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The remaining balance of the favorable lease rates intangible asset was reclassified and added to the operating lease right-of-use asset upon the adoption of the Lease Standard effective January 1, 2019. Figures in the table may not recalculate exactly due to rounding. 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Table of Contents

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 10-K

  

 

(Mark One)

   

☒

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

    

For the fiscal year ended December 31, 2019

OR

  

☐

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

  

Commission file number: 1-12882

 

 

  

BOYD GAMING CORPORATION

(Exact name of registrant as specified in its charter)

 

 

Nevada

88-0242733

(State or other jurisdiction of

incorporation or organization)

(I.R.S. Employer

Identification No.)

 

3883 Howard Hughes Parkway, Ninth Floor, Las Vegas, NV 89169

(Address of principal executive offices) (Zip Code)

 

(702) 792-7200

(Registrant’s telephone number, including area code)

  

Securities registered pursuant to Section 12(b) of the Act:

  

Title of each class

Trading Symbol(s)

Name of each exchange on which registered

Common Stock, par value of $0.01 per share

BYD

New York Stock Exchange

 

Securities registered pursuant to section 12(g) of the Act: None

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes  ☒  No  ☐

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes  ☐  No  ☒

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes  ☒  No  ☐

 

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes  ☒  No  ☐

 

 

 
 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of "large accelerated filer," "accelerated filer," "smaller reporting company," and "emerging growth company" in Rule 12b-2 of the Exchange Act.

  

Large accelerated filer

☒

Accelerated filer

☐

Non-accelerated filer

☐ 

Smaller reporting company

☐

 

 

Emerging growth company

☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Act.☐

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes  ☐    No  ☒

 

As of June 30, 2019, the aggregate market value of the voting common stock held by non-affiliates of the registrant, based on the closing price on the New York Stock Exchange for such date, was approximately $2.1 billion.

 

Indicate the number of shares outstanding of each of the registrant's classes of common stock, as of the latest practicable date.

  

 

Class

 

Outstanding as of February 20, 2020

 

 

Common stock, $0.01 par value

 

111,607,470

 

  

DOCUMENTS INCORPORATED BY REFERENCE

Portions of the definitive Proxy Statement for the registrant's 2020 Annual Meeting of Stockholders to be filed pursuant to Regulation 14A within 120 days after the registrant's fiscal year end of December 31, 2019 are incorporated by reference into Part III of this Form 10-K.

  

  

 
Table of Contents
 

 

BOYD GAMING CORPORATION

ANNUAL REPORT ON FORM 10-K

FOR THE FISCAL YEAR ENDED DECEMBER 31, 2019

TABLE OF CONTENTS

 

 

 

Page No.

 

PART I

 

ITEM 1.

Business

1

 

 

 

ITEM 1A.

Risk Factors

11

 

 

 

ITEM 1B.

Unresolved Staff Comments

24

 

 

 

ITEM 2.

Properties

25

 

 

 

ITEM 3.

Legal Proceedings

25

 

 

 

ITEM 4.

Mine Safety Disclosures

25

 

 

 

 

PART II

 

 

 

 

ITEM 5.

Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

26

 

 

 

ITEM 6.

Selected Financial Data

28

 

 

 

ITEM 7.

Management's Discussion and Analysis of Financial Condition and Results of Operations

30

 

 

 

ITEM 7A.

Quantitative and Qualitative Disclosures About Market Risk

51

 

 

 

ITEM 8.

Financial Statements and Supplementary Data

52

 

 

 

ITEM 9.

Changes in and Disagreements With Accountants on Accounting and Financial Disclosure

113

 

 

 

ITEM 9A.

Controls and Procedures

113

 

 

 

ITEM 9B.

Other Information

115

 

 

 

 

PART III

 

 

 

 

ITEM 10.

Directors, Executive Officers and Corporate Governance

115

 

 

 

ITEM 11.

Executive Compensation

115

 

 

 

ITEM 12.

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

115

 

 

 

ITEM 13.

Certain Relationships and Related Transactions, and Director Independence

115

 

 

 

ITEM 14.

Principal Accounting Fees and Services

115

 

 

 

 

PART IV

 

 

 

 

ITEM 15.

Exhibits, Financial Statement Schedules

116

 

 

 

ITEM 16.

Form 10-K Summary

124

 

 

 

 

SIGNATURES

125

 

 
Table of Contents
 

 

PART I

 

ITEM 1.    Business

Overview

Boyd Gaming Corporation (the "Company," the "Registrant," "Boyd Gaming," "we" or "us") is a multi-jurisdictional gaming company that has been in operation since 1975. Headquartered in Las Vegas, we operate 29 wholly owned gaming entertainment properties in Nevada, Illinois, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Ohio and Pennsylvania.

 

We strive to create long-term shareholder value, to be among the leading companies in our industry and to provide opportunities for all while we support and enhance our communities. Our primary areas of focus are: (i) ensuring our existing operations are managed as efficiently as possible and remain positioned for growth; (ii) improving our capital structure and strengthening our balance sheet, including paying down debt, increasing free cash flow, improving operations and diversifying our asset base; and (iii) successfully implementing our growth strategy, which is built on identifying development opportunities and acquiring assets that are a good strategic fit and provide an appropriate return to our shareholders.

 

We operate with an efficient business model that we believe has enabled us to grow operating margins over the past several years, and we believe we have an opportunity to realize additional cost savings by further leveraging our size and scale. We strategically reinvest in our non-gaming amenities, including hotel rooms and restaurants to refresh our property offerings and better capitalize on customers' evolving spending behaviors. We manage our cost and expense structure to adjust to current business volumes and to generate strong and stable cash flows.

 

During 2019, we completed several transactions that improved our long-term financial position, strengthened our balance sheet and returned capital to our shareholders. During fourth quarter 2019, we issued $1.0 billion aggregate principal amount of 4.750% senior notes due December 2027. The net proceeds from the debt issuance were ultimately used to finance the redemption of all of the Company's outstanding 6.875% senior notes due 2023 and prepay a portion of our Refinancing Term B Loans. Since second quarter 2019, we have paid $295.0 million in prepayments on our Refinancing Term B Loans. In addition, for the year ended December 31, 2019, we repurchased 1.1 million shares for $28.0 million under the Company's share repurchase program. The Company declared quarterly dividends of $0.06 per share on March 4, 2019 and $0.07 per share on June 7, 2019, September 17, 2019 and December 17, 2019. 

 

We continually work to position our Company for greater success by strengthening our existing operations and growing through acquisitions, capital investments and other strategic initiatives. An example is our recent strategic initiative regarding legalized sports gambling. In July 2018, the Company entered into a partnership agreement with MGM Resorts International ("MGM Resorts"). Under this partnership, MGM Resorts and Boyd Gaming will both have the opportunity to offer online and mobile gaming platforms, including sports betting, casino gaming and poker in jurisdictions where either company operates physical casino resorts and online licenses are available. In August 2018, we entered into a strategic partnership with FanDuel Group to pursue sports betting and online gaming opportunities across the United States. Also in August 2018, we opened sports books at our two Mississippi properties, IP Casino Resort Spa ("IP") in Biloxi, and Sam's Town Hotel & Gambling Hall in Tunica, following the receipt of final approval from the Mississippi Gaming Commission. In March 2019, Valley Forge opened a sports book at the facility and in third quarter 2019, sports books at Diamond Jo Worth, Diamond Jo Dubuque, Blue Chip and Belterra Casino Resort opened, following approval from the respective state regulatory bodies.

 

We believe that the following factors have contributed to our success in the past and are central to our success in the future:

 

 

•

nine of our Las Vegas properties are well-positioned to capitalize on the attractive Las Vegas locals market;

     
 

•

our three downtown Las Vegas properties focus a majority of their marketing programs on, and derive a majority of their revenues from, a unique niche - Hawaiian customers;

     
 

•

our operations are geographically diversified within the United States;

     
 

•

we have strengthened our balance sheet and have increased free cash flow;

     
 

•

we have the ability to expand certain existing properties and to act opportunistically to make strategic acquisitions; and

     
 

•

we have an experienced management team.

 

 
1
Table of Contents

 

Properties

As of December 31, 2019, we own and operate 29 properties offering a total of 1,773,902 square feet of casino space, 36,977 slot machines, 809 table games and 11,090 hotel rooms. We derive the majority of our revenues from our gaming operations, which generated approximately 75%, 73% and 72% of our revenues in 2019, 2018 and 2017, respectively. Food & beverage revenues represent our next most significant revenue source, generating approximately 13% of revenues for 2019, and 14% for 2018 and 2017. Room revenues and other revenues each contributed less than 10% of revenues during each year.

 

We view each operating property as an operating segment. For financial reporting purposes, we aggregate our properties into three reportable business segments: (i) Las Vegas Locals; (ii) Downtown Las Vegas; and (iii) Midwest & South.

 

We added five properties to our Midwest & South segment during 2018. Valley Forge was acquired on September 17, 2018 and Ameristar Kansas City, Ameristar St. Charles, Belterra Resort and Belterra Park were acquired on October 15, 2018. As a result of the sale in 2016 of our equity interest in Borgata Hotel Casino & Spa ("Borgata"), we report our interest in Borgata as discontinued operations. See Note 2, Acquisitions and Divestitures, to our consolidated financial statements presented in Part II, Item 8 for further discussion of these activities.

 

For financial information related to our segments as of and for the three years in the period ended December 31, 2019, see Note 14, Segment Information, to our consolidated financial statements presented in Part II, Item 8.

 

2
Table of Contents

 

The following table sets forth certain information regarding our properties (listed by the Reportable Segment in which each such property is reported) as of and for the year ended December 31, 2019:

 

     

Year

                                       
     

Opened

 

Casino

                           

Average

 
     

or

 

Space

 

Slot

 

Table

 

Hotel

 

Hotel

   

Daily

 
 

Location

 

Acquired

 

(Sq. ft.)

 

Machines

 

Games

 

Rooms

 

Occupancy

   

Rate

 

Las Vegas Locals

                                             

Gold Coast Hotel and Casino

Las Vegas, NV

 

2004

    88,915     1,718     49     712     85 %   $ 58  

The Orleans Hotel and Casino

Las Vegas, NV

 

2004

    137,000     2,272     60     1,885     85 %   $ 67  

Sam's Town Hotel and Gambling Hall

Las Vegas, NV

 

1979

    120,681     1,800     24     645     86 %   $ 60  

Suncoast Hotel and Casino

Las Vegas, NV

 

2004

    95,898     1,817     33     427     90 %   $ 77  

Eastside Cannery Casino and Hotel

Las Vegas, NV

 

2016

    63,879     881     9     306     78 %   $ 57  

Aliante casino + Hotel + Spa

North Las Vegas, NV

 

2016

    125,000     1,782     33     202     96 %   $ 96  

Cannery Casino Hotel

North Las Vegas, NV

 

2016

    86,000     1,451     22     200     84 %   $ 70  

Eldorado Casino

Henderson, NV

 

1993

    17,756     303     —     N/A     N/A       N/A  

Jokers Wild Casino

Henderson, NV

 

1993

    23,698     385     7     N/A     N/A       N/A  
                                               

Downtown Las Vegas

                                             

California Hotel and Casino

Las Vegas, NV

 

1975

    35,848     916     30     781     92 %   $ 47  

Fremont Hotel and Casino

Las Vegas, NV

 

1985

    30,244     912     28     447     88 %   $ 52  

Main Street Station Casino, Brewery and Hotel

Las Vegas, NV

 

1993

    26,918     813     19     406     91 %   $ 50  
                                               

Midwest & South

                                             

Par-A-Dice Hotel and Casino

East Peoria, IL

 

1996

    26,116     867     25     202     80 %   $ 68  

Belterra Casino Resort

Florence, IN

 

2018

    54,758     1,157     40     662     66 %   $ 84  

Blue Chip Casino, Hotel & Spa

Michigan City, IN

 

1999

    65,000     1,655     40     486     78 %   $ 79  

Diamond Jo Dubuque

Dubuque, IA

 

2012

    43,508     886     19     N/A     N/A       N/A  

Diamond Jo Worth

Northwood, IA

 

2012

    36,133     881     24     N/A     N/A       N/A  

Kansas Star Casino

Mulvane, KS

 

2012

    70,010     1,756     52     N/A     N/A       N/A  

Amelia Belle Casino

Amelia, LA

 

2012

    27,484     844     11     N/A     N/A       N/A  

Delta Downs Racetrack Casino & Hotel

Vinton, LA

 

2001

    15,000     1,630     —     370     67 %   $ 71  

Evangeline Downs Racetrack and Casino

Opelousas, LA

 

2012

    39,208     1,362     —     N/A     N/A       N/A  

Sam's Town Hotel and Casino

Shreveport, LA

 

2004

    29,285     985     25     514     67 %   $ 73  

Treasure Chest Casino

Kenner, LA

 

1997

    25,000     1,030     27     N/A     N/A       N/A  

IP Casino Resort Spa

Biloxi, MS

 

2011

    81,700     1,448     54     1,089     88 %   $ 71  

Sam's Town Hotel and Gambling Hall

Tunica, MS

 

1994

    46,000     785     17     700     47 %   $ 55  

Ameristar Casino Hotel Kansas City

Kansas City, MO

 

2018

    140,000     2,030     56     184     91 %   $ 80  

Ameristar Casino Resort Spa St. Charles

St. Charles, MO

 

2018

    130,000     2,396     56     397     91 %   $ 87  

Belterra Park

Cincinnati, OH

 

2018

    56,863     1,365     —     N/A     N/A       N/A  

Valley Forge Casino Resort

King of Prussia, PA

 

2018

    36,000     850     49     475     60 %   $ 104  

Total

    1,773,902     36,977     809     11,090                

N/A = Not Applicable

 

We also own and operate a travel agency and a captive insurance company that underwrites travel-related insurance, each located in Hawaii. Financial results for these operations are included in our Downtown Las Vegas segment, as our Downtown Las Vegas properties concentrate their marketing efforts on gaming customers from Hawaii. In addition, the financial results for our Illinois distributed gaming operator, which we acquired on June 1, 2018, are included in the Midwest & South segment. Our distributed gaming operator currently operates approximately 1,000 gaming units in approximately 220 locations across the state of Illinois.

 

3
Table of Contents

 

Las Vegas Locals Properties

Our Las Vegas Locals segment consists of nine casinos that primarily serve the resident population of the Las Vegas metropolitan area. Las Vegas has historically been characterized by a vibrant economy and strong demographics that include a large population of retirees and other active gaming customers. In recent years, the Las Vegas economy has strengthened, as reflected in the positive trends in employment, construction activity and visitation. Our Las Vegas Locals segment competes directly with other locals casinos and gaming companies, some of which operate larger casinos and offer different promotions than ours.

 

Gold Coast Hotel and Casino

Gold Coast Hotel and Casino ("Gold Coast") is located on Flamingo Road, approximately one mile west of the Las Vegas Strip and one-quarter mile west of Interstate 15, the major highway linking Las Vegas and southern California. Its location offers easy access from all of the Las Vegas valley. The primary target market for Gold Coast consists of local middle-market customers who actively gamble. Gold Coast's amenities include 712 hotel rooms and suites along with meeting facilities, multiple restaurant options and a 70-lane bowling center.

 

The Orleans Hotel and Casino

The Orleans Hotel and Casino ("The Orleans") is located on Tropicana Avenue, a short distance from the Las Vegas Strip. The target markets for The Orleans are both local residents and visitors to the Las Vegas area. The Orleans provides an exciting New Orleans French Quarter-themed environment. Amenities at The Orleans include 1,885 hotel rooms, a variety of restaurants and bars, a spa and fitness center, 18 stadium-seating movie theaters, a 52-lane bowling center, banquet and meeting space, and a special events arena that seats up to 9,500 patrons.

 

Sam's Town Hotel and Gambling Hall

Sam's Town Hotel and Gambling Hall ("Sam's Town Las Vegas") is located on the Boulder Strip, approximately six miles east of the Las Vegas Strip, and features a contemporary western theme. Its informal, friendly atmosphere appeals to both local residents and out-of-town visitors alike. Amenities at Sam's Town Las Vegas include 645 hotel rooms, a variety of restaurants and bars, 18 stadium-seating movie theaters, and a 56-lane bowling center.

 

Suncoast Hotel and Casino

Suncoast Hotel and Casino ("Suncoast") is located in Peccole Ranch, a master-planned community adjacent to Summerlin, and is readily accessible from most major points in Las Vegas, including downtown and the Las Vegas Strip. The primary target market for Suncoast consists of local middle-market customers who gamble frequently. Suncoast features 427 hotel rooms, multiple restaurant options, 25,000 square feet of banquet and meeting facilities, 16 stadium-seating movie theaters, and a 64-lane bowling center.

 

Eastside Cannery Casino and Hotel

Eastside Cannery Casino and Hotel ("Eastside Cannery") is located directly south of Sam's Town Las Vegas at the intersection of Boulder Highway and Harmon Avenue in Las Vegas. Its location offers easy access for both the Las Vegas and Henderson valleys. Eastside Cannery offers 306 hotel rooms, one restaurant and four bars, 20,000 square feet of meeting and ballroom space, and a 250-seat entertainment lounge.

 

Aliante Casino + Hotel + Spa

Aliante Casino + Hotel + Spa ("Aliante") is located in North Las Vegas adjacent to an 18-hole championship golf course and has convenient access to major freeways connecting it to points throughout Las Vegas. The primary target market for Aliante consists of local middle-market customers who gamble frequently. Aliante features a full-service Scottsdale-modern, desert-inspired casino and resort, which includes 202 hotel rooms, multiple restaurant options, a 16-screen movie theater complex, a 587-seat showroom, a spa, and a resort style pool with cabanas.

 

Cannery Casino Hotel

Cannery Casino Hotel ("Cannery") is located in the eastern part of the Las Vegas Valley and has convenient access to major freeways connecting it to points throughout Las Vegas. The primary target market for Cannery consists of local, casual working-class customers who gamble frequently. The Cannery has a 200-room hotel, five restaurants and five bars, a 30,000 square foot entertainment venue and a 14-screen movie theater.

 

Eldorado Casino and Jokers Wild Casino

Located in downtown Henderson, the Eldorado Casino ("Eldorado") is approximately 14 miles from the Las Vegas Strip. Jokers Wild Casino ("Jokers Wild") is also located in Henderson. The amenities at each of these properties include a sports book and dining options, as well as gaming, including slots at both properties and table games at Jokers Wild. The principal customers of these properties are Henderson residents.

 

4
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Downtown Las Vegas Properties

Our three Downtown Las Vegas properties directly compete with eight other casinos that operate in downtown Las Vegas. As such, we have developed a distinct niche for our downtown properties by focusing on customers from Hawaii. Our downtown properties focus their marketing on gaming enthusiasts from Hawaii and tour and travel agents in Hawaii with whom we have cultivated relationships since we opened our California Hotel and Casino (the "Cal") in 1975. Through our Hawaiian travel agency, Vacations Hawaii, we operate as many as four charter flights from Honolulu to Las Vegas each week, helping to provide air transportation for our customers. We also have strong, informal relationships with other Hawaiian travel agencies and offer affordable all-inclusive packages. These relationships, combined with our Hawaiian promotions, have allowed the Cal, Fremont Hotel and Casino ("Fremont") and Main Street Station Casino, Brewery and Hotel ("Main Street Station") to capture a significant share of the Hawaiian tourist trade in Las Vegas. During the year ended December 31, 2019, patrons from Hawaii comprised approximately 67% of the occupied room nights at the Cal, 35% of the occupied room nights at Fremont, and 46% of the occupied room nights at Main Street Station.

 

California Hotel and Casino

The Cal's amenities include 781 hotel rooms, multiple dining options, a sports book, and meeting space. The Cal and Main Street Station are connected by an indoor pedestrian bridge.

