENT Property, plant and equipment are depreciated on the straight line method over their estimated useful lives as follows:
YEARS ----- Land improvements................ 3 to 25 Buildings........................ 5 to 40 Equipment........................ 3 to 10
Maintenance and repairs were charged to operations of facilities; betterments were capitalized. The cost of property sold or otherwise disposed of and the accumulated depreciation were eliminated from both the property and accumulated depreciation accounts with any gain or loss recorded in the expense accounts. Property, plant and equipment is carried on the Company's balance sheets at depreciated cost. Whenever there are recognized events or changes in circumstances that affect the carrying amount of the property, plant and equipment, management reviews the assets for possible impairment. In accordance with current accounting standards, management uses estimated expected future net cash flows to measure the recoverability of property, plant and equipment. The estimation of expected future net cash flows is inherently uncertain and relies to a considerable extent on assumptions regarding current and future economic and market conditions, and the availability of capital. If, in future periods, there are changes in the estimates or assumptions incorporated into the impairment review analysis, the changes could result in an adjustment to the carrying amount of the property, plant and equipment. S-13 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) INCOME TAXES The Company accounts for income taxes under Statement of Financial Accounting Standards ("SFAS") 109, Accounting for Income Taxes, whereby deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. Under SFAS 109, the effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that included the enactment date. PRE-OPENING EXPENSES The Company expensed pre-opening costs associated with the Hollywood Park-Casino, which opened on July 1, 1994, as incurred. These costs included, project salaries, hiring costs and other pre-opening services. POOLING OF INTERESTS EXPENSES Hollywood Park's costs of $414,000 incurred in connection with the acquisition of Turf Paradise, and Turf Paradise's acquisition costs of $213,000, were expensed as incurred. EARNINGS PER SHARE Primary earnings per share were computed by dividing income (loss) attributable to (allocated to) common shareholders (net income (loss) less preferred stock dividend requirements) by the weighted average number of common shares outstanding during the period. Fully diluted per share amounts were similarly computed, but include the effect, when dilutive, of the conversion of the convertible preferred shares and the exercise of stock options. REDEMPTION OF DEPOSITARY SHARES As of August 28, 1997, the Company's 2,749,900 outstanding depositary shares were converted into approximately 2,291,500 shares of the Company's common stock, thereby, eliminating the annual preferred stock cash dividend payment of approximately $1,925,000 for future periods. CASH FLOWS Cash and cash equivalents consisted of certificates of deposit and short term investments with remaining maturities of 90 days or less. STOCK REPURCHASE On July 22, 1996, the Company announced its intention to repurchase, and to retire up to 2,000,0000 shares of its common stock on the open market or in negotiated transactions. As of December 31, 1996, the Company had repurchased and retired (with the last purchase being made on November 13, 1996) 222,300 common shares, at a cost of approximately $1,962,000. RECLASSIFICATIONS Certain reclassifications have been made to the 1996, 1995 and 1994 balances to be consistent with the 1997 financial statement presentation. NOTE 2--SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
FOR THE YEARS ENDED DECEMBER 31, ------------------------------ 1996 1995 1994 -------- ---------- ---------- Cash paid during the year for: Interest................................... $299,000 $2,098,000 $1,513,000 Income taxes............................... 40,000 143,000 2,524,000 -------- ---------- ---------- $339,000 $2,241,000 $4,037,000 ======== ========== ==========
S-14 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) NOTE 3--SHORT TERM INVESTMENTS Short term investments as of December 31, 1996 and 1995, and September 30, 1997 consisted of the following:
AS OF DECEMBER 31, AS OF --------------------- SEPTEMBER 30, 1996 1995 1997 ---------- ---------- ------------- (UNAUDITED) Corporate bonds......................... $4,766,000 $4,504,000 $ 0 Flexible deposit program................ 0 1,000,000 0 U.S. agency securities.................. 0 906,000 0 Accrued interest........................ 0 37,000 0 ---------- ---------- --------- Total................................. $4,766,000 $6,447,000 $ 0 ========== ========== =========
As of December 31, 1996, short term investments consisted of corporate bonds with Moody's ratings of Ba2 to B3, and Standard and Poors rating of BB+ to B-, though some of the bonds are not rated by either agency. Investments in corporate bonds carry a greater amount of principal risk than other investments made by the Company, and yield a corresponding higher return. The corporate bond investment as of December 31, 1996, had a weighted average maturity of 1.5 years, and because the Company reasonably expects to liquidate these investments in its normal operating cycle the investments are classified as short term, are held as available for sale, and recorded in the accompanying financial statements at their fair value, as determined by the quoted market price. For the year ended December 31, 1996, proceeds from the sale or redemption of corporate bond investments were approximately $8,429,000, all of which was reinvested, and gross realized gains and gross realized losses were $28,000 and $39,000, respectively. For the year ended December 31, 1995, proceeds from the sale or redemption of corporate bond investments were approximately $7,806,000, all of which was reinvested, and gross realized gains and gross realized losses were $34,000 and $3,000, respectively. The net unrealized holding gains (losses), were $10,000 and ($22,000), for the year ended December 31, 1996, and 1995, respectively. As of September 30, 1997, the Company had liquidated its short term investments in corporate bonds. For the nine months ended September 30, 1997, gross realized gains and losses were approximately $9,000 and $88,000, respectively. The Flexible deposit program was a discretionary investment plan with Bankers Trust that provided capital preservation when held to maturity, plus income at a targeted rate; therefore, this investment was held to maturity. The Flexible deposit program investment was not rated. The investments in U.S. agency securities included U.S. Treasury Bills with each U.S. agency security rated AAA by both Moodys and Standard and Poors. The Company classified the Flexible deposit program and the U.S. agency securities as held to maturity, and as such, the investments were recorded in the accompanying financial statements at amortized costs, which, based on the short term nature of the investments and their relative liquidity, approximates fair value. S-15 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) NOTE 4--PROPERTY, PLANT AND EQUIPMENT Property, plant and equipment held at December 31, 1996, 1995 and September 30, 1997 consisted of the following:
DECEMBER 31, AS OF ------------------------- SEPTEMBER 30, 1996 1995 1997 (A) ------------ ------------ ------------- (UNAUDITED) Land and land improvements.......... $ 32,215,000 $ 42,490,000 $ 49,830,000 Buildings........................... 150,935,000 175,960,000 269,089,000 Equipment........................... 31,531,000 36,003,000 75,234,000 Vessel.............................. 0 0 18,925,000 Construction in progress............ 128,000 8,394,000 16,022,000 ------------ ------------ ------------ 214,809,000 262,847,000 429,100,000 Less accumulated depreciation....... 83,974,000 88,130,000 135,363,000 ------------ ------------ ------------ $130,835,000 $174,717,000 $293,737,000 ============ ============ ============
- -------- (a) Includes property, plant and equipment related to Boomtown. NOTE 5--SECURED AND UNSECURED NOTES PAYABLE Notes payable as of December 31, 1996, 1995 and September 30, 1997 consisted of the following:
AS OF DECEMBER 31, AS OF -------------------- SEPTEMBER 30, 1996 1995 (A) 1997 (B) -------- ----------- ------------- (UNAUDITED) Secured notes payable.................... $ 0 $28,667,000 $ 3,845,000 Unsecured notes payable.................. 317,000 15,914,000 4,015,000 Unsecured 9.5% Series A Notes............ 0 0 125,000,000 Secured note payable--Texaco............. 0 3,358,000 0 11.5% Boomtown First Mortgage Notes...... 0 0 1,253,000 Capital lease obligations................ 0 0 2,055,000 -------- ----------- ------------ 317,000 47,939,000 136,168,000 Less current maturities.................. 35,000 32,310,000 4,005,000 -------- ----------- ------------ $282,000 $15,629,000 $132,163,000 ======== =========== ============
- -------- (a) The secured and unsecured notes payable as of December 31, 1995, related to Sunflower and were non-recourse to Hollywood Park. (b) Includes notes payable related to Boomtown. HOLLYWOOD PARK (unaudited) On June 30, 1997, Hollywood Park and a bank syndicate lead by Bank of America closed the reducing revolving credit facility (the "Bank Credit Facility") for up to $225,000,000. On August 7, 1997, the Bank Credit Facility was reduced by $125,000,000 (representing the funds received in the issuance of the Notes) to $100,000,000. Of the $100,000,000, approximately $83,586,000 was available at September 30, 1997, as a result of covenant limitations. The Bank Credit Facility is secured by substantially all of the assets of Hollywood Park and its significant subsidiaries, and imposes certain customary affirmative and negative covenants. The Bank Credit Facility has been amended twice. First, among other matters, to reduce the availability of the facility until the Bank Credit Facility was approved by the Louisiana Gaming Control Board. The Company S-16 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) received this approval on July 10, 1997. Second, among other matters, to allow the co-issuance of the Notes by HP Operating Company with Hollywood Park. Debt service requirements on the Bank Credit Facility consist of current interest payments on outstanding indebtedness through September 30, 1999. As of September 30, 1999, and on the last day of each third calendar month thereafter, through June 30, 2001, the Bank Credit Facility will decrease by 7.5% of the commitment in effect on September 30, 1999. As of September 30, 2001, and on the last day of each third calendar month thereafter, the Bank Credit Facility will decrease by 10% of the commitment in effect on September 30, 1999. Any principal amounts outstanding in excess of the Bank Credit Facility commitment, as so reduced, will be payable on such quarterly reduction dates. The Bank Credit Facility provides for a letter of credit sub-facility of $10,000,000, of which $2,035,000 is currently outstanding for the benefit of Hollywood Park's California self insured workers' compensation program. The facility also provides for a swing sub-facility of up to $10,000,000. Borrowings under the Bank Credit Facility bear interest at an annual rate determined, at the election of the Company, by reference to the "Eurodollar Rate" (for interest periods of 1, 2, 3 or 6 months) or the "Reference Rate", as such terms are respectively defined in the Bank Credit Facility, plus margins which vary depending upon Hollywood Park's ratio of funded debt to earnings before interest, taxes, deprecation and amortization ("EBITDA"). The margins start at 1.25% for Eurodollar loans and at 0.25% for Base Rate loans, at funded debt to EBITDA ratio of less than 1.50%. Thereafter, the margins for each type of loan increases by 25 basis points for each increase in the ratio of funded debt to EBITDA of 50 basis points or more, up to 2.625% for Eurodollar loans and 1.625% for Base Rate loans. However, if the ratio of senior funded debt to EBITDA exceeds 2.50, the applicable margins will increase to 3.25% for Eurodollar loans, and 2.25% for Base Rate loans. Thereafter, the margins would increase by 25 basis points for each increase in the ratio of senior funded debt to EBITDA of 50 basis points or more, up to a maximum of 4.25% for Eurodollar loans and 3.25% for Base Rate loans. The applicable margins as of September 30, 1997, were 1.75% with respect to the Eurodollar Rate based interest rate and 0.75% with respect to the Base Rate interest rate. The Bank Credit Facility allows for interest rate swap agreements, or other interest rate protection agreements, up to a maximum notional amount of $125,000,000. Presently, Hollywood Park does not utilize such financial instruments, though it may in the future. Hollywood Park pays a quarterly commitment fee for the average daily amount of unused portions of the Bank Credit Facility. The commitment fee is also dependent upon the Company's ratio of funded debt to EBITDA. The commitment fee for the Bank Credit Facility starts at 31.25 basis points when the ratio is less than 1.00, and increases by 6.25 basis points for each increase in the ratio of 0.50, up to a maximum of 50 basis points. For the quarter beginning October 1, 1997, this fee is 43.75 basis points. On July 3, 1997, Hollywood Park borrowed $112,000,000 from the Bank Credit Facility to fund Boomtown's offer to purchase its 11.5% First Mortgage Notes, and repaid this amount on August 7, 1997, with a portion of the proceeds from the August 6, 1997, issuance of $125,000,000 of the Notes. The Notes were co- issued by Hollywood Park and HP Operating Company (the "Obligors"). The balance of the proceeds from the issuance of the Notes was primarily used for the purchase of a new riverboat for Boomtown New Orleans, and other general corporate needs. Interest on the Notes is payable semi-annually, on February 1st and August 1st. The Notes will be redeemable at the option of the Company, in whole or in part, on or after August 1, 2002, at a premium to face amount, plus accrued interest, with the premium to the face amount decreasing on each subsequent anniversary date. The Notes are unsecured obligations of Hollywood Park and HP Operating Company, guaranteed by all other material restricted subsidiaries of either Hollywood Park or HP Operating Company. S-17 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) The indenture governing the Notes contains certain covenants that, among other things, limit the ability of the Obligors and their restricted subsidiaries to incur additional indebtness and issue preferred stock, pay dividends or make other distributions, repurchase equity interests or subordinated indebtness, create certain liens, enter into certain transactions with affiliates, sell assets, issue or sell equity interests in their respective subsidiaries or enter into certain mergers and consolidations. On July 1, 1997, in connection with the divestiture of Boomtown's Las Vegas property, Hollywood Park issued an unsecured promissory note of approximately $3,465,000. The promissory note bears interest equal to the Bank of America reference rate plus 1.0%. Interest is payable annually with five annual principal payments of approximately $693,000 commencing July 1, 1998. During the nine months ended September 30, 1997, the Company paid dividends of $1,520,000 on its convertible preferred stock, representing $55.27 per share, or $0.55 per depositary share. Effective August 28, 1997, the Company exercised its option to covert all 2,749,900 of its outstanding depositary shares into approximately 2,291,492 shares of its common stock; thereby; eliminating the annual preferred cash dividend payment of approximately $1,925,000. Prior to execution of the Bank Credit Facility, Hollywood Park maintained a $75,000,000 unsecured loan facility with Bank of America (the "Business Loan Agreement"). The Business Loan Agreement consisted of a $60,000,000 line of credit (the "Line of Credit") and a $15,000,000 revolver (the "Revolver"). The Business Loan Agreement was amended five times to, among other matters, extend the date for drawing down the Line of Credit and for using the Revolver to June 30, 1997, to amend the quick asset to current liability ratio covenant, and to adjust the tangible net worth covenant. During the year ended December 31, 1996, the Company did not borrow any funds under the Business Loan Agreement, except for the May 1, 1996, issuance of a standby letter of credit of $2,617,000, as security for the Company's workers' compensation self-insurance program. Texaco Secured Note Payable On September 3, 1996, Hollywood Park paid the secured non-interest bearing promissory note of $3,358,000, related to the October 27, 1995, purchase of 37.33 acres of land adjacent to the Inglewood property. Gold Cup Contest The Company's Gold Cup note payable resulted from the $1,000,000 Gold Cup Contest on July 20, 1986. The prize money is payable to the winner in 20 annual installments of $50,000, beginning August 1, 1986. The remaining liability of $317,000, at December 31, 1996. BOOMTOWN (UNAUDITED). In November 1993, Boomtown sold $103,500,000 of 11.5% First Mortgage Notes due November 1, 2003 (the "11.5% First Mortgage Notes"). On July 3, 1997, Boomtown repurchased and retired approximately $102,142,000 in principal amount of the 11.5% First Mortgage Notes, at a purchase price of $1,085 per $1,000 in principal amount, along with accrued interest thereon, pursuant to a tender offer. As a result of the Merger, Boomtown, as required under the indenture governing the 11.5% First Mortgage Notes, initiated a change in control purchase offer at a price of $1,010 for each $1,000 for the remaining approximately $1,358,000 aggregate principal amount of 11.5% First Mortgage Notes outstanding. This change in control purchase offer was completed on August 12, 1997, and only a portion of the remaining 11.5% First Mortgage Notes were tendered. On August 4, 1997, Hollywood Park executed a purchase agreement pursuant to which one of the Hollywood Park entities purchased the barge and the building shell at Boomtown Biloxi for at total cost of $5,250,000. A payment of $1,500,000 was made on August 4, 1997, with the balance payable in three equal annual installments of $1,250,000. S-18 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) On August 7, 1997, Boomtown New Orleans prepaid the 13.0% note payable secured by the original riverboat, currently in use. The cost of the prepayment (inclusive of a 1.0% prepayment penalty) was approximately $2,107,000. As of August 8, 1997, Boomtown New Orleans is wholly owned by the Company. Previously, Boomtown New Orleans was owned and operated by the Louisiana Partnership, of which 92.5% was owned by Hollywood Park with the remaining 7.5% owned by Skrmetta. On November 18, 1996, Boomtown entered into an agreement with Skrmetta under which it would pay approximately $5,670,000 in return for Skrmetta's interest in the Louisiana Partnership. Under the term of the agreement, Boomtown made a down payment of $500,000, and the Company paid the remaining $5,170,000 on August 8, 1997. As of September 30, 1997, Boomtown had two notes payable for gaming and other operating equipment which total approximately $359,000. Boomtown also has various capital lease obligations for gaming and other operating equipment, totaling approximately $2,055,000. In connection with the sale its Las Vegas property, Boomtown took back two notes receivable from Roski, the former lessor of the Las Vegas property, totaling approximately $8,465,000. The first note receivable is for $5,000,000, bearing interest at Bank of America's reference rate plus 1.5% per year, with annual principal receipts of $1,000,000 plus accrued interest commencing on July 1, 1998. The second note is for approximately $3,465,000, bearing interest at Bank of America's reference rate plus 0.5% per year, with the principal and accrued interest payable, in full, on July 1, 2000. SUNFLOWER On March 24, 1994, an Amended and Restated Credit and Security Agreement (the "Sunflower Senior Credit") was executed between Sunflower and five banks in connection with the Company's acquisition of Sunflower. As of September 30, 1997, the outstanding balance of the Sunflower Senior Credit was $28,667,000. The Sunflower Senior Credit is non-recourse to Hollywood Park. On May 17, 1996, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code. The Cash Collateral Agreement suspended any interest or principal payments on the Sunflower Senior Credit until August 12, 1997. The Bankruptcy Court has issued any order extending the Cash Collateral Agreement until it issues its pending ruling regarding Sunflower's proposed plan of reorganization. The Cash Collateral Agreement requires Sunflower to make certain cash payments to Wyandotte County, Kansas, the creditors group under the Senior Sunflower Credit and Trak East (the unaffiliated operator of racing at Sunflower). On July 15, 1997, Sunflower presented to the Bankruptcy Court a plan of reorganization (the "Plan") which provides for the sale of Sunflower's property to the Wyandotte Tribe of Oklahoma (the "Wyandotte Tribe"). Under the Plan, some or all of the land would be held by the United States Government in trust for the Wyandotte Tribe, and a casino would be developed on the property. Upon completion of the casino, HP Kansas, Inc. (a wholly-owned subsidiary of Hollywood Park) and a partner (North American Sports Management or an affiliate) will provide consulting services to the casino. Under this arrangement, HP Kansas would be entitled to receive a share of the revenues of the casino. Under the plan, in order to allow the property to be released as collateral and sold to the Wyandotte Tribe, Sunflower will be required to have standby letters of credit issued to support certain payments to be made to the lenders under the Sunflower Senior Credit and the Wyandotte County Treasurer's office. The aggregate amount of such letters of credit is anticipated to be in excess of $29 million. The Company will arrange for the issuance of such letters of credit on behalf of Sunflower. In 1995, under a promissory note executed in December 1994, between Hollywood Park and Sunflower, Hollywood Park advanced $2,500,000 to Sunflower to make certain payments due on the Sunflower Senior Credit. The amounts borrowed under the promissory note, along with accrued interest, are subordinate to the Sunflower Senior Credit. Although the Company will continue to pursue payment of the promissory note, for financial reporting purposes the outstanding balance of the promissory note was written off as of March 31, 1996. S-19 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) As of September 30, 1997 and December 31, 1996, Sunflower's unsecured notes payable totaled $15,574,000. The unsecured notes payable included $13,060,000, payable to Mr. Hubbard (Chief Executive Officer of Hollywood Park, and former shareholder of Sunflower) on January 1, 2003. As a condition of the merger between the Company and Sunflower, Hollywood Park contributed $5,000,000 in cash to Sunflower to pay accrued interest, and a portion of the note payable to Mr. Hubbard in exchange for a reduction in the interest rate on this debt to 9.0% from 14.0%. The remaining $2,514,000 relates to a Special Assessment note payable to Wyandotte County, Kansas for the cost of construction of various streets and sewers serving Sunflower. The Special Assessment note was entered into in 1990, and is a 15 year note, with a fixed interest rate of 6.59%. ANNUAL MATURITIES As of December 31, 1996, annual maturities of total notes and loans payable are as follows:
YEAR ENDING: ------------ December 31, 1997................................................... $ 50,000 December 31, 1998................................................... 50,000 December 31, 1999................................................... 50,000 December 31, 2000................................................... 50,000 December 31, 2001................................................... 50,000 Thereafter.......................................................... 200,000
The fair values of the Company's various debt instruments discussed above approximate their carrying amounts based on the fact that borrowings bear interest at variable market based rates. NOTE 6--LONG TERM GAMING ASSETS Long term gaming assets relate to the capital lease between the Company and the city of Compton covering the hotel, surrounding parking and an expansion parcel at Crystal Park. With the completion of the construction of Crystal Park, as of December 31, 1996, the long term gaming assets were reclassed to property, plant and equipment. The capital lease was entered into on August 3, 1995, and has a term of up to 50 years. The annual rent payments start at $600,000 and increase every fifth year until year 46, when they stabilize at $2,850,000. Hollywood Park received a rent payment credit equal to the costs incurred to renovate Crystal Park, and no cash rent payments are expected to be made until the nineteenth year of the lease, or 2014. NOTE 7--LONG TERM GAMING LIABILITIES Long term gaming liabilities consist of the Company's capital lease obligation associated with the lease of the hotel, surrounding parking and the expansion parcel from the city of Compton for the Crystal Park Hotel and Casino. This liability was reduced as the construction disbursements were made. NOTE 8--ACCOUNTING FOR THE IMPAIRMENT OF LONG-LIVED ASSETS AND LONG-LIVED ASSETS TO BE DISPOSED OF In 1995, Statement of Financial Accounting Standards No. 121 ("SFAS") 121 Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of, was issued which established accounting standards for the impairment of long-lived assets, certain identifiable intangibles, and goodwill related to those assets. SFAS 121, which became effective for Hollywood Park in the quarter ended March 31, 1996, addresses when impairment losses should be recognized and how impairment losses should be measured. Whenever there are recognized events or changes in circumstances that indicate the carrying amount of an asset may not be recoverable, management reviews the asset for possible impairment. In accordance with current accounting standards, management uses estimated expected future net cash flows (undiscounted and excluding interest costs, and grouped at the lowest level for which there are identifiable cash flows that are as independent as possible of other asset groups) to measure the recoverability of the asset. If the expected future net cash flows S-20 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) are less than the carrying amount of the asset an impairment loss would be recognized. An impairment loss would be measured as the amount by which the carrying amount of the asset exceeded the fair value of the asset, with fair value measured as the amount at which the asset could be bought or sold in a current transaction between willing parties, other than in a forced liquidation sale. The estimation of expected future net cash flows is inherently uncertain and relies to a considerable extent on assumptions regarding current and future net cash flows, market conditions, and the availability of capital. If, in future periods, there are changes in the estimates or assumptions incorporated into the impairment review analysis the changes could result in an adjustment to the carrying amount of the asset, but at no time would previously recognized impairment losses be restored. NOTE 9--DEVELOPMENT EXPENSES Included in Administrative expenses were development costs of approximately $1,092,000, $2,716,000, and $1,275,000 for the years ended December 31, 1996, 1995, and 1994, respectively. The expenses in 1996 consisted primarily of costs related to the Inglewood site master plan and card clubs in California. The expenses in 1995 consisted primarily of costs related to the following projects: the environmental impact study for the proposed stadium at Hollywood Park, card clubs under consideration in the cities of Stockton, Pomona and South San Francisco, and the retail center project (since abandoned). The costs incurred in 1994 were primarily generated by the initial financial and economic analysis of the proposed stadium, numerous card clubs, and the music dome. Included in Administrative expenses for the nine months ended September 30, 1997, was $280,000 of development expenses; primarily related to the master site plan for the Inglewood property, and the proposed Hollywood Park--Hilton Indiana riverboat gaming project. Included in Administrative expenses for the nine months ended September 30, 1996, was $446,000 of development expenses; primarily related to the proposed stadium, the master site plan for the Inglewood property, and card clubs in California. NOTE 10--ACCOUNTING FOR STOCK-BASED COMPENSATION Statement of Financial Accounting Standards No. 123 ("SFAS") 123 Accounting for Stock-Based Compensation, requires that the Company disclose additional information about employee stock-based compensation plans. The objective of SFAS 123 is to estimate the fair value, based on the stock price at the grant date, of the Company's stock options to which employees become entitled when they have rendered the requisite service and satisfied any other conditions necessary to earn the right to benefit from the stock options. The fair market value of a stock option is to be estimated using an option-pricing model that takes into account, as of the grant date, the exercise price and expected life of the option, the current price of the underlying stock and its expected volatility, expected dividends on the stock, and the risk-free interest rate for the expected term of the options. In computing the stock-based compensation the following assumptions were made:
RISK-FREE INTEREST EXPECTED EXPECTED EXPECTED RATE LIFE VOLATILITY DIVIDENDS --------- -------- ---------- --------- For options granted in the following periods: Second quarter 1995................. 5.0% 3 years 36.1% None First quarter 1996.................. 5.0% 3 years 36.1% None Second quarter 1996................ 5.1% 3 years 46.4% None Fourth quarter 1996(a).............. 5.0% 10 years 47.4% None
- -------- (a) The options granted during the fourth quarter of 1996 were to the Company's directors, and it is expected that the directors will hold options for a longer period of time than the Company's employees. S-21 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) The following set forth the pro forma financial results under the implementation of SFAS 123:
FOR THE YEARS ENDED FOR THE NINE MONTHS ENDED DECEMBER 31, SEPTEMBER 30, ------------------------ -------------------------- 1996 1995 1997 1996 ----------- ----------- ------------ ------------- Net income (loss) before stock-based compensation expense................. ($4,249,000) ($1,162,000) $7,119,000 ($7,526,000) Stock-based compensation expense................. 115,000 4,000 519,000 61,000 ----------- ----------- ------------ ------------- Pro forma net income (loss).................. ($4,364,000) ($1,166,000) $6,600,000 ($7,587,000) =========== =========== ============ ============= Dividend requirements on convertible preferred stock................... $1,925,000 $1,925,000 $1,520,000 $1,443,000 Pro forma net income (loss) available to (allocated to) common shareholders............ ($6,289,000) ($3,091,000) $5,080,000 ($9,030,000) =========== =========== ============ ============= Per common share: Pro forma net income (loss) - primary...... ($0.34) ($0.17) $0.25 ($0.49) Pro forma net income (loss) - fully diluted............... (0.34) ($0.17) -- ($0.49) Number of shares - primary................. 18,505,378 18,399,040 20,596,000 18,605,000 Number of shares - fully diluted................. 20,796,870 20,690,532 -- 20,896,000
NOTE 11--RACING OPERATIONS The Company conducts thoroughbred racing at its Hollywood Park, Sunflower, and Turf Paradise race tracks, located in California, Kansas and Arizona, respectively. Sunflower is primarily a greyhound racing facility. On May 17, 1996, due to competition from Missouri riverboat gaming, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code, and as of April 1, 1996, Sunflower's operating results were no longer consolidated with Hollywood Park's; therefore, Sunflower's 1996 racing results and statistics have been excluded from this note. Sunflower is operating during the reorganization. Under Kansas racing law, Sunflower is not granted any race days and does not generate any pari-mutuel commissions. The Kansas Racing Commission granted Sunflower the facility ownership and management licenses; with all race days until the year 2014 granted to TRAK East, a Kansas not-for-profit corporation. Sunflower has an agreement with TRAK East to provide the physical race tracks along with management and consulting services for twenty-five years with options to renew for one or more successive five year terms. The Agreement and Restatement of Lease and Management Agreement was entered into as of September 14, 1989.
1996 1995 1994 ---- ---- ---- LIVE ON-TRACK RACE DAYS Hollywood Park race track..................................... 103 97 102 Turf Paradise race track...................................... 166 171 185 Sunflower--Horses............................................. -- 49 62 Sunflower--Greyhounds......................................... -- 294 213
S-22 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) A summary of the pari-mutuel handle and deductions, by racing facility for the year ended December 31, are as follows:
1996 1995 1994 ------------ ------------ ------------ HOLLYWOOD PARK--LIVE HORSE RACING Total pari-mutuel handle............ $677,827,000 $643,246,000 $699,748,000 Less patrons' winning tickets....... 547,775,000 520,291,000 565,685,000 ------------ ------------ ------------ 130,052,000 122,955,000 134,063,000 Less: State pari-mutuel tax............. 19,263,000 20,691,000 26,260,000 City of Inglewood pari-mutuel tax.............................. 1,287,000 1,384,000 1,711,000 Racing purses and awards.......... 26,300,000 26,888,000 31,183,000 Satellite wagering fees........... 12,784,000 13,545,000 16,732,000 Interstate location fees.......... 44,815,000 34,170,000 27,570,000 Other fees........................ 390,000 419,000 519,000 ------------ ------------ ------------ Pari-mutuel commissions........... 25,213,000 25,858,000 30,088,000 Add off-track independent handle commissions...................... 2,280,000 2,251,000 1,797,000 ------------ ------------ ------------ Total pari-mutuel commissions including charity days........... 27,493,000 28,109,000 31,885,000 Less charity day pari-mutuel commissions...................... 0 0 739,000 ------------ ------------ ------------ Total pari-mutuel commissions net of charity days.................. $ 27,493,000 $ 28,109,000 $ 31,146,000 ============ ============ ============
Turf Paradise races live five days a week, and on three of these days Turf Paradise concurrently operates as a simulcast site.
1996 1995 1994 ------------ ------------ ----------- TURF PARADISE--LIVE HORSE RACING Total pari-mutuel handle............. $147,748,000 $111,509,000 $96,493,000 Less patrons' winning tickets........ 114,585,000 86,460,000 74,918,000 ------------ ------------ ----------- 33,163,000 25,049,000 21,575,000 Less: State pari-mutuel tax.............. 18,000 345,000 669,000 Racing purses and awards........... 4,501,000 4,757,000 5,399,000 State sales tax.................... 302,000 415,000 537,000 Off-track commissions.............. 115,000 117,000 137,000 Interstate location fees........... 20,034,000 10,943,000 6,006,000 ------------ ------------ ----------- Pari-mutuel commissions.............. 8,193,000 8,472,000 8,827,000 Add off-track independent handle commissions......................... 166,000 699,000 297,000 ------------ ------------ ----------- Total pari-mutuel commissions including charity days.............. 8,359,000 9,171,000 9,124,000 Less charity day pari-mutuel commissions......................... 17,000 0 29,000 ------------ ------------ ----------- Total pari-mutuel commissions net of charity days........................ $ 8,342,000 $ 9,171,000 $ 9,095,000 ============ ============ ===========
S-23 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) The acquisition of Sunflower was accounted for under the purchase method of accounting and as such results of operations prior to the March 23, 1994 acquisition date are not presented.
