-----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, V0q2n2sOdZL6xLVA6AsqyAx/vbc8nXHJ5qSqLFPlbSOCcTV6Zw/wvD7nqPAjg2/z UwGLdSejxyXHs2pDjOaNVA== 0000898430-96-005287.txt : 19961115 0000898430-96-005287.hdr.sgml : 19961115 ACCESSION NUMBER: 0000898430-96-005287 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 9 CONFORMED PERIOD OF REPORT: 19960930 FILED AS OF DATE: 19961113 SROS: NASD 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-Q SEC ACT: 1934 Act SEC FILE NUMBER: 000-10619 FILM NUMBER: 96661974 BUSINESS ADDRESS: STREET 1: P O BOX 369 CITY: INGLEWOOD STATE: CA ZIP: 90301 BUSINESS PHONE: 3104191500 MAIL ADDRESS: STREET 1: P O BOX 369 CITY: INGLEWOOD STATE: CA ZIP: 90306 10-Q 1 FORM 10-Q SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q [ X ] Quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the quarterly period ended September 30, 1996 Commission file number 0-10619 HOLLYWOOD PARK, INC. (Exact Name of Registrant as Specified in Its Charter) Delaware 95-3667491 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) 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) Indicate by check mark whether the registrant: (a) 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 [ ] The number of outstanding shares of the registrant's common stock, as of the date of the close of business on November 13, 1996: 18,282,498. Hollywood Park, Inc. Table of Contents Part I Item 1. Financial Information Consolidated Balance Sheets as of September 30, 1996 and December 31, 1995..........1 Consolidated Statements of Operations for the three months ended September 30, 1996 and 1995.......................................................2 Consolidated Statements of Operations for the nine months ended September 30, 1996 and 1995.......................................................3 Consolidated Statements of Cash Flows for the nine months ended September 30, 1996 and 1995.......................................................4 Notes to Consolidated Financial Statements..........................................5 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations..............................................................13 Part II Item 4. Submission of Matters to a Vote of Security-Holders...................................17 Item 5. Other Information.....................................................................18 Item 6.a Exhibits..............................................................................18 Other Financial Information...........................................................21 Signatures............................................................................26
Hollywood Park, Inc. Consolidated Balance Sheets September 30, December 31, 1996 1995 -------------- -------------- (unaudited) Assets Current Assets: Cash and cash equivalents $ 15,683,000 $ 22,406,000 Restricted cash 834,000 3,126,000 Short term investments 3,498,000 6,447,000 Other receivables, net of allowance for doubtful accounts of $953,000 in 1996 and $1,841,000 in 1995 6,256,000 8,147,000 Prepaid expenses and other assets 5,249,000 3,888,000 Deferred tax assets 4,878,000 4,888,000 Current portion of notes receivable 37,000 34,000 ------------ ------------ Total current assets 36,435,000 48,936,000 Notes receivable 829,000 857,000 Property, plant and equipment, net 127,572,000 174,717,000 Lease with TRAK East, net 0 1,195,000 Goodwill, net 20,502,000 26,829,000 Long term gaming assets 5,845,000 19,063,000 Other assets 7,448,000 11,706,000 ------------ ------------ $198,631,000 $283,303,000 ============ ============ Liabilities and Stockholders' Equity Current Liabilities: Accounts payable $ 8,598,000 $ 12,518,000 Accrued lawsuit settlement 2,750,000 5,232,000 Accrued liabilities 12,637,000 13,607,000 Accrued workers' compensation 1,906,000 2,277,000 Accrued slip and fall claims 1,652,000 1,543,000 Gaming liabilities 2,806,000 3,998,000 Amounts due to horsemen for purses, stakes and awards 433,000 709,000 Outstanding pari-mutuel tickets 720,000 2,757,000 Current portion of notes payable 28,000 32,310,000 ------------ ------------ Total current liabilities 31,530,000 74,951,000 Notes payable 282,000 15,629,000 Gaming liabilities 3,970,000 16,894,000 Deferred tax liabilities 5,022,000 10,083,000 ------------ ------------ Total liabilities 40,804,000 117,557,000 Minority interests 3,000,000 0 Commitments and contingencies - - Stockholders' Equity: Capital stock -- Preferred - $1.00 par value, authorized 250,000 shares; 27,499 issued and outstanding 28,000 28,000 Common - $.10 par value, authorized 40,000,000 shares; 18,282,498 issued and outstanding in 1996, and 1,829,000 1,850,000 18,504,798 in 1995 Capital in excess of par value 166,540,000 168,479,000 Accumulated deficit (13,570,000) (4,611,000) ------------ ------------ Total stockholders' equity 154,827,000 165,746,000 ------------ ------------ $198,631,000 $283,303,000 ============ ============
- ------ See accompanying notes to consolidated financial statements. Hollywood Park, Inc. Consolidated Statements of Operations
For the three months ended September 30, --------------------------------------- 1996 1995 ------------ ------------ (unaudited) REVENUES: Pari-mutuel commissions $ 8,886,000 $10,066,000 Lease and management fee - Sunflower 0 1,199,000 Gaming - Casino 13,114,000 0 Lease - Casino 0 5,394,000 Admissions, programs, and other racing income 3,674,000 3,754,000 Concession sales 2,766,000 4,554,000 Other income 1,807,000 1,628,000 ----------- ----------- 30,247,000 26,595,000 ----------- ----------- EXPENSES: Salaries, wages and employee benefits 12,745,000 9,281,000 Operations of facilities 2,031,000 2,535,000 Cost of concession sales 4,558,000 6,038,000 Professional services 1,561,000 1,137,000 Rent 222,000 223,000 Utilities 1,229,000 1,493,000 Marketing 1,303,000 1,044,000 Administrative 2,896,000 2,828,000 ----------- ----------- 26,545,000 24,579,000 ----------- ----------- Income before interest, income taxes, depreciation, amortization and other non-recurring expenses 3,702,000 2,016,000 Lawsuit settlement 0 5,627,000 Depreciation and amortization 2,498,000 2,824,000 Interest expense 20,000 958,000 ----------- ----------- Income (loss) before income taxes 1,184,000 (7,393,000) Income tax expense (benefit) 581,000 (1,756,000) ----------- ----------- Net income (loss) $ 603,000 ($5,637,000) =========== =========== Dividend requirements on convertible preferred stock $ 481,000 $ 481,000 Net income (loss) available to (allocated to) common shareholders $ 122,000 ($6,118,000) Per common share: Net income (loss)- primary $ 0.01 ($0.33) Net income (loss) - fully diluted $ 0.01 ($0.33) Cash dividend per common share $ 0.00 $0.00 Number of shares - primary 18,534,592 18,369,634 Number of shares - fully diluted 20,826,084 20,661,126
- ----- See accompanying notes to consolidated financial statements. 2 Hollywood Park, Inc. Consolidated Statements of Operations
For the nine months ended September 30, ----------------------------------------- 1996 1995 ------------ ------------ (unaudited) REVENUES: Pari-mutuel commissions $ 37,593,000 $37,745,000 Lease and management fee - Sunflower 1,071,000 4,344,000 Gaming - Casino 37,917,000 0 Lease - Casino 0 18,064,000 Admissions, programs, and other racing income 12,310,000 13,026,000 Concession sales 10,403,000 15,359,000 Other income 5,233,000 5,341,000 ------------ ----------- 104,527,000 93,879,000 ------------ ----------- EXPENSES: Salaries, wages and employee benefits 41,359,000 29,718,000 Operations of facilities 6,435,000 7,843,000 Cost of concession sales 15,308,000 19,504,000 Professional services 6,129,000 5,657,000 Rent 923,000 901,000 Utilities 3,202,000 3,642,000 Marketing 4,987,000 3,728,000 Administrative 10,457,000 6,911,000 ------------ ----------- 88,800,000 77,904,000 ------------ ----------- Income before interest, income taxes, depreciation, amortization and other non-recurring expenses 15,727,000 15,975,000 Write off of investment in Sunflower 11,412,000 0 Lawsuit settlement 0 5,627,000 Depreciation and amortization 7,898,000 8,478,000 Interest expense 918,000 2,886,000 ------------ ----------- Loss before income taxes (4,501,000) (1,016,000) Income tax expense 3,025,000 358,000 ------------ ----------- Net loss $ (7,526,000) $(1,374,000) ============ =========== Dividend requirements on convertible preferred stock $ 1,443,000 $ 1,443,000 Net loss allocated to common shareholders ($8,969,000) ($2,817,000) Per common share: Net loss - primary ($0.48) ($0.15) Net loss - fully diluted ($0.48) ($0.15) Cash dividend per common share $0.00 $0.00 Number of shares - primary 18,604,755 18,369,634 Number of shares - fully diluted 20,896,247 20,661,126
- ------ See accompanying notes to consolidated financial statements. 3 Hollywood Park, Inc. Consolidated Statements of Cash Flows
For the nine months ended September 30, -------------------------------------- 1996 1995 ------------ ------------ (unaudited) Cash flows from operating activities: Net loss $ (7,526,000) $ (1,374,000) Adjustment to reconcile net loss to net cash provided by operating activities: Depreciation and amortization 7,342,000 8,495,000 Changes in accounts due to deconsolidation of subsidiary in bankruptcy: Property, plant and equipment 58,380,000 0 Secured notes payable (28,918,000) 0 Unsecured notes payable (15,323,000) 0 Goodwill and lease with TRAK East 6,908,000 0 Unrealized gain on short term bond investing 11,000 4,000 (Gain) loss on sale or disposal of property, plant and equipment (3,000) 64,000 Decrease (increase) in restricted cash 2,292,000 (173,000) Increase in casino lease and related interest receivable, net 0 (6,945,000) Decrease in other receivables, net 1,891,000 4,417,000 Decrease (increase) in prepaid expenses and other assets 2,897,000 (4,901,000) Decrease in deferred tax assets 10,000 467,000 (Decrease) increase in accounts payable (3,920,000) 592,000 (Decrease) increase in accrued lawsuit settlement (2,482,000) 5,200,000 Decrease in gaming liabilities (1,192,000) 0 (Decrease) increase in accrued liabilities (970,000) 1,440,000 (Decrease) increase in accrued workers' compensation (371,000) 94,000 Increase in accrued slip and fall claims 109,000 138,000 Decrease in amounts due to horsemen for purses, stakes and awards (276,000) (479,000) Decrease in outstanding pari-mutuel tickets (2,037,000) (525,000) (Decrease) increase in deferred tax liabilities (5,061,000) 159,000 ------------ ------------ Net cash provided by operating activities 11,761,000 6,673,000 ------------ ------------ Cash flows from investing activities: Additions to property, plant and equipment (17,969,000) (11,959,000) Receipts from sale of property, plant and equipment 9,000 108,000 Principal collected on notes receivable 25,000 23,000 Purchase of short term investments (14,009,000) (19,829,000) Proceeds from short term investments 16,958,000 13,619,000 Long term gaming assets 294,000 0 ------------ ------------ Net cash used in investing activities (14,692,000) (18,038,000) ------------ ------------ Cash flows from financing activities: Proceeds from unsecured notes payable 0 1,681,000 Payment of unsecured notes payable (30,000) (3,820,000) Payment of secured notes payable (3,358,000) (1,333,000) Payments from minority interest partners 3,000,000 0 Payments under capital lease obligations 0 (53,000) Common stock repurchase and retirement (1,961,000) 0 Dividends paid to preferred stockholders (1,443,000) (1,443,000) ------------ ------------ Net cash used for financing activities (3,792,000) (4,968,000) ------------- ------------- Decrease in cash and cash equivalents (6,723,000) (16,333,000) Cash and cash equivalents at the beginning of the period 22,406,000 37,122,000 ------------ ------------ Cash and cash equivalents at the end of the period $ 15,683,000 $ 20,789,000 ============ ============
See accompanying notes to consolidated financial statements. 4 Hollywood Park, Inc. Notes to Consolidated Financial Statements NOTE 1 -- SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES The financial information included herein has been prepared in conformity with generally accepted accounting principles as reflected in the financial statements included in the consolidated annual report on Form 10-K of Hollywood Park, Inc. (the "Company" or "Hollywood Park") filed with the Securities and Exchange Commission for the year ended December 31, 1995. This financial information does not include certain footnotes and financial presentations normally presented annually, and therefore, should be read in conjunction with the Company's 1995 Form 10-K. The information furnished herein is unaudited; however, in the opinion of management it reflects all recurring adjustments that are necessary to present a fair statement of the results for the interim periods. All such adjustments are of a normal and recurring nature. 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. GENERAL The Company owns and operates the Hollywood Park race track, a premier thoroughbred racing facility located in California, Turf Paradise, Inc. ("Turf Paradise"), a thoroughbred racing facility located in Arizona, and Sunflower Racing, Inc. ("Sunflower"), operating as the Woodlands, a greyhound and thoroughbred racing facility located in Kansas. On May 17, 1996, under pressure from intense competition from Missouri riverboat gaming, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code. On the same property as the Hollywood Park race track, the Company owns and operates the Hollywood Park- Casino (the "Casino"). The Company owns 88% of Crystal Park Hotel and Casino Development Co., LLC, ("Crystal Park LLC") which built and presently leases, the Crystal Park Hotel and Casino, ("Crystal Park"), to an unaffiliated third party. Crystal Park began operations on October 25, 1996. SUNFLOWER 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. 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. 5 Pursuant to the authority provided by SB 100, 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 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 on the first anniversary of the execution of the acquisition; and (iii) shares of Hollywood Park common stock having a value of $500,000 on the second anniversary of the execution of the acquisition; provided that Hollywood Park may accelerate the payments; provided further, the aggregate number of shares to be paid under clauses (ii) and (iii) may not exceed the number of shares issued on November 17, 1995. Shares to be issued in the remaining two installments will be valued at the average market price of Hollywood Park's common stock for the ten trading days immediately preceding the payment date. Virtually all of the approximately $21,568,000 of excess acquisition cost over the recorded value of the net assets acquired was allocated to goodwill and will be amortized over 40 years. The amortization of the goodwill is not deductible for income tax purposes. BOOMTOWN, INC. On April 23, 1996, the respective Boards of Directors of Hollywood Park and of Boomtown, Inc. ("Boomtown") approved and signed the Agreement and Plan of Merger (the "Merger") among Hollywood Park, Inc., HP Acquisition, Inc. and Boomtown, Inc., where by way of a merger with HP Acquisition, Inc. (a wholly owned subsidiary of Hollywood Park) Boomtown will become a wholly owned subsidiary of the Company. The Merger has been approved by both Hollywood Park's and Boomtown's common shareholders, and is expected to be finalized in first quarter 1997. The Merger will be accounted for under the purchase method of accounting, with each issued and outstanding share of Boomtown common stock converted into 0.625 shares of Hollywood Park common stock. Approximately 5,774,000 newly issued shares of the Company's common stock will be issued in the Merger. The Merger is subject to the following remaining conditions: the consent of the holders of the majority of the outstanding principal amount of Boomtown's outstanding bonds, and upon Hollywood Park, its management and Board of Directors and Boomtown's management acquiring all required regulatory approvals and gaming permits. The application process for the required regulatory approvals and gaming permits is in progress. In addition, Boomtown intends to seek the consent of the holders of a majority in principal amount of the outstanding Boomtown bonds in connection with the Blue Diamond Swap (as defined below). As of the effective date of the Merger, a total of eleven persons will serve on the Board of Directors of the combined companies, four of whom will be former directors of Boomtown. Boomtown owns and operates land-based, dockside and riverboat gaming operations in Verdi, Nevada ("Boomtown Reno"), Las Vegas, Nevada ("Boomtown Las Vegas"), Biloxi, Mississippi ("Boomtown Biloxi"), and Harvey, Louisiana ("Boomtown New Orleans"). Boomtown's properties offer full casino gaming, hotel accommodations (at Boomtown Reno and Boomtown Las Vegas only), and other entertainment amenities to primarily middle income, value oriented customers. Boomtown Reno has been operating for over a quarter century and is located approximately two miles from the California - Nevada border on Interstate 80, the major highway connecting northern California and Reno. Boomtown Reno is situated on 569 acres with approximately 61 acres used for current operations. Boomtown Reno's customer base is primarily drawn from Interstate 80 traffic. Boomtown Reno offers its guests a 40,000 square foot casino, including 1,433 slot machines and 43 table games, a 122-room hotel, a 16-acre truck stop, a full-service recreational vehicle park, a service station, a mini-mart and other related amenities. In addition, Boomtown Reno offers a 35,000 square foot family entertainment center featuring a dynamic motion theater, an indoor miniature golf course, a restaurant and a replica of an 1800's Ferris Wheel. 6 Boomtown Las Vegas began operations in May 1994 on a 56 acre site at the interchange of Blue Diamond Road and Interstate 15, the principal thoroughfare connecting Southern California to Las Vegas. Boomtown Las Vegas is four miles from the exit for Circus Circus, Excalibur, Luxor, and MGM. Boomtown Las Vegas includes a 30,000 square foot casino with 1,100 slot machines and 28 gaming tables, 300 hotel rooms, a full-service recreational vehicle park, and two restaurants. On August 12, 1996, Boomtown, Blue Diamond Hotel and Casino, Inc. ("Blue Diamond") (a wholly owned subsidiary of Boomtown, Inc., which leases and operates Boomtown Las Vegas), Hollywood Park, IVAC (the owner/lessor of Boomtown Las Vegas), Edward P. Roski, Jr. (a general partner of IVAC), and an affiliate of Mr. Roski entered into the Blue Diamond Swap Agreement (the "Swap Agreement"), pursuant to which the parties agreed that, immediately following consummation of the Merger, Boomtown and Blue Diamond (or any subsidiary thereof as set forth in the Swap Agreement) would exchange their entire interest in Boomtown Las Vegas (including Boomtown's note receivable, from IVAC, in the amount of $27,300,000) in exchange for, among other things, a $5,000,000 unsecured promissory note (the "First Note") and a $3,465,000 unsecured promissory note (the "Second Note") (the "Blue Diamond Swap"), the termination of the Boomtown Las Vegas lease, an estimated cash payment of $2,100,000, and the release from liabilities and note obligations totaling approximately $3,800,000 and from ongoing expenses of the Boomtown Las Vegas resort. The First Note has an interest rate equal to the prime rate plus 1.5% per annum and provides for annual principal payments of $1,000,000 over five years. The Second Note has an interest rate equal to the prime rate plus 0.5% per annum and provides for a payment of all principal on the third anniversary of the closing. On August 12, 1996, Hollywood Park and Mr. Roski further entered into a Stock Purchase Agreement pursuant to which Hollywood Park will concurrently with the Blue Diamond Swap and the Merger, purchase 714,386 shares of Boomtown common stock held by Mr. Roski for a purchase price of approximately $3,465,000 paid in the form of a Hollywood Park unsecured promissory note having an interest rate equal to the prime rate plus one percent per annum, and providing for five equal annual principal payments after the closing. Boomtown Biloxi, a limited partnership majority owned and controlled by Boomtown, occupies nine acres on Biloxi, Mississippi's back bay. Boomtown Biloxi is located one-half mile from Interstate 110, the main highway connecting Interstate 10 (the main thoroughfare connecting New Orleans and Mobile, Alabama) and the Gulf of Mexico. Boomtown Biloxi, began operations in July 1994, and consists of a land-based facility that houses non-gaming operations and a 33,000 square foot casino constructed on a 400 x 100 foot barge permanently moored to the land-based building. The casino offers 985 slot machines, 42 table games and other gaming amenities including restaurants, a western dance hall/cabaret and a 20,000 square foot family entertainment center. Boomtown New Orleans, a limited partnership majority owned and controlled by Boomtown, began operations in August 1994 on a 50 acre site in Harvey, Louisiana, located in Jefferson Parish, approximately ten miles from the French Quarter of New Orleans. Gaming operations are conducted from a 250 foot replica of a paddle wheel riverboat, offering 865 slot machines and 51 table games in a 30,000 square foot casino. The land-based facility is composed of an 88,000 square foot entertainment center and a western saloon/dance hall. On November 5, 1996, there was a parish by parish vote regarding the continuation of gaming, and the voters of Jefferson Parish overwhelmingly approved retaining riverboat gaming. Boomtown is actively seeking to expand its operations into jurisdictions that have legalized casino gaming at sites that are near interstate highways or major thoroughfares near major population or tourist centers. Boomtown is currently exploring a project in Switzerland County, Indiana through a joint venture with Hilton Gaming Corporation. The gaming license application for this project was heard on August 19 and 20, 1996, and the decision to grant the gaming license was deferred until a hearing scheduled for January 1997. CRYSTAL PARK HOTEL AND CASINO Crystal Park, California's first hotel and casino, opened on October 25, 1996, with 110 gaming tables, with no limit on the number of gaming tables that can be added, with approximately 282 hotel rooms, including 41 VIP suites, a restaurant, gift shop, full service health spa with massage center and outdoor pool, and a lobby sports bar and lounge. The hotel operates under a Radisson Hotels 7 International, Inc. ("Radisson") flag, under a 20 year License Agreement the Company signed with Radisson on June 27, 1996. Hollywood Park can terminate the License Agreement, at no cost to the Company, at the end of the third, fifth or tenth year. On July 14, 1995, the Company and Compton Entertainment, Inc. ("CEI") executed an Amended and Restated Agreement Respecting Pyramid Casino (the "Crystal Park Agreement") (Pyramid Casino was subsequently changed to Crystal Park Hotel and Casino), finalizing the terms concerning the development, ownership and operation of a card club in the city of Compton (the "City"). CEI entered into an Amended and Restated Disposition and Development Agreement (the "DDA") with the City to lease or purchase land located within the City as the card club site. Under the terms of the Crystal Park Agreement, on August 3, 1995, the Company paid CEI $2,000,000 for the real property rights and assignment of the DDA to Hollywood Park. On August 3, 1995, the Company paid CEI an additional $500,000 to exercise the five year right to purchase CEI's City gaming license. If at the end of the five year term of the option to purchase the City gaming license, Hollywood Park is not able to own and operate a card club at the Compton site, CEI can elect to either negotiate a new lease, or acquire Hollywood Park's rights to the card club site for a purchase price as determined by the Agreement. On October 24, 1996, CEI paid Hollywood Park approximately $1,203,000, as reimbursement for non-construction related pre-opening costs incurred on CEI's behalf by the Company. Upon the October 25, 1996 opening of the card club, Hollywood Park paid CEI an additional $2,499,000, as required by the Crystal Park Agreement. As required by the DDA, on August 2, 1995, Hollywood Park paid approximately $2,006,000 to the City to purchase the convention center to house the card club operations and entered into a 50 year lease with the City for the hotel, parking, and expansion parcels at the same site. Initial improvements made by Hollywood Park to construct, install and equip Crystal Park will be credited against the annual base rent. No cash rent payments are expected to be made until after the nineteenth year of the lease, or 2014. Hollywood Park, Redwood Gaming LLC (controlled by the Edward J. DeBartolo Family) and First Park Investments LLC (controlled by Leo Chu and Ivy Chu) formed Crystal Park Hotel and Casino Development Co., LLC, an 88%, 8%, 4% partnership, respectively, which built and now leases the Crystal Park property. Current California law does not allow publicly traded companies, such as Hollywood Park, to operate a card club (other than on the same property as the race track); therefore, the Crystal Park LLC executed a 60 month lease with CEI. Under the terms of the lease, as the landlord, Crystal Park LLC built and furnished the card club for CEI to operate. Crystal Park LLC is not responsible for any segment of the daily operations. Over the 60 month term, the fixed monthly rent payments are as follows: $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 balance of the lease. If there is a change in California law, allowing the Company to operate card clubs at sites other than its race track property, Crystal Park LLC would operate the card club in partnership with CEI, (the "Crystal Park Partnership") with Crystal Park LLC owning 67% of the business. Under the terms of the Crystal Park Partnership, Crystal Park LLC would receive 90% of the distributable cash flow until it had received its approximately $26,000,000 initial investment back, together with an annualized 20% return on that investment. OTHER CARD CLUB ACTIVITY The Company is a 50% partner with DeBartolo Entertainment, in a 30 table Casino and Night Club to be located in Palm Springs, California. Hollywood Park and DeBartolo Entertainment will be landlords in a third party leasing arrangement. Any investment required for this project would be modest and timing has not been finalized for development. Without legislation to expand the types of gaming which could be offered at the Palm Springs casino, this site is not expected to generate material income, due to full casino gaming on nearby Indian Reservations. The Company continues to have discussions with other card clubs as to possible business combinations of mutual interest. 8 PRO FORMA RESULTS OF OPERATIONS The following pro forma results of operations were prepared under the assumption that the acquisition of PCM had occurred on July 1, 1994, (PCM's inception). The following pro forma adjustments were made: the elimination of lease rent revenue due to Hollywood Park from PCM and concession sales made to PCM at acquisition; lease rent expense recorded by PCM; other operating expenses including consulting fees; legal and audit services and other miscellaneous duplicate expenses: and increases for amortization of the excess purchase price allocated to goodwill, interest expense on the unpaid rent and income taxes. Pro forma earnings per share reflect the 136,008 shares of Hollywood Park common stock issued to the former PCM shareholders and an estimated 134,194 shares of common stock due to the former PCM shareholders, based on the closing market price of Hollywood Park's common stock on September 30, 1996. HOLLYWOOD PARK, INC. Unaudited Pro Forma Combined Consolidated Results of Operations
For the three months ended Sept. 30, ------------------------------------- 1996 (a) 1995 ------------ ------------ Revenues: Hollywood Park, Inc. and race tracks $ 15,042,000 $ 18,615,000 Hollywood Park, Inc. - Casino Division 15,205,000 14,934,000 ------------ ------------ $ 30,247,000 $ 33,549,000 ------------ ------------ Income before interest, income taxes, depreciation, amortization and other non-recurring expenses 3,702,000 1,780,000 Net income (loss) $ 603,000 $ (5,837,000) ============ ============ Dividend requirements on convertible preferred stock $ 481,000 $ 481,000 Net income (loss) available to (allocated to) common shareholders $ 122,000 $ (6,318,000) Per common share before interest, income taxes, depreciation, amortization, and other non-recurring expenses: Income - primary $ 0.17 $ 0.07 Income - fully diluted $ 0.17 $ 0.07 Per common share: Net income (loss) - primary $ 0.01 ($0.34) Net income (loss) - fully diluted $ 0.01 ($0.34)
For the nine months ended Sept. 30, ------------------------------------- 1996 (a) 1995 Revenues: Hollywood Park, Inc. and race tracks $ 60,376,000 $ 67,483,000 Hollywood Park, Inc. - Casino Division 44,151,000 41,099,000 ------------ ------------ $104,527,000 $108,582,000 ------------ ------------ Income before interest, income taxes, depreciation, amortization and other non-recurring expenses 15,727,000 9,448,000 Net loss $ (7,526,000) $ (7,966,000) ============ ============ Dividend requirements on convertible preferred stock $ 1,443,000 $ 1,443,000 Net loss allocated to common shareholders $ (8,969,000) $ (9,409,000) Per common share before interest, income taxes, depreciation, amortization, and other non-recurring expenses: Income - primary $ 0.77 $ 0.43 Income - fully diluted $ 0.75 $ 0.43 Per common share: Net loss - primary ($0.48) ($0.50) Net loss - fully diluted ($0.48) ($0.50)