 

Fremont Hotel and Casino

Fremont is adjacent to the principal pedestrian thoroughfare in downtown Las Vegas, known as the Fremont Street Experience. The property's amenities include 447 hotel rooms, two restaurants, a race and sports book, and meeting space.

 

Main Street Station Casino, Brewery and Hotel

Main Street Station's amenities include 406 hotel rooms and two restaurants, one of which includes a brewery. In addition, Main Street Station features a 96-space recreational vehicle park, the only such facility in the downtown area.

 

Midwest & South Properties

Our Midwest & South properties consist of four land-based casinos, six dockside riverboat casinos, three racinos and four barge-based casinos that operate in nine states in the midwest and southern United States. Generally, these states allow casino gaming on a limited basis through the issuance of a limited number of gaming licenses. Each of our Midwest & South properties generally serve customers within a 100-mile radius and compete directly with other casino facilities operating in their respective immediate and surrounding market areas, as well as with gaming operations in surrounding jurisdictions.

 

Par-A-Dice Hotel Casino

Par-A-Dice Hotel Casino ("Par-A-Dice") is a dockside riverboat casino located on the Illinois River in East Peoria, Illinois that features a 202-room hotel. Located adjacent to the Par-A-Dice riverboat is a land-based pavilion, which includes four restaurants and a gift shop. Par-A-Dice is strategically located near Interstate 74, a major east-west interstate highway, and it is the only casino gaming facility located within an approximately 90 mile radius of Peoria, Illinois.

 

Belterra Casino Resort

Belterra Casino Resort ("Belterra Resort") is a dockside riverboat casino located in Florence, Indiana, approximately 50 minutes from downtown Cincinnati, Ohio, 70 minutes from Louisville, Kentucky, and 90 minutes from Lexington, Kentucky. Belterra Resort is also approximately two and one-half hours from Indianapolis, Indiana. The real estate utilized by Belterra Resort is subject to a Master Lease with Gaming and Leisure Properties, Inc. ("GLPI"). A FanDuel branded sportsbook opened at Belterra Resort in September 2019. Ogle Haus Inn, a 54-room boutique hotel that we lease from GLPI, is operated by us and located near Belterra Resort.

 

Blue Chip Casino, Hotel & Spa

Blue Chip Casino, Hotel & Spa ("Blue Chip") is a dockside riverboat casino located in Michigan City, Indiana, which is 40 miles west of South Bend, Indiana and 60 miles east of Chicago, Illinois. The property competes primarily with six casinos in northern Indiana and southern Michigan and, to a lesser extent, with casinos in the Chicago area and racinos located near Indianapolis. The property features 486 guest rooms, a spa and fitness center, dining and nightlife venues, and meeting and event space, including a land-based pavilion. A FanDuel branded sportsbook opened at Blue Chip in September 2019.

 

Diamond Jo Dubuque

Diamond Jo Dubuque is a land-based casino located in the Port of Dubuque, a waterfront development on the Mississippi River in downtown Dubuque, Iowa. Diamond Jo Dubuque is a two-story property that includes a bowling center, event center, and two banquet rooms. A FanDuel branded sportsbook opened at Diamond Jo Dubuque in September 2019. The property also features several dining outlets, including the Kitchen Buffet, a live action buffet, Woodfire Grille, the casino's high-end restaurant, The Filament, an electrifying-yet-casual restaurant and bar, and The Game, a sports bar, as well as three full service bars and Mississippi Moon Bar, a live music venue. 

 

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Diamond Jo Worth

Diamond Jo Worth is a land-based casino situated on a 46-acre site in Northwood, Iowa, which is located in north-central Iowa, near the Minnesota border and approximately 30 miles north of Mason City. The casino has an event center and several dining options, including the Kitchen Buffet, a buffet restaurant, Woodfire Grille, a high-end restaurant, a Subway and Burger King which is owned by a third party. A FanDuel branded sportsbook opened at Diamond Jo Worth in September 2019. There is a 102-room Country Inn & Suites hotel attached to the casino and a 60-room Holiday Inn Express hotel adjacent to the casino, both of which are owned and operated by third parties.

 

Kansas Star Casino

Kansas Star Casino ("Kansas Star") serves as Lottery Gaming Facility Manager for the South Central Gaming Zone on behalf of the Kansas Lottery pursuant to the Lottery Gaming Facility Management Contract (the "Kansas Management Contract"). The land-based casino is located in Mulvane, Kansas, approximately 20 miles south of Wichita, Kansas and has a buffet, a steakhouse and a number of other amenities including a deli, noodle bar, casual dining restaurant and casino bars. Kansas Star also has an arena that provides a venue for concerts, trade shows and equestrian events. In addition, the property has an event center for conventions, banquets and other events and an equestrian pavilion that includes a practice arena and covered stalls. There is a 300-room hotel adjacent to the casino that is operated by a third party. Under the terms of the agreement, Kansas Star has the option to purchase the hotel.

 

Amelia Belle Casino

The Amelia Belle Casino ("Amelia Belle") is located in south-central Louisiana, and is a three-level riverboat with gaming located on the first two decks as well as a café on the first deck. The property's third deck includes a buffet and banquet room.

 

Delta Downs Racetrack Casino & Hotel

Delta Downs Racetrack Casino & Hotel ("Delta Downs") is a land-based racino located in Vinton, Louisiana and conducts horse races on a seasonal basis and operates year-round simulcast facilities for customers to wager on races held at other tracks. In addition, Delta Downs offers slot play and a 370-room hotel. Delta Downs is approximately 25 miles closer to Houston than the next closest gaming properties, located in Lake Charles, Louisiana, and is conveniently located near a travel route taken by customers traveling between Houston, Beaumont and other parts of southeastern Texas to Lake Charles, Louisiana.

 

Evangeline Downs Racetrack and Casino

Evangeline Downs Racetrack and Casino ("Evangeline Downs") is a land-based racino located in Louisiana. The racino currently includes a casino with a convention center and multiple food venues, including a buffet, cafe, and two restaurants and bars. The racino includes a one-mile dirt track, a 7/8-mile turf track and stables for 1,008 horses. The Clubhouse, together with the grandstand and patio area, provides seating capacity for up to 4,295 patrons. In the Clubhouse, Silk's Fine Dining offers a varied menu and the grandstand area contains a concession and bar. There is also a 117-room hotel adjacent to the racino, which is operated by a third party.

 

Evangeline Downs operates three Off Track Betting ("OTB") locations in Henderson, Eunice and St. Martinville, Louisiana. Each OTB offers simulcast pari-mutuel wagering and video poker. Under Louisiana's racing and off-track betting laws, we have a right of prior approval with respect to any applicant seeking a permit to operate an OTB within a 55-mile radius of the Evangeline Downs racetrack, which effectively gives us the exclusive right, at our option, to operate additional OTBs within such a radius, provided that such OTB is not also within a 55-mile radius of another horse racetrack.

 

Sam's Town Hotel and Casino

Sam's Town Hotel and Casino ("Sam's Town Shreveport") is a dockside riverboat casino located along the Red River in Shreveport, Louisiana. Amenities at the property include 514 hotel rooms, a spa, four restaurants, a live entertainment venue, and convention and meeting space. Feeder markets include east Texas (including Dallas), Texarkana, Arkansas and surrounding Louisiana cities, including Bossier City, Minden, Ruston and Monroe. 

 

Treasure Chest Casino

Treasure Chest Casino ("Treasure Chest") is a dockside riverboat casino located on Lake Pontchartrain in the western suburbs of New Orleans, Louisiana. The property is designed as a classic 18th century Victorian style paddlewheel riverboat, with a total capacity for 1,925 people. The entertainment complex located adjacent to the riverboat houses a 120-seat Caribbean showroom and two restaurants. Located approximately five miles from the New Orleans International Airport, Treasure Chest primarily serves residents of suburban New Orleans.

 

IP Casino Resort Spa

IP Casino Resort Spa ("IP") is a barge-based casino overlooking the scenic back bay of Biloxi and, as a recipient of a AAA Four Diamond Award, is one of the premier resorts on the Mississippi Gulf Coast. The property features more than 1,000 hotel rooms and suites; more than 65,000 square feet of convention and meeting space; a spa and salon; a 1,383-seat theater offering regular headline entertainment; eight lounges and bars; and seven restaurants, including a steak and seafood restaurant and an upscale Asian restaurant.

 

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Sam's Town Hotel and Gambling Hall

Sam's Town Hotel and Gambling Hall ("Sam's Town Tunica") is a barge-based casino located in Tunica County, Mississippi. The property has extensive amenities, including 700 hotel rooms, a sports book, an entertainment lounge, four dining venues, two escape rooms, an arcade, a residential vehicle park, and a 1,600-seat River Palace Arena.

 

Ameristar Casino Hotel Kansas City

Ameristar Casino Hotel Kansas City ("Ameristar Kansas City") is a barge-based casino located 10 miles from downtown Kansas City, Missouri. The property competes primarily with five casinos in the Kansas City area and bordering eastern Kansas market. The property features 184 guest rooms, 10 restaurants, a 1,200 seat concert venue, and an 18-theater cinema. The real estate utilized by Ameristar Kansas City is subject to a Master Lease with GLPI.

 

Ameristar Casino Resort Spa St. Charles

Ameristar Casino Resort Spa St. Charles ("Ameristar St. Charles") is a barge-based casino located in St. Charles at the Missouri River, strategically situated to attract guests from the St. Charles and the greater St. Louis areas, as well as tourists from outside the region. The property, which is in close proximity to the St. Charles convention facility, is located on approximately 52 acres along the western bank of the Missouri River. The property features an AAA Four Diamond full-service luxury suite hotel with 400 well-appointed rooms, an indoor-outdoor pool, seven dining venues; twelve bars, an entertainment venue, a full-service luxury day spa, two TopGolf Swing Suites and a 20,000-square-foot conference center. The real estate utilized by Ameristar St. Charles is subject to a Master Lease with GLPI.

 

Belterra Park

Belterra Park is a land-based racino located in Cincinnati, Ohio, situated on approximately 160 acres of land, 40 of which are undeveloped. The property is a gaming and entertainment center offering live racing, pari-mutuel wagering, video lottery terminal gaming, six restaurants, a VIP lounge, pari-mutuel wagering, and racing facilities with live thoroughbred racing on both dirt and the only grass track in Ohio.

 

Valley Forge Casino Resort

Valley Forge Casino Resort ("Valley Forge") is a land-based casino hotel located in King of Prussia, Pennsylvania. The property features approximately 36,000 square feet of gaming floor, 100,000 square feet of meeting, conference and banquet facilities and two luxury hotel towers. The Valley Tower has 325 recently remodeled rooms while the Casino Tower offers over 150 completely renovated rooms in the heart of the action. A FanDuel branded sportsbook opened at Valley Forge in March 2019. The property also presents six dining options, live entertainment and an exciting nightlife scene.

 

Competition

Our properties generally operate in highly competitive environments. We compete against other gaming companies as well as other hospitality, entertainment and leisure companies. We face significant competition in each of the jurisdictions in which we operate. Such competition may intensify in some of these jurisdictions if new gaming operations open in these markets or existing competitors expand their operations. Our properties compete directly with other gaming properties in each state in which we operate, as well as in adjacent states. We also compete for customers with other casino operators in other markets, including Native American casinos, and other forms of gaming, such as lotteries and internet gaming. In some instances, particularly with Native American casinos, our competitors pay substantially lower taxes or no taxes at all. We believe that increased legalized gaming in other states, particularly in areas close to our existing gaming properties and the development or expansion of Native American gaming in or near the states in which we operate, could create additional competition for us and could adversely affect our operations or future development projects.

 

Strategic Initiatives

Acquisition of Lattner Entertainment Group

To further diversify and expand our business, we acquired Lattner Entertainment Group Illinois, LLC ("Lattner"), in June 2018. The acquisition of Lattner provides us with an additional avenue to access gaming customers and a platform to participate in the expansion of distributed gaming.

 

Market-Access Agreement with MGM Resorts

In July 2018, we and MGM Resorts announced a market-access agreement to significantly increase each company's market access and customer base throughout the United States. Under this arrangement, our Company and MGM Resorts both have the opportunity to offer online and mobile gaming platforms - including sports betting, casino gaming and poker - in jurisdictions where either company operates physical casino resorts and online licenses are available. Under this market access agreement, each company has a path to expand their online and mobile gaming presence across 15 states, allowing each company to leverage their scale to create a nationwide approach to online and mobile sports betting, real money casino gaming and poker. As states continue to legalize interactive gaming, both companies will be poised to offer products in mobile and online sports betting, real money casino gaming and poker products where legally applicable.

 

Strategic Partnership with FanDuel Group

In August 2018, we announced that we had entered into a strategic partnership with FanDuel Group ("FanDuel"), the largest online sports destination in the United States, to pursue sports betting and online gaming opportunities across the country. This partnership brings together two of the largest and most geographically diversified companies in the gaming entertainment industry, given our Company’s scale and experience is being combined with FanDuel’s eight million customers and its presence across 45 states.

 

Subject to state law and regulatory approvals, we will establish a presence in the online gaming and sports wagering industry by leveraging FanDuel's technology and related services to operate Boyd Gaming-branded mobile and online sports-betting and gaming services. In turn, FanDuel will establish and operate mobile and online sports-betting and gaming services under the FanDuel brand in the states where we are licensed. During 2019, FanDuel sports books opened at our Valley Forge, Diamond Jo Worth, Diamond Jo Dubuque, Blue Chip and Belterra Resort properties.

 

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Our relationship with FanDuel covers all states where we hold gaming licenses currently and in the future, excluding Nevada. It also covers states included under our market-access agreement with MGM Resorts. The two companies will also engage in extensive co-branding and cross-promotional efforts. FanDuel will market our properties through its existing daily fantasy sports service and future interactive sports betting and gaming services, while we will promote FanDuel's products to our customer base. FanDuel will also provide our customers access to its existing product line.

 

Future Development Opportunities

Development agreement with Wilton Rancheria

We have a development agreement and a management agreement with Wilton Rancheria, a federally-recognized Native American tribe located southeast of Sacramento, California, to develop and manage a gaming entertainment complex. In January 2017, the tribe received a favorable Record of Decision from the Bureau of Indian Affairs and in February 2017, the land was taken into trust on behalf of the tribe. In September 2017, the California State Legislature unanimously approved, and the Governor of California executed, a tribal-state gaming compact with the tribe allowing the development of the casino. In October 2018, the National Indian Gaming Commission approved the Company's management contract with the Tribe. With the compact now in place, we are in the process of finalizing project budget, design and construction planning. The project will be constructed using third-party financing. Once commenced and project financing put in place, the construction timeline is expected to span 18 to 24 months. The land parcel taken into trust is located approximately 15 miles southeast of Sacramento on Highway 99, one of the two major north-south freeways in the Sacramento area.

 

Frequent Player Loyalty Programs

B Connected

We have established a nationwide branding initiative and loyalty program. Our players use their "B Connected" cards to earn and redeem points at nearly all of our properties. The program has five player tiers - Ruby, Sapphire, Emerald, Onyx and Titanium. The "B Connected" club, among other benefits, rewards players for their loyalty as well as entitles them to qualify for promotions and earn rewards toward slot, video poker, or table games play.

 

Benefits for our loyal customers include annual cruises, vacations, and gifts of luxury jewelry and electronics. The B Connected program is currently available in the Las Vegas valley at Aliante, the Cal, Fremont, Gold Coast, Main Street Station, The Orleans, Sam's Town Las Vegas and Suncoast; in Louisiana at Amelia Belle, Delta Downs, Evangeline Downs, Sam's Town Shreveport and Treasure Chest; in Illinois at Par-A-Dice; in Indiana at Blue Chip and Belterra Resort; in Iowa at Diamond Jo Dubuque and Diamond Jo Worth; in Mississippi at Sam's Town Tunica and IP; in Kansas at Kansas Star; in Missouri at Ameristar St. Charles and Ameristar Kansas City; and in Ohio at Belterra Park. Valley Forge and Cannery are expected to fully implement the program in 2020. 

 

Other Programs

Cannery, Eastside Cannery and Valley Forge continue to sponsor their own player loyalty programs to build brand awareness and leverage loyalty through marketing and promotional programs to retain existing customers, maintain trip frequency, acquire new customers, and recover lapsed customers. These properties offer their guests comprehensive, competitive and targeted marketing and promotion programs. Each program offers players a hassle-free way of earning points redeemable at each respective property for slot and table games play, food, beverage and retail items as well as complementaries and other rewards and benefits based on play. In addition, each property strives to differentiate its casino with high-quality guest services to further enhance overall brand and customer experience.

 

We plan to extend the B Connected program to these properties, subject to the receipt of regulatory approvals. The implementation of the B Connected program will replace the individual property programs described above and provide our customers at these properties even more value for their rewards with a multi-property player loyalty program.

 

Other Promotional Activities

We provide other promotional offers and discounts targeted towards new customers, frequent customers, inactive customers, customers of various levels of play, and prospective customers who have not yet visited our properties, and mid-week and other promotional activities that seek to generate visits to our properties during slower periods. Complementaries are usually in the form of monetary discounts, and other rewards generally can only be redeemed at our restaurants, retail and spa facilities.

 

Government Regulation

We are subject to extensive regulation under laws, rules and supervisory procedures primarily in the jurisdictions where our facilities are located or docked. The states in which we operate empower their regulators to investigate participation by licensees in gaming outside their jurisdiction and may require access to periodic reports respecting those gaming activities. Violations of laws in one jurisdiction could result in disciplinary action in other jurisdictions. A detailed description of the governmental gaming regulations to which we are subject is filed as Exhibit 99.1 and is herein incorporated by reference.

 

If additional gaming regulations are adopted in a jurisdiction in which we operate, such regulations could impose restrictions or costs that could have a significant adverse effect on us. From time to time, various proposals have been introduced in the legislatures of some of the jurisdictions in which we have existing or planned operations that, if enacted, could adversely affect the tax, regulatory, operational or other aspects of the gaming industry and us. We do not know whether or not such legislation will be enacted. The federal government has also previously considered a federal tax on casino revenues and the elimination of betting on NCCA events. And with the recent expansion of sports wagering in various state jurisdictions, the federal government may elect to enact legislation taxing and regulating sports wagering, or alternatively may elect to prohibit such wagering. In addition, gaming companies are currently subject to significant state and local taxes and fees in addition to normal federal and state corporate income taxes, and such taxes and fees are subject to increase at any time. Any material increase in these taxes or fees could adversely affect us.

 

Employees and Labor Relations

At December 31, 2019, we employed approximately 24,300 persons, and had collective bargaining agreements with three unions covering 1,858 employees. Negotiations for a first contract with an organized bargaining unit are in progress at several of our Las Vegas properties.

 

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Corporate Information

We were incorporated in Nevada in June 1988. Our principal executive offices are located at 3883 Howard Hughes Parkway, Ninth Floor, Las Vegas, NV 89169, and our main telephone number is (702) 792-7200. Our website is www.boydgaming.com. Information on our website is not incorporated by reference herein.

 

Available Information

We file annual, quarterly, current and special reports, proxy statements and other information with the Securities and Exchange Commission (the "SEC"). In addition, the SEC maintains an Internet site, at http://www.sec.gov, containing reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. Copies of our SEC filings are also available on the SEC’s website. You also may read and copy reports and other information filed by us at the office of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005. A copy of this Annual Report on Form 10-K will be provided to a stockholder, with exhibits, without charge upon written request to Boyd Gaming Corporation, 3883 Howard Hughes Parkway, Ninth Floor, Las Vegas, Nevada 89169, (702) 792-7200, Attn: David Strow, Vice President, Corporate Communications.