GREYHOUNDS HORSES 1995 1995 ----------- ---------- TRAK EAST AT SUNFLOWER--LIVE RACING Total pari-mutuel handle............................. $47,406,000 $2,844,000 Less patrons' winning tickets........................ 37,379,000 2,273,000 ----------- ---------- 10,027,000 571,000 Less: State pari-mutuel tax.......................... 1,721,000 104,000 Racing purses and awards............................. 2,230,000 190,000 ----------- ---------- Total pari-mutuel commissions........................ $ 6,076,000 $ 277,000 =========== ========== GREYHOUNDS HORSES 1994 1994 ----------- ---------- Total pari-mutuel handle............................. $74,941,000 $6,274,000 Less patrons' winning tickets........................ 59,778,000 5,012,000 ----------- ---------- 15,163,000 1,262,000 Less: State pari-mutuel tax.......................... 2,527,000 210,000 Racing purses and awards............................. 3,372,000 421,000 ----------- ---------- Total pari-mutuel commissions........................ $ 9,264,000 $ 631,000 =========== ==========
As a stipulation to the granting of race dates, the California Horse Racing Board ("CHRB") requires that Hollywood Park designate three days from both the live Spring/Summer Meet and the Autumn Meeting as charity days. As of the 1994 Autumn Meeting, the charity day payments were changed to the net proceeds from the charity days not to exceed 2/10 of 1.0% of the total live on-track pari- mutuel handle for the respective race meet. Charity day payments must be made to a distributing agent approved by the CHRB. The following table summarizes the revenues and expenses that were excluded from the statements of operations for the period prior to the 1994 Autumn Meeting and the total charity day liability for the past three years:
1996 1995 1994 -------- -------- -------- Racing revenues.................................. $ 0 $ 0 $961,000 Less: Salaries, wages and employee benefits...... 0 0 285,000 Other expenses................................... 0 0 298,000 -------- -------- -------- Net proceeds (old charity day law)............... 0 0 378,000 Add: 2/10 of 1% of live on track pari-mutuel handle as of the Autumn Meeting 1994 (revised charity day law)................................ 338,000 370,000 117,000 -------- -------- -------- Total charity day payable........................ $338,000 $370,000 $495,000 ======== ======== ========
Arizona racing law requires that 1.0% of the total in-state pari-mutuel handle (on-track live pari-mutuel handle and off-track within the state pari- mutuel handle) of three charity days be paid to a distributing agent approved by the Arizona Racing Commission. The Arizona Department of Racing did not assign any charity days in 1995, therefore no payments were required. Turf Paradise paid $17,000 to the distributing agent in 1996, and paid $29,000 in 1994. S-24 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) Hollywood Park conducts simulcast meets of live races held at local southern California race tracks. As of 1993, the Company began to simulcast races from northern California concurrently with live on-track racing. In July 1994, Assembly Bill 1418 was enacted allowing for unrestricted simulcasting between northern and southern California. Previous legislation, enacted in September 1993, limited such simulcasting to races with purses of at least $20,000. A summary of simulcast pari-mutuel handle and commissions for the years ended December 31, are as follows:
1996 1995 1994 ------------ ------------ ------------ HOLLYWOOD PARK--SIMULCAST RACING Pari-mutuel handle: Thoroughbred meets................ $375,910,000 $379,263,000 $291,526,000 Quarter Horse meets............... 23,067,000 22,793,000 18,754,000 Harness meets..................... 6,165,000 4,391,000 3,948,000 ------------ ------------ ------------ $405,142,000 $406,447,000 $314,228,000 ============ ============ ============ Pari-mutuel commissions: Thoroughbred meets................ $ 12,669,000 $ 11,527,000 $ 7,624,000 Quarter Horse meets............... 454,000 457,000 377,000 Harness meets..................... 120,000 86,000 79,000 ------------ ------------ ------------ $ 13,243,000 $ 12,070,000 $ 8,080,000 ============ ============ ============
TRAK East at Sunflower operates year round simulcasting of both greyhounds and horses. Pari-mutuel handle and commissions earned by TRAK East for the year ended December 31, 1995 and March 23, 1994 (the date Sunflower was acquired) through December 31, 1994, are as follows:
1996 1995 1994 ---- ----------- ----------- TRAK EAST AT SUNFLOWER--SIMULCAST RACING Pari-mutuel handle: Greyhounds................................... $-- $10,871,000 $ 7,162,000 Horses....................................... -- 29,600,000 24,010,000 ---- ----------- ----------- $-- $40,471,000 $31,172,000 ==== =========== =========== Pari-mutuel commission: Greyhounds................................... $-- $ 2,342,000 $ 1,361,000 Horses....................................... -- 5,742,000 4,690,000 ---- ----------- ----------- $-- $ 8,084,000 $ 6,051,000 ==== =========== ===========
Turf Paradise accepts simulcasts of live races from other tracks concurrently with live on-track racing as well as operating as a simulcast site for Prescott Downs between live meets. Turf Paradise also accepts simulcast signals on the two dark days (days without live racing) a week during the live on-track meet.
1996 1995 1994 ----------- ----------- ----------- TURF PARADISE--SIMULCAST RACING Pari-mutuel handle all meets............ $55,814,000 $55,093,000 $46,549,000 Pari-mutuel commissions all meets....... 4,768,000 3,909,000 3,410,000
S-25 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) NOTE 12--INCOME TAXES As discussed in Note 1, the Company accounts for income taxes under SFAS 109. On November 17, 1995, the Company acquired PCM and accounted for the acquisition under the purchase method of accounting. Before the acquisition, PCM was an S-corporation for income tax purposes and under the terms of the merger was dissolved into Hollywood Park. On March 23, 1994, the Company acquired Sunflower and accounted for the acquisition under the purchase method of accounting. Before the acquisition, Sunflower was an S-corporation and under the terms of the merger became a C-corporation for income tax purposes. Turf Paradise was acquired on August 11, 1994, and was accounted for under the pooling of interests method of accounting. The composition of the Company's income tax expense for the years ended December 31, 1996, 1995 and 1994 is as follows:
CURRENT DEFERRED TOTAL ----------- ----------- ---------- YEAR ENDED DECEMBER 31, 1996: U.S. Federal........................... $ 4,341,000 $(1,681,000) $2,660,000 State.................................. (3,293,000) 4,092,000 799,000 ----------- ----------- ---------- $ 1,048,000 $ 2,411,000 $3,459,000 =========== =========== ========== YEAR ENDED DECEMBER 31, 1995: U.S. Federal........................... $ 0 $ 473,000 $ 473,000 State.................................. 42,000 178,000 220,000 ----------- ----------- ---------- $ 42,000 $ 651,000 $ 693,000 =========== =========== ========== YEAR ENDED DECEMBER 31, 1994: U.S. Federal........................... $ 1,094,000 $ 656,000 $1,750,000 State.................................. (1,155,000) 973,000 (182,000) ----------- ----------- ---------- $ (61,000) $ 1,629,000 $1,568,000 =========== =========== ==========
The following table reconciles the Company's income tax expense (based on its effective tax rate) to the federal statutory tax rate of 34%:
1996 1995 1994 ---------- --------- ---------- Income (loss) before income tax expense, at the statutory rate........ $ (269,000) $(159,000) $1,816,000 Pooling costs........................ 0 0 213,000 Goodwill amortization................ 195,000 72,000 0 Political and lobbying costs......... 291,000 353,000 179,000 State income taxes, net of federal tax benefits........................ 800,000 145,000 (120,000) Valuation allowance.................. 0 0 (465,000) Non-deductible expenses.............. 105,000 260,000 0 Additional provisions................ 2,337,000 22,000 (55,000) ---------- --------- ---------- Income tax expense..................... $3,459,000 $ 693,000 $1,568,000 ========== ========= ==========
S-26 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) For the years ended December 31, 1996, and 1995, the tax effects of temporary differences that gave rise to significant portions of the deferred tax assets and deferred tax liabilities are presented below, along with a summary of activity in the valuation allowance.
1996 1995 ------------ ------------ Current deferred tax assets: Workers' compensation insurance reserve.......... $ 790,000 $ 905,000 General liability insurance reserve.............. 690,000 619,000 Legal accrual.................................... 58,000 76,000 Write off of investment in Sunflower............. 3,111,000 0 Development costs................................ 0 268,000 Lawsuit settlement............................... 1,104,000 2,087,000 Vacation and sick pay accrual.................... 270,000 377,000 Bad debt allowance............................... 437,000 739,000 Los Angeles revitalization zone credit........... 0 0 Other............................................ 435,000 177,000 ------------ ------------ Current deferred tax assets.................... 6,895,000 5,248,000 Less valuation allowance......................... (120,000) (109,000) ------------ ------------ Current deferred tax assets.................... 6,775,000 5,139,000 Current deferred tax liabilities: Business insurance and other..................... (353,000) (251,000) ------------ ------------ Net current deferred tax assets.................... $ 6,422,000 $ 4,888,000 ============ ============ Non-current deferred tax assets: Net operating loss carryforwards................. $ 0 $ 931,000 General business tax credits..................... 36,000 468,000 Los Angeles revitalization zone tax credits...... 9,299,000 6,406,000 Other............................................ 42,000 156,000 Alternative minimum tax credit................... 1,244,000 412,000 ------------ ------------ Non-current deferred tax assets................ 10,621,000 8,373,000 Less valuation allowance......................... (5,511,000) (5,221,000) ------------ ------------ Non-current deferred tax assets................ 5,110,000 3,152,000 ------------ ------------ Non-current deferred tax liabilities: Expansion plans.................................. (400,000) (400,000) Los Angeles revitalization zone accelerated write-off....................................... (461,000) (560,000) Depreciation and amortization.................... (10,580,000) (11,862,000) Other............................................ (2,734,000) (413,000) ------------ ------------ Non-current deferred tax liabilities........... (14,175,000) (13,235,000) ------------ ------------ Net non-current deferred tax liabilities........... $ (9,065,000) $(10,083,000) ============ ============
The Company is located in the Los Angeles revitalization tax zone and is entitled to special state of California income tax credits related to sales tax paid on operating materials and supplies, on construction assets and wages paid to staff who reside within the zone. With the construction of the Hollywood Park-Casino and Crystal Park, the Company earned substantial tax credits related to sales tax paid on the assets acquired and on wages paid to construction employees. S-27 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, --------------------- 1996 1995 ---------- ---------- Valuation allowance at beginning of period............... $5,330,000 $2,986,000 Valuation allowance utilized during the year............. 0 0 Valuation allowance established for California state..... 0 0 Los Angeles revitalization zone tax credit............... 302,000 2,344,000 ---------- ---------- Valuation allowance at end of period................... $5,632,000 $5,330,000 ========== ==========
As of December 31, 1995, the Company had a federal regular net tax operating loss of approximately $2,200,000 that in 1996 the Company carried back to 1994 generating a cash refund of approximately $56,000 and increased the alternative minimum tax credit by approximately $660,000, and also increased the general business tax credits by approximately $19,000. As of December 31, 1996, the Company had approximately $36,000 of general business tax credits and $1,244,000 of alternative minimum tax credits available to reduce future federal income taxes, although in either case, the tax credits generally cannot reduce federal taxes paid below the calculated amount of alternative minimum tax. The general business tax credits expire in 2000, and the alternative minimum tax credits do not expire. The Company's use of its tax credit carryforwards is subject to certain limitations imposed by Section 383 of the Internal Revenue Code and by the separate return limitation year rules of the consolidated return regulations. Although Management currently expects that such limitations will not prevent the Company from fully utilizing the benefits of its tax credits, it is possible that such limitations could defer or reduce the Company's use of its general business tax credits and alternative minimum tax credit carryforwards. NOTE 13--STOCKHOLDERS' EQUITY Effective August 28, 1997, the Company exercised its option to convert all 2,749,900 of its outstanding Depositary Shares into approximately 2,291,492 shares of its common stock; thereby eliminating in future periods the annual preferred cash dividend of approximately $1,925,000 (unaudited). On June 30, 1997, the Company issued approximately 5,362,850 shares of Hollywood Park common stock, valued at $9.8125, (excluding 446,491 shares of the Company's common stock repurchased from Roski, and subsequently retired), to acquire Boomtown (unaudited). During 1996 the Company announced its intention to repurchase and retire up to 2,000,000 shares of its common stock on the open market or in negotiated transactions. As of December 31, 1996, the Company had repurchased and retired (with the last purchase in 1996 made on November 13, 1996) 222,300 common shares at a cost of approximately $1,962,000. On November 17, 1995, the Company acquired PCM's net assets for an aggregate $2,640,000 payable in shares of Hollywood Park common stock, in three installments: (i) shares of Hollywood Park common stock having a value of $1,600,000, or 136,008 common shares were issued on November 17, 1995, (ii) shares of Hollywood Park common stock, having a value of $540,000, or 48,674 common shares, were issued on November 19, 1996, and (iii) shares of Hollywood Park common stock, having a value of $500,000, or 33,417 common shares were issued on February 10, 1997. On March 23, 1994, the Company issued 591,715 shares of Hollywood Park common stock to acquire Sunflower. An additional 55,574 shares of Hollywood Park common stock were subsequently issued to Mr. Richard Boushka, a former Sunflower shareholder, as required by the agreement of merger. The acquisition of Sunflower was accounted for under the purchase method of accounting. S-28 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) On August 11, 1994, the Company issued 1,498,016 shares of Hollywood Park common stock to acquire Turf Paradise. The acquisition of Turf Paradise was accounted for under the pooling of interests method of accounting and the historical per common share earnings of the Company have been restated as if the acquisition had occurred at the beginning of each period presented. NOTE 14--LEASE OBLIGATIONS The Company leases certain equipment primarily for use in racing operations (pari-mutuel wagering equipment) and general office equipment. Minimum lease payments required under operating leases that have initial terms in excess of one year as of December 31, 1996 are approximately $1,354,000 in 1997 and annually thereafter. Total rent expense for these long term lease obligations for the years ended December 31, 1996, 1995 and 1994 was $1,378,000, $1,318,000 and $1,437,000, respectively. NOTE 15--RETIREMENT PLANS The Hollywood Park Pension Plan (the "Pension Plan") was a non-contributory, defined benefit plan covering employees of Hollywood Park, Inc. who met the Pension Plan's service requirements, and all employees of Hollywood Park Operating Company not eligible for participation in a multi-employer defined benefit plan, who met the Pension Plan's service requirements. Hollywood Park elected to terminate the Pension Plan as of January 31, 1997. Accrued Pension Plan benefits were frozen as of September 1, 1996, for all Pension Plan participants, except retained participants (participants who, because of legal requirements, including the provisions of the National Labor Relations Act, are represented by a collective bargaining agent), whose accrued benefits were frozen as of December 31, 1996. As of the date the Pension Plan benefits were frozen, participants became 100% vested in their accrued benefits, regardless of the number of years of service. The funds accumulated under the Pension Plan will be used to provide the retirement benefits accrued by the participants. Pension Plan participants will receive their fully accrued benefits only if the Pension Plan's assets are sufficient to cover such accrued benefits, but in no event can the Pension Plan assets be paid to the Company prior to the satisfaction of all accrued Pension Plan benefits to the participants. Management presently believes that the accumulated Pension Plan assets are sufficient to provide for the participant's accumulated Pension Plan benefits. The Company's Pension Plan funding policy was to contribute amounts to the Pension Plan fund in an amount, at least equal to the minimum funding requirements of the Employee Retirement Income Security Act of 1974, though not in excess of the maximum deductible limit. The Pension Plan was subject to full funding limitation in 1996; therefore, no contributions were made in 1996. The Company contributed approximately $22,000 to the Pension Plan in 1995. S-29 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) RETIREMENT PLANS FUNDED STATUS
DECEMBER 31, ---------------------- 1996 1995 ---------- ---------- Actuarial present value of benefit obligations: Accumulated benefit obligation, including vested benefits of $2,627,000 and $4,078,000 at December 31, 1996 and 1995, respectively........................... $2,627,000 $4,190,000 ========== ========== Projected benefit obligation for service rendered to date.................................................. $2,627,000 $5,080,000 Less Pension Plan assets at fair value................. 4,436,000 5,754,000 Less Pension Plan contribution......................... 0 22,000 ---------- ---------- Pension Plan assets in excess of projected benefit obligation............................................ 1,809,000 696,000 Unrecognized net gain from past experience different from that assumed and effects of changes in assumptions........................................... (1,052,000) (323,000) Unrecognized net asset being recognized over 15 years.. (452,000) (539,000) ---------- ---------- Pension Plan asset (liability)....................... $ 305,000 $ (166,000) ========== ========== Net pension expense--Service cost...................... $ 698,000 $ 314,000 Net pension expense--Interest cost..................... 325,000 354,000 Actual return on assets................................ (784,000) (753,000) Net amortization and deferral.......................... 255,000 247,000 ---------- ---------- Net periodic pension cost............................ $ 494,000 $ 162,000 ========== ==========
The December 31, 1996, reserve liabilities and related asset values for the annuity contract are not included in the table above, because the Company executed an agreement with the insurance company holding the annuity contracts to no longer participate in the annual adjustments to the contract values. The December 31, 1995, Pension Plan liabilities and assets included in the table above are annuity contract reserve liabilities and the related assets for the current Pension Plan retirees. The weighted average discount rate and rate of increase in future compensation levels used in determining the actuarial present value of the projected benefit obligations were 7.5% and 5.0%, respectively, at December 31, 1996, and 8.0% and 5.0%, respectively, at December 31, 1995. The expected long term rate of return on assets was 8.0% at December 31, 1996 and 1995. The Company also contributed to several collectively-bargained multi- employer pension and retirement plans (covering full and part-time employees) which are administered by unions, and to a pension plan covering non-union employees which is administered by an association of race track owners. Amounts charged to pension cost and contributed to these plans for the years ended December 31, 1996, 1995 and 1994 totaled $1,872,000, $1,781,000 and $1,846,000, respectively. Contributions to the collectively-bargained plans are determined in accordance with the provisions of negotiated labor contracts and generally are based on the number of employee hours or days worked. Contributions to the non-union plans are based on the covered employees' compensation. Information from the plans administrators is not available to permit the Company to determine its share of unfunded vested benefits or prior service liability. It is the opinion of management that no material liability exists. There is no defined benefit pension plan for Turf Paradise. Effective January 31, 1997, in conjunction with the termination of the Pension Plan, Hollywood Park elected to terminate its non-qualified Supplementary Employment Retirement Plan ("SERP"). The SERP was an unfunded plan, established primarily for the purpose of restoring the retirement benefits for highly compensated S-30 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) employees that were eliminated by the Internal Revenue Service in 1994, when the maximum annual earnings allowed for qualified pension plans was reduced to $150,000 from $235,850. Messers. Hubbard, Finnigan and Robbins participated in the SERP prior to its termination. NOTE 16--RELATED PARTY TRANSACTIONS Since November 1993, the Company has had an aircraft time sharing agreement with R.D. Hubbard Enterprises, Inc. ("Hubbard Enterprises"), which is wholly owned by Mr. Hubbard. The agreement automatically renews each month unless written notice of termination is given by either party at least two weeks before a renewal date. The Company reimburses Hubbard Enterprises for expenses incurred as a result of the Company's use of the aircraft, which totaled approximately $120,000 in 1996, $126,000 in 1995, and $139,000 in 1994. On March 23, 1994, the Company acquired Sunflower, a greyhound and thoroughbred race track located in Kansas City, Kansas, in which Mr. Hubbard owned a 60% interest. The agreement of merger also provided that under certain circumstances the former Sunflower shareholders were entitled to receive additional shares of Hollywood Park common stock. As of March 23, 1995, the former Sunflower shareholders transferred their right to such additional consideration to Hollywood Park for nominal consideration and have no further entitlements to additional consideration. On May 2, 1996, the Kansas Legislature adjourned without passing legislation that would have allowed additional gaming at Sunflower, thereby permitting Sunflower to more effectively compete with Missouri riverboat gaming. As a result of the outcome of the Kansas Legislative session, Hollywood Park wrote off its approximately $11,412,000 investment in Sunflower. There was no cash involved in the write off of this investment. On May 17, 1996, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code. Sunflower is operating during the reorganization. NOTE 17--STOCK OPTION PLAN In 1996, the shareholders of the Company adopted the 1996 Stock Option Plan (the "1996 Plan"), which provides for the issuance of up to 900,000 shares. Except for the provisions governing the number of shares issuable under the 1996 Plan and except for provisions which reflect changes in tax and securities laws, the provisions of the 1996 Plan are substantially similar to the provision of the prior plan adopted in 1993. The 1996 Plan is administered and terms of option grants are established by the Board of Directors' Compensation Committee. Under the terms of the 1996 Plan, options alone or coupled with stock appreciation rights may be granted to selected key employees, directors, consultants and advisors of the Company. Options become exercisable ratably over a vesting period as determined by the Compensation Committee and expire over terms not exceeding ten years from the date of grant, one month after termination of employment, or six months after the death or permanent disability of the optionee. The purchase price for all shares granted under the 1996 Plan shall be determined by the Compensation Committee, but in the case of incentive stock options, the price will not be less than the fair market value of the common stock at the date of grant. On April 26, 1996, the Company amended the non-qualified stock option agreements issued through this date, to lower the per share price of the outstanding options to $10.00. On May 19, 1995, the Company amended the non-qualified stock option agreements issued through this date, to reflect the substantial decline in the fair market value of the common stock, lowering the per share price of the outstanding options to $13.00. In 1994, Turf Paradise had approximately 23,000 stock options outstanding, all of which were fully exercised prior to the acquisition. S-31 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) The following table summarizes information related to shares under option and shares available for grant under the Plan.
1996 1995 1994 ------- ------- ------- Options outstanding at beginning of year......... 249,000 235,000 150,000 Options granted during the year.................. 433,500 15,000 85,000 Options expired during the year.................. (40,000) (1,000) 0 ------- ------- ------- Options outstanding at end of year............. 642,500 249,000 235,000 ======= ======= ======= Total shares available for issuance under the plan............................................ 900,000 625,000 625,000 Per share price of outstanding options issued in prior year...................................... $ 10.00 $ 13.00 $ 25.50 Per share price of outstanding options issued in current year.................................... $ 10.00 $ 13.25 $ 22.00 Per share price of outstanding options issued in current year.................................... $ 11.50 -- -- Number of shares subject to exercisable option at end of year..................................... 188,332 128,000 50,000
NOTE 18--COMMITMENTS AND CONTINGENCIES As previously reported by the Company, and described in the Company's Annual Report on Form 10-K for 1994, six purported class actions (the "Class Actions") were filed beginning in September 1994, against the Company and certain of its directors and officers in the United States District Court, Central District of California (the "District Court") and consolidated in a single action entitled In re Hollywood Park Securities Litigation. On September 15, 1995, a related stockholder derivative action, entitled Barney v. Hubbard, et al. (the "Derivative Action"), was filed in the California Superior Court for the County of San Diego (the "State Court"). The Company and other defendants each denied any liability or wrongdoing and asserted various defenses. The District Court ordered the parties to engage in non-binding mediation in an effort to settle all related claims. As previously reported, as a result of the court ordered mediation, the parties reached an agreement-in-principle to settle all claims raised in the Class and Derivative Actions. The Company entered into the settlements in order to avoid the expense, uncertainty and distraction of further litigation. On November 6 and 13, 1995, respectively, the parties executed definitive settlement agreements in the Derivative and Class Actions. Those agreements provided for the release and dismissal of all claims raised or which might have been raised in the Class and Derivative actions, subject to approval by each of the respective courts. In settlement of the Class Actions, a settlement fund in the principal amount of $5,800,000 has been created for the benefit of the alleged class with contributions from the Company and the insurance carrier for its directors and officers. After giving consideration to the amounts to be received by the Company in settlement of the Derivative Action, the Company's net settlement payment in the Class Actions was less than $2,500,000. Under settlement of the Derivative Action, the Company will receive a $2,000,000 payment from the insurance carrier which the Company will use to pay plaintiff's attorneys fees and expenses and partially to defray the Company's payment in the settlement of the Class Actions. The Derivative Action settlement also includes provisions enhancing the Company's financial controls and modifying certain terms of its acquisition of Sunflower. On February 26, 1996, the District Court approved the settlement of the Class Actions and entered a judgment dismissing the Class Actions in their entirety. On May 6, 1996, the State Court approved the settlement of the Derivative Action and entered a judgment dismissing the Derivative Action in its entirety. On or about July 2, 1996, a notice of appeal was filed in connection with the Derivative Action judgment, and on or about February 14, 1997, the appellant filed her opening brief. The Company intends to oppose the purported appeal. S-32 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) The Company also executed a separate settlement as to all purported claims against the Company and its officers and directors by the former controlling stockholder of Turf Paradise (the "Walkers") in connection with the Company's acquisition of Turf Paradise. Under the terms of the consummation of the settlement of the Class and Derivative Actions, the Walkers were excluded from participating in the Class Actions settlement fund, agreed to release all of their potential threatened claims, and are to receive a payment in the principal amount of $2,750,000. The lawsuit settlement expense recorded in the accompanying statement of operations for the year ended December 31, 1995, included $2,450,000 for the Class Actions, $2,750,000 for the Walkers settlement and approximately $888,000 in legal costs, for a total of approximately $6,088,000. The accrued lawsuit settlement recorded in the accompanying financial statements as of December 31, 1996, of $2,750,000 represents the settlement with the Walkers. Sunflower entered into a two year consulting agreement with Mr. Richard Boushka, a former Sunflower shareholder, as of March 24, 1994. Consulting services include assisting Sunflower in obtaining all approvals, licenses and permits necessary for Sunflower to conduct casino gaming and to operate video lottery terminals at or next to Sunflower's property. Under the terms of the agreement Mr. Boushka will receive monthly payments totaling $100,000 per year. As of May 1995, given Sunflower's financial results, all payments to Mr. Boushka were suspended, though Mr. Boushka did continue to provide services per the agreement. S-33 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) NOTE 19--UNAUDITED QUARTERLY INFORMATION The following is a summary of unaudited quarterly financial data for the years ended December 31, 1996 and 1995:
1996 ---------------------------------------- DEC. SEPT. JUNE MAR. 31, 30, 30, 31, ------- ------- ------- -------- (IN THOUSANDS, EXCEPT PER SHARE DATA) Revenues..................... $38,698 $30,247 $46,427 $ 27,853 ======= ======= ======= ======== Net income (loss)............ $ 3,277 $ 603 $ 5,249 $(13,378) ======= ======= ======= ======== Net income (loss) available to (allocated to) common shareholders................ $ 2,795 $ 122 $ 4,768 $(13,859)(a) ======= ======= ======= ======== Per common share: Net income (loss)-- primary................... $ 0.15 $ 0.01 $ 0.26 $ (0.74) ======= ======= ======= ======== Net income (loss)--fully diluted................... $ 0.15 $ 0.01 $ 0.25 $ (0.74) ======= ======= ======= ======== Cash dividends............. $ 0.00 $ 0.00 $ 0.00 $ 0.00 ======= ======= ======= ======== 1995 ---------------------------------------- DEC. SEPT. JUNE MAR. 31, 30, 30, 31, ------- ------- ------- ------- (IN THOUSANDS, EXCEPT PER SHARE DATA) Revenues..................... $36,693 $26,595 $42,828 $ 24,456 Net income (loss)............ $ 212 $(5,637) $ 4,857 $ (594) ======= ======= ======= ======== Net income (loss) available to (allocated to) common shareholders................ $ (270)(b) $(6,118)(c) $ 4,376 $ (1,075)(d) ======= ======= ======= ======== Per common share: Net income (loss)-- primary................... $ (0.01) $ (0.33) $ 0.24 $ (0.06) ======= ======= ======= ======== Net income (loss)--fully diluted................... $ (0.01) $ (0.33) $ 0.24 $ (0.06) ======= ======= ======= ======== Cash dividends............. $ 0.00 $ 0.00 $ 0.00 $ 0.00 ======= ======= ======= ========
- -------- (a) The primary reason for this quarter's loss was the $11,346,000 write off of the Company's investment in Sunflower. Historically, the three months ended March 31, produce a loss, because the Company does not operate live on-track racing at Hollywood Park Race Track. (b) The primary reason for this quarter's loss was due to losses at Sunflower due to intense competition from nearby Missouri riverboat gaming. (c) The primary reasons for this quarter's loss were the $5,627,000 of expense related to the lawsuit settlement, and losses at Sunflower, due to competition from Missouri riverboat gaming. (d) The primary reasons for this quarter's loss was due to Hollywood Park Race Track being closed for live on-track racing (as historically happens during the three months ended March 31), and losses at Sunflower, due to competition from Missouri riverboat gaming. S-34 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) NOTE 20--UNAUDITED SUBSEQUENT EVENTS POSSIBLE RESTORATION OF REAL ESTATE INVESTMENT TRUST/PAIRED-SHARE STRUCTURE From 1982 to 1991, the Company was operated as a Real Estate Investment Trust ("REIT") known as Hollywood Park Realty Enterprises, Inc. ("HP Realty"), and its stock was paired with, or stapled to, that of Hollywood Park Operating Company ("HP Operating Company"). HP Realty was primarily an owner and lessor of real property. HP Operating Company was primarily engaged in the active conduct of racing operations and leased a significant amount of real property from HP Realty to conduct those racing operations. Generally, a REIT is required to distribute, as dividends to its stockholders, 95% of its taxable income (other than net capital gains), and such amounts distributed are not subject to federal income tax at the corporate level. Effective as of January 1, 1992, as part of a corporate reorganization, HP Realty and HP Operating Company ceased operating in a REIT/Paired-Share Structure, HP Operating Company became a wholly owned subsidiary of HP Realty and HP Realty was renamed Hollywood Park, Inc. In May 1997, the Company announced that it was exploring the possibility of restoring the REIT/Paired-Share Structure. The Company now expects to proceed with the REIT/Paired-Share Structure, subject to, among other things, receipt of all required stockholder, regulatory and other approvals. There can be no assurance that the Company will receive such approvals necessary to effect the REIT/Paired-Share Structure, or that the benefits expected from the restoration will be achieved. YAKAMA EXPANSION Hollywood Park, through its wholly owned subsidiaries HP Yakama, Inc. ("HP Yakama") and HP Yakama Consulting, Inc. ("HPY Consulting"), has entered into agreements with the Yakama Tribal Gaming Corporation (the "Tribal Corporation") and The Confederated Tribes and Bands of the Yakama Indian Nation (the "Tribes") to fund the construction and development of (through HP Yakama), and to provide development services with respect to (through HPY Consulting), a casino in Yakima County, Washington. HP Yakama has committed to fund up to $9,000,000 to construct and equip the casino, and the Tribal Corporation has signed a promissory note to repay up to $9,000,000, at a 10% annual interest rate over seven years from the date of completion. Under the Development Agreement between HPY Consulting and the Tribal Corporation, HPY Consulting would provide development services to the Tribal Corporation at a cost of $1.00 per year, plus certain consulting expenses, not to exceed $2,000 per month. HP Yakama has also entered into a Master Lease to lease the completed casino and underlying land (the "Facility") from the Tribes, for a seven year term commencing with the opening of the casino, for $12,000 per year, and then to Sublease the Facility to the Tribal Corporation, for the same seven year term. Rent due from the Tribal Corporation to HP Yakama, under the Sublease is initially set at 28% of Net Revenues (as defined), until such time as the aggregate accrued Net Revenues equal $26,000,000 and then the rent decreases to 25% of Net Revenues, until such time as the aggregate accrued Net Revenues equal $41,000,000, and then rent decreases to 22% for the remainder of the Sublease period. "Net Revenues" is defined as Gross Revenues less normal and necessary operating expenses as determined under generally accepted accounting principles, to include interest payments due from the Tribal Corporation to HP Yakama, and to exclude rent due under the Sublease. Hollywood Park has entered into a Profit Participation Agreement with North American Sports Management, Inc. ("NORAM"), which entered into the original Memorandum of Understanding with the Tribes. NORAM will receive 22% of the portion of the Net Revenues (as described above) actually received by HP Yakama under the Sublease. Construction on the casino is underway and is expected to open in the second quarter of 1998. The casino will feature a 600 seat bingo hall, certain table games including: Blackjack, Poker, Craps, Roulette, Mini-bac, Caribbean Stud, and will offer electronic pull tabs and electronic bingo, but will not offer slot machines. Gaming S-35 HOLLYWOOD PARK, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) is played in the traditional Las Vegas style, where players bet against the house. The casino is located approximately 130 miles from both Seattle, Washington and Portland, Oregon, in a valley at the foot of Mt. Adams, which is a major vacation site. The nearest gaming facility is 157 miles away in Pendelton, Oregon. Presently, Hollywood Park, the Tribes and the Tribal Corporation are awaiting final approval of the documentation from the Bureau of Indian Affairs (the "BIA"). Hollywood Park and HP Yakama also have applications pending with the Washington Gambling Commission (the "WGC") for Class III Indian Gaming- Financier approval. There can be no assurance that the BIA will approve the documentation or that the WGC will grant Hollywood Park and HP Yakama the Class III Indian Gaming-Financier approval. CRYSTAL PARK HOTEL AND CASINO On October 11, 1997, the California Attorney General accepted CEI's withdrawal of its conditional gaming registration pursuant to a previously negotiated agreement, and the City of Compton concurrently revoked CEI's city gaming license. Crystal Park LLC subsequently terminated CEI's lease, and on November 4, 1997, Crystal Park LLC obtained a judgment in an action for unlawful detainer against CEI, due to CEI's failure to pay a portion of the June 1997 rent and to make required additional rent payments. In addition to the judgment for possession and for damages of approximately $150,000, Crystal Park LLC has a claim against CEI for additional damages relating to subsequent unpaid rent and additional unpaid amounts. After evicting CEI, Crystal Park LLC entered into a new lease for the Crystal Park Casino with California Casino Management, Inc. ("CCM"), a California corporation, owned by Mr. Leo Chu. Mr. Chu presently has a conditional gaming registration from the California Attorney General and a gaming license from the City of Compton to operate the Crystal Park Casino. Mr. Chu presently holds a California gaming registration to operate a small card club in Northern California. CCM reopened the Crystal Park Casino on December 26, 1997 for a term of four years. The lease provides for monthly payments of $100,000 for the first six months, $350,000 for months 7 through 18, and $550,000 for months 19 through 48. As of December 4, 1997, HP Casino, Inc. ("HP Casino"), a wholly-owned subsidiary of Hollywood Park, acquired the membership interests in Crystal Park LLC held by First Park Investments, LLC for $1,000,000, the amount initially invested. HP Casino is in negotiations with Redwood Gaming, LLC to purchase Redwood Gaming's membership interest. As a result of the First Park transaction, Hollywood Park (through HP Casino and HP/Compton, Inc.) owns 93.2% of the membership interests of Crystal Park LLC and would own 100% of such membership interests if the Redwood Gaming transaction is completed. As of September 30, 1997, CEI owed Crystal Park LLC $600,000, of which $200,000 is covered by a rent security deposit Crystal Park LLC received from CEI in October 1996, and of which $350,000 was fully reserved and, therefore, is not reflected in the operating results for the period ended September 30, 1997. S-36 HOLLYWOOD PARK, INC. SELECTED FINANCIAL DATA BY OPERATIONAL LOCATION