_____ (a) The results for these periods are actual. 9 RESTRICTED CASH Restricted cash as of September 30, 1996, was for amounts due to horsemen for purses, stakes and awards. The balance as of December 31, 1995, included approximately $2,482,000 related to the Class Action lawsuits and approximately $644,000 related to amounts due to horsemen for purses, stakes and awards. In March 1996, amounts due for the Class Action lawsuits were placed in an escrow account, according to the settlement agreement, and are no longer reflected in the Company's accounts. CASINO REVENUE AND PROMOTIONAL ALLOWANCES Casino gaming revenue consisted of fees collected from patrons on a per seat or per hand played basis. Revenues in the accompanying statements of operations exclude the retail value of food and beverage provided to players on a complimentary basis. The estimated cost of providing these promotional allowances during the nine months ended September 30, 1996, was $2,583,000. There were no comparable costs for the nine months ended September 30, 1995. ESTIMATES Financial statements prepared according to 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. EARNINGS PER SHARE Primary earnings per share were computed by dividing net income (loss) available to (allocated to) common shareholders (net income (loss) less preferred dividend requirements) by the weighted average number of common shares outstanding during the period, inclusive of the estimated future shares of the Company's common stock to be issued to the former PCM shareholders. Fully diluted per share amounts were similarly computed, but include the effect, when dilutive, of the conversion of the convertible preferred shares and exercise of stock options. CASH FLOWS Cash and cash equivalents consisted of certificates of deposit and short term investments with maturities of 90 days or less. STOCK REPURCHASE On July 22, 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 November 13, 1996, the Company had repurchased, and retired 222,300 common shares at a cost of approximately $1,960,000. RECLASSIFICATIONS Certain reclassifications have been made to the 1995 balances to be consistent with the 1996 financial statement presentation. NOTE 2 -- SHORT TERM INVESTMENTS As of September 30, 1996, short term investments consisted of corporate bonds valued at $3,498,000. The corporate bond portfolio consisted of bonds rated from Ba2 to B3 by Moody's, and from BB+ to B- by Standard and Poors, with some bonds not rated by either agency. Investments in corporate bonds typically carry a greater amount of principal risk than investments previously made by the Company, and yield a correspondingly higher return. As of September 30, 1996, corporate bond investments had a weighted average maturity of 1.3 years, and because the Company reasonably expects to liquidate this investment in its normal operating cycle this investment was classified as short term. This short term investment is held as available for sale, and was recorded in the accompanying financial statements at fair value, determined by the quoted market price. For the nine months ended September 30, 1996, proceeds from the sale of corporate bonds were approximately $6,785,000, all of which were reinvested, with gross realized gains and losses of approximately $21,000 and $39,000, respectively. The net unrealized holding gain, as of September 30, 1996, was $11,000. 10 NOTE 3 -- PROPERTY, PLANT AND EQUIPMENT Property, plant and equipment held at September 30, 1996, and December 31, 1995, consisted of the following:
September 30, December 31, 1996 (a) 1995 ------------ ------------ Land and land improvements $ 30,016,000 $ 42,490,000 Buildings and building improvements 135,085,000 175,960,000 Equipment 25,229,000 36,003,000 Construction in progress 18,662,000 8,394,000 ------------ ------------ 208,992,000 262,847,000 Less accumulated depreciation 81,420,000 88,130,000 ------------ ------------ $127,572,000 $174,717,000 ============ ============
_____ (a) The September 30, 1996 figures do not include Sunflower's property, plant and equipment. NOTE 4 -- SECURED AND UNSECURED NOTES PAYABLE Notes payable as of September 30, 1996, and December 31, 1995, consisted of the following:
September 30, December 31, 1996 (a) 1995 ------------ ------------ Secured notes payable (b) $ 0 $ 28,667,000 Unsecured notes payable (b) 0 15,574,000 Secured note payable - Texaco 0 3,358,000 Unsecured note payable - Gold Cup 310,000 340,000 ------------ ------------ 310,000 47,939,000 Less current maturities 28,000 32,310,000 ------------ ------------ $ 282,000 $ 15,629,000 ============ ============
_____ (a) The September 30, 1996, balances do not include Sunflower's notes payable. (b) These notes relate to Sunflower and are non-recourse to Hollywood Park. This table does not include the Crystal Park capital lease obligations discussed in Note 5. NOTE 5 -- LONG TERM GAMING ASSETS The Company purchased the convention center parcel at the Crystal Park site, which was renovated to house the card club, and entered into a capital lease with the city of Compton covering the adjoining hotel, surrounding parking lot and expansion parcel. The capital lease was valued at approximately $13,741,000. The 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 will receive a rent payment credit equal to the costs incurred to renovate the card club and hotel. No cash rent payments are expected to be made until the nineteenth year of the lease, or 2014. The balance of the long term gaming assets was related to the costs incurred for the operating lease between Hollywood Park and CEI, and will be amortized over the 60 month term of the lease. NOTE 6 -- LONG TERM GAMING LIABILITIES Long term gaming liabilities consisted of the Company's capital lease obligation associated with the lease of the hotel, surrounding parking lot and the expansion parcel from the city of Compton for Crystal Park. This 11 liability was reduced as the construction disbursements were made, and upon submission of any purchase option payment. NOTE 7 -- SUPPLEMENTAL BALANCE SHEET INFORMATION 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 the cash flows 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 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 asset, but at no time would previously recognized impairment losses be restored. NOTE 8 -- DEVELOPMENT EXPENSES Included in Administrative expenses were development costs of approximately $466,000 for the nine months ended September 30, 1996, and for the three months ended September 30, 1996, there was a credit balance of approximately $197,000. During the three months ended September 30, 1996, the Company was reimbursed for development expenses of approximately $250,000, from a potential partner related to an abandoned project. Expenses incurred year-to-date primarily consisted of costs related to the Inglewood site master plan and card clubs in California. Included in Administrative expenses were development costs of approximately $1,636,000 for the nine months ended September 30, 1995, and approximately $1,293,000 for the three months ended September 30, 1995. Development expenses for both the three and the nine months ended September 30, 1995, consisted primarily of costs related to the environmental impact study for the proposed stadium at Hollywood Park, and card clubs in California. NOTE 9 -- 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. The Company has calculated the pro forma financial results as required under SFAS 123 and noted that the impact on net loss for the nine months ended September 30, 1996 and 1995 was immaterial. 12 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS - ------- ----------------------------------------------------------------------- OF OPERATIONS - ------------- Except for the historical information contained herein, the matters addressed in this Item 2 and in Note 1 to the Consolidated Financial Statements, Summary of Significant Accounting Policies, 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 Exchange Act of 1934, as amended. Such forward- looking statements are subject to a variety of risks and uncertainties, including those discussed in this Report on Form 10-Q, that could cause actual results to differ materially from those anticipated by the Company's management, including the failure to obtain gaming licenses or to complete anticipated expansion projects, and the failure to obtain adequate financing to meet the Company's strategic goals. 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 Quarterly Report on Form 10-Q 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 Annual Report on Form 10-K, and the Company's other filings including the Joint Proxy Statement/Prospectus dated September 20, 1996. RESULTS OF OPERATIONS Three months ended September 30, 1996, compared to the three months ended - ------------------------------------------------------------------------- September 30, 1995 - ------------------ The results of operations for the three months ended September 30, 1996, included the results of Hollywood Park operating all aspects of the Casino, including the gaming floors, whereas, during the three months ended September 30, 1995, the Company leased the gaming floor activities to PCM for a fixed monthly rent, and directly operated all other aspects of the business. The results of operations for the three months ended September 30, 1996, excluded the results of operations for Sunflower, due to Sunflower's May 17, 1996, filing for reorganization under Chapter 11 of the Bankruptcy code. Sunflower's results of operations are included for the three months ended September 30, 1995. Total revenues increased by $3,652,000, or 13.7%, during the three months ended September 30, 1996, as compared to the three months ended September 30, 1995. Pari-mutuel commissions decreased by $1,180,000, or 11.7%, primarily due to three fewer live race days at Hollywood Park during the three months ended September 30, 1996, as compared to the same period in 1995. Gaming - Casino revenues of $13,114,000 were generated from the gaming floor activities, which Hollywood Park acquired from PCM on November 17, 1995. While there are no comparable gaming floor revenues in the 1995 results of operations, during the three months ended September 30, 1995, the Company recorded Lease - Casino revenue of $5,394,000, and concession sales to PCM of approximately $649,000. Concession sales decreased by $1,788,000, or 39.3%, with $777,000 of the decline attributable to the exclusion of Sunflower's 1996 concession sales, with the remainder primarily due to the 1995 sales to the former Casino lessee (as previously mentioned), with no corresponding sales in the 1996 operating results. Total operating expenses increased by $1,966,000, or 8.0%, for the three months ended September 30, 1996, as compared to the three months ended September 30, 1995. Total operating expenses for the three months ended September 30, 1996, included the Casino gaming floor expenses, with no corresponding expenses in the operating results for the three months ended September 30, 1995. Also, Sunflower's operating expenses for the three months ended September 30, 1996, are not included in the operating results, though these expenses are included in the operating results for the three months ended September 30, 1995. Salaries, wages and employee benefits increased by $3,464,000, or 37.3%, primarily because of wages and benefits associated with the gaming floor staff, for which there are no comparable expenses in the 1995 operating results. Operations of facilities costs decreased by $504,000, or 19.9%, primarily due to the exclusion of Sunflower's expenses in the 1996 operating results. Cost of concession sales decreased by $1,480,000, or 24.5%, with $682,000 of the decrease related to the exclusion of Sunflower's 1996 operating expenses, with the remainder primarily due to cost saving measures implemented at the Hollywood Park race track and Casino. Professional services increased by $424,000, or 37.3%, due primarily to increased legal expenses. 13 Utilities decreased by $264,000, or 17.7%, primarily due to the exclusion of Sunflower's 1996 operating expenses. Marketing costs increased by $259,000, or 24.8%, mainly due to Casino marketing costs, offset by the exclusion of Sunflower's 1996 marketing expenses. Included in the 1995 expenses was $5,627,000 for the lawsuit settlement, with no corresponding expense in the 1996 results of operations. Depreciation and amortization decreased by $326,000, or 11.5%, primarily due to the exclusion of Sunflower's 1996 depreciation and amortization expense, netted against the amortization of the goodwill associated with the November 17, 1995, PCM acquisition. Interest expense decreased by $938,000, or 97.9%, due entirely to the exclusion of Sunflower's 1996 interest expense. Income tax expense increased by $2,337,000 due to pre-tax income being generated during the three months ended September 30, 1996, as compared to a pre-tax loss generated during the three months ended September 30, 1995, and an anticipated slightly higher effective tax rate in 1996. Nine months ended September 30, 1996, compared to the nine months ended - ----------------------------------------------------------------------- September 30, 1995 - ------------------ The results of operations for the nine months ended September 30, 1996, included the results of Hollywood Park operating all aspects of the Casino, including the gaming floors whereas, during the nine months ended September 30, 1995, the Company leased the gaming floor activities to PCM for a fixed monthly rent, and directly operated all other aspects of the business. The results of operations for the nine months ended September 30, 1996, included Sunflower's results of operations for the three months ended March 31, 1996, and due to Sunflower's May 17, 1996, filing for reorganization under Chapter 11 of the Bankruptcy Code, excluded Sunflower's results of operations for the six months ended September 30, 1996. Sunflower's results of operations are included in the financial statements for the entire nine months ended September 30, 1995. Total revenues increased by $10,648,000, or 11.3%, for the nine months ended September 30, 1996, as compared to the nine months ended September 30, 1995. Lease and management fee - Sunflower decreased by $3,273,000, or 75.3%, due to the exclusion of Sunflower's operating results for the six months ended September 30, 1996. Gaming - Casino revenues of $37,917,000 were generated from the gaming floor activities, which Hollywood Park acquired from PCM on November 17, 1995. While there are no comparable gaming floor revenues in the 1995 financial results, during the nine months ended September 30, 1995, the Company recorded Lease - Casino revenues of $18,064,000, and concession sales to PCM of approximately $2,415,000. Admissions, programs and other racing income declined by $716,000, or 5.5%, primarily related to the exclusion of Sunflower's operating results for the six months ended September 30, 1996. Concession sales decreased by $4,956,000, or 32.3%, with $1,561,000, or 31.5%, of the decline attributable to the exclusion of Sunflower's concession sales for the six months ended September 30, 1996, with the remaining decrease primarily related to the fact that the 1995 results included sales to PCM, the former gaming floor lessee (as previously mentioned), with no corresponding concession sales in the 1996 revenues. Total operating expenses, inclusive of Casino gaming floor expenses, (with no corresponding gaming floor operating expenses in the 1995 results of operations) and with the 1996 financial results exclusive of Sunflower's operating expense for the six months ended September 30, 1996, increased by $10,896,000, or 14.0%, for the nine months ended September 30, 1996, as compared to the nine months ended September 30, 1995. Salaries wages and employee benefits increased by $11,641,000, or 39.2%, primarily because of wages and benefits associated with the gaming floor staff, for which there are no corresponding expenses in the results of operations for the nine months ended September 30, 1995. Operations of facilities costs decreased by $1,408,000, or 18.0%, primarily a result of the exclusion of Sunflower's expenses for the six months ended September 30, 1996. Cost of concession sales decreased by $4,196,000, or 21.5%, primarily due to the exclusion of Sunflower's expenses for the six months ended September 30, 1996, and staff reductions at the Casino. Professional services increased by $472,000, or 8.3%, primarily due to gaming floor costs at the Casino, for which there are no corresponding costs in the 1995 operating expenses. Utilities costs decreased by $440,000, or 12.1%, primarily because of the exclusion of Sunflower's expenses for the six months ended September 30, 1996. Marketing costs increased by $1,259,000, or 33.8%, primarily due to 14 Casino marketing costs. Administrative costs increased by $3,546,000, or 51.3%, primarily a result of costs associated with the operation of the gaming floors, including the city of Inglewood monthly gaming license fees. Included in the 1995 results of operations was $5,627,000 of expenses related to the lawsuit settlement with no corresponding expense in 1996. Depreciation and amortization costs decreased by $580,000, or 6.8%, primarily due to the exclusion of Sunflower's expense for the six months ended September 30, 1996, netted against the amortization of the goodwill associated with the November 17, 1995, PCM acquisition. Interest expense decreased by $1,968,000, or 68.2%, due to the exclusion of Sunflower's interest expense for the six months ended September 30, 1996. Income tax expense increased by $2,667,000, due to higher pre-tax income in 1996 (excluding the write-off of the investment in Sunflower) and an anticipated higher effective tax rate in 1996. LIQUIDITY AND CAPITAL RESOURCES Hollywood Park's principal source of liquidity at September 30, 1996, was cash and cash equivalents of approximately $15,683,000. Cash and cash equivalent decreased by $6,723,000, during the nine months ended September 30, 1996, as compared to cash and cash equivalents as of December 31, 1995, primarily a result of Crystal Park construction disbursements, payment of secured notes payable, and the payment of the convertible preferred dividends, netted against cash provided by operating activities, the maturity of short term investments, the return of the Company's workers' compensation self-insurance cash deposit, and capital contributions from the Crystal Park LLC minority interest partners. Cash and cash equivalents decreased by $16,333,000 during the nine months ended September 30, 1995, as compared to cash and cash equivalents as of December 31, 1994, primarily due to disbursements for land acquisitions, debt service payments on secured and unsecured loan facilities, and payment of convertible preferred dividends. HOLLYWOOD PARK As a condition of the April 23, 1996, Merger Agreement with Boomtown, Hollywood Park must secure adequate funding to repurchase Boomtown's First Mortgage notes (if required to be redeemed) and at least $60,000,000 to fund various gaming projects; the Company has appointed Bank of America National Trust and Savings Association ("Bank of America") to act as lead bank in securing a credit facility of up to $225,000,000. On April 14, 1995, the Company executed an unsecured loan facility of up to $75,000,000 with Bank of America (the "Business Loan Agreement"). The loan facility consists of a $60,000,000 line of credit (the "Line of Credit") and a $15,000,000 revolver (the "Revolver"). The Business Loan agreement has been amended four times to, among other matters, extend the date for drawing down on the Line of Credit to November 15, 1996, and to adjust the tangible net worth covenant requirement at December 31, 1996. During the nine months ended September 30, 1996, Hollywood Park did not draw any funds under its credit facilities with Bank of America, except for the May 1, 1996, issuance of a standby letter of credit, in the amount of $2,617,000, as security for the Company's workers' compensation self-insurance program with the state of California. The Line of Credit is an interest only, revolving facility, under which the Company may borrow, pay and reborrow principal amounts without penalty. Per Amendment Four to the Business Loan Agreement the Line of Credit terminates as of November 15, 1996, and the Company must repay amounts then outstanding under the Line of Credit in eighty-four equal monthly installments starting from December 15, 1996. The Company is in negotiations with Bank of America to extend the termination date of the Line of Credit to June 30, 1997. The Line of Credit bears interest, at the option of the Company, at Bank of America's prime rate plus 0.25%, or the offshore rate plus 2.0%, and the Company may further elect an agreed upon fixed rate. The Revolver, inclusive of a within line facility for standby letters of credit of up to a maximum of $5,000,000, is available during the two years ending May 1, 1997, during which the Company can borrow, pay and 15 reborrow principal amounts without penalty. The Revolver bears interest, at the option of the Company, at Bank of America's prime rate or the offshore rate plus 1.75%, and the Company may further elect an agreed upon fixed rate. As of March 31, 1996, and September 30, 1996, primarily due to a greater than anticipated percentage ownership in the Crystal Park LLC (as discussed below), the Company did not meet the quick assets to current liabilities covenant. Bank of America has waived compliance with this covenant, for the quarter ended March 31, 1996, and September 30, 1996. Capital expenditures of $17,969,000, for the nine months ended September 30, 1996, were primarily related to construction of Crystal Park. Hollywood Park increased its ownership interest in the Crystal Park LLC to 88% from 40%; therefore; the Company is responsible for a proportionately greater amount of the construction costs. On September 3, 1996, the Company paid $3,358,000, on the secured non-interest bearing promissory note, related to the October 27, 1995, purchase of 37.33 acres of land adjacent to the Inglewood property. During the nine months ended September 30, 1996, the Company paid dividends of $1,443,000 on its convertible preferred stock. On August 15, 1996, May 15, 1996, and February 15, 1996, the Company paid dividends of $481,000, respectively, representing $17.50 per share (or $0.175 per depositary share). On October 1, 1996, the Company declared its regular quarterly preferred dividend of $481,000, payable on November 15, 1996. Dividends of $1,443,000 were paid during the nine months ended September 30, 1995. As of January 1, 1996, shares of the convertible preferred stock can be converted into common stock at the option of the Company. The Company may exercise this option, only if, among other requirements, for 20 trading days, within any period of 30 consecutive trading days, the closing price of the Company's common stock exceeds $15.00, subject to adjustments in certain circumstances. The conversion price is equal to 83.33 common shares for each convertible preferred share. The Company anticipates converting the convertible preferred stock into common stock at the earliest possible date. In 1995, the Company began investing in corporate bonds, with approximately $3,498,000 invested as of September 30, 1996, with Moody's ratings of Ba2 to B3 and Standard and Poors ratings 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 investments historically made by the Company, and yield a correspondingly higher return. The corporate bond investments, as of September 30, 1996, had a weighted average maturity of 1.3 years, and because the Company reasonably expects to liquidate this investment in its normal operating cycle this investment was classified as short term. This short term investment is held as available for sale, and was recorded in the accompanying financial statements at fair value, determined by the quoted market price. SUNFLOWER On March 24, 1994, an Amended and Restated Credit and Security Agreement (the "Senior Credit") was executed between Sunflower and five banks (the "Banks") in connection with the Company's acquisition of Sunflower. The Senior Credit is non-recourse to Hollywood Park, except for the Company's guarantee of the interest payments required under the Standstill Agreement. The guarantee was terminated without any payments by the Company, by reason of the termination of the Standstill Agreement. As of September 30, 1996, the Senior Credit had an outstanding balance of $28,667,000. In December 1994, Sunflower executed a promissory note to Hollywood Park, allowing for the advancement of up to $3,000,000, for the payment of its Senior Credit obligations. In 1995, Hollywood Park advanced $2,500,000 to Sunflower, which along with accrued interest is subordinated to the Senior Credit obligations. In October 1995, Sunflower and the Banks executed a Standstill Agreement, which among other things, provided for the extension of the Senior Credit maturity. The Standstill Agreement provided for the deferral of 100% of the principal payments and 50% of the interest payments due under the Senior Credit from April 1995 16 through the termination date of the Standstill Agreement. The Standstill Agreement terminated on May 2, 1996, because the Kansas Legislature concluded its 1996 session without passing legislation that would have permitted slot machines or other casino gaming at Kansas race tracks, including Sunflower. On May 17, 1996, Sunflower filed for reorganization under Chapter 11 of the Bankruptcy Code. GENERAL Hollywood Park is continually evaluating future growth opportunities in the gaming, sports and entertainment industries. The Company expects that funding for growth opportunities, dividend requirements on the convertible preferred stock, payments on notes payable or 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, these resources will be sufficient to meet the Company's anticipated cash requirements for the foreseeable future (and in any event for at least the next twelve months). In the event that the Merger with Boomtown is consummated, Hollywood Park believes that the proposed $225,000,000 credit facility will be sufficient to meet Hollywood Park's and Boomtown's anticipated cash requirements for the foreseeable future (and in any event, for at least the twelve months following consummation of the Merger). PART II OTHER INFORMATION ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS - ------- --------------------------------------------------- At the Company's Annual Meeting of Stockholders, held October 30, 1996, Hollywood Park stockholders approved the following: Proposal One: Proposal to approve the issuance of shares of the Company's common stock pursuant to the terms of the Agreement and Plan of Merger dated as of April 23, 1996, among the Company, HP Acquisition, Inc., a wholly owned subsidiary of the Company ("Sub"), and Boomtown, Inc. ("Boomtown"), providing for Sub to merge with and into Boomtown, with Boomtown becoming a wholly owned subsidiary of the Company. For Votes 12,419,225 Against Votes 1,587,264 Abstain Votes 110,649 Broker Non-Votes 2,566,902
Proposal Two: Election of seven directors
For Votes Against Votes ---------- ------------- R.D. Hubbard 15,020,860 1,663,180 J.R. Johnson 15,080,695 1,603,345 Robert T. Manfuso 15,071,349 1,612,691 Harry Ornest 15,071,830 1,612,210 Lynn P. Reitnouer 15,082,540 1,601,500 Herman Sarkowsky 15,069,862 1,614,178 Warren B. Williamson 15,078,981 1,605,059
Proposal Three: Proposal to approve the adoption of the Hollywood Park 1996 Stock Option Plan. For Votes 13,330,169 Against Votes 2,810,023 Abstain Votes 136,905 Broker Non-Votes 406,943
17 ITEM 5. OTHER INFORMATION - ------- ----------------- On September 30, 1996, SB 2000 was signed into law, and provides for a 1/2 of 1% reduction in the state tax on pari-mutuel wagers made in California, and for the distribution of the savings as follows: (i) 55% to the horsemen by way of purses; (ii) 40% to the race tracks by allowing them to retain higher pari- mutuel commissions; and (iii) 5% to the official registering agency for thoroughbreds. SB 1887, a comprehensive card gaming regulatory bill, was approved by the State Assembly, but was not considered by the Senate. ITEM 6.A 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 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 the Company's Current Report of Form 8-K, filed May 3, 1996. 3.1 Certificate of Incorporation of Hollywood Park, Inc., is hereby incorporated by reference 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 the Company's Registration Statement on Form S-1 dated January 29, 1993. 4.5 Convertible Preferred Stock Depository Stock Agreement between Hollywood Park, Inc. and Chemical Trust Company of California, dated February 9, 1993, is hereby incorporated by reference to the Company's Registration Statement on Form S-1 dated January 29, 1993. 4.6 Hollywood Park Stock Option Plan is hereby incorporated by reference to Exhibit D to the Notice of Annual Meeting of Stockholders and Proxy Statement relating to the Annual Meeting of Stockholders of Hollywood Park, Inc., held on October 30, 1996. 10.1 Directors Deferred Compensation Plan for Hollywood Park, Inc., is hereby incorporated by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1991. 10.2 Lease Agreement dated January 1, 1989, by and between Hollywood Park Realty Enterprises, Inc. and Hollywood Park Operating Company, as amended, is hereby incorporated by reference 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 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 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 the Company's Quarterly Report on Form 10-Q for quarter ended June 30, 1994. 10.6 Agreement Respecting Pyramid Casino dated December 3, 1994, by and between Hollywood Park, Inc. and Compton Entertainment, Inc., is hereby incorporated by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1994.
18 10.7 Amendment of Oil and Gas Lease dated January 10, 1995, by and among Hollywood Park, Inc., Casex Co., Nunn Ltd., and Votex Energy & Mineral is hereby incorporated by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1994. 10.8 Business Loan Agreement dated April 14, 1995, by and between Hollywood Park, Inc., and Bank of America National Trust and Savings Association, is hereby incorporated by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1995. 10.9 Amendment No. One, dated April 30, 1996, by and between Hollywood Park, Inc. and Bank of America National Trust and Savings Association, to the Business Loan Agreement dated April 14, 1995, is hereby incorporated by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1996. 10.10 Amendment No. Two, dated July 1, 1996, by and between Hollywood Park, Inc., and Bank of America National Trust and Savings Association, to the Business Loan Agreement dated April, 14, 1995, is hereby incorporated by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1996. *10.11 Amendment No. Three, dated August 30, 1996, by and between Hollywood Park, Inc., and Bank of America National Trust and Savings Association, to the Business Loan Agreement dated April 30, 1996. *10.12 Amendment No. Four, dated October 1, 1996, by and between Hollywood Park, Inc., and Bank of America National Trust and Savings Association, to the Business Loan Agreement dated April 30, 1996. 10.13 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 the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1995. 10.14 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 the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1995. 10.15 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 the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1995. 10.16 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 the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1995. 10.17 Lease, by and between HP Compton, Inc. and Compton Entertainment, Inc., dated August 3, 1995, is hereby incorporated by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1995. *10.18 First Amendment to Lease by and between HP Compton, Inc. and Compton Entertainment, Inc., dated March 12, 1996. *10.19 Second Amendment to Lease by and between Crystal Park Hotel and Casino Development Company, LLC, and Compton Entertainment, Inc., dated September 13, 1996. *10.20 Assignment, Assumption and Consent Agreement, by and among HP Compton, Inc., 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. *10.21 Consent of Compton Entertainment, Inc. and Rouben Kandilian, by and between Hollywood Park, Inc., and Compton Entertainment, Inc., dated August 29, 1996. 10.22 Standstill Agreement, dated October 27, 1995, by and between Sunflower Racing, Inc., and First Union National Bank of Florida, Bank One Lexington, N.A., Bank Midwest, N.A., Intrust Bank, N.A., and FCLT Loans, L.P., is hereby incorporated by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1995. 10.23 License Agreement, dated June 27, 1996, by and between HP Compton, Inc. and Radisson Hotels International, Inc., is hereby incorporated by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1996.