 

We make our Annual Reports on Form 10-K, our Quarterly Reports on Form 10-Q, our Current Reports on Form 8-K, and all amendments to these reports, available free of charge on our corporate website as soon as reasonably practicable after such reports are filed with, or furnished to, the SEC. In addition, our Code of Business Conduct and Ethics, Corporate Governance Guidelines, and charters of the Audit Committee, Compensation Committee, and the Corporate Governance and Nominating Committee are available on our website. We will provide reasonable quantities of electronic or paper copies of filings free of charge upon request. In addition, we will provide a copy of the above referenced charters to stockholders upon request.

 

Important Information Regarding Forward-Looking Statements

This Annual Report on Form 10-K contains forward-looking statements within the meaning of Section 27A of the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Such statements contain words such as "may," "will," "might," "expect," "believe," "anticipate," "could," "would," "estimate," "pursue," "target," "project," "intend," "plan," "seek," "should," "assume," and "continue," as well as variations of such words and similar expressions referring to the future. Forward-looking statements in this Annual Report on Form 10-K include, but are not limited to, statements regarding:

 

 

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the factors that contribute to our ongoing success and our ability to be successful in the future;
 

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our business model, areas of focus and strategy for driving business results;
  • competition, including expansion of gaming into additional markets including internet gaming, the impact of competition on our operations, our ability to respond to such competition, and our expectations regarding continued competition in the markets in which we compete;
  • our estimated effective income tax rates, estimated tax benefits, and merits of our tax positions;
  • the general effect, and expectation, of the national and global economy on our business, as well as the economies where each of our properties are located;
  • our expenses;
  • indebtedness, including Boyd Gaming’s ability to refinance or pay amounts outstanding under its credit agreement and Boyd Gaming’s unsecured notes, when they become due and our compliance with related covenants, and our expectation that we will need to refinance all or a portion of our respective indebtedness at or before maturity;
  • our expectation regarding the trends that will affect the gaming industry over the next few years and the impact of these trends on growth of the gaming industry, future development opportunities and merger and acquisition activity in general;
  • our belief that consumer confidence will strengthen as the job market continues to expand;
  • our expectations with respect to the valuation of tangible and intangible assets;
  • the type of covenants that will be included in any future debt instruments;
  • our expectations with respect to potential disruptions in the global capital markets, the effect of such disruptions on consumer confidence and reduced levels of consumer spending and the impact of these trends on our financial results;
  • our ability to meet our projected operating and maintenance capital expenditures and the costs associated with our expansion, renovations and development of new projects;
  • our ability to pay dividends or to pay any specific rate of dividends, and our expectations with respect to the receipt of dividends;
  • our commitment to finding opportunities to strengthen our balance sheet and to operate more efficiently;
  • our intention to pursue expansion opportunities, including acquisitions, that are a good fit for our business, deliver a solid return for stockholders, and are available at the right price;
  • our intention to fund purchases made under our share repurchase program, if any, with existing cash resources and availability under the Credit Facility;
  • our assumptions and expectations regarding our critical accounting estimates;
  • Adjusted EBITDA, Adjusted EBITDAR, and the usefulness of each as a measure of operating performance or valuation;
  • our expectations for capital improvement projects;
  • the impact of new accounting pronouncements on our consolidated financial statements;
  • that our credit agreement and our cash flows from operating activities will be sufficient to meet our respective projected operating and maintenance capital expenditures for the next twelve months;
  • our ability to fund any expansion projects using cash flows from operations and availability under our credit agreement or through additional debt issuances;
  • our market risk exposure and efforts to minimize risk;
  • expansion, development, investment and renovation plans, including the scope of any such plans, expected costs, financing (including sources thereof and our expectation that long-term debt will substantially increase in connection with such projects), timing and the ability to achieve market acceptance;

 

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  • our belief that all pending litigation claims, if adversely decided, will not have a material adverse effect on our business, financial position or results of operations;
  • that margin improvements will remain a driver of profit growth for us going-forward;
  • development opportunities in existing or new jurisdictions and our ability to successfully take advantage of such opportunities;
  • regulations, including anticipated taxes, tax credits or tax refunds expected, and the ability to receive and maintain necessary approvals for our projects;
  • the outcome of various tax audits and assessments, including our appeals thereof, timing of resolution of such audits, our estimates as to the amount of taxes that will ultimately be owed and the impact of these audits on our consolidated financial statements;
  • our ability to utilize our net operating loss carryforwards and certain other tax attributes;
  • our expectations regarding Congress legalizing online gaming in the United States as well as the continued expansion of online gaming as a result of the passage of new authorizing legislation in various states;
  • our expectations regarding the expansion of sports betting;
  • our asset impairment analyses and our intangible asset and goodwill impairment tests;
  • the likelihood of interruptions to our rights in the land we lease under long-term leases for certain of our hotel and casinos;
  • the ability of our customer-tracking, customer loyalty and yield-management programs to continue to increase customary loyalty and same-store sales;
  • the effect of environmental and structural building conditions related to our properties;
  • our ability to receive insurance reimbursement and our estimates of self-insurance accruals and future liability;
  • that operating results for previous periods are not necessarily indicative of future performance;
  • that estimates and assumptions made in the preparation of financial statements in conformity with U.S. Generally Accepted Accounting Principles may differ from actual results;
  • our expectations regarding our cost containment efforts;
  • our belief that recently issued accounting pronouncements will not have a material impact on our financial statements where we have so stated;
  • our estimates as to the effect of any changes in our Consolidated EBITDA on our ability to remain in compliance with certain covenants in the credit agreement;
  • our ability to engage in productive negotiations regarding bargaining agreements as necessary;
  • expectations, plans, beliefs, hopes or intentions regarding the future; and
  • assumptions underlying any of the foregoing statements.

 

These forward-looking statements speak only as of the dates stated and we do not undertake any obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise, even if experience or future events make it clear that any expected results expressed or implied by these forward-looking statements will not be realized. Although we believe that the expectations reflected in these forward-looking statements are reasonable, these expectations may prove to be incorrect or we may not achieve the financial results, savings or other benefits anticipated in the forward-looking statements. These forward-looking statements are necessarily estimates reflecting the best judgment of our senior management and involve a number of risks and uncertainties, some of which may be beyond our control, which could cause actual results to differ materially from those suggested by the forward-looking statements. If any of those risks and uncertainties were to materialize, actual results could differ materially from those discussed in any such forward-looking statement. Among the factors that could cause actual results to differ materially from those discussed in forward-looking statements are those discussed under the heading “Risk Factors” and in this Annual Report on Form 10-K and in our other current and periodic reports filed from time to time with the SEC. These factors include, but are not limited to:

 

 

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the effects of intense competition that exists in the gaming industry;

 

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the risk that our acquisitions and other expansion opportunities divert management’s attention or incur substantial costs, or that we are otherwise unable to develop, profitably manage or successfully integrate the businesses we have acquired or may acquire in the future;

 

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the fact that our expansion, development and renovation projects (including enhancements to improve property performance) are subject to many risks inherent in expansion, development or construction of a new or existing project;

 

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the risk that any of our projects may not be completed, if at all, on time or within established budgets, or that any project will not result in increased earnings to us;

 

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the risk that significant delays, cost overruns, or failures of any of our projects to achieve market acceptance could have a material adverse effect on our business, financial condition and results of operations;

 

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our ability to take advantage of, and to realize the anticipated benefits of, any past or future financing, mergers and acquisitions, dispositions, partnerships, and other corporate opportunities, and the risks associated with such or similar transactions, arrangements or opportunities;
 

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the risk that new gaming licenses or jurisdictions become available (or offer different gaming regulations or taxes) that result in increased competition to us;
 

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the risk that negative industry or economic trends, reduced estimates of future cash flows, disruptions to our business, slower growth rates or lack of growth in our business, may result in significant write-downs or impairments in future periods;

 

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the risk that regulatory authorities may revoke, suspend, condition or limit our gaming or other licenses, certificates and concessions, impose substantial fines and take other adverse actions against any of our casino operations or any current or future online gaming and sports wagering operations;

 

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the risk that we may be unable to refinance our respective outstanding indebtedness as it comes due, or that if we do refinance, the terms are not favorable to us;

 

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the effects of the extensive governmental gaming regulation and taxation policies to which we are subject and the costs of compliance or failure to comply with such regulations, as well as any changes in laws and regulations, including increased taxes, which could harm our business;

 

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  • the effects of federal, state and local laws affecting our business such as the regulation of smoking, the regulation of directors, officers, key employees and partners and regulations affecting business in general;
  • the effects of extreme weather conditions or natural disasters on our facilities and the geographic areas from which we draw our customers, and our ability to recover insurance proceeds (if any);
  • the effects of events adversely impacting the economy or the regions from which we draw a significant percentage of our customers, including the effects of any future economic recession, war, terrorist or similar activity or natural or man-made disasters in, at, or around our properties;
  • the risk that we fail to adapt our business and amenities to changing customer preferences;
  • our ability to continue to negotiate collective bargaining agreements with the unions that represent certain of our employees;
  • the effect of unusual gaming hold percentages in any given period;
  • financial community and rating agency perceptions of us, and the effect of economic, credit and capital market conditions on the economy and the gaming and hotel industry;
  • the risk of the expansion of legalized gaming in the regions in which we operate;
  • the risk relating to the Kansas legislature authorizing a new gaming referendum allowing Wichita Greyhound Park to install slot machines, creating increased competition in the Kansas market;
  • the risk of failing to maintain the integrity of our information technology infrastructure causing unintended distribution to third parties of, or access by third parties to, our customer, company or employee data, and any litigation, fines, disruption to our operations or reputational harm resulting from such loss of data integrity;
  • our estimated effective income tax rates, estimated tax benefits, and merits of our tax positions;
  • our ability to utilize our net operating loss carryforwards and certain other tax attributes;
 

•

the potential of certain of our stockholders owning large interest in our capital stock to significantly influence our affairs;

 

•

other statements regarding our future operations, financial condition and prospects, and business strategies;

 

•

the risk that we may be unable to retain our key management and personnel, including key employees of the acquired companies; and

 

•

our current and future insurance coverage levels, including the risk we have not obtained sufficient coverage, may not be able to obtain sufficient coverage in the future, or will only be able to obtain additional coverage at significantly increased rates.

 

All forward-looking statements should be evaluated with the understanding of their inherent uncertainty. All forward-looking statements in this Form 10-K (including any document incorporated by reference) are made only as of the date of the document in which they are contained, based on information available to us as of the date of that document, and we caution you not to place undue reliance on forward-looking statements in light of the risks and uncertainties associated with them. All subsequent written and oral forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by our cautionary statements. Except as required by law, we undertake no obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise.

 

ITEM 1A.    Risk Factors

In addition to the other information contained in this report on Form 10-K, the following Risk Factors should be considered carefully in evaluating our business.

 

If any of the following risks actually occur, our business, financial condition and results of operations could be materially and adversely affected. If this were to happen, the value of our securities, including our common stock and senior notes, could decline significantly, and investors could lose all or part of their investment.

 

This report is qualified in its entirety by these risk factors.

 

Risks Related to our Business

Our business is particularly sensitive to reductions in discretionary consumer spending as a result of downturns in the economy.

Consumer demand for entertainment and other amenities at casino hotel properties, such as ours, are particularly sensitive to downturns in the economy and the corresponding impact on discretionary spending on leisure activities. Changes in discretionary consumer spending or consumer preferences brought about by factors such as perceived or actual general economic conditions, effects of declines in consumer confidence in the economy, including any future housing, employment and credit crisis, the impact of high energy and food costs, the increased cost of travel, the potential for bank failures, decreased disposable consumer income and wealth, or fears of war and future acts of terrorism could further reduce customer demand for the amenities that we offer, thus imposing practical limits on pricing and negatively impacting our results of operations and financial condition.

 

For example, beginning in 2007 we experienced one of the toughest economic periods in Las Vegas history. The housing crisis and economic slowdown in the United States resulted in a significant decline in the amount of tourism and spending in Las Vegas and other locations in which we own or invest in casino hotel properties. While the economy has improved significantly since the end of the recent economic recession, our business continues to be impacted from changes in consumer spending habits due to the recession. Our customers spend less per visit and differently than prior to the recession, including focusing more on non-gaming amenities. We cannot say when, if ever, or to what extent, customer behavior in our various markets will fully-revert to pre-recession behavior trends. If customers spend less per visit or customers prefer non-gaming amenities of our competitors, and we are unable to increase total visitation, our business may be adversely affected. Since our business model relies on consumer expenditures on entertainment, luxury and other discretionary items, a slowing or stoppage of the economic recovery or a return to an economic downturn will further adversely affect our results of operations and financial condition.

 

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Intense competition exists in the gaming industry, and we expect competition to continue to intensify.

The gaming industry is highly competitive for both customers and employees, including those at the management level. We compete with numerous casinos and hotel casinos of varying quality and size in market areas where our properties are located. We also compete with other non-gaming resorts and vacation destinations, and with various other casino and other entertainment businesses, including online gaming websites, and could compete with any new forms of gaming that may be legalized in the future. The casino entertainment business is characterized by competitors that vary considerably in their size, quality of facilities, number of operations, brand identities, marketing and growth strategies, financial strength and capabilities, level of amenities, management talent and geographic diversity. In most markets, we compete directly with other casino facilities operating in the immediate and surrounding market areas. In some markets, we face competition from nearby markets in addition to direct competition within our market areas.

 

With fewer other new markets opening for development, competition in existing markets has intensified in recent years. We and our competitors have invested in expanding existing facilities, developing new facilities, and acquiring established facilities in existing markets. This expansion of existing casino entertainment properties, the increase in the number of properties and the aggressive marketing strategies of many of our competitors have increased competition in many markets in which we compete, and this intense competition can be expected to continue. For example, in December 2014, a new property opened in Lake Charles, Louisiana, that increased competition with Delta Downs. At the end of December 2015, a new casino opened in D'Iberville, Mississippi that competes with IP. In Illinois, the legalization of video lottery terminals in recent years has added more than 33,000 new gaming devices across the state, including over 5,100 in the immediate market of the Par-A-Dice, increasing competition for that property. In January 2018, a new tribal casino in South Bend, Indiana opened, which competes with Blue Chip for gaming customers. Additionally, competition may intensify if our competitors commit additional resources to aggressive pricing and promotional activities in order to attract customers.

 

Also, our business may be adversely impacted by the additional gaming and room capacity in states where we operate or intend to operate. Several states are also considering enabling the development and operation of casinos or casino-like operations in their jurisdictions.

 

The possible future expansion of gaming in Wisconsin or the possible expansion of gaming in Cedar Rapids, Iowa, if approved, could impact the operating results of the Diamond Jo Dubuque. Further, Kansas Star could, in the future, face competition from the Wichita Greyhound Park, located approximately 30 miles away in Park City, Kansas. While gaming is not currently permitted in Sedgwick County, Kansas (the site of the Wichita Greyhound Park), the Kansas Expanded Lottery Act permits the installation of slot machines at race tracks under certain conditions. If the Kansas legislature authorized a new gaming referendum in Sedgwick County and such referendum was approved, and certain other regulatory conditions were satisfied, the Wichita Greyhound Park could be permitted to install slot machines.

 

We also compete with legalized gaming from casinos located on Native American tribal lands. Expansion of Native American gaming in areas located near our properties, or in areas in or near those from which we draw our customers, could have an adverse effect on our operating results. For example, increased competition from federally recognized Native American tribes near Blue Chip and Sam’s Town Shreveport has had a negative impact on our results. Native American gaming facilities typically have a significant operating advantage over our properties due to lower gaming fees or taxes, allowing those facilities to market more aggressively and to expand or update their facilities at an accelerated rate. Although we expanded our facility at Blue Chip in an effort to be more competitive in this market, competing Native American properties could continue to have an adverse impact on the operations of both Blue Chip and Sam’s Town Shreveport. Kansas Star may face additional competition in the Wichita, Kansas metropolitan area. The Wyandotte Nation of Oklahoma previously filed an application with the U.S. Department of Interior to have certain land located in Park City, Kansas (in the Wichita metro area) taken into trust by the U.S. Government and to permit gaming. In July 2014, the U.S. Department of Interior rejected the Wyandotte Nation’s trust application for the Park City land. However, the Nation has indicated it will seek to appeal this ruling. If an appeal were filed and ultimately successful, the Wyandotte Nation would be permitted to open a Class II gaming facility, and upon successful negotiation of a compact with the State of Kansas would be permitted to open a Class III gaming facility.

 

In addition, we also compete to some extent with other forms of gaming on both a local and national level, including state-sponsored lotteries, charitable gaming, video gaming terminals at bars, restaurants, taverns and truck stops, on-and off-track wagering, and other forms of entertainment, including motion pictures, sporting events and other recreational activities. It is possible that these secondary competitors could reduce the number of visitors to our facilities or the amount they are willing to wager, which could have a material adverse effect on our ability to generate revenue or maintain our profitability and cash flows.

 

If our competitors operate more successfully than we do, if they attract customers away from us as a result of aggressive pricing and promotion, if they are more successful than us in attracting and retaining employees, if their properties are enhanced or expanded, if they operate in jurisdictions that give them operating advantages due to differences or changes in gaming regulations or taxes, or if additional hotels and casinos are established in and around the locations in which we conduct business, we may lose market share or the ability to attract or retain employees. In particular, the expansion of casino gaming in or near any geographic area from which we attract or expect to attract a significant number of our customers could have a significant adverse effect on our business, financial condition and results of operations.

 

In addition, increased competition may require us to make substantial capital expenditures to maintain and enhance the competitive positions of our properties, including updating slot machines to reflect changing technology, refurbishing public service areas periodically, replacing obsolete equipment on an ongoing basis and making other expenditures to increase the attractiveness and add to the appeal of our facilities. Because we are highly leveraged, after satisfying our obligations under our outstanding indebtedness, there can be no assurance that we will have sufficient funds to undertake these expenditures or that we will be able to obtain sufficient financing to fund such expenditures. If we are unable to make such expenditures, our competitive position could be materially adversely affected.

 

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We may incur impairments to goodwill, indefinite-lived intangible assets, or long-lived assets.

In accordance with the authoritative accounting guidance for goodwill and other intangible assets, we test our goodwill and indefinite-lived intangible assets for impairment annually or if a triggering event occurs. We perform our annual impairment testing for goodwill and indefinite-lived intangible assets as of October 1. No impairment charges were recorded as a result of the 2019, 2018 and 2017 tests.

 

If our estimates of projected cash flows related to our assets are not achieved, we may be subject to future impairment charges, which could have a material adverse impact on our consolidated financial statements.

 

We face risks associated with growth and acquisitions.

As part of our business strategy, we regularly evaluate opportunities for growth through development of gaming operations in existing or new markets, through acquiring other gaming entertainment facilities or through redeveloping our existing gaming facilities. In the future, we may also pursue expansion opportunities, including joint ventures, in jurisdictions where casino gaming is not currently permitted in order to be prepared to develop projects upon approval of casino gaming. The expansion of our operations, whether through acquisition, development or internal growth, could divert management’s attention and could also cause us to incur substantial costs, including legal, professional and consulting fees.

 

Although we only intend to engage in acquisitions that, if consummated, will be accretive to us and our shareholders, acquisitions require significant management attention and resources to integrating new properties, businesses and operations. Additionally, we are currently working to successfully integrate the additional properties into Boyd Gaming’s operating structure in order to realize the anticipated benefits of acquisitions. Potential difficulties we may encounter as part of the integration process include the following:

 

 

•

the inability to successfully incorporate the assets in a manner that permits us to achieve the full revenue and other benefits anticipated to result from acquisitions;

 

•

complexities associated with managing the combined business, including difficulty addressing possible differences in cultures and management philosophies and the challenge of integrating complex systems, technology, networks and other assets of each of the companies in a seamless manner that minimizes any adverse impact on customers, suppliers, employees and other constituencies; and

 

•

potential unknown liabilities and unforeseen increased expenses associated with acquisitions.