FOR THE THREE MONTHS ENDED (UNAUDITED) THREE MONTHS ENDED (UNAUDITED) --------------------------------------------- YEAR ENDED -------------------------------- DECEMBER 31, SEPTEMBER 30, JUNE 30, MARCH 31, DECEMBER 31, SEPTEMBER 30, JUNE 30, MARCH 31, 1996 1996 1996 1996 1996 1997 1997 1997 ------------ ------------- -------- --------- ------------ ------------- -------- --------- (IN THOUSANDS, EXCEPT PER SHARE DATA) REVENUES: Hollywood Park, Inc.-- Casino Division....... $14,531 $15,205 $15,173 $13,773 $ 58,682 $14,759 $15,323 $13,994 HP/Compton, Inc.-- Crystal Park Hotel and Casino................ 445 0 0 0 445 702 900 600 Boomtown Reno.......... 0 0 0 0 0 20,978 0 0 Boomtown New Orleans... 0 0 0 0 0 19,380 0 0 Boomtown Biloxi........ 0 0 0 0 0 15,028 0 0 Hollywood Park Race Track.................. 17,338 13,209 27,710 5,282 63,539 12,334 26,747 3,249 Turf Paradise, Inc..... 5,828 1,546 3,219 6,597 17,190 1,647 3,143 6,562 Sunflower Racing, Inc.. 0 0 0 1,782 1,782 0 0 0 Hollywood Park, Inc.-- Corporate............. 556 287 325 419 1,587 327 211 2,410 Boomtown, Inc.-- Corporate.............. 0 0 0 0 0 55 0 0 ------- ------- ------- ------- -------- ------- ------- ------- 38,698 30,247 46,427 27,853 143,225 85,210 46,324 26,815 ------- ------- ------- ------- -------- ------- ------- ------- EXPENSES: Hollywood Park, Inc.-- Casino Division....... 12,885 12,676 12,576 12,297 50,434 12,071 12,927 12,441 HP/Compton, Inc.-- Crystal Park Hotel and Casino................ 1 0 0 0 1 25 18 22 Boomtown Reno.......... 0 0 0 0 0 16,665 0 0 Boomtown New Orleans... 0 0 0 0 0 13,860 0 0 Boomtown Biloxi........ 0 0 0 0 0 12,642 0 0 Hollywood Park Race Track.................. 12,998 11,032 17,034 8,190 49,254 11,183 16,735 7,286 Turf Paradise, Inc..... 4,134 2,013 2,700 4,122 12,969 2,023 2,670 4,230 Sunflower Racing, Inc.. 0 0 0 1,703 1,703 0 0 0 Hollywood Park, Inc.-- Corporate.............. 2,133 824 2,488 1,145 6,590 1,744 1,346 1,336 Boomtown, Inc.-- Corporate.............. 0 0 0 0 0 836 0 0 ------- ------- ------- ------- -------- ------- ------- ------- 32,151 26,545 34,798 27,457 120,951 71,049 33,696 25,315 ------- ------- ------- ------- -------- ------- ------- ------- NON-RECURRING EXPENSES: REIT restructuring..... 0 0 0 0 0 397 212 0 Write off of investment in Sunflower Racing, Inc................... 0 0 66 11,346 11,412 0 0 0 ------- ------- ------- ------- -------- ------- ------- ------- 0 0 66 11,346 11,412 397 212 0 ------- ------- ------- ------- -------- ------- ------- ------- DEPRECIATION AND AMORTIZATION: Hollywood Park, Inc.-- Casino Division....... 751 740 736 675 2,902 685 900 764 HP/Compton, Inc.-- Crystal Park Hotel and Casino................ 319 0 0 0 319 521 402 400 Boomtown Reno.......... 0 0 0 0 0 1,353 0 0 Boomtown New Orleans... 0 0 0 0 0 1,031 0 0 Boomtown Biloxi........ 0 0 0 0 0 820 0 0 Hollywood Park Race Track.................. 999 1,016 1,008 952 3,975 1,013 1,001 991 Turf Paradise, Inc..... 294 301 301 309 1,205 288 297 295 Sunflower Racing, Inc.. 0 0 0 536 536 0 0 0 Hollywood Park, Inc.-- Corporate.............. 434 441 442 441 1,758 431 431 434 Boomtown, Inc.-- Corporate.............. 0 0 0 0 0 17 0 0 ------- ------- ------- ------- -------- ------- ------- ------- 2,797 2,498 2,487 2,913 10,695 6,159 3,031 2,884 ------- ------- ------- ------- -------- ------- ------- -------
S-37 HOLLYWOOD PARK, INC. SELECTED FINANCIAL DATA BY OPERATIONAL LOCATION--(CONTINUED)
FOR THE THREE MONTHS ENDED (UNAUDITED) THREE MONTHS ENDED (UNAUDITED) --------------------------------------------- YEAR ENDED -------------------------------- DECEMBER 31, SEPTEMBER 30, JUNE 30, MARCH 31, DECEMBER 31, SEPTEMBER 30, JUNE 30, MARCH 31, 1996 1996 1996 1996 1996 1997 1997 1997 ------------ ------------- -------- --------- ------------ ------------- -------- --------- (IN THOUSANDS, EXCEPT PER SHARE DATA) OPERATING INCOME (LOSS): Hollywood Park, Inc.-- Casino Division...... 895 1,789 1,861 801 5,346 2,003 1,496 789 HP/Compton, Inc.-- Crystal Park Hotel and Casino........... 125 0 0 0 125 156 480 178 Boomtown Reno......... 0 0 0 0 0 2,960 0 0 Boomtown New Orleans.. 0 0 0 0 0 4,489 0 0 Boomtown Biloxi....... 0 0 0 0 0 1,566 0 0 Hollywood Park Race Track................. 3,341 1,161 9,668 (3,860) 10,310 138 9,011 (5,028) Turf Paradise, Inc.... 1,400 (768) 218 2,166 3,016 (664) 176 2,037 Sunflower Racing, Inc. 0 0 0 (457) (457) 0 0 0 Hollywood Park, Inc.-- Corporate............. (2,011) (978) (2,605) (1,167) (6,761) (1,848) (1,566) 640 Boomtown, Inc.-- Corporate............. 0 0 0 0 0 (798) 0 0 REIT restructuring.... 0 0 0 0 0 (397) (212) 0 Write off of investment in Sunflower Racing, Inc.................. 0 0 (66) (11,346) (11,412) 0 0 0 ------ ------ ------ -------- -------- ------ ------ ------- 3,750 1,204 9,076 (13,863) 167 7,605 9,385 (1,384) ------ ------ ------ -------- -------- ------ ------ ------- Interest expense....... 24 20 54 844 942 3,653 65 64 MINORITY INTEREST: HP/Compton, Inc.-- Crystal Park Hotel and Casino........... 15 0 0 0 15 17 42 22 ------ ------ ------ -------- -------- ------ ------ ------- Income (loss) before income tax expense.... 3,711 1,184 9,022 (14,707) (790) 3,935 9,278 (1,470) Income tax expense..... 434 581 3,773 (1,329) 3,459 1,524 3,675 (575) ------ ------ ------ -------- -------- ------ ------ ------- Net income (loss)...... $3,277 $ 603 $5,249 $(13,378) $ (4,249) $2,411 $5,603 $ (895) ====== ====== ====== ======== ======== ====== ====== ======= Dividend requirements on convertible preferred stock....... $ 482 $ 481 $ 481 $ 481 $ 1,925 $ 558 $ 481 $ 481 Net income (loss) available to (allocated to) common shareholders.......... $2,795 $ 122 $4,768 $(13,859) $ (6,174) $1,853 $5,122 $(1,376) ====== ====== ====== ======== ======== ====== ====== ======= Per common share: Net income (loss)-- primary............... $ 0.15 $ 0.01 $ 0.26 $ (0.74) $ (0.33) $ 0.08 $ 0.28 $ (0.07) Net income (loss)-- fully diluted......... $ 0.15 $ 0.01 $ 0.25 $ (0.74) $ (0.33) -- $ 0.27 $ (0.07) Number of shares-- primary................ 18,365 18,535 18,613 18,610 18,505 24,706 18,462 18,372 Number of shares--fully diluted................ 20,657 20,826 20,904 20,902 20,797 -- 20,754 20,664
S-38 HOLLYWOOD PARK, INC. CALCULATION OF EARNINGS PER SHARE
FOR THE THREE MONTHS ENDED DECEMBER 31, (UNAUDITED) ------------------------------------------------- ASSUMING FULL DILUTION PRIMARY (A) ------------------------ ------------------------ 1996 1995 1994 1996 1995 1994 ------- ------- ------ ------- ------- ------ (IN THOUSANDS, EXCEPT PER SHARE DATA) Average number of common shares outstanding.......... 18,365 18,486 18,370 18,365 18,486 18,370 Average common shares due to assumed conversion of the convertible preferred shares...................... 0 0 0 2,291 2,291 2,291 ------- ------- ------ ------- ------- ------ Total shares............... 18,365 18,486 18,370 20,656 20,777 20,661 ======= ======= ====== ======= ======= ====== Net income................... $ 3,277 $ 212 $2,736 $ 3,277 $ 212 $2,736 Less dividend requirements on convertible preferred shares...................... 482 482 481 0 0 0 ------- ------- ------ ------- ------- ------ Net income (loss) available to (allocated to) common shareholders................ $ 2,795 $ (270) $2,255 $ 3,277 $ 212 $2,736 ======= ======= ====== ======= ======= ====== Net income (loss) per share.. $ 0.15 $ (0.01) $ 0.12 $ 0.16 $ 0.01 $ 0.13 ======= ======= ====== ======= ======= ====== FOR THE YEARS ENDED DECEMBER 31, ------------------------------------------------- ASSUMING FULL DILUTION PRIMARY (A) ------------------------ ------------------------ 1996 1995 1994 1996 1995 1994 ------- ------- ------ ------- ------- ------ (IN THOUSANDS, EXCEPT PER SHARE DATA) Average number of common shares outstanding.......... 18,505 18,399 18,224 18,505 18,399 18,224 Average common shares due to assumed conversion of the convertible preferred shares...................... 0 0 0 2,291 2,291 2,291 ------- ------- ------ ------- ------- ------ Total shares............... 18,505 18,399 18,224 20,796 20,690 20,515 ======= ======= ====== ======= ======= ====== Net income (loss)............ $(4,249) $(1,162) $3,772 $(4,249) $(1,506) $3,772 Less dividend requirements on convertible preferred shares...................... 1,925 1,925 1,925 0 0 0 ------- ------- ------ ------- ------- ------ Net income (loss) available to (allocated to) common shareholders................ $(6,174) $(3,087) $1,847 $(4,249) $(1,506) $3,772 ======= ======= ====== ======= ======= ====== Net income (loss) per share.. $ (0.33) $ (0.17) $ 0.10 $ (0.20) $ (0.07) $ 0.18 ======= ======= ====== ======= ======= ======
S-39 HOLLYWOOD PARK, INC. CALCULATION OF EARNINGS PER SHARE--(CONTINUED)
FOR THE THREE MONTHS ENDED FOR THE NINE MONTHS ENDED SEPTEMBER 30, SEPTEMBER 30, --------------------------- ------------------------------ ASSUMING FULL ASSUMING FULL PRIMARY DILUTION (A) PRIMARY DILUTION (A) ------------- ------------- -------------- -------------- 1997 1996 1997 1996 1997 1996 1997 1996 ------ ------ ------ ------ ------ ------- ------ ------- (IN THOUSANDS, EXCEPT PER SHARE DATA--UNAUDITED) Average number of common shares outstanding..... 24,706 18,535 24,706 18,535 20,596 18,605 20,596 18,605 Average common shares due to assumed conversion of the convertible preferred shares................. 0 0 -- 2,291 0 0 -- 2,291 ------ ------ ------ ------ ------ ------- ------ ------- Total shares.......... 24,706 18,535 24,706 20,826 20,596 18,605 20,596 20,896 ====== ====== ====== ====== ====== ======= ====== ======= Net income (loss) ...... $2,411 $ 603 $2,411 $ 603 $7,119 $(7,526) $7,119 $(7,526) Less dividend requirements on convertible preferred shares................. 558 481 0 0 1,520 1,443 0 0 ------ ------ ------ ------ ------ ------- ------ ------- Net income (loss) available to (allocated to) common shareholders........... $1,853 $ 122 $2,411 $ 603 $5,599 $(8,969) $7,119 $(7,526) ====== ====== ====== ====== ====== ======= ====== ======= Net income (loss) per share.................. $ 0.08 $ 0.01 $ 0.10 $ 0.03 $ 0.27 $ (0.48) $ 0.35 $ (0.36) ====== ====== ====== ====== ====== ======= ====== =======
- -------- Note: As of August 28, 1997, the Company's 2,749,900 outstanding depositary shares were converted into approximately 2,291,500 shares of the Company's Common Stock. (a) The computed values, assuming full dilution, are anti-dilutive; therefore, the primary share values are presented on the face of the Consolidated Statements of Operations. S-40 HOLLYWOOD PARK REALTY ENTERPRISES, INC. SCHEDULE III--UNAUDITED PRO FORMA REAL ESTATE AND ACCUMULATED DEPRECIATION AS OF SEPTEMBER 30, 1997
GROSS AMOUNT OF WHICH INITIAL COST TO COSTS SUBSEQUENT TO CARRIED AT CLOSE OF COMPANY ACQUISITION PERIOD ----------------- ------------------------- ------------------------- LAND AND BUILDINGS ACCUMULATED LAND AND BUILDING DEPRECIATION LAND BUILDING IMPROVEMENTS IMPROVEMENTS AND YEAR OF DESCRIPTION ENCUMBRANCES (A) LAND BUILDINGS IMPROVEMENTS IMPROVEMENTS TOTAL TOTAL AMORTIZATION CONSTRUCTION ----------- ---------------- ------- --------- ------------ ------------ ------------ ------------ ------------ ------------ (IN THOUSANDS) Race track assets: Hollywood Park Race Track-- Inglewood, CA (b).......... $ 0 $18,973 $ 83,558 $271 $4,952 $19,244 $ 88,510 $51,209 1938 Turf Paradise Race Track-- Phoenix, AZ..... 0 4,289 17,422 291 148 4,580 17,570 11,990 1956 Gaming assets: Hollywood Park- Casino-- Inglewood, CA... 0 757 27,177 67 571 824 27,748 3,429 1994 Other assets: Hollywood Park Golf and Sports Center-- Inglewood, CA... 0 1,269 730 12 7 1,281 737 260 1992 Turf Paradise Trailer Park-- Phoenix, AZ..... 0 64 347 0 6 64 353 325 1971 --- ------- -------- ---- ------ ------- -------- ------- $0 $25,352 $129,234 $641 $5,684 $25,993 $134,918 $67,213 === ======= ======== ==== ====== ======= ======== ======= Land and land improvements..... $ 25,993 $ 7,665 Buildings and building improvement...... 134,918 59,548 Furniture and equipment........ 1,335 1,102 Construction in progress......... 2,052 0 -------- ------- Total........... $164,298 $68,315 ======== ======= LIFE ON WHICH DEPRECIATION IN LATEST INCOME DATE STATEMENTS DESCRIPTION ACQUIRED IS COMPUTED ----------- -------- ------------ Race track assets: Hollywood Park Race Track-- Inglewood, CA (b).......... 1938 23 Turf Paradise Race Track-- Phoenix, AZ..... 1994 20 Gaming assets: Hollywood Park- Casino-- Inglewood, CA... 1994 23 Other assets: Hollywood Park Golf and Sports Center-- Inglewood, CA... 1992 23 Turf Paradise Trailer Park-- Phoenix, AZ..... 1994 12 Land and land improvements..... Buildings and building improvement...... Furniture and equipment........ Construction in progress......... Total...........
- ---- (a) The Company presently has an open letter of credit in the amount of $2,035,000 under the Bank Credit Facility, which is secured by the assets presented here. (b) The initial cost as of January 1, 1996. Historical cost information related to the initial construction of the Hollywood Park Race Track in 1938 is not available. Hollywood Park is currently seeking shareholder approval of the Reorganization Amendments to enable Hollywood Park to reorganize into a real estate investment trust and an operating company; thereby creating the requirement for inclusion of Schedule III. If the Reorganization is completed, the date of completion of the Reorganization will be used for purposes of determining the initial cost in future presentations of this schedule. S-41 BOOMTOWN, INC. CONSOLIDATED FINANCIAL STATEMENTS REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS The Board of Directors Boomtown, Inc. We have audited the accompanying consolidated balance sheets of Boomtown, Inc. (the "Company") as of September 30, 1995 and 1996, and the related consolidated statements of operations, stockholders' equity and cash flows for each of the three years in the period ended September 30, 1996. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based upon 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 consolidated 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 consolidated financial position of Boomtown, Inc. at September 30, 1995 and 1996, and the consolidated results of its operations and its cash flows for each of the three years in the period ended September 30, 1996, in conformity with generally accepted accounting principles. Ernst & Young LLP Reno, Nevada November 15, 1996, except for the first paragraph of Note 13 as to which the date is November 18, 1996 S-42 BOOMTOWN, INC. CONSOLIDATED BALANCE SHEETS
SEPTEMBER 30, ----------------- 1996 1995 -------- -------- (IN THOUSANDS) ASSETS ------ Current Assets: Cash and cash equivalents (including restricted cash of approximately $2.4 million as of September 30, 1995)...... $ 23,101 $ 20,775 Accounts receivable, net................................... 942 924 Income taxes receivable.................................... 1,815 1,508 Inventories................................................ 1,725 2,715 Prepaid expenses........................................... 7,333 7,025 Other current assets....................................... 1,762 765 -------- -------- Total current assets..................................... 36,678 33,712 Property, plant and equipment, net......................... 145,330 150,955 Goodwill, net.............................................. 6,267 6,644 Investment in lease, net................................... 0 13,077 Notes receivable from a related party...................... 8,683 27,294 Other assets............................................... 9,030 7,516 -------- -------- $205,988 $239,198 ======== ======== LIABILITIES AND STOCKHOLDERS' EQUITY ------------------------------------ Current Liabilities: Accounts payable........................................... $ 3,812 $ 3,747 Accrued compensation....................................... 3,611 2,930 Other accrued liabilities.................................. 8,823 9,740 Accrued interest payable................................... 5,005 4,959 Income taxes payable....................................... 751 506 Current portion of long-term debt.......................... 5,032 2,948 -------- -------- Total current liabilities................................ 27,034 24,830 Long-term debt (net of unamortized discount of approximately $2.5 million and $2.7 million as of September 30, 1996 and 1995, respectively)................ 103,729 106,547 Deferred income taxes...................................... 3,183 1,621 Deferred gain on sale leaseback............................ 112 213 Minority interest.......................................... 1,542 741 Commitments and contingencies (see Note 7 and Note 13)..... -- --
Stockholders' equity: Common stock, $0.01 par value, 20,000,000 shares authorized, 9,266,193 and 9,233,074 issued and outstanding as of September 30, 1996 and 1995, respectively, net of a note receivable from a stockholder of $221,000.............................................. 103,653 103,453 Retained earnings (deficit)............................... (33,265) 1,793 -------- -------- Total stockholders' equity.............................. 70,388 105,246 -------- -------- $205,988 $239,198 ======== ========
See accompanying notes. S-43 BOOMTOWN, INC. CONSOLIDATED STATEMENTS OF OPERATIONS
NINE MONTHS ENDED YEARS ENDED SEPTEMBER 30, JUNE 30, ---------------------------- ------------------ 1996 1995 1994 1997 1996 -------- -------- -------- -------- -------- (UNAUDITED) (IN THOUSANDS, EXCEPT PER SHARE DATA) REVENUES: Gaming.................... $188,368 $189,306 $ 76,326 $144,353 $139,350 Family entertainment center................... 6,300 6,387 3,656 4,035 4,426 Food and beverage......... 16,314 15,613 7,973 13,036 12,293 Hotel and recreational vehicle park............. 7,289 6,584 3,082 5,666 5,479 Showroom.................. 823 440 329 623 0 Truck stop, service station and mini-mart.... 14,401 10,811 10,858 9,901 9,815 Other income.............. 2,547 2,626 1,151 1,490 2,816 -------- -------- -------- -------- -------- 236,042 231,767 103,375 179,104 174,179 -------- -------- -------- -------- -------- EXPENSES: Gaming.................... 73,479 73,233 30,818 58,667 57,166 Gaming equipment leases... 6,716 5,811 412 3,299 5,041 Family entertainment center................... 3,332 3,274 1,762 2,550 2,553 Food and beverage......... 19,213 17,639 8,179 17,159 14,271 Hotel and recreational vehicle park............. 3,002 3,168 1,706 2,545 2,401 Showroom.................. 683 308 2,130 426 0 Truckstop, service station and mini-mart............ 13,038 9,722 9,661 9,037 8,929 Marketing and promotion... 22,439 19,593 7,524 19,154 16,993 General and administrative........... 70,620 75,296 25,760 47,494 49,642 Pre-opening expenses...... 0 0 15,787 0 0 Discontinued projects, merger costs ............ 1,603 6,054 0 1,802 920 Loss on sale of Boomtown Las Vegas................ 36,563 0 0 1,271 36,563 Depreciation and amortization............. 10,618 10,422 5,891 11,636 8,135 -------- -------- -------- -------- -------- 261,306 224,520 109,630 175,040 202,614 -------- -------- -------- -------- -------- Income (loss) from operations................. (25,264) 7,247 (6,255) 4,064 (28,435) Interest expense, net of capitalized interest....... (13,838) (13,434) (5,632) (10,439) (10,362) Interest and other income... 4,193 3,081 2,624 2,355 2,346 Loss on marketable securities................. 0 0 (1,691) 0 0 Gain (loss) on sale of assets..................... 0 0 0 (109) 240 -------- -------- -------- -------- -------- Loss before minority interests , extraordinary item and income taxes...... (34,909) (3,106) (10,954) (4,129) (36,211) Minority interests.......... 645 1,105 352 (96) 878 -------- -------- -------- -------- -------- Loss before extraordinary item and income taxes...... (34,264) (2,001) (10,602) (4,225) (35,333) Income tax expense (benefit).................. 794 876 (2,779) (2,103) (50) -------- -------- -------- -------- -------- Loss before extraordinary item....................... (35,058) (2,877) (7,823) (2,122) (35,283) Extraordinary loss, net of tax effect................. 0 0 (229) (8,420) 0 -------- -------- -------- -------- -------- Net loss.................... $(35,058) $ (2,877) $ (8,052) $(10,542) $(35,283) ======== ======== ======== ======== ======== Per common share: Income (loss) before extraordinary item....... $ (3.79) $ (0.31) $ (0.90) $ (0.21) $ (3.82) ======== ======== ======== ======== ======== Extraordinary loss........ $ 0.00 $ 0.00 $ (0.03) $ (0.86) $ 0.00 ======== ======== ======== ======== ======== Net loss.................. $ (3.79) $ (0.31) $ (0.93) $ (1.07) $ (3.82) ======== ======== ======== ======== ======== Number of common shares..... 9,248 9,228 8,690 9,830 9,243 ======== ======== ======== ======== ========
See accompanying notes. S-44 BOOMTOWN, INC. CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY FOR THE YEARS ENDED SEPTEMBER 30, 1996, 1995 AND 1994
COMMON STOCK RETAINED TOTAL ------------------- EARNINGS STOCKHOLDERS' SHARES(#) AMOUNT($) (DEFICIT) EQUITY --------- --------- --------- ------------- (IN THOUSANDS) BALANCES, SEPTEMBER 30, 1993....... 8,506 $ 88,313 $ 12,722 $101,035 Issuance of common stock warrants........................ 0 2,995 0 2,995 Employer 401(k) contributions.... 4 75 0 75 Common stock issued for additional interest in Blue Diamond Hotel & Casino, Inc. (Boomtown Las Vegas)............ 714 11,964 0 11,964 Net loss......................... 0 0 (8,052) (8,052) ----- -------- -------- -------- BALANCES, SEPTEMBER 30, 1994....... 9,224 103,347 4,670 108,017 Employer 401(k) contributions.... 9 105 0 105 Net loss......................... 0 0 (2,877) (2,877) ----- -------- -------- -------- BALANCES, SEPTEMBER 30, 1995....... 9,233 103,452 1,793 105,245 Employer 401(k) contributions.... 33 200 0 200 Net loss......................... 0 0 (35,058) (35,058) ----- -------- -------- -------- BALANCES, SEPTEMBER 30, 1996....... 9,266 $103,652 $(33,265) $ 70,387 ===== ======== ======== ========
See accompanying notes. S-45 BOOMTOWN, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS
NINE MONTHS ENDED YEARS ENDED SEPTEMBER 30, JUNE 30, ----------------------------- ------------------ 1996 1995 1994 1997 1996 -------- -------- --------- -------- -------- (UNAUDITED) (IN THOUSANDS) CASH FLOWS FROM OPERATING ACTIVITIES: Net loss.................. $(35,058) $ (2,877) $ (8,052) $(10,542) $(35,283) Adjustments to reconcile net loss to net cash provided by (used in) operating activities: Lease expense recorded in exchange for limited partnership interest..... 1,500 2,000 389 0 1,500 Minority interests........ (645) (1,105) (351) (1,542) (878) Gain (loss) on sale of property, plant and equipment................ 191 164 (57) 117 0 Depreciation and amortization............. 10,618 10,422 5,891 11,638 8,135 Loss on sale of Boomtown Las Vegas................ 36,563 0 0 1,271 36,563 Deferred income taxes..... 2,598 1,614 (4,145) 2,028 1,199 Changes in operating assets and liabilities: Accounts receivable, net..................... (256) 397 (1,011) 228 0 Income taxes receivable.. (440) (1,508) 0 1,561 (1,604) Inventories.............. 154 301 (2,453) (28) 275 Prepaid expenses......... (208) 93 (4,971) 2,041 1,319 Accounts payable, net.... 149 (5,406) 7,950 (308) 377 Income taxes payable..... 330 24 213 (8,611) 1,096 Accrued compensation..... 681 1,320 631 1,189 (1,397) Other accrued liabilities............. (1,048) 4,189 4,467 2,966 57 Accrued interest payable................. 0 0 0 11,938 0 Discount on bonds........ 0 0 0 2,448 0 Other changes, net....... (1,278) 312 1,318 (4,199) (1,163) -------- -------- --------- -------- -------- Net cash provided by (used in) operating activities.............. 13,851 9,940 (181) 12,195 10,195 CASH FLOWS FROM INVESTING ACTIVITIES: Proceeds from sale of property, plant and equipment................ 215 7,953 17,464 0 406 Additions to property, plant and equipment...... (5,679) (15,146) (114,729) (9,718) (7,168) Payments for future development costs........ 0 1,871 (1,775) 0 0 Loans to related parties.. 0 0 (7,794) 0 0 Payments for purchase of land option at Biloxi property................. 0 0 0 (200) 0 Change in construction related payables......... (84) (1,472) 680 0 (16) -------- -------- --------- -------- -------- Net cash used in investing activities.... (5,548) (6,794) (106,154) (9,918) (6,779) CASH FLOWS FROM FINANCING ACTIVITIES: Proceeds from short-term borrowings............... 0 5,000 0 0 0 Repayment of short-term borrowings............... 0 (5,000) 0 0 0 Prepaid property lease.... (2,480) 0 0 0 (2,480) Proceeds from long-term debt..................... 377 8,794 100,240 1,381 2,457 Payment of long-term debt..................... (3,874) (2,363) (107) (6,548) (2,581) Distributions to minority interests................ 0 (193) 0 0 0 -------- -------- --------- -------- -------- Net cash (used in) provided by financing activities.............. (5,977) 6,238 100,133 (5,167) (2,605) -------- -------- --------- -------- -------- Increase (decrease) in cash and cash equivalents....... 2,326 9,384 (6,202) (2,890) 812 Cash and cash equivalents at the beginning of the period..................... 20,775 11,391 17,593 23,101 20,775 -------- -------- --------- -------- -------- Cash and cash equivalents at the end of the period...... $ 23,101 $ 20,775 $ 11,391 $ 20,211 $ 21,587 ======== ======== ========= ======== ========
See accompanying notes. S-46 BOOMTOWN, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES BASIS OF PRESENTATION AND CONSOLIDATION--The consolidated financial statements include the accounts of Boomtown, Inc. (the "Company" or "Boomtown"), a Delaware corporation and all of its controlled subsidiaries and partnerships. The significant operating subsidiaries include gaming operations in Reno, Las Vegas ("Blue Diamond"), Biloxi ("Mississippi Partnership") and New Orleans ("Louisiana Partnership"). All significant intercompany accounts and transactions have been eliminated. INTERIM FINANCIAL INFORMATION--The interim financial information is unaudited. In the opinion of management, all adjustments considered necessary for a fair presentation of the consolidated results of operations and consolidated cash flows for the nine months ended June 30, 1997 and 1996, have been included. All adjustments to the interim financial information were of a normal recurring nature and consistent with the adjustments made in the consolidated financial statements for the fiscal years ended September 30, 1994, 1995, and 1996, respectively. The Company's operations are seasonal and thus operating results for the nine months ended June 30, 1997 should not be considered indicative of the results that may be expected for the fiscal year ending September 30, 1997. BOOMTOWN'S MERGER WITH HOLLYWOOD PARK, INC. ("HOLLYWOOD PARK")--On April 23, 1996, Boomtown entered into an Agreement and Plan of Merger (the "Merger Agreement") with Hollywood Park relating to the strategic combination of Hollywood Park and Boomtown. Pursuant to the Merger Agreement and subject to the terms and conditions set forth therein, Boomtown would become a wholly owned subsidiary of Hollywood Park (the "Merger"). Pursuant to the Merger Agreement, at the effective date of the Merger (the "Effective Date"), each issued and outstanding share of Boomtown Common Stock will be converted into the right to receive 0.625 (the "Exchange Ratio") of a share of Hollywood Park Common Stock. The Merger is intended to be structured as a tax-free reorganization for income tax purposes and will be accounted for as a purchase for financial reporting purposes. USE OF ESTIMATES--The accompanying consolidated financial statements have been prepared in conformity with generally accepted accounting principles which require the Company's management to make estimates and assumptions that affect the amounts reported therein. Actual results could vary from such estimates. CASH AND CASH EQUIVALENTS--Cash and cash equivalents consist of cash on hand and in banks, interest bearing deposits and highly liquid investments with original maturities of three months or less. Cash equivalents are carried at cost which approximates market. The Company paid interest of approximately $107,000 (net of $5,895,000 capitalized), $13,111,000 (net of $701,000 capitalized), and $13,793,000 (none capitalized) and income taxes of approximately $1,089,000, $746,000, and $688,500 during the years ended September 30, 1994, 1995 and 1996, respectively. Long-term debt incurred for the purchase of property and equipment during the years ended September 30, 1994, 1995 and 1996 amounted to approximately $6,296,000, $1,677,000 and $2,763,000, respectively. CONCENTRATIONS OF CREDIT RISK--The Company places its cash in short-term investments which potentially subject the Company to concentrations of credit risk. Such investments are made with financial institutions having a high credit quality and are collateralized by securities issued by the United States Government and other investment grade securities. INVENTORIES--Inventories consist primarily of fuel and petroleum products, food and beverage stock and hotel linens, uniforms and supplies and are stated at the lower of cost (determined using the first-in, first-out method) or market. S-47 BOOMTOWN, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) DEPRECIATION AND AMORTIZATION--Depreciation and amortization of property, plant and equipment is provided on the straight-line method over the lesser of the estimated useful lives of the respective assets or the lease term. The estimated useful lives for each class of property, plant and equipment are as follows: Buildings and improvements..................................... 20-35 years Furniture and fixtures......................................... 7-10 years Gaming equipment............................................... 5-10 years Outdoor signs.................................................. 10-20 years Other assets................................................... 3-15 years
In connection with the Swap Agreement (see Note 4) Blue Diamond's property and equipment were written down to net realizable value as of September 30, 1996. INTANGIBLES--Goodwill relates to the acquisition of the Reno property in 1988 and the investment in lease (at September 30, 1995) which resulted when the Company purchased the remaining 50% ownership interest in Blue Diamond (Note 4). Also, as more fully discussed in Note 4, Blue Diamond had an option to purchase the Resort during a period of six months beginning in May 1996, and ending in November 1996. However, through execution of the "Swap Agreement" as discussed in Note 4, Roski and Boomtown entered into an agreement to terminate the "Property Lease", whereby Boomtown would immediately cease operations of the Blue Diamond Resort simultaneous with the closing of Boomtown's merger with Hollywood Park, Inc., as previously discussed. As a result of the Swap Agreement, the investment in lease was expensed in fiscal 1996. Additional goodwill was recorded subsequent to September 30, 1996, related to the Company's purchase of the minority partner's interest in the Louisiana Partnership in December 1996 (Note 13) (unaudited). Goodwill is being amortized on the straight-line method over twenty-five years. Accumulated amortization at September 30, 1995 and 1996 was approximately $3,314,000 and $3,145,000, respectively. The carrying value of intangibles is periodically evaluated by management and if facts and circumstances (including undiscounted cash flows) indicate an impairment, the amount is reduced and an impairment loss is recorded. GAMING REVENUES AND PROMOTIONAL ALLOWANCES--In accordance with industry practice, the Company recognizes as gaming revenues the net win from gaming activities, which is the difference between gaming wins and losses. Revenues in the accompanying consolidated statements of operations exclude the retail value of rooms, food and beverage and other promotional allowances provided to customers without charge. The estimated costs of providing such promotional allowances have been classified as gaming operating expenses through interdepartmental allocations as follows (in thousands):
YEARS ENDED SEPTEMBER 30, ---------------------- 1994 1995 1996 ------ ------- ------- Food and beverage................................... $5,433 $11,638 $12,746 Hotel............................................... 172 400 299 Other............................................... 43 167 210 ------ ------- ------- Total............................................... $5,648 $12,205 $13,255 ====== ======= =======
STOCK BASED COMPENSATION--The Company accounts for its stock option plans in accordance with the provisions of the Accounting Principles Board's Opinion No. 25 (APB 25), "Accounting for Stock Issued to Employees". In 1995, the Financial Accounting Standards Board released Statement of Financial Accounting Standard No. 123 (SFAS 123), "Accounting for Stock Based Compensation". SFAS 123 provides an alternative to APB 25 and is effective for fiscal years beginning after December 15, 1995. The Company expects to continue S-48 BOOMTOWN, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) to account for its stock plans in accordance with APB 25. Accordingly, SFAS 123 is not expected to have a material impact on the Company's consolidated financial position or results of operations. ADVERTISING COSTS--Advertising costs are expensed as incurred. Advertising expenses for the years ended September 30, 1994, 1995 and 1996 totaled approximately $2.6 million, $6.7 million and $6.3 million, respectively. FUTURE DEVELOPMENT COSTS--The Company capitalizes costs associated with new gaming projects until 1) the project is no longer considered viable and the costs are expensed or 2) the likelihood of the project is relatively certain and the costs are reclassified to pre-opening and expensed when operations commence. During the year ended September 30, 1995, the Company expensed approximately $6.1 million of future development costs. During fiscal 1996, future development costs were approximately $1.6 million and included costs associated with its pending merger with Hollywood Park, Inc. and its proposed gaming project in the state of Indiana. These amounts are classified as discontinued projects and future development costs in the accompanying statements of operations. PRE-OPENING EXPENSES--Pre-opening expenses were associated with the acquisition, development and opening of the Company's new casino resorts. These amounts were expensed in fiscal 1994, when the casinos commenced operations and include items that were capitalized as incurred prior to opening and items that are directly related to the opening of the property and are non-recurring in nature. INCOME TAXES--The Company accounts for income taxes under Statement of Financial Accounting Standards ("SFAS") No. 109, "Accounting for Income Taxes", which requires the Company to record deferred income taxes for temporary differences that are reported in different years for financial reporting and for income tax purposes and classifies deferred tax liabilities and assets into current and non-current amounts based on the classification of the related assets and liabilities. EXTRAORDINARY LOSS (UNAUDITED)--Boomtown recorded an extraordinary loss of approximately $14.2 million (approximately $8.4 million net of tax effect) in the period ended June 30, 1997, related to the tender and consent cost (approximately $9.0 million) and the write off of deferred financing costs (approximately $5.2 million) associated with the early extinguishment of the 11.5% First Mortgage Notes (Note 5). MINORITY INTEREST--Minority interest represents the minority limited partners' proportionate share of the equity and operations of the consolidated partnerships. NET LOSS PER SHARE--Net loss per share is computed using the weighted average number of shares of Common Stock outstanding and common equivalent shares from stock options and warrants are excluded from the computation because their effect is antidilutive. In February 1997, the Financial Accounting Standards Board issued Statement No. 128, Earnings per Share, which is required to be adopted on December 31, 1997. At that time, the Company will be required to change the method currently used to compute earnings per share and to restate all prior periods. Under the new requirements for calculating primary earnings per share, the dilutive effect of stock options will be excluded. The impact of Statement 128 on the calculation of primary and fully diluted earnings per share is not expected to be material. Fully diluted loss per share amounts are the same as primary per share amounts for the periods presented. RECLASSIFICATIONS--Certain reclassifications have been made to the 1994, 1995 and 1996 consolidated financial statements to conform to the 1997 presentation. S-49 BOOMTOWN, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) 2. ISSUANCE OF COMMON STOCK AND WARRANTS During October 1992, the Company sold 2,901,786 shares of common stock in an initial public offering which generated net proceeds of approximately $26 million after deducting underwriting discounts and expenses. In addition, a stockholder of the Company (the "Selling Stockholder") sold 835,714 shares of common stock in the public offering and received proceeds to repay a subordinated term note and $2 million to redeem all of its outstanding preferred stock held by the Selling Stockholder. In connection with the Company's initial public offering, the Company sold to the underwriters for an aggregate of $25,000, warrants to purchase 162,500 shares of the Company's common stock at $12 per share. The warrants expire October 1997 and 50% became exercisable in October 1993 and the remaining 50% became exercisable in October 1994. At any time after October 1994 and prior to the expiration of the warrants, the holders have a one time right to demand a registration of the underlying shares, with expenses of such registration to be paid by the Company. During June 1993, the Company sold 2,223,380 shares of common stock in a public offering which generated net proceeds of approximately $57.2 million after deducting underwriting discounts and expenses. The proceeds were used to fund a portion of the construction costs of the new gaming facilities and for general corporate purposes. In addition, a stockholder of the Company sold 1,686,620 shares of common stock in the public offering and received proceeds, net of underwriting discounts, of $43.9 million. During November 1993, in connection with the placement of the First Mortgage Notes (Note 5), the Company issued 472,500 warrants to purchase Common Stock at $21.19 per share. The warrants became exercisable on December 10, 1993, and expire on November 1, 1998. 3. PROPERTY, PLANT AND EQUIPMENT Property, plant and equipment consists of the following (in thousands):