19 *10.24 Operating Agreement for Crystal Park Hotel and Casino Development Company, LLC a California Limited Liability Company, dated July 18, 1996, effective August 28, 1996. 10.25 Blue Diamond Swap Agreement, dated August 12, 1996, by and among Boomtown, Inc., Blue Diamond Hotel and Casino, Inc., Hollywood Park, Inc., Edward P. Roski, Jr., Industry Hills Visitor Accommodation Center, and Majestic Realty, Co., is hereby incorporated by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1996. 10.26 Stock Purchase Agreement, dated August 12, 1996, by and between Hollywood Park, Inc. and Edward P. Roski, Jr., is here by incorporated by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1996. 22.1 Subsidiaries of Hollywood Park, Inc.: Crystal Park Hotel and Development Company, LLC, a California Limited Liability Company; HP Compton, Inc., a California corporation; HP Casino, Inc., a California corporation; 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 California corporation); Sunflower Racing, Inc., a Kansas corporation (and its subsidiary SR Food and Beverage, Inc., a Kansas corporation); and Turf Paradise, Inc., an Arizona corporation. *27.1 Financial Data Schedule ____ *Filed herewith (b) Reports on Form 8-K A Current Report on Form 8-K was filed on October 28, 1996, to report the October 21, 1996, resignation of one of Hollywood Park, Inc.'s directors.
20 Hollywood Park, Inc. Racing Data
HOLLYWOOD PARK RACE TRACK 1996 1995 ------------------------ ------------------------ LIVE RACING DATES: Spring/Summer meeting ("S/S") April 26 through July 22 April 28 through July 24 Autumn meeting ("A") Nov. 6 through Dec. 22 Nov. 15 through Dec. 24 LIVE RACE DAYS INCLUDING CHARITY DAYS (A): Spring/Summer meeting 67 67 Autumn meeting 36 30 --- --- 103 97 === === LIVE RACE DAYS BY QUARTER: First quarter 0 0 Second quarter (S/S) 51 48 Third quarter (S/S) 16 19 Fourth quarter (A) 36 30 --- --- 103 97 === ===
SIMULCAST RACE DAYS BY QUARTER 1996: 1Q 2Q 3Q 4Q TOTAL ---- ---- ---- ---- ----- Santa Anita thoroughbred 66 16 0 4 86 Del Mar thoroughbred 0 0 43 0 43 Fairplex Pomona thoroughbred 0 0 19 0 19 Oak Tree from Santa Anita thoroughbred 0 0 0 27 27 Los Alamitos Harness - night races 51 4 0 0 55 Los Alamitos Quarter Horse - night races 0 45 51 48 144 Cal Expo Harness - night races 0 35 9 27 71 Bay Meadows - northern California (b) 40 0 23 26 89 Golden Gate Fields - northern California (b) 5 59 0 39 103 Fairs - northern California (b) 0 15 53 10 78 --- --- --- --- --- TOTAL 162 174 198 181 715 === === === === ===
SIMULCAST RACE DAYS BY QUARTER 1995: 1Q 2Q 3Q 4Q TOTAL ---- ---- ---- ---- ----- Santa Anita thoroughbred 65 19 0 5 89 Del Mar thoroughbred 0 0 43 0 43 Fairplex Pomona thoroughbred 0 0 17 2 19 Oak Tree from Santa Anita thoroughbred 0 0 0 32 32 Los Alamitos Harness - night races 36 0 0 5 41 Los Alamitos Quarter Horse - night races 0 45 54 53 152 Cal Expo Harness - night races 1 36 11 16 64 Bay Meadows - northern California (b) 19 11 28 45 103 Golden Gate Fields - northern California (b) 44 55 0 15 114 Fairs - northern California (b) 0 16 60 12 88 --- --- --- --- --- TOTAL 165 182 213 185 745 === === === === ===
______ (a) There are three charity days in both the Spring/Summer and Autumn meetings, for a total of six charity days per year. (b) Simulcasting from northern California runs year round and is simulcast concurrently with either live on-track racing or with southern California simulcasting. TURF PARADISE Turf Paradise has one continuous live thoroughbred race meet that starts in September and runs through May. During 1996 Turf Paradise raced live for the period January 1 through May 7 and resumed live racing on September 28 and will run through December 31. Turf Paradise operates as a simulcast facility for 21 Arizona's Prescott Downs during the period May 24 through September 2. In 1995, Turf Paradise raced live from January 1 through May 22, operated as a simulcast facility for the period May 26 through September 4, and resumed live racing on September 30 running through December 31. Along with running live thoroughbred races, Turf Paradise offers two quarter horse races a day during the first three months of the live meet (September through November) and a limited number of Arabian races each spring. Turf Paradise also typically accepts simulcast signals during live racing on Fridays, Saturdays and Sundays, and operates as a simulcast facility during the two dark days (days without live racing during the live race meet) of each week during the live on-track racing season.
LIVE ON-TRACK RACE DARK DAY SIMULCASTING - DAYS SIMULCASTING PRESCOTT ------------------- -------------- --------------- 1996 1995 1996 1995 1996 1995 ----- ----- ----- ----- ----- ----- First quarter 71 67 20 23 0 0 Second quarter 27 37 24 14 33 30 Third quarter 2 1 20 18 52 56 Fourth quarter 66 66 24 25 0 0 ----- ----- ----- ----- ----- ----- 166 171 88 80 85 86 ===== ===== ===== ===== ===== =====
22 Hollywood Park, Inc. Calculation of Earnings Per Share
For the three months ended September 30, --------------------------------------------------------- Primary Assuming full dilution (a) --------------------------- --------------------------- 1996 1995 1996 1995 ------------ ------------ ------------ ------------ Average number of common shares outstanding 18,534,592 18,369,634 18,534,592 18,369,634 Average common shares due to assumed conversion of convertible preferred shares 0 0 2,291,492 2,291,492 ----------- ----------- ----------- ----------- Total shares 18,534,592 18,369,634 20,826,084 20,661,126 =========== =========== =========== =========== Net income (loss) $603,000 $(5,637,000) $ 603,000 $(5,637,000) Less dividend requirements on convertible preferred shares 481,000 481,000 0 0 ----------- ----------- ----------- ----------- Net income (loss) available to (allocated to) common shareholders $ 122,000 $(6,118,000) $ 603,000 $(5,637,000) =========== =========== =========== =========== Net income (loss) per share $ 0.01 $ (0.33) $ 0.03 $ (0.27) =========== =========== =========== ===========
For the nine months ended September 30, --------------------------------------------------------- Primary Assuming full dilution (a) --------------------------- --------------------------- 1996 1995 1996 1995 ------------ ------------ ------------ ------------ Average number of common shares outstanding 18,604,755 18,369,634 18,604,755 18,369,634 Average common shares due to assumed conversion of convertible preferred shares 0 0 2,291,492 2,291,492 ----------- ----------- ----------- ----------- Total shares 18,604,755 18,369,634 20,896,247 20,661,126 =========== =========== =========== =========== Net loss $(7,526,000) $(1,374,000) $(7,526,000) $(1,374,000) Less dividend requirements on convertible preferred shares 1,443,000 1,443,000 0 0 ----------- ----------- ----------- ----------- Net loss allocated to common shareholders $(8,969,000) $(2,817,000) $(7,526,000) $(1,374,000) =========== =========== =========== =========== Net loss per share $ (0.48) $ (0.15) $ (0.36) $ (0.07) =========== =========== =========== ===========
(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. 23 Hollywood Park, Inc. Selected Financial Data by Operational Location
For the nine months ended For the three months ended September 30, September 30, ---------------------------- -------------------------- 1996 1995 1996 1995 ------------- ----------- ----------- ----------- (unaudited) REVENUES: Hollywood Park, Inc. and Race Track $ 47,232,000 $48,078,000 $13,496,000 $14,750,000 Sunflower Racing, Inc. 1,782,000 7,858,000 0 2,385,000 Turf Paradise, Inc. 11,362,000 11,547,000 1,546,000 1,480,000 Hollywood Park, Inc. - Casino Division 44,151,000 26,396,000 15,205,000 7,980,000 ------------- ----------- ----------- ----------- 104,527,000 93,879,000 30,247,000 26,595,000 ------------- ----------- ----------- ----------- EXPENSES: Hollywood Park, Inc. and Race Track 40,713,000 41,848,000 11,856,000 13,634,000 Sunflower Racing, Inc. 1,703,000 7,146,000 0 2,544,000 Turf Paradise, Inc. 8,835,000 9,537,000 2,013,000 1,859,000 Hollywood Park, Inc. - Casino Division 37,549,000 19,373,000 12,676,000 6,542,000 ------------- ----------- ----------- ----------- 88,800,000 77,904,000 26,545,000 24,579,000 ------------- ----------- ----------- ----------- INCOME (LOSS) BEFORE INTEREST, INCOME TAXES, DEPRECIATION, AMORTIZATION AND OTHER NON-RECURRING EXPENSES: Hollywood Park, Inc. and Race Track 6,519,000 6,230,000 1,640,000 1,116,000 Sunflower Racing, Inc. 79,000 712,000 0 (159,000) Turf Paradise, Inc. 2,527,000 2,010,000 (467,000) (379,000) Hollywood Park, Inc. - Casino Division 6,602,000 7,023,000 2,529,000 1,438,000 ------------- ----------- ----------- ----------- 15,727,000 15,975,000 3,702,000 2,016,000 ------------- ----------- ----------- ----------- NON-RECURRING EXPENSES: Write off of investment in Sunflower Racing, Inc. 11,412,000 0 0 0 Lawsuit settlement 0 5,627,000 0 5,627,000 DEPRECIATION AND AMORTIZATION: Hollywood Park, Inc. and Race Track 4,300,000 4,097,000 1,457,000 1,378,000 Sunflower Racing, Inc. 536,000 1,853,000 0 616,000 Turf Paradise, Inc. 911,000 1,009,000 301,000 311,000 Hollywood Park, Inc. - Casino Division 2,151,000 1,519,000 740,000 519,000 ------------- ----------- ----------- ----------- 7,898,000 8,478,000 2,498,000 2,824,000 ------------- ----------- ----------- ----------- INTEREST EXPENSE: Hollywood Park, Inc. and Race Track 137,000 142,000 20,000 44,000 Sunflower Racing, Inc. 781,000 2,723,000 0 913,000 Turf Paradise, Inc. 0 21,000 0 1,000 ------------- ----------- ----------- ----------- 918,000 2,886,000 20,000 958,000 ------------- ----------- ----------- ----------- INCOME (LOSS) BEFORE INCOME TAX EXPENSE (BENEFIT): Hollywood Park, Inc. and Race Track 2,082,000 1,991,000 163,000 (306,000) Write off of Investment in Sunflower Racing, Inc. (11,412,000) 0 0 0 Lawsuit settlement 0 (5,627,000) 0 (5,627,000) Sunflower Racing, Inc. (1,238,000) (3,864,000) 0 (1,688,000) Turf Paradise, Inc. 1,616,000 980,000 (768,000) (691,000) Hollywood Park, Inc. - Casino Division 4,451,000 5,504,000 1,789,000 919,000 ------------- ----------- ----------- ----------- (4,501,000) (1,016,000) 1,184,000 (7,393,000) Income tax expense (benefit) 3,025,000 358,000 581,000 (1,756,000) ------------- ----------- ----------- ----------- Net income (loss) ($7,526,000) ($1,374,000) $ 603,000 ($5,637,000) ============= =========== =========== =========== Dividend requirements on convertible preferred stock $ 1,443,000 $ 1,443,000 $ 481,000 $ 481,000 ------------- ----------- ----------- ----------- Net income (loss) available to (allocated to) common shareholders ($8,969,000) ($2,817,000) $ 122,000 ($6,118,000) ============= =========== =========== =========== Per common share: Net income (loss) - primary ($0.48) ($0.15) $ 0.01 ($0.33) Net income (loss) - fully diluted ($0.48) ($0.15) $ 0.01 ($0.33) Number of shares - primary 18,604,755 18,369,634 18,534,592 18,369,634 Number of shares - fully diluted 20,896,247 20,661,126 20,826,084 20,661,126
24 Hollywood Park Inc. Pari-mutuel Wagering Data
For the nine months ended For the three months ended September 30, September 30, ------------------------------- ------------------------------- 1996 1995 1996 1995 ------------ ------------ ------------ ------------ (unaudited) HOLLYWOOD PARK -------------- Pari-mutuel handle: On-track $120,027,000 $135,461,000 $ 29,311,000 $ 41,110,000 Off-track - shared handle wagering 368,890,000 328,954,000 91,088,000 99,304,000 Simulcast 290,857,000 299,217,000 99,341,000 105,175,000 ------------ ------------ ------------ ------------ Total $779,774,000 $763,632,000 $219,740,000 $245,589,000 ============ ============ ============ ============ Pari-mutuel commissions: On-track $ 7,665,000 $ 8,567,000 $ 1,805,000 $ 2,582,000 Off-track - shared handle wagering 10,695,000 10,544,000 2,590,000 3,108,000 Off-track - independent handle 1,575,000 1,524,000 361,000 448,000 Simulcast 8,993,000 8,605,000 2,971,000 2,811,000 ------------ ------------ ------------ ------------ Total $ 28,928,000 $ 29,240,000 $ 7,727,000 $ 8,949,000 ============ ============ ============ ============ TURF PARADISE ------------- Pari-mutuel handle: On-track $ 16,633,000 $ 18,609,000 $ 440,000 $ 341,000 Off-track - shared handle wagering 69,662,000 46,772,000 473,000 280,000 Simulcast 40,739,000 38,152,000 9,536,000 9,028,000 ------------ ------------ ------------ ------------ Total $127,034,000 $103,533,000 $ 10,449,000 $ 9,649,000 ============ ============ ============ ============ Pari-mutuel commissions: On-track $ 2,009,000 $ 2,550,000 $ 83,000 $ 67,000 Off-track - shared handle wagering 3,008,000 2,993,000 50,000 37,000 Off-track - independent handle 103,000 507,000 0 0 Simulcast 3,545,000 2,455,000 1,026,000 1,013,000 ------------ ------------ ------------ ------------ Total $ 8,665,000 $ 8,505,000 $ 1,159,000 $ 1,117,000 ============ ============ ============ ============ COMBINED -------- Pari-mutuel handle: On-track $136,660,000 $154,070,000 $ 29,751,000 $ 41,451,000 Off-track - shared handle wagering 438,552,000 375,726,000 91,561,000 99,584,000 Simulcast 331,596,000 337,369,000 108,877,000 114,203,000 ------------ ------------ ------------ ------------ Total $906,808,000 $867,165,000 $230,189,000 $255,238,000 ============ ============ ============ ============ Pari-mutuel commissions: On-track $ 9,674,000 $ 11,117,000 $ 1,888,000 $ 2,649,000 Off-track - shared handle wagering 13,703,000 13,537,000 2,640,000 3,145,000 Off-track - independent handle 1,678,000 2,031,000 361,000 448,000 Simulcast 12,538,000 11,060,000 3,997,000 3,824,000 ------------ ------------ ------------ ------------ Total $ 37,593,000 $ 37,745,000 $ 8,886,000 $ 10,066,000 ============ ============ ============ ============
25 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: November 13, 1996 -------------------------------- R.D. Hubbard Chairman of the Board and Chief Executive Officer (Principal Executive Officer) By: /s/ G. Michael Finnigan Dated: November 13, 1996 -------------------------------- G. Michael Finnigan Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) 26 Hollywood Park, Inc. Exhibit Index
Exhibit Description Page - ------- ----------- ---- 10.11 Amendment No. Three, dated August 30, 1996, by and 1 between Hollywood Park, Inc., and Bank of America National Trust and Savings Association, to the Business Loan Agreement dated April 30, 1996. 10.12 Amendment No. Four, dated October 1, 1996, by and 2 between Hollywood Park, Inc., and Bank of America National Trust and Savings Association, to the Business Loan Agreement dated April 30, 1996. 10.18 First Amendment to Lease by and between HP Compton, Inc. 3 and Compton Entertainment, Inc., dated March 12, 1996. 10.19 Second Amendment to Lease by and between Crystal Park Hotel 7 and Development Company, LLC, and Compton Entertainment, Inc., dated July 18, 1996. 10.20 Assignment, Assumption and Consent Agreement, by and 14 among HP Compton, Inc., 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. 10.21 Consent of Compton Entertainment, Inc. and Rouben Kandilian, 18 by and between Hollywood Park, Inc., and Compton Entertainment, Inc., dated August 29, 1996. 10.24 Operating Agreement for Crystal Park Hotel and Casino Development 20 Company LLC, a California Limited Liability Company, dated July 18, 1996, effective August 28, 1996. 27.1 Financial Data Schedule 104
All other exhibits previously submitted. EX-10.11 2 AMENDMENT #3 TO BUSINESS LOAN AGREEMENT =============================================================================== HOLLYWOOD PARK, INC. - FORM 10-Q, SEPTEMBER 1996 - EXHIBIT 10.11 (LOGO OF BANK OF AMERICA) AMENDMENT TO DOCUMENTS - ------------------------------------------------------------------------------- AMENDMENT NO. THREE TO BUSINESS LOAN AGREEMENT This Amendment No. Three (the "Amendment") dated as of August 30, 1996, is between Bank of America National Trust and Savings Association (the "Bank") and HOLLYWOOD PARK, INC. (the "Borrower"). RECITALS -------- A. The Bank and the Borrower entered into a certain Business Loan Agreement dated as of April 14, 1995, as modified by amendments dated as of April 30, 1996, and July 1, 1996 (as amended, the "Agreement"). B. The Bank and the Borrower desire to further amend the Agreement. AGREEMENT --------- 1. DEFINITIONS. Capitalized terms used but not defined in this Amendment ----------- shall have the meaning given to them in the Agreement. 2. AMENDMENTS. The Agreement is hereby amended as follows: ---------- 2.1 In Paragraph 2.2, the date "OCTOBER 1, 1996" is substituted for the date "SEPTEMBER 1, 1996". 2.2 Subparagraph 2.4(b) is amended and restated in its entirety to read as follows: "(b) The Borrower will repay the principal amount outstanding on the Expiration Date Facility No. 2 in eighty-four successive equal monthly installments starting November 1, 1996. On October 1, 2003, the Borrower will repay the remaining principal balance plus any interest then due." 3. EFFECT OF AMENDMENT. Except as provided in this Amendment, all of the ------------------- terms and conditions of the Agreement shall remain in full force and effect. This Amendment is executed as of the date stated at the beginning of this Amendment. Bank of America National Trust and Savings Hollywood Park, Inc. Association X /s/ Scott Aney X /s/ R.D. Hubbard -- ----------------- -- ------------------- By: Scott Aney, Vice President By: R.D. Hubbard, Chairman of the Board and Chief Executive Officer X__/s/ G. Michael Finnigan____________ By: G. Michael Finnigan, Executive Vice President and Chief Financial Officer - ------------------------------------------------------------------------------- 1 EX-10.12 3 AMENDMENT #4 TO BUSINESS LAON AGREEMENT =============================================================================== Hollywood Park, Inc. - Form 10-Q September 1996 - Exhibit 10.12 [LOGO OF BANK OF AMERICA] AMENDMENT TO DOCUMENTS _______________________________________________________________________________ AMENDMENT NO. FOUR TO BUSINESS LOAN AGREEMENT This Amendment No. Four (the "Amendment") dated as of October 1, 1996, is between Bank of America National Trust and Savings Association (the "Bank") and HOLLYWOOD PARK, INC. (the "Borrower"). RECITALS -------- A. The Bank and the Borrower entered into a certain Business Loan Agreement dated as of April 14, 1995, as modified by amendments dated as of April 30, 1996, July 1, 1996 and August 30, 1996 (as amended, the "Agreement"). B. The Bank and the Borrower desire to further amend the Agreement. AGREEMENT --------- 1. DEFINITIONS. Capitalized terms used but not defined in this Amendment ----------- shall have the meaning given to them in the Agreement. 2. AMENDMENTS. The Agreement is hereby amended as follows: ---------- 2.1 In Paragraph 2.2, the date "NOVEMBER 15, 1996" is substituted for the date "OCTOBER 1, 1996". 2.2 Subparagraph 2.4(b) is amended and restated in its entirety to read as follows: "(b) The Borrower will repay the principal amount outstanding on the Expiration Date Facility No. 2 in eighty-four successive equal monthly installments starting December 15, 1996. On November 15, 2003, the Borrower will repay the remaining principal balance plus any interest then due." 3. EFFECT OF AMENDMENT. Except as provided in this Amendment, all of the ------------------- terms and conditions of the Agreement shall remain in full force and effect. This Amendment is executed as of the date stated at the beginning of this Amendment. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION HOLLYWOOD PARK, INC. X /s/ SCOTT ANEY X /s/ R.D. HUBBARD - -------------------------------- ------------------------------------ BY: SCOTT ANEY, VICE PRESIDENT BY: R.D. HUBBARD, CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER X /s/ G. MICHAEL FINNIGAN ------------------------------------ BY: G. MICHAEL FINNIGAN, EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER _______________________________________________________________________________ -1- EX-10.18 4 FIRST AMENDMENT TO LEASE HOLLYWOOD PARK, INC. - FORM 10-Q, SEPTEMBER 1996 - EXHIBIT 10.18 FIRST AMENDMENT TO LEASE ------------------------ This First Amendment to Lease ("Amendment") is hereby entered into by and between HP/COMPTON, INC., a California corporation ("Landlord") and COMPTON ENTERTAINMENT, INC., a California corporation ("Tenant") with reference to the following facts: A. Landlord and Tenant have entered into that certain Lease by and between Landlord and Tenant dated August 3, 1995 (the "Lease"); B. The Lease provides for Tenant to operate a gaming facility on the premises which is the subject of the Lease (the "Premises"); C. In order to obtain governmental approval to operate the gaming facility on the Premises, the State of California Department of Justice has required Landlord and Tenant to amend certain provisions of the Lease; D. Both Landlord and Tenant desire to effectuate the required changes in the Lease and have therefore agreed to enter into this First Amendment to Lease. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Landlord and Tenant hereby agree as follows: 1. Defined Terms. Unless otherwise specified, all capitalized terms ------------- set forth herein shall carry the same meaning as proscribed to them in the Lease. 2. Amendments to Lease. The Lease shall be amended by making the ------------------- following changes: 2.1 The following new paragraph 2.02(c) shall be added to the Lease: "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 Property 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. Tenant's exercise of the foregoing right of termination shall not be deemed to affect Tenant's right to participate or enter into the Partnership Agreement at such time as Landlord or any affiliate become eligible to be licensed to operate a card club in the State of California." 2.2 The last sentence of paragraph 5.02(a) shall be deleted. 2.3 A new Section 8.07 shall be added to the Lease which will state the following: "Limitation on Landlord's Interest as to Transferees. --------------------------------------------------- Neither Landlord nor any assignee or transferee shall have the right to in any way -2- 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 8.07, 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 8.07 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." -3- 3. Other than the foregoing changes, the Lease shall remain in full force and effect in its entirety and may not be amended or modified except as provided therein. IN WITNESS WHEREOF, this First Amendment to Lease is executed this 12th day of March, 1996. COMPTON ENTERTAINMENT, INC. a California corporation By:_/s/Rouben Kandilian________________ Rouben Kandilian, President HP/COMPTON, INC. a California corporation By:_/s/G. Michael Finnigan______________ Its: Vice President___________ -4- EX-10.19 5 SECOND AMENDMENT TO LEASE HOLLYWOOD PARK, INC. - FORM 10-Q, SEPTEMBER 1996 - EXHIBIT 10.19 SECOND AMENDMENT TO LEASE ------------------------- This Second Amendment to Lease ("Amendment") is hereby entered into by and between Crystal Park Casino and Hotel Development Company, LLC, a California Limited Liability Company ("Landlord"), and COMPTON ENTERTAINMENT, INC., a California corporation ("Tenant"), with reference to the following facts: A. Landlord and Tenant are parties to that certain Lease by and between Landlord and Tenant dated August 3, 1995 (the "Lease"); B. Landlord and Tenant subsequently modified the Lease by executed that certain First Amendment to Lease dated March 12, 1996 (the "First Amendment"); C. The Lease provides for Tenant to operate a gaming facility on the premises which is the subject of the Lease (the "Premises"); D. In order to obtain governmental approval to operate the gaming facility on the Premises, the State of California Department of Justice has required Landlord and Tenant to amend certain provisions of the Lease and the First Amendment; E. Both Landlord and Tenant desire to effectuate the required changes in the Lease and the First Amendment and have therefore agreed to enter into this Second Amendment to Lease. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Landlord and Tenant hereby agree as follows: 1. Defined Terms. Unless otherwise specified, all capitalized ------------- terms set forth herein shall carry the same meaning as proscribed to them in the Lease. 2. Amendments to Lease. The Lease shall be amended by making ------------------- the following changes: 2.1 Section 3.01 shall be deleted in its entirety and the following shall be inserted in its place: "3.01 Monthly Rent. "3.01 Monthly Rent. ------------ (a) Tenant shall pay to Landlord as Monthly Rent the amounts set forth in the following schedule: Months 1 - 6 $200,000 Months 7 - 12 $350,000 Months 13 - 60 $759,375
Tenant shall have the right prior to the beginning of Month 13 to prepay up to $4,650,000 in rent, in which event the Monthly Rent due during Months 13 through 60 shall be reduced to $662,500. Provided Tenant has made the above-referenced prepayment, Tenant, at any time during Months 13 through 24, shall have the additional right to make a single lump sum prepayment of Monthly Rent, which payment shall be equal to an amount set forth in the following schedule: -2- Month 13 $5,428,145 Month 14 $5,353,451 Month 15 $5,227,513 Month 16 $5,200,308 Month 17 $5,121,815 Month 18 $5,042,014 Month 19 $4,960,882 Month 20 $4,878,397 Month 21 $4,794,536 Month 22 $4,709,277 Month 23 $4,622,596 Month 24 $4,534,470
(b) In the event Tenant exercises the option to make a prepayment of rent during Months 13 through 24, Tenant's rental obligation, for the remainder of the Term, including the month in which such prepayment is made, shall be reduced to $500,000 per month. 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 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 other charges and expenses of any nature whatsoever incurred by Landlord or Tenant in connection with the ownership and operation of the Premises. (c) On or before the 90th day following the opening of the Card Club, Landlord shall provide Tenant a detailed statement indicating the total investment of Landlord in the Card Club and related facilities (the "Total Improvement Amount"), including but not limited -3- to all tenant improvements Landlord has made to the Premises on behalf of Tenant (the "Improvement Statement"). In the event the Total Improvement Amount does not equal $25,000,000, the Landlord shall include in the Improvement Statement an adjustment schedule for both the Monthly Rent and the prepayments set forth in paragraphs (a) and (b) above (collectively, the "Prepayments") to accurately reflect Tenant's obligation to Landlord for the tenant improvements which Landlord provided (the "Improvement Adjustments"). The Improvement Adjustments shall be based upon a factor .0265 times the difference between the Total Improvement Amount and $25,000,000. Landlord shall use the resulting number to calculate the adjustments to the Monthly Rent and the Prepayments based upon the same formulas that were used to establish the Monthly Rent and Prepayments currently set forth herein. Upon receipt of the Improvement Statement, Tenant shall have 20 days (the "Objection Period") to object, in writing (the "Improvement Objection"), to the amount of the Improvement Adjustment as well as the costs used to calculate the Total Improvement Amount. Upon receipt of the Improvement Objection Landlord shall have 10 days to provide Tenant with any additional information necessary to justify the Total Improvement Amount and the Improvement Adjustments. In the event Tenant and Landlord cannot agree as to either the Total Improvement Amount or the Improvement Adjustments within 15 days of Landlord's receipt of the Improvement Objection, then such dispute shall be resolved in accordance with Section 13.2 of the Agreement Respecting Pyramid Casino. In the event Tenant fails to provide Landlord with the Improvement Objections within the Objection Period, the Total Improvement Amount and the Improvement Adjustments shall be deemed accepted by Tenant. The adjustment to Monthly Rent, if any, shall be effective as of the Commencement Date and any amount owing shall be either paid by Tenant with or -4- credited by Landlord against the next payment of Monthly Rent due immediately following the date on which the Improvement Adjustments are agreed upon by the parties or decided by an arbitration panel. 2.2 Section 3.02 shall be deleted in its entirety, and the following shall be inserted in its place: "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 -5- 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 an Event of Default." 2.3 Any reference in the Lease to the "Account," as such term was defined in Section 3.02 prior to this Second Amendment to Lease, shall be deleted or disregarded in the interpretation of the Lease. 2.4 Section 8.07 as set forth in the First Amendment shall be amended by inserting the following at the beginning thereof: "Except as it may relate to Tenant, or any affiliate or subsidiary of Tenant, as a transferee of Landlord's interest in accordance with the Agreement respecting Pyramid Casino,". -6- C3. Other than the foregoing changes which shall supersede the inconsistent provisions in the Lease, the Lease shall remain in full force and effect in its entirety and may not be amended or modified except as provided therein. IN WITNESS WHEREOF, this Second Amendment to Lease is executed this ____ day of ______________, 1996. COMPTON ENTERTAINMENT, INC. a California corporation By:_/s/Rouben Kandilian_____ Rouben Kandilian, President CRYSTAL PARK CASINO AND HOTEL DEVELOPMENT COMPANY a California Limited Liability Company By: HP/Compton, Inc., a California corporation, Manager By:__/s/G. Michael Finnigan_____________ G. Michael Finnigan, Vice President -7- EX-10.20 6 ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT HOLLYWOOD PARK, INC., SEPTEMBER 30, 1996, FORM 10-Q, EXHIBIT 10.20 ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT THIS ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT (this "Agreement"), is entered into as of the 18th day of July, 1996, by and among HP/COMPTON, INC., a California corporation (hereinafter called "Assignor"); CRYSTAL PARK HOTEL AND DEVELOPMENT COMPANY, LLC, a California limited liability company (hereinafter called "Assignee"); HOLLYWOOD PARK, INC., a Delaware corporation (hereinafter called "Guarantor"); and THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF COMPTON (the "Agency") W I T N E S S E T H : - - - - - - - - - - A. The Agency and Assignor are parties to that certain Amended and Restated Disposition and Development Agreement, Agreement of Purchase and Sale, and Lease with Option to Purchase, dated as of April 4, 1995 (the "DDA"), covering the real property described on Exhibit A hereto. The Agency and Assignor are also parties to those agreements set forth on Schedule 1 attached hereto (the "Related Agreements"). B. Assignor is a wholly owned subsidiary of Guarantor. Assignee is a limited liability company comprised of Assignor, Redwood Gaming LLC and First Park Investments, LLC. C. Assignor now desires to assign to Assignee all of its right, title and interest under said DDA and the Related Agreements, and Agency is willing to consent to such assignment, provided Assignee executes this Agreement hereinafter, and provided Guarantor reaffirms that certain Guaranty, dated July 31, 1995, made by Guarantor in favor of Agency. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto do hereby agrees as follows: 1. ASSIGNMENT. For value received, effective as of the date set ---------- forth above, Assignor hereby assigns to Assignee all of its right, title and interest in and to the DDA and the Related Agreements. 2. ASSUMPTION. Effective as of the date set forth above, Assignee ---------- hereby accepts such assignment; acknowledges that it has read the DDA and the Related Agreements and understands all of the terms and provisions thereof; and hereby (a) assumes and agrees to perform all of the obligations of Assignor set forth in the DDA and the Related Agreements and (b) confirms each and all of the provisions of the DDA and the Related Agreements, except those rights and obligations expressly reserved unto CEI thereunder. 3. CONSENT. Agency hereby consents to the aforementioned ------- assignment, provided, however, that such consent shall not be deemed a consent to any further or future assignment; nor shall such consent be deemed a waiver of the provisions of the DDA requiring the written consent of Agency to any assignment. 4. REAFFIRMATION OF GUARANTY AND CONSENT. Guarantor hereby ------------------------------------- consents to the assignment and assumption set forth below. Guarantor hereby renews, reaffirms, ratifies and confirms the Guaranty and agrees that it shall remain in full force and effect. 5. SUCCESSORS AND ASSIGNS. This Agreement, and each and all of the ---------------------- provisions hereof, shall inure to the benefit of, or bind, as the case may require, the parties hereto, and as well, their respective heirs, successors and assigns. 6. GOVERNING LAW. This Agreement shall be governed by and ------------- construed in accordance with the laws of the State of California. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. AGENCY: ASSIGNOR: THE COMMUNITY REDEVELOPMENT HP/COMPTON, INC, a California AGENCY OF THE CITY OF COMPTON, corporation a public body, corporate and politic By: /s/ G. Michael Finnigan By: /s/ Howard Caldwell -------------------------- ------------------------ G. Michael Finnigan Title: Excutive Secretary Its: Vice President ATTEST: ASSIGNEE: /s/ Charles Davis CRYSTAL PARK HOTEL AND - --------------------------- DEVELOPMENT COMPANY, LLC, Secretary a California limited liability company By: HP/COMPTON, INC., a California corporation, Manager By: /s/ G. Michael Finnigan --------------------------- G. Michael Finnigan Its: Vice President GUARANTOR: HOLLYWOOD PARK, INC., a Delaware corporation By: /s/ G. Michael Finnigan --------------------------- G. Michael Finnigan Its: President, Sports & Entertainment -2- EX-10.21 7 CONSENT OF COMPTON ENTERTAINMENT, INC. AND ROUBEN KANDILIAN HOLLYWOOD PARK, INC. SEPTEMBER 30, 1996, FORM 10-Q, EXHIBIT 10.21 CONSENT OF COMPTON ENTERTAINMENT, INC. -------------------------------------- AND ROUBEN KANDILIAN -------------------- Hollywood Park, Inc., a Delaware corporation ("HPI"), on the one hand, and Compton Entertainment, Inc., a California corporation ("CEI") and Rouben Kandilian ("Kandilian"), on the other hand, entered into that certain Amended and Restated Agreement Respecting Pyramid Casino, dated July 14, 1995 (the "Amended Agreement"). Effective August 3, 1995, HPI assigned all of its right, title and interest in the Amended Agreement to HP/Compton, Inc., a California corporation ("HPC"). HPC and CEI are also parties to the agreements described on Schedule 1 attached hereto (the "Related Agreements"). Pursuant to Article 10.2 of the Amended Agreement, HPC has the right to assign its interest in the Card Club (as that term is defined in the Amended Agreement), including, without limitation, the Amended Agreement and the Related Agreements to a limited liability company ("LLC"), composed of HPC and the HPI Investors) (as that term is defined in the Amended Agreement). HPC has advised CEI and Kandilian that in lieu of the LLC members previously identified, "Crystal Park Hotel and Casino Development Company, LLC" will be the LLC, and its members will be: HPC (owned by HPI) 88% Redwood Gaming LLC 8% (controlled by Cynthia R. DeBartolo) First Park Investments LLC 4% (controlled by Leo Chu and Ivy Chu)
Subject to agreement by HPI to the paragraph set forth below, CEI and Kandilian do hereby consent to Redwood Gaming LLC and First Park Investments LLC as the HPI Investors for all purposes under the Amended Agreement. CEI acknowledges that HPC is assigning all of its right, title and interest in the Card Club to the LLC. Other than to identify the HPI Investors, CEI and Kandilian's consent is not intended to amend the Amended Agreement. COMPTON ENTERTAINMENT, INC., a California Corporation /s/ Rouben Kandilian By: /s/ Rouben Kandilian - -------------------------- ------------------------ Rouben Kandilian Rouben Kandilian Its: President Date: August 29, 1996 Date: August 29, 1996 --------------- --------------- AGREEMENT OF HPI ---------------- HPI acknowledges and agrees that notwithstanding the assignment of the Amended Agreement and the Related Agreements to the LLC, HPI shall remain primarily liable to CEI and Kandilian for the full and prompt performance of all of the terms and provisions thereof. HOLLYWOOD PARK, INC., a Delaware corporation By: /s/ G. Michael Finnigan ---------------------------- G. Michael Finnigan Its: President, Sports and Entertainment Division -2- EX-10.24 8 OPERATING AGREEMENT OPERATING AGREEMENT FOR CRYSTAL PARK HOTEL AND CASINO DEVELOPMENT COMPANY, LLC A CALIFORNIA LIMITED LIABILITY COMPANY THE SECURITIES REPRESENTED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 NOR REGISTERED OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS QUALIFIED AND REGISTERED UNDER APPLICABLE STATE AND FEDERAL SECURITIES LAWS OR UNLESS, IN THE OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, SUCH QUALIFICATION AND REGISTRATION IS NOT REQUIRED. ANY TRANSFER OF THE SECURITIES REPRESENTED BY THIS AGREEMENT IS FURTHER SUBJECT TO OTHER RESTRICTIONS, TERMS AND CONDITIONS WHICH ARE SET FORTH HEREIN. TABLE OF CONTENTS -----------------
Page ---- ARTICLE 1 ORGANIZATIONAL MATTERS 2 1.1 FORMATION 2 1.2 NAME 2 1.3 TERM 3 1.4 COMPANY PROPERTY 3 1.5 OFFICE AND AGENT 3 1.6 ADDRESSES OF THE MEMBERS 3 1.7 PURPOSE OF COMPANY 3 ARTICLE 2 CAPITAL CONTRIBUTIONS 4 2.1 INITIAL CAPITAL CONTRIBUTIONS 4 2.2 ADDITIONAL CAPITAL CONTRIBUTIONS 5 2.3 CAPITAL ACCOUNTS 5 2.4 NO INTEREST ON OR WITHDRAWAL OF CAPITAL 6 2.5 THIRD PARTY LOANS. 6 2.6 SHORT-TERM ADVANCES 6 2.7 DILUTION 6 ARTICLE 3 ALLOCATIONS OF NET PROFITS AND NET LOSSES 7 3.1 ALLOCATIONS OF INCOME AND NET PROFITS 7 3.2 ALLOCATIONS OF NET LOSSES 7 3.2.1 POSITIVE CAPITAL ACCOUNTS 7 3.2.2 PROFIT PERCENTAGE INTERESTS 7 3.3 SPECIAL ALLOCATIONS 7 3.3.1 MEMBER NONRECOURSE DEDUCTIONS 7
Page ---- 3.3.2 NONRECOURSE DEDUCTIONS REFERABLE TO LIABILITIES OWED TO NON-MEMBERS 8 3.3.3 MEMBER MINIMUM GAIN CHARGEBACK 8 3.3.4 MINIMUM GAIN CHARGEBACK 8 3.3.5 QUALIFIED INCOME OFFSET 9 3.4 CURATIVE ALLOCATIONS 9 3.5 APPLICATION OF SECTION 704(C) PRINCIPLES 9 3.6 ALLOCATION OF EXCESS NON-RECOURSE LIABILITIES 9 3.7 INTENTION TO BE TAXED AS A PARTNERSHIP 9 3.8 ALLOCATION OF NET PROFITS AND LOSSES IN RESPECT OF A TRANSFERRED INTEREST 9 3.9 OBLIGATIONS OF MEMBERS TO REPORT ALLOCATIONS 10 ARTICLE 4 DISTRIBUTIONS 10 4.1 DISTRIBUTION OF ASSETS BY THE COMPANY 10 4.2 NET CASH FLOW 10 4.3 PERSONS TO RECEIVE DISTRIBUTION 10 4.4 FORM OF DISTRIBUTION 10 4.5 WITHHOLDING ON DISTRIBUTIONS 10 4.6 RETURN OF DISTRIBUTIONS 11 ARTICLE 5 MEMBERS 11 5.1 LIMITED LIABILITY 11 5.2 ADMISSION OF ADDITIONAL MEMBERS 11 5.3 TRANSACTIONS WITH THE COMPANY 11 5.4 MEMBERS ARE NOT AGENTS 12
Page ---- 5.5 VOTING RIGHTS 12 5.5.1 GENERAL RULE 12 5.5.2 MEETINGS OF MEMBERS 12 5.5.3 PROXIES 12 5.6 WITHDRAWAL, RESIGNATION AND RETIREMENT 13 ARTICLE 6 MANAGEMENT AND CONTROL OF THE COMPANY 13 6.1 MANAGEMENT OF THE COMPANY BY THE MANAGER 13 6.1.1 EXCLUSIVE MANAGEMENT BY THE MANAGER 13 6.1.2 AGENCY AUTHORITY OF THE MANAGER 13 6.2 MANAGER 14 6.2.1 INITIAL MANAGER 14 6.2.2 TERM OF OFFICE; SUCCESSOR MANAGER 14 6.2.3 RESIGNATION 14 6.3 LIMITATIONS ON MANAGER'S AUTHORITY 14 6.4 CARD CLUB OPERATOR; HOTEL OPERATOR; OTHER OFFICERS 15 6.4.1 CARD CLUB OPERATOR; HOTEL OPERATOR 15 6.4.2 OTHER OFFICERS 15 6.5 REMUNERATION AND REIMBURSEMENT OF MEMBERS 15 6.6 BUDGETS 16 6.7 BANK ACCOUNTS 16 6.8 INSURANCE 16 ARTICLE 7 TRANSFER AND ASSIGNMENT OF INTERESTS 16
Page ---- 7.1 RESTRICTIONS ON TRANSFER; TRANSFERS OF ECONOMIC INTERESTS 16 7.2 RIGHTS OF FIRST REFUSAL 17 7.3 TRANSFERS SUBJECT TO LICENSES AND APPROVALS 18 7.4 EFFECT OF NON-COMPLIANCE 18 7.5 EFFECT OF TRANSFER 18 7.6 RIGHTS OF LEGAL REPRESENTATIVES 18 7.7 OBLIGATION TO COMPLY WITH APPLICABLE LAW 19 7.8 CHANGES OF CONTROL -- DEBARTOLO AND CHU 19 7.9 PUT/CALL 20 7.9.1 CHU/HPC 20 7.9.2 DEBARTOLO/HPC 20 7.9.3 DETERMINATION OF FAIR VALUE 21 7.9.4 HPC OPTION 22 7.9.5 CLOSING 23 7.10 TAG-ALONG RIGHTS 23 7.10.1 RIGHT TO PARTICIPATE IN SALE 23 7.10.2 SALE NOTICE 24 7.10.3 TAG-ALONG NOTICE 24 7.10.4 VOID TRANSFERS 24 7.10.5 EXEMPT TRANSFERS 25 ARTICLE 8 ACCOUNTING, RECORDS, REPORTING BY MEMBERS 25 8.1 FISCAL YEAR 25 8.2 BOOKS AND RECORDS 25 8.3 STATEMENTS 26
Page ---- 8.3.1 ANNUAL REPORT 26 8.3.2 TAX INFORMATION 26 8.3.3 ANNUAL STATE REPORT 26 8.3.4 MONTHLY REPORTS 26 8.4 FILINGS 27 8.5 BANK ACCOUNTS 27 8.6 TAX MATTERS FOR THE COMPANY HANDLED BY THE MANAGER AND TAX MATTERS PARTNER 27 ARTICLE 9 DISSOLUTION AND WINDING UP 27 9.1 EVENTS OF DISSOLUTION 27 9.2 EFFECT OF A DISSOLUTION EVENT (OTHER THAN DISSOLUTION) 28 9.3 CERTIFICATE OF DISSOLUTION 28 9.4 WINDING UP 28 9.5 DISTRIBUTIONS IN KIND 29 9.6 ORDER OF PAYMENT UPON DISSOLUTION 29 9.7 COMPLIANCE WITH REGULATIONS 29 9.8 LIMITATIONS ON PAYMENTS MADE IN DISSOLUTION 29 9.9 CERTIFICATE OF CANCELLATION 30 9.10 NO ACTION FOR DISSOLUTION 30 ARTICLE 10 INDEMNIFICATION AND INSURANCE 30 10.1 INDEMNIFICATION OF COMPANY PERSONS 30 10.2 SUCCESSFUL DEFENSE 31 10.3 INDEMNIFICATION OF OTHER AGENTS 31 10.4 RIGHT TO INDEMNIFICATION UPON APPLICATION 32 10.4.1 TIMING 32
Page ---- 10.4.2 ENFORCEMENT 32 10.5 PAYMENT OF EXPENSES IN ADVANCE 32 10.6 LIMITATIONS ON INDEMNIFICATION 32 10.7 OTHER TERMS OF INDEMNIFICATION 33 10.7.1 PARTIAL INDEMNIFICATION 33 10.7.2 INDEMNITY NOT EXCLUSIVE 33 10.7.3 INSURANCE 33 10.7.4 HEIRS, EXECUTORS AND ADMINISTRATORS 34 ARTICLE 11 REGISTRATION RIGHTS 34 11.1 INCIDENTAL REGISTRATION 34 11.1.1 NOTICE 35 11.1.2 INCLUSION OF SHARES 35 11.1A DEMAND REGISTRATION 35 11.1A.1 NOTICE OF DEMAND 35 11.1A.2 HOLDER AND REGISTRATION 36 11.1A.3 HOLDBACK 36 11.2 REGISTRATION PROCEDURES 36 11.2.1 SELLING HOLDER INFORMATION 36 11.2.2 CONSULTATION 36 11.2.3 PROVISION OF PROSPECTUSES 36 11.2.4 BLUE SKY COMPLIANCE 36 11.2.5 AMENDMENTS 37 11.2.6 PROSPECTUS DELIVERY 37 11.2.7 STOP-ORDERS 37 11.2.8 UNDERWRITING AGREEMENT 37 11.2.9 COMPLIANCE WITH LAWS 37
Page ---- 11.3 REGISTRATION NOT REQUIRED 38 11.4 DELAY OF REGISTRATION 38 11.5 INDEMNITY 38 11.5.1 HPI'S INDEMNITY 38 11.5.2 THE HOLDER'S INDEMNITY 38 11.6 EXPENSES OF REGISTRATION 39 11.7 TERMINATION 39 ARTICLE 12 MISCELLANEOUS 39 12.1 OTHER VENTURES; COMPETITION 39 12.2 COUNSEL TO THE COMPANY 40 12.3 GENERAL PROVISIONS 40 12.3.1 COMPLETE AGREEMENT 40 12.3.2 DISPUTES 40 12.3.2.1 GOVERNING LAW; JURISDICTION 40 12.3.2.2 ARBITRATION AS EXCLUSIVE REMEDY 40 12.3.3 ADDITIONAL DOCUMENTS 41 12.3.4 NOTICES 41 12.3.5 PARTIES 42 12.3.5.1 NO THIRD-PARTY BENEFITS 42 12.3.5.2 SUCCESSORS AND ASSIGNS 42 12.3.6 GOVERNING LAW; JURISDICTION 42 12.3.7 WAIVER OF JURY 42 12.3.8 WAIVERS STRICTLY CONSTRUED 42 12.3.9 RULES OF CONSTRUCTION 42 12.3.9.1 HEADINGS 42
Page ---- 12.3.9.2 TENSE AND CASE 43 12.3.9.3 SEVERABILITY 43 12.3.9.4 AGREEMENT NEGOTIATED 43 12.3.10 COUNTERPARTS 43 12.4 AMENDMENTS 43 12.5 RELIANCE ON AUTHORITY OF PERSON SIGNING AGREEMENT 43 12.6 INVESTMENT REPRESENTATION 43 12.7 LLC AS CARD CLUB OPERATOR 44
OPERATING AGREEMENT FOR CRYSTAL PARK HOTEL AND CASINO DEVELOPMENT COMPANY, LLC A CALIFORNIA LIMITED LIABILITY COMPANY This Operating Agreement is made as of July 18, 1996, by and among HP/COMPTON, INC., a California corporation ("HPC"), REDWOOD GAMING LLC, a California limited liability company ("DeBartolo") and FIRST PARK INVESTMENTS, LLC, a California limited liability company ("Chu"), with reference to the following facts: A. Compton Entertainment, Inc., a California corporation ("CEI") and each of its officers, directors and shareholders has been licensed (the "City License") by the City of Compton (the "City") to own and operate a card club (the "Card Club") located in the area known as Alameda Auto Plaza in the City (the "Card Club Site"). B. Pursuant to an Amended and Restated Agreement Respecting Pyramid Casino by and between Hollywood Park, Inc., a Delaware corporation and the parent corporation of HPC ("HPI"), on the one hand, and CEI and the principal shareholder of CEI, Rouben Kandilian, on the other hand (the "Purchase Agreement"), HPC (by assignment of HPI's rights thereunder) acquired CEI's rights to the Card Club Site, including its rights under that certain Amended and Restated Disposition and Development Agreement, Agreement of Purchase and Sale, and Lease with Option to Purchase (the "DDA") with The Community Redevelopment Agency of the City (the "Real Property Rights"), the plans and specifications for the construction of the Card Club (the "Plans"), an option (the "License Rights Option") to acquire the City License and all other assets held by CEI pertaining to the Card Club. C. Pursuant to the DDA, HPC has leased certain improvements on the Card Club Site adjacent to the Card Club which HPC is obligated to remodel, furnish and operate as a hotel (the "Hotel"). D. HPC and CEI have entered into a Lease of the Card Club, dated as of August 3, 1995, with HPC as Landlord and CEI as Tenant (the "Lease"). Pursuant to the Lease, HPC is to construct, develop and furnish the Card Club on the Card Club Site pursuant to the Plans. Costs of construction, development and furnishing of the Card Club and the Hotel and related start-up matters (collectively, "Project Costs") are expected to be approximately $25,000,000, including an aggregate $5,000,000 paid or to be paid by HPC to CEI for the Real Property Rights, the Plans, the License Rights Option and the exercise price -1- under the License Rights Option. HPC has expended approximately $9,200,000 to date on Project Costs and related matters. E. Section 5.4.1 of the Purchase Agreement provides that at such time as HPI is licensed as an operator of the Card Club under applicable California law and City ordinances, the Lease shall terminate and CEI and HPI shall enter into a partnership agreement (or limited liability company operating agreement) for the ownership and operation of the Card Club. F. HPC, DeBartolo and Chu wish to form a limited liability company to acquire all of HPC's rights to construct and own the Card Club, to acquire HPC's rights under the Lease, the DDA and the Purchase Agreement and to enter into this Agreement for the management and operation of the Company (as hereinafter defined). G. The Members have executed, and have filed or will cause to be filed with the California Secretary of State, Articles of Organization ("Articles") of Crystal Park Hotel and Casino Development Company, LLC, a California limited liability company (the "Company"), pursuant to the provisions of California Corporations Code, Title 2.5, also known as the Beverly-Killea Limited Liability Company Act (the "Act"). NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the Members (capitalized terms are generally defined in Schedule I) by this Agreement set forth the operating agreement for the Company - ---------- under the laws of the State of California. ARTICLE 1 ORGANIZATIONAL MATTERS 1.1 FORMATION. Pursuant to the Act, the Members have formed a --------- California limited liability company under the laws of the State of California by filing the Articles with the California Secretary of State and entering into this Agreement. The rights and liabilities of the Members shall be determined pursuant to the Act and this Agreement. To the extent that the rights or obligations of any Member are different by reason of any provision of this Agreement than they would be in the absence of such provision, this Agreement shall, to the extent permitted by the Act, control. 1.2 NAME. The name of the Company shall be "CRYSTAL PARK HOTEL AND ---- CASINO DEVELOPMENT COMPANY, LLC." The business of the Company may be conducted under that name or, upon compliance with applicable laws, any other name that the Manager deems appropriate or advisable. The Manager shall file any fictitious name certificates and similar filings, and any -2- amendments thereto, that the Manager considers appropriate or advisable. 1.3 TERM. The term of this Agreement shall be co-terminus with the ---- period of duration of the Company provided in the Articles, unless extended or sooner terminated as hereinafter provided. 1.4 COMPANY PROPERTY. Pursuant to Section 2.1 hereof, the property of ---------------- the Company (the "Company Property") shall consist of all of HPC's interest in the Card Club Site, including the Real Property Rights, the Card Club, the License Rights Option, HPC's rights under the Purchase Agreement, the Lease, and the DDA, and all other assets and properties, tangible and intangible, that are hereafter acquired or received by the Company. No Member, individually, shall have any ownership of the Company Property. 1.5 OFFICE AND AGENT. The Company shall continuously maintain an office ---------------- and registered agent in the State of California as required by the Act. The principal office of the Company shall be as determined by the Manager. The Company also may have such offices, anywhere within and without the State of California, as the Manager from time to time may determine. The registered agent shall be as stated in the Articles or as otherwise determined by the Manager. 1.6 ADDRESSES OF THE MEMBERS. The respective names and addresses of the ------------------------ Members are set forth on Exhibit A. The Manager shall revise Exhibit A from --------- --------- time to time as changes in the information on that Exhibit occur. 1.7 PURPOSE OF COMPANY. The purpose of the Company is to engage in any ------------------ lawful activity for which a limited liability company may be organized under the Act. Notwithstanding the foregoing, without the written consent of all of the Members, the Company shall not engage in any business other than the following: (a) The business of developing and owning the Card Club and, after such time as applicable law is amended to permit public companies to operate card clubs or HPI or HPC is otherwise legally permitted to operate the Card Club, to obtain all necessary licenses and approvals for, and to transfer the Company Assets to, Newco in accordance with the Purchase Agreement, with Newco thereafter to own and operate the Card Club and to own, lease or operate or to provide for the operation by others of the other Company Assets; (b) The business of remodeling, furnishing and operating or contracting for the operation of the Hotel; (c) The business of acquiring the Card Club Site or other property pursuant to the DDA and developing, constructing, -3- operating, contracting for the operation of and/or leasing other improvements at the Card Club Site or such other property as may be acquired and/or leased pursuant to the DDA; and (d) Such other activities directly related to the foregoing businesses as may be necessary, advisable or appropriate to further the foregoing business. In furtherance of this purpose, after such time as applicable law is amended to permit public companies to operate card clubs or HPI or HPC is otherwise legally permitted to operate the Card Club, each Member shall, and shall cause each person or entity that has a direct or indirect interest in such Member and who is required to apply for a license in order for the Company or Newco to acquire a license to operate the Card Club to, apply to the appropriate governmental authorities to obtain such licenses and approvals as are necessary for the Company or Newco to obtain a license to operate the Card Club. ARTICLE 2 CAPITAL CONTRIBUTIONS 2.1 INITIAL CAPITAL CONTRIBUTIONS. The Members shall make the following ----------------------------- contributions to the Company ("Initial Capital Contributions"): Chu $ 1,000,000 HPC $22,000,000 DeBartolo $ 2,000,000
Chu and DeBartolo shall contribute their Initial Capital Contributions in cash on the effective date of this Agreement. HPC shall satisfy a portion of its Initial Capital Contribution by assigning to the Company all of its right, title and interest in and to the Card Club Site, including without limitation the Real Property Rights and HPC's rights under the Purchase Agreement, the Lease and the License Rights Option (together, the "Initial Card Club Assets"), upon approval of such assignment by the City and CEI. The Company shall assume all of HPC's obligations under or with respect to the Initial Card Club Assets, including without limitation obligations under the agreements set forth in Schedule 2.1, ------------ and shall indemnify HPC and HPI and hold each of them harmless from and against all losses, liabilities, costs and expenses with respect thereto (the "Card Club Liabilities"). The parties agree that the net fair market value of the non-cash assets contributed by HPC (i.e., the value of the Initial Card Club Assets minus ---- the value of the Card Club Liabilities) is equal to the amount of HPC's Initial Expenses which, as of July 8, 1996, were approximately Nine Million Two Hundred Thousand Dollars ($9,200,000), as shown on Schedule 6.5. HPC shall contribute, ------------ as and when required by -4- the Company, cash of up to the difference between the Initial Expenses on the date that the Initial Card Club Assets are assigned to the Company and Twenty- Two Million Dollars ($22,000,000). 2.2 ADDITIONAL CAPITAL CONTRIBUTIONS. Except as may be explicitly -------------------------------- agreed in writing by the Member and the Company, no Member shall be required to make any additional Capital Contributions. If the Manager notifies the Members, from time to time upon at least twenty (20) days' prior written notice, that additional Capital Contributions are necessary for (i) the acquisition, development and construction of the Card Club and the remodeling and furnishing of the Hotel and related activities in accordance with the Budget in effect from time to time or (ii) the acquisition and/or leasing of the Card Club Site or other property pursuant to the DDA or (iii) such improvements to the Card Club Site or other property acquired and/or leased pursuant to the DDA as are agreed upon by a Super Majority Interest or (iv) the payment of Card Club Liabilities or (v) such additional expenses as may be incurred after such time as applicable law is amended to permit public companies to operate card clubs or HPI or HPC is otherwise legally permitted to operate the Card Club, in connection with the formation of Newco and in connection with the operation by Newco of the Card Club or (vi) any other business purpose of the Company (collectively, "Additional Capital Contributions") each of the Members shall have the right, but not the obligation, to contribute as Additional Capital an amount equal to its respective Profit Percentage Interest of such Additional Capital Contribution. If any Member elects not to make such Additional Capital Contribution (the "Non-participating Member Contribution"), and HPC contributes its Profit Percentage Interest of such Additional Capital Contribution, then HPC shall be entitled to contribute as an Additional Capital Contribution an amount equal to the Non-participating Member Contribution. To the extent that the Members do not contribute their respective Profit Percentage Interests of Additional Capital Contributions, their Profit Percentage Interests shall be adjusted in accordance with Section 2.7. 2.3 CAPITAL ACCOUNTS. The Company shall establish an individual Capital ---------------- Account for each Member. The Company shall determine and maintain each Capital Account in accordance with Regulations Section 1.704-1(b)(2)(iv). Upon the contributions by the Members under Section 2.1 and 2.2, each such Member will receive a credit to its Capital Account in the amount of cash or the fair market value of property so contributed. If a Member Transfers all or a part of such Member's Membership Interest in accordance with this Agreement, such Member's Capital Account attributable to the Transferred Membership Interest shall carry over to the new owner of such Membership Interest pursuant to Regulations Section 1.704-1(b)(2)(iv)(1). Each Capital Account shall consist of a Member's paid-in Capital Contribution(s) (whether in cash, property, services or otherwise, including a -5- Member's payment of claims against or liabilities of the Company to the extent that the payor has no right of indemnification or contribution) (a) increased by such Member's allocated share of Net Profits in accordance with Article 3 hereof, (b) decreased by such Member's allocated share of Net Losses and distributions in accordance with Article 3 hereof, and (c) adjusted as otherwise required in accordance with the Code, Regulations and generally accepted accounting principles (to the extent consistent with the Code and Regulations). If the book value of property is adjusted pursuant to Regulations 1.704-1(b)(2)(ix)(f), Capital Accounts shall be adjusted as provided in Regulations Section 1.704-1(b)(2)(iv)(g). 2.4 NO INTEREST ON OR WITHDRAWAL OF CAPITAL. No Member shall be --------------------------------------- entitled to receive any interest on such Member's Capital Contributions. Except as otherwise provided by law, no Member shall be entitled to withdraw or reduce its Capital Contribution or to demand or receive property other than cash in return for its Capital Contribution. No Member shall have any obligation, upon winding up of the Company, to restore any deficit balance in its Capital Account for the benefit of the other Members. 2.5 THIRD PARTY LOANS. The Company may seek debt financing from banks, ----------------- savings and loan associations or other financial institutions from time to time if the Manager determines that the Initial Capital Contributions are insufficient for the conduct of its business or if the Manager otherwise determines in good faith that such financing is necessary or desirable ("Third Party Loans"), provided that no Member shall be required to guarantee any Third -------- Party Loan unless such Member agrees to do so. Third Party Loans may be secured by liens on the Company Property and shall have such other terms and conditions as may be determined by a Super Majority Interest. 2.6 SHORT-TERM ADVANCES. Any Member may, but shall be under no ------------------- obligation to, advance funds in excess of its obligation to make Initial Capital Contributions and Additional Capital Contributions ("Advances") in order to pay operational expenditures on a short-term basis in contemplation of income from operations or a disbursement of funds from Third Party Loans, if, in the judgment of the Manager, payment of expenditures cannot or should not be delayed until such funds are obtained by the Company. Amounts funded by a Member pursuant to this Section 2.6 shall bear interest at the Rate plus 200 basis points (but in no event greater than the maximum rate permitted under applicable law), and shall be repaid immediately upon receipt of funds contemplated to be received as provided above or from other Company assets as agreed by all of the Members. 2.7 DILUTION. In the event that HPC contributes its Profit Percentage -------- Interest of an Additional Capital Contribution -6- and Chu and/or DeBartolo, as applicable, does not contribute its Profit Percentage Interest of such Additional Capital Contribution, the Profit Percentage Interests shall be recalculated such that (a) Chu's or DeBartolo's (as applicable) Profit Percentage Interest shall equal one-hundred (100) multiplied by a fraction, the numerator of which shall equal Chu's or DeBartolo's (as applicable) Capital Contributions and the denominator of which shall equal the total of all Capital Contributions by all Members; and (b) the Profit Percentage Interest of HPC shall be increased by the reduction in the Profit Percentage Interest of Chu or DeBartolo (as applicable) determined pursuant to clause (a) of this Section 2.7 from the Profit Percentage Interest of Chu or DeBartolo (as applicable) immediately prior to such determination. ARTICLE 3 ALLOCATIONS OF NET PROFITS AND NET LOSSES 3.1 ALLOCATIONS OF INCOME AND NET PROFITS. After giving effect to the ------------------------------------- special allocations set forth in Sections 3.3 and 3.4 hereof, Net Profits shall be allocated in accordance with the Members' Profit Percentage Interests, which shall initially be as follows: HPC 88% DeBartolo 8% Chu 4% The foregoing Profit Percentage Interests shall be subject to adjustment from time to time upon the admission of new Members or in accordance with Section 2.7. 3.2 ALLOCATIONS OF NET LOSSES. After giving effect to the special ------------------------- allocations set forth in Sections 3.3 and 3.4 hereof, Net Losses shall be allocated to the Members as follows: 3.2.1 POSITIVE CAPITAL ACCOUNTS. Net Losses shall first be ------------------------- allocated to the Members in proportion to and to the extent of their positive Capital Account balances. 3.2.2 PROFIT PERCENTAGE INTERESTS. Except as provided in --------------------------- Section 3.2.1, Net Losses shall be allocated to the Members in proportion to their Profit Percentage Interests. 3.3 SPECIAL ALLOCATIONS. ------------------- 3.3.1 MEMBER NONRECOURSE DEDUCTIONS. Any Member Nonrecourse ----------------------------- Deductions for any Fiscal Year and any other deductions or losses for any Fiscal Year referable to a liability owed by the Company to (or guaranteed or indemnified by) a Member for which no other Member bears the economic risk -7- of loss shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt or other liability to which such Member Nonrecourse Deductions or other deductions are attributable in accordance with Regulations Section 1.704-2(i) and Regulations Section 1.704- 1(b). 