 

In addition, it is possible that the integration process could result in:

 

 

•

diversion of the attention of our management; and

 

•

the disruption of, or the loss of momentum in, each our ongoing business or inconsistencies in standards, controls, procedures and policies, any of which could adversely affect our ability to maintain relationships with customers, suppliers, employees and other constituencies or our ability to achieve the anticipated benefits, or could reduce our earnings or otherwise adversely affect our business and financial results.

 

 

There can be no assurance that we will be able to identify, acquire, develop or profitably manage additional companies or operations or successfully integrate such companies or operations, including the properties associated with our recent acquisitions into our existing operations without substantial costs, delays or other problems. Additionally, there can be no assurance that we will receive gaming or other necessary licenses or approvals for new projects that we may pursue or that gaming will be approved in jurisdictions where it is not currently approved.

 

Ballot measures or other voter-approved initiatives to allow gaming in jurisdictions where gaming, or certain types of gaming (such as slots), was not previously permitted could be challenged, and, if such challenges are successful, these ballot measures or initiatives could be invalidated. Furthermore, there can be no assurance that there will not be similar or other challenges to legalized gaming in existing or current markets in which we may operate or have development plans, and successful challenges to legalized gaming could require us to abandon or substantially curtail our operations or development plans in those locations, which could have a material adverse effect on our financial condition and results of operations.

 

There can be no assurance that we will not face similar challenges and difficulties with respect to new development projects or expansion efforts that we may undertake, which could result in significant sunk costs that we may not be able to fully recoup or that otherwise have a material adverse effect on our financial condition and results of operations.

 

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Our expansion and development opportunities may face significant risks inherent in construction projects.

We regularly evaluate expansion, development, investment and renovation opportunities.

 

Any such development projects are subject to many other risks inherent in the expansion or renovation of an existing enterprise or construction of a new enterprise, including unanticipated design, construction, regulatory, environmental and operating problems and lack of demand for our projects. Our current and future projects could also experience:

 

 

•

changes to plans and specifications;

     
 

•

delays and significant cost increases;

     
 

•

shortages of materials;

     
 

•

shortages of skilled labor or work stoppages for contractors and subcontractors;

     
 

•

labor disputes or work stoppages;

     
 

•

disputes with and defaults by contractors and subcontractors;

     
 

•

health and safety incidents and site accidents;

     
 

•

engineering problems, including defective plans and specifications;

     
 

•

poor performance or nonperformance by any of our joint venture partners or other third parties on whom we place reliance;

     
 

•

changes in laws and regulations, or in the interpretation and enforcement of laws and regulations, applicable to gaming facilities, real estate development or construction projects;

     
 

•

unforeseen construction scheduling, engineering, environmental, permitting, construction or geological problems;

     
 

•

environmental issues, including the discovery of unknown environmental contamination;

     
 

•

weather interference, floods, fires or other casualty losses;

     
 

•

other unanticipated circumstances or cost increases; and

     
 

•

failure to obtain necessary licenses, permits, entitlements or other governmental approvals.

 

 

The occurrence of any of these development and construction risks could increase the total costs of our construction projects or delay or prevent the construction or opening or otherwise affect the design and features of our construction projects, which could materially adversely affect our plan of operations, financial condition and ability to satisfy our debt obligations.

 

In addition, actual costs and construction periods for any of our projects can differ significantly from initial expectations. Our initial project costs and construction periods are based upon budgets, conceptual design documents and construction schedule estimates prepared at inception of the project in consultation with architects and contractors. Many of these costs can increase over time as the project is built to completion. We can provide no assurance that any project will be completed on time, if at all, or within established budgets, or that any project will result in increased earnings to us. Significant delays, cost overruns, or failures of our projects to achieve market acceptance could have a material adverse effect on our business, financial condition and results of operations.

 

Although we design our projects to minimize disruption of our existing business operations, expansion and renovation projects require, from time to time, all or portions of affected existing operations to be closed or disrupted. Any significant disruption in operations of a property could have a significant adverse effect on our business, financial condition and results of operations.

 

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The failure to obtain necessary government approvals in a timely manner, or at all, can adversely impact our various expansion, development, investment and renovation projects.

Certain permits, licenses and approvals necessary for some of our current or anticipated projects have not yet been obtained. The scope of the approvals required for expansion, development, investment or renovation projects can be extensive and may include gaming approvals, state and local land-use permits and building and zoning permits. Unexpected changes or concessions required by local, state or federal regulatory authorities could involve significant additional costs and delay the scheduled openings of the facilities. We may not obtain the necessary permits, licenses and approvals within the anticipated time frames, or at all.

 

Failure to maintain the integrity of our information technology systems, protect our internal information, or comply with applicable privacy and data security regulations could adversely affect us.

We rely extensively on our computer systems to process customer transactions, manage customer data, manage employee data and communicate with third-party vendors and other third parties, and we may also access the internet to use our computer systems. Our operations require that we collect and store customer data, including credit card numbers and other personal information, for various business purposes, including marketing and promotional purposes. We also collect and store personal information about our employees. Breaches of our security measures or information technology systems or the accidental loss, inadvertent disclosure or unapproved dissemination of proprietary information or sensitive personal information or confidential data about us, or our customers, or our employees including the potential loss or disclosure of such information as a result of hacking or other cyber-attack, computer virus, fraudulent use by customers, employees or employees of third party vendors, trickery or other forms of deception or unauthorized use, or due to system failure, could expose us, our customers, our employees or other individuals affected to a risk of loss or misuse of this information, result in litigation and potential liability for us, damage our casino or brand names and reputations or otherwise harm our business. We rely on proprietary and commercially available systems, software, tools and monitoring to provide security for processing, transmission and storage of customer information, such as payment card, employee information and other confidential or proprietary information. Our data security measures are reviewed and evaluated regularly, however they might not protect us against increasingly sophisticated and aggressive threats. The cost and operational consequences of implementing further data security measures could be significant.

 

Additionally, the collection of customer and employee personal information imposes various privacy compliance related obligations on our business and increases the risks associated with a breach or failure of the integrity of our information technology systems. The collection and use of personal data are governed by privacy laws and regulations enacted by the various states, the federal government of the United States, and various foreign jurisdictions. Privacy laws and regulations continue to evolve and on occasion may be inconsistent between jurisdictions. Various federal, state, and foreign legislative or regulatory bodies may enact or adopt new or additional laws and regulations concerning privacy, data retention, data transfer, and data protection. For example, California has enacted a new privacy law, known as the California Consumer Privacy Act of 2018 (the “CCPA”), which provides to California consumers certain new access, deletion and opt-out rights related to their personal information, imposes civil penalties for violations and affords, in certain cases, a private right of action for data breaches. Compliance with the CCPA may require us to incur significant costs and expenses.

 

Compliance with applicable privacy laws and regulations may increase our operating costs and/or adversely impact our ability to market our products, properties and services to our customers. In addition, non-compliance with applicable privacy laws and regulations by us (or in some circumstances non-compliance by third-party service providers engaged by us) may also result in damage of reputation, result in vulnerabilities that could be exploited to breach our systems and/or subject us to fines, payment of damages, lawsuits or restrictions on our use or transfer of personal information.

 

While we maintain cyber insurance coverage to protect against these risks to the Company, such insurance is unlikely to fully mitigate the impact of any information breach.

 

Risks Related to the Regulation of our Industry

We are subject to extensive governmental regulation, as well as federal, state and local laws affecting business in general, which may harm our business.

Our ownership, management and operation of gaming facilities are subject to extensive laws, regulations and ordinances which are administered by the Illinois Gaming Board, Indiana Gaming Commission, Iowa Racing and Gaming Commission, Kansas Lottery Commission, Kansas Racing and Gaming Commission, Louisiana State Gaming Control Board, Louisiana State Racing Commission, Mississippi Gaming Commission, Missouri Gaming Commission, Nevada Gaming Commission and Gaming Control Board, Ohio Lottery Commission and Ohio State Racing Commission, Pennsylvania Gaming Control Board and various other federal, state and local government entities and agencies. We are subject to regulations that apply specifically to the gaming industry and horse racetracks and casinos, in addition to regulations applicable to businesses generally. A more detailed description of the governmental gaming regulations to which we are subject is filed as Exhibit 99.1 herewith. If additional gaming regulations are adopted in a jurisdiction in which we operate, such regulations could impose restrictions or costs that could have a significant adverse effect on us. From time to time, various proposals are introduced in the legislatures of some of the jurisdictions in which we have existing or planned operations that, if enacted, could adversely affect the tax, regulatory, operational or other aspects of the gaming industry and our company.

 

To date, we have obtained all governmental licenses, findings of suitability, registrations, permits and approvals necessary for the operation of our properties. However, we can give no assurance that any additional licenses, permits and approvals that may be required will be given or that existing ones will be renewed or will not be revoked. Renewal is subject to, among other things, continued satisfaction of suitability requirements. Any failure to renew or maintain our licenses or to receive new licenses when necessary would have a material adverse effect on us.

 

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Gambling

Legislative or administrative changes in applicable legal requirements, including legislation to prohibit casino gaming, have been proposed in the past. For example, in 1996, the State of Louisiana adopted a statute in connection with which votes were held locally where gaming operations were conducted and which, had the continuation of gaming been rejected by the voters, might have resulted in the termination of operations at the end of their current license terms. During the 1996 local gaming referendums, Lafayette Parish voted to disallow gaming in the Parish, whereas St. Landry Parish, the site of our racino, voted in favor of gaming. All parishes where riverboat gaming operations are currently conducted voted to continue riverboat gaming, but there can be no guarantee that similar referenda might not produce unfavorable results in the future. Proposals to amend or supplement the Louisiana Riverboat Economic Development and Gaming Control Act and the Pari-Mutuel Act also are frequently introduced in the Louisiana State legislature. In the 2001 session, a representative from Orleans Parish introduced a proposal to repeal the authority of horse racetracks in Calasieu Parish (the site of Delta Downs) and St. Landry Parish (the site of Evangeline Downs) to conduct slot machine gaming at such horse racetracks and to repeal the special taxing districts created for such purposes. If adopted, this proposal would have effectively prohibited us from operating the casino portion of our racino. In addition, the Louisiana legislature, from time to time, considers proposals to repeal the Pari-Mutuel Act.

 

The legislation permitting gaming in Iowa authorizes the granting of licenses to “qualified sponsoring organizations.” Such “qualified sponsoring organizations” may operate the gambling structure itself, subject to satisfying necessary licensing requirements, or it may enter into an agreement with an operator to operate gambling on its behalf. An operator must be approved and licensed by the Iowa Racing and Gaming Commission. The Dubuque Racing Association (“DRA”), a not-for-profit corporation organized for the purpose of operating a pari-mutuel greyhound racing facility in Dubuque, Iowa, first received a riverboat gaming license in 1990 and, pursuant to the Amended DRA Operating Agreement, has served as the “qualified sponsoring organization” of the Diamond Jo Dubuque since March 18, 1993. The term of the Amended DRA Operating Agreement currently in place expires on December 31, 2030. The agreement is subject to review and approval by the state gaming commission. The Worth County Development Authority (“WCDA”), pursuant to the WCDA Operating Agreement, serves as the “qualified sponsoring organization” of Diamond Jo Worth. The term of the WCDA Operating Agreement expires on March 31, 2025, and is subject to automatic ten-year renewal periods. If the Amended DRA Operating Agreement or WCDA Operating Agreement were to terminate, or if the DRA or WCDA were to otherwise discontinue acting as our “qualified sponsoring organization” with respect to our operation of the Diamond Jo Dubuque or Diamond Jo Worth, respectively, and we were unable to obtain approval from the Iowa Racing and Gaming Commission to partner with an alternative “qualified sponsoring organization” as required by our gaming license, we would no longer be able to continue our Diamond Jo Dubuque or Diamond Jo Worth operations, which would materially and adversely affect our business, results of operations and cash flows.

 

Regulation of Smoking

Illinois has adopted laws that significantly restrict, or otherwise ban, smoking at our properties in those jurisdictions. The Illinois laws that restrict smoking at casinos, and similar legislation in other jurisdictions in which we operate, could materially impact the results of operations of our properties in those jurisdictions. Indiana imposes a state wide smoking ban in specified businesses, buildings, public places and other articulated locations. Indiana's statute specifically exempted riverboat casinos, and all other gaming facilities in Indiana, from the smoking ban; however, the statute also allowed local governments to enact more restrictive smoking bans than the state statute and also left in place any more restrictive local legislation that existed as of the effective date of the statute. To date, neither Michigan City nor LaPorte County, where Blue Chip is located, has enacted any ordinance or other law that would impose a smoking ban on Blue Chip.

 

Regulation of Directors, Officers, Key Employees and Partners

Our directors, officers, key employees, joint venture partners and certain shareholders must meet approval standards of certain state regulatory authorities. If state regulatory authorities were to find a person occupying any such position, a joint venture partner, or shareholder unsuitable, we would be required to sever our relationship with that person, or the joint venture partner or shareholder may be required to dispose of their interest. State regulatory agencies may conduct investigations into the conduct or associations of our directors, officers, key employees or joint venture partners to ensure compliance with applicable standards.

 

Certain public and private issuances of securities and other transactions that we are party to also require the approval of some state regulatory authorities.

 

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Live Racing Regulations

Louisiana gaming regulations and our gaming license for the Evangeline Downs and Delta Downs require that we, among other things, conduct a minimum of 80 live racing days in a consecutive 20-week period each year of live horse race meetings at the horse racetrack. Live racing days typically vary in number from year to year and are based on a number of factors, many of which are beyond our control, including the number of suitable race horses and the occurrence of severe weather. If we fail to have the minimum number of racing days, our gaming license with respect to the racino may be canceled, and the casino will be required to cease operations. Any cessation of our operation would have a material adverse effect on our business, prospects, financial condition, results of operations and cash flows.

 

Regulations Affecting Businesses in General

In addition to gaming regulations, we are also subject to various federal, state and local laws and regulations affecting businesses in general. These laws and regulations include, but are not limited to, restrictions and conditions concerning alcoholic beverages, environmental matters, smoking, employees, currency transactions, taxation, zoning and building codes, anti-money laundering laws and regulations and marketing and advertising. Such laws and regulations could change or could be interpreted differently in the future, or new laws and regulations could be enacted. For example, Nevada enacted legislation that eliminated, in most instances, and, for certain pre-existing development projects, reduced, property tax breaks and retroactively eliminated certain sales tax exemptions offered as incentives to companies developing projects that meet certain environmental “green” standards. As a result, we, along with other companies developing projects that meet such standards, have not been able to realize the full tax benefits that were originally anticipated.

 

We are subject to extensive taxation policies, which may harm our business.

The federal government has, from time to time, considered a federal tax on casino revenues and may consider such a tax in the future. If such an increase were to be enacted, it could adversely affect our business, financial conditions, results of operations and cash flow. Our ability to incur additional indebtedness in the future to finance casino development projects could be materially and adversely affected.

 

In addition, gaming companies are often subject to significant state and local taxes and fees, in addition to normal federal and state corporate income taxes, and such taxes and fees are subject to increase at any time and which increase may be retroactive to prior years.

 

If there is any material increase in state and local taxes and fees, our business, financial condition and results of operations could be adversely affected.

 

Risks Related to our Properties

We own real property and are subject to extensive environmental regulation, which creates uncertainty regarding future environmental expenditures and liabilities, and could affect our ability to develop, sell or rent our property or to borrow money where such property is required to be used as collateral.

We are subject to various federal, state and local environmental laws, ordinances and regulations, including those governing discharges to air and water, the generation, handling, management and disposal of petroleum products or hazardous substances or wastes, and the health and safety of our employees. Permits may be required for our operations and these permits are subject to renewal, modification and, in some cases, revocation. In addition, under environmental laws, ordinances or regulations, a current or previous owner or operator of property may be liable for the costs of investigation and removal or remediation of some kinds of hazardous substances or petroleum products on, under, or in its property, without regard to whether the owner or operator knew of, or caused, the presence of the contaminants, and regardless of whether the practices that resulted in the contamination were legal at the time they occurred. Additionally, as an owner or operator, we could also be held responsible to a governmental entity or third parties for property damage, personal injury and investigation and cleanup costs incurred by them in connection with any contamination. The liability under those laws has been interpreted to be joint and several unless the harm is divisible and there is a reasonable basis for allocation of the responsibility. The costs of investigation, remediation or removal of those substances may be substantial, and the presence of those substances, or the failure to remediate a property properly, may impair our ability to use our property.

 

The presence of, or failure to remediate properly, such substances may adversely affect the ability to sell or rent the property or to borrow funds using the property as collateral. Additionally, the owner of a site may be subject to claims by third parties based on damages and costs resulting from environmental contamination emanating from a site.

 

As part of our business in Worth County, Iowa, we operate a gas station, which includes a number of underground storage tanks containing petroleum products.

 

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We have reviewed environmental assessments, in some cases including soil and groundwater testing, relating to our currently owned and leased properties in Dubuque, Iowa, and other properties we may lease from the City of Dubuque or other parties. As a result, we have become aware that there is contamination present on some of these properties apparently due to past industrial activities. Furthermore, the location of Kansas Star is the site of several non-operational oil wells, the remediation of which has been addressed in connection with the construction of the development project there. We have also reviewed environmental assessments and are not aware of any environmental liabilities related to any of our other properties.

 

Future developments regarding environmental matters could lead to material costs of environmental compliance for us and such costs could have a material adverse effect on our business and financial condition, operating results and cash flows.

 

Additionally, our horse racing operations are subject to oversight by the Environmental Protection Agency ("EPA"), including regulations governing concentrated animal feeding operations and the related processing of animal waste water. In 2015, Delta Downs commenced a remediation project, as a result of an EPA examination, to ensure its future compliance with the Clean Water Act. However, the ongoing operations of our horse racing operations could result in future violations of EPA regulations and exposure to associated potential fines.

 

We own facilities that are located in areas that experience extreme weather conditions.

Extreme weather conditions may interrupt our operations, damage our properties and reduce the number of customers who visit our facilities in the affected areas.

 

For example, certain of the properties we operate have been forced to close for extended periods due to floods and hurricanes, including Treasure Chest and Delta Downs, which have experienced closures for over 40 days on separate occasions in the past. In addition, Belterra Park was closed for over 10 days due to flooding in 2017.

 

Belterra Park, Blue Chip, Par-A-Dice, Sam's Town Tunica, Sam's Town Shreveport and Treasure Chest are each located in an area that has been identified by the director of the Federal Emergency Management Agency ("FEMA") as a special flood hazard area, which, according to FEMA statistics, has a 1% chance of a flood equal to or exceeding the base flood elevation (a 100-year flood) in any given year. Furthermore, our properties in Illinois, Indiana, Iowa, Kansas, Missouri, Ohio and Pennsylvania are at risk of experiencing snowstorms, tornadoes and flooding.

 

In addition to the risk of flooding and hurricanes, snowstorms and other adverse weather conditions may interrupt our operations, damage our properties and reduce the number of customers who visit our facilities in an affected area. For example, during the first quarter of 2011, and again in 2014, much of the country was impacted by unusually severe winter weather, particularly in the Midwest. These storms made it very difficult for our customers to visit, and we believe such winter weather had a material and adverse impact on the results of our operations during such times. If there is a prolonged disruption at any of our properties due to natural disasters, terrorist attacks or other catastrophic events, our results of operations and financial condition could be materially adversely affected.