SEPTEMBER 30, ----------------- 1995 1996 -------- -------- Buildings and improvements.............................. $102,979 $105,097 Equipment............................................... 24,834 29,834 Boat.................................................... 18,925 18,925 Land and land improvements.............................. 17,397 17,690 Furniture and fixtures.................................. 13,166 13,428 Construction-in-progress................................ 1,631 1,370 -------- -------- 178,932 186,344 Less accumulated depreciation and amortization.......... 27,977 35,949 Write-down of assets in connection with the Swap Agreement (see Note 4)................................. 0 5,065 -------- -------- $150,955 $145,330 ======== ========
The construction-in-progress amounts at September 30, 1995 and 1996, relate primarily to the costs associated with the on-going construction of the land- based facility in Harvey, Louisiana. Amortization of leased assets is included in depreciation and amortization expense. S-50 BOOMTOWN, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) 4. RELATED PARTY TRANSACTIONS STOCKHOLDER NOTE--The note receivable from a stockholder was issued in connection with the stockholder's purchase of the Company's common stock and therefore has been presented as a reduction of stockholders' equity in the accompanying consolidated balance sheets. This note, as amended, bears interest at 6% with interest and principal payable in four annual installments commencing April 7, 1998. IVAC NOTE--Prior to the commencement of operations at Boomtown Las Vegas, the Company loaned IVAC, a California general partnership controlled by Edward P. Roski ("Roski") and a member of the Company's Board of Directors (the "Stockholder"), approximately $27.3 million (the "IVAC Notes") for purposes of constructing the Blue Diamond Resort (the "Resort"). One of the notes has a principal balance of $7.5 million and the other note, a variable principal note, has a principal balance of $19.8 million at September 30, 1995 and 1996, and both notes bear interest at 10%. These notes were written down to their net realizable value under the Swap Agreement of approximately $8.5 million at September 30, 1996. The IVAC Notes are secured by separate deeds of trust on the resort, which deeds of trust are subordinate to separate deeds of trust securing Blue Diamond and the Company's obligations in connection with the Indenture. As defined in the terms of the IVAC Notes, interest became payable upon commencement of Blue Diamond's Las Vegas operations. Interest income related to the IVAC Notes amounted to approximately $2,729,000 during the years ended September 30, 1995 and 1996, respectively and offsets a portion of the rent discussed in the following paragraph. Interest receivable from IVAC amounted to approximately $227,000 at September 30, 1995 and 1996. Prior to commencing gaming operations at the Las Vegas site on May 20, 1994, the Company owned 50% of Blue Diamond and the Stockholder owned the remaining 50% of Blue Diamond. After commencement of operations of Blue Diamond, the Company exercised its option to purchase all of the stockholder's ownership interest in Blue Diamond for 714,286 shares of the Company's common stock. Blue Diamond is leasing the resort from IVAC for an initial term of five years with certain renewal options in certain very limited circumstances. Blue Diamond had an option to purchase the resort from IVAC exercisable during a period of six months beginning in May 1996, in exchange for, at IVAC's option, either 1) shares of the Company's common stock (which would be at a minimum of 2.5 million shares) or 2) cash (which amount would be a minimum of $33 million). At the time of exercise, the investment in lease would be capitalized as a part of the resort purchase price. In addition, the Company's loans to IVAC including accrued interest (preceding paragraph) would be capitalized as part of the resort purchase price. TERMINATION OF LAS VEGAS PROPERTY LEASE--On August 12, 1996, Boomtown, Blue Diamond, Hollywood Park, Roski, IVAC and Majestic Realty entered into the Blue Diamond Swap Agreement (the "Swap Agreement") pursuant to which the parties agreed that, upon consummation of the Merger, and contingent upon the closing of the Merger, Boomtown and Blue Diamond (or any transferee thereof as set forth in the Swap Agreement) would exchange their entire interest in the Blue Diamond Resort (the "Resort") (including the IVAC Loans), and effectively transfer all interest in the Resort to Roski, in exchange for a $5.0 million unsecured promissory note (the "First Note") and will have an unsecured promissory note (the "Second Note") equal in amount to the note to be issued by Hollywood Park to Roski for the purchase of his Boomtown Common Stock referred to in a following paragraph (valued at approximately $3.5 million) and assumption by Roski, IVAC or an affiliate of certain liabilities (the "Swap"). The First Note has an interest rate equal to the prime rate plus one and one half percent (1.5%) per annum and will provide for annual principal payments of one million dollars ($1,000,000) plus accrued interest and maturing on the date that is five years after the Exchange Date (as such term is defined in the Swap Agreement). The Second Note will have an interest rate equal to the prime rate plus one-half percent (.5%) per annum and will provide for a payment of all principal plus accrued interest on the date that is three (3) years after the Exchange Date. Consummation of the Swap is subject to obtaining all necessary Governmental approvals, including gaming approval. S-51 BOOMTOWN, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) In exchange for its interest in the Resort, the Company will receive notes from Roski payable to Boomtown with an estimated value totaling $8.5 million, an estimated cash payment of $2.1 million, release from lease obligations under the Resort lease, Roski's assumption of certain liabilities and note obligations totaling approximately $3.8 million and the ongoing expenses of the Resort. Additionally, Roski will assume all operating leases including any residual balances due under such leases. The Swap Agreement requires approvals from applicable gaming authorities and Boomtown intends to seek the consent of the holders of a majority of the outstanding principal amount on the Notes where defined. The Swap would be effected immediately following the Merger which is expected to be completed by the end of the first quarter of calendar 1997. In accordance with the terms of the Swap Agreement, with certain exceptions set forth in the Swap Agreement, the Company will continue to operate the property until consummation of the Merger. Boomtown and Blue Diamond will be responsible for the liabilities of the Resort prior to the Swap and Roski will be responsible for the liabilities of the Resort subsequent to the Swap. In addition, Roski will resign from Boomtown's Board of Directors, effective as of the Exchange Date. Subject to certain conditions set forth in the Swap Agreement, the Swap may be effectuated through any structure agreed upon by Boomtown and Hollywood Park. If the Swap were not consummated for any reason, Boomtown would continue to operate the property through the expiration of the lease term in July 1999, and the IVAC Notes would be required to be repaid to Boomtown at such time. Additionally, on August 12, 1996, Hollywood Park and Roski further entered into a Stock Purchase Agreement (the "Stock Purchase Agreement") pursuant to which Hollywood Park will, concurrently with the Swap, purchase the stock in Boomtown held by Roski ("Roski Stock") for its market price on the date of the Swap (estimated to be $3.5 million). The purchase price will be paid through the issuance of an unsecured promissory note having an interest rate equal to the prime rate plus one percent (1%) per annum and providing for four equal annual principal payments plus accrued interest and maturing on the date that is four years after the Exchange Date. The Stock Purchase Agreement may also be terminated by Hollywood Park in the event that Boomtown and Hollywood Park, in accordance with the provisions set forth in the Swap Agreement, elect to utilize a structure to effect the Swap which would require Roski to retain the Roski Stock. The Company took a non-cash, pre-tax charge of $36.6 million related to the Swap Agreement. The charge is comprised of the write-off of the Company's investment in lease of $12.7 million, an $18.9 million write-down of the related party notes receivable to $8.5 million and the write-down of the remaining net assets less the liabilities assumed by Roski of $5.0 million. In the event that the actual amount of the Second Note is less than $3.5 million the Company will incur an additional loss on the sale of Blue Diamond. The Company owns an 85% interest in the Mississippi Partnership. As a result of executing a lease for the property upon which the Mississippi Partnership's Biloxi, Mississippi gaming facility is located (Note 7), a 15% limited partnership interest was transferred to an individual (the "Lessor") in lieu of base rent payments for the first two years. After three years of operation, either the Company or the Lessor may exercise an option to convert the Lessor's ownership interest into the Company's common stock or cash, at the option of the Lessor, at an amount calculated per the agreement which is based upon a multiple of earnings. The Company owned a 92.5% interest in the Louisiana Partnership. The remaining 7.5% limited partnership interest was owned by the Lessor identified in the preceding paragraph (the "Partner"). Quarterly distributions to all partners will be required in both the Mississippi Partnership and the Louisiana Partnership based upon the pro-rata share of cash flows generated, as defined. Subsequent to year-end Boomtown entered into an agreement to purchase the Partner's 7.5% Louisiana Partnership interest (see Note 13). S-52 BOOMTOWN, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) 5. LONG-TERM DEBT Long-term debt consists of the following (in thousands):
SEPTEMBER 30, ----------------- 1995 1996 -------- -------- 11.5% first mortgage notes (net of unamortized discount of approximately $2.7 million and $2.4 million as of September 30, 1995 and 1996, respectively)........................................ $100,842 $101,052 13% note payable...................................... 4,336 3,227 Capital lease obligations............................. 1,126 2,734 11.5% notes payable................................... 2,431 1,300 12.25% note payable................................... 760 448 -------- -------- 109,495 108,761 Less amounts due within one year...................... 2,948 5,032 -------- -------- $106,547 $103,729 ======== ========
On November 24, 1993, the Company completed the private placement of $103.5 million of 11.5% First Mortgage Notes Due November 2003 (the "Notes"). Interest on the Notes is payable semi-annually. The Notes will be redeemable at the option of the Company, in whole or in part, on or after November 1, 1998, at a premium to the face amount ($103.5 million) which decreases on each subsequent anniversary date, plus accrued interest to the date of redemption. The Notes are secured by substantially all of the Company's assets. The Indenture governing the Notes places certain business, financial and operating restrictions on the Company and its subsidiaries including, among other things, the incurrence of additional indebtedness, issuance of preferred equity interests and entering into operating leases; limitations on dividends, repurchases of capital stock of the Company and redemptions of subordinated debt; limitations on amending existing partnership and facility construction agreements; and limitations on the use of proceeds from the issuance of the Notes. The 13%, 11.5% and 12.25% notes payable are secured by property, plant and equipment with net book values of approximately $17,296,000, $2,922,000 and $718,000, at September 30, 1996. The notes mature in January 1999, September 1997, and January 1998, respectively. The capital lease obligations are secured by equipment with a net book value of $3,632,000 at September 30, 1996. The capital lease obligations mature between September 1997 and January 1998. Principal maturates of long-term debt by fiscal year as of September 30, 1996 are as follows (in thousands): 1997.............................................................. $ 5,032 1998.............................................................. 2,084 1999.............................................................. 593 2000.............................................................. 0 2001.............................................................. 0 Thereafter........................................................ 103,500 -------- $111,209 ========
S-53 BOOMTOWN, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) 6. INCOME TAXES The (benefit) provision for income taxes consists of the following (in thousands):
YEARS ENDED SEPTEMBER 30, ----------------------- 1994 1995 1996 ------- ------- ----- Current: Federal........................................ $ 947 $(1,805) $(669) State.......................................... 195 768 870 ------- ------- ----- 1,142 (1,037) 201 Deferred (primarily federal)................... (3,921) 1,913 593 ------- ------- ----- $(2,779) $ 876 $ 794 ======= ======= =====
The difference between the Company's (benefit) provision for income taxes as presented in the accompanying consolidated statements of operations and a provision (benefit) for income taxes computed at the federal statutory rate is comprised of the items shown in the following table as a percentage of pre-tax earnings (loss):
YEARS ENDED SEPTEMBER 30, --------------------- 1994 1995 1996 ----- ----- ----- Income tax (benefit) provision at the statutory rate........................................... (34.0)% (34.0)% (34.0)% Goodwill amortization........................... 1.6 8.3 0.8 Meals and entertainment......................... 1.3 17.5 0.4 Loss on investments............................. 5.4 0.0 0.0 Loss on sale of Blue Diamond.................... 0.0 0.0 31.7 State income taxes, net of federal benefit...... (1.4) 41.0 1.8 Merger costs.................................... 0.0 0.0 1.3 Operating loss benefit limitation............... 0.0 8.0 0.0 Others, net..................................... 0.9 3.0 0.3 ----- ----- ----- (26.2)% 43.8 % 2.3 % ===== ===== =====
S-54 BOOMTOWN, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) The significant components of the deferred income tax assets and liabilities included in the accompanying consolidated balance sheets are as follows (in thousands):
SEPTEMBER 30, ----------------- 1995 1996 ------- -------- Deferred income tax assets: Pre-opening costs, net of amortization.............. $ 3,768 $ 2,607 Compensation accrued for stock appreciation rights and stock option plans............................. 1,062 1,062 Loss on sale of Blue Diamond........................ 0 1,722 Alternative minimum tax credit carryforwards........ 887 1,071 Capital loss carryforwards.......................... 575 6,911 Operating loss carryforwards........................ 160 160 Merger expenses..................................... 0 402 Accrued expenses.................................... 1,410 1,829 Less valuation allowance--loss carryforwards and merger expenses.................................... (735) (7,473) ------- -------- Total deferred income tax assets.................. 7,127 8,291 ------- -------- Deferred income tax liabilities: Excess of book basis over tax basis of assets acquired........................................... (3,232) (3,187) Depreciation........................................ (3,692) (5,466) Prepaid expenses.................................... (1,322) (1,101) State deferreds..................................... (0) (249) ------- -------- Total deferred income tax liabilities............. (8,246) (10,003) ------- -------- Net deferred income tax liability................... $(1,119) $ (1,712) ======= ========
7. COMMITMENTS AND CONTINGENCIES OPERATING LEASES--The Company and its subsidiaries lease facilities, billboards and certain equipment under noncancelable operating lease arrangements with terms in excess of one year. The aggregate future minimum annual rental commitments as of September 30, 1996 under operating leases having noncancelable lease terms in excess of one year are as follows (in thousands):
RELATED PARTY (NOTE 4) OTHER ------------- ------- 1997................................................. $ 5,429 $10,257 1998................................................. 5,429 3,437 1999................................................. 3,456 1,568 2000................................................. 0 451 2001................................................. 0 340 Thereafter........................................... 0 871 ------- ------- $14,314 $16,924 ======= =======
TERMINATION OF LAS VEGAS PROPERTY LEASE--As more fully discussed in Note 4 the Company entered into the Swap Agreement pursuant to which Boomtown will be released from its obligations under the Resort Lease. BARGE LEASE--The Mississippi Partnership sold the barge in Biloxi, Mississippi and the building upon the barge housing the casino to HFS Gaming Corporation ("HFS"), a Delaware corporation. $2.4 million of the S-55 BOOMTOWN, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) $11 million sales price was held by the Company to be used for the development and construction at the Mississippi casino site. Simultaneously with the sale, the Mississippi Partnership leased the barge and building for 25 years and was granted the option to purchase the leased asset for fair market value at the end of the lease or upon the occurrence of certain events as defined in the lease agreement. In the event of default by the Mississippi Partnership, HFS may terminate the lease or require the Mississippi Partnership to repurchase the assets for fair market value. HFS agreed to provide certain marketing services for the Mississippi Partnership. The Mississippi Partnership will pay HFS aggregate rent under the lease and payments for services under the marketing agreement equal to approximately 20% of the annual adjusted earnings before interest, taxes, depreciation and amortization, as defined, for the Partnership (including the proposed hotel). As the lease payments represent contingent rentals, they are excluded from the future minimum annual rental commitments schedule above. HFS subsequently transferred its contractual rights to National Gaming Corporation, Inc. ("NGC"). In November 1995, Boomtown executed an agreement with NGC whereby the $2.4 million was returned to NGC in return for reduction of the EBITDA distributions from 20% to 16% . The $2.4 million is included on the accompanying balance sheet as a component of other assets and it is being amortized on the straight-line method over the remaining lease term. Additionally, the Company secured an option to buy the barge from NGC as well as to buy out the EBITDA participation at a cost approximating the original investment made by HFS less the $2.4 million that was paid. The option terminates on March 31, 1997, but is renewable for an additional two years for $100,000 a year. Upon exercise of the barge and building purchase option, the remaining unamortized balance of the $2.4 million will be capitalized as a component of the purchase price. (See note 13 below.) TIDELANDS LEASE--The Mississippi Partnership leases submerged tidelands at the casino site from the State of Mississippi. Annual rent is $525,000 and the term of the lease is ten years with a five-year option to renew. Rent in the second five-year period of the lease will be determined in accordance with Mississippi law. Annual rent in the five-year renewal term will be based on an appraisal obtained by the State of Mississippi. LAND LEASE WITH A RELATED PARTY--The Company signed an agreement to lease property through the Mississippi Partnership intended for the development, construction and operation of the Mississippi gaming facility. The Mississippi Partnership invested $2 million as a long-term deposit on the lease and committed to annual rentals of base rent (estimated at $2 million) and percentage rent (5% of adjusted gaming win over $25 million), plus $200,000 per year during the first ten years of the lease. The Mississippi Partnership exchanged a 15% interest with the lessor in lieu of base rent payments for the first two years. Rent expense is being charged to operations for the two year period and the lessor's limited partner capital account is being credited. The lease term is 99 years and is cancelable upon one year's notice. RENTAL EXPENSE--Included in the accompanying consolidated statements of operations, rental expense was approximately, $3,879,000 (including $389,000 in contingent rentals), $16,102,000 (including $511,000 in contingent rentals) and $19,243,000 (including $729,000 in contingent rentals) during the years ended September 30, 1994, 1995 and 1996, respectively. During the years ended September 30, 1994, 1995, and 1996, $2,418,000, $8,140,000 and $8,363,000, respectively, of rental expense was with related parties. SELF-INSURANCE--The Company maintains a plan of partial self-insurance for medical and dental coverage for substantially all full-time employees and their dependents. Claims aggregating between $50,000 and $75,000 or more per individual during the policy year are fully covered by insurance. Management has established reserves considered adequate to cover estimated future payments on claims incurred through September 30, 1996. GAMING LICENSE REQUIREMENTS--In October 1994, the Mississippi Gaming Commission adopted a regulation that requires, as a condition of licensure or license renewal, for a gaming establishment's plan to include various expenditures including parking facilities and infrastructure facilities amounting to at least 25% of the casino cost. S-56 BOOMTOWN, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) Although the Company believes they have satisfied this requirement, there can be no assurance the Mississippi Gaming Commission will not require further development on the casino site including hotel rooms and additional parking facilities. Additionally, there can be no assurance that the Partnership will be successful in completing such a project or that the Partnership would be able to obtain a waiver if the Partnership decides not to build. 8. FUNFLIGHT PROGRAM The Company operates a gaming junket program under the name Boomtown FunFlights. This program contracts with agents in various cities to book passengers on a chartered airplane for either overnight or "turn-around" flights to Boomtown Reno. The agents are paid a commission for each passenger booked. The passenger pays a nominal "boarding fee" which is recorded as revenue upon the passenger's arrival at the casino. The Company pays all costs associated with this program. 9. STOCK OPTION PLANS STOCK OPTION PLAN--On March 8, 1991, the Company's Board of Directors adopted a non-qualified stock option plan for officers and key employees (the "Option Plan"). The Option Plan authorized the grant of up to 198,744 shares of the Company's common stock. All available shares under the Option Plan were granted retroactive to October 1, 1989 to one individual at $.66 per share subject to certain contingent exercisability provisions. This option was amended in 1992, to provide full vesting and exercisability as of June 30, 1992, and it expires in March 2001. The Option Plan was amended and restated on September 10, 1992 to provide for the granting to employees of the Company of incentive stock options and for the granting of non-statutory stock options and stock purchase rights to employees and consultants of the Company. The options granted will be for various terms not exceeding ten years and will vest over periods determined at the date of grant. The exercise price for incentive stock options granted will be not less than the fair market value of the common stock at the date of grant. At September 30, 1996, the total number of shares reserved for issuance under the Option Plan is 1,892,066 of which options to purchase 1,726,742 shares have been granted at exercise prices ranging from $.66 to $6.25 per share. At September 30, 1996, options to purchase 586,992 shares of the Company's common stock at exercise prices ranging from $.66 to $6.25 per share were exercisable. During the year ended September 30, 1996 the Company's Board of Directors repriced certain non-executive options of the Option Plan totaling 165,000 shares to $9.00 from prices ranging from $11.50 to $20.75. Subsequently a repricing occurred concurrent with the Merger Agreement (April 23, 1996) whereby virtually all options outstanding, under the Option Plan as of such date were repriced to $6.25. 1992 DIRECTORS' OPTION PLAN--On September 10, 1992, the Company's Board of Directors adopted a directors' option plan (the "Directors' Plan") whereby each non-employee director is granted an option to purchase 3,900 shares of the Company's' common stock upon joining the Board and an option to purchase 1,300 shares of common stock on each anniversary date thereafter during their tenure as a director. The options granted have a ten-year term and vest ratably over a three-year period. The exercise price is the fair market value of the common stock on the date of grant. Options granted under the Directors' Plan may be exercised only (1) while the optionee director is serving as a director on the Company's Board, (2) within twelve months after termination by death or disability, or (3) within three months after termination as a director for any other reason. A total of 45,000 share have been granted under this plan at original exercise prices ranging from $4.88 to $26.50 per share. At September 30, 1996, options to purchase 19,064 shares of the Company's common stock at prices ranging from $12.00 to $26.50 were exercisable under this plan. S-57 BOOMTOWN, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) 1993 EMPLOYEE STOCK BONUS PLAN--On February 25, 1993, the Company's Board of Directors adopted a Stock Bonus Plan (the "Bonus Plan") which covers certain employees of the Company. The Company has authorized and reserved 5,000 shares of common stock for granting under the Bonus Plan. The shares granted under the plan vest ratably over a four-year period. At September 30, 1996, the Company has not granted any shares under the Bonus Plan. 10. 401(K) PLAN On January 1, 1993, the Company's Board of Directors approved a voluntary savings and investment plan (the "401(k) Plan"). The 401(k) Plan is available to all eligible employees of the Company and subsidiaries. Under the 401(k) Plan the Company will match 50% of employees' contributions up to a maximum of 5% of the employees' wages. The Company's 401(k) Plan expense was approximately, $233,000, $384,000 and $623,000 during the years ended September 1994, 1995, and 1996, respectively. 11. FAIR VALUE OF FINANCIAL INSTRUMENTS The following methods and assumptions were used by the Company in estimating its fair value disclosures for financial instruments: CASH AND CASH EQUIVALENTS: The carrying amount reported on the accompanying consolidate balance sheets for cash and cash equivalents approximates their fair value. NOTES RECEIVABLE: The fair value of the Company's notes receivable at September 30, 1995 was estimated by discounting the future cash flows using interest rates determined by management to reflect the credit risk and remaining maturities of the related notes receivable. The September 30, 1996 value was based on the negotiated price with Roski as discussed in Note 4. 11.5% FIRST MORTGAGE NOTES: The fair value of the Company's other long-term notes are estimated based upon market quotes of notes with similar characteristics and remaining maturities. OTHER LONG-TERM DEBT: The fair values of the Company's notes payable and capital lease obligations are estimated using discounted cash flow analyses, based on the Company's current incremental borrowing rates for similar types of borrowing instruments. The carrying amounts and fair values of the Company's financial instruments at September 30, 1995 and 1996 are as follows (in thousands):
SEPTEMBER 30, 1995 ------------------- CARRYING AMOUNT FAIR VALUE -------- ---------- Cash and cash equivalents.............................. $ 20,775 $ 20,775 Notes receivable....................................... 27,294 26,652 11.5% first mortgage notes............................. 100,842 95,738 Other long-term debt................................... 8,653 8,390 SEPTEMBER 30, 1996 ------------------- CARRYING AMOUNT FAIR VALUE -------- ---------- Cash and cash equivalents.............................. $ 23,101 $ 23,101 Notes receivable....................................... 8,683 7,947 11.5% first mortgage notes............................. 101,052 106,605 Other long-term debt................................... 7,709 7,606
S-58 BOOMTOWN, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) 12. SUMMARIZED CONSOLIDATING FINANCIAL INFORMATION (UNAUDITED) In connection with the Notes issued in November 1993 (Note 5), the subsidiaries of the Company (guarantor entities) have guaranteed the Notes. Summarized consolidating financial information follows: SUMMARIZED CONSOLIDATING FINANCIAL INFORMATION AS OF AND FOR THE YEAR ENDED SEPTEMBER 30, 1996 (IN THOUSANDS)
GUARANTOR ENTITIES ----------------------------------- BLUE DIAMOND BOOMTOWN BOOMTOWN, HOTEL & HOTEL & NON-WHOLLY ELIMINATIONS & BOOMTOWN INC. CASINO, CASINO, OWNED RECLASSIFICATIONS INC. (PARENT CO.) INC.(1) INC.(2) SUBSIDIARIES(3) DR(CR)(4) (CONSOLIDATED) ------------ -------- -------- --------------- ----------------- -------------- Current assets.......... $ 24,346 $ 4,756 $ 6,779 $ 11,170 $ (10,373) $ 36,678 Advances to affiliates.. 112,391 0 0 0 (112,391) 0 Non-current assets...... 44,360 3,080 59,576 96,087 (33,793) 169,310 -------- -------- ------- -------- --------- -------- $181,097 $ 7,836 $66,355 $107,257 $(156,557) $205,988 ======== ======== ======= ======== ========= ======== Current liabilities..... $ 6,652 $ 11,054 $ 4,523 $ 15,178 $ (10,373) $ 27,034 Non-current liabilities............ 106,159 0 209 2,460 (261) 108,567 Advances from parent.... 0 33,785 11,479 67,127 (112,391) 0 Equity.................. 68,286 (37,003) 50,144 22,492 (33,532) 70,387 -------- -------- ------- -------- --------- -------- $181,097 $ 7,836 $66,355 $107,257 $(156,557) $205,988 ======== ======== ======= ======== ========= ======== Revenues................ $ 0 $ 44,721 $67,618 $123,703 $ 0 $236,042 Income (loss) from operations............. $(21,455) $(26,007) $ 3,602 $ 18,596 $ 0 $(25,264) Equity in earnings (loss) of consolidated subsidiaries and partnerships........... $(12,559) $ 0 $ 0 $ 0 $ 12,559 $ 0 Net loss................ $(22,499) $(24,194) $ 1,496 $ 9,494 $ 645 $(35,058) Net cash provided by (used in) operating activities............. $ 1,503 $ (3,606) $ (308) $ 13,781 $ 0 $ 11,370 Net cash used in investing activities... 0 (544) (1,928) (3,075) 0 (5,547) Net cash provided by (used in) financing activities............. (1,857) 4,083 4,564 (10,287) 0 (3,497) -------- -------- ------- -------- --------- -------- Net increase (decrease) in cash and cash equivalents............ (354) (67) 2,328 419 0 2,326 Cash and cash equivalents: Beginning of year..... 10,811 2,630 1,334 6,000 0 20,775 -------- -------- ------- -------- --------- -------- End of year........... $ 10,457 $ 2,563 $ 3,662 $ 6,419 $ 0 $ 23,101 ======== ======== ======= ======== ========= ========
- -------- Notes to Summarized Consolidating Financial Information: (1) Blue Diamond Hotel & Casino, Inc. is a wholly-owned subsidiary that is consolidated in the accompanying consolidated financial statements. S-59 BOOMTOWN, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) (2) Boomtown Hotel and Casino, Inc. is a wholly-owned subsidiary that is consolidated in the accompanying consolidated financial statements. These amounts do not include the operations of the Company's wholly-owned subsidiaries which are general partners of the Company's non-wholly owned subsidiaries. The operations of such wholly-owned subsidiaries are insignificant and have been included in the column "Non-wholly owned Subsidiaries". (3) "Non-wholly Owned Subsidiaries" include Boomtown, Inc.'s wholly-owned subsidiaries in Mississippi and Louisiana and 100% of the assets, liabilities and equity of the limited partnerships formed to operate the gaming facilities in those states. (4) Eliminations consist of Boomtown, Inc.'s (a) investment in the guarantor entities, (b) advances to the guarantor and non-guarantor entities and subsidiaries and (c) equity in earnings (loss) of consolidated subsidiaries and partnerships. The advances are subordinated in right of payment to the guarantees of the Notes. S-60 BOOMTOWN, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) SUMMARIZED CONSOLIDATING FINANCIAL INFORMATION AS OF AND FOR THE NINE MONTHS ENDED JUNE 30, 1997 (IN THOUSANDS, UNAUDITED)
GUARANTOR ENTITIES --------------------------------------------------------- BOOMTOWN, BLUE DIAMOND BOOMTOWN LOUISIANA-I MISSISSIPPI-I ELIMINATIONS & BOOMTOWN, INC. HOTEL & HOTEL & GAMING, GAMING, RECLASSIFICATIONS INC. (PARENT CO.) CASINO, INC.(1) CASINO, INC.(2) L.P.(3) L.P.(4) DR(CR)(5) (CONSOLIDATED) ------------ --------------- --------------- ----------- ------------- ----------------- -------------- Current assets... $ 22,294 $ 5,239 $ 6,592 $ 5,422 $ 5,535 $ (14,850) $ 30,232 Advances to affiliates...... 111,239 0 0 0 0 (111,239) 0 Non-current assets.......... 46,408 1,996 60,093 61,217 41,809 (37,348) 174,175 -------- -------- ------- ------- ------- --------- -------- $179,941 $ 7,235 $66,685 $66,639 $47,344 $(163,437) $204,407 ======== ======== ======= ======= ======= ========= ======== Current liabilities..... $ 3,522 $ 14,338 $ 6,197 $ 8,674 $ 9,647 $ (14,850) $ 27,528 Non-current liabilities..... 115,630 0 109 1,085 23 0 116,847 Advances from parent.......... 0 35,947 12,566 20,261 42,465 (111,239) 0 Equity........... 60,789 (43,050) 47,813 36,619 (4,791) (37,348) 60,032 -------- -------- ------- ------- ------- --------- -------- $179,941 $ 7,235 $66,685 $66,639 $47,344 $(163,437) $204,407 ======== ======== ======= ======= ======= ========= ======== Revenues......... $ 0 $ 35,275 $45,824 $56,349 $41,656 $ 0 $179,104 Income (loss) from operations...... $ (3,290) $ (5,740) $(2,509) $12,732 $ 2,871 $ 0 $ 4,064 Equity in earnings (loss) of consolidated subsidiaries.... $ 809 $ (809) $ 0 Net income (loss).......... $(11,351) $ (6,046) (2,330) $10,403 $(1,122) $ (96) $(10,542) Net cash provided by (used in) operating activities...... (9,796) (517) 4,939 14,095 3,474 0 12,195 Net cash used in investing activities...... 0 (414) (5,332) (1,719) (2,453) 0 (9,918) Net cash provided by (used in) financing activities...... 4,822 1,628 713 (11,444) (886) 0 (5,167) -------- -------- ------- ------- ------- --------- -------- Net increase (decrease) in cash and cash equivalents..... (4,974) 697 320 932 135 0 (2,890) Cash and cash equivalents: Beginning of year........... 10,457 2,563 3,662 3,512 2,907 0 23,101 -------- -------- ------- ------- ------- --------- -------- End of period... $ 5,483 $ 3,260 $ 3,982 $ 4,444 $ 3,042 $ 0 $ 20,211 ======== ======== ======= ======= ======= ========= ========