3.3.2 NONRECOURSE DEDUCTIONS REFERABLE TO LIABILITIES OWED TO ------------------------------------------------------- NON-MEMBERS. Any Nonrecourse Deductions for any Fiscal Year and any other - ----------- deductions or losses for any Fiscal Year referable to a liability owed by the Company to a Person other than a Member for which no Member bears the economic risk of loss shall be specially allocated to the Members in proportion to their Profit Percentage Interests. 3.3.3 MEMBER MINIMUM GAIN CHARGEBACK. Except as otherwise ------------------------------ provided in Regulation Section 1.704-2(i)(4), notwithstanding any other provision of this Article 3, if there is a net decrease in Member Nonrecourse Debt Minimum Gain (as defined in Regulations Section 1.704-2(i)(2)) attributable to a Member Nonrecourse Debt during any Fiscal Year, each Member who has a share of the Member Nonrecourse Minimum Gain attributable to such Member Nonrecourse Debt (which share shall be determined in accordance with Regulations Section 1.704-2(i)(5)) shall be specially allocated items of Company income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to that portion of such Member's share of the net decrease in Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Regulations Section 1.704-2(i)(4) and 1.704- 2(j)(2). This Section 3.3.3 is intended to comply with the minimum gain chargeback requirement contained in Regulations Section 1.704-2(i)(4) and shall be interpreted consistently therewith. 3.3.4 MINIMUM GAIN CHARGEBACK. Except as otherwise provided in ----------------------- Regulations Section 1.704-2(f), notwithstanding any other provision of this Article 3, if there is a net decrease in Company Minimum Gain during any Fiscal Year, each Member shall be specially allocated items of Company income and gain for such Fiscal Year (and, if necessary, in subsequent Fiscal Years) in an amount equal to the portion of such Member's share of the net decrease in Company Minimum Gain which share of such net decrease shall be determined in accordance with Regulations Section 1.704-2(g)(2). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Regulations Section 1.704-2(f)(6) and 1.704-2(j)(2). This Section 3.3.4 is intended to comply with the minimum gain chargeback requirement contained in -8- Regulations Section 1.704-2(f) and shall be interpreted consistently therewith. 3.3.5 QUALIFIED INCOME OFFSET. In the event a Member ----------------------- unexpectedly receives any adjustments, allocations, or distributions described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6) or any other event creates an Adjusted Capital Account Deficit, items of Company income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate such excess deficit balance as quickly as possible. 3.4 CURATIVE ALLOCATIONS. The allocations set forth in Section 3.3 -------------------- hereof (the "Regulatory Allocations") are intended to comply with certain requirements of the Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss, or deduction pursuant to this Section 3.4. Therefore, notwithstanding any other provision of this Article 3 (other than the Regulatory Allocations), the Members shall make such offsetting special allocations of Company income, gain, loss, or deduction in whatever manner they determine appropriate so that, after such offsetting allocations are made, a Member's Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not part of this Agreement and all Company items were allocated pursuant to Sections 3.1 and 3.2. 3.5 APPLICATION OF SECTION 704(C) PRINCIPLES. Notwithstanding the ---------------------------------------- preceding sections of this Article 3: (a) Section 704(c) of the Code shall apply to the allocation of items of income, gain, deduction and loss related to contributed property having a tax basis at the time of contribution that differs from its fair market value; and (b) Regulations Section 1.704-1(b)(2)(iv)(f) shall apply to the items of income, gain, deduction and loss related to property the book value of which is adjusted pursuant to that Regulations Section. 3.6 ALLOCATION OF EXCESS NON-RECOURSE LIABILITIES. For purposes of --------------------------------------------- Section 752 of the Code and Section 1.752-2(a)(3) of the Regulations, "excess non-recourse liabilities" shall be allocated among the Members in accordance with their Profit Percentage Interests. 3.7 INTENTION TO BE TAXED AS A PARTNERSHIP. The Company shall be -------------------------------------- treated as a partnership for tax purposes. 3.8 ALLOCATION OF NET PROFITS AND LOSSES IN RESPECT OF A TRANSFERRED ---------------------------------------------------------------- INTEREST. If any Membership Interest is - -------- -9- Transferred, or is increased or decreased by reason of the admission of a new Member, Additional Capital Contributions or otherwise, during any Fiscal Year of the Company, each item of income, gain, loss, deduction or credit of the Company for such Fiscal Year shall be allocated among the Members by the Manager in accordance with any method permitted by Section 706(d) of the Code and the applicable Regulations in order to take into account the Members' varying Percentage Interests during the Year. 3.9 OBLIGATIONS OF MEMBERS TO REPORT ALLOCATIONS. The Members are aware -------------------------------------------- of the income tax consequences of the allocations made by this Article 3 and hereby agree to be bound by the provisions of this Article 3 in reporting their shares of Company income and loss for income tax purposes. ARTICLE 4 DISTRIBUTIONS 4.1 DISTRIBUTION OF ASSETS BY THE COMPANY. Subject to applicable law ------------------------------------- and any limitations contained elsewhere in this Agreement, no distribution shall be made if, after giving effect to the distribution, (a) the Company would not be able to pay its debts as they become due in the usual course of business, or (b) the Company's total assets would be less than the sum of its total liabilities. 4.2 NET CASH FLOW. Subject to Section 4.1, Net Cash Flow, if any, shall ------------- be distributed within thirty (30) days after the end of each calendar quarter to the Members in accordance with the Members' respective Profit Percentage Interests on the date of the distribution. 4.3 PERSONS TO RECEIVE DISTRIBUTION. All distributions shall be made to ------------------------------- the Persons who, according to the books and records of the Company, are the holders of record of the Economic Interests in respect of which such distributions are made on the actual date of distribution. Neither the Company nor any Company Person shall incur any liability for making distributions in accordance with this Section 4.3. 4.4 FORM OF DISTRIBUTION. A Member, regardless of the nature of the -------------------- Member's Capital Contribution, has no right to demand and receive any distribution from the Company in any form other than money. No Member may be compelled to accept from the Company a distribution of any asset in kind in lieu of a proportionate distribution of money being made to other Members. 4.5 WITHHOLDING ON DISTRIBUTIONS. Each Member consents and agrees that ---------------------------- the Company may deduct and withhold amounts for tax or other obligations of such Member on any amount -10- distributed or allocated by the Company to such Member, and to any assignee of a Member's Membership Interest (or the related Economic Interest), if the Company believes in good faith that it is required by law to do so. All amounts so withheld with respect to such Member, substitute Member, or Economic Interest Owner shall be treated as amounts distributed to such Person pursuant to Section 9.5 or 9.6 for all purposes under this Agreement. In addition, the affected Member, substitute Member or Economic Interest Owner shall reimburse the Company for any such amounts so withheld to the extent not deducted from a distribution. 4.6 RETURN OF DISTRIBUTIONS. Except for distributions made in violation ----------------------- of the Act or this Agreement, no Member or Economic Interest Owner shall be obligated to return any distribution to the Company or pay the amount of any distribution for the account of the Company or to any creditor of the Company. The amount of any distribution returned to the Company by a Member or Economic Interest Owner or paid by a Member or Economic Interest Owner for the account of the Company or to a creditor of the Company shall be added to the account or accounts from which it was subtracted when it was distributed to the Member or Economic Interest Owner. ARTICLE 5 MEMBERS 5.1 LIMITED LIABILITY. Except as required under the Act or as expressly ----------------- set forth in this Agreement, no Member shall be personally liable for any debt, obligation or liability of the Company, whether that liability or obligation arises in contract, tort or otherwise. 5.2 ADMISSION OF ADDITIONAL MEMBERS. No additional Members shall be ------------------------------- admitted unless approved by a Super Majority Interest. No additional Member shall become a Member until such additional Member has made any required Capital Contribution and has become a party to this Agreement by executing a signature page agreeing to the terms and provisions hereof, and substitute Members may only be admitted in accordance with Article 7. 5.3 TRANSACTIONS WITH THE COMPANY. A Company Person or any Affiliate ----------------------------- may lend money to and transact other business with the Company only in accordance with this Agreement or with the prior approval of holders of a majority of the Profit Percentage Interests held by the disinterested Members after full disclosure of the Member's involvement. Subject to other applicable law, such Member has the same rights and obligations with respect thereto as a person who is not a Member. -11- 5.4 MEMBERS ARE NOT AGENTS. Pursuant to Article 6, the management of ---------------------- the Company is vested in the Manager. Unless expressly and duly authorized in writing to do so by the Manager, no Member, acting solely in the capacity of a Member, is an agent of the Company nor can any Member in such capacity bind or execute any instrument on behalf of the Company or render the Company liable for any purpose. 5.5 VOTING RIGHTS. ------------- 5.5.1 GENERAL RULE. Except as expressly provided in this ------------ Agreement, the Articles or the Act, Members shall have no voting, approval or consent rights. Except as otherwise expressly provided in this Agreement, in all instances in which a vote, approval, consent or agreement of the Members is required, a vote, approval or consent of a Super Majority Interest (or, in instances in which there are defaulting Members or an assignment of a Membership Interest, non-defaulting Members or Members who are not assignors of a Membership Interest, respectively, who hold eighty (80%) of the Profit Percentage Interests held by all such non-defaulting or non-assigning Members) shall be required. 5.5.2 MEETINGS OF MEMBERS. No annual or regular meetings of ------------------- Members are required. A meeting of the Members may be called by any Manager or by Members with collective Profit Percentage Interests of at least ten percent (10%). Meetings of Members may be held at such date, time and place within or without the State of California as the Manager may fix from time to time. Notice of any meeting shall be given in accordance with Section 17104 of the Corporations Code. At any Members' meeting, the Manager shall preside at the meeting and shall designate an officer or representative of a Member to act as secretary of the meeting. The secretary of the meeting shall prepare minutes of the meeting, which shall be placed in the minute books of the Company. Any action that may be taken at a meeting of Members may be taken without a meeting, if a consent in writing setting forth the action so taken, is signed and delivered to the Company by Members having not less than the minimum number of votes that would be necessary to authorize or take that action at a meeting at which all Members entitled to vote on that action at a meeting were present and voted. All such consents shall be filed with the Company and shall be maintained in the Company records. Members may participate in any Members' meeting through the use of any means of conference telephones or similar communications equipment as long as all Members participating can hear one another. A Member so participating is deemed to be present in person at the meeting. 5.5.3 PROXIES. Every Member entitled to vote at a meeting may ------- authorize another person or persons to act by proxy with respect to his, her or its Membership Interest. No proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise provided in the proxy. Every -12- proxy continues in full force and effect until revoked by the Member executing it prior to the vote pursuant thereto, except as otherwise herein provided. Such revocation may be effected by a writing delivered to the Company stating that the proxy is revoked or by a subsequent proxy executed by the Member executing the prior proxy and presented to the meeting, or as to any meeting by attendance at such meeting and voting in person by the person executing the proxy. The dates contained on the forms of proxy presumptively determine the order of execution, regardless of the postmark dates on the envelopes in which they are mailed. A proxy is not revoked by the death or incapacity of the Member unless, before the vote is counted, written notice of such death or incapacity is received by the Company. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Sections 703(e) and 705(f) of the California General Corporation Law. 5.6 WITHDRAWAL, RESIGNATION AND RETIREMENT. Except as required by law, -------------------------------------- no Member may withdraw, resign or retire from the Company without the express consent of a Super Majority Interest. ARTICLE 6 MANAGEMENT AND CONTROL OF THE COMPANY 6.1 MANAGEMENT OF THE COMPANY BY THE MANAGER. ---------------------------------------- 6.1.1 EXCLUSIVE MANAGEMENT BY THE MANAGER. Subject to the ----------------------------------- provisions of the Articles and this Agreement, the business, property and affairs of the Company shall be managed, and all powers of the Company shall be exercised, by or under the direction of the Manager. The Manager shall have, without limitation the authority to exercise all rights and fulfill all obligations with respect to the Initial Card Club Assets, including without limitation rights and obligations under the agreements set forth in Schedule -------- 2.1. 6.1.2 AGENCY AUTHORITY OF THE MANAGER. Subject to the rights of ------------------------------- the Members as set forth in Section 6.3, the Manager shall have signing authority with respect to all matters on behalf of the Company, including without limitation the authority to endorse checks, drafts and other evidences of indebtedness made payable to the order of the Company or to sign checks, drafts and other instruments obligating the Company to pay money, or sign agreements or other documents. Subject to the provisions of the Articles and this Agreement, the Manager may delegate any of its powers hereunder. -13- 6.2 MANAGER. ------- 6.2.1 INITIAL MANAGER. HPC shall be the initial Manager. --------------- 6.2.2 TERM OF OFFICE; SUCCESSOR MANAGER. The Manager shall hold --------------------------------- office for a term commencing on the date of appointment (or in the case of the initial Manager, commencing on the date hereof) and expiring upon the earlier of (i) the date on which such Manager resigns, (ii) the date on which the Manager becomes an Excluded Member pursuant to Section 9.2 hereof or (iii) the date on which the Manager ceases to be a Member owning at least a 20% interest in the capital and profits of the Company. Upon the expiration of the term of office of a Manager, a successor Manager shall be elected by a Super Majority Interest, including HPC in its capacity as a Member (unless HPC's term as the Manager expired by reason of clause (ii) above), provided that such successor Manager -------- must be a Member owning at least a 20% interest in the capital and profits of the Company unless agreed upon in writing by all of the Members. 6.2.3 RESIGNATION. The Manager may resign at any time by giving ----------- written notice to the Members without prejudice to the rights, if any, of the Company under any contract to which the Manager is a party. The resignation of any Manager shall take effect upon receipt of that notice or at such later time as shall be specified in the notice; and, unless otherwise specified in the notice, acceptance of the resignation shall not be necessary to make it effective. A Manager who has an incapacity shall be deemed to have resigned. For purposes of this Section 6.2.3, "incapacity" shall mean, as to any Manager, as applicable, (i) the death or adjudication or incompetence or insanity in the case of a natural person, (ii) the inability of a Manager to fulfill his obligations under this Agreement because of injury or physical or mental illness and such incapacity shall exist for ninety (90) working days in the aggregate during any consecutive twelve (12) month period, (iii) the termination of a trust in the case of a trustee of a trust, the dissolution and commencement of winding up of a partnership in the case of a partnership, the filing of a certificate of dissolution or its equivalent in the case of a corporation or a limited liability company and the distribution by a fiduciary of an estate's entire interest in the Company, or (iv) the Bankruptcy of such Manager. The resignation of a Manager shall not affect the Manager's rights as a Member and shall not by itself constitute a withdrawal of a Member. 6.3 LIMITATIONS ON MANAGER'S AUTHORITY. Notwithstanding the foregoing, ---------------------------------- the Manager shall not, without the written consent of all of the Members, which consent shall not be unreasonably delayed or withheld: -14- (a) do any act in contravention of this Agreement in its present form or as amended; (b) confess a judgment against the Company; (c) cause the Company to enter into any arrangement with itself or any of its affiliates or other related entities as principal on terms less favorable to the Company as would be obtained from an unaffiliated third party; (d) dissolve the Company except in accordance with Article 9 hereof; (e) change the nature of the business of the Company (provided, -------- however, that to the extent agreed to by a Super Majority Interest the Company - ------- may determine to undertake additional businesses at the Card Club Site or other property leased or acquired by the Company pursuant to the DDA in addition to the Card Club and the Hotel). 6.4 CARD CLUB OPERATOR; HOTEL OPERATOR; OTHER OFFICERS. -------------------------------------------------- 6.4.1 CARD CLUB OPERATOR; HOTEL OPERATOR. Pursuant to the ---------------------------------- Lease, CEI will act as the operator of the Card Club (the "Card Club Operator") until such time as the Company may be licensed to act as the Card Club Operator, at which time the Company and CEI shall form Newco to operate the Card Club, the Hotel and related businesses, in accordance with the Purchase Agreement. When the Company and CEI form Newco, subject to the terms of the Purchase Agreement, the Manager shall select the chief operating officer and manager of the Card Club (and may enter into employment agreements with such persons as it deems appropriate). Such chief operating officer and manager, under the supervision of the Manager, shall be responsible for the day-to-day management of the operations of the Card Club and shall make all the decisions required to be made regarding the day-to-day administration, supervision, management and control of the operations of the Card Club. The chief operating officer (and all other employees of the Company) shall report directly to and shall be supervised by the Manager. The Hotel operator shall be selected by the Manager. 6.4.2 OTHER OFFICERS. The Manager may appoint such other -------------- officers as may be deemed necessary or advisable from time to time by the Manager. All officers, including the chief operating officer, shall serve at the pleasure of the Manager, subject to all rights, if any, of an officer under any contract of employment. Any individual may hold any number of offices with such duties and powers as designated by the Manager. 6.5 REMUNERATION AND REIMBURSEMENT OF MEMBERS. Except as otherwise ----------------------------------------- authorized in, or pursuant to, this Agreement, no Member is entitled to remuneration for acting on behalf of the Company or in connection with the Company's business. HPC shall -15- receive a credit against its Initial Capital Contribution for all Initial Expenses paid for by HPC or HPI. A schedule setting forth the Initial Expenses paid for by HPC or HPI as of July 8, 1996, is attached hereto as Schedule 6.5. ------------ The Manager shall be entitled to full reimbursement of its actual costs incurred in connection with the Company's ownership and/or operation of the Card Club, including salaries and other compensation of all employees hired for or assigned to Card Club operations but excluding any allocation for general and administrative overhead costs. The Members shall be entitled to reimbursement of reasonable out-of-pocket expenses incurred or services provided for the purposes of the Company at the request of the Manager. 6.6 BUDGETS. The Manager shall prepare an initial capital budget and ------- annual capital and operating budgets and operating plans for the Company for each fiscal year, which annual budgets and plans shall be delivered to the Members for informational purposes. 6.7 BANK ACCOUNTS. All funds of every kind and nature received by the ------------- Company, including capital contributions, loan proceeds, and operating receipts shall be deposited in such bank accounts in the name of the Company as shall be determined from time to time by the Manager. Company funds shall not be commingled with funds of any Member or others. 6.8 INSURANCE. The Company shall procure and maintain in full force and --------- effect insurance on the Card Club and other Company Property, including liability, fire, extended property and business interruption insurance, naming the Company and the Manager as insureds thereunder (the terms and coverage amounts of which shall be that customary in the industry). The Company shall procure and maintain any additional insurance coverage required by applicable City ordinances or written order. ARTICLE 7 TRANSFER AND ASSIGNMENT OF INTERESTS 7.1 RESTRICTIONS ON TRANSFER; TRANSFERS OF ECONOMIC INTERESTS. No --------------------------------------------------------- Member may Transfer its Membership Interest or Economic Interest in the Company, in whole or in part, without the prior written consent of the Manager (or, in the case of HPC if HPC is then the Manager, holders of a majority of the Profit Percentage Interests excluding those held by HPC), which consent may be given or withheld, conditioned or delayed by the Manager or such holders, as applicable, in its or their sole discretion; provided that any Member may Transfer its Economic Interest to another Member or to an Affiliate without consent. The Transfer of an Economic Interest to an Affiliate or another Member shall not effect a Transfer of the Membership Interest of the transferring Member and the transferee shall in no event be -16- deemed substituted as a Member of the Company, except to the extent of the Economic Interest so Transferred unless otherwise agreed by all of the Members. No Transfer of an Economic Interest permitted by this Agreement shall effect a novation or release any of the transferor Member's obligations hereunder, and the Transferring Member shall continue to be obligated under each and every provision of this Agreement. No Economic Interest Owner of the Company shall have any right to participate in the management of the business and affairs of the Company or to become a Member thereof. 7.2 RIGHTS OF FIRST REFUSAL. If a Member has received the prior written ----------------------- consent of the Manager (or, in the case of HPC if HPC is then the Manager, holders of a majority of the Profit Percentage Interests excluding those held by HPC), to a proposed Transfer in accordance with Section 7.1, prior to seeking to sell all or any portion of its Membership Interest (the "Transferable Interest"), (i) each Member other than HPC shall first offer HPC and, as long as HPC is the Manager, the other Members and (ii), HPC subject to the requirements of the Purchase Agreement regarding the rights of CEI in connection with Transfers by HPC, shall offer to the other Members (in each case, collectively with HPC, the "Offerees") the right to purchase the Transferable Interest (or in the case of HPC, if CEI had the right pursuant to the Purchase Agreement to exercise a right of first refusal and did so, the remainder, if any, of the Transferable Interest following such exercise) on the same terms and conditions as the selling Member intends to sell such interest, or on the same terms and conditions as the offer received from a prospective purchaser, as the case may be (herein, the "First Opportunity Offer"). The First Opportunity Offer, once made, shall constitute an irrevocable binding offer by the selling Member to sell the Transferable Interest to the Offerees, who shall have thirty (30) days after receipt of the First Opportunity Offer within which to accept same in writing. If any of the Offerees timely accepts the First Opportunity Offer, the selling Member shall sell the Transferable Interest to such accepting Offerees on a pro rata basis in accordance with their Profit Percentage Interests (or if only one Offeree accepts in a timely manner, such Offeree may purchase the entire Transferable Interest), on the same terms and conditions as the First Opportunity Offer; provided, however, that such sale shall be consummated within -------- ninety (90) days of the Offerees' acceptance of the First Opportunity Offer. If the Offerees fail to timely accept the First Opportunity Offer or do not agree to purchase all of the Transferable Interest, the selling Member (other then HPC, if it has previously made such offer to CEI) shall offer the still available portion of the Transferable Interest to CEI in accordance with the terms and conditions of the Purchase Agreement. If CEI agrees to purchase (x) all of the still available portion of the Transferable Interest of DeBartelo or Chu, as applicable, or (y) all or any portion of the Transferable Interest of HPC, the sale of the Transferable Interest to CEI and the accepting Offerees, if any, shall be -17- consummated in accordance with the Purchase Agreement. If the accepting Offerees, if any, and CEI together do not agree to purchase the entire Transferable Interest, then the selling Member shall be free to sell the Transferable Interest to any third party, subject to the terms of this Agreement and of the Purchase Agreement. Each of the Members acknowledges receipt of a copy of the Purchase Agreement and hereby agrees to be bound by all the provisions thereof, including without limitation (i) the grant to CEI by each of them of a right of first refusal with respect to Transfers of their respective Membership Interests herein, and (ii) the provisions regarding the price below which Membership Interests may not be sold, all as set forth in Section 10.2 of the Purchase Agreement. 7.3 TRANSFERS SUBJECT TO LICENSES AND APPROVALS. Notwithstanding any ------------------------------------------- other provision of this Agreement, at such time as a public company is permitted under applicable law to own and operate a card club, or HPI or HPC is otherwise legally permitted to operate the Card Club, no Transfer of a Membership Interest or an Economic Interest in the Company may be made unless and until the transferee has obtained all licenses and approvals necessary for the ownership and operation of the Card Club from the City and any other necessary or applicable licensing authorities and has executed an agreement to be bound by all provisions of this Agreement. 7.4 EFFECT OF NON-COMPLIANCE. Any purported Transfer not permitted by ------------------------ this Agreement shall be void ab initio and of no effect against the Company, any --------- other Member or any creditor of or claimant against the Company. 7.5 EFFECT OF TRANSFER. A transferee of a Membership Interest shall ------------------ have the right to become a substitute Member only if (a) the requirements of Sections 7.1 and 7.2, and as applicable, Sections 7.3 and 7.8, are met, (b) such person executes an instrument satisfactory to all of the Members accepting and adopting the terms and provisions of this Agreement, and (c) such person pays any reasonable expenses in connection with its admission as a new Member. The admission of a substitute Member shall not result in the release of the Member who assigned the Membership Interest from any liability that such Member may have to the Company or to any Member. 7.6 RIGHTS OF LEGAL REPRESENTATIVES. Subject to the provisions of ------------------------------- Section 9.2, if a Member who is an individual dies or is adjudged by a court of competent jurisdiction to be incompetent to manage the Member's person or property, the Member's executor, administrator, guardian, conservator, or other legal representative shall have all the rights of a holder of an Economic Interest, but shall have no right to become a substitute Member without the consent otherwise required pursuant to this Agreement. If a Member is a corporation, trust, or other entity and is dissolved or terminated, the -18- powers described in the preceding sentence may be exercised by such Member's legal representative or successor. 