 

To maintain our gaming licenses for our Evangeline Downs and Delta Downs racinos, we must conduct a minimum of 80 live racing days in a consecutive 20-week period each year of live horse race meetings at each racetrack, and poor weather conditions may make it difficult for us to comply with this requirement.

 

While we maintain insurance coverage that may cover certain of the costs and loss of revenue that we incur as a result of some extreme weather conditions, our coverage is subject to deductibles and limits on maximum benefits. There can be no assurance that we will be able to fully collect, if at all, on any claims resulting from extreme weather conditions. If any of our properties are damaged or if their operations are disrupted as a result of extreme weather in the future, or if extreme weather adversely impacts general economic or other conditions in the areas in which our properties are located or from which they draw their patrons, our business, financial condition and results of operations could be materially adversely affected.

 

Our insurance coverage may not be adequate to cover all possible losses that our properties could suffer, our insurance costs may increase, and we may not be able to obtain similar insurance coverage in the future.

Although we have "all risk" property insurance coverage for our operating properties, which covers damage caused by a casualty loss (such as fire, natural disasters, acts of war, or terrorism), each policy has certain exclusions. In addition, our property insurance coverage is in an amount that may be significantly less than the expected replacement cost of rebuilding the facilities if there was a total loss. Our level of insurance coverage also may not be adequate to cover all losses in the event of a major casualty. In addition, certain casualty events, such as labor strikes, nuclear events, acts of war, loss of income due to cancellation of room reservations or conventions due to fear of terrorism, deterioration or corrosion, insect or animal damage and pollution, may not be covered at all under our policies. Therefore, certain acts could expose us to substantial uninsured losses.

 

We also have "builder's risk" insurance coverage for our development and expansion projects. Builder's risk insurance provides coverage for projects during their construction for damage caused by a casualty loss. In general, our builder's risk coverage is subject to the same exclusions, risks and deficiencies as those described above for our all-risk property coverage. Our level of builder's risk insurance coverage may not be adequate to cover all losses in the event of a major casualty.

 

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We maintain cyber insurance coverage that insures against certain expenses incurred by the Company in the event of any information breach, as well as insuring against certain costs and damages associated with losses by third parties. However, such insurance is unlikely to fully mitigate the impact of such an information breach.

 

Belterra Park, Blue Chip, Par-A-Dice, Sam's Town Tunica, Sam's Town Shreveport and Treasure Chest are each located in an area that has been identified by the director of the FEMA as a special flood hazard area. Our level of flood insurance coverage may not be adequate to cover all losses in the event of a major flood.

 

We renew our insurance policies (other than our builder's risk insurance) on an annual basis. The cost of coverage may become so high that we may need to further reduce our policy limits or agree to certain exclusions from our coverage.

 

Our debt instruments and other material agreements require us to meet certain standards related to insurance coverage. Failure to satisfy these requirements could result in an event of default under these debt instruments or material agreements.

 

We draw a significant percentage of our customers from certain geographic regions. Events adversely impacting the economy or these regions, including public health outbreaks and man-made or natural disasters, may adversely impact our business.

The California, Fremont and Main Street Station draw a substantial portion of their customers from the Hawaiian market, with such customers historically comprising more than half of the room nights sold at each property. Decreases in discretionary consumer spending, as well as an increase in fuel costs or transportation prices, a decrease in airplane seat availability, or a deterioration of relations with tour and travel agents, particularly as they affect travel between the Hawaiian market and our facilities, could adversely affect our business, financial condition and results of operations.

 

Our Las Vegas properties also draw a substantial number of customers from certain other specific geographic areas, including the Southern California, Arizona and Las Vegas local markets. Native American casinos in California and other parts of the United States have diverted some potential visitors away from Nevada, which has had and could continue to have a negative effect on Nevada gaming markets. In addition, due to our significant concentration of properties in Nevada, any man-made or natural disasters in or around Nevada, or the areas from which we draw customers to our Las Vegas properties, could have a significant adverse effect on our business, financial condition and results of operations. Each of our properties located outside of Nevada depends primarily on visitors from their respective surrounding regions and are subject to comparable risk.

 

The strength and profitability of our business depends on consumer demand for hotel casino resorts in general and for the type of amenities our properties offer. Changes in consumer preferences or discretionary consumer spending could harm our business. Terrorist activities in the United States and elsewhere, military conflicts in Iraq, Afghanistan and elsewhere, outbreaks of infectious disease and pandemics, adverse weather conditions and natural disasters, among other things, have had negative impacts on travel and leisure expenditures. In addition, other factors affecting travel and discretionary consumer spending, including general economic conditions, disposable consumer income, fears of further economic decline and reduced consumer confidence in the economy, may negatively impact our business. We cannot predict the extent to which similar events and conditions may continue to affect us in the future. An extended period of reduced discretionary spending and/or disruptions or declines in tourism could significantly harm our operations.

 

Energy price increases may adversely affect our cost of operations and our revenues.

Our casino properties use significant amounts of electricity, natural gas and other forms of energy. In addition, our Hawaiian air charter operation uses a significant amount of jet fuel. While no shortages of energy or fuel have been experienced to date, substantial increases in energy and fuel prices, including jet fuel prices, in the United States have, and may continue to, negatively affect our results of operations. The extent of the impact is subject to the magnitude and duration of the energy and fuel price increases, of which the impact could be material. In addition, energy and gasoline price increases could result in a decline of disposable income of potential customers, an increase in the cost of travel and a corresponding decrease in visits and spending levels at our properties, which could have a significant adverse effect on our business, financial condition and results of operations.

 

Our facilities, including our riverboats and dockside facilities, are subject to risks relating to mechanical failure and regulatory compliance.

Generally, all of our facilities are subject to the risk that operations could be halted for a temporary or extended period of time, as the result of casualty, forces of nature, mechanical failure, or extended or extraordinary maintenance, among other causes. In addition, our gaming operations, including those conducted on riverboats or at dockside facilities could be damaged or halted due to extreme weather conditions.

 

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We currently conduct our Treasure Chest, Par-A-Dice, Blue Chip, Sam's Town Shreveport, Amelia Belle and Belterra Resort gaming operations on riverboats. Each of our riverboats must comply with the United States Coast Guard ("USCG") requirements as to boat design, on-board facilities, equipment, personnel and safety. Each riverboat must hold a Certificate of Inspection for stabilization and flotation, and may also be subject to local zoning codes. The USCG requirements establish design standards, set limits on the operation of the vessels and require individual licensing of all personnel involved with the operation of the vessels. Loss of a vessel's Certificate of Inspection would preclude its use as a casino.

 

USCG regulations require a hull inspection for all riverboats at five-year intervals. Under certain circumstances, alternative hull inspections may be approved. The USCG may require that such hull inspections be conducted at a dry-docking facility, and if so required, the cost of travel to and from such docking facility, as well as the time required for inspections of the affected riverboats, could be significant. To date, the USCG has allowed in-place underwater inspections of our riverboats twice every five years on alternate two- and three-year schedules. The USCG may not continue to allow these types of inspections in the future. The loss of a dockside casino or riverboat casino from service for any period of time could adversely affect our business, financial condition and results of operations.

 

Indiana and Louisiana have adopted alternate inspection standards for riverboats in those states. The standards require inspection by ABS Consulting ("ABSC"). ABSC inspection for our riverboats at Blue Chip, Treasure Chest and Sam's Town Shreveport commenced during 2010. The Amelia Belle is also inspected by the ABSC. The Par-A-Dice riverboat will remain inspected by the USCG for the foreseeable future. ABSC imposes essentially the same design, personnel, safety, and hull inspection standards as the USCG. Therefore, the risks to our business associated with USCG inspection should not change by reason of inspection by ABSC. Failure of a vessel to meet the applicable USCG or ABSC standards would preclude its use as a casino.

 

USCG regulations also require us to prepare and follow certain security programs. In 2004, we implemented the American Gaming Association's Alternative Security Program at our riverboat casinos and dockside facilities. The American Gaming Association's Alternative Security Program is specifically designed to address maritime security requirements at riverboat casinos and their respective dockside facilities. Only portions of those regulations will apply to our riverboats inspected by ABSC. Changes to these regulations could adversely affect our business, financial condition and results of operations.

 

Some of our hotels and casinos are located on leased property. If we default on one or more leases, the applicable lessors could terminate the affected leases and we could lose possession of the affected hotel and/or casino.

We lease certain parcels of land on which Eastside Cannery, Suncoast, Belterra Resort, Treasure Chest, Sam's Town Shreveport, IP, Ameristar Kansas City and Ameristar St. Charles' hotels and gaming facilities are located. In addition, we lease other parcels of land on which portions of the California and the Fremont are located. As a ground lessee, we have the right to use the leased land; however, we do not retain fee ownership in the underlying land. Accordingly, with respect to the leased land, we will have no interest in the land or improvements thereon at the expiration of the ground leases. Moreover, since we do not completely control the land underlying the property, a landowner could take certain actions to disrupt our rights in the land leased under the long-term leases. While such interruption is unlikely, such events are beyond our control. If the entity owning any leased land chose to disrupt our use either permanently or for a significant period of time, then the value of our assets could be impaired and our business and operations could be adversely affected. If we were to default on any one or more of these leases, the applicable lessors could terminate the affected leases and we could lose possession of the affected land and any improvements on the land, including the hotels and casinos. This would have a significant adverse effect on our business, financial condition and results of operations as we would then be unable to operate all or portions of the affected facilities.

 

Our ability to utilize our net operating loss carryforwards and certain other tax attributes may be limited.

As of December 31, 2019, we had net operating losses ("NOLs") for federal income tax purposes. Under Section 382 of the Internal Revenue Code, if a corporation undergoes an "ownership change" as defined in that section, the corporation's ability to use its pre-change NOLs and other pre-change tax attributes to offset its post-change income may become subject to significant limitations. We may experience an ownership change in the future as a result of shifts in our stock ownership, which may result from the issuance of our common stock, the exercise of stock options and other equity compensation awards, as well as ordinary sales and purchases of our common stock, among other things. If an ownership change in our stock were to be triggered in the future, our subsequent ability to use any NOLs existing at that time could be significantly limited. Additionally, on December 22, 2017, the U.S. government enacted comprehensive tax legislation commonly referred to as the Tax Cuts and Jobs Act (the "Tax Act"). The Tax Act changed the carryback and carryforward periods for NOLs generated after December 31, 2017 and imposed annual limitations on the use of such NOLs. While the rules for NOLs generated in the year ended December 31, 2017 and prior did not change, our NOLs all predate the change, it is possible that future law changes could affect our ability to utilize NOLs prospectively.

 

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Risks Related to our Indebtedness

We have a significant amount of indebtedness.

We and our subsidiaries had approximately $3.8 billion of long-term debt (including debt of non-guarantor subsidiaries and without deducting unamortized discount and origination fees) as of December 31, 2019 (of which approximately $1.3 billion was outstanding under the Credit Facility) and which includes approximately $27.0 million of current maturities of long-term debt and excludes approximately $12.6 million in aggregate outstanding letters of credit. In addition, an aggregate amount of approximately $656.6 million was available for borrowing under the Revolving Credit Facility as of December 31, 2019.

 

If we pursue, or continue to pursue, any expansion, development, investment or renovation projects requiring capital beyond our available borrowing capacity, we expect that our long-term debt will substantially increase in connection with related capital expenditures. This indebtedness could have important consequences, including:

 

 

•

difficulty in satisfying our obligations under our current indebtedness;

     
 

•

increasing our vulnerability to general adverse economic and industry conditions;

     
 

•

requiring us to dedicate a substantial portion of our cash flows from operations to payments on our indebtedness, which would reduce the availability of our cash flows to fund working capital, capital expenditures, expansion efforts and other general corporate purposes;

     
 

•

limiting our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate;

     
 

•

placing us at a disadvantage compared to our competitors that have less debt; and

     
 

•

limiting, along with the financial and other restrictive covenants in our indebtedness, among other things, our ability to borrow additional funds.

 

Our debt instruments contain, and any future debt instruments likely will contain, a number of restrictive covenants that impose significant operating and financial restrictions on us, including restrictions on our ability to, among other things:

 

 

•

incur additional debt, including providing guarantees or credit support;

     
 

•

incur liens securing indebtedness or other obligations;

     
 

•

make certain investments;

     
 

•

dispose of assets;

     
 

•

make certain acquisitions;

     
 

•

pay dividends or make distributions and make other restricted payments;

     
 

•

enter into sale and leaseback transactions;

     
 

•

engage in any new businesses; and

     
 

•

enter into transactions with our stockholders and our affiliates.

 

In addition, our Credit Facility contains certain financial covenants, including, without limitation, various covenants: (i) requiring the maintenance of a minimum consolidated interest coverage ratio of 1.75 to 1.00; (ii) establishing a maximum permitted consolidated total leverage ratio; and (iii) establishing a maximum permitted secured leverage ratio.

 

Failure to comply with these covenants could result in an event of default, which, if not cured or waived, could have a significant adverse effect on our business, results of operations and financial condition.

 

Note 7, Long-Term Debt, included in the notes to our audited consolidated financial statements presented in Part II, Item 8, contains further disclosure regarding our current outstanding debt.

 

To service our indebtedness, we will require a significant amount of cash. Our ability to generate cash depends on many factors beyond our control.

Our ability to make payments on and to refinance our indebtedness and to fund planned capital expenditures and expansion efforts will depend upon our ability to generate cash in the future. This, to a certain extent, is subject to general economic, financial, competitive, legislative, regulatory and other factors that are beyond our control.

 

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It is unlikely that our business will generate sufficient cash flows from operations, or that future borrowings will be available to us under the Credit Facility in amounts sufficient to enable us to retire our indebtedness as such indebtedness matures and to fund our other liquidity needs. We believe that we will need to refinance all or a portion of our indebtedness, at or before maturity, and cannot provide assurances that we will be able to refinance any of our indebtedness, including amounts borrowed under the Credit Facility on commercially reasonable terms, or at all. We may have to adopt one or more alternatives, such as reducing or delaying planned expenses and capital expenditures, selling assets, restructuring debt, or obtaining additional equity or debt financing or joint venture partners. These financing strategies may not be affected on satisfactory terms, if at all. In addition, certain states’ laws contain restrictions on the ability of companies engaged in the gaming business to undertake certain financing transactions. Some restrictions may prevent us from obtaining necessary capital.

 

We and our subsidiaries may still be able to incur substantially more debt, which could further exacerbate the risks described above.

We and our subsidiaries may be able to incur substantial additional indebtedness in the future. The terms of the indentures governing our senior notes do not fully prohibit us or our subsidiaries from doing so. Borrowings under the Credit Facility are effectively senior to our senior notes and the guarantees of our subsidiary guarantors to the extent of the value of the collateral securing such borrowings. If new debt is added to our, or our subsidiaries', current debt levels, the related risks that we or they now face could intensify.

 

We are required to pay a substantial amount of rent pursuant to our Master Lease with GLPI, which impacts free cash flow and could in the future limit our ability to invest in our operations or seek additional development or strategic opportunities.

We lease the real estate of Ameristar Kansas City, Ameristar St. Charles, and Belterra Casino Resort (each an "OpCo," and collectively the "OpCos") from Gaming and Leisure Properties, Inc. ("GLPI"), pursuant to a triple net REIT Master Lease (the "Master Lease"). Current annual rent under the Master Lease is $97.7 million, with rental increases over time. The Master Lease also includes substantial additional obligations that may require future uses of free cash flow, including obligations to maintain and repair the properties, including minimum annual capital investment requirements, and provides that we have assumed the risk of loss with respect to any casualty or condemnation event, including the obligation to repair or rebuild the facility.

 

These obligations, which could significantly impact free cash flow, could in the future adversely impact our ability to invest in our operations or seek additional development or strategic opportunities. For example, our obligations under the Leases may:

 

 

•

limit our ability to prepay or repay our long-term debt and to obtain additional indebtedness;

 

•

limit our ability to fund working capital, capital expenditures and other general corporate purposes; and

  • limit our ability to respond to changes in our business and the industry in which we operate, including pursuing new markets and additional lines of business, development opportunities, acquisitions and other strategic investments that we would otherwise pursue.

 

Any of the above listed factors could have a material adverse effect on our business, financial condition and results of operations.

 

The Master Lease includes additional provisions that restrict our ability to freely operate and could have an adverse effect on our business and financial condition, including the following:

 

 

•

Escalations in Rent - We are obligated to pay base rent under the Master Lease, and base rent is composed of building base rent and land base rent. Every year of the Master Lease term, building base rent is subject to an annual escalation of up to 2% and we may be required to pay the escalated building base rent regardless of our revenues, profit or general financial condition.

 

•

Variable Rent - We are obligated to pay percentage rent under the Master Lease, which is re-calculated every two years. Such percentage rent shall equal 4% of the change between (i) the average net revenues for the trailing two-year period and (ii) 50% of the trailing 12 months net revenues as of the month ending immediately prior to the execution of the Master Lease. We may be required to pay an increase in percentage rent based on increases in net revenues without a corresponding increase in our profits.

 

•

Pooled Lease - The Master Lease is a pooled lease arrangement, which prohibits us from divesting any individual OpCo without GLPI’s prior consent. Any divestiture of all of the OpCos also requires GLPI’s prior consent, except for limited circumstances where the purchaser meets various financial and gaming operations experience requirements. These limitations on transfer could adversely impact our ability to manage our business.

 

•

Master Lease Guaranties - The Master Lease is guaranteed by the certain subsidiaries of the tenant (the "Lease Guarantors"). A default under any of the Master Lease guaranties that is not cured within the applicable grace period will constitute an event of default under the Master Lease.

 

•

Effect of End of Term or Not Renewing the Master Lease - If we do not renew the Master Lease at the stipulated renewals or we do not enter into a new master lease at the end of the term, we will be required to sell the business of tenant. If we cannot agree upon acceptable terms of sale with a qualified successor tenant, GLPI will select the successor tenant to purchase our business through a competitive auction. If this occurs, we will be required to transfer our business to the highest bidder at the auction, subject to regulatory approvals.

 

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If we are unable to finance our expansion, development, investment and renovation projects, as well as other capital expenditures, through cash flow, borrowings under the Credit Facility, access to the capital markets and additional financings, our expansion, development, investment and renovation efforts will be jeopardized.

We intend to finance our current and future expansion, development, investment, acquisition and renovation projects, as well as our other capital expenditures, primarily with cash flow from operations, borrowings under our Credit Facility, and equity or debt financings. If we are unable to finance our current or future expansion, development, investment, acquisition and renovation projects, or our other capital expenditures, we will have to adopt one or more alternatives, such as reducing, delaying or abandoning planned expansion, development, investment, acquisition and renovation projects as well as other capital expenditures, selling assets, restructuring debt, obtaining additional equity financing or joint venture partners, or modifying the Credit Facility. These sources of funds may not be sufficient to finance our expansion, development, investment, acquisition and renovation projects, and other financing may not be available on acceptable terms, in a timely manner, or at all. In addition, our existing indebtedness contains certain restrictions on our ability to incur additional indebtedness.

 

In the past, there have been significant disruptions in the global capital markets that adversely impacted the ability of borrowers to access capital. A crisis may greatly restrict the availability of capital and cause the cost of capital (if available) to be much higher than it has traditionally been. Although the financial markets have generally recovered from the most recent financial crisis and availability of capital has increased, the financial markets remain volatile. While we currently anticipate that we will be able to fund any expansion projects using cash flows from operations and availability under the Credit Facility (to the extent that availability exists after we meet our working capital needs), if availability under our Credit Facility does not exist or we are otherwise unable to make sufficient borrowings thereunder, any additional financing that is needed may not be available to us or, if available, may not be on terms favorable to us. As a result, if we are unable to obtain adequate project financing in a timely manner, or at all, we may be forced to sell assets in order to raise capital for projects, limit the scope of, or defer such projects, or cancel the projects altogether. In the event that we are unable to access capital with favorable terms, additional equity and/or credit support may be necessary to obtain construction financing for the remaining cost of the project.