- -------- Notes to Summarized Consolidating Financial Information: (1) Blue Diamond Hotel & Casino, Inc. is a wholly-owned subsidiary that is consolidated in the accompanying consolidated financial statements. (2) Boomtown Hotel & Casino, Inc. is a wholly-owned subsidiary that is consolidated in the accompanying consolidated financial statements. These amounts do not include the operations of the Company's wholly-owned subsidiaries which are general partners of the Company's non wholly-owned subsidiaries. (3) Louisiana-I Gaming, L.P. is a wholly-owned subsidiary (as of November 18, 1996) that is consolidated in the Company's consolidated financial statements. (4) Mississippi-I Gaming, L.P. is a non wholly-owned subsidiary of the Company that is consolidated in the Company's consolidated financial statements. (5) Eliminations consist of Boomtown, Inc.'s (a) investment in the guarantor entities, (b) advances to the guarantor and non-guarantor subsidiaries and (c) equity earnings (loss) of consolidated subsidiaries and partnerships. The advances are subordinated in right of payment to the guarantees of the Notes. S-61 BOOMTOWN, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) 13. SUBSEQUENT EVENTS ACQUISITION OF LOUISIANA PARTNERSHIP MINORITY INTEREST--On November 18, 1996 the Company entered into an agreement with Eric Skrmetta, the lessor, in which the Company agreed to pay $5,673,000 in return for Skrmetta's 7.5% interest in the Louisiana Partnership in addition to releasing the Company from any and all claims, liabilities and causes of action of any kind arising from or related to the Partnership Agreement. The agreement required Boomtown to make a deposit of $500,000 by December 5, 1996 and the remaining $5,173,000 was paid on August 8, 1997 (unaudited). MERGER WITH HOLLYWOOD PARK (UNAUDITED)--On June 30, 1997, pursuant to the Merger Agreement dated as of April 23, 1996, by and among Hollywood Park, HP Acquisition, Inc., a wholly owned subsidiary of Hollywood Park, and Boomtown, HP Acquisition, Inc. was merged with and into Boomtown. SWAP AGREEMENT CONSUMMATION (UNAUDITED)--On July 1, 1997, Boomtown completed a swap pursuant to the Swap Agreement. See Management's Discussion and Analysis of Financial Condition and Results of Operations--"Boomtown-- Disposition of Boomtown Las Vegas." EARLY EXTINGUISHMENT OF FIRST MORTGAGE NOTES (UNAUDITED)--Concurrently with the closing of the Merger and the Swap, Hollywood Park supplied the funds necessary to enable Boomtown to repurchase and retire an aggregate of approximately $102.7 million in principal amount of Boomtown's First Mortgage Notes (the "Notes") leaving an aggregate of approximately $1.4 million in principal amount of the Notes outstanding. Boomtown recorded an extraordinary loss of approximately $14.2 million (approximately $8.4 million net of tax effect) in the period ended June 30, 1997, related to the tender and consent costs (approximately $9.0 million) and the write off of deferred financing costs (approximately $5.2 million) associated with the early extinguishment of the First Mortgage Notes. BARGE AND BUILDING SHELL PURCHASE (UNAUDITED)--On August 4, 1997, Hollywood Park executed a purchase agreement pursuant to which one of the Hollywood Park entities repurchased the barge and the building shell at Boomtown Biloxi for a total cost of $5,250,000. A payment of $1,500,000 was made on August 4, 1997, with the balance payable in three equal annual installments of $1,250,000. S-62 APPENDIX A RESTATED CERTIFICATE OF INCORPORATION OF HOLLYWOOD PARK REALTY ENTERPRISES, INC. A DELAWARE CORPORATION ARTICLE I The name of the corporation is Hollywood Park Realty Enterprises, Inc. ARTICLE II The address of the corporation's registered office in the State of Delaware is 30 Old Rudnick Lane, in the City of Dover, County of Kent. The name of the corporation's registered agent at such address is CorpAmerica, Inc. ARTICLE III The nature of the business to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. ARTICLE IV The amount of the total authorized capital stock of the Corporation is 165,001,000 shares which are divided into four classes as follows: 40,000,000 shares of Preferred Stock having a par value of $.01 per share ("Preferred Stock"); 1,000 shares of Unpaired Common Stock having a par value of $.10 per share ("Unpaired Common Stock"); 100,000,000 shares of Common Stock having a par value of $.01 per share ("Common Stock"); and 25,000,000 shares of Excess Common Stock having a par value of $.01 per share ("Excess Stock"). The voting powers, designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions of the above classes of stock are as follows: A. Preferred Stock The Board of Directors is expressly authorized, from time to time, (1) to fix the number of shares of one or more series of Preferred Stock; (2) to determine the designation of any such series; and (3) to determine or alter, without limitation or restriction, the voting powers, preferences and relative, participating, optional or other rights, or the qualifications, limitations or restrictions granted to or imposed upon any wholly unissued series of Preferred Stock; provided, however, no shares of any series of Preferred Stock may be authorized or issued unless (i) the certificate of designations relating to such series contains restrictions on ownership and transfer and conversion provisions applicable to such series comparable to those set forth in Sections (C) and (D) of this Article IV, and (ii) a corresponding series of Preferred Stock, to be issued in accordance with such conversion provisions upon a violation of such restrictions on ownership and transfer, is simultaneously authorized by filing of a certificate of designations. A-1 B. Unpaired Common Stock and Common Stock 1. Each share of Unpaired Common Stock and Common Stock shall be equal in respect of rights to dividends, when and as declared, in the form of cash, stock or other property of the Corporation. Subject to the rights of the holders of Preferred Stock, the holders of the Unpaired Common Stock and the Common Stock shall be entitled to receive, to the extent permitted by law, such dividends as may be declared from time to time by the Board of Directors. 2. Subject to the rights of the holders of Preferred Stock and Excess Stock, in the event of the voluntary or involuntary liquidation, dissolution, distribution of assets or winding up of the Corporation, after distribution in full of the preferential amount to be distributed to the holders of shares of the Preferred Stock, holders of the Unpaired Common Stock and the Common Stock shall be entitled to receive all the remaining assets of the Corporation of whatever kind available for distribution to stockholders, ratably in proportion to the number of shares of Unpaired Common Stock and Common Stock held by them respectively. A consolidation, merger or reorganization of the Corporation with any other corporation or corporations, or a sale of all or substantially all of the assets of the Corporation, shall not be considered a dissolution, liquidation or winding up of the Corporation within the meaning of these provisions. 3. With respect to all matters upon which stockholders are entitled to vote or to which stockholders are entitled to give consent, the holders of the outstanding shares of the Unpaired Common Stock and the Common Stock shall vote together without regard to class. Except as may be otherwise required by law, each share of Unpaired Common Stock and Common Stock shall entitle the holder to one vote in respect of each matter voted by the stockholders. 4. Except as otherwise required by the Delaware General Corporation Law or as otherwise provided in this Certificate of Incorporation, each share of Unpaired Common Stock and Common Stock shall have identical rights, preferences, privileges and restrictions, including rights in liquidation. C. Restrictions on Ownership and Transfer of Common Stock 1. Definitions. For purposes of this Article IV, the following terms shall have the meanings set forth below: "Beneficial Ownership" shall mean, with respect to any Person, ownership of shares of Common Stock equal to the sum of (i) the shares of Common Stock directly or indirectly owned by such Person, (ii) the number of shares of Common Stock treated as owned directly or indirectly by such Person through the application of the constructive ownership rules of Section 544 of the Internal Revenue Code of 1986, as amended (the "Code"), as modified by Section 856(h) of the Code, and (iii) the number of shares of Common Stock which such Person is deemed to beneficially own pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The terms "Beneficial Owner," "Beneficially Owns" and "Beneficially Owned" shall have correlative meanings. "Beneficiary" shall mean, with respect to any Trust, one or more organizations described in each of Section 170(b)(1)(A) (other than clauses (vii) and (viii) thereof) and Section 170(c)(2) of the Code that are named by the Corporation as the beneficiary or beneficiaries of such Trust, in accordance with the provisions of Section (D)(4) of this Article IV. "Constructive Ownership" shall mean ownership of shares of Common Stock by a Person who is or would be treated as a direct or indirect owner of such shares of Common Stock through the application of Section 318 of the Code, as modified by Section 856(d)(5) of the Code. The terms "Constructive Owner," "Constructively Owns" and "Constructively Owned" shall have correlative meanings. "Market Price" on any date shall mean the average of the Closing Price for the five consecutive Trading Days ending on such date. The "Closing Price" on any date shall mean the last sale price of the Common Stock, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices of A-2 the Common Stock, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the shares of Common Stock are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the shares of Common Stock are listed or admitted to trading or, if the shares of Common Stock are not listed or admitted to trading on any national securities exchange, the last quoted closing sales price of the Common Stock, or if not so quoted, the average of the high bid and low asked prices of the Common Stock in the over-the-counter market, as reported by the Nasdaq Stock Market, Inc. or, if such system is no longer in use, the principal other automated quotation system that may then be in use or, if the shares of Common Stock are not quoted by any such organization, the average of the closing bid and asked prices of such security as furnished by a professional market maker selected by the Board of Directors making a market in the shares of Common Stock. In the case of Common Stock that is paired, "Market Price" shall mean the "Market Price" for Paired Shares multiplied by the Valuation Percentage. "Non-Transfer Event" shall mean an event other than a purported Transfer that would cause any Person to Beneficially Own or Constructively Own shares of Common Stock in excess of the Ownership Limit or that would result in a violation of the ownership restrictions set forth in Sections (C)(2)(b)-(d) of this Article IV, including, but not limited to, (i) the granting of any option or entering into any agreement for the sale, transfer or other disposition of shares of Common Stock or (ii) the sale, transfer, assignment or other disposition of interests in any Person or of any securities or rights convertible into or exchangeable for shares of Common Stock that results in changes in Beneficial Ownership or Constructive Ownership of shares of Common Stock. "Ownership Limit" shall mean, with respect to the Common Stock, 9.8% of the number of outstanding shares of the Common Stock and the Excess Stock. For purposes of computing the percentage of shares of Common Stock that is Beneficially Owned by any Person, any shares of Common Stock that are deemed to be Beneficially Owned by such Person pursuant to Rule 13d-3 of the Exchange Act but which are not outstanding shall be deemed to be outstanding. "Paired Share" means a unit consisting of one share of Common Stock and one share of the common stock, $.01 par value, of Operating Company that are paired pursuant to the Pairing Agreement. "Pairing Agreement" shall mean the 1998 Pairing Agreement, by and between the Corporation and Hollywood Park Operating Company (the "Operating Company"), as amended from time to time in accordance with the provisions thereof. "Permitted Transferee" shall mean any Person designated as a Permitted Transferee in accordance with the provisions of Section (D)(8) of this Article IV. "Person" shall mean (a) an individual or any corporation, partnership, limited liability company, estate, trust, association, private foundation, joint stock company or any other entity and (b) a "group" as that term is defined for purposes of Rule 13d-5 of the Exchange Act. "Prohibited Owner" shall mean, with respect to any purported Transfer or Non-Transfer Event, any Person who is prevented from being or becoming the owner of record title to shares of Common Stock by the provisions of Section (D)(1) of this Article IV. "Restriction Termination Date" shall mean (i) the first day on which the Board of Directors publicly announces that the Corporation will not elect to be taxed under the Code as a real estate investment trust (a "REIT"), or (ii) if the Corporation has already elected to be taxed as a REIT, the later of (A) the date as of which the Corporation voluntarily terminates such election or (B) the date on which the Corporation submits such termination to the Internal Revenue Service. "Trading Day" shall mean a day on which the principal national securities exchange on which shares of Common Stock are listed or admitted to trading is open for the transaction of business or, if shares of Common Stock are not listed or admitted to trading on any national securities exchange, any day other than a Saturday, a Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close. A-3 "Transfer" (as a noun) shall mean any sale, transfer, gift, assignment, devise or other disposition of shares of Common Stock, whether voluntary or involuntary, whether of record, constructively or beneficially and whether by operation of law or otherwise. "Transfer" (as a verb) shall have the correlative meaning. "Trust" shall mean any separate trust created and administered in accordance with the terms of Section (D) of this Article IV, for the exclusive benefit of any Beneficiary. "Trustee" shall mean any Person or entity unaffiliated with both the Corporation and any Prohibited Owner designated by the Corporation to act as trustee of any Trust, or any successor trustee thereof. The Trustee shall be designated by the Corporation and the Operating Company in accordance with the Pairing Agreement. "Valuation Percentage" shall mean a fraction (expressed as a percentage) determined by dividing the value of a share of Common Stock most recently determined under Section 2.5 of the Pairing Agreement by the value of a Paired Share most recently determined under Section 2.5 of the Pairing Agreement. Any holder of Common Stock, upon delivery of a written request to the Corporation, shall be promptly notified by the Corporation of the Valuation Percentage then in effect. 2. Restriction on Ownership and Transfer. a. Except as provided in Section (C)(4) of this Article IV, until the Restriction Termination Date, (i) no Person shall Beneficially Own or Constructively Own outstanding shares of Common Stock in excess of the Ownership Limit and (ii) any Transfer (whether or not the result of a transaction entered into through the facilities of the New York Stock Exchange) that, if effective, would result in any Person Beneficially Owning or Constructively Owning shares of Common Stock in excess of the Ownership Limit shall be void ab initio as to the Transfer of that number of shares of Common Stock which would be otherwise Beneficially Owned or Constructively Owned by such Person in excess of the Ownership Limit and the intended transferee shall acquire no rights in such shares of Common Stock (which shares of Common Stock shall be subject to the provisions of Section (D) of this Article IV). b. Until the Restriction Termination Date, any Transfer (whether or not the result of a transaction entered into through the facilities of the New York Stock Exchange) of shares of Common Stock that, if effective, would result in the Corporation being "closely held" within the meaning of Section 856(h) of the Code shall be void ab initio as to the Transfer of that number of shares of Common Stock that would cause the Corporation to be "closely held" within the meaning of Section 856(h) of the Code, and the intended transferee shall acquire no rights in such shares of Common Stock (which shares of Common Stock shall be subject to the provisions of Section (D) of this Article IV). c. Until the Restriction Termination Date, any Transfer (whether or not the result of a transaction entered into through the facilities of the New York Stock Exchange) of shares of Common Stock that, if effective, would cause the Corporation to Constructively Own 10% or more of the ownership interests in a tenant of the real property of the Corporation or any direct or indirect subsidiary (whether a corporation, partnership, limited liability company or other entity) of the Corporation (a "Subsidiary"), within the meaning of Section 856(d)(2)(B) of the Code, shall be void ab initio as to the Transfer of that number of shares of Common Stock that would cause the Corporation to Constructively Own 10% or more of the ownership interests in a tenant of the real property of the Corporation or a Subsidiary within the meaning of Section 856(d)(2)(B) of the Code, and the intended transferee shall acquire no rights in such shares of Common Stock (which shares of Common Stock shall be subject to the provisions of Section (D) of this Article IV). d. Until the Restriction Termination Date, any Transfer (whether or not the result of a transaction entered into through the facilities of the New York Stock Exchange) of shares of Common Stock that, if effective, would result in the shares of capital stock of the Corporation being beneficially owned (within the meaning of Section 856(a)(5) of the Code) by fewer than 100 persons within the meaning of Section 856(a)(5) of the Code shall be void ab initio and the intended transferee shall acquire no rights in such shares of Common Stock (which shares of Common Stock shall be subject to the provisions of Section (D) of this Article IV). A-4 3. Owners Required To Provide Information. As long as any of the restrictions contained in Section (C)(2) of this Article IV is in effect: a. Every Beneficial Owner or Constructive Owner of more than 5%, or such lower percentages as may be required pursuant to regulations under the Code, of the outstanding shares of Common Stock shall, within 30 days after January 1 of each year, provide to the Corporation a written statement or affidavit stating the name and address of such Beneficial Owner or Constructive Owner, the number of shares of Common Stock Beneficially Owned or Constructively Owned, and a description of how such shares are held. Each such Beneficial Owner or Constructive Owner shall provide to the Corporation such additional information as the Corporation may request to ensure compliance with the restrictions in this Section C of this Article IV. b. Each Person who is a Beneficial Owner or Constructive Owner of shares of Common Stock and each Person (including the stockholder of record) who is holding shares of Common Stock for a Beneficial Owner or Constructive Owner shall provide to the Corporation a written statement or affidavit stating such information as the Corporation may request in order to determine the Corporation's status as a REIT and to ensure compliance with the Ownership Limit. 4. Exception. The Board of Directors, upon receipt of a ruling from the Internal Revenue Service or an opinion of counsel in each case to the effect that the restrictions contained in Sections (C)(2)(b) through (d) of this Article IV would not be violated, may exempt a Person from the Ownership Limit, provided that (A) the Board of Directors obtains such representations and undertakings from such Person as are reasonably necessary to ascertain that no Person's Beneficial Ownership or Constructive Ownership of shares of Common Stock will (i) result in the capital stock of the Corporation being beneficially owned (within the meaning of Section 856(a)(5) of the Code) by fewer than 100 persons within the meaning of Section 856(a)(5) of the Code, (ii) result in the Corporation being "closely held" within the meaning of Section 856(h) of the Code or (iii) cause the Corporation to Constructively Own 10% or more of the ownership interests in a tenant of the real property of the Corporation or a Subsidiary within the meaning of Section 856(d)(2)(B) of the Code and (B) such Person agrees in writing that any violation or attempted violation of the restrictions contained in Sections (C)(2)(b) through (d) of this Article IV will result in the conversion of such shares into shares of Excess Stock pursuant to Section (D)(1) of this Article IV. 5. New York Stock Exchange Transactions. Notwithstanding any provision contained herein to the contrary, nothing in this Certificate shall preclude the settlement of any transaction entered into through the facilities of the New York Stock Exchange. D. Excess Stock 1. Conversion into Excess Stock. a. If, notwithstanding the other provisions contained in this Article IV, during the period that any of the restrictions contained in Section (C)(2) of this Article IV is in effect, there is a purported Transfer or Non-Transfer Event such that any Person would either Beneficially Own or Constructively Own shares of Common Stock in excess of the Ownership Limit, then, (i) except as otherwise provided in Section (C)(4) of this Article IV, with respect to any such purported transfer, the purported transferee shall be deemed to be a Prohibited Owner and shall acquire no right or interest (or, in the case of a Non-Transfer Event, the Person holding record title to the shares of Common Stock Beneficially Owned or Constructively Owned by such Beneficial Owner or Constructive Owner by reason of such Non-Transfer Event, shall cease to own any right or interest) in such number of shares of Common Stock which would cause such Beneficial Owner or Constructive Owner to Beneficially Own or Constructively Own shares of Common Stock (rounded up to the nearest whole share) in excess of the Ownership Limit, (ii) such number of shares of Common Stock in excess of the Ownership Limit shall be automatically converted into an equal number of shares of Excess Stock, (iii) such shares of Excess Stock shall be transferred to a Trust in accordance with Section (D)(4) of this Article IV and (iv) the Prohibited Owner (or, if different, the record owner) shall submit certificates formerly representing such number of shares of Common Stock to the Corporation for registration in the name of the Trustee of the Trust. Such conversion into Excess Stock and transfer to a Trust shall be effective as of the close of trading on the Trading Day prior to the date of the Transfer or Non-Transfer Event, as the case may be. A-5 b. If, notwithstanding the other provisions contained in this Article IV, during the period that any of the restrictions contained in Section (C)(2) of this Article IV is in effect, there is a purported Transfer or Non-Transfer Event that, if effective, would (i) result in the capital stock of the Corporation being beneficially owned (within the meaning of Section 856(a)(5) of the Code) by fewer than 100 persons within the meaning of Section 856(a)(5) of the Code, (ii) result in the Corporation being "closely held" within the meaning of Section 856(h) of the Code or (iii) cause the Corporation to Constructively Own 10% or more of the ownership interest in a tenant of the Corporation's or a Subsidiary's real property within the meaning of Section 856(d)(2)(B) of the Code, then (w) the purported transferee shall be deemed to be a Prohibited Owner and shall acquire no right or interest (or, in the case of a Non-Transfer Event, the Person holding record title of the shares of Common Stock with respect to which such Non-Transfer Event occurred, shall cease to own any right or interest) in such number of shares of Common Stock (rounded up to the nearest whole share), the ownership of which by such purported transferee or record holder would (A) result in the shares of capital stock of the Corporation being beneficially owned (within the meaning of Section 856(a)(5) of the Code) by fewer than 100 persons within the meaning of Section 856(a)(5) of the Code, (B) result in the Corporation being "closely held" within the meaning of Section 856(h) of the Code or (C) cause the Corporation to Constructively Own 10% or more of the ownership interests in a tenant of the Corporation's or a Subsidiary's real property within the meaning of Section 856(d)(2)(B) of the Code, (x) such number of shares of Common Stock shall be automatically converted into an equal number of shares of Excess Stock, (y) such shares of Excess Stock shall be automatically transferred to a Trust in accordance with Section (D)(4) of this Article IV and (z) the Prohibited Owner shall submit certificates formerly representing such number of shares of Common Stock to the Corporation for registration in the name of the Trustee of the Trust. Such conversion into Excess Stock and transfer to a Trust shall be effective as of the close of trading on the Trading Day prior to the date of the Transfer or Non-Transfer Event, as the case may be. c. Upon the occurrence of such a conversion of shares of Common Stock into an equal number of shares of Excess Stock, such shares of Common Stock shall be retired and canceled, without any action required by the Board of Directors of the Corporation, and shall thereupon be restored to the status of authorized but unissued shares of Common Stock and may be reissued by the Corporation as that particular class or series of Equity Stock. 2. Remedies for Breach. If the Corporation, or its designees, shall at any time determine in good faith that a Transfer has taken place in violation of Section (C)(2) of this Article IV or that a Person intends to acquire or has attempted to acquire Beneficial Ownership or Constructive Ownership of any shares of Common Stock in violation of Section (C)(2) of this Article IV, the Corporation shall take such action as it deems advisable to refuse to give effect to or to prevent such Transfer or acquisition, including, but not limited to, refusing to give effect to such Transfer on the stock transfer books of the Corporation or instituting proceedings to enjoin such Transfer or acquisition. 3. Notice of Restricted Transfer. Any Person who acquires or attempts to acquire shares of Common Stock in violation of Section (C)(2) of this Article IV, or any Person who owns shares of Common Stock that were converted into shares of Excess Stock and transferred to a Trust pursuant to Sections (D)(1) and (D)(4) of this Article IV, shall immediately give written notice to the Corporation of such event and shall provide to the Corporation such other information as the Corporation may request in order to determine the effect, if any, of such Transfer or Non-Transfer Event, as the case may be, on the Corporation's status as a REIT. 4. Ownership in Trust. Upon any Transfer or Non-Transfer Event that results in Common Stock being converted into Excess Stock pursuant to Section (D)(1) of this Article IV, such Excess Stock shall be, without further action by the Corporation or the owner of such shares, transferred to a Trust to be held for the exclusive benefit of the Beneficiary; provided separate Trusts with separate Beneficiaries shall be created, and such Excess Stock shall be allocated among the separate Trusts, to the extent necessary to prevent any Trust from holding, and any Beneficiary from Beneficially Owning or Constructively Owning, shares of Excess Stock in excess of the Ownership Limit. The Corporation and the Operating Company shall name a Beneficiary for each Trust pursuant to the terms of the Pairing Agreement. Any conversion of shares of Common Stock into shares of A-6 Excess Stock and transfer to a Trust shall be effective as of the close of trading on the Trading Day prior to the date of the Transfer or Non-Transfer Event that results in the conversion. Shares of Excess Stock so held in trust shall remain issued and outstanding shares of stock of the Corporation. 5. Dividend Rights. Each share of Excess Stock shall be entitled to the same dividends and distributions (as to both timing and amount) as may be declared by the Board of Directors in respect of each share of Common Stock. The Trustee, as record holder of the shares of Excess Stock, shall be entitled to receive all dividends and distributions and shall hold all such dividends or distributions in trust for the benefit of the Beneficiary. The Prohibited Owner with respect to such shares of Excess Stock shall repay to the Trust the amount of any dividends or distributions received by it (i) that are attributable to any shares of Common Stock that have been converted into shares of Excess Stock and (ii) the record date of which was on or after the date that such shares were converted into shares of Excess Stock. The Corporation shall take all measures that it determines reasonably necessary to recover the amount of any such dividend or distribution paid to a Prohibited Owner, including, if necessary, withholding any portion of future dividends or distributions payable on shares of Common Stock Beneficially Owned or Constructively Owned by the Person who, but for the provisions of this Article IV, would Constructively Own or Beneficially Own the shares of Common Stock that were converted into shares of Excess Stock; and, as soon as reasonably practicable following the Corporation's receipt or withholding thereof, shall pay over to the Trust for the benefit of the Beneficiary the dividends so received or withheld, as the case may be. 6. Rights upon Liquidation. In the event of any voluntary or involuntary liquidation of, dissolution or winding up of, or any distribution of the assets of, the Corporation, each holder of shares of Excess Stock shall be entitled to receive, ratably with each other holder of shares of Common Stock, that portion of the assets of the Corporation that is available for distribution to the holders of Common Stock. The Trust shall distribute to the Prohibited Owner the amounts received upon such liquidation, dissolution, or winding up, or distribution; provided, however, that the Prohibited Owner shall not be entitled to receive amounts in excess of, in the case of a purported Transfer in which the Prohibited Owner gave value for shares of Common Stock and which Transfer resulted in the conversion of the shares into shares of Excess Stock, the price per share, if any, such Prohibited Owner paid for the shares of Common Stock (which, in the case of Common Stock that is paired, shall equal the price per Paired Share multiplied by the most recent Valuation Percentage) and, in the case of a Non-Transfer Event or Transfer in which the Prohibited Owner did not give value for such shares (e.g., if the shares were received through a gift or devise) and which Non- Transfer Event or Transfer, as the case may be, resulted in the conversion of the shares into shares of Excess Stock, the price per share equal to the Market Price on the date of such Non-Transfer Event or Transfer. Any remaining amount in such Trust shall be distributed to the Beneficiary. 7. Voting Rights. Each share of Excess Stock shall entitle the holder to the number of votes the holder would have, if such share of Excess Stock was a share of Common Stock, on all matters submitted to a vote at any meeting of stockholders. Except as otherwise required by law, the holders of shares of Excess Stock shall vote together with the holders of Common Stock as a single class on all such matters. The Trustee, as record holder of the Excess Stock, shall be entitled to vote all shares of Excess Stock. Subject to applicable law, any vote by a Prohibited Owner as a purported holder of shares of Common Stock prior to the discovery by the Corporation that the shares of Common Stock have been converted into shares of Excess Stock shall be rescinded and shall be void ab initio with respect to such shares of Excess Stock, and the Prohibited Owner shall be deemed to have given, as of the close of trading on the Trading Day prior to the date of the purported Transfer or Non-Transfer Event that results in the conversion of the shares of Common Stock into shares of Excess Stock and the transfer of such shares to a Trust pursuant to Sections (D)(1) and (D)(4) of this Article IV, an irrevocable proxy to the Trustee to vote the shares of Excess Stock in the manner in which the Trustee, in its sole and absolute discretion, desires. 8. Designation of Permitted Transferee. a. The Trustee shall have the exclusive and absolute right to designate a Permitted Transferee of any and all shares of Excess Stock if the Corporation fails to exercise its option with respect to such shares pursuant to Section (D)(10) hereof within the time period set forth therein. As soon as practicable, but in an orderly fashion A-7 so as not to materially adversely affect the Market Price of the shares of Excess Stock, the Trustee shall designate any Person as a Permitted Transferee; provided, however, that (i) the Permitted Transferee so designated purchases for valuable consideration (whether in a public or private sale) the shares of Excess Stock and (ii) the Permitted Transferee so designated may acquire such shares of Excess Stock without violating any of the restrictions set forth in Section (C)(2) of this Article IV and without such acquisition resulting in the conversion of the shares of Common Stock so acquired into shares of Excess Stock and the transfer of such shares to a Trust pursuant to Sections (D)(1) and (D)(4) of this Article IV. b. Upon the designation by the Trustee of a Permitted Transferee in accordance with the provisions of this Section (D)(8), the Trustee shall cause to be transferred to the Permitted Transferee that number of shares of Excess Stock acquired by the Permitted Transferee. Upon such transfer of the shares of Excess Stock to the Permitted Transferee, such shares of Excess Stock shall be automatically converted into an equal number of shares of Common Stock. Upon the occurrence of such a conversion of shares of Excess Stock into an equal number of shares of Common Stock, such shares of Excess Stock shall be retired and canceled, without any action required by the Board of Directors of the Corporation, and shall thereupon be restored to the status of authorized but unissued shares of Excess Stock and may be reissued by the Corporation as Excess Stock. c. The Trustee shall (i) cause to be recorded on the stock transfer books of the Corporation that the Permitted Transferee is the holder of record of such number of shares of Common Stock, and (ii) distribute to the Beneficiary any and all amounts held with respect to the shares of Excess Stock after making payment to the Prohibited Owner pursuant to Section (D)(9) of this Article IV. d. If the Transfer of shares of Excess Stock to a purported Permitted Transferee shall violate any of the transfer restrictions set forth in Section (C)(2) of this Article IV, such Transfer shall be void ab initio as to that number of shares of Excess Stock that cause the violation of any such restriction when such shares are converted into shares of Common Stock (as described in clause (b) above) and the purported Permitted Transferee shall be deemed to be a Prohibited Owner and shall acquire no rights in such shares of Excess Stock or Common Stock. Such shares of Common Stock shall be automatically converted into Excess Stock and transferred to the Trust from which they were originally Transferred. Such conversion and transfer to the Trust shall be effective as of the close of trading on the Trading Day prior to the date of the Transfer to the purported Permitted Transferee and the provisions of this Article IV shall apply to such shares, including, without limitation, the provisions of Sections D(8) through (D)(10) with respect to any future Transfer of such shares by the Trust. 9. Compensation to Record Holder of Shares of Stock that are Converted into Shares of Excess Stock. Any Prohibited Owner shall be entitled (following discovery of the shares of Excess Stock and subsequent designation of the Permitted Transferee in accordance with Section (D)(8) of this Article IV or following the acceptance of the offer to purchase such shares in accordance with Section (D)(10) of this Article IV) to receive from the Trustee following the sale or other disposition of such shares of Excess Stock the lesser of (i) (a) in the case of a purported Transfer in which the Prohibited Owner gave value for shares of Common Stock and which Transfer resulted in the conversion of such shares into shares of Excess Stock, the price per share, if any, such Prohibited Owner paid for the shares of Common Stock (which, in the case of paired Excess Stock, shall be determined based on the Valuation Percentage) and (b) in the case of a Non-Transfer Event or Transfer in which the Prohibited Owner did not give value for such shares (e.g., if the shares were received through a gift or devise) and which Non-Transfer Event or Transfer, as the case may be, resulted in the conversion of such shares into shares of Excess Stock, the price per share equal to the Market Price on the date of such Non-Transfer Event or Transfer or (ii) the price per share (which, in the case of paired Excess Stock, shall be determined based on the Valuation Percentage) received by the Trustee from the sale or other disposition of such shares of Excess Stock in accordance with this Section (D)(9) or Section (D)(10) of this Article IV. Any amounts received by the Trustee in respect of such shares of Excess Stock and in excess of such amounts to be paid the Prohibited Owner pursuant to this Section (D)(9) shall be distributed to the Beneficiary in accordance with the provisions of Section (D)(8) of this Article IV. Each Beneficiary and Prohibited Owner shall waive any and all claims that it may have against the Trustee and the Trust arising out of the disposition of shares of Excess Stock, except for claims arising out of the gross negligence or willful misconduct of, or any failure to make payments in accordance with this Section (D) of this Article IV by, such Trustee or the Corporation. A-8 10. Purchase Right in Excess Stock. Shares of Excess Stock shall be deemed to have been offered for sale to the Corporation or its designee, at a price per share equal to the lesser of (i) the price per share (which, in the case of paired Common Stock, shall be determined based on the Valuation Percentage) in the transaction that created such shares of Excess Stock (or, in the case of devise, gift or Non-Transfer Event, the Market Price at the time of such devise, gift or Non-Transfer Event) or (ii) the Market Price on the date the Corporation, or its designee, accepts such offer. The Corporation shall have the right to accept such offer for a period of 90 days following the later of (a) the date of the Non-Transfer Event or purported Transfer which results in such shares of Excess Stock or (b) the date on which the Corporation determines in good faith that a Transfer or Non-Transfer Event resulting in shares of Excess Stock has previously occurred, if the Corporation does not receive a notice of such Transfer or Non-Transfer Event pursuant to Section (D)(3) of this Article IV. E. Remedies Not Limited. Nothing contained in this Article IV shall limit the authority of the Corporation to take such other action as it deems necessary or advisable to protect the Corporation and the interests of its stockholders by preservation of the Corporation's status as a REIT and to ensure compliance with the requirements of the Pairing Agreement and with the restrictions set forth in Section C of this Article IV. F. Ambiguity. In the case of an ambiguity in the application of any of the provisions of this Article IV, including any definition contained in Section (C)(1) of this Article IV, the Board of Directors shall have the power to determine the application of the provisions of this Article IV with respect to any situation based on the facts known to it. G. Legend. The restrictions set forth in this Article IV shall be noted conspicuously on any certificate representing Common Stock in accordance with the requirements of the Delaware General Corporation Law. H. Severability. Each provision of this Article IV shall be severable and an adverse determination as to any such provision shall in no way affect the validity of any other provision. ARTICLE V Any and all right, title, interest and claim in or to any dividends declared by the corporation, whether in cash, stock, or otherwise, which are unclaimed by the stockholder entitled thereto for a period of six years after the close of business on the payment date, shall be and is deemed to be extinguished and abandoned; and such unclaimed dividends in the possession of the corporation, its transfer agents or other agents or depositories shall at such time become the absolute property of the corporation, free and clear of any and all claims of any persons whatsoever. ARTICLE VI In furtherance and not in limitation of the power conferred by statute, the Board of Directors is expressly authorized to make, alter, amend or repeal the by-laws of the corporation. ARTICLE VII Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, A-9 the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation. ARTICLE VIII The corporation shall indemnify its officers and directors to the full extent permitted by the Delaware General Corporation Law. ARTICLE IX Elections of directors need not be by written ballot unless the by-laws of the corporation so provide. ARTICLE X The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. ARTICLE XI No director of the Company shall be personally liable to the Company or its shareholders for monetary damages for breach of fiduciary duty by such director for corporate actions as a director; provided, however, that this Article XI shall not eliminate or limit the liability of a director to the extent provided by applicable law (1) for any breach of the director's duty of loyalty to the Company or its shareholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) under Section 174 of the General Corporation Law of Delaware, or (4) for any transaction from which the director derived an improper personal benefit. No amendment to repeal this Article XI shall apply to, or have any effect on, the liability or alleged liability of any director of the Company for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. ARTICLE XII A. Definitions. For purposes of this Article XII, the following terms shall have the meanings specified below: 1. "Affiliate" shall have the meaning ascribed to such term in Rule 12b-2 promulgated by the Securities and Exchange Commission ("SEC") under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). 