7.7 OBLIGATION TO COMPLY WITH APPLICABLE LAW. At such time as a public ---------------------------------------- company is permitted under applicable law to own and operate a card club, or HPI or HPC is otherwise legally permitted to operate the Card Club, the Company shall promptly apply to obtain licensing and the necessary approvals to permit Newco to acquire the Company Assets and to operate the Card Club, the Hotel and related businesses and all Members hereby agree to obtain (and to cause each of their directors, officers, equity owners and other Affiliates, as applicable, to obtain) all required licenses and approvals as promptly as possible. If any Member or any director, officer, equity owner or other Affiliate of any Member (collectively a "Noncomplying Person") is unable, at any time, to obtain or maintain such licensing or otherwise comply with applicable law, such Member shall take such action, including without limitation, a corporate restructuring or the severing of its relationship with the Noncomplying Person, in order to comply with applicable law within thirty (30) days of the date on which the Noncomplying Person was unable or ceased to comply with such law. If a Member is unable to satisfy the requirements of the preceding sentence, then the Company (or, if the Company is unable to do so, the other Members) shall purchase such Member's Membership Interest (on a pro rata basis in accordance with their respective Profit Percentage Interests, if the purchasers are the other Members). The purchase price of the sale required by the previous sentence shall equal the Fair Value of such Member's Membership Interest determined in accordance with the procedures for determining the Fair Value of Chu's and DeBartolo's Membership Interests as set forth in Section 7.9.3 and shall be payable in equal quarterly installments over five (5) years with interest at the Rate. A Member that is removed from the Company pursuant to this Section shall have no further right to participate, in any way, in the business of the Company (specifically including the right to receive distributions from, or to share in the Net Profits, Net Losses or similar items of, the Company or to approve Company actions). 7.8 CHANGES OF CONTROL -- DEBARTOLO AND CHU. During the term of this --------------------------------------- Agreement, each of Chu and DeBartolo shall prohibit each of its equity owners from effecting any Transfer of their ownership interests that would result in a Change of Control, respectively, of Chu or DeBartolo. Chu represents and warrants to HPC and DeBartolo that attached hereto as Schedule 7.8A is a true ------------- and complete list setting forth each of the equity owners of Chu, showing the percentage interest owned. DeBartolo represents and warrants to HPC and Chu that attached hereto as Schedule 7.8B is a true and complete list setting forth ------------- each of the equity owners of DeBartolo, showing the percentage interest owned. Each of Chu and DeBartolo hereby agrees to provide the Manager (or HPC, if HPC is no longer the Manager) with prompt notice of any proposed sale by an equity owner of his, her or -19- its ownership interest. Concurrently with the execution of this Agreement, each of Chu and DeBartolo shall cause any certificates representing such ownership interests to bear a legend substantially as follows: "THE OWNERSHIP INTERESTS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN TRANSFER RESTRICTIONS CONTAINED IN THE OPERATING AGREEMENT OF CRYSTAL PARK HOTEL AND CASINO DEVELOPMENT COMPANY, LLC, A COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE ISSUER. ANY TRANSFER OF SHARES IN VIOLATION OF SUCH PROVISIONS SHALL BE NULL AND VOID AB -- INITIO." -------- The Members hereby agree that any Change of Control, merger, sale of assets, recapitalization or other corporate restructuring of HPI shall not constitute a Transfer or Change of Control of HPC for purposes of this Agreement. 7.9 PUT/CALL. -------- 7.9.1 CHU/HPC. Within one-hundred twenty (120) days following ------- each of the following events, subject to CEI's rights pursuant to the Purchase Agreement, Chu shall have the right to notify HPC of its election to cause HPC to purchase its Membership Interest, and HPC shall have the right to notify Chu of its election to purchase Chu's Membership Interest, for a price equal to the Fair Value of Chu's Membership Interest, which price shall be payable in accordance with Section 7.9.4. This right and obligation shall be personal to Chu and may not be assigned or transferred, even if there is a permitted Transfer of Chu's Membership Interest. The events giving rise to rights of each of HPC and Chu under this Section 7.9.1 are as follows: (a) An HPI Change; (b) The death of Leo Chu; (c) The death of Ivy Chu; or (d) The date that is five (5) years after the date hereof. 7.9.2 DEBARTOLO/HPC. Within one-hundred twenty (120) days ------------- following each of the following events, subject to CEI's rights pursuant to the Purchase Agreement, DeBartolo shall have the right to notify HPC of its election to cause HPC to purchase its Membership Interest in the Company, and HPC shall have the right to notify DeBartolo of its election to purchase DeBartolo's Membership Interest, for a price equal to the Fair Value of DeBartolo's Membership Interest, which price shall be payable in accordance with Section 7.9.4. This right and obligation shall be personal to DeBartolo and may not be -20- assigned or transferred, even if there is a permitted Transfer of DeBartolo's Membership Interest. The events giving rise to the rights of each of DeBartolo and HPC under this Section 7.9.2 are as follows: (a) An HPI Change; or (b) The date that is five (5) years after the date hereof. 7.9.3 DETERMINATION OF FAIR VALUE. The Fair Value of the --------------------------- Membership Interest of Chu or DeBartolo for purposes hereof shall be determined as follows. (a) During the first eighteen (18) months after the date hereof, the Fair Value shall be determined by multiplying the Profit Percentage Interest of Chu or DeBartolo as applicable by the total Capital Contributions to the Company of all of the Members from its inception to the date of the purchase of such interest. (b) From and after the date that is eighteen (18) months after the date hereof, the Fair Value shall mean the price that an unaffiliated third party would be willing to pay for the Membership Interest of Chu or DeBartolo, as applicable (the "Acquired Interest"), considering the value of the Company's business and assets at the time and its liabilities (with no minority discount applied). HPC and DeBartolo or Chu, as applicable, shall attempt to agree on the Fair Value during the sixty (60) day period after the notification by HPC, on the one hand, or Chu or DeBartolo, on the other, of its election to purchase or sell the Acquired Interest pursuant to Section 7.9.1 or 7.9.2. If HPC and DeBartolo or Chu, as applicable, cannot agree on the Fair Value during such sixty (60) day period, then the Fair Value of the Acquired Interest shall be determined by an appraisal. Either HPC, on the one hand, or DeBartolo or Chu, on the other hand, may initiate an appraisal by notifying the other in writing of its designation of a nationally recognized investment banking firm to determine the Fair Value of the Acquired Interest. Within ten (10) days following receipt of such designation, the other shall either notify HPC or DeBartolo or Chu, as the case may be, of its designated appraiser, which shall also be a nationally recognized investment banking firm, or, in the absence of notice, shall be deemed to have accepted the investment banking firm designated by the other. The investment banking firm (or firms) so appointed shall make a determination of the Fair Value within thirty (30) days after the deemed acceptance of the first designated investment banking firm or, if applicable, the appointment of the second investment banking firm, and shall concurrently exchange and/or deliver such determinations to HPC or DeBartolo or Chu. If only one investment banking firm has been appointed, the determination by such firm of the Fair Value shall be final and binding. If two -21- firms have been appointed, and the determinations of the two firms are within ten percent (10%) of each other, the average of the two determinations shall be the Fair Value. If the two determinations are not within ten percent (10%) of each other, then the two investment banking firms shall select a third investment banking firm within fifteen (15) days after the determinations have been exchanged; and if the two investment banking firms are unable to agree within that period on a third firm, such appointment will be made by the American Arbitration Association. If a third investment banking firm is appointed, the third investment banking firm shall make the determination of the Fair Value, which shall be within the range of the determinations made by the first two firms, within fifteen (15) days after the appointment of the third firm. Each of HPC on the one hand and Chu or DeBartolo on the other shall pay one-half ( 1/2) of the cost of the investment banking firm, if only one is appointed; if two firms are appointed, HPC on the one hand, and Chu or DeBartolo, on the other hand, shall each pay the fees and costs of the investment banking firm appointed by such Person; and the fees and costs of a third investment banking firm shall be divided equally between them. 7.9.4 HPC OPTION. HPC shall have the option to pay for the ---------- Acquired Interest either by the issuance of HPI Common Stock (or common stock of any successor to HPI) in an amount equal to the Fair Value or by payment of the Fair Value in cash by wire transfer; provided, that HPC may elect to pay for the -------- Acquired Interest by issuing common stock only if HPI or its successor is a public company at the time. HPC shall make such election by notice to Chu or DeBartolo as applicable within thirty (30) days after the determination of the Fair Value of the Acquired Interest. If HPC elects to pay for the Acquired Interest by the issuance of HPI Common Stock, Chu or DeBartolo, as applicable, shall be entitled to exercise piggyback registration rights and demand registration rights on one occasion each with respect to such common stock, on the terms and conditions contained in Article 11 hereof. For purposes hereof, the value of HPI's stock shall be determined by reference to the closing price on the principal stock exchange on which such shares are then listed or, if such shares are not then listed on a stock exchange, by reference to the closing price (if approved for quotation on the Nasdaq National Market) or the mean between the bid and asked price (if other over-the-counter issue) of a share as supplied by the National Association of Securities Dealers, Inc. through Nasdaq (or its successor in function), in each case as reported by The Wall Street Journal, for the business day immediately following the date of the election made by HPC, DeBartolo or Chu pursuant to Section 7.9.1 or 7.9.2 (or, if for any reason no such price is available, in such other manner as the Board of Directors of HPI may deem appropriate to reflect the then fair market value thereof). If HPC is no longer the Manager at the time HPC, Chu or DeBartolo exercises its right hereunder, the parties acknowledge that Chu or DeBartolo must first offer its -22- Membership Interest to CEI in accordance with the terms of the Purchase Agreement. 7.9.5 CLOSING. The closing (the "Closing") of any sale pursuant ------- hereto shall be held at a mutually acceptable place, on a date (the "Closing Date") not more than the later of (i) one-hundred twenty (120) days after the election made by HPC, DeBartolo or Chu pursuant to Section 7.9.1 or 7.9.2, or (ii) thirty (30) days after determination of the Fair Value of the Membership Interest of Chu or DeBartolo as applicable, which date shall be established by HPC upon not less than ten (10) business days' prior written notice to Chu or DeBartolo, as applicable. Conveyance shall be made by an appropriate assignment, duly and validly executed by Chu or DeBartolo, as applicable, conveying the Acquired Interest, free and clear of all liens, claims, encumbrances and rights of others and containing customary representations and warranties to HPC, including without limitation, representations and warranties that (i) there are no outstanding options, warrants or other rights to purchase such Membership Interest; and (ii) Chu or DeBartolo, as applicable, has full power and authority to sell its Membership Interest and such sale is not prohibited by and will not conflict with the terms of any other understanding, agreement or arrangement to which Chu or DeBartolo, as applicable, is a party or by which it is bound. 7.10 TAG-ALONG RIGHTS. ---------------- 7.10.1 RIGHT TO PARTICIPATE IN SALE. Following compliance with ---------------------------- all applicable requirements of this Agreement governing the Transfer of Membership Interests, including the requirements of the Purchase Agreement regarding offering the Membership Interest to CEI, if any Member ("Selling Member") enters into an agreement to transfer, sell or otherwise dispose of any portion of its Membership Interest (other than a Transfer of an Economic Interest to an Affiliate or another Member as permitted by Section 7.1) (such transfer, sale or other disposition being referred to as a "Tag-Along Sale"), then each other Member ("Tag-Along Member") shall have the right, but not the obligation, to participate in such Tag-Along Sale. The portion of its Membership Interest that each Tag-Along Member will be entitled to include in such Tag-Along Sale (the "Member's Allotment") shall be determined by multiplying (i) the Profit Percentage Interest represented by the Membership Interest proposed to be sold, transferred or otherwise disposed of pursuant to the Tag-Along Sale, by (ii) such Tag-Along Member's Profit Percentage Interest on the day immediately preceding the Tag-Along Notice Date (as defined below). Any sales of any portion of its Membership Interest by a Tag-Along Member as a result of the foregoing "Tag-Along Rights" shall be on the same terms and conditions as the proposed Tag-Along Sale by the Selling Member. The "Tag-Along Notice Date" shall be the date that the Tag-Along Sale Notice (as defined below) is delivered to Members. -23- 7.10.2 SALE NOTICE. The Selling Member shall provide the other ----------- Members with written notice (the "Tag-Along Sale Notice") not more than sixty (60) nor less than thirty (30) days prior to the proposed date of the Tag-Along Sale (the "Tag-Along Sale Date"). Each Tag-Along Sale Notice shall set forth: (i) the name and address of each proposed transferee or purchaser of a Membership Interest in the Tag-Along Sale; (ii) the Profit Percentage Interest represented by the Membership Interest proposed to be transferred or sold by the Selling Member; (iii) the proposed amount and form of consideration to be paid for such Membership Interest and the terms and conditions of payment offered by each proposed transferee or purchaser; (iv) confirmation that the proposed purchaser or transferee has been informed of the "Tag-Along Rights" provided for herein and has agreed to purchase the Membership Interest in accordance with the terms hereof; and (v) the Tag-Along Sale Date. 7.10.3 TAG-ALONG NOTICE. If a Member wishes to participate in ---------------- the Tag-Along Sale, such Member shall provide written notice (the "Tag-Along Notice") to the Selling Member no less than ten (10) business days prior to the Tag-Along Sale Date. If a Tag-Along Notice is not received by the Selling Member from a Member prior to the ten (10) day period specified above, the Selling Member shall have the right to sell or otherwise transfer the Membership Interest specified in the Tag-Along Sale Notice to the proposed purchaser or transferee without any participation by such Member. The Tag-Along Notice shall set forth the Profit Percentage Interest represented by the Membership Interest that such Member elects to include in the Tag-Along Sale, which shall not exceed the Member's Allotment. The Tag-Along Notice shall also specify the aggregate Profit Percentage Interest represented by such Member's Membership Interest as of the close of business on the day immediately preceding the Tag-Along Notice Date, which such Member desires also to include in the sale ("Additional Membership Interests") in the event there is any under-subscription for the entire amount of all Members' Allotments. In the event there is an under- subscription in the aggregate of such Members' Allotments, the Selling Member shall apportion the unsubscribed Members' Allotments to such holders whose Tag- Along Notices specified an amount of Additional Membership Interests, which apportionment shall be on a pro rata basis among such Members in accordance with --- ---- the number of Additional Membership Interests specified by all such Members in their Tag-Along Notices. The Tag-Along Notice given by the Member shall constitute such Member's binding agreement to sell such Membership Interest on the terms and conditions applicable to the Tag-Along Sale, subject to the provisions of this Section 7.10. 7.10.4 VOID TRANSFERS. If the Selling Member fails to sell or -------------- otherwise Transfer its Membership Interest or any portion thereof on terms and conditions which are no more -24- favorable in any material respect to the Selling Member than as stated in the Tag-Along Sale Notice on or prior to the Tag-Along Sale Date, such sale or Transfer shall be null and void, and any subsequent sale or Transfer of such Membership Interest must comply with all of the requirements of this Agreement. 7.10.5 EXEMPT TRANSFERS. The provisions of this Section 7.10 ---------------- shall not apply to any Transfer, sale or other disposition by any Member to one of its Affiliates (provided that prior to any such disposition the Member complies with the requirements of this Agreement regarding Transfers). ARTICLE 8 ACCOUNTING, RECORDS, REPORTING BY MEMBERS 8.1 FISCAL YEAR. The fiscal year of the Company shall be the calendar ----------- year. The decision to engage outside accountants for the Company and the selection of such outside accountants, if any, shall be made by the Manager. 8.2 BOOKS AND RECORDS. Each Member and each Economic Interest Owner, ----------------- and their duly authorized representatives shall at all times, during regular business hours, have reasonable access to and may inspect and copy at its own expense any of the books and records of the Company set forth in this Section, for purposes reasonably related to such person's interest in the Company. Each Member shall be entitled at any time to have the Company's books and records examined or audited at such Member's expense, and HPC shall cooperate fully with the party or parties making such examination or audit on behalf of such Member. The books of account of the Company shall be maintained and prepared in accordance with generally accepted accounting principles, consistently applied. The Company shall maintain at its principal office in California all of the following: (a) A current list of the full name and last known business or residence address of each Member and Economic Interest Owner set forth in alphabetical order, together with the Capital Contributions, Capital Account and Profit Percentage Interest of each Member and Economic Interest Owner; (b) A current list of the full name and business or residence address of the Manager and each officer; (c) A copy of the Articles and any and all amendments thereto together with executed copies of any powers of attorney pursuant to which the Articles or any amendments thereto have been executed; -25- (d) Copies of the Company's federal, state and local income tax or information returns and reports, if any, for the six (6) most recent taxable years; (e) A copy of this Agreement and any and all amendments thereto together with executed copies of any powers of attorney pursuant to which this Agreement or any amendments thereto have been executed; (f) Copies of the financial statements of the Company, if any, for the six (6) most recent Fiscal Years; (g) The Company's books and records as they relate to the internal affairs of the Company for at least the current and past four (4) Fiscal Years; (h) Originals or copies of all minutes, actions by written consent, consents to action and waivers of notice to Members and Member votes, actions and consent, if any; and (i) Any other information required to be maintained by the Company pursuant to the Act. 8.3 STATEMENTS. ---------- 8.3.1 ANNUAL REPORT. Within one-hundred twenty (120) days after ------------- the end of each calendar year, the Manager shall deliver to each of the other Members audited financial statements of the Company, certified by Arthur Anderson & Co., Inc. or such other "Big Six" accounting firm selected by the Manager. 8.3.2 TAX INFORMATION. The Manager shall cause to be prepared --------------- at least annually, at Company expense, information necessary for the preparation of the Members' and Economic Interest Owners' federal and state income tax returns. The Manager shall send or cause to be sent to each Member or Economic Interest Owner within ninety (90) days after the end of each taxable year such information as is necessary to complete federal and state income tax or information returns and a copy of the Company's federal, state, and local income tax or information returns for that year. 8.3.3 ANNUAL STATE REPORT. The Manager shall cause to be filed ------------------- at least annually with the California Secretary of State the statement required under California Corporations Code (S)17060. 8.3.4 MONTHLY REPORTS. As soon as practicable following the end --------------- of each month, the Manager shall deliver to each of the other Members a copy of such monthly financial reports of income and expense of the Company as are prepared by the Manager with respect to the Company. -26- 8.4 FILINGS. The Manager, at Company expense, shall cause the income ------- tax returns for the Company to be prepared and timely filed with the appropriate authorities. The Manager, at Company expense, shall cause to be prepared and timely filed, with appropriate federal and state regulatory and administrative bodies, amendments to, or restatements of, the Articles and all reports required to be filed by the Company with those entities under the Act or other then current applicable laws, rules, and regulations. If the Manager or any officer required by the Act to execute or file any document fails, after demand, to do so within a reasonable period of time or refuses to do so, any other officer or Member may prepare, execute and file that document with the California Secretary of State. 8.5 BANK ACCOUNTS. The Manager shall maintain the funds of the Company ------------- in one or more separate bank accounts in the name of the Company, and shall not permit the funds of the Company to be commingled in any fashion with the funds of any other Person. 8.6 TAX MATTERS FOR THE COMPANY HANDLED BY THE MANAGER AND TAX MATTERS ------------------------------------------------------------------ PARTNER. The Manager shall from time to time cause the Company to make such tax - ------- elections as the Manager deems to be in the best interests of the Company and the Members. The Tax Matters Partner, as defined in Code Section 6231, shall represent the Company (at the Company's expense) in connection with all examinations of the Company's affairs by tax authorities, including resulting judicial and administrative proceedings, and shall expend the Company funds for professional services and costs associated therewith. The Tax Matters Partner shall oversee the Company tax affairs in the overall best interests of the Company. If for any reason the Tax Matters Partner resigns or can no longer serve in that capacity, a Super Majority Interest may designate another Member to be Tax Matters Partner. ARTICLE 9 DISSOLUTION AND WINDING UP 9.1 EVENTS OF DISSOLUTION. The Company shall be dissolved, its assets --------------------- shall be disposed of, and its affairs wound up on the first to occur of the following: 9.1.1 The happening of any event of dissolution specified in the Articles; 9.1.2 The entry of a decree of judicial dissolution pursuant to Section 17351 of the Corporations Code; 9.1.3 The vote of a Super Majority Interest; -27- 9.1.4 The occurrence of a Dissolution Event unless there are at least two Remaining Members in addition to the Excluded Member (it being agreed that, if there are not at that time at least two Remaining Members in addition to the Excluded Member, the sole Remaining Member shall in its sole and absolute discretion have the right to admit another Member to the Company) and a Majority Interest consent within ninety (90) days of the Dissolution Event to the continuation of the business of the Company; or 9.1.5 The expiration of the period fixed for the duration of the Company as stated in the Articles. 9.2 EFFECT OF A DISSOLUTION EVENT (OTHER THAN DISSOLUTION). If ------------------------------------------------------ following a Dissolution Event, the Remaining Members vote to continue the business of the Company, such Remaining Member(s) shall purchase the Excluded Member's interest in the Company, on a pro rata basis in accordance with their respective Profit Percentage Interests, for an aggregate purchase price equal to the amount that the Excluded Member would be entitled to receive for the Fair Value of the Excluded Member's Membership Interest as determined in accordance with the procedures for determining the Fair Value of Chu's and DeBartolo's Membership Interests set forth in Section 7.9.3, payable in equal quarterly installments over five (5) years with interest at the Rate. Following such purchase, the Remaining Members shall continue the operation of the Company independently of the Excluded Member. Upon such vote by the Remaining Members to continue the business of the Company, the Excluded Member shall have no further right to participate, in any way, in the business of the Company (specifically including the right to receive distributions from, or to share in the Net Profits, Net Losses or similar items of, the Company or to approve Company actions). Election of the Remaining Member(s) to continue the business of the Company under this Section 9.2 shall not preclude such Remaining Member(s) from pursuing any and all other remedies available to it or them under this Agreement, at law or in equity. 9.3 CERTIFICATE OF DISSOLUTION. As soon as possible after the -------------------------- occurrence of any of the events specified in Section 9.1 above, any Member shall execute a Certificate of Dissolution in such form as shall be prescribed by the California Secretary of State and file the Certificate as required by the Act. 9.4 WINDING UP. Upon the occurrence of any event specified in Section ---------- 9.1 above, the Company shall continue solely for the purpose of winding up its affairs in an orderly manner, liquidating its assets, and satisfying the claims of its creditors. The Manager shall be responsible for overseeing the winding up and liquidation of Company, shall take full account of the liabilities of Company and assets, shall either cause its assets to be sold or distributed, and if sold as promptly as is -28- consistent with obtaining the fair market value thereof, shall cause the proceeds therefrom, to the extent sufficient therefor, to be applied and distributed as provided in Section 9.6. The Manager shall give written notice of the commencement of winding up by mail to all known creditors and claimants whose addresses appear on the records of the Company. The Manager shall be entitled to reasonable compensation for its services in winding up the Company's affairs. 9.5 DISTRIBUTIONS IN KIND. Any non-cash asset distributed to one or --------------------- more Members shall first be valued at its fair market value to determine the Net Profit or Net Loss that would have resulted if such asset were sold for such value, such Net Profit or Net Loss shall then be allocated pursuant to Article 3, and the Members' Capital Accounts shall be adjusted to reflect such allocations. The amount distributed and charged to the Capital Account of each Member receiving an interest in such distributed asset shall be the fair market value of such interest (which shall mean the price that an independent third party would pay for such asset, net of any liability secured by such asset that such Member assumes or takes subject to). The fair market value of such asset shall be determined by the Manager or if there is an objection by any Member, the fair market value shall be determined by an independent appraiser (which must be recognized as an expert in valuing the type of asset involved) selected by the Manager or liquidating trustee and approved by a Super Majority Interest. 9.6 ORDER OF PAYMENT UPON DISSOLUTION. After determining that all known --------------------------------- debts and liabilities of the Company in the process of winding-up, including, without limitation, debts and liabilities to Members who are creditors of the Company, have been paid or adequately provided for, the remaining assets shall be distributed to the Members in accordance with their positive Capital Account balances, after taking into account income and loss allocations for the Company's taxable year during which liquidation occurs. Such liquidating distributions shall be made by the end of the Company's taxable year in which the Company is liquidated, or, if later, within ninety (90) days after the date of such liquidation. 9.7 COMPLIANCE WITH REGULATIONS. All payments to the Members upon the --------------------------- winding up and dissolution of the Company shall be strictly in accordance with the positive capital account balance limitation and other requirements of Regulations Section 1.704-1(b)(2)(ii)(d). 9.8 LIMITATIONS ON PAYMENTS MADE IN DISSOLUTION. Except as otherwise ------------------------------------------- specifically provided in this Agreement, each Member shall be entitled to look solely at the assets of the Company for the return of its positive Capital Account balance and shall have no recourse for such Member's Capital -29- Contribution and/or share of Net Profits (upon dissolution or otherwise) against the Manager, officers, or any other Member. 9.9 CERTIFICATE OF CANCELLATION. The Persons who filed the Certificate --------------------------- of Dissolution shall cause to be filed in the office of, and on a form prescribed by, the California Secretary of State, a certificate of cancellation of the Articles upon the completion of the winding up of the affairs of the Company. 