 

We are not able to predict the duration or strength of the current economic recovery, the resulting impact on the solvency or liquidity of our lenders, or the possibility of a future recession. Prolonged slow growth or a downturn, or further worsening or broadening of adverse conditions in worldwide and domestic economies could affect our lenders. If a large percentage of our lenders were to file for bankruptcy or otherwise default on their obligations to us, we may not have the liquidity under the Credit Facility to fund our current projects. There is no certainty that our lenders will continue to remain solvent or fund their respective obligations under the Credit Facility. If we were otherwise required to renegotiate or replace the Credit Facility, there is no assurance that we would be able to secure terms that are as favorable to us, if at all.

 

Risks Related to our Equity Ownership

Our common stock price may fluctuate substantially, and a shareholder's investment could decline in value.

The market price of our common stock may fluctuate substantially due to many factors, including:

 

 

•

actual or anticipated fluctuations in our results of operations;

     
 

•

announcements of significant acquisitions or other agreements by us or by our competitors;

     
 

•

our sale of common stock or other securities in the future;

     
 

•

trading volume of our common stock;

     
 

•

conditions and trends in the gaming and destination entertainment industries;

     
 

•

changes in the estimation of the future size and growth of our markets; and

     
 

•

general economic conditions, including, without limitation, changes in the cost of fuel and air travel.

 

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In addition, the stock market in general has experienced extreme price and volume fluctuations that have often been unrelated or disproportionate to companies' operating performance. Broad market and industry factors may materially harm the market price of our common stock, regardless of our operating performance. In the past, following periods of volatility in the market price of a company's securities, shareholder derivative lawsuits and/or securities class action litigation has often been instituted against that company. Such litigation, if instituted against us, could result in substantial costs and a diversion of management's attention and resources.

 

Certain of our stockholders own large interests in our capital stock and may significantly influence our affairs.

William S. Boyd, our Executive Chairman of the Board of Directors, together with his immediate family, beneficially owned approximately 27% of the Company's outstanding shares of common stock as of December 31, 2019. As such, the Boyd family has the ability to significantly influence our affairs, including the election of members of our Board of Directors and, except as otherwise provided by law, approving or disapproving other matters submitted to a vote of our stockholders, including a merger, consolidation, or sale of assets.

 

ITEM 1B.    Unresolved Staff Comments

None

 

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ITEM 2.    Properties

Information relating to the location and general characteristics of our properties is provided in Part I, Item 1, Business - Properties, and is incorporated herein by reference.

 

As of December 31, 2019, some of our properties utilized leased property in their operations.

 

The real estate utilized by three of our properties are subject to a Master Lease with Gaming and Leisure Properties, Inc. The properties under this Master Lease are:

 

 

•

Ameristar Kansas City, including approximately 250 acres of leased land and building.

     
 

•

Ameristar St. Charles, including approximately 240 acres of leased land and building.

     
 

•

Belterra Resort, including approximately 315 acres of leased land and building.

 

In addition, all or a portion of the sites for the following properties are leased:

 

 

•

Suncoast, located on 49 acres of leased land.

     
 

•

Eastside Cannery, located on 30 acres of leased land.

     
 

•

California, located on 13.9 acres of owned land and 1.6 acres of leased land.

     
 

•

Fremont, located on 1.4 acres of owned land and 0.9 acres of leased land.

     
 

•

IP, located on 24 acres of owned land and 3.9 acres of leased land.

     
 

•

Treasure Chest, located on 14 acres of leased land.

     
 

•

Sam's Town Shreveport, located on 18 acres of leased land.

     
 

•

Diamond Jo Dubuque, located on 7 acres of owned land and leases approximately 2.0 acres of parking surfaces.

     
 

•

Diamond Jo Worth, which owns 279 acres and leases 33 acres of land in Emmons, Minnesota that is used as a nine-hole golf course and a nine-station sporting clay course and hunting facility.

     
 

•

Evangeline Downs, which leases the facilities that comprise the Henderson, Eunice and St. Martinville OTBs.

 

ITEM 3.    Legal Proceedings

We are parties to various legal proceedings arising in the ordinary course of business. We believe that all pending claims, if adversely decided, would not have a material adverse effect on our business, financial position or results of operations.

 

ITEM 4.    Mine Safety Disclosures

Not applicable

 

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PART II

 

ITEM 5.

Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

Our common stock is listed on the New York Stock Exchange under the symbol "BYD." On February 20, 2020, the closing sales price of our common stock on the NYSE was $34.74 per share. On that date, we had approximately 610 holders of record of our common stock and our directors and executive officers owned approximately 28% of the outstanding shares. There are no other classes of common equity outstanding.

 

Dividends

Dividends are declared at the discretion of our Board of Directors. We are subject to certain limitations regarding the payment of dividends, such as restricted payment limitations contained in our Credit Facility and the indentures for our outstanding notes.

 

Share Repurchase Program

No share repurchases were made pursuant to our share repurchase program during the three months ended December 31, 2019.

 

In July 2008, our Board of Directors authorized an amendment to our existing share repurchase program to increase the amount of common stock available to be repurchased to $100 million. On May 2, 2017 the Company announced that its Board of Directors had reaffirmed the Company's existing share repurchase program (the "2008 Plan"). On December 12, 2018, our Board of Directors authorized a new share repurchase program of $100 million which is in addition to the existing repurchase authorization (the "2018 Plan"). There were 1.1 million shares repurchased during the year ended December 31, 2019. As of December 31, 2019, the repurchase authorization under the 2008 Plan has been fully utilized and $72.5 million remained available under the 2018 Plan.

 

We are not obligated to repurchase any shares under these programs. Subject to applicable corporate securities laws, repurchases under this program may be made at such times and in such amounts as we deem appropriate. Repurchases are funded with existing cash resources and availability under the Credit Facility. We are subject to certain limitations regarding the repurchase of common stock, such as restricted payment limitations contained in our Credit Facility and the indentures for our outstanding notes.

 

We may acquire our debt or equity securities through open market purchases, privately negotiated transactions, tender offers, exchange offers, redemptions or otherwise, upon such terms and at such prices as we may determine.

 

Our Definitive Proxy Statement to be filed in connection with our 2020 Annual Meeting of Stockholders, incorporated herein by reference, contains information concerning securities authorized for issuance under equity compensation plans within the captions Ownership of Certain Beneficial Owners and Management and Equity Compensation Plan Information.

 

26
 

 

Stock Performance Graph

The graph below compares the five-year cumulative total return on our common stock to the cumulative total return of the Standard & Poor's MidCap 400 Index ("S&P 400") and to companies in our peer group, which is comprised of Penn National Gaming, Inc., Red Rock Resort, Inc. and Eldorado Resorts, Inc. The performance graph assumes that $100 was invested on December 31, 2014 in each of the Company's common stock, the S&P 400 and our peer group, and that all dividends were reinvested. For purposes of the performance graph, in cases in which a shareholder of a peer group company received shares of another company in a corporate transaction, the value of the additional shares received are considered to be a dividend and assumed to be reinvested in the stock of the peer company on the date of the transaction. The stock price performance shown in this graph is neither necessarily indicative of, nor intended to suggest, future stock price performance.

 

 

   

Indexed Returns

 
   

Boyd Gaming Corp.

 

S&P 400

 

Peer Group

 

December 2015

  $ 155.48   $ 97.82   $ 139.65  

December 2016

    157.82     118.11     147.24  

December 2017

    275.72     137.30     283.23  

December 2018

    164.77     122.08     216.93  

December 2019

    239.77     154.07     314.22  

 

The performance graph should not be deemed filed or incorporated by reference into any other of our filings under the Securities Act of 1933 or the Exchange Act of 1934, unless we specifically incorporate the performance graph by reference therein.

 

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ITEM 6.    Selected Financial Data

The selected consolidated financial data presented below has been derived from our audited consolidated financial statements. This information should be read in conjunction with the Management’s Discussion and Analysis of Financial Condition and Results of Operations and our audited Consolidated Financial Statements and accompanying notes thereto.

 

   

Year Ended December 31,

 

(In thousands, except per share data)

 

2019 (a)

 

2018 (b)

 

2017 (c)

 

2016 (d)

 

2015 (e)

 

Statement of Operations Data:

                               

Total revenues

  $ 3,326,119   $ 2,626,730   $ 2,400,819   $ 2,199,259   $ 2,214,831  
                                 

Operating income

    472,568     355,284     343,801     260,408     271,584  
                                 

Income from continuing operations before income taxes

    202,126     155,032     171,113     7,768     4,443  
                                 

Income from continuing operations, net of tax

    157,636     114,701     167,998     207,701     11,068  
                                 

Income from discontinued operations, net of tax

    —     347     21,392     212,530     36,539  
                                 

Net income

    157,636     115,048     189,390     420,231     47,607  
                                 

Income from continuing operations per common share

                               

Basic

  $ 1.39   $ 1.01   $ 1.46   $ 1.81   $ 0.10  

Diluted

  $ 1.38   $ 1.00   $ 1.45   $ 1.80   $ 0.10  
                                 

Dividends declared per common share

  $ 0.27   $ 0.23   $ 0.15   $ —   $ —  
                                 

Balance Sheet Data:

                               

Cash and cash equivalents

  $ 249,977   $ 249,417   $ 203,104   $ 193,862   $ 158,821  

Total assets

    6,650,145     5,756,339     4,685,930     4,670,751     4,350,900  

Long-term debt, net of current maturities

    3,738,937     3,955,119     3,051,899     3,199,119     3,239,799  

Total stockholders' equity

    1,265,242     1,145,741     1,097,227     930,180     501,837  
                                 

Other Data:

                               

Ratio of earnings to fixed charges (f)

 

1.7x

 

1.7x

 

1.9x

 

1.0x

 

1.0x

 

 

(a)    2019 includes a full year of financial results for Lattner, Valley Forge, Ameristar Kansas City, Ameristar St. Charles, Belterra Resort and Belterra Park. In addition, 2019 includes $34.9 million in pretax loss on early extinguishments of debt.

 

(b)    2018 includes the financial results of acquired properties from their respective acquisition date, which include Lattner on June 1, 2018, Valley Forge on September 17, 2018 and Ameristar Kansas City, Ameristar St. Charles, Belterra Resort and Belterra Park on October 15, 2018. As a result of the acquisitions and ongoing projects, we had project development, preopening and writedowns of $45.7 million.

 

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(c)    2017 includes a full year of financial results for Aliante, Cannery and Eastside Cannery. Additionally, 2017 includes a noncash income tax benefit of $60.1 million related to the changes in tax legislation. Discontinued operations for 2017 of $21.4 million reflects our after-tax share of the proceeds related to the final settlement of Borgata’s property tax disputes with Atlantic City. The Company has accounted for its 50% investment in Borgata as discontinued operations for all periods presented in these consolidated financial statements.

 

(d)    2016 includes $38.3 million in pretax, non-cash impairment charges which includes non-cash impairment charges of $23.6 million, $12.5 million and $0.8 million for a gaming license, goodwill and trademarks, respectively, in our Midwest & South segment; and $42.4 million in pretax loss on early extinguishments and modifications of debt. Additionally, 2016 includes a noncash income tax benefit of $203.9 million resulting from the release of a previously recorded deferred tax asset valuation allowance. The financial results of Aliante are included in these financial results from its September 27, 2016 date of acquisition, and the financial results of Cannery and Eastside Cannery are included from their December 20, 2016 date of acquisition. Discontinued operations for 2016 include an after-tax gain on the sale of our equity interest in Borgata of $181.7 million.

 

(e)    2015 includes $18.6 million in pretax, non-cash impairment charges, which includes a $17.5 million non-cash impairment charge for a gaming license in our Midwest & South segment; and $40.7 million in pretax loss on early extinguishments and modifications of debt.

 

(f)    For purposes of computing this ratio, "earnings" consist of income before income taxes and income/(loss) from unconsolidated affiliates, plus fixed charges (excluding capitalized interest) and distributed income of equity investees. "Fixed charges" include interest whether expensed or capitalized, amortization of debt expense, discount, or premium related to indebtedness (included in interest expense), and such portion of rental expense that we deem to be a reasonable representation of the interest factor. 

 

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ITEM 7.    Management's Discussion and Analysis of Financial Condition and Results of Operations

The following discussion should be read in conjunction with our consolidated financial statements and the related notes thereto and other financial information included in this Annual Report on Form 10-K. In addition to the historical information, certain statements in this discussion are forward-looking statements based on current expectations that involve risks and uncertainties. Actual results and the timing of certain events may differ significantly from those projected in such forward-looking statements.

 

EXECUTIVE OVERVIEW

Boyd Gaming Corporation (the "Company," "Boyd Gaming," "we" or "us") is a multi-jurisdictional gaming company that has been in operation since 1975.

 

As of December 31, 2019, we are a geographically diversified operator of 29 wholly owned gaming entertainment properties. Headquartered in Las Vegas, Nevada, we have gaming operations in Nevada, Illinois, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Ohio and Pennsylvania. We view each operating property as an operating segment. For financial reporting purposes, we aggregate our wholly owned properties into the following three reportable segments:

 

Las Vegas Locals

   

Gold Coast Hotel and Casino

 

Las Vegas, Nevada

The Orleans Hotel and Casino

 

Las Vegas, Nevada

Sam's Town Hotel and Gambling Hall

 

Las Vegas, Nevada

Suncoast Hotel and Casino

 

Las Vegas, Nevada

Eastside Cannery Casino and Hotel

 

Las Vegas, Nevada

Aliante Casino + Hotel + Spa

 

North Las Vegas, Nevada

Cannery Casino Hotel

 

North Las Vegas, Nevada

Eldorado Casino

 

Henderson, Nevada

Jokers Wild Casino

 

Henderson, Nevada

Downtown Las Vegas

   

California Hotel and Casino

 

Las Vegas, Nevada

Fremont Hotel and Casino

 

Las Vegas, Nevada

Main Street Station Casino, Brewery and Hotel

 

Las Vegas, Nevada

Midwest & South

   

Par-A-Dice Hotel and Casino

 

East Peoria, Illinois

Belterra Casino Resort

 

Florence, Indiana

Blue Chip Casino, Hotel & Spa

 

Michigan City, Indiana

Diamond Jo Dubuque

 

Dubuque, Iowa

Diamond Jo Worth

 

Northwood, Iowa

Kansas Star Casino

 

Mulvane, Kansas

Amelia Belle Casino

 

Amelia, Louisiana

Delta Downs Racetrack Casino & Hotel

 

Vinton, Louisiana

Evangeline Downs Racetrack and Casino

 

Opelousas, Louisiana

Sam's Town Hotel and Casino

 

Shreveport, Louisiana

Treasure Chest Casino

 

Kenner, Louisiana

IP Casino Resort Spa

 

Biloxi, Mississippi

Sam's Town Hotel and Gambling Hall

 

Tunica, Mississippi

Ameristar Casino Hotel Kansas City

 

Kansas City, Missouri

Ameristar Casino Report Spa St. Charles

 

St. Charles, Missouri

Belterra Park

 

Cincinnati, Ohio

Valley Forge Casino Resort

 

King of Prussia, Pennsylvania

 

We also own and operate a travel agency and a captive insurance company that underwrites travel-related insurance, each located in Hawaii. Financial results for these operations are included in our Downtown Las Vegas segment, as our Downtown Las Vegas properties concentrate their marketing efforts on gaming customers from Hawaii.

 

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Results for Lattner Entertainment Group Illinois, LLC ("Lattner"), our Illinois distributed gaming operator, are included in our Midwest & South segment.

 

In May 2016, we entered into an Equity Purchase Agreement to sell our 50% equity interest in the parent company of Borgata Hotel Casino and Spa ("Borgata") to MGM Resorts. This transaction closed on August 1, 2016. We account for our investment in Borgata by applying the equity method and report its results as discontinued operations for all periods presented in this Annual Report on Form 10-K.

 

Our Midwest & South segment includes our wholly owned subsidiaries Valley Forge Casino Resort for the period following its September 17, 2018 acquisition, and Ameristar Casino Hotel Kansas City, Ameristar Casino Resort Spa St. Charles, Belterra Casino Resort and Belterra Park (together, the "Pinnacle Properties") for the period following their October 15, 2018 acquisition. See Note 2, Acquisitions and Divestitures, to our consolidated financial statements presented in Part II, Item 8.

 

Most of our gaming entertainment properties also include hotel, dining, retail and other amenities. Our main business emphasis is on slot revenues, which are highly dependent upon the number of visits and spending levels of customers at our properties.

 

Our properties have historically generated significant operating cash flow, with the majority of our revenue being cash-based. While we do provide casino credit, subject to certain gaming regulations and jurisdictions, most of our customers wager with cash and pay for non-gaming services with cash or by credit card.

 

Our industry is capital intensive and we rely heavily on the ability of our properties to generate operating cash flow in order to fund maintenance capital expenditures, fund acquisitions, provide excess cash for future development, repay debt financing and associated interest costs, repurchase our debt or equity securities, and pay income taxes and dividends.

 

Our primary areas of focus are: (i) ensuring our existing operations are managed as efficiently as possible and remain positioned for growth; (ii) improving our capital structure and strengthening our balance sheet, including paying down debt, increasing cash flow, improving operations and diversifying our asset base; and (iii) successfully pursuing our growth strategy, which is built on identifying development opportunities and acquiring assets that are a good strategic fit and provide an appropriate return to our shareholders.

 

Our Strategy

Our overriding strategy is to increase shareholder value by pursuing strategic initiatives that improve and grow our business.

 

Strengthening our Balance Sheet

We are committed to finding opportunities to strengthen our balance sheet through diversifying and increasing our cash flows. We intend to take a balanced approach to our cash flows, with a current emphasis on debt repayment followed by investing in our business and returning capital to shareholders.

 

Operating Efficiently

We are committed to operating more efficiently. As we experience revenue growth in both our gaming and non-gaming operations, the efficiencies of our business position us to flow a substantial portion of the revenue growth directly to the bottom line.

 

Evaluating Acquisition Opportunities

Our evaluations of potential investments and growth opportunities are strategic, deliberate, and disciplined. Our goal is to identify and pursue opportunities that grow our business and deliver a solid return for shareholders. These investments can take the form of expanding and enhancing offerings and amenities at existing properties, development of new properties, or acquisitions. Currently, the Company is primarily focused on enhancements to its existing properties.

 

Maintaining our Brand

The ability of our employees to deliver great customer service helps distinguish our Company and our brands from our competitors. Our employees are an important reason that our customers continue to choose our properties over the competition across the country. In addition, we have established a nationwide branding initiative and loyalty program. Our players use their "B Connected" cards to earn and redeem points at nearly all of our properties. The "B Connected" club, among other benefits, rewards players for their loyalty by entitling them to qualify for promotions and earn rewards toward gaming and nongaming activities.

 

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Our Key Performance Indicators

We use several key performance measures to evaluate the operations of our properties. These key performance measures include the following:

 

 

•

Gaming revenue measures: slot handle, which means the dollar amount wagered in slot machines, and table game drop, which means the total amount of cash deposited in table games drop boxes, plus the sum of markers issued at all table games, are measures of volume and/or market share.  Slot win and table game hold, which mean the difference between customer wagers and customer winnings on slot machines and table games, respectively, represent the amount of wagers retained by us and recorded as gaming revenues. Slot win percentage and table game hold percentage, which are not fully controllable by us, represent the relationship between slot handle to slot win and table game drop to table game hold, respectively.