2. "Affiliated Companies" shall mean those companies directly or indirectly affiliated or under common Ownership or Control with the Corporation, including, without limitation, subsidiaries, holding companies and intermediary companies (as those and similar terms are defined in the Gaming Laws of the applicable Gaming Jurisdictions) that are registered or licensed under applicable Gaming Laws. 3. "Gaming" or "Gaming Activities" shall mean the conduct of gaming and gambling activities, or the use of gaming devices, equipment and supplies in the operation of a casino, card club or other enterprise, including, without limitation, slot machines, gaming tables, cards, dice, gaming chips, player tracking systems, cashless wagering systems and related and associated equipment and supplies. 4. "Gaming Authorities" shall mean all international, foreign, federal, state and local regulatory and licensing bodies and agencies with authority over Gaming within any Gaming Jurisdiction. A-10 5. "Gaming Jurisdictions" shall mean all jurisdictions, domestic and foreign, and their political subdivisions, in which Gaming Activities are lawfully conducted. 6. "Gaming Laws" shall mean all laws, statutes and ordinances pursuant to which any Gaming Authority possesses regulatory and licensing authority over Gaming within any Gaming Jurisdiction, and all rules and regulations promulgated by such Gaming Authority thereunder. 7. "Gaming Licenses" shall mean all licenses, permits, approvals, authorizations, registrations, findings of suitability, franchises and entitlements issued by a Gaming Authority necessary for or relating to the conduct of Gaming Activities. 8. "Ownership or Control" (and derivatives thereof) shall mean (i) ownership of record, (ii) "beneficial ownership" as defined in Rule 13d-3 or Rule 16a- 1(a)(2) promulgated by the SEC under the Exchange Act, (iii) the power to direct and manage, by agreement, contract, agency or other manner, the voting or management rights or disposition of securities of the Corporation, and/or (iv) definitions of ownership or control under applicable Gaming Laws. 9. "Person" shall mean an individual, partnership, corporation, limited liability company, trust or any other entity. 10. "Redemption Date" shall mean the date by which the securities Owned or Controlled by an Unsuitable Person are to be redeemed by the Corporation. 11. "Redemption Notice" shall mean that notice of redemption served by the Corporation on an Unsuitable Person if a Gaming Authority requires the Corporation, or the Corporation deems it necessary or advisable, to redeem such Unsuitable Person's securities. Each Redemption Notice shall set forth (i) the Redemption Date; (ii) the number of shares of securities to be redeemed; (iii) the Redemption Price and the manner of payment therefor; (iv) the place where certificates for such shares shall be surrendered for payment; and (v) any other requirements of surrender of the certificates, including how they are to be endorsed, if at all. 12. "Redemption Price" shall mean the per share price for the redemption of any securities to be redeemed pursuant to this Article, which shall be that price (if any) required to be paid by the Gaming Authority making the finding of unsuitability, or if such Gaming Authority does not require a certain price per share to be paid, that sum deemed reasonable by the Corporation (which may include, in the Corporation's discretion, the original purchase price per share of the securities); provided, however, the Redemption Price, unless the Gaming Authority requires otherwise, shall in no event exceed (i) the closing sales price of the securities on the national securities exchange on which such shares are then listed on the date the notice of redemption is delivered to the Unsuitable Person by the Corporation, or (ii) if such shares are not then listed for trading on any national securities exchange, then the closing sales price of such shares as quoted in the NASDAQ National Market System, or (iii) if the shares are not then so quoted, then the mean between the representative bid and the ask price as quoted by NASDAQ or another generally recognized reporting system. The Redemption Price may be paid in cash, by promissory note, or both, as required by the applicable Gaming Authority and, if not so required, as the Corporation elects. 13. "Unsuitable Person" shall mean a Person who Owns or Controls any securities of the Corporation or any securities of or interest in any Affiliated Company (i) that is determined by a Gaming Authority to be unsuitable to Own or Control such securities or unsuitable to be connected with a Person engaged in Gaming Activities in that Gaming Jurisdiction, or (ii) who causes the Corporation or any Affiliated Company to lose or to be threatened with the loss of, or who, in the sole discretion of the Board of Directors of the Corporation, is deemed likely to jeopardize the Corporation's right to the use of or entitlement to, any Gaming License. B. Compliance with Gaming Laws. The Corporation, all Persons Owning or Controlling securities of the Corporation and any Affiliated Companies, and each director and officer of the Corporation and any Affiliated Companies shall comply with all requirements of the Gaming Laws in each Gaming Jurisdiction in which the Corporation or any Affiliated Companies conduct Gaming Activities. All securities of the Corporation shall be A-11 held subject to the requirements of such Gaming Laws, including any requirement that (i) the holder file applications for Gaming Licenses with, or provide information to, applicable Gaming Authorities, or (ii) that any transfer of such securities may be subject to prior approval by Gaming Authorities, and any transfer of securities of the Corporation in violation of any such approval requirement shall not be permitted and the purported transfer shall be void ab initio. C. Finding of Unsuitability. 1. The securities of the Corporation Owned or Controlled by an Unsuitable Person or an Affiliate of an Unsuitable Person shall be redeemable by the Corporation, out of funds legally available therefor, by appropriate action of the Board of Directors, to the extent required by the Gaming Authority making the determination of unsuitability or to the extent deemed necessary or advisable by the Corporation. If a Gaming Authority requires the Corporation, or the Corporation deems it necessary or advisable, to redeem such securities, the Corporation shall serve a Redemption Notice on the Unsuitable Person or its Affiliate and shall purchase the securities on the Redemption Date and for the Redemption Price set forth in the Redemption Notice. From and after the Redemption Date, such securities shall no longer be deemed to be outstanding and all rights of the Unsuitable Person or any Affiliate of the Unsuitable Person therein, other than the right to receive the Redemption Price, shall cease. The Unsuitable Person shall surrender the certificates for any securities to be redeemed in accordance with the requirements of the Redemption Notice. Notwithstanding the foregoing, so long as the Corporation and Hollywood Park Operating Company are a paired stock real estate investment trust and operating company, the Corporation may, in its sole discretion, convert any securities that are redeemable pursuant to this Section (C)(1) into shares of Excess Stock effective upon written notice to the Unsuitable Person or its Affiliate, and such shares of Excess Stock shall be transferred to a Trust for sale to a Permitted Transferee (as such terms are defined in Article IV) in accordance with Sections (D)(4) through (9) of Article IV. 2. Commencing on the date that a Gaming Authority serves notice of a determination of unsuitability or the loss or threatened loss of a Gaming License upon the Corporation, and until the securities Owned or Controlled by the Unsuitable Person or the Affiliate of an Unsuitable Person are Owned or Controlled by Persons found by such Gaming Authority to be suitable to own them, it shall be unlawful for the Unsuitable Person or any Affiliate of an Unsuitable Person (i) to receive any dividend, payment, distribution or interest with regard to the securities; (ii) to exercise, directly or indirectly or through any proxy, trustee, or nominee, any voting or other right conferred by such securities, and such securities shall not for any purposes be included in the securities of the Corporation entitled to vote, or (iii) to receive any remuneration in any form from the Corporation or an Affiliated Company for services rendered or otherwise. D. Issuance and Transfer of Securities. The Corporation shall not issue or transfer any securities or any interest, claim or charge thereon or thereto except in accordance with applicable Gaming Laws. The issuance or transfer of any securities in violation thereof shall be ineffective until (i) the Corporation shall cease to be subject to the jurisdiction of the applicable Gaming Authorities, or (ii) the applicable Gaming Authorities shall, by affirmative action, validate said issuance or transfer or waive any defect in said issuance or transfer. E. Indenture Restrictions. The Corporation shall cause to be placed in every indenture or other operative document relating to publicly traded securities (other than capital stock) of the Corporation a provision requiring that any Person or Affiliate of a Person who holds the indebtedness represented by that indenture and is found to be unsuitable to hold such interest shall have the interest redeemed or shall dispose of the interest in the Corporation in the manner set forth in the indenture or other document. F. Notices. All notices given by the Corporation pursuant to this Article, including Redemption Notices, shall be in writing and shall be deemed given when delivered by personal service or telegram, facsimile, overnight courier or first class mail, postage prepaid, to the Person's address as shown on the Corporation's books and records. G. Indemnification. Any Unsuitable Person and any Affiliate of an Unsuitable Person shall indemnify the Corporation and its Affiliated Companies for any and all costs, including attorneys' fees, incurred by the A-12 Corporation and its Affiliated Companies as a result of such Unsuitable Person's or Affiliate's continuing Ownership or Control or failure to promptly divest itself of any securities in the Corporation. H. Fiduciary Obligations; Contractual Arrangements; Etc. Nothing contained in this Article XII shall be construed (i) to relieve any Unsuitable Person (or Affiliate of such Person) from any fiduciary obligation imposed by law, (ii) to prohibit or affect any contractual arrangement which the Corporation may make from time to time with any holder of securities of the Corporation to purchase all or any part of shares of capital stock or other securities held by them, or (iii) to be in derogation of any action, past or future, which has been or may be taken by the Board of Directors or any holder of securities with respect to the subject matter of this Article XII. I. Injunctive Relief. The Corporation is entitled to injunctive relief in any court of competent jurisdiction to enforce the provisions of this Article and each holder of the securities of the Corporation shall be deemed to have acknowledged, by acquiring the securities of the Corporation, that the failure to comply with this Article will expose the Corporation to irreparable injury for which there is no adequate remedy at law and that the Corporation is entitled to injunctive relief to enforce the provisions of this Article. J. Legend. The restrictions set forth in this Article XII shall be noted conspicuously on any certificate representing securities of the Corporation in accordance with the requirements of the Delaware General Corporation Law and applicable Gaming Laws. A-13 APPENDIX B RESTATED CERTIFICATE OF INCORPORATION OF HOLLYWOOD PARK OPERATING COMPANY A DELAWARE CORPORATION ARTICLE I The name of the corporation is Hollywood Park Operating Company (hereinafter referred to as the "Corporation"). ARTICLE II The address of the Corporation's registered office in the State of Delaware is 30 Old Rudnick Lane, in the City of Dover, County of Kent. The name of the Corporation's registered agent at such address is CorpAmerica, Inc. ARTICLE III The nature of the business to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law, including, without limitation, the conduct of controlled gambling. ARTICLE IV The amount of the total authorized capital stock of the Corporation is 165,000,000 shares which are divided into four classes as follows: 40,000,000 shares of Preferred Stock having a par value of $.01 per share ("Preferred Stock"); 100,000,000 shares of Common Stock having a par value of $.01 per share ("Common Stock"); and 25,000,000 shares of Excess Common Stock having a par value of $.01 per share ("Excess Stock"). Upon effectiveness of this Restated Certificate of Incorporation, each presently issued and outstanding share of Common Stock shall be automatically subdivided into [ * ] shares of Common Stock. - -------- * A number equal to the number of outstanding shares of Hollywood Park, Inc. Common Stock at the time of the Reorganization, divided by 100. B-1 The voting powers, designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions of the above classes of stock are as follows: A. Preferred Stock The Board of Directors is expressly authorized, from time to time, (1) to fix the number of shares of one or more series of Preferred Stock; (2) to determine the designation of any such series; and (3) to determine or alter, without limitation or restriction, the voting powers, preferences and relative, participating, optional or other rights, or the qualifications, limitations or restrictions granted to or imposed upon any wholly unissued series of Preferred Stock; provided, however, no shares of any series of Preferred Stock may be authorized or issued unless (i) the certificate of designations relating to such series contains restrictions on ownership and transfer and conversion provisions applicable to such series comparable to those set forth in Sections (C) and (D) of this Article IV, and (ii) a corresponding series of Preferred Stock, to be issued in accordance with such conversion provisions upon a violation of such restrictions on ownership and transfer, is simultaneously authorized by filing of a certificate of designations. B. Common Stock 1. Each share of Common Stock shall be equal in respect of rights to dividends, when and as declared, in the form of cash, stock or other property of the Corporation. Subject to the rights of the holders of Preferred Stock, the holders of the Common Stock shall be entitled to receive, to the extent permitted by law, such dividends as may be declared from time to time by the Board of Directors. 2. Subject to the rights of the holders of Preferred Stock and Excess Stock, in the event of the voluntary or involuntary liquidation, dissolution, distribution of assets or winding up of the Corporation, after distribution in full of the preferential amount to be distributed to the holders of shares of the Preferred Stock, holders of the Common Stock shall be entitled to receive all the remaining assets of the Corporation of whatever kind available for distribution to stockholders, ratably in proportion to the number of shares of Common Stock held by them respectively. A consolidation, merger or reorganization of the Corporation with any other corporation or corporations, or a sale of all or substantially all of the assets of the Corporation, shall not be considered a dissolution, liquidation or winding up of the Corporation within the meaning of these provisions. 3. Except as may be otherwise required by law, each share of Common Stock shall entitle the holder to one vote in respect of each matter voted by the stockholders. C. Restrictions on Ownership and Transfer of Common Stock 1. Definitions. For purposes of this Article IV, the following terms shall have the meanings set forth below: "Beneficial Ownership" shall mean, with respect to any Person, ownership of shares of Common Stock equal to the sum of (i) the shares of Common Stock directly or indirectly owned by such Person, (ii) the number of shares of Common Stock treated as owned directly or indirectly by such Person through the application of the constructive ownership rules of Section 544 of the Internal Revenue Code of 1986, as amended (the "Code"), as modified by Section 856(h) of the Code, and (iii) the number of shares of Common Stock which such Person is deemed to beneficially own pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The terms "Beneficial Owner," "Beneficially Owns" and "Beneficially Owned" shall have correlative meanings. "Beneficiary" shall mean, with respect to any Trust, one or more organizations described in each of Section 170(b)(1)(A) (other than clauses (vii) and (viii) thereof) and Section 170(c)(2) of the Code that are named by the Corporation as the beneficiary or beneficiaries of such Trust, in accordance with the provisions of Section (D)(4) of this Article IV. "Constructive Ownership" shall mean ownership of shares of Common Stock by a Person who is or would be treated as a direct or indirect owner of such shares of Common Stock through the application of Section 318 B-2 of the Code, as modified by Section 856(d)(5) of the Code. The terms "Constructive Owner," "Constructively Owns" and "Constructively Owned" shall have correlative meanings. "Market Price" on any date shall mean the average of the Closing Price for the five consecutive Trading Days ending on such date. The "Closing Price" on any date shall mean the last sale price of the Common Stock, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices of the Common Stock, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the shares of Common Stock are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the shares of Common Stock are listed or admitted to trading or, if the shares of Common Stock are not listed or admitted to trading on any national securities exchange, the last quoted closing sales price of the Common Stock, or if not so quoted, the average of the high bid and low asked prices of the Common Stock in the over-the-counter market, as reported by the Nasdaq Stock Market, Inc. or, if such system is no longer in use, the principal other automated quotation system that may then be in use or, if the shares of Common Stock are not quoted by any such organization, the average of the closing bid and asked prices of such security as furnished by a professional market maker selected by the Board of Directors making a market in the shares of Common Stock. In the case of Common Stock that is paired, "Market Price" shall mean the "Market Price" for Paired Shares multiplied by the Valuation Percentage. "Non-Transfer Event" shall mean an event other than a purported Transfer that would cause any Person to Beneficially Own or Constructively Own shares of Common Stock in excess of the Ownership Limit or that would result in a violation of the ownership restrictions set forth in Sections (C)(2)(b)-(d) of this Article IV, including, but not limited to, (i) the granting of any option or entering into any agreement for the sale, transfer or other disposition of shares of Common Stock or (ii) the sale, transfer, assignment or other disposition of interests in any Person or of any securities or rights convertible into or exchangeable for shares of Common Stock that results in changes in Beneficial Ownership or Constructive Ownership of shares of Common Stock. "Ownership Limit" shall mean, with respect to the Common Stock, 9.8% of the number of outstanding shares of the Common Stock and the Excess Stock. For purposes of computing the percentage of shares of Common Stock that is Beneficially Owned by any Person, any shares of Common Stock that are deemed to be Beneficially Owned by such Person pursuant to Rule 13d-3 of the Exchange Act but which are not outstanding shall be deemed to be outstanding. "Paired Share" means a unit consisting of one share of Common Stock and one share of the common stock, $.01 par value, of Realty that are paired pursuant to the Pairing Agreement. "Pairing Agreement" shall mean the 1998 Pairing Agreement by and between the Corporation and Hollywood Park Realty Enterprises, Inc. ("Realty"), as amended from time to time in accordance with the provisions thereof. "Permitted Transferee" shall mean any Person designated as a Permitted Transferee in accordance with the provisions of Section (D)(8) of this Article IV. "Person" shall mean (a) an individual or any corporation, partnership, limited liability company, estate, trust, association, private foundation, joint stock company or any other entity and (b) a "group" as that term is defined for purposes of Rule 13d-5 of the Exchange Act. "Prohibited Owner" shall mean, with respect to any purported Transfer or Non-Transfer Event, any Person who is prevented from being or becoming the owner of record title to shares of Common Stock by the provisions of Section (D)(1) of this Article IV. "Restriction Termination Date" shall mean (i) the first day on which the Corporation is no longer a party to the Pairing Agreement, (ii) the first day on which the Pairing Agreement terminates, (iii) the first day on which B-3 the Board of Directors of Realty publicly announces that Realty will not elect to be taxed under the Code as a real estate investment trust (a "REIT"), or (iv) if Realty has already elected to be taxed as a REIT, the later of (A) the date as of which Realty voluntarily terminates such election or (B) the date on which Realty submits such termination to the Internal Revenue Service. "Trading Day" shall mean a day on which the principal national securities exchange on which shares of Common Stock are listed or admitted to trading is open for the transaction of business or, if shares of Common Stock are not listed or admitted to trading on any national securities exchange, any day other than a Saturday, a Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close. "Transfer" (as a noun) shall mean any sale, transfer, gift, assignment, devise or other disposition of shares of Common Stock, whether voluntary or involuntary, whether of record, constructively or beneficially and whether by operation of law or otherwise. "Transfer" (as a verb) shall have the correlative meaning. "Trust" shall mean any separate trust created and administered in accordance with the terms of Section (D) of this Article IV, for the exclusive benefit of any Beneficiary. "Trustee" shall mean any Person or entity unaffiliated with both the Corporation and any Prohibited Owner designated by the Corporation to act as trustee of any Trust, or any successor trustee thereof. The Trustee shall be designated by the Corporation and Realty in accordance with the Pairing Agreement. "Valuation Percentage" shall mean a fraction (expressed as a percentage) determined by dividing the value of a share of Common Stock most recently determined under Section 2.5 of the Pairing Agreement by the value of a Paired Share most recently determined under Section 2.5 of the Pairing Agreement. Any holder of Common Stock, upon delivery of a written request to the Corporation, shall be promptly notified by the Corporation of the Valuation Percentage then in effect. 2. Restriction on Ownership and Transfer. a. Except as provided in Section (C)(4) of this Article IV, until the Restriction Termination Date, (i) no Person shall Beneficially Own or Constructively Own outstanding shares of Common Stock in excess of the Ownership Limit and (ii) any Transfer (whether or not the result of a transaction entered into through the facilities of the New York Stock Exchange) that, if effective, would result in any Person Beneficially Owning or Constructively Owning shares of Common Stock in excess of the Ownership Limit shall be void ab initio as to the Transfer of that number of shares of Common Stock which would be otherwise Beneficially Owned or Constructively Owned by such Person in excess of the Ownership Limit and the intended transferee shall acquire no rights in such shares of Common Stock (which shares of Common Stock shall be subject to the provisions of Section (D) of this Article IV). b. Until the Restriction Termination Date, any Transfer (whether or not the result of a transaction entered into through the facilities of the New York Stock Exchange) of shares of Common Stock that are paired pursuant to the Pairing Agreement that, if effective, would result in Realty being "closely held" within the meaning of Section 856(h) of the Code shall be void ab initio as to the Transfer of that number of shares of Common Stock that are paired pursuant to the Pairing Agreement that would cause Realty to be "closely held" within the meaning of Section 856(h) of the Code, and the intended transferee shall acquire no rights in such shares of Common Stock (which shares of Common Stock shall be subject to the provisions of Section (D) of this Article IV). c. Until the Restriction Termination Date, any Transfer (whether or not the result of a transaction entered into through the facilities of the New York Stock Exchange) of shares of Common Stock that, if effective, would cause Realty to Constructively Own 10% or more of the ownership interests in a tenant of the real property of Realty or any direct or indirect subsidiary (whether a corporation, partnership, limited liability company or other entity) of Realty (a "SUBSIDIARY"), within the meaning of Section 856(d)(2)(B) of the Code, shall be void B-4 ab initio as to the Transfer of that number of shares of Common Stock that would cause Realty to Constructively Own 10% or more of the ownership interests in a tenant of the real property of Realty or a Subsidiary within the meaning of Section 856(d)(2)(B) of the Code, and the intended transferee shall acquire no rights in such shares of Common Stock (which shares of Common Stock shall be subject to the provisions of Section (D) of this Article IV). d. Until the Restriction Termination Date, any Transfer (whether or not the result of a transaction entered into through the facilities of the New York Stock Exchange) of shares of Common Stock that are paired pursuant to the Pairing Agreement that, if effective, would result in the shares of capital stock of Realty being beneficially owned (within the meaning of Section 856(a)(5) of the Code) by fewer than 100 persons within the meaning of Section 856(a)(5) of the Code shall be void ab initio and the intended transferee shall acquire no rights in such shares of Common Stock (which shares of Common Stock shall be subject to the provisions of Section (D) of this Article IV). 3. Owners Required To Provide Information. As long as any of the restrictions contained in Section (C)(2) of this Article IV is in effect: a. Every Beneficial Owner or Constructive Owner of more than 5%, or such lower percentages as may be required pursuant to regulations under the Code, of the outstanding shares of Common Stock shall, within 30 days after January 1 of each year, provide to the Corporation a written statement or affidavit stating the name and address of such Beneficial Owner or Constructive Owner, the number of shares of Common Stock Beneficially Owned or Constructively Owned, and a description of how such shares are held. Each such Beneficial Owner or Constructive Owner shall provide to the Corporation such additional information as the Corporation may request to ensure compliance with the restrictions in this Section C of this Article IV. b. Each Person who is a Beneficial Owner or Constructive Owner of shares of Common Stock and each Person (including the stockholder of record) who is holding shares of Common Stock for a Beneficial Owner or Constructive Owner shall provide to the Corporation a written statement or affidavit stating such information as the Corporation may request to ensure compliance with the restrictions set forth in this Section C of this Article IV. 4. Exception. The Board of Directors may exempt a Person from the Ownership Limit, provided that (A) such exemption is permitted by and made in accordance with the Pairing Agreement and (B) such Person agrees in writing that any violation or attempted violation of the restrictions contained in Sections (C)(2)(b) through (d) of this Article IV will result in the conversion of shares of Common Stock Beneficially Owned or Constructively Owned by such Person into shares of Excess Stock pursuant to Section (D)(1) of this Article IV and provides such other representations and undertakings as the Board of Directors may reasonably require. 5. New York Stock Exchange Transactions. Notwithstanding any provision contained herein to the contrary, nothing in this Certificate shall preclude the settlement of any transaction entered into through the facilities of the New York Stock Exchange. D. Excess Stock 1. Conversion into Excess Stock. a. If, notwithstanding the other provisions contained in this Article IV, during the period that any of the restrictions contained in Section (C)(2) of this Article IV is in effect, there is a purported Transfer or Non-Transfer Event such that any Person would either Beneficially Own or Constructively Own shares of Common Stock in excess of the Ownership Limit, then, (i) except as otherwise provided in Section (C)(4) of this Article IV, with respect to any such purported transfer, the purported transferee shall be deemed to be a Prohibited Owner and shall acquire no right or interest (or, in the case of a Non-Transfer Event, the Person holding record title to the shares of Common Stock Beneficially Owned or Constructively Owned by such Beneficial Owner or Constructive Owner by reason of such Non-Transfer Event, shall cease to own any right or interest) in such B-5 number of shares of Common Stock which would cause such Beneficial Owner or Constructive Owner to Beneficially Own or Constructively Own shares of Common Stock (rounded up to the nearest whole share) in excess of the Ownership Limit, (ii) such number of shares of Common Stock in excess of the Ownership Limit shall be automatically converted into an equal number of shares of Excess Stock, (iii) such shares of Excess Stock shall be transferred to a Trust in accordance with Section (D)(4) of this Article IV and (iv) the Prohibited Owner (or, if different, the record owner) shall submit certificates formerly representing such number of shares of Common Stock to the Corporation for registration in the name of the Trustee of the Trust. Such conversion into Excess Stock and transfer to a Trust shall be effective as of the close of trading on the Trading Day prior to the date of the Transfer or Non-Transfer Event, as the case may be. b. If, notwithstanding the other provisions contained in this Article IV, during the period that any of the restrictions contained in Section (C)(2) of this Article IV is in effect, there is a purported Transfer or Non-Transfer Event that, if effective, would (i) result in the capital stock of Realty being beneficially owned (within the meaning of Section 856(a)(5) of the Code) by fewer than 100 persons within the meaning of Section 856(a)(5) of the Code, (ii) result in Realty being "closely held" within the meaning of Section 856(h) of the Code or (iii) cause Realty to Constructively Own 10% or more of the ownership interest in a tenant of Realty's or a Subsidiary's real property within the meaning of Section 856(d)(2)(B) of the Code, then (w) the purported transferee shall be deemed to be a Prohibited Owner and shall acquire no right or interest (or, in the case of a Non-Transfer Event, the Person holding record title of the shares of Common Stock with respect to which such Non- Transfer Event occurred, shall cease to own any right or interest) in such number of shares of Common Stock (rounded up to the nearest whole share), the ownership of which by such purported transferee or record holder would (A) result in the shares of capital stock of Realty being beneficially owned (within the meaning of Section 856(a)(5) of the Code) by fewer than 100 persons within the meaning of Section 856(a)(5) of the Code, (B) result in Realty being "closely held" within the meaning of Section 856(h) of the Code or (C) cause Realty to Constructively Own 10% or more of the ownership interests in a tenant of Realty's or a Subsidiary's real property within the meaning of Section 856(d)(2)(B) of the Code, (x) such number of shares of Common Stock shall be automatically converted into an equal number of shares of Excess Stock, (y) such shares of Excess Stock shall be automatically transferred to a Trust in accordance with Section (D)(4) of this Article IV and (z) the Prohibited Owner shall submit certificates formerly representing such number of shares of Common Stock to the Corporation for registration in the name of the Trustee of the Trust. Such conversion into Excess Stock and transfer to a Trust shall be effective as of the close of trading on the Trading Day prior to the date of the Transfer or Non-Transfer Event, as the case may be. c. Upon the occurrence of such a conversion of shares of Common Stock into an equal number of shares of Excess Stock, such shares of Common Stock shall be retired and canceled, without any action required by the Board of Directors of the Corporation, and shall thereupon be restored to the status of authorized but unissued shares of Common Stock and may be reissued by the Corporation as that particular class or series of Equity Stock. 2. Remedies for Breach. If the Corporation, or its designees, shall at any time determine in good faith that a Transfer has taken place in violation of Section (C)(2) of this Article IV or that a Person intends to acquire or has attempted to acquire Beneficial Ownership or Constructive Ownership of any shares of Common Stock in violation of Section (C)(2) of this Article IV, the Corporation shall take such action as it deems advisable to refuse to give effect to or to prevent such Transfer or acquisition, including, but not limited to, refusing to give effect to such Transfer on the stock transfer books of the Corporation or instituting proceedings to enjoin such Transfer or acquisition. 3. Notice of Restricted Transfer. Any Person who acquires or attempts to acquire shares of Common Stock in violation of Section (C)(2) of this Article IV, or any Person who owns shares of Common Stock that were converted into shares of Excess Stock and transferred to a Trust pursuant to Sections (D)(1) and (D)(4) of this Article IV, shall immediately give written notice to the Corporation of such event and shall provide to the Corporation such other information as the Corporation may request in order to determine the effect, if any, of B-6 such Transfer or Non-Transfer Event, as the case may be, on the Corporation's compliance with the Pairing Agreement, including the effect on Realty's status as a real estate investment trust. 4. Ownership in Trust. Upon any Transfer or Non-Transfer Event that results in Common Stock being converted into Excess Stock pursuant to Section (D)(1) of this Article IV, such Excess Stock shall be, without further action by the Corporation or the owner of such shares, transferred to a Trust to be held for the exclusive benefit of the Beneficiary; provided separate Trusts with separate Beneficiaries shall be created, and such Excess Stock shall be allocated among the separate Trusts, to the extent necessary to prevent any Trust from holding, and any Beneficiary from Beneficially Owning or Constructively Owning, shares of Excess Stock in excess of the Ownership Limit. The Corporation and Realty shall name a Beneficiary for each Trust pursuant to the terms of the Pairing Agreement. Any conversion of shares of Common Stock into shares of Excess Stock and transfer to a Trust shall be effective as of the close of trading on the Trading Day prior to the date of the Transfer or Non-Transfer Event that results in the conversion. Shares of Excess Stock so held in trust shall remain issued and outstanding shares of stock of the Corporation. 5. Dividend Rights. Each share of Excess Stock shall be entitled to the same dividends and distributions (as to both timing and amount) as may be declared by the Board of Directors in respect of each share of Common Stock. The Trustee, as record holder of the shares of Excess Stock, shall be entitled to receive all dividends and distributions and shall hold all such dividends or distributions in trust for the benefit of the Beneficiary. The Prohibited Owner with respect to such shares of Excess Stock shall repay to the Trust the amount of any dividends or distributions received by it (i) that are attributable to any shares of Common Stock that have been converted into shares of Excess Stock and (ii) the record date of which was on or after the date that such shares were converted into shares of Excess Stock. The Corporation shall take all measures that it determines reasonably necessary to recover the amount of any such dividend or distribution paid to a Prohibited Owner, including, if necessary, withholding any portion of future dividends or distributions payable on shares of Common Stock Beneficially Owned or Constructively Owned by the Person who, but for the provisions of this Article IV, would Constructively Own or Beneficially Own the shares of Common Stock that were converted into shares of Excess Stock; and, as soon as reasonably practicable following the Corporation's receipt or withholding thereof, shall pay over to the Trust for the benefit of the Beneficiary the dividends so received or withheld, as the case may be. 6. Rights upon Liquidation. In the event of any voluntary or involuntary liquidation of, dissolution or winding up of, or any distribution of the assets of, the Corporation, each holder of shares of Excess Stock shall be entitled to receive, ratably with each other holder of shares of Common Stock, that portion of the assets of the Corporation that is available for distribution to the holders of Common Stock. The Trust shall distribute to the Prohibited Owner the amounts received upon such liquidation, dissolution, or winding up, or distribution; provided, however, that the Prohibited Owner shall not be entitled to receive amounts in excess of, in the case of a purported Transfer in which the Prohibited Owner gave value for shares of Common Stock and which Transfer resulted in the conversion of the shares into shares of Excess Stock, the price per share, if any, such Prohibited Owner paid for the shares of Common Stock (which, in the case of Common Stock that is paired, shall equal the price per Paired Share multiplied by the most recent Valuation Percentage) and, in the case of a Non-Transfer Event or Transfer in which the Prohibited Owner did not give value for such shares (e.g., if the shares were received through a gift or devise) and which Non- Transfer Event or Transfer, as the case may be, resulted in the conversion of the shares into shares of Excess Stock, the price per share equal to the Market Price on the date of such Non-Transfer Event or Transfer. Any remaining amount in such Trust shall be distributed to the Beneficiary. 