9.10 NO ACTION FOR DISSOLUTION. No Member or Economic Interest Owner has ------------------------- any interest in specific property of the Company. Without limiting the foregoing, each Member and Economic Interest Owner irrevocably waives during the term of the Company any right that he or it may have to maintain any action for partition with respect to the property of the Company. Except as expressly permitted in this Agreement, a Member or Economic Interest Owner shall not take any voluntary action that directly causes a Dissolution Event. The Members acknowledge that irreparable damage would be done to the goodwill and reputation of the Company if any Member should bring an action in court to dissolve the Company under circumstances where dissolution is not required by Section 9.1. This Agreement has been drawn carefully to provide fair treatment of all parties and equitable payment in liquidation of the Economic Interests. Accordingly, except where the Members have failed to liquidate the Company as required by this Article 9, each Member hereby waives and renounces such Member's right to initiate legal action to seek the appointment of a receiver or trustee to liquidate the Company or to seek a decree of judicial dissolution of the Company on the ground that (a) it is not reasonably practicable to carry on the business of the Company in conformity with the Articles or this Agreement, or (b) dissolution is reasonably necessary for the protection of the rights or interests of the complaining Member. Damages for breach of this Section 9.10 shall be monetary damages only (and not specific performance), and the damages may be offset against distributions by the Company to which such Member would otherwise be entitled. ARTICLE 10 INDEMNIFICATION AND INSURANCE 10.1 INDEMNIFICATION OF COMPANY PERSONS. The Company shall indemnify any ---------------------------------- Company Person who was or is a party or is threatened to be made a party to, or otherwise becomes involved in, any Proceeding (including a Proceeding by or in the right of the Company) by reason of the fact that such Company Person is or was an agent of the Company against all Expenses, amounts paid in settlement, judgments, fines, penalties and ERISA excise taxes actually and reasonably incurred by or levied against such Company Person in connection with such Proceeding -30- if such Company Person acted in good faith and in a manner such Company Person reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal Proceeding, had no reasonable cause to believe such Company Person's conduct was unlawful. The termination of any Proceeding, whether by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that a Company Person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that a Company Person had reasonable cause to believe that such Company Person's conduct was unlawful. To the fullest extent permitted by applicable law, a Company Person shall be conclusively presumed to have met the relevant standards of conduct, as defined by the laws of the State of California or other applicable jurisdictions, for indemnification pursuant to this Section 101, unless and until a court of competent jurisdiction, after all appeals, finally determines to the contrary, and the Company shall bear the burden of proof of establishing by clear and convincing evidence that such Company Person failed to meet such standards of conduct. In any event, the Company Person shall be entitled to indemnification from the Company to the fullest extent permitted by applicable law, including, without limitation, any amendments thereto subsequent to the date of this Agreement that increase the protection of Company Persons allowable under such laws. 10.2 SUCCESSFUL DEFENSE. Notwithstanding any other provision of this ------------------ Agreement, to the extent that a Company Person has been successful on the merits or otherwise in defense of any Proceeding referred to in Section 10.1, or in defense of any claim, issue or matter therein, such Company Person shall be indemnified against Expenses actually and reasonably incurred in connection therewith to the fullest extent permitted by the laws of California or other applicable jurisdictions, including, without limitation, any amendments thereto subsequent to the date of this Agreement that increase the protection of Company Persons allowable under such laws. 10.3 INDEMNIFICATION OF OTHER AGENTS. The Company may, but shall not be ------------------------------- obligated to, indemnify any Person (other than a Company Person) who was or is a party or is threatened to be made a party to, or otherwise becomes involved in, any Proceeding (including any Proceeding by or in the right of the Company) by reason of the fact that such Person is or was an agent of the Company, against all Expenses, amounts paid in settlement, judgments, fines, penalties and ERISA excise taxes actually and reasonably incurred by such Person in connection with such Proceeding under the same circumstances and to the same extent as is provided for or permitted in this Article 10 with respect to a Company Person, or with respect to such circumstances and on such terms as the Manager may determine. -31- 10.4 RIGHT TO INDEMNIFICATION UPON APPLICATION. ----------------------------------------- 10.4.1 TIMING. Any indemnification or advance under Section 10.1 ------ or 10.3 shall be made promptly, and in no event later than sixty (60) days, after the Company's receipt of the written request of a Company Person therefor, unless, in the case of an indemnification, a determination shall have been made as provided in Section 10.1 that such Company Person has not met the relevant standard for indemnification set forth in that Section. 10.4.2 ENFORCEMENT. The right of a Person to indemnification or ----------- an advance of Expenses as provided by this Article 10 shall be enforceable in any court of competent jurisdiction. The burden of proving by clear and convincing evidence that indemnification or advances are not appropriate shall be on the Company. Neither the failure by the Manager or Members of the Company or its independent legal counsel to have made a determination that indemnification or an advance is proper in the circumstances, nor any actual determination by the Manager or Members of the Company or its independent legal counsel that indemnification or an advance is not proper, shall be a defense to the action or create a presumption that the relevant standard of conduct has not been met. In any such action, the Person seeking indemnification or advancement of Expenses shall be entitled to recover from the Company any and all expenses of the types described in the definition of Expenses actually and reasonably incurred by such Person in such action, but only if such Person prevails therein. A Person's Expenses incurred in connection with any Proceeding concerning such Person's right to indemnification or advances in whole or in part pursuant to this Agreement shall also be indemnified by the Company regardless of the outcome of such a Proceeding, unless a court of competent jurisdiction finally determines that each of the material assertions made by such Person in the Proceeding was not made in good faith or was frivolous. 10.5 PAYMENT OF EXPENSES IN ADVANCE. Expenses incurred by a Company ------------------------------ Person in connection with a Proceeding shall be paid by the Company in advance of the final disposition of such Proceeding upon receipt of a written undertaking by or on behalf of such Company Person to repay such amount if it shall ultimately be determined that such Company Person is not entitled to be indemnified by the Company as authorized in this Article 10. 10.6 LIMITATIONS ON INDEMNIFICATION. No payments pursuant to this ------------------------------ Agreement shall be made by the Company: (a) To indemnify or advance funds to any Person with respect to a Proceeding initiated or brought voluntarily by such Person and not by way of defense, except as provided in Section 10.42 with respect to a Proceeding brought to establish or enforce a right to indemnification under this Agreement, -32- otherwise than as required under California law, but indemnification or advancement of Expenses may be provided by the Company in specific cases if a determination is made that such indemnification or advancement is appropriate. The determination as to whether any such indemnification or advancement of Expenses is appropriate shall be made (i) by the Manager or, if there is more than one Manager (provided the Manager is not a party to such Proceeding) Managers by a majority vote of a quorum consisting of Managers who were not parties to such Proceeding, or (ii) if such quorum is not obtainable or, even if obtainable, a quorum of such disinterested Managers so directs, by independent legal counsel in a written opinion, or (iii) by the Members by a vote of Members holding a Super Majority Interest, whether or not constituting a quorum, who were not parties to such Proceeding; (b) To indemnify or advance funds to any Person for any Expenses, judgments, amounts paid in settlement, fines, penalties or ERISA excise taxes resulting from the such Person's conduct which is finally adjudged to have been willful misconduct, knowingly fraudulent or deliberately dishonest; or (c) If a court of competent jurisdiction finally determines that any indemnification or advance of Expenses hereunder is unlawful. 10.7 OTHER TERMS OF INDEMNIFICATION. ------------------------------ 10.7.1 PARTIAL INDEMNIFICATION. If a Person is entitled under ----------------------- any provision of this Article 10 to indemnification by the Company for a portion of Expenses, amounts paid in settlement, judgments, fines, penalties or ERISA excise taxes incurred by such Person in any Proceeding but not, however, for the total amount thereof, the Company shall nevertheless indemnify such Person for the portion of such Expenses, amounts paid in settlement, judgments, fines, penalties or ERISA excise taxes to which such Person is entitled, except that no indemnification shall be given for Expenses in connection with a Proceeding brought by the Company if the Person is found liable on any portion of the claims in such Proceeding. 10.7.2 INDEMNITY NOT EXCLUSIVE. The indemnification and ----------------------- advancement of Expenses provided by, or granted pursuant to, the provisions of this Article 10, shall not be deemed exclusive of any rights to which any Person seeking indemnification or advancement of Expenses may be entitled under any agreement, vote of Members, determination of the Board, or otherwise, both as to action in such Person's capacity as an agent of the Company and as to action in another capacity while serving as an agent. 10.7.3 INSURANCE. The Company shall have the power to purchase --------- and maintain insurance or other financial arrangement on behalf of any Person who is or was an agent of -33- the Company against any liability asserted against such Person and incurred by such Person in any such capacity, or arising out of such Person's status as an agent, whether or not the Company would have the power to indemnify such Person against such liability under the provisions of this Article 10 or of Section 17155 of the Act. In the event a Person shall receive payment from any insurance carrier or from the Plaintiff in any action against such Person with respect to indemnified amounts after payment on account of all or part of such indemnified amounts having been made by the Company pursuant to this Article 10, such Person shall reimburse the Company for the amount, if any, by which the sum of such payment by such insurance carrier or such plaintiff and payments by the Company to such Person exceeds such indemnified amounts; provided, however, that such portions, if any, of such insurance proceeds that are required to be reimbursed to the insurance carrier under the terms of its insurance policy shall not be deemed to be payments to such Person hereunder. In addition, upon payment of indemnified amounts under the terms and conditions of this Agreement, the Company shall be subrogated to such Person's rights against any insurance carrier with respect to such indemnified amounts (to the extent permitted under such insurance policies). Such right of subrogation shall be terminated upon receipt by the Company of the amount to be reimbursed by such Person pursuant to the second sentence of this Section 10.7.3. 10.7.4 HEIRS, EXECUTORS AND ADMINISTRATORS. The indemnification ----------------------------------- and advancement of Expenses provided by, or granted pursuant to, this Article 10 shall, unless otherwise provided when authorized or ratified, continue as to a Person who has ceased to be an agent of the Company and shall inure to the benefit of such Person's heirs, executors and administrators. ARTICLE 11 REGISTRATION RIGHTS In the event that, following the exercise of a right to cause a Membership Interest to be purchased or sold pursuant to Section 7.9, HPC exercises its right pursuant to Section 7.9.4 to pay for the Acquired Interest with HPI Common Stock, then the provisions of this Article 11 shall apply. The rights set forth in this Article 11 shall be personal to Chu and DeBartolo and may not be assigned or transferred. 11.1 INCIDENTAL REGISTRATION. Each time HPI proposes to file a ----------------------- Registration Statement, if Chu or DeBartolo, as applicable, has not theretofore exercised its rights pursuant to Section 11.1A hereof, HPI shall take the following steps: -34- TAX INFORMATION ANNUAL STATE REPORT MONTHLY REPORTS FILINGS 11.1.1 NOTICE. Mail a written notice of the offering and the name ------ of the managing underwriter (if any) to each Holder at the address shown on the books and records of HPI at least thirty (BANK ACCOUNTS 30) days prior to the filing of any such Registration Statement; and 11.1.2 INCLUSION OF SHARES. Include in such Registration ------------------- Statement any and all Registrable Securities specified in a notice by the Holder which is received by the Company not less than fifteen (15) days following the mailing of the notice specified in Section 11.1.1 above. In connection with any registration, the Selling Holder must: (i) sell such Registrable Securities in the manner and on the terms adopted by or through the underwriter(s) acting on behalf of HPI in connection with such registration, if such underwriter(s) so requests; and (ii) accept a reduction (including a total elimination) in the number of shares to be included in such registration on a pro rata basis (based on the number of shares held by each) with any other selling shareholders holding contractual registration rights (except that HPI and any shareholder who has exercised demand registration rights with respect to such Registration Statement shall not be affected by such reduction) if the underwriter(s) reasonably deem that without such reduction (or elimination) HPI might be substantially hindered in the terms or number of securities which it could sell in such registration. Nothing in this Section 11.1.2 shall limit the ability of HPI to withdraw a Registration Statement it has filed either before or after effectiveness thereof. In the case of an underwritten offering, a Selling Holder may withdraw his, her or its included shares after the filing of the Registration Statement only (i) with the consent of the underwriter; (ii) if the final price is less than the range of prices given in the preliminary prospectus; (iii) if HPI breaches its obligations; or (iv) as provided in Section 11.2.2. 11.1A DEMAND REGISTRATION. ------------------- 11.1A.1 NOTICE OF DEMAND. At any time after Chu or DeBartolo ---------------- receives Registrable Securities, each of Chu or DeBartolo shall have the right to request by written notice to HPI that HPI register the Registrable Securities under the 1933 Act. Each of Chu and DeBartolo shall have the right to make one such demand (except that if such demand is withdrawn pursuant to Section 11.1A.3, such demand shall not be deemed to have been made for purposes of this limitation); and each such demand must include all Registrable Securities held by Chu or DeBartolo, as applicable. Each notice shall set forth (i) the number of shares to be included; (ii) the names of the Selling Holder; and (iii) the proposed manner of sale. Within ten (10) days after receipt of such notice, the Company shall notify the other Holder (if any) and offer to such Holder the opportunity to include its shares in such registration. -35- 11.1A.2 HOLDER AND REGISTRATION. Promptly after receipt of any ----------------------- notice pursuant to Section 11.1A.1, HPI shall prepare and file with the SEC, a Registration Statement on any applicable form, with respect to all the Registrable Securities held by such Selling Holder. 11.1A.3 HOLDBACK. In the event that registration is demanded -------- pursuant to Section 11.1A.1, and HPI determines that the shares for which registration is requested cannot be sold without serious injury to HPI or its existing shareholders, HPI shall have the option to require the Selling Holders to withdraw such registration demand and not make any other demand for a period of up to one-hundred eighty (180) days (which may be extended if such facts continue to be in effect). 11.2 REGISTRATION PROCEDURES. Whenever HPI shall register any ----------------------- securities pursuant to this Article 11, the parties agree as follows: 11.2.1 SELLING HOLDER INFORMATION. Each Selling Holder shall -------------------------- provide HPI with such information about such Holder and his, her or its intended manner of distributing the Registrable Securities, and shall otherwise cooperate with HPI and the underwriter(s) as may be needed or helpful in the reasonable opinion of HPI to complete any obligation of HPI hereunder. Failure to comply with this requirement shall excuse HPI from any further obligation to a Selling Holder to include his, her or its shares in that Registration Statement; 11.2.2 CONSULTATION. HPI shall supply copies of any Registration ------------ Statement, any amendment thereto and any communications of the SEC related thereto to each Selling Holder and Seller's Underwriter and shall provide each Selling Holder and Seller's Underwriter with a reasonable opportunity, prior to filing such document with the SEC, to provide comments with respect to any matters in such documents that describe such Selling Holder, the Seller's Underwriter or the distribution of securities held by such Selling Holder ("Selling Holder Matters"). HPI will immediately amend such Registration Statement to include such reasonable changes relating to Selling Holder Matters as the Selling Holders and the Seller's Underwriter reasonably agree should be included therein. Any Selling Holder requesting a change refused by HPI may withdraw his, her or its shares from the Registration Statement; 11.2.3 PROVISION OF PROSPECTUSES. HPI shall furnish each Selling ------------------------- Holder such number of copies of preliminary and final prospectuses, each in conformity with the requirements of the 1933 Act, and such other documents as such Selling Holder may reasonably request in order to facilitate the public sale or other disposition of such securities; 11.2.4 BLUE SKY COMPLIANCE. HPI shall use its reasonable efforts ------------------- to register or qualify the securities covered -36- by such Registration Statement under the securities or "blue sky" laws of such jurisdictions as each Selling Holder shall reasonably request (provided, however, that HPI shall not be required (i) to consent to, or take any action which would subject it to, general service of process for all purposes or (ii) to qualify to do business in any jurisdiction where it is not then subject or qualified); 11.2.5 AMENDMENTS. HPI shall use its reasonable efforts to ---------- prepare and file promptly with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection therewith, as may be necessary to keep such Registration Statement continuously effective and in compliance with the 1933 Act for up to four (4) months, or until all Registrable Securities registered in that Registration Statement are sold, whichever is earlier; 11.2.6 PROSPECTUS DELIVERY. At any time when a sale or other ------------------- public disposition pursuant to a Registration Statement is subject to a prospectus delivery requirement, HPI shall immediately notify each Selling Holder and Sellers' Underwriter of the occurrence of any event as a result of which the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing. Upon receipt of such a notice, each Selling Holder shall immediately discontinue sales or other dispositions of Registrable Securities pursuant to the Registration Statement. The Selling Holders may resume sales only upon receipt of amended prospectuses or after such Selling Holders have been advised by HPI that the use of the previous prospectus may be legally resumed; 11.2.7 STOP-ORDERS. HPI agrees to immediately notify each ----------- Selling Holder (i) of the issuance by the SEC of any stop order or order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for that purpose, or (ii) of the receipt by HPI of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction, or the initiation of any proceedings for such purpose. HPI, with the reasonable cooperation of the Selling Holders, shall make every reasonable effort to contest any such proceedings and to obtain the withdrawal of any such order at the earliest possible moment; 11.2.8 UNDERWRITING AGREEMENT. At the request of HPI or any ---------------------- underwriter of the offering, each Selling Holder shall enter into an underwriting agreement in a form reasonably agreed upon by HPI and such underwriter(s); and 11.2.9 COMPLIANCE WITH LAWS. In all actions taken under this -------------------- Agreement, each Selling Holder agrees to use -37- his, her or its best efforts to comply with all provisions of the 1933 Act as well as any other applicable law. 11.3 REGISTRATION NOT REQUIRED. HPI shall have no obligation to any ------------------------- Holder under this Article 11 with respect to whom HPI has obtained an opinion of counsel, in form reasonably satisfactory to such Holder, to the effect that the Registrable Securities involved may be immediately sold to the public without registration thereof, whether pursuant to Rule 144 or otherwise. 11.4 DELAY OF REGISTRATION. No Holder shall have any right to take any --------------------- action to restrain, enjoin or otherwise delay the filing or effectiveness of any Registration Statement on the basis of any controversy which might arise with respect to the interpretation or implementation of this Article 11. 11.5 INDEMNITY. --------- 11.5.1 HPI'S INDEMNITY. HPI will indemnify each Selling Holder --------------- and any Sellers' Underwriter (and any of their officers and directors and persons who control such Holder or Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act) against all claims, losses, damages, liabilities and expenses resulting from any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or from any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same is based on (i) information furnished in writing to the Company by such Holder, an underwriter, or any Selling Holder expressly for use therein, or (ii) the circumstances set forth in Section 11.5.2(y) hereof. 11.5.2 THE HOLDER'S INDEMNITY. Each Selling Holder will ---------------------- indemnify (i) HPI, any underwriter, and any other person selling under a Registration Statement (and any of their officers and directors and persons who control HPI, such underwriter or such other persons within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act) against all claims, losses, damages, liabilities and expenses resulting from (x) any untrue statement or alleged untrue statement of a material fact contained in that Registration Statement or from any omission or alleged omission to state a material fact required to be stated or necessary to make the statements therein not misleading, but only to the extent based upon information furnished in writing to the Company by such Holder expressly for inclusion in that Registration Statement or other document or (y) any untrue statement or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact from, a prospectus if (i) a later prospectus corrected the untrue statement or alleged untrue statement, or omission or alleged omission, (ii) at such time the Company had advised the Holder of the availability of -38- the revised prospectus, and (iii) there would have been no such liability had such later prospectus actually been delivered to the purchaser at or prior to confirmation of sale. 11.6 EXPENSES OF REGISTRATION. The Selling Holder shall bear all ------------------------ expenses incurred in any Registration undertaken pursuant to Section 11.1A, including, without limitation, all registration and filing fees (including all expenses incident to filing with the National Association of Securities Dealers, Inc.), legal fees, brokerage or underwriting fees, expenses or commissions, fees and expenses of complying with securities and blue sky laws and regulations, printing expenses and fees and disbursements of the independent certified public accountants and of HPI's counsel. With respect to any Registration undertaken pursuant to Section 11.1, HPI shall bear all expenses other than Selling Holder Expenses (defined below). Each Selling Holder shall bear his, her or its equitable share of any Selling Holder Expenses. "Selling Holder Expenses" shall consist of (i) Selling Holder's legal costs, (ii) any proportionate share of brokerage or underwriting fees, expenses or commissions, (iii) any fees and expenses of complying with blue sky laws to the extent registration in the applicable state is requested by a Selling Holder pursuant to Section 11.24 hereof, and (iv) any other costs required to be paid by Selling Holders in order to comply with state securities laws and regulations. 11.7 TERMINATION. Each Holder shall have no further rights under this ----------- Article at any time (i) after such time as no further Registrable Securities of such Holder remain outstanding or (ii) such Holder has exercised his, her or its registration rights under Section 11.1A on one occasion, whichever comes first. Further, each Holder shall have the right to participate in any Registration undertaken pursuant to Section 11.1 only once. ARTICLE 12 MISCELLANEOUS 12.1 OTHER VENTURES; COMPETITION. --------------------------- (a) Nothing contained in this Agreement or in law shall be construed to limit or restrict in any way the freedom of any Member, or any shareholders or affiliates of a Member, to conduct any other business venture or activity whatsoever, including the ownership, development, leasing, sale, financing, operation and management of other card clubs or casinos nor to require any accountability to the Company or to any other Member, whether or not such other business ventures are in direct or indirect competition with the business of the Company. -39- (b) No Member need afford the Company or any other Member or any affiliate of a Member the opportunity to acquire or invest in any other property, project or enterprise, regardless of whether such property, project or enterprise would, but for this sentence, be deemed an opportunity of the Company. 12.2 COUNSEL TO THE COMPANY. Counsel to the Company may also be counsel ---------------------- to any Member or any Affiliate of a Member. The officers of the Company may execute on behalf of the Company and the Members any consent to the representation of the Company that counsel may request pursuant to the California Rules of Professional Conduct or similar rules in any other jurisdiction. 12.3 GENERAL PROVISIONS. ------------------ 12.3.1 COMPLETE AGREEMENT. This Agreement and any documents ------------------ referred to herein or executed contemporaneously herewith constitute the parties' entire agreement with respect to the subject matter hereof and supersede all prior or contemporaneous agreements, representations, warranties, statements, promises and understandings, whether oral or written, with respect to the subject matter hereof. 12.3.2 DISPUTES. -------- 12.3.2.1 GOVERNING LAW; JURISDICTION. This Agreement has been --------------------------- negotiated and entered into in the State of California, concerns a California business and all questions with respect to the Agreement and the rights and liabilities of the parties will be governed by the laws of that state, regardless of the choice of law provisions of California or any other jurisdiction. Any and all disputes between the parties which may arise pursuant to this Agreement not covered by arbitration will be heard and determined before an appropriate federal or state court located in Los Angeles, California. The parties hereto acknowledge that such court has the jurisdiction to interpret and enforce the provisions of this Agreement and the parties waive any and all objections that they may have as to personal jurisdiction or venue in any of the above courts. 12.3.2.2 ARBITRATION AS EXCLUSIVE REMEDY. Except for actions ------------------------------- seeking injunctive relief and for actions pursuant to Sections 10.1 and 10.4.2, which may be brought before any court having jurisdiction, any claim arising out of or relating to (i) this Agreement, including without limitation its validity, interpretation, enforceability or breach, or (ii) the relationship between the parties (including without limitation its commencement and termination) whether based on breach of covenant, breach of an implied covenant or intentional infliction of emotional distress or other tort or contract theories, which are not settled by agreement between the parties, shall be settled by arbitration in Los Angeles County, California, before a sole arbitrator who shall be a retired -40- judge of the Los Angeles Superior Court or retired justice of the California Court of Appeal or Supreme Court. The sole arbitrator shall be selected by mutual agreement of the parties within fifteen (15) days after service of a notice of intent to arbitrate by any party. If the parties are unable to select a mutually agreeable arbitrator, then a retired judge or justice of the California state courts shall be selected by order of the court pursuant to the provisions of Code of Civil Procedure (S)1281.6. The parties hereby (i) consent to the in personam jurisdiction of the Superior Court of the State of California for purposes of the enforcement of this arbitration provision and confirming any such award and entering judgment thereof; (ii) agree to use their best efforts to keep all matters relating to any arbitration hereunder confidential; and (iii) agree that the arbitrators may not assess any remedy other than the awarding of actual out-of-pocket damages suffered and/or punitive damages when appropriate. In any arbitration proceedings hereunder (a) all testimony of witnesses shall be taken under oath; (b) discovery will be allowed under the provisions of Section 1283.05 of the Code of Civil Procedure, as presently in force, which are incorporated herein; (c) production of documents will be allowed as provided for by Section 2031 of the Code of Civil Procedure; and (d) upon conclusion of any arbitration, the arbitrator shall render findings of fact and conclusions of law in a written opinion setting forth the basis and reasons for any decision reached and deliver such documents to each party to this Agreement along with a signed copy of the award in accordance with Section 1283.6 of the California Code of Civil Procedure. Each party agrees that, except as expressly provided above, the arbitration provisions of this Agreement are its exclusive remedy and expressly waives any right to seek redress in another forum. Each party shall share equally the fees of the arbitrator during the arbitration, but the fees of the arbitrator shall be borne by the losing party. Any arbitration shall be commenced within forty-five (45) days, and completed within ninety (90) days, of the appointment of the arbitrator. 