     
 

•

Food & beverage revenue measures: average guest check, which means the average amount spent per customer visit and is a measure of volume and product offerings; number of guests served ("food covers"), which is an indicator of volume; and the cost per guest served, which is a measure of operating margin.

     
 

•

Room revenue measures: hotel occupancy rate, which measures the utilization of our available rooms; and average daily rate ("ADR"), which is a price measure.

 

RESULTS OF OPERATIONS

Overview

 

   

Year Ended December 31,

 

(In millions)

 

2019

 

2018

 

2017

 

Total revenues

  $ 3,326.1   $ 2,626.7   $ 2,400.8  

Operating income

    472.6     355.3     343.8  

Income from continuing operations, net of tax

    157.6     114.7     168.0  

Income from discontinued operations, net of tax

    —     0.3     21.4  

Net income

    157.6     115.0     189.4  

 

Total Revenues

Total revenues increased $699.4 million, or 26.6%, for 2019 as compared to 2018 due primarily to the acquisitions of Lattner on June 1, 2018, Valley Forge on September 17, 2018 and Ameristar Kansas City, Ameristar St. Charles, Belterra Resort and Belterra Park on October 15, 2018 (collectively, the "Acquisitions").

 

Total revenues increased $225.9 million, or 9.4%, for 2018 as compared to 2017 due primarily to the Midwest & South segment increasing by $217.1 million over the prior period primarily attributable to the Acquisitions.

 

Operating Income

In 2019, our operating income increased $117.3 million as compared to 2018 due primarily to the Acquisitions and cost control efforts surrounding our operating costs. In addition, project development, preopening and writedowns expense decreased $24.0 million from the prior year period, which included costs incurred related to the Acquisitions.

 

In 2018, our operating income increased $11.5 million as compared to 2017 due primarily to the Acquisitions, along with the favorable impact of our continuing cost control efforts. Changes in operating margins are discussed further below.

 

 

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Income from Continuing Operations, Net of Tax

Income from continuing operations, net of tax was $157.6 million in 2019, as compared to $114.7 million in 2018, an increase of $42.9 million. This increase was primarily attributable to the $117.3 million increase in operating income, as discussed above, offset by a $33.3 million increase in interest expense, net of amounts capitalized, due to an increase in the weighted average long-term debt balance of $536.0 million reflecting the incremental debt incurred to fund the Acquisitions, a 0.2 percentage point increase in the weighted average interest rate and by $34.9 million of loss on early extinguishments and modifications of debt due to our refinancing activities.

 

Income from continuing operations, net of tax was $114.7 million in 2018, as compared to $168.0 million in 2017, a decrease of $53.3 million. This decrease was attributable to a $37.2 million increase in the income tax provision. The increase in the income tax provision is a result of the prior year provision including a discrete tax benefit of $60.1 million related to the changes in tax legislation in 2017. In addition, interest expense, net of amounts capitalized, increased $31.1 million due to an increase in the weighted average long-term debt balance of $205.9 million reflecting the additional debt issued to fund the Acquisitions and a 1.0% percentage point increase in the weighted average interest rate. These declines were offset by the operating income increase of $11.5 million from the prior year for those factors mentioned above and an increase in interest income of $1.9 million due to the investment in cash equivalents and short-term marketable securities of the net proceeds from the issuance of the 6.000% Senior Notes due August 2026 in second quarter 2018.

 

Income From Discontinued Operations, Net of Tax

Income from discontinued operations, net of tax, reflects the results of our equity method investment in Borgata, which we sold in August 2016. The 2018 results include cash received for our share of miscellaneous recoveries realized by Borgata of $0.3 million. The 2017 results include property tax recovery proceeds of $36.2 million related to the final settlement of Borgata's property tax disputes with Atlantic City.

 

Net Income

For the year ended December 31, 2019, net income was $157.6 million, compared with net income of $115.0 million for the corresponding period of the prior year. The $42.6 million change is primarily due to the increase in income from continuing operations, net of tax, of $42.9 million, as discussed above, offset by a $0.3 million decrease in net income from discontinued operations, net of tax.

 

For the year ended December 31, 2018, net income was $115.0 million, compared with net income of $189.4 million for the corresponding period of the prior year. The $74.3 million change is primarily due to the decrease in income from continuing operations, net of tax along with a $21.0 million decrease in income from discontinued operations from the prior year (both items discussed above).

 

Operating Revenues

We derive the majority of our revenues from our gaming operations, which generated approximately 75%, 73% and 72% of our revenues for 2019, 2018 and 2017, respectively. Food & beverage revenues represent our next most significant revenue source, generating approximately 13% of revenues for 2019, and 14% for 2018 and 2017. Room revenues and other revenues separately contributed less than 10% of revenues during each year.

 

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Year Ended December 31,

 

(In millions)

 

2019

   

2018

   

2017

 

REVENUES

                       

Gaming

  $ 2,483.3     $ 1,925.4     $ 1,740.3  

Food & beverage

    447.9       367.9       346.4  

Room

    237.2       199.5       186.8  

Other

    157.7       133.9       127.3  

Total revenues

  $ 3,326.1     $ 2,626.7     $ 2,400.8  
                         

COSTS AND EXPENSES

                       

Gaming

  $ 1,116.4     $ 845.5     $ 759.6  

Food & beverage

    412.9       347.6       335.5  

Room

    110.7       90.9       85.2  

Other

    96.1       87.4       83.6  

Total costs and expenses

  $ 1,736.1     $ 1,371.4     $ 1,263.9  
                         

MARGINS

                       

Gaming

    55.0 %     56.1 %     56.4 %

Food & beverage

    7.8 %     5.5 %     3.1 %

Room

    53.3 %     54.4 %     54.4 %

Other

    39.1 %     34.7 %     34.3 %

 

Gaming

Gaming revenues are comprised primarily of the net win from our slot machine operations and to a lesser extent from table games win. The $557.9 million, or 29.0%, increase in gaming revenues during 2019 as compared to the prior year, was primarily due to the Acquisitions.

 

The $185.2 million, or 10.6%, increase in gaming revenues during 2018 as compared to the prior year, was primarily due to the Acquisitions. In addition, the Louisiana and Mississippi properties experienced gaming revenue growth, particularly Delta Downs, Amelia Belle and IP. Gaming margins were essentially even with the prior year.

 

Food & Beverage

Food & beverage revenues increased $80.0 million, or 21.7%, during 2019 as compared to prior year. The increase is primarily due to the Acquisitions. Overall food & beverage margins increased to 7.8% from 5.5% in the prior year, due primarily to an increase in average check of 10.8% while cost per cover increased by only 6.1%

 

Food & beverage revenues increased $21.5 million, or 6.2%, during 2018 as compared to prior year due primarily to the Acquisitions. Overall food & beverage margins increased to 5.5% from 3.1% in the prior year, primarily due to an overall increase in average check of 2.2% offset slightly by an increase in cost per cover of 0.6%.

 

Room

Room revenues increased $37.7 million, or 18.9%, in 2019 compared to 2018 due primarily to the Acquisitions. An increase in room revenue of $5.5 million in the Las Vegas Locals segment was driven by an increase in the hotel occupancy rate of 3.1% from the prior year, offset by a decrease of 0.8% in the average daily rate from the prior year.

 

Room revenues increased $12.7 million, or 6.8%, in 2018 compared to 2017 due primarily to the Acquisitions which accounted for $8.4 million. The increase in room revenue of $2.3 million in the Downtown Las Vegas segment was driven by an increase in the average daily rate of 6.1% from the prior year. The Las Vegas Locals segment also experienced room revenue growth of $1.7 million attributable to a 1.2% increase over the prior year in average daily rate.

 

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Other

Other revenues relate to patronage visits at the amenities at our properties, including entertainment and nightclub revenues, retail sales, theater tickets and other venues. Other revenues increased by $23.9 million, or 17.8%, during 2019 as compared to the prior year, was primarily due to the Acquisitions.

 

Other revenues increased by $6.5 million, or 5.1%, during 2018 as compared to the prior year due primarily to the Acquisitions, which accounted for an increase of $5.5 million to other revenue in the Midwest & South segment.

 

Revenues and Adjusted EBITDAR by Reportable Segment

We determine each of our properties' profitability based upon Adjusted Earnings Before Interest, Taxes, Depreciation, Amortization and Rent expense related to the master lease ("Adjusted EBITDAR"), which represents earnings before interest expense, income taxes, depreciation and amortization, deferred rent, master lease rent expense, share-based compensation expense, project development, preopening and writedowns expenses, impairments of assets and other operating items, net, as applicable. Reportable Segment Adjusted EBITDAR is the aggregate sum of the Adjusted EBITDAR for each of the properties comprising our Las Vegas Locals, Downtown Las Vegas and Midwest & South segments before net amortization, preopening and other items. Results for Downtown Las Vegas include the results of our travel agency and captive insurance company in Hawaii. The results for our Illinois distributed gaming operator are included in our Midwest & South segment. Corporate expense represents unallocated payroll, professional fees, aircraft expenses and various other expenses not directly related to our casino and hotel operations. Furthermore, for purposes of this presentation, corporate expense excludes its portion of share-based compensation expense.

 

EBITDAR is a commonly used measure of performance in our industry that we believe, when considered with measures calculated in accordance with GAAP, provides our investors a more complete understanding of our operating results before the impact of investing and financing transactions and income taxes and facilities comparisons between us and our competitors. Management has historically adjusted EBITDAR when evaluating operating performance because we believe that the inclusion or exclusion of certain recurring and non-recurring items is necessary to provide a full understanding of our core operating results and as a means to evaluate period-to-period results.

 

The following table presents our total revenues and Adjusted EBITDAR by Reportable Segment:

 

   

Year Ended December 31,

 

(In millions)

 

2019

   

2018

   

2017

 

Total revenues

                       

Las Vegas Locals

  $ 880.9     $ 873.5     $ 868.4  

Downtown Las Vegas

    257.7       248.1       244.4  

Midwest & South

    2,187.5       1,505.1       1,288.0  

Total revenues

  $ 3,326.1     $ 2,626.7     $ 2,400.8  
                         

Adjusted EBITDAR (1)

                       

Las Vegas Locals

  $ 283.0     $ 274.3     $ 249.9  

Downtown Las Vegas

    62.4       56.5       54.6  

Midwest & South

    635.2       432.4       364.4  

Total Reportable Segment Adjusted EBITDAR

    980.6       763.2       668.9  

Corporate expense

    (83.9 )     (81.9 )     (73.0 )

Adjusted EBITDAR

  $ 896.7     $ 681.3     $ 595.9  

 

(1) Refer to Note 14, Segment Information, in the notes to the consolidated financial statements for a reconciliation of Total Reportable Segment Adjusted EBITDAR to operating income, as reported in accordance with GAAP in our accompanying consolidated statements of operations.

 

Las Vegas Locals

Total revenues increased $7.4 million, or 0.9%, during 2019 as compared to the prior year, primarily due to revenue increases in food & beverage and room revenue. Food & beverage revenue increased $1.8 million due to an increase in average check of 7.8% over prior year. In addition, room revenue increased $5.5 million, as discussed above.

 

Total revenues increased $5.1 million, or 0.6%, during 2018 as compared to the prior year, reflecting revenue increases in all departmental categories. Gaming revenue increased $1.8 million primarily due to a 3.7% and 0.4% increase in table game win and slot win, respectively. In addition, room revenue increased $1.7 million due to a 1.2% increase in average daily rate and other revenue increased $1.0 million due to increased consumption of property amenities and visitor spending.

 

Adjusted EBITDAR increased by $8.7 million, or 3.2%, during 2019 as compared to the prior year, primarily due to revenue growth.

 

Downtown Las Vegas

Total revenues increased by $9.6 million, or 3.9%, in 2019 as compared to the prior year, reflecting revenue increases in all departmental categories except other revenue. Gaming revenue increased $5.8 million primarily due to a 6.8% increase in slot win. Food & beverage revenue increased $2.0 million primarily due to an increase in average check of 6.2% and a 1.1% increase in food covers. In addition, room revenue increased $1.8 million as the hotel occupancy rate increased 2.8% over prior year. We continue to tailor our marketing programs in the Downtown segment to cater to our Hawaiian market. Our Hawaiian market represented approximately 53% and 54% of our occupied rooms in this segment in 2019 and 2018, respectively.

 

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Total revenues increased by $3.7 million, or 1.5%, in 2018 as compared to the prior year, reflecting revenue increases in all departmental categories except gaming revenue. Food & beverage revenue increased by $1.3 million due to an increase in average check of 3.4% over prior year. In addition, room revenue increased $2.3 million as the average daily rate increased 6.1% over prior year. We continue to tailor our marketing programs in the Downtown segment to cater to our Hawaiian market. Our Hawaiian market represented approximately 54% during both 2018 and 2017 of our occupied rooms in this segment.

 

Adjusted EBITDAR increased by $5.9 million, or 10.4%, during 2019 as compared to the prior year, primarily due to revenue growth.

 

Midwest & South

Total revenues increased $682.4 million, or 45.3%, in 2019 as compared to 2018, primarily due to the Acquisitions.

 

Total revenues increased $217.1 million, or 16.9%, in 2018 as compared to 2017, primarily due to the Acquisitions. In addition, the Louisiana and Mississippi properties experienced gaming revenue growth, particularly Delta Downs, Amelia Belle and IP.

 

Adjusted EBITDAR increased by $202.8 million, or 46.9%, during 2019 as compared to the prior year, primarily due to the Acquisitions.

 

Other Operating Costs and Expenses

The following operating costs and expenses, as presented in our consolidated statements of operations, are further discussed below:

 

   

Year Ended December 31,

 

(In millions)

 

2019

 

2018

 

2017

 

Selling, general and administrative

  $ 459.6   $ 369.3   $ 362.0  

Master lease rent expense

    97.7     20.7     —  

Maintenance and utilities

    154.7     127.0     109.5  

Depreciation and amortization

    276.6     230.0     217.5  

Corporate expense

    105.1     104.2     88.1  

Project development, preopening and writedowns

    21.7     45.7     14.5  

Impairment of assets

    —     1.0     (0.4 )

Other operating items, net

    1.9     2.2     1.9  

 

Selling, General and Administrative

Selling, general and administrative expenses include marketing, technology, compliance and risk, surveillance and security. These costs, as a percentage of total revenues, were 13.8%, 14.1% and 15.1% for 2019, 2018 and 2017, respectively. We continue to focus on disciplined and targeted marketing spend and on our cost containment efforts.

 

Master Lease Rent Expense

Master lease rent expense represents rent expense incurred by those properties subject to a master lease agreement with a real estate investment trust.

 

Maintenance and Utilities

Maintenance and utilities expenses, as a percentage of total revenues, were 4.7%, 4.8% and 4.6% for 2019, 2018 and 2017, respectively.

 

Depreciation and Amortization

Depreciation and amortization expense, as a percentage of total revenues, was 8.3%, 8.8% and 9.1% for 2019, 2018 and 2017, respectively. The decline in the percentage versus the prior periods is attributable to there not being depreciation on the real property for three of the Acquisition properties which are subject to the master lease agreement.

 

Corporate Expense

Corporate expense represents unallocated payroll, professional fees, rent and various other administrative expenses that are not directly related to our casino and/or hotel operations, in addition to the corporate portion of share-based compensation expense. Corporate expense, represented 3.2%, 4.0% and 3.7%, of total revenues, for 2019, 2018 and 2017, respectively.

 

Project Development, Preopening and Writedowns

Project development, preopening and writedowns represent: (i) certain costs incurred and recoveries realized related to the activities associated with various acquisition opportunities, strategic initiatives, dispositions and other business development activities in the ordinary course of business; (ii) certain costs of start-up activities that are expensed as incurred; and (iii) asset write-downs. The higher project development, preopening and writedowns expense in 2018 as compared to 2019 and 2017 is primarily due to the Acquisitions, the Wilton Rancheria development and the launch of the redesigned B Connected player loyalty program.

 

Impairment of Assets

There were no costs related to impairment of assets in 2019.

 

Impairment of assets of $1.0 million in 2018 includes non-cash impairment charges related to a nonoperating asset.

 

Impairment of assets in 2017 include a $0.6 million write down of a land parcel in Missouri that was sold during the period. This impairment charge is offset by a $1.0 million excess reserve recovery related to the Echelon project. The value of the remaining Echelon inventory is fully reserved.

 

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Other Operating Items, Net

Other operating items, net, is generally comprised of miscellaneous non-recurring operating charges, including direct and non-reimbursable costs associated with natural disasters and severe weather, including hurricane and flood expenses and subsequent recoveries of such costs, as applicable.

 

Other Expense (Income)

Interest Expense, net

 

   

Year Ended December 31,

 

(In millions)

 

2019

   

2018

   

2017

 

Interest Expense, net

  $ 235.6     $ 200.5     $ 171.3  

Average Long-Term Debt Balance

    3,949.1       3,413.2       3,207.2  

Loss on Early Extinguishments and Modifications of Debt

    34.9       0.1       1.6  

Weighted Average Interest Rates

    5.6 %     5.4 %     4.4 %
                         

Mix of Debt at Year End

                       

Fixed rate debt

    65.8 %     56.0 %     48.1 %

Variable rate debt

    34.2 %     44.0 %     51.9 %

 

Interest expense, net of capitalized interest and interest income increased $35.1 million, or 17.5%, from 2018 to 2019 primarily due to an increase in the weighted average long-term debt balance of $536.0 million, reflecting the incremental debt incurred related to the Acquisitions. In addition, the weighted average interest rate increased by 0.2 percentage points over the prior year period, which is driven by an increase in the underlying Eurodollar rate.

 

Interest expense, net of capitalized interest and interest income, for 2018 increased $29.2 million, or 17.0%, is primarily attributable to an increase in the weighted average long-term debt balance of $205.9 million from 2017 to 2018. The increase in the weighted average long-term debt balance for the year ended December 31, 2018 over the prior year period is due to the issuance in June 2018 of the $700.0 million aggregate principal amount of 6.000% senior notes due August 2026 issued in anticipation of the Acquisitions. In addition, the weighted average interest rate increased by 1.0 percentage point over the prior year period, which is driven by an increase in the underlying Eurodollar rate.

 

Loss on Early Extinguishments and Modifications of Debt

The components of the loss on early extinguishments and modifications of debt, are as follows:

 

   

Year Ended December 31,

 

(In millions)

 

2019

   

2018

   

2017

 
6.875% Senior Notes premium and consent fees   $ 25.8     $ —     $ —  
6.875% Senior Notes deferred finance charges     6.1       —       —  

Boyd Gaming Credit Facility deferred finance charges

    3.0       0.1       1.1  

Amendment No. 2 and Refinancing Amendment

    —       —       0.5  

Total loss on early extinguishments and modifications of debt

  $ 34.9     $ 0.1     $ 1.6  

 

Income Taxes

The effective tax rate on income from continuing operations during 2019, 2018 and 2017 was 21.8%, 26.0% and 1.8%, respectively. Our effective tax rate for 2019 was favorably impacted by benefits related to equity compensation and tax credits and unfavorably impacted by non-deductible expenses, including non-deductible compensation and employee benefits. Additionally, our 2019 effective tax rate was favorably impacted by the revaluation of our state tax deferred liabilities as a result of corporate restructuring. In 2018, our tax provision was unfavorably impacted by state taxes and certain nondeductible expenses which were partially offset by certain tax credits. In 2017, our tax provision was favorably impacted by the change to the federal statutory tax rate on our net deferred tax liability. On December 22, 2017, the U.S. government enacted comprehensive tax legislation commonly referred to as the Tax Cuts and Jobs Act (the "Tax Act"). The Tax Act makes changes to the U.S. tax code, including, but not limited to, (1) reducing the U.S. federal corporate tax rate from a top marginal rate of 35% to a flat rate of 21%; (2) eliminating the corporate alternative minimum tax (AMT); (3) creating a new limitation on deductible interest expense; (4) changing bonus depreciation that will allow for full expensing of qualified property; (5) changing the limitations on executive compensation (6) altering the rules with respect to net operating losses generated after December 31, 2017. These changes have various effective dates. As a result of the reduction of the federal corporate income tax rate, we revalued our net deferred tax liability as of December 31, 2017. Based on this revaluation, we recorded a discrete tax benefit of $60.1 million.