7. Voting Rights. Each share of Excess Stock shall entitle the holder to the number of votes the holder would have, if such share of Excess Stock was a share of Common Stock, on all matters submitted to a vote at any meeting of stockholders. Except as otherwise required by law, the holders of shares of Excess Stock shall vote together with the holders of Common Stock as a single class on all such matters. The Trustee, as record holder of the Excess Stock, shall be entitled to vote all shares of Excess Stock. Subject to applicable law, any vote by a Prohibited Owner as a purported holder of shares of Common Stock prior to the discovery by the Corporation that the shares of Common Stock have been converted into shares of Excess Stock shall be rescinded and shall be void ab initio with respect to such shares of Excess Stock, and the Prohibited Owner shall be deemed B-7 to have given, as of the close of trading on the Trading Day prior to the date of the purported Transfer or Non-Transfer Event that results in the conversion of the shares of Common Stock into shares of Excess Stock and the transfer of such shares to a Trust pursuant to Sections (D)(1) and (D)(4) of this Article IV, an irrevocable proxy to the Trustee to vote the shares of Excess Stock in the manner in which the Trustee, in its sole and absolute discretion, desires. 8. Designation of Permitted Transferee. a. The Trustee shall have the exclusive and absolute right to designate a Permitted Transferee of any and all shares of Excess Stock if the Corporation fails to exercise its option with respect to such shares pursuant to Section (D)(10) hereof within the time period set forth therein. As soon as practicable, but in an orderly fashion so as not to materially adversely affect the Market Price of the shares of Excess Stock, the Trustee shall designate any Person as a Permitted Transferee; provided, however, that (i) the Permitted Transferee so designated purchases for valuable consideration (whether in a public or private sale) the shares of Excess Stock and (ii) the Permitted Transferee so designated may acquire such shares of Excess Stock without violating any of the restrictions set forth in Section (C)(2) of this Article IV and without such acquisition resulting in the conversion of the shares of Common Stock so acquired into shares of Excess Stock and the transfer of such shares to a Trust pursuant to Sections (D)(1) and (D)(4) of this Article IV. b. Upon the designation by the Trustee of a Permitted Transferee in accordance with the provisions of this Section (D)(8), the Trustee shall cause to be transferred to the Permitted Transferee that number of shares of Excess Stock acquired by the Permitted Transferee. Upon such transfer of the shares of Excess Stock to the Permitted Transferee, such shares of Excess Stock shall be automatically converted into an equal number of shares of Common Stock. Upon the occurrence of such a conversion of shares of Excess Stock into an equal number of shares of Common Stock, such shares of Excess Stock shall be retired and canceled, without any action required by the Board of Directors of the Corporation, and shall thereupon be restored to the status of authorized but unissued shares of Excess Stock and may be reissued by the Corporation as Excess Stock. c. The Trustee shall (i) cause to be recorded on the stock transfer books of the Corporation that the Permitted Transferee is the holder of record of such number of shares of Common Stock, and (ii) distribute to the Beneficiary any and all amounts held with respect to the shares of Excess Stock after making payment to the Prohibited Owner pursuant to Section (D)(9) of this Article IV. d. If the Transfer of shares of Excess Stock to a purported Permitted Transferee shall violate any of the transfer restrictions set forth in Section (C)(2) of this Article IV, such Transfer shall be void ab initio as to that number of shares of Excess Stock that cause the violation of any such restriction when such shares are converted into shares of Common Stock (as described in clause (b) above) and the purported Permitted Transferee shall be deemed to be a Prohibited Owner and shall acquire no rights in such shares of Excess Stock or Common Stock. Such shares of Common Stock shall be automatically converted into Excess Stock and transferred to the Trust from which they were originally Transferred. Such conversion and transfer to the Trust shall be effective as of the close of trading on the Trading Day prior to the date of the Transfer to the purported Permitted Transferee and the provisions of this Article IV shall apply to such shares, including, without limitation, the provisions of Sections D(8) through (D)(10) with respect to any future Transfer of such shares by the Trust. 9. Compensation to Record Holder of Shares of Stock that are Converted into Shares of Excess Stock. Any Prohibited Owner shall be entitled (following discovery of the shares of Excess Stock and subsequent designation of the Permitted Transferee in accordance with Section (D)(8) of this Article IV or following the acceptance of the offer to purchase such shares in accordance with Section (D)(10) of this Article IV) to receive from the Trustee following the sale or other disposition of such shares of Excess Stock the lesser of (i) (a) in the case of a purported Transfer in which the Prohibited Owner gave value for shares of Common Stock and which Transfer resulted in the conversion of such shares into shares of Excess Stock, the price per share, if any, such Prohibited Owner paid for the shares of Common Stock (which, in the case of paired Excess Stock, shall be determined based on the Valuation Percentage) and (b) in the case of a Non-Transfer Event or Transfer in which the B-8 Prohibited Owner did not give value for such shares (e.g., if the shares were received through a gift or devise) and which Non-Transfer Event or Transfer, as the case may be, resulted in the conversion of such shares into shares of Excess Stock, the price per share equal to the Market Price on the date of such Non-Transfer Event or Transfer or (ii) the price per share (which, in the case of paired Excess Stock, shall be determined based on the Valuation Percentage) received by the Trustee from the sale or other disposition of such shares of Excess Stock in accordance with this Section (D)(9) or Section (D)(10) of this Article IV. Any amounts received by the Trustee in respect of such shares of Excess Stock and in excess of such amounts to be paid the Prohibited Owner pursuant to this Section (D)(9) shall be distributed to the Beneficiary in accordance with the provisions of Section (D)(8) of this Article IV. Each Beneficiary and Prohibited Owner shall waive any and all claims that it may have against the Trustee and the Trust arising out of the disposition of shares of Excess Stock, except for claims arising out of the gross negligence or willful misconduct of, or any failure to make payments in accordance with this Section (D) of this Article IV by, such Trustee or the Corporation. 10. Purchase Right in Excess Stock. Shares of Excess Stock shall be deemed to have been offered for sale to the Corporation or its designee, at a price per share equal to the lesser of (i) the price per share (which, in the case of paired Common Stock, shall be determined based on the Valuation Percentage) in the transaction that created such shares of Excess Stock (or, in the case of devise, gift or Non-Transfer Event, the Market Price at the time of such devise, gift or Non-Transfer Event) or (ii) the Market Price on the date the Corporation, or its designee, accepts such offer. The Corporation shall have the right to accept such offer for a period of 90 days following the later of (a) the date of the Non-Transfer Event or purported Transfer which results in such shares of Excess Stock or (b) the date on which the Corporation determines in good faith that a Transfer or Non-Transfer Event resulting in shares of Excess Stock has previously occurred, if the Corporation does not receive a notice of such Transfer or Non-Transfer Event pursuant to Section (D)(3) of this Article IV. E. Remedies Not Limited. Nothing contained in this Article IV shall limit the authority of the Corporation to take such other action as it deems necessary or advisable to protect the Corporation and the interests of its stockholders to ensure compliance with the requirements of the Pairing Agreement and with the restrictions set forth in Section C of this Article IV. F. Ambiguity. In the case of an ambiguity in the application of any of the provisions of this Article IV, including any definition contained in Section (C)(1) of this Article IV, the Board of Directors shall have the power to determine the application of the provisions of this Article IV with respect to any situation based on the facts known to it. G. Legend. The restrictions set forth in this Article IV shall be noted conspicuously on any certificate representing Common Stock in accordance with the requirements of the Delaware General Corporation Law. H. Severability. Each provision of this Article IV shall be severable and an adverse determination as to any such provision shall in no way affect the validity of any other provision. ARTICLE V Any and all right, title, interest and claim in or to any dividends declared by the Corporation, whether in cash, stock, or otherwise, which are unclaimed by the stockholder entitled thereto for a period of six years after the close of business on the payment date, shall be and is deemed to be extinguished and abandoned; and such unclaimed dividends in the possession of the Corporation, its transfer agents or other agents or depositories shall at such time become the absolute property of the Corporation, free and clear of any and all claims of any persons whatsoever. B-9 ARTICLE VI In furtherance and not in limitation of the power conferred by statute, the Board of Directors is expressly authorized to make, alter, amend or repeal the By-laws of the Corporation. ARTICLE VII [This ARTICLE is intentionally omitted] ARTICLE VIII The Corporation shall indemnify its officers and directors to the fullest extent permitted by the Delaware General Corporation Law. ARTICLE IX Elections of directors need not be by written ballot unless the By-laws of the Corporation so provide. ARTICLE X The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. ARTICLE XI A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. Any repeal or modification of this provision shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. ARTICLE XII A. Definitions. For purposes of this Article XII, the following terms shall have the meanings specified below: 1. "Affiliate" shall have the meaning ascribed to such term in Rule 12b-2 promulgated by the Securities and Exchange Commission ("SEC") under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). 2. "Affiliated Companies" shall mean those companies directly or indirectly affiliated or under common Ownership or Control with the Corporation, including, without limitation, subsidiaries, holding companies and intermediary companies (as those and similar terms are defined in the Gaming Laws of the applicable Gaming Jurisdictions) that are registered or licensed under applicable Gaming Laws. B-10 3. "Gaming" or "Gaming Activities" shall mean the conduct of gaming and gambling activities, or the use of gaming devices, equipment and supplies in the operation of a casino, card club or other enterprise, including, without limitation, slot machines, gaming tables, cards, dice, gaming chips, player tracking systems, cashless wagering systems and related and associated equipment and supplies. 4. "Gaming Authorities" shall mean all international, foreign, federal, state and local regulatory and licensing bodies and agencies with authority over Gaming within any Gaming Jurisdiction. 5. "Gaming Jurisdictions" shall mean all jurisdictions, domestic and foreign, and their political subdivisions, in which Gaming Activities are lawfully conducted. 6. "Gaming Laws" shall mean all laws, statutes and ordinances pursuant to which any Gaming Authority possesses regulatory and licensing authority over Gaming within any Gaming Jurisdiction, and all rules and regulations promulgated by such Gaming Authority thereunder. 7. "Gaming Licenses" shall mean all licenses, permits, approvals, authorizations, registrations, findings of suitability, franchises and entitlements issued by a Gaming Authority necessary for or relating to the conduct of Gaming Activities. 8. "Ownership or Control" (and derivatives thereof) shall mean (i) ownership of record, (ii) "beneficial ownership" as defined in Rule 13d-3 or Rule 16a- 1(a)(2) promulgated by the SEC under the Exchange Act, (iii) the power to direct and manage, by agreement, contract, agency or other manner, the voting or management rights or disposition of securities of the Corporation, and/or (iv) definitions of ownership or control under applicable Gaming Laws. 9. "Person" shall mean an individual, partnership, corporation, limited liability company, trust or any other entity. 10. "Redemption Date" shall mean the date by which the securities Owned or Controlled by an Unsuitable Person are to be redeemed by the Corporation. 11. "Redemption Notice" shall mean that notice of redemption served by the Corporation on an Unsuitable Person if a Gaming Authority requires the Corporation, or the Corporation deems it necessary or advisable, to redeem such Unsuitable Person's securities. Each Redemption Notice shall set forth (i) the Redemption Date; (ii) the number of shares of securities to be redeemed; (iii) the Redemption Price and the manner of payment therefor; (iv) the place where certificates for such shares shall be surrendered for payment; and (v) any other requirements of surrender of the certificates, including how they are to be endorsed, if at all. 12. "Redemption Price" shall mean the per share price for the redemption of any securities to be redeemed pursuant to this Article, which shall be that price (if any) required to be paid by the Gaming Authority making the finding of unsuitability, or if such Gaming Authority does not require a certain price per share to be paid, that sum deemed reasonable by the Corporation (which may include, in the Corporation's discretion, the original purchase price per share of the securities); provided, however, the Redemption Price, unless the Gaming Authority requires otherwise, shall in no event exceed (i) the closing sales price of the securities on the national securities exchange on which such shares are then listed on the date the notice of redemption is delivered to the Unsuitable Person by the Corporation, or (ii) if such shares are not then listed for trading on any national securities exchange, then the closing sales price of such shares as quoted in the NASDAQ National Market System, or (iii) if the shares are not then so quoted, then the mean between the representative bid and the ask price as quoted by NASDAQ or another generally recognized reporting system. The Redemption Price may be paid in cash, by promissory note, or both, as required by the applicable Gaming Authority and, if not so required, as the Corporation elects. 13. "Unsuitable Person" shall mean a Person who Owns or Controls any securities of the Corporation or any securities of or interest in any Affiliated Company (i) that is determined by a Gaming Authority to be B-11 unsuitable to Own or Control such securities or unsuitable to be connected with a Person engaged in Gaming Activities in that Gaming Jurisdiction, or (ii) who causes the Corporation or any Affiliated Company to lose or to be threatened with the loss of, or who, in the sole discretion of the Board of Directors of the Corporation, is deemed likely to jeopardize the Corporation's right to the use of or entitlement to, any Gaming License. B. Compliance with Gaming Laws. The Corporation, all Persons Owning or Controlling securities of the Corporation and any Affiliated Companies, and each director and officer of the Corporation and any Affiliated Companies shall comply with all requirements of the Gaming Laws in each Gaming Jurisdiction in which the Corporation or any Affiliated Companies conduct Gaming Activities. All securities of the Corporation shall be held subject to the requirements of such Gaming Laws, including any requirement that (i) the holder file applications for Gaming Licenses with, or provide information to, applicable Gaming Authorities, or (ii) that any transfer of such securities may be subject to prior approval by Gaming Authorities, and any transfer of securities of the Corporation in violation of any such approval requirement shall not be permitted and the purported transfer shall be void ab initio. C. Finding of Unsuitability. 1. The securities of the Corporation Owned or Controlled by an Unsuitable Person or an Affiliate of an Unsuitable Person shall be redeemable by the Corporation, out of funds legally available therefor, by appropriate action of the Board of Directors, to the extent required by the Gaming Authority making the determination of unsuitability or to the extent deemed necessary or advisable by the Corporation. If a Gaming Authority requires the Corporation, or the Corporation deems it necessary or advisable, to redeem such securities, the Corporation shall serve a Redemption Notice on the Unsuitable Person or its Affiliate and shall purchase the securities on the Redemption Date and for the Redemption Price set forth in the Redemption Notice. From and after the Redemption Date, such securities shall no longer be deemed to be outstanding and all rights of the Unsuitable Person or any Affiliate of the Unsuitable Person therein, other than the right to receive the Redemption Price, shall cease. The Unsuitable Person shall surrender the certificates for any securities to be redeemed in accordance with the requirements of the Redemption Notice. Notwithstanding the foregoing, so long as the Corporation and Hollywood Park Realty Enterprises, Inc. are a paired stock real estate investment trust and operating company, the Corporation may, in its sole discretion, convert any securities that are redeemable pursuant to this Section (C)(1) into shares of Excess Stock effective upon written notice to the Unsuitable Person or its Affiliate, and such shares of Excess Stock shall be transferred to a Trust for sale to a Permitted Transferee (as such terms are defined in Article IV) in accordance with Sections (D)(4) through (9) of Article IV. 2. Commencing on the date that a Gaming Authority serves notice of a determination of unsuitability or the loss or threatened loss of a Gaming License upon the Corporation, and until the securities Owned or Controlled by the Unsuitable Person or the Affiliate of an Unsuitable Person are Owned or Controlled by Persons found by such Gaming Authority to be suitable to own them, it shall be unlawful for the Unsuitable Person or any Affiliate of an Unsuitable Person (i) to receive any dividend, payment, distribution or interest with regard to the securities; (ii) to exercise, directly or indirectly or through any proxy, trustee, or nominee, any voting or other right conferred by such securities, and such securities shall not for any purposes be included in the securities of the Corporation entitled to vote, or (iii) to receive any remuneration in any form from the Corporation or an Affiliated Company for services rendered or otherwise. D. Issuance and Transfer of Securities. The Corporation shall not issue or transfer any securities or any interest, claim or charge thereon or thereto except in accordance with applicable Gaming Laws. The issuance or transfer of any securities in violation thereof shall be ineffective until (i) the Corporation shall cease to be subject to the jurisdiction of the applicable Gaming Authorities, or (ii) the applicable Gaming Authorities shall, by affirmative action, validate said issuance or transfer or waive any defect in said issuance or transfer. E. Indenture Restrictions. The Corporation shall cause to be placed in every indenture or other operative document relating to publicly traded securities (other than capital stock) of the Corporation a provision requiring that any Person or Affiliate of a Person who holds the indebtedness represented by that indenture and is found to B-12 be unsuitable to hold such interest shall have the interest redeemed or shall dispose of the interest in the Corporation in the manner set forth in the indenture or other document. F. Notices. All notices given by the Corporation pursuant to this Article, including Redemption Notices, shall be in writing and shall be deemed given when delivered by personal service or telegram, facsimile, overnight courier or first class mail, postage prepaid, to the Person's address as shown on the Corporation's books and records. G. Indemnification. Any Unsuitable Person and any Affiliate of an Unsuitable Person shall indemnify the Corporation and its Affiliated Companies for any and all costs, including attorneys' fees, incurred by the Corporation and its Affiliated Companies as a result of such Unsuitable Person's or Affiliate's continuing Ownership or Control or failure to promptly divest itself of any securities in the Corporation. H. Fiduciary Obligations; Contractual Arrangements; Etc. Nothing contained in this Article XII shall be construed (i) to relieve any Unsuitable Person (or Affiliate of such Person) from any fiduciary obligation imposed by law, (ii) to prohibit or affect any contractual arrangement which the Corporation may make from time to time with any holder of securities of the Corporation to purchase all or any part of shares of capital stock or other securities held by them, or (iii) to be in derogation of any action, past or future, which has been or may be taken by the Board of Directors or any holder of securities with respect to the subject matter of this Article XII. I. Injunctive Relief. The Corporation is entitled to injunctive relief in any court of competent jurisdiction to enforce the provisions of this Article and each holder of the securities of the Corporation shall be deemed to have acknowledged, by acquiring the securities of the Corporation, that the failure to comply with this Article will expose the Corporation to irreparable injury for which there is no adequate remedy at law and that the Corporation is entitled to injunctive relief to enforce the provisions of this Article. J. Legend. The restrictions set forth in this Article XII shall be noted conspicuously on any certificate representing securities of the Corporation in accordance with the requirements of the Delaware General Corporation Law and applicable Gaming Laws. B-13 APPENDIX C BY-LAW PROVISIONS OF HOLLYWOOD PARK REALTY ENTERPRISES, INC. Section 7.2 Transfer of Stock. Subject to the restrictions on transfer of stock described in Section 7.6 of these by-laws and Article IV of the Corporation's Certificate of Incorporation, as amended from time to time (the "Certificate"), upon surrender to any transfer agent of the Corporation of a certificate of shares of the Corporation duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Section 7.6 Pairing. Until the limitations on transfer set forth in the 1998 Pairing Agreement (the "Pairing Agreement"), by and between the Corporation and Hollywood Park Operating Company ("Operating Company"), as amended from time to time in accordance with the provisions thereof, shall be terminated: (a) The shares of common stock, par value $.01, and preferred stock, par value $.01, of the Corporation and Operating Company (collectively, "Equity Stock") that are paired pursuant to the Pairing Agreement shall not be transferable, and shall not be transferred on the stock transfer books of the Corporation, unless (i) a simultaneous transfer is made by the same transferor to the same transferee or (ii) arrangements have been made with Operating Company for the acquisition by the transferee, of a like number of shares of the same class or series of Equity Stock of Operating Company and such shares are paired with one another. (b) Each certificate evidencing ownership of shares of Equity Stock of the Corporation that are paired pursuant to the Pairing Agreement and issued and not canceled prior to the effectiveness of the Pairing Agreement shall be deemed to evidence a like number of shares of the same class or series of Equity Stock of Operating Company. (c) A legend shall be placed on the face of each certificate evidencing ownership of shares of Equity Stock of the Corporation that are paired pursuant to the Pairing Agreement referring to the restrictions on transfer set forth herein. (d) Notwithstanding the foregoing, the Corporation may issue or transfer shares of its Equity Stock to Operating Company without regard to the restrictions of this Section 7.6. (e) To the extent that a paired share of common stock or preferred stock of the Corporation is converted into, respectively, (i) a share of excess common stock of the Corporation in accordance with the provisions of Article IV of the Certificate or (ii) a share of preferred stock of the Corporation designated as excess preferred stock (together with excess common stock, "Excess Stock") in accordance with comparable provisions of any certificate of designations governing the Corporation's preferred stock, such share of Excess Stock of the Corporation, together with the corresponding share of Excess Stock of Operating Company, which has been converted from a share of Equity Stock of Operating Company in accordance with the Certificate of Incorporation (or the applicable certificate of designations of the preferred stock) of Operating Company and the Pairing Agreement, shall be automatically transferred to a trust established by the Corporation and Operating Company for such purpose in accordance with Article IV of the Certificate (or comparable provisions of the applicable certificate of designations of the Corporations' preferred stock). C-1 APPENDIX D BY-LAW PROVISIONS OF HOLLYWOOD PARK OPERATING COMPANY Section 7.2 Transfer of Stock. Subject to the restrictions on transfer of stock described in Section 7.6 of these by-laws and Article IV of the Corporation's Certificate of Incorporation, as amended from time to time (the "Certificate"), upon surrender to any transfer agent of the Corporation of a certificate of shares of the Corporation duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Section 7.6 Pairing. Until the limitations on transfer set forth in the 1998 Pairing Agreement (the "Pairing Agreement"), by and between the Corporation and Hollywood Park Realty Enterprises, Inc. ("Realty"), as amended from time to time in accordance with the provisions thereof, shall be terminated: (a) The shares of common stock, par value $.01, and preferred stock, par value $.01, of the Corporation and Realty (collectively, "Equity Stock") that are paired pursuant to the Pairing Agreement shall not be transferable, and shall not be transferred on the stock transfer books of the Corporation, unless (i) a simultaneous transfer is made by the same transferor to the same transferee or (ii) arrangements have been made with Realty for the acquisition by the transferee, of a like number of shares of the same class or series of Equity Stock of Realty and such shares are paired with one another. (b) Each certificate evidencing ownership of shares of Equity Stock of the Corporation that are paired pursuant to the Pairing Agreement and issued and not canceled prior to the effectiveness of the Pairing Agreement shall be deemed to evidence a like number of shares of the same class or series of Equity Stock of Realty. (c) A legend shall be placed on the face of each certificate evidencing ownership of shares of Equity Stock of the Corporation that are paired pursuant to the Pairing Agreement referring to the restrictions on transfer set forth herein. (d) Notwithstanding the foregoing, the Corporation may issue or transfer shares of its Equity Stock to Realty without regard to the restrictions of this Section 7.6. (e) To the extent that a paired share of common stock or preferred stock of the Corporation is converted into, respectively, (i) a share of excess common stock of the Corporation in accordance with the provisions of Article IV of the Certificate or (ii) a share of preferred stock of the Corporation designated as excess preferred stock (together with excess common stock, "Excess Stock") in accordance with comparable provisions of any certificate of designations governing the Corporation's preferred stock, such share of Excess Stock of the Corporation, together with the corresponding share of Excess Stock of Realty, which has been converted from a share of Equity Stock of Realty in accordance with the Certificate of Incorporation (or the applicable certificate of designations of the preferred stock) of Realty and the Pairing Agreement, shall be automatically transferred to a trust established by the Corporation and Realty for such purpose in accordance with Article IV of the Certificate (or comparable provisions of the applicable certificate of designations of the Corporations' preferred stock). D-1 APPENDIX E HOLLYWOOD PARK OPERATING COMPANY 1998 STOCK OPTION PLAN 1. Purpose. The purpose of this 1998 Stock Option Plan (the "Plan") of Hollywood Park Operating Company, a Delaware corporation (the "Company"), is to secure for the Company and its stockholders the benefits arising from stock ownership by selected key employees, directors, consultants, advisors, and service providers of the Company or its subsidiaries, as the Committee (as hereinafter defined) may from time to time determine. The Plan will provide a means whereby such persons may purchase paired shares of the Common Stock of the Company and of the Common Stock of the Hollywood Park Realty Enterprises, Inc. ("HP Realty") upon the exercise of options granted hereunder. 2. Administration. 2.1 The Plan shall be administered by a committee of the Board of Directors of the Company (the "Board") consisting of two or more directors of the Company (the "Committee") who are both "non-employee directors" within the meaning of Rule 16b-3 ("Rule 16b-3") promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and "outside directors" within the meaning of Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code"). Any action of the Committee with respect to administration of the Plan shall be taken by a majority vote or unanimous written consent of its members. 2.2 Subject to the express provisions of the Plan, the Committee shall have the full, absolute and unconditional discretion and authority (i) to construe and interpret the Plan, (ii) to define the terms used herein, (iii) to prescribe, amend and rescind rules and regulations relating to the Plan, (iv) to determine the individuals to whom and the time or times at which options shall be granted, the terms and provisions of the option agreements (which need not be identical), whether any such option shall include an incentive stock option component, the number of shares to be subject to each option, the option price, the number of installments, if any, in which each option may be exercised, and the duration of each option, (v) to approve and determine the duration of leaves of absence which may be granted to participants without constituting a termination of their employment or providing of services for the purposes of the Plan, and (vi) to make all other determinations necessary or advisable for the administration of the Plan. All determinations and interpretations made by the Committee shall be binding and conclusive on all participants in the Plan and their legal representatives and beneficiaries. 3. Options to Purchase Paired Shares; Shares Subject to the Plan. 3.1 Each option granted under this Plan shall consist of two component stock options: an option to purchase shares of the common stock of the Company ("Company Common Stock"), and an option to purchase an equal number of the shares of the Common Stock of HP Realty ("HP Realty Common Stock"). Except as otherwise specifically permitted in this Plan, each component option shall be subject to the same terms and conditions as the other component option. Each component option may be exercised, terminated, cancelled, forfeited, transferred or otherwise disposed of, or lapse, only as, when, and to the same extent as the other component option. Upon the exercise of an option, the Company will issue the shares of the Company Common Stock covered by the exercise directly to the optionholder, and will purchase from HP Realty, for delivery to the optionholder, the equal number of shares of HP Realty Common Stock covered by the exercise. The shares of Company Common Stock purchased on the exercise of an option shall be paired with the shares of HP Realty Common Stock purchased on such exercise under the 1998 Pairing Agreement between the Company and HP Realty (the "Pairing Agreement"). E-1 3.2 The Committee may designate certain component options to purchase Company Common Stock as incentive stock options under Section 422 of the Code. All other options (including all component options to purchase HP Realty Common Stock) shall constitute non-qualified stock options. Subject to adjustment as provided in Section 16 hereof, the aggregate number of shares of Company Common Stock which may be issued upon exercise of all options under the Plan shall not exceed 900,000 shares less the aggregate number of shares covered by all options granted and not cancelled (whether or not exercised) under the 1996 Stock Option Plan of HP Realty (formerly Hollywood Park, Inc.) as of the date this Plan first becomes effective under Section 18. If any option granted under the Plan shall expire or terminate for any reason, without having been exercised in full, the unpurchased shares subject thereto shall again be available for options to be granted under the Plan. All options granted under the Plan shall be granted within 10 years from the earlier of its adoption by the Board of the Company or its approval by the holders of the outstanding voting stock of the Company in accordance with Section 18. No option shall be granted in violation of any restriction set forth in the Company's Restated Certificate of Incorporation, and any purported grant of an option in violation of such restrictions shall be null and void from the date of such purported grant. Any acquisition of Common Stock by an optionholder or any person related to an optionholder (as determined under the provisions of the Company's Restated Certificate of Incorporation) shall be subject to all restrictions and conditions set forth in the Company's Restated Certificate of Incorporation. 4. Maximum Annual Grants for Each Participant. No participant may receive grants during any fiscal year of the Company or portion thereof of options to purchase more than 90,000 shares of Company Common Stock, adjusted, if necessary, pursuant to Section 16. If an option is cancelled, the cancelled option continues to be counted against the maximum number of shares for which options may be granted to a participant during any such fiscal year or portion thereof. If the exercise price of an option is reduced after the grant of the option, the repricing of the option shall be treated as a cancellation of the option and the grant of a new option for purposes of applying the limitation imposed by this Section 4. This Section 4 is intended to comply with the requirements of Treasury Regulation (S)1.162- 27(e)(2)(vi), and shall be interpreted as required to accomplish such compliance. 5. Eligibility and Participation. 5.1 All key employees, directors, consultants, advisors, of the Company or of any "Subsidiary Corporation" (as defined in Section 424(f) of the Code), or other persons who render services to the Company or a Subsidiary Corporation (including employees of HP Realty who also render services to the Company or to a Subsidiary Corporation) shall be eligible for selection to participate in the Plan, except that only regular employees of the Company or a Subsidiary Corporation may receive incentive stock options under the Plan. An individual who has been granted an option may, if such individual is otherwise eligible, be granted an additional option or options if the Committee shall so determine, subject to the other provisions of the Plan. Such options may be granted in lieu of outstanding options previously granted under this Plan or may be in addition to such options. 5.2 Nothing contained in this Plan (or in any option granted pursuant to this Plan) shall confer upon any optionholder who is an employee any right to continue in the employ of the Company or of any Subsidiary Corporation, or interfere in any way with the right of the Company or any Subsidiary Corporation to terminate his employment at any time or to increase or decrease his compensation from the rate in existence at the time of the granting of an option. Nothing contained in this Plan (or in any option granted pursuant to this Plan) shall affect any contractual rights of an optionholder who is an employee. 5.3 Nothing contained in this Plan (or in any option granted pursuant to this Plan) shall confer upon any optionholder who is not an employee the right to continue serving as a director, consultant, advisor, or service provider to or of the Company or any Subsidiary Corporation, or interfere in any way with the right of the Company or any Subsidiary Corporation to remove a director, consultant, advisor, or service provider. Nothing contained in this Plan (or in any option granted pursuant to this Plan) shall affect any contractual rights of an optionholder who is a director, consultant, advisor, or service provider. E-2 6. Duration of Options. Each option shall expire on such date as the Committee may determine, and shall be subject to earlier termination as provided herein; provided, however, that (a) each option shall expire in any event within 10 years of the date on which such option is granted, and (b) component options to purchase shares of Company Common Stock which are incentive stock options (and the corresponding component options to purchase shares of HP Realty Common Stock) granted to an employee owning more than 10% of the total combined voting power of all classes of stock of the Company or its parent corporation or any Subsidiary Corporation (a "10% Shareholder") shall expire in any event within five years of the date of grant. The restrictions set forth in the Company's Restated Certificate of Incorporation currently prohibit any person from becoming a 10% Shareholder, and the provisions of this Plan regarding 10% Shareholders are included only to govern cases which may arise if such restrictions lapse, terminate, or are deleted by amendment from the Restated Certificate of Incorporation. 