12.3.3 ADDITIONAL DOCUMENTS. Each party hereto agrees to execute -------------------- any and all further documents and writings and to perform such other actions which may be or become necessary or expedient to effectuate and carry out this Agreement. 12.3.4 NOTICES. Unless otherwise specifically permitted by this ------- Agreement, all notices under this Agreement shall be in writing and shall be delivered by personal service, telecopy, federal express or comparable overnight service or certified mail (if such service is not available, then by first class mail), postage prepaid, to such address as may be designated from time to time by the relevant party, and which shall initially be as set forth on Exhibit A. --------- All other notices shall be deemed given when received. No objection may be made to the manner of delivery of any notice actually received in writing by an authorized agent of a party. -41- 12.3.5 PARTIES. ------- 12.3.5.1 NO THIRD-PARTY BENEFITS. None of the provisions of this ----------------------- Agreement shall be for the benefit of, or enforceable by, any third party. 12.3.5.2 SUCCESSORS AND ASSIGNS. Except as provided herein to the ---------------------- contrary, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns. 12.3.6 GOVERNING LAW; JURISDICTION. This Agreement has been --------------------------- negotiated and entered into in the State of California, concerns a California business and all questions with respect to the Agreement and the rights and liabilities of the parties will be governed by the laws of that state, regardless of the choice of law provisions of California or any other jurisdiction. 12.3.7 WAIVER OF JURY. WITH RESPECT TO ANY DISPUTE ARISING UNDER -------------- OR IN CONNECTION WITH THIS AGREEMENT OR ANY RELATED AGREEMENT, AS TO WHICH NO MEMBER INVOKES THE RIGHT TO ARBITRATION HEREINABOVE PROVIDED, OR AS TO WHICH LEGAL ACTION NEVERTHELESS OCCURS, EACH MEMBER HEREBY IRREVOCABLY WAIVES ALL RIGHTS IT MAY HAVE TO DEMAND A JURY TRIAL, INCLUDING ITS CONSTITUTIONAL RIGHTS. THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY THE MEMBERS AND EACH MEMBER ACKNOWLEDGES THAT NONE OF THE OTHER MEMBERS NOR ANY PERSON ACTING ON BEHALF OF THE OTHER PARTIES HAS MADE ANY REPRESENTATION OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. THE MEMBERS EACH FURTHER ACKNOWLEDGE THAT IT HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. THE MEMBERS EACH FURTHER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTAND THE MEANING AND RAMIFICATIONS OF THIS WAIVER PROVISION. 12.3.8 WAIVERS STRICTLY CONSTRUED. With regard to any power, -------------------------- remedy or right provided herein or otherwise available to any party hereunder (i) no waiver or extension of time shall be effective unless expressly contained in a writing signed by the waiving party; and (ii) no alteration, modification or impairment shall be implied by reason of any previous waiver, extension of time, delay or omission in exercise, or by any other indulgence. 12.3.9 RULES OF CONSTRUCTION. --------------------- 12.3.9.1 HEADINGS. The Article and Section headings in this -------- Agreement are inserted only as a matter of convenience, and in no way define, limit, or interpret the scope of this Agreement or of any particular Article or Section. -42- 12.3.9.2 TENSE AND CASE. Throughout this Agreement, as the context -------------- may require, references to any word used in one tense or case shall include all other appropriate tenses or cases. 12.3.9.3 SEVERABILITY. The validity, legality or enforceability of ------------ the remainder of this Agreement will not be affected even if one or more of the provisions of this Agreement will be held to be invalid, illegal or unenforceable in any respect. 12.3.9.4 AGREEMENT NEGOTIATED. The parties hereto are -------------------- sophisticated and have been represented by lawyers throughout this transaction who have carefully negotiated the provisions hereof. As a consequence, the parties do not believe that the presumptions of Civil Code Section 1654 and similar laws or rules relating to the interpretation of contracts against the drafter of any particular clause should be applied in this case and therefore waive their effects. Only the final executed version of this Agreement may be admitted into evidence or used for any purpose, and drafts of this Agreement shall be disregarded for all purposes. 12.3.10 COUNTERPARTS. This Agreement may be executed ------------ simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 12.4 AMENDMENTS. Except as set forth in the next sentence, all ---------- amendments to this Agreement shall be in writing and approved by all of the Members. The Manager may amend Exhibit A hereto at any time and from time to --------- time to reflect the admission or withdrawal of any Member, or the change in any Member's Capital Contributions, Profit Percentage Interests, or any changes in the Member's addresses, all as contemplated by this Agreement. 12.5 RELIANCE ON AUTHORITY OF PERSON SIGNING AGREEMENT. If a Member is ------------------------------------------------- not a natural person, neither the Company nor any Member will be required to determine the authority of the individual signing this Agreement to make any commitment or undertaking on behalf of such entity or to determine any fact or circumstance bearing upon the existence of the authority of such individual. 12.6 INVESTMENT REPRESENTATION. Each Member hereby represents and ------------------------- warrants to, and agrees with, the other Members and the Company that he or it is acquiring the Membership Interest for investment purposes for his or its own account only and not with a view to or for sale in connection with any distribution of all or any part of the Membership Interest. No other person will have any direct or indirect beneficial interest in or right to the Membership Interest. -43- 12.7 LLC AS CARD CLUB OPERATOR. At such time as HPI or HPC may be ------------------------- licensed as an owner and operator of a card club under applicable California law and the City ordinance, if applicable law then prohibits a card club operator from being organized as a limited liability company or the Company as a limited liability company from being the manager or the managing general partner of Newco, the Company shall be reorganized as a California limited partnership, with HPC as the managing general partner, and the Members shall enter into a Limited Partnership Agreement containing substantially the same terms and provisions hereof, modified as necessary to reflect the fact that the entity is a California limited partnership. -44- IN WITNESS WHEREOF, this Agreement is executed as of the day and year set forth above. HP/COMPTON, INC. By: /s/ G. Michael Finnigan ___________________________ G. Michael Finnigan Its: Vice President REDWOOD GAMING LLC DeMur, Inc. By: /s/ Mark Rivers ___________________________ Mark Rivers Its: Vice President __________________________ FIRST PARK INVESTMENTS, LLC By: /s/ Leo Chu ___________________________ Leo Chu Its: __________________________ -45- SCHEDULE I ---------- DEFINITIONS When used in this Agreement, the following terms shall have the meanings set forth below (all terms used in this Agreement that are not defined in this Schedule I shall have the meanings set forth elsewhere in this Agreement): - ---------- "1933 ACT" shall mean the Securities Act of 1933, as amended, or any -------- future comparable law. "1934 ACT" shall mean the Securities Exchange Act of 1934, as amended, or -------- any future comparable law. "ACQUIRED INTEREST" is defined in Section 7.9.3. ----------------- "ACT" means the Beverly-Killea Limited Liability Company Act, codified in --- the California Corporations Code, Section 17000 et seq., as the same may be -- --- amended from time to time. "ADDITIONAL CAPITAL CONTRIBUTIONS" has the meaning set forth in Section -------------------------------- 2.2. "ADJUSTED CAPITAL ACCOUNT DEFICIT" means, with respect to any Member, the -------------------------------- deficit balance, if any, in such Member's Capital Account as of the end of the relevant Fiscal Year, after giving effect to the following adjustments: (a) Credit to such Capital Account any amounts that such Member is obligated to restore pursuant to any provision of this Agreement or is deemed to be obligated to restore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); (b) Credit to such Capital Account the amount of the deductions and losses referable to any outstanding recourse liabilities owed by the Company to such Member for which no other Member bears any economic risk of loss and the amount of the deductions and losses referable to such Member's share (determined in accordance with the Member's Profit Percentage Interest) of outstanding recourse liabilities owed by the Company to non-Members for which no Member bears any economic risk of loss; and (c) Debit to such Capital Account the items described in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and 1.704- - - - - 1(b)(2)(ii)(d)(6). - - The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Regulations Section 1.704- 1(b)(2)(ii)(d) and shall be interpreted consistently therewith. - -46- "ADVANCES" has the meaning set forth in Section 2.6. -------- "AFFILIATE" means any individual, partnership, corporation, trust or --------- other entity or association, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with, a Member. The term "control," as used in the immediately preceding sentence, means, with respect to a corporation or limited liability company, the right to exercise, directly or indirectly, fifty percent (50%) of the voting rights attributable to the controlled corporation or limited liability company and, with respect to any individual, partnership, trust, other entity or association, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of the controlled entity. "AGREEMENT" means this Operating Agreement, as originally executed and as --------- amended and/or restated from time to time. "ARTICLES" means the Articles of Organization for the Company originally -------- filed with the California Secretary of State, as amended and/or restated from time to time. "BANKRUPTCY" means: (i) being adjudicated bankrupt or insolvent in ---------- proceedings filed against a Person or its ultimate "parent" entity under any section or chapter of the United States Bankruptcy Code, as amended from time to time, or any similar law or statute of any state thereof (collectively "Bankruptcy Laws"); (ii) any petition for reorganization or arrangement under any Bankruptcy Laws; (iii) proceedings under any Bankruptcy Laws to have a Person adjudicated a bankrupt or insolvent, which proceedings are not dismissed within ninety (90) days of commencement; (iv) the general assignment by any Person for the benefit of creditors; (v) the appointment of a receiver for all or substantially all of the assets of any Person and the failure to have such receiver discharged within ninety (90) days after appointment; (vi) the suffering by any Member of any assignment by operation of law, or any attachment, sequestration, garnishment or lien against, or the occurrence of a levy on, such Person's interest in the Company, or any portion thereof, with the same not being discharged of record by bonding or otherwise within ninety (90) days after notice to such Member of such event. "CAPITAL ACCOUNT" means with respect to any Member the capital account --------------- that the Company establishes and maintains for such Member pursuant to Section 2.3. "CAPITAL CONTRIBUTION" means the total value of cash and the fair market -------------------- value (as determined by the Managers or as agreed upon by the Members under this Agreement) of property (including promissory notes or other obligations to contribute cash or property) or services contributed by Members. -47- "CAPITAL INTERESTS" means the ratio of each Member's Capital Account to ----------------- the total of all Member's Capital Accounts at any time. "CARD CLUB" has the meaning set forth in Recital A of this Agreement. --------- "CARD CLUB OPERATOR" has the meaning set forth in Section 6.4.1. ------------------ "CARD CLUB SITE" has the meaning set forth in Recital A of this -------------- Agreement. "CHANGE OF CONTROL" means that, with respect to a Person, more than 50% ----------------- of the beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, whether or not such provision is applicable to such Person) of its securities, as of the date of this Agreement, is Transferred to another Person or group of Persons that is not an Affiliate of the current owners. In the case of Chu, a Change of Control shall occur if Leo and Ivy Chu together do not own more than 50% of the beneficial ownership of Chu; and in the case of DeBartolo, a Change of Control shall occur if Edward J. DeBartolo or Cynthia R. DeBartolo do not own more than 50% of the beneficial ownership of DeBartolo. "CHU" means FIRST PARK INVESTMENTS, LLC, a California limited liability --- company. "CITY" has the meaning set forth in Recital A of this Agreement. ---- "CODE" means the Internal Revenue Code of 1986, as amended from time to ---- time, the provisions of succeeding law and to the extent applicable, the Regulations. "COMPANY" means CRYSTAL PARK HOTEL AND CASINO DEVELOPMENT COMPANY, LLC, a ------- California limited liability company. "COMPANY MINIMUM GAIN" has the meaning ascribed to the term "Partnership -------------------- Minimum Gain" in the Regulations Section 1.704-2(d). "COMPANY PERSON" means a Member, Manager or officer of the Company. -------------- "COMPANY PROPERTY" has the meaning set forth in Section 14. ---------------- "CORPORATIONS CODE" means the California Corporations Code, as amended ----------------- from time to time, and the provisions of succeeding law. -48- "DDA" has the meaning set forth in Recital B of this Agreement. --- "DEBARTOLO" means REDWOOD GAMING LLC, a California limited liability --------- company. "DEFAULTING MEMBER" means any Member that has committed a material breach ----------------- of this Agreement, including without limitation a breach pursuant to Section 2.7 hereof. "DISSOLUTION EVENT" means (i) the death, insanity, expulsion, Bankruptcy ----------------- or dissolution of any Member or the commission by a Member of a material default under this Agreement which is incapable of cure or (ii) the withdrawal, resignation or retirement of a Member without the prior consent of all of the other Members. "ECONOMIC INTEREST" means a Member's or Economic Interest Owner's share ----------------- of one or more of the Company's Net Profits, Net Losses and distributions of the Company's assets pursuant to this Agreement and the Act, but shall not include any other rights of a Member including, without limitation, the right to vote or participate in the management or, except as provided in Section 17106 of the Corporations Code, any right to information concerning the business and affairs of Company. "ECONOMIC INTEREST OWNER" means the owner of an Economic Interest who is ----------------------- not a Member. "EXCLUDED MEMBER" means a Member that caused a Dissolution Event. --------------- "EXPENSES" shall include, without limitation, attorneys' fees, -------- disbursements and retainers, court costs, transcript costs, fees of accountants, experts and witnesses, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, or being or preparing to be a witness or other participant in a Proceeding. "FAIR VALUE" shall be determined in accordance with Section 7.9.3. ---------- "FIRST OPPORTUNITY OFFER" has the meaning set forth in Section 7.2. ----------------------- "FISCAL YEAR" means (i) the period commencing upon the formation of the ----------- Company and ending on December 31, 1996, (ii) any subsequent twelve (12) month period commencing on January 1 and ending on December 31, or (iii) any portion of the period described in Clause (ii) of this sentence for which the Company is required to allocate Profits, Losses, and other items -49- of Company income, gain, loss, or deduction pursuant to Article 3 hereof. "HOLDER" means either Chu or DeBartolo, who at that time, is the holder ------ of any Registrable Securities based on the records of HPI. "HOTEL" is defined in Recital C. ----- "HPC" means HP/Compton, Inc., a California corporation. --- "HPI" means Hollywood Park, Inc., a Delaware corporation. --- "HPI CHANGE" means that either R. D. Hubbard or G. Michael Finnigan ---------- ("Finnigan") no longer serves in either (i) his current capacity or (ii) a capacity that is senior to his current capacity with HPI or a successor (as long as, in the case of Finnigan, the individual at HPI or its successor who is primarily responsible for the Company reports directly or indirectly to Finnigan). "INITIAL CAPITAL CONTRIBUTIONS" has the meaning set forth in Section 2.1. ----------------------------- "INITIAL CARD CLUB ASSETS" has the meaning set forth in Section 2.1. ------------------------ "INITIAL EXPENSES" means all monies expended or committed by HPC or HPI ---------------- with respect to the Card Club, the Hotel and related businesses prior to the assignment of the Initial Card Club Assets to the Company, including without limitation the costs of acquiring the Card Club Site. "LEASE" has the meaning set forth in Recital D of this Agreement. ----- "LICENSE RIGHTS OPTION" has the meaning set forth in Recital B of this --------------------- Agreement. "MAJORITY INTEREST" means Members holding in the aggregate over fifty ----------------- percent (50%) of the aggregate of all Profit Percentage Interests; provided, -------- however, that for purposes of Section 9.1, "Majority Interest" means more than - ------- fifty percent (50%) of both the capital and profit interests in the Company (within the meaning of such terms in Revenue Procedure 94-46, 1994-28 IRB 1) held by the Remaining Members. "MANAGER" shall mean the manager who is designated from time to time as ------- provided in Section 6.2. "MEMBER" means each Person who (a) is an Original Member, has been ------ admitted to the Company as a Member in accordance with the Articles and this Agreement or is an assignee who has become a Member in accordance with Article 7 and (b) has not resigned, -50- withdrawn, been expelled or, if other than an individual, dissolved. "MEMBER-MANAGER" means a Manager who is a Member. -------------- "MEMBER NONRECOURSE DEBT" has the meaning ascribed to the term "Partner ----------------------- Nonrecourse Debt" in Regulations Section 1.704-2(b)(4). "MEMBER NONRECOURSE DEDUCTIONS" means items of Company loss, deduction or ----------------------------- Code Section 705(a)(2)(B) expenditures that are attributable to Member Nonrecourse Debt or to other loans by a Member to the Company for which no other Member bears the economic risk of loss. "MEMBERSHIP INTEREST" means a Member's entire interest in the Company or ------------------- any portion thereof, including without limitation the Member's Economic Interest, the right to vote on or participate in the management and the right to receive information concerning the business and affairs of the Company. "NET CASH FLOW" means the sum of Net Cash From Operations and Net Cash ------------- From Sales or Refinancings, where: (a) "NET CASH FROM OPERATIONS" means the gross cash proceeds from ------------------------ Company operations (including sales and dispositions of property in the ordinary course of business) less the portion thereof used to pay or establish reserves for all Company expenses, debt payments, capital improvements, replacements, and contingencies, all as determined by the Manager, subject to the reasonable approval of all of the Members. Net Cash From Operations shall not be reduced by depreciation, amortization, cost recovery deductions, or similar allowances, but shall be increased by any reductions of reserves previously established pursuant to the first sentence of this clause (a) and pursuant to the definition below of Net Cash From Sales or Refinancings. (b) "NET CASH FROM SALES OR REFINANCINGS" means the net cash proceeds ----------------------------------- from all sales and other dispositions (other than in the ordinary course of business) and all refinancings of property, less any portion thereof used to establish reserves, all as determined by the Manager, subject to the reasonable approval of all of the Members. Net Cash From Sales or Refinancings shall include all principal and interest payments with respect to any note or other obligation received by the Company in connection with sales and other dispositions (other than in the ordinary course of business) of property. "NET PROFITS" and "NET LOSSES" means the income, gain, loss, deductions ----------- ---------- and credits of the Company in the aggregate or separately stated, as appropriate, determined in accordance with the method of accounting used on the Company's information tax return filed for federal income tax purposes. Notwithstanding -51- the foregoing, any items of income, gain, loss or deduction that are specially allocated pursuant to Section 3.3 or 3.4 shall not be taken into account in computing Net Profits or Net Losses. "NEWCO" means the limited liability company, general partnership or other ----- entity formed by the Company and CEI to which the Company Assets will be transferred in accordance with the Purchase Agreement after such time as applicable law is amended to permit public companies to operate card clubs or HPI or HPC is otherwise legally permitted to operate the Card Club. "NONCOMPLYING PERSON" has the meaning set forth in Section 7.7. ------------------- "NONRECOURSE LIABILITY" has the meaning set forth in Regulations Section --------------------- 1.752-1(a)(2). "OFFEREES" has the meaning set forth in Section 7.2. -------- "ORIGINAL MEMBERS" means HPC, DeBartolo and Chu. ---------------- "PERSON" means an individual, general partnership, limited partnership, ------ limited liability company, corporation, trust, estate, real estate investment trust association or any other entity. "PROCEEDING" means any action, suit, arbitration, alternative dispute ---------- resolution mechanism, investigation, administrative hearing or other proceeding, whether civil, criminal, administrative or investigative in nature. "PROFIT PERCENTAGE INTEREST" means the percentage interest of a Member in -------------------------- Net Profits, as set forth in Section 31 and as adjusted from time to time in accordance with Section 2.7. "PURCHASE AGREEMENT" has the meaning set forth in Recital B of this ------------------ Agreement. "RATE" means interest at an annual rate equal to the Bank of America's ---- prime interest rate in effect from time to time (but in no event greater than the maximum rate permitted under applicable law). "REAL PROPERTY RIGHTS" has the meaning set forth in Recital B of this -------------------- Agreement. "REGISTRABLE SECURITIES" means those shares of HPI Common Stock received ---------------------- or receivable by either Chu or DeBartolo under Section 7.9 of this Agreement (including shares received from HPI with respect to or in replacement of such shares by reason of splits, dividends and recapitalizations) but excluding any shares which may be then sold to the public without registration -52- pursuant to Rule 144 or other comparable provision under the 1933 Act ("Rule 144"). "REGISTRATION STATEMENT" means any registration statement or comparable ---------------------- document under the 1933 Act through which a public sale or disposition of HPI's Common Stock may be registered or exempted from registration (except a form exclusively for the sale or distribution of securities by HPI or to employees of HPI or its subsidiaries or for use exclusively in connection with a business combination). "REGULATIONS" means, unless the context clearly indicates otherwise, the ----------- regulations currently in force from time to time as final or temporary that have been issued by the U.S. Department of Treasury pursuant to its authority under the Code. "REMAINING MEMBERS" means the Members other than the Excluded Member. ----------------- "SEC" means the Securities and Exchange Commission. --- "SELLING HOLDER" means with respect to any Registration Statement, any -------------- Holder whose securities are included therein. "SELLERS' UNDERWRITER" means with respect to any Registration Statement -------------------- and only to the extent that HPI has not retained an underwriter for such offering, the underwriter designated in writing by the Selling Holders, subject to the prior approval of HPI, which may be withheld for any reason. "SUPER MAJORITY INTEREST" means Members holding in the aggregate at least ----------------------- eighty percent (80%) of all Profit Percentage Interests. "TAX MATTERS PARTNER" shall be HPC or its successor as designated ------------------- pursuant to Section 8.6. "THIRD PARTY LOANS" has the meaning set forth in Section 25. ----------------- "TRANSFER" means any sale, transfer, assignment, hypothecation or other -------- voluntary disposition, whether by gift, bequest or otherwise. In the case of a hypothecation, the Transfer shall be deemed to occur both at the time of the initial pledge and at any pledgee's sale or a sale by any secured creditor. "TRANSFERABLE INTEREST" has the meaning set forth in Section 7.2. --------------------- -53- SCHEDULE 2.1 ------------ INITIAL CARD CLUB ASSETS ------------------------ A. AGREEMENTS WITH COMPTON ENTERTAINMENT, INC. ("CEI") 1. Agreement In Principle, dated April 29, 1994, by and among Hollywood Park, Inc., a Delaware corporation ("HPI") and CEI. 2. Amended and Restated Agreement Respecting Pyramid Casino, dated July 14, 1995, by and among HPI as Buyer, CEI as Seller and Shareholder, together with (i) Exhibit A: Form of Lease, by and among HP/Compton --------- as Landlord and CEI as Tenant; (ii) Exhibit B-1: Form of ----------- Partnership Agreement Of Pyramid Casino Partners, a California general partnership, by and among HPI and CEI; and Exhibit B-2: ----------- Form of Limited Liability Company Operating Agreement Of Pyramid Casino Company, LLC, by and among HPI and CEI. 3. Lease, dated August 3, 1995, by and among HPC as Landlord and CEI as Tenant, as amended by that certain First Amendment to Lease. 4. Assignment, Acceptance and Assumption and Consent, dated August 2, 1995, to transfer and assign to HPC, all of its right, title and interest in that certain Amended and Restated Agreement Respecting Pyramid Casino, dated as of July 14, 1995, by and between HPI and CEI and Shareholder. 5. License Rights Option Agreement, dated August 3, 1995, by and among CEI as Optionor and HPC as Optionee. B. AGREEMENTS WITH THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF COMPTON ("the Agency") 1. Amended and Restated Disposition and Development Agreement, Agreement of Purchase and Sale, and Lease with Option to Purchase, dated April 4, 1995 (the "DDA"), by and among the Agency and CEI. 2. Assignment, Assumption & Consent Agreement, dated July 31, 1995, by and among CEI as Assignor, HPC as Assignee, HPI as Guarantor and the Agency. 3. Guaranty, dated July 31, 1995, by HPI as Guarantor, in favor of the Agency. -54- 4. Memorandum of Lease and Option to Purchase, dated July 31, 1995, by and among the Agency as Landlord and HPC as Tenant, recorded August 3, 1995, as Instrument No. 95-1265412, in the Official Records, Los Angeles County, California. 5. Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing, dated July 31, 1995, by HPC as Trustor, Chicago Title Company, a California corporation, as Trustee and the Agency as Beneficiary, recorded August 3, 1995, as Instrument No. 95-1265414, in the Official Records, Los Angeles County, California. 6. UCC-1 Financing Statement dated July 31, 1995, executed by HPC as Debtor, in favor of the Agency as Secured Creditor, recorded August 3, 1995, as Instrument No. 95-1265415, in the Official Records of Los Angeles County, California. 7. UCC-1 Financing Statement, dated July 31, 1995, executed by HPC as Debtor, in favor of the Agency as Secured Creditor, filed with the Secretary of State-California. 8. Offset Agreement, dated as of July 31, 1995, by and among the Agency, the City of Compton, HPC and CEI. 9. Representations and Warranties Agreement, dated August 2, 1995, by and among CEI, HPC and the Agency. 10. Slope Maintenance Agreement, dated August 2, 1995, by HPC in favor of the City of Compton, recorded August 3, 1995, as Instrument No. 95-1265419, in the Official Records of Los Angeles County, California. -55- SCHEDULE 6.5 ------------ -56- SCHEDULE 7.8A ------------- Interests in FIRST PARK INVESTMENTS, LLC Member Profit Percentage Interest - ------ -------------------------- Leo Chu 50% Ivy Chu 50% -57- SCHEDULE 7.8B ------------- Interests in REDWOOD GAMING LLC Member Profit Percentage Interest - ------ -------------------------- Cynthia R. DeBartolo 90% Christine Catherine Muranski 10% -58- Exhibit A ---------
- ---------------- -------------------------- ------------ -------------- Initial Profit Initial Percentage Capital Member's Name Member's Address Interests Contributions - ---------------- -------------------------- ------------ -------------- HPC 1050 South Prairie Avenue 88% $22,000,000 Inglewood, CA 90301 DeBartolo Attn: G. Michael Finnigan 8% $ 2,000,000 999 Baker Way, Suite 420 San Mateo, CA 94404 Chu Attn: Mark Rivers 4% $ 1,000,000 515 North Camden Drive Beverly Hills, CA 90210 Attn: Leo Chu
-59- EX-27.1 9 FINANCIAL DATA SCHEDULE
5 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)
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