7. Purchase Price. 7.1 The purchase price of the Company Common Stock and HP Realty Common Stock covered by each option shall be determined by the Committee, but (a) the exercise price of an option which includes an incentive stock option component shall be not less than 100% of the fair market value (as determined under Section 9) of the Company Common Stock and HP Realty Common Stock covered by such option on the date such option is granted, and (b) the exercise price of an option which includes an incentive stock option component and which is granted to a 10% Shareholder shall not be less than 110% of the fair market value (as determined under Section 9) of the Company Common Stock and HP Realty Common Stock covered by such option on the date such option is granted. 7.2 The purchase price of the shares upon exercise of an option shall be paid in full at the time of exercise in cash or by check payable to the order of the Company, or, subject in each case to the approval of the Committee in its sole discretion, (i) by delivery of paired shares of Company Common Stock and HP Realty Common Stock already owned by, and in the possession of the optionholder, (ii) by a five-year, full- recourse promissory note, bearing interest at a rate to be determined by the Committee in its discretion, made by optionholder in favor of the Company, secured by the shares issuable upon exercise or other property, or (iii) through a "cashless exercise," in any case complying with applicable law (including, without limitation, state and federal margin requirements), or any combination thereof. Paired shares of Company Common Stock and HP Realty Common Stock used to satisfy the exercise price of an option shall be valued at their fair market value determined (in accordance with Section 9) on the date of exercise. Upon the delivery by an optionholder to the Company of paired shares of Company Common Stock and HP Realty Common Stock to satisfy the exercise price of an option (or to satisfy a withholding tax liability if permitted by the Committee under Section 10), the Company shall immediately sell the shares of the HP Realty Common Stock to HP Realty. 8. Exercise of Options. 8.1 Subject to the restriction set forth in Section 8.2, each option granted under this Plan shall be exercisable, and the total number of shares subject thereto shall be purchasable, in such installments (which need not be equal) during the period prior to its expiration date as the Committee shall determine. Unless otherwise determined by the Committee, if the optionholder shall not in any given installment period purchase all of the shares which the optionholder is entitled to purchase in such installment period, then the optionholder's right to purchase any shares not purchased in such installment period shall continue until the expiration date or earlier termination of the optionholder's option. No option or installment thereof may be exercised except in respect of whole shares, and fractional share interest shall be disregarded except that they may be accumulated in accordance with the preceding sentence. No partial exercise of any option may be for less than 100 shares. E-3 8.2 The aggregate fair market value (determined at the time the options are granted) of the shares of Company Common Stock covered by incentive stock option components granted to any one employee under this Plan or any other incentive stock option plan of the Company which may become exercisable for the first time in any one calendar year shall not exceed $100,000; provided, however, that if the Code or the regulations thereunder shall permit a greater amount of incentive stock options to vest in any calendar year, then such higher limit shall be applicable, subject to the provisions of the specific option agreement. 9. Fair Market Value of Common Stock. The fair market value of paired shares of Company Common Stock and HP Realty Common Stock shall be determined for purposes of the Plan by reference to the closing price on the principal stock exchange on which such paired shares are then listed, or if such paired shares are not then listed on a stock exchange, by reference to the closing price (if a National Market issue) or the mean between the bid and asked price (if other over-the-counter issue) of a paired share as supplied by the National Association of Securities Dealers through NASDAQ (or its successor in function), in each case as reported by The Wall Street Journal, for the business day the option is granted or exercised, or on the next preceding day on which such stock is traded or listed if none of such stock was traded on the day such option was granted or exercised. If, for any reason, no such price is available, the Committee shall determine the fair market value of paired shares in such other manner as the Committee may deem appropriate. If it becomes necessary to determine the fair market value of shares of HP Realty Common Stock separately from the fair market value of Company Common Stock, or vice versa, the Committee shall make such determination in accordance with the provisions of the Pairing Agreement. 10. Withholding Tax. The Company shall have the right to take whatever steps the Committee deems necessary or appropriate to comply with all applicable federal, state, local, and employment tax withholding requirements, and the Company's obligations to deliver shares upon the exercise of options under this Plan shall be conditioned upon compliance with all such withholding tax requirements. Without limiting the generality of the foregoing, upon (i) the disposition by an employee or other person of paired shares of Company Common Stock and HP Realty Common Stock acquired pursuant to the exercise of an option containing an incentive stock option component granted pursuant to the Plan within two years of the granting of the option or within one year after exercise of the option, or (ii) the exercise of options, the Company shall have the right to withhold taxes from any other compensation or other amounts which it may owe to the employee or other person, or to require such employee or such other person to pay to the Company the amount of any taxes which the Company may be required to withhold with respect to such shares. Without limiting the generality of the foregoing, the Committee in its discretion may authorize a participant to satisfy all or part of any withholding tax liability by (A) having the Company withhold from the shares which would otherwise be issued on the exercise of an option that number of shares having a fair market value as of the date the withholding tax liability arises equal to or less than the amount of the withholding tax liability, or (B) by delivering to the Company previously-owned and unencumbered paired shares of Company Common Stock and HP Realty Common Stock having a fair market value as of the date the withholding tax liability arises equal to or less than the amount of the withholding tax liability. 11. Non-Transferability. 11.1 An option granted under the Plan which includes an incentive stock option component shall, by its terms, be non-transferable by the optionholder, either voluntarily or by operation of law, other than by will or the laws of descent and distribution, and shall be exercisable during the optionholder's lifetime only by the optionholder, regardless of any community property interest therein of the spouse of the optionholder, or such spouse's successors in interest. If the spouse of the optionholder shall have acquired a community property interest in such option, the optionholder, or the optionholder's permitted successors in interest, may exercise the option on behalf of the spouse of the optionholder or such spouse's successors in interest. E-4 11.2 An option granted under the Plan which does not include an incentive stock option component shall, by its terms, be non-transferable by the optionholder, either voluntarily or by operation of law, other than by will or the laws of descent and distribution or pursuant to a "qualified domestic relations order" as defined in Section 414(p) of the Code, and shall be exercisable during the optionholder's lifetime only by the optionholder, or, to the extent permitted by the Committee or by the terms of the option agreement, the spouse of the optionholder who obtained the option pursuant to such a qualified domestic relations order described herein or pursuant to Section 13. 11.3 At the discretion of the Committee, any option agreement may contain restrictions on transfer of the shares issuable upon exercise of the option, including a right of first refusal and/or a right of repurchase by the Company. 11.4 Notwithstanding the foregoing, to the extent that the Committee so authorizes at the time an option which does not include an incentive stock option component is granted or amended, such option may be assigned, in connection with the optionholder's estate plan, in whole or in part, during the optionholder's lifetime to one or more members of the optionholder's immediate family or to a trust established exclusively for one or more of such immediate family members. Rights under the assigned portion may be exercised by the person or persons who acquire a proprietary interest in such option pursuant to the assignment. The terms applicable to the assigned portion shall be the same as those in effect for the option immediately before such assignment and shall be set forth in such documents issued to the assignee as the Committee deems appropriate. For purposes of this Section 11, the term "immediate family" means an individual's spouse, children, stepchildren, grandchildren and parents. 11.5 Any option transferred pursuant to a qualified domestic relations order, or to members of the immediate family or to a trust for their benefit, pursuant to this Section 11 shall continue to be subject to the provisions governing the grant to the original grantee, including without limitation, the provisions governing exercisability, vesting and termination (which shall be determined by reference to the employment or service-providing status of the original grantee), unless the option agreement or the Committee provides otherwise. 12. Termination of Employment or Services Rendered. If an optionholder ceases to be employed by the Company or any of its Subsidiary Corporations, or ceases to render services to the Company or any of its Subsidiary Corporations in any capacity, for any reason other than the optionholder's death or permanent disability (within the meaning of Section 22(e)(3) of the Code), the optionholder's options shall be exercisable for a period of three months (unless otherwise specified by the Committee in an individual stock option agreement) after the date the optionholder ceases to be an employee or service provider of the Company or any of its Subsidiary Corporations (unless by its terms it sooner expires) to the extent exercisable on the date of such cessation of employment or providing of service and shall thereafter expire and be void and of no further force or effect. A leave of absence approved in writing by the Committee shall not be deemed a termination of employment or of the providing of services for the purposes of this Section 12, but no option may be exercised during any such leave of absence, except during the first three months thereof. 11. Death or Permanent Disability of Option Holder. If an optionholder dies or becomes permanently disabled (within the meaning of Section 22(e)(3) of the Code) while the optionholder is employed by the Company or any of its Subsidiary Corporations, the optionholder's options shall be exercisable for a period of 12 months (unless otherwise specified by the Committee in an individual stock option agreement) after the date of such death or permanent disability (unless by its terms it sooner expires) to the extent exercisable on the date of death or permanent disability and shall thereafter expire and be void and of no further force or effect. During such period after death, such options may, to the extent that they remained unexercised (but exercisable by the optionholder according to their terms) on the date of such death, be exercised by the person or persons to whom the optionholder's rights under the options shall pass by the optionholder's will or by the laws of descent and distribution. E-5 14. Shares to be Issued in Compliance with Securities Laws and Exchange Rules. At the discretion of the Committee, any option agreement may provide that the optionholder (and any transferee), by accepting such option, represents and agrees that none of the shares purchased upon exercise of the option will be acquired with a view to any sale, transfer or distribution of said shares in violation of the Securities Act of 1933, as amended (the "Securities Act"), and the rules and regulations promulgated thereunder, or any applicable state "blue sky" laws, and the person entitled to exercise the same shall furnish evidence satisfactory to the Company (including a written and signed representation) to that effect in form and substance satisfactory to the Company, including an indemnification of the Company in the event of any violation of the Securities Act or state blue sky laws by such person. The Company shall use its reasonable efforts to take all necessary and appropriate action to assure that the shares issuable upon the exercise of any option or Stock Purchase Right shall be issued in full compliance with the Securities Act, state blue sky laws and all applicable listing requirements of any principal securities exchange on which shares of the same class are listed. No shares shall be sold, issued or delivered upon the exercise of any option unless and until there shall have been full compliance with any then- applicable requirements of the Securities Act (whether by registration or satisfaction of exemption conditions), all applicable listing requirements of any national securities exchange on which shares of the same class are then listed, and any other requirements of law or of any regulatory bodies having jurisdiction over such sale, issuance and delivery. 15. Privileges of Stock Ownership. No person entitled to exercise any option granted under the Plan shall have any of the rights or privileges of a stockholder of the Company in respect of any shares of stock issuable upon exercise of such option until such optionholder has become the holder of record of such shares. No adjustment shall be made for dividends or distributions of rights in respect of such shares if the record date is prior to the date on which such optionholder becomes the holder of record, except as set forth in Paragraph 16 hereof. 16. Adjustments. 16.1 If (a) the outstanding shares of the Company Common Stock are increased, decreased, changed into or exchanged for a different number or kind of shares or securities of the Company or of any successor corporation, and there is a corresponding increase, decrease, change, or exchange in the HP Realty Common Stock, through reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split, merger, spin-off, consolidation, combination, exchange of shares, or other similar transaction, or (b) by reason of the termination of the Pairing Agreement or otherwise, the Company Common Stock ceases to be paired with the HP Realty Common Stock, the Committee shall make an appropriate and proportionate adjustment in the maximum number and kind of shares as to which options may be granted under this Plan, including the maximum number that may be granted hereunder or to any one participant. A corresponding adjustment changing the number or kind of shares allocated to unexercised options or portions thereof, which shall have been granted prior to any such change, shall likewise be made, to the end that the optionee's proportionate interest shall be maintained as before the occurrence of such events. Any such adjustment in the outstanding options shall be made without change in the aggregate purchase price applicable to the unexercised portion of the option but with a corresponding adjustment in the price for each share or other unit of any security covered by the option, provided, however, that each such adjustment in the number and kind of shares subject to outstanding options which include incentive stock option components, including any adjustment in the option price, shall be made in such a manner as not to constitute a "modification" as defined in Section 424(h) of the Code. 16.2 Upon the happening of a "Corporate Transaction" (as defined below), the Plan shall terminate, all options theretofore granted hereunder shall terminate, unless the Committee provides, in its discretion, in the individual option agreements, or otherwise in writing in connection with such Corporate Transaction, for one or more of the following alternatives: (i) for the options theretofore granted to become immediately exercisable notwithstanding the provisions of Section 8; (ii) for the assumption by the successor corporation of the options theretofore granted, or the substitution by such corporation for such options of new options covering the stock of E-6 the successor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and prices; (iii) for the continuance of the Plan by such successor corporation, in which event the Plan and the options theretofore granted shall continue in the manner and under the terms so provided; or (iv) for the payment in cash or stock in lieu of and in complete satisfaction of such options. A "Corporate Transaction" shall mean the occurrence of any of the following: (A) Any "Person" or "Group" (as such terms are defined in Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) is or becomes the "Beneficial Owner" (within the meaning of Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company, or of any entity resulting from a merger or consolidation involving the Company, representing more than fifty percent (50%) of the combined voting power of the then outstanding securities of the Company or such entity. (B) The individuals who, as of the date hereof, are members of the Board (the "Existing Directors"), cease, for any reason, to constitute more than fifty percent (50%) of the number of authorized directors of the Company as determined in the manner prescribed in the Company's Certificate of Incorporation and Bylaws; provided, however, that if the election, or nomination for election, by the Company's stockholders of any new director was approved by a vote of at least fifty percent (50%) of the Existing Directors, such new director shall be considered an Existing Director; provided further, however, that no individual shall be considered an Existing Director if such individual initially assumed office as a result of either an actual or threatened "Election Contest" (as described in Rule 14a-11 promulgated under the Exchange Act) or other actual or threatened solicitation of proxies by or on behalf of anyone other than the Board (a "Proxy Contest"), including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest. (C) The consummation of (x) a merger, consolidation or reorganization to which the Company is a party, whether or not the Company is the Person surviving or resulting therefrom, or (y) a sale, assignment, lease, conveyance or other disposition of all or substantially all of the assets of the Company, in one transaction or a series of related transactions, to any Person other than the Company, where any such transaction or series of related transactions as is referred to in clause (x) or clause (y) above in this subparagraph (C) (a "Transaction") does not otherwise result in a "Corporate Transaction" pursuant to subparagraph (A) of this definition of "Corporate Transaction"; provided, however, that no such Transaction shall constitute a "Corporate Transaction" under this subparagraph (C) if the Persons who were the stockholders of the Company immediately before the consummation of such Transaction are the Beneficial Owners, immediately following the consummation of such Transaction, of fifty percent (50%) or more of the combined voting power of the then outstanding voting securities of the Person surviving or resulting from any merger, consolidation or reorganization referred to in clause (x) above in this subparagraph (C) or the Person to whom the assets of the Company are sold, assigned, leased, conveyed or disposed of in any transaction or series of related transactions referred in clause (y) above in this subparagraph (C). 16.3 Adjustments under this Section 16 shall be made by the Committee, whose determination as to what adjustments shall be made, and the extent thereof, shall be final, binding and conclusive. No fractional shares of stock shall be issued under the Plan upon any such adjustment. 17. Amendment and Termination of Plan. 17.1 The Board may at any time suspend or terminate the Plan. The Board may also at any time amend or revise the terms of the Plan, provided that no such amendment or revision shall, unless appropriate stockholder approval of such amendment or revision is obtained, increase the maximum number of shares in the aggregate which may be sold pursuant to options granted under the Plan, except as permitted under the provisions of Section 16, or change the minimum exercise price of options which include incentive stock option components set forth in Section 7 (provided, however, that the Committee may, without stockholder approval, cancel and regrant at a lower price any or all options granted under the Plan), or increase the maximum term of options which include incentive stock option components provided for in Section 6, or permit the granting of options to E-7 anyone other than as provided in Sections 4 and 5, or otherwise materially increase the benefits accruing to participants under the Plan. 17.2 Notwithstanding any other provision of this Plan to the contrary, no amendment, revision, suspension or termination of the Plan shall in any way modify, amend, alter or impair any rights or obligations under any option theretofore granted under the Plan, without (a) specific action of the Board or the Committee, and (b) the written, signed consent of the optionholder of the affected option; provided, however, that the Board or the Committee may unilaterally amend this Plan or any option, without the consent of the optionholder, if such amendment is necessary or desirable to comply with the Securities Act, state blue sky laws, or applicable listing requirements of any principal securities exchange on which shares of the same class of securities for which the options are exercisable are listed, to preserve the status of options as incentive stock options, or to preserve the tax deductibility to the Company of any awards made under this Plan. 18. Effective Date of Plan. This Plan shall be effective when each of the following has occurred: (i) it has been both adopted by the Board and approved by the holders of the outstanding voting stock of the Company, provided that both of such events occur within 12 months of each other and (ii) the Pairing Agreement has become effective. The Plan shall be deemed approved by the holders of the outstanding voting stock of the Company (a) by the affirmative vote of the holders of a majority of the voting shares of the Company present, or represented, and entitled to vote at a meeting duly held in accordance with the Delaware General Corporation Law, or (b) by the execution of a unanimous written consent duly executed in accordance with the Delaware General Corporation Law by the holders of all the outstanding voting shares of the Company. 19. Governing Law. The Plan shall be governed for all purposes by the laws of the State of Delaware, and any issue arising in connection with the interpretation or enforcement of the Plan or of the terms or conditions of any option granted under the Plan shall be resolved in accordance therewith. E-8 APPENDIX F HOLLYWOOD PARK OPERATING COMPANY 1998 DIRECTORS DEFERRED COMPENSATION PLAN 1. Eligibility. Each member of the Board of Directors of Hollywood Park Operating Company (the "Corporation") is eligible to participate in the Plan. 2. Participation. (a) Time of Election. Six months prior to the beginning of a calendar year, commencing with calendar year 1999, each eligible Director may elect to participate in the Plan by directing that all or any part of the compensation (including fees payable for services as chairman or a member of a committee of the Board) which otherwise would have been payable currently for services rendered as a Director ("Compensation") during such calendar year and succeeding calendar years shall be credited to a deferred compensation account (the "Director's Account"). Any person who shall become a Director during any calendar year, and who was not a Director of the Corporation prior to the beginning of such calendar year, may elect, within 30 days after the Director's term begins, to defer payment of all or any part of the Director's Compensation earned during the remainder of such calendar year and for succeeding calendar years; provided, however, that such election shall only be implemented six months after the date such election is filed with the Corporation pursuant to Section 2(b). Notwithstanding the foregoing, with respect to calendar year 1998, each eligible Director may elect within two weeks after the effective date of this Plan (as described in Paragraph 6, below) to defer the Director's Compensation beginning six months after such election. (b) Form and Duration of Election. An election to participate in the Plan shall be made by written notice signed by the Director and filed with the Secretary of the Corporation. Such election shall specify the amount of the Director's Compensation to be deferred and specify an allocation of the deferred Compensation between cash and "Paired Shares" as herein provided. For purposes of this Plan, "Paired Shares" shall mean shares of the common stock of the Corporation and shares of the common stock of Hollywood Park Realty Enterprises, Inc. ("Hollywood Park Realty") which are subject to the 1998 Pairing Agreement between this Corporation and Hollywood Park Realty (the "Pairing Agreement"). Such election shall continue until the Director terminates such election by signed written notice filed with the Secretary of the Corporation. Any such termination shall become effective six months after notice is given and only with respect to Compensation payable thereafter. Amounts credited to the Director's Account prior to the effective date of termination shall not be affected by such termination and shall be distributed only in accordance with the terms of the Plan. If a Director participates in both this Plan and the Hollywood Park Realty Enterprises, Inc. Deferred Compensation Plan (the "Hollywood Park Realty Plan"), such Director must make identical elections (including terminations) under each plan. (c) Renewal. A Director who has terminated his election to participate may thereafter file another election to participate for the calendar year subsequent to the filing of such election and succeeding calendar years, subject to Section 2(a) hereof. 3. The Director's Account. All compensation which a Director has elected to defer under the Plan shall be credited, at the Director's election, to the Director's Account as follows: (a) As of the date the Director's Compensation would otherwise be payable, the Director's Account will be credited with an amount of cash equal to the amount of such Compensation which the Director elected to defer and to be allocated to cash. (b) As of the date the Director's Compensation would otherwise be payable, there shall be credited to the Director's Account the number of full and fractional "Paired Shares" obtained by dividing the amount of such Compensation which the Director elected to defer and to be allocated to Paired Shares by the average of the closing price of a Paired Share on the principal stock exchange on which such Paired Shares are then listed, or, if they are not then listed on a stock exchange, the average of the closing price of F-1 a Paired Share on the NASDAQ National Market System, on the last ten business days of the calendar quarter or month, as the case may be, for which such Compensation is payable. (c) At the end of each calendar quarter there shall be credited to the Director's Account the number of full and/or fractional Paired Shares obtained by dividing the dividends which would have been paid on the Paired Shares credited to the Director's Account as of the dividend record date, if any, occurring during such calendar quarter if such shares had been shares of issued and outstanding Paired Shares on such date, by the closing price of a Paired Share on the principal stock exchange on which such Paired Shares are then listed, or, if Paired Shares are not then listed on a stock exchange, the closing price of a Paired Share on the NASDAQ National Market System, on the date such dividend(s) is paid. In the case of stock dividends, there shall be credited to the Director's Account the number of full and/or fractional shares of Paired Shares which would have been issued with respect to the Paired Shares credited to the Director's Account as of the dividend record date if such Paired Shares had been shares of issued and outstanding Paired Shares on such date. (d) No fractional share interests credited to a Director's Account shall be distributed pursuant to Section 4 hereof. Instead, any fractional Paired Shares remaining at the time the final distribution is made pursuant to paragraph 4 herein shall be converted into a cash credit by multiplying the number of fractional shares by the average of the closing price of a Paired Share on the principal stock exchange on which Paired Shares are then listed, or, if they are not then listed on any stock exchange, the average of the closing price of a Paired Share on the NASDAQ National Market System, on the last ten business days prior to the date of the final distribution from the Director's Account. (e) Cash amounts credited to the Director's Account pursuant to subparagraph (a) above shall accrue interest commencing from the date the cash amounts are credited to the Director's Account at a rate per annum to be determined from time to time by the Board of Directors (the "Board"). Amounts credited to the Director's Account shall continue to accrue interest until distributed in accordance with the Plan. The Director shall not have any interest in the cash or Paired Shares credited to the Director's Account until distributed in accordance with the Plan. 4. Distribution from Accounts. (a) Form of Election. At the time a Director makes a participation election pursuant to paragraphs 2(a) or 2(c), the Director shall also file with the Secretary of the Corporation a signed written election with respect to the method of distribution of the aggregate amount of cash and Paired Shares credited to the Director's Account pursuant to such participation election. A Director may elect to receive such amount in one lump-sum payment or in a number of approximately equal quarterly installments (provided the payout period does not exceed 15 years). The lump- sum payment or the first installment shall be paid as of the first business day of the calendar quarter immediately following the cessation of the Director's service as a Director of the Corporation. Subsequent installments shall be paid as of the first business day of each succeeding calendar quarter until the entire amount credited to the Director's Account shall have been paid. A cash payment will be made with the final distribution for any fraction of a Paired Share in accordance with paragraph 3(d) hereof. (b) Adjustment of Method of Distribution. A Director participating in the Plan may, prior to the beginning of any calendar year, file another written notice with the Secretary of the Corporation electing to change the method of distribution of the aggregate amount of cash and Paired Shares credited to the Director's Account for services rendered as a Director commencing with such calendar year. Amounts credited to the Director's Account prior to the effective date of such change shall not be affected by such change and shall be distributed only in accordance with the election in effect at the time such amounts were credited to the Director's Account. 5. Distribution on Death. If a Director should die before all amounts credited to the Director's Account shall have been paid in accordance with the election referred to in paragraph 4, the balance in such Account as of the date of the Director's death shall be paid promptly following the Director's death to the beneficiary F-2 designated in writing by the Director. Such balance shall be paid to the estate of the Director if (a) no such designation has been made, or (b) the designated beneficiary shall have predeceased the Director and no further designation has been made. 6. Effective Date. This Plan shall become effective when it has been approved by the Board and the Pairing Agreement has become effective. The provisions of this Plan dealing with a Director's election of the allocation of all or a portion of his deferred Compensation to Paired Shares, the crediting of Paired Shares to Directors' Accounts, and the distribution of Paired Shares, however, shall not become effective until approved by either (a) the affirmative vote of the holders of a majority of the voting shares of the Corporation present, or represented, and entitled to vote at a meeting duly held in accordance with the Delaware General Corporation Law, or (b) the execution of a unanimous written consent duly executed in accordance with the Delaware General Corporation Law by the holders of the outstanding voting shares of the Company. 7. Shares Issuable. The maximum number of Paired Shares which may be issued pursuant to this Plan is 125,000. 8. Limitation on Distributions. Notwithstanding anything to the contrary in this Plan, the maximum number of Paired Shares which can be issued pursuant to this Plan and the Hollywood Park Realty Plan in any fiscal year is one percent (1%) of the outstanding number of Paired Shares at the beginning of such fiscal year, except to the extent that a greater distribution is authorized by the Board (as defined below). If distributions would exceed this amount, distributions to each Director shall be reduced on a pro rata basis. Paired Shares not distributed in any fiscal year because of this Section 8 shall be distributed as soon as possible in the next fiscal year, within the limits of this Section 8. 9. Miscellaneous. (a) The right of a Director to receive any amount in the Director's Account shall not be transferable or assignable by the Director, except by a beneficiary designation under Section 5, by will or by the laws of descent and distribution, or pursuant to a qualified domestic relations order as defined by the Internal Revenue Code of 1986, as amended, or Title I of the Employee Retirement Income Security Act, or the rules thereunder, and no part of such amount shall be subject to attachment or other legal process. (b) The Corporation shall not be required to reserve or otherwise set aside funds or Paired Shares for the payment of its obligations hereunder. The Corporation shall make available as and when required a sufficient number of Paired Shares to meet the needs of the Plan, either by the issuance of new shares of the common stock of the Corporation coupled with the purchase of shares of the common stock of Hollywood Park Realty under the Pairing Agreement, or the purchase of Paired Shares on the open market or through private purchases, as the Corporation may determine. (c) The establishment and maintenance of, or allocation and credits, to the Director's Account shall not vest in the Director or his beneficiary any right, title or interest in and to any specific assets of the Corporation. A Director shall not have any dividend or voting rights or any other rights of a stockholder (except as expressly set forth in paragraph 3 with respect to dividends and as provided in subparagraph (g) below) until the Paired Shares credited to a Director's Account are distributed. The rights of a Director to receive payments under this Plan shall be no greater than the right of an unsecured general creditor of this Corporation. (d) The Plan shall be administered by the Board. The Board shall have the full discretion and power to interpret the provisions of the Plan, to prescribe, amend and rescind rules and regulations relating to the Plan, to compute amounts to be credited to and distributed from Directors' Accounts, and to make all other determinations it deems necessary or advisable to administer the Plan, with all such determinations being final and binding; provided, however, that the Board will not have the power to take any action relating to eligibility for participation in the Plan or the number of Paired Shares to be issued to each participating Director. F-3 (e) The Board may at any time terminate the Plan or amend the Plan in any manner it deems advisable and in the best interests of the Corporation; provided, however, that (i) no amendment or termination shall impair the rights of a Director with respect to amounts then credited to the Director's Account, and (ii) no amendment (other than a termination) shall accelerate any payments or distributions under the Plan (except with regard to bona fide financial hardships). (f) Each Director participating in the Plan will receive an annual statement indicating the amount of cash and number of Paired Shares credited to the Director's Account as of the end of the preceding calendar year. (g) If adjustments are made to outstanding shares of Paired Shares, or if outstanding shares of Paired Shares are converted into or exchanged for, other securities or property, as a result of stock dividends, stock splits, reverse stock splits, recapitalizations, reclassifications, mergers, split- ups, reorganizations, consolidations and the like (including the termination of the Pairing Agreement or the unpairing of the Paired Shares), an appropriate adjustment (as determined in good faith by the Board) will also be made in the number and kind of shares or property credited to the Director's Account, so that, when distributions are made pursuant to this Plan, the Director will receive the number and kind of securities or property to which a holder of Paired Shares would have been entitled upon such event. In addition, if outstanding Paired Shares are converted into or exchanged for another security, all references to "Paired Shares" in this Plan shall be deemed to be references to such other security. F-4 -----END PRIVACY-ENHANCED MESSAGE-----