 

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Income from Discontinued Operations, Net of Tax

Income from discontinued operations, net of tax, reflects the results of our equity method investment in Borgata, which we sold in August 2016. The 2018 results include cash received for our share of miscellaneous recoveries realized by Borgata of $0.3 million. The results for the year ended December 31, 2017 include property tax recovery proceeds of $21.4 million, net of tax, related to the final settlement of Borgata's property tax disputes with Atlantic City.

 

LIQUIDITY AND CAPITAL RESOURCES

Financial Position

We generally operate with minimal or negative levels of working capital in order to minimize borrowings and related interest costs. Our cash and cash equivalents balances were $250.0 million and $249.4 million at December 31, 2019 and 2018, respectively. In addition, we held restricted cash balances of $20.5 million and $23.8 million at December 31, 2019 and 2018, respectively. Our working capital deficit at December 31, 2019 and 2018 was $157.4 million and $70.0 million, respectively.

 

Our bank credit facility generally provides all necessary funds for the day-to-day operations, interest and tax payments, as well as capital expenditures. On a daily basis, we evaluate our cash position and adjust the balance outstanding under our bank credit facility, as necessary, by either borrowing or paying down debt with excess cash. We also plan the timing and the amounts of our capital expenditures. We believe that the borrowing capacity under the bank credit facility, subject to restrictive covenants, and cash flows from operating activities will be sufficient to meet our liquidity and capital resource needs for the next twelve months, including our projected operating and maintenance capital expenditures. The source of funds available to us for repayment of debt or to fund development projects is derived primarily from cash flows from operations and availability under our bank credit facility, to the extent availability exists after we meet working capital needs, and subject to restrictive covenants. See "Indebtedness", below, for further detail regarding funds available through our bank credit facility.

 

We could also seek to secure additional working capital, repay current debt maturities, or fund development projects, in whole or in part, through incremental bank financing and additional debt or equity offerings. If availability does not exist under our credit facility, or we are not otherwise able to draw funds on our credit facility, additional financing may not be available to us, and if available, may not be on terms favorable us.

 

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Cash Flows Summary

 

   

Year Ended December 31,

 

(In millions)

 

2019

   

2018

   

2017

 

Net cash provided by operating activities

  $ 549.0     $ 434.5     $ 422.6  
                         

Cash flows from investing activities

                       

Capital expenditures

    (207.7 )     (161.5 )     (190.4 )

Cash paid for acquisition, net of cash received

    (5.5 )     (934.1 )     (1.2 )

Advances pursuant to development agreement

    —       —       (35.1 )

Other investing activities

    (18.3 )     (39.7 )     0.7  

Net cash used in investing activities

    (231.5 )     (1,135.3 )     (226.0 )
                         

Cash flows from financing activities

                       

Net payments under bank credit facility

    (465.7 )     150.3       (161.5 )

Proceeds from issuance of senior notes

    1,000.0       700.0       —  
Retirement of senior notes     (750.0 )     —       —  
Premium and consent fees     (25.8 )     —       —  
Debt issuance costs     (15.5 )     (14.2 )     (3.4 )

Shares repurchased and retired

    (28.0 )     (59.6 )     (31.9 )

Dividends paid

    (28.9 )     (24.7 )     (11.3 )
Share-based compensation activities, net     (5.8 )     (5.3 )     (7.7 )

Other financing activities

    (0.6 )     (0.3 )     0.5  
Net cash provided by (used in) financing activities     (320.3 )     746.2       (215.3 )

Net cash provided by discontinued operations

    —       0.5       35.7  
Increase (decrease) in cash, cash equivalents and restricted cash   $ (2.8 )   $ 45.9     $ 17.0  

 

Cash Flows from Operating Activities

During 2019, 2018 and 2017, we generated net operating cash flow of $549.0 million, $434.5 million and $422.6 million, respectively. Generally, operating cash flows increased $114.5 million in 2019 compared to 2018 due to the flow through effect of higher revenues, including the impact of the Acquisitions, and the timing of working capital spending. Generally, operating cash flows increased $12.0 million in 2018 compared to 2017 due to the flow through effect of higher revenues, including the impact of the Acquisitions, and the timing of working capital spending.

 

Cash Flows from Investing Activities

Our industry is capital intensive and we use cash flows for acquisitions, facility expansions, investments in future development or business opportunities and maintenance capital expenditures.

 

During 2019, we incurred net cash outflows for investing activities of $231.5 million. Capital expenditures of $207.7 million for 2019 are primarily related to the purchase of property and equipment, including information technology purchases for new software.

 

During 2018, we incurred net cash outflows for investing activities of $1,135.3 million. The increase in outflows as compared to the prior year is due to the Acquisitions.

 

During 2017, we incurred net cash outflows for investing activities of $226.0 million. Capital expenditures for 2017 include $43.0 million paid in February 2017 to exercise a purchase option to acquire leased land underlying The Orleans Hotel and Casino. In January 2017, we paid $35.1 million for the acquisition of land that is the intended site of the Wilton Rancheria casino, pursuant to our development agreement with the Wilton Rancheria Tribe. We expect to be reimbursed for this cost when project financing is in place.

 

Cash Flows from Financing Activities

We rely upon our financing cash flows to provide funding for investment opportunities, repayments of obligations and ongoing operations.

 

In 2019 and 2017, our net cash outflows from financing activities totaled $320.3 million and $215.3 million, respectively. In 2018, our net cash inflows for financing activities totaled $746.2 million. The net cash outflows for financing activities in 2019 reflect primarily the use of the proceeds from the issuance of our 4.750% Senior Notes due 2027 and a portion of our excess cash from operations to reduce our outstanding debt, repurchase outstanding common stock under our share repurchase program and pay cash dividends to our shareholders. The net cash inflows for financing activities in 2018 reflect primarily the proceeds received for the issuance of our 6.000% Senior Notes due August 2026 and the Joinder Agreement to our Credit Agreement. The net proceeds from the debt issuance were ultimately used to fund the Acquisitions. The outflows in 2018 reflect the use of excess cash to reduce our outstanding debt, repurchase outstanding common stock under our share repurchase program and pay cash dividends to our shareholders. The net cash outflows for financing activities in 2017, reflect primarily the use of excess cash to reduce our outstanding debt, repurchase outstanding common stock under our share repurchase program and pay cash dividends to our shareholders.

 

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Cash Flows from Discontinued Operations

Discontinued operations activities in 2018 and 2017 represent Borgata, which we sold in August 2016. The net cash inflow of $0.5 million in 2018 represents cash received for our share of miscellaneous recoveries realized by Borgata. The net cash inflow of $35.7 million in 2017 includes property tax recovery proceeds related to the final settlement of Borgata's property tax disputes with Atlantic City.

 

Indebtedness

The outstanding principal balances of long-term debt, before unamortized discounts and fees, and the changes in those balances, are as follows:

 

   

December 31,

   

December 31,

   

Increase /

 

(In millions)

 

2019

   

2018

   

(Decrease)

 

Bank credit facility

  $ 1,305.7     $ 1,771.3     $ (465.6 )

6.875% senior notes due 2023

    —       750.0       (750.0 )

6.375% senior notes due 2026

    750.0       750.0       —  

6.000% senior notes due 2026

    700.0       700.0       —  
4.750% senior notes due 2027     1,000.0       —       1,000.0  

Other

    58.3       58.7       (0.4 )

Total long-term debt

    3,814.0       4,030.0       (216.0 )

Less current maturities

    27.0       24.2       2.8  

Long-term debt, net of current maturities

  $ 3,787.0     $ 4,005.8     $ (218.8 )

 

The amount of current maturities includes certain non-extending balances scheduled to be repaid within the next twelve months under the bank credit facilities.

 

Boyd Gaming Corporation Debt

Bank Credit Facility

Credit Agreement

The outstanding principal amounts under the Credit Facility are comprised of the following:

 

   

December 31,

   

December 31,

 

(In millions)

 

2019

   

2018

 

Revolving Credit Facility

  $ 235.0     $ 320.0  

Term A Loan

    234.3       248.3  

Refinancing Term B Loans

    795.0       1,152.7  

Swing Loan

    41.3       50.3  

Total outstanding principal amounts under the bank credit facility

  $ 1,305.6     $ 1,771.3  

 

With a total revolving credit commitment of $945.5 million available under the bank credit facility, the remaining contractual availability was $656.6 million after consideration of $235.0 million borrowed on the Revolving Credit Facility, $41.3 million borrowed on the Swing Loan and $12.6 million allocated to support various letters of credit.

 

On August 2, 2018, we entered into a Joinder Agreement (the "Joinder Agreement") to Amendment No. 2 and Refinancing Amendment (the "Credit Agreement"), among the Company, certain financial institutions and Bank of America, N.A., as administrative agent.

 

The Joinder Agreement modified the Credit Agreement solely to join additional financial institutions as lenders and to provide for (i) increased commitments under the senior secured revolving credit facility under the Credit Agreement (the “Revolving Credit Facility”) by an amount equal to $170.5 million resulting in total availability under the Revolving Credit Facility of an amount equal to $945.5 million and (ii) commitments from lenders to make additional Term A Loans (as defined in the Credit Agreement) in an amount equal to $49.5 million resulting in aggregate outstanding Term A Loans under the Credit Agreement in an amount equal to approximately $234.3 million.

 

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Pursuant to the terms of the Credit Facility (i) the loans under the Term A Loan amortize in an annual amount equal to 5.00% of the original principal amount thereof, commencing December 31, 2016, payable on a quarterly basis, (ii) the loans under the Refinancing Term B Loans amortize in an annual amount equal to 1.00% of the original principal amount thereof, commencing June 30, 2017, payable on a quarterly basis, and (iii) beginning with the fiscal year ending December 31, 2016, the Company is required to use a portion of its annual Excess Cash Flow, as defined in the Credit Agreement, to prepay loans outstanding under the Credit Facility.

 

The Refinancing Term B Loans mature on September 15, 2023 (or earlier upon occurrence or non-occurrence of certain events). The Revolving Credit Facility and the Term A Loan mature on September 15, 2021 (or earlier upon occurrence or non-occurrence of certain events).

 

The interest rate on the outstanding balance from time to time of the Revolving Credit Facility and the Term A Loan is based upon, at the Company’s option, either: (i) the Eurodollar rate or (ii) the base rate, in each case, plus an applicable margin. Such applicable margin is a percentage per annum determined in accordance with a specified pricing grid based on the total leverage ratio and ranges from 1.75% to 2.75% (if using the Eurodollar rate) and from 0.75% to 1.75% (if using the base rate). A fee of a percentage per annum (which ranges from 0.25% to 0.50% determined in accordance with a specified pricing grid based on the total leverage ratio) will be payable on the unused portions of the Revolving Credit Facility.

 

The interest rate on the outstanding balance of the Refinancing Term B Loans under the Amended Credit Agreement is based upon, at the Company’s option, either: (i) the Eurodollar rate or (ii) the base rate, in each case, plus an applicable margin. Such applicable margin is a percentage per annum determined in accordance with the Company’s secured leverage ratio and ranges from 2.25% to 2.50% (if using the Eurodollar rate) and from 1.25% to 1.50% (if using the base rate).

 

The "base rate" under the Credit Agreement remains the highest of (x) Bank of America’s publicly-announced prime rate, (y) the federal funds rate plus 0.50%, or (z) the Eurodollar rate for a one-month period plus 1.00%.

 

The blended interest rate for outstanding borrowings under for the Credit Facility was 3.8% at December 31, 2019 and 4.7% at December 31, 2018.

 

Amounts outstanding under the Refinancing Amendment may be prepaid without premium or penalty, and the commitments may be terminated without penalty, subject to certain exceptions.

 

Subject to certain exceptions, the Company may be required to repay the amounts outstanding under the Credit Facility in connection with certain asset sales and issuances of certain additional secured indebtedness.

 

The Credit Facility contains certain financial and other covenants, including, without limitation, various covenants: (i) requiring the maintenance of a minimum consolidated interest coverage ratio 1.75 to 1.00; (ii) establishing a maximum permitted consolidated total leverage ratio; (iii) establishing a maximum permitted secured leverage ratio; (iv) imposing limitations on the incurrence of indebtedness; (v) imposing limitations on transfers, sales and other dispositions; and (vi) imposing restrictions on investments, dividends and certain other payments.

 

The Company's obligations under the Credit Facility, subject to certain exceptions, are guaranteed by certain of the Company's subsidiaries and are secured by the capital stock of certain subsidiaries. In addition, subject to certain exceptions, the Company and each of the guarantors will grant the administrative agent first priority liens and security interests on substantially all of their real and personal property (other than gaming licenses and subject to certain other exceptions) as additional security for the performance of the secured obligations under the Credit Facility.

 

The Credit Facility includes an accordion feature which permits an increase in the Revolving Credit Facility and the issuance and increase of senior secured term loans in an amount up to (i) $550.0 million, plus (ii) certain voluntary permanent reductions of the Revolving Credit Facility and certain voluntary prepayments of the senior secured term loans, plus (iii) certain reductions in the outstanding principal amounts under the term loans or the Revolving Credit Facility, plus (iv) any additional amount if, after giving effect thereto, the First Lien Leverage Ratio (as defined in the Credit Agreement) would not exceed 4.25 to 1.00 on a pro forma basis, less (v) any Incremental Equivalent Debt (as defined in the Credit Agreement), in each case, subject to the satisfaction of certain conditions.

 

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Senior Notes

We currently have three issues of senior notes (the “Senior Notes”) that are outstanding as described below.

 

4.750% Senior Notes due December 2027

On December 3, 2019, we issued $1.0 billion aggregate principal amount of 4.750% senior notes due December 2027 (the "4.750% Notes"). The 4.750% Notes require semi-annual interest payments on June 1 and December 1 of each year, commencing on June 1, 2020. The 4.750% Notes will mature on December 1, 2027 and are fully and unconditionally guaranteed, on a joint and several basis, by certain of our current and future domestic restricted subsidiaries, all of which are 100% owned by us. The net proceeds from the 4.750% Notes were used to finance the redemption of all of its outstanding 6.875% senior notes due 2023 and prepay a portion of our Refinancing Term B Loans.

 

In conjunction with the issuance of the 4.750% Notes, we incurred approximately $15.7 million in debt financing costs that have been deferred and are being amortized over the term of the 4.750% Notes using the effective interest method.

 

At any time prior to December 1, 2022, we may redeem the 4.750% Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, up to, but excluding, the applicable redemption date, plus a make whole premium. After December 1, 2022, we may redeem all or a portion of the 4.750% Notes at redemption prices (expressed as percentages of the principal amount) ranging from 102.375% in 2022 to 100% in 2024 and thereafter, plus accrued and unpaid interest and Additional Interest.

 

In connection with the private placement of the 4.750% Notes, we entered into a registration rights agreement with the initial purchasers in which we agreed to file a registration statement with the SEC to permit the holders to exchange or resell the 4.750% Notes. We must use commercially reasonable efforts to file a registration statement and to consummate an exchange offer within 365 days after the issuance of the 4.750% Notes, subject to certain suspension and other rights set forth in the registration rights agreement. Under certain circumstances, including our determination that we cannot complete an exchange offer, we are required to file a shelf registration statement for the resale of the 4.750% Notes and to cause such shelf registration statement to be declared effective as soon as reasonably practicable (but in no event later than the 365th day following the issuance of the 4.750% Notes) after the occurrence of such circumstances. Subject to certain suspension and other rights, in the event that the registration statement is not filed or declared effective within the time periods specified in the registration rights agreement, the exchange offer is not consummated within 365 days after the issuance of the 4.750% Notes, or the registration statement is filed and declared effective but thereafter ceases to be effective or is unusable for its intended purpose for a period in excess of 30 days without being succeeded immediately by a post-effective amendment that cures such failure, the agreement provides that additional interest will accrue on the principal amount of the 4.750% Notes at a rate of 0.25% per annum during the 90-day period immediately following any of these events and will increase by 0.25% per annum at the end of each subsequent 90-day period, but in no event will the penalty rate exceed 1.00% per annum, until the default is cured. There are no other alternative settlement methods and, other than the 1.00% per annum maximum penalty rate, the agreement contains no limit on the maximum potential amount of consideration that could be transferred in the event we do not meet the registration statement filing requirements. The exchange offer will expire, unless extended or terminated in accordance with its terms, on December 3, 2019.  Accordingly, we do not believe that payment of additional interest under the registration payment arrangement is probable and, therefore, no related liability has been recorded in the consolidated financial statements.

 

6.000% Senior Notes due August 2026

On June 25, 2018, we issued $700.0 million aggregate principal amount of 6.000% senior notes due August 2026 (the "6.000% Notes"). The 6.000% Notes require semi-annual interest payments on February 15 and August 15 of each year, commencing on August 15, 2018. The 6.000% Notes will mature on August 15, 2026 and are fully and unconditionally guaranteed, on a joint and several basis, by certain of our current and future domestic restricted subsidiaries, all of which are or will be, as applicable, 100% owned by us. The net proceeds from the debt issuance were ultimately used to fund the acquisitions of Valley Forge and the Pinnacle Properties.

 

In conjunction with the issuance of the 6.000% Notes, we incurred approximately $11.3 million in debt financing costs that have been deferred and are being amortized over the term of the 6.000% Notes using the effective interest method.

 

At any time prior to August 15, 2021, we may redeem the 6.000% Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest (as defined in the indenture governing the 6.000% Notes), if any, up to, but excluding, the applicable redemption date, plus a make-whole premium. On or after August 15, 2021, we may redeem all or a portion of the 6.000% Notes at redemption prices (expressed as percentages of the principal amount) ranging from 103% in 2021 to 100% in 2024 and thereafter, plus accrued and unpaid interest and Additional Interest, if any, up to, but excluding, the applicable redemption date.

 

6.375% Senior Notes due April 2026

On March 28, 2016, we issued $750.0 million aggregate principal amount of 6.375% senior notes due April 2026 (the "6.375% Notes"). The 6.375% Notes require semi-annual interest payments on April 1 and October 1 of each year, commencing on October 1, 2016. The 6.375% Notes will mature on April 1, 2026 and are fully and unconditionally guaranteed, on a joint and several basis, by certain of our current and future domestic restricted subsidiaries, all of which are 100% owned by us. Net proceeds from the 6.375% Notes were used to pay down the outstanding amount under the Revolving Credit Facility and the balance was deposited in money market funds and classified as cash equivalents on the consolidated balance sheets.

 

In conjunction with the issuance of the 6.375% Notes, we incurred approximately $13.0 million in debt financing costs that have been deferred and are being amortized over the term of the 6.375% Notes using the effective interest method.

 

At any time prior to April 1, 2021, we may redeem the 6.375% Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, up to, but excluding, the applicable redemption date, plus a make whole premium. After April 1, 2021, we may redeem all or a portion of the 6.375% Notes at redemption prices (expressed as percentages of the principal amount) ranging from 103.188% in 2021 to 100% in 2024 and thereafter, plus accrued and unpaid interest and Additional Interest.

 

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6.875% Senior Notes due May 2023
O n December 3, 2019, we redeemed all of our 6.875% senior notes due May 2023 (the " 6.875% Notes") at a redemption price o f 103.438% plus accrued and unpaid interest to the redemption date. The redemption was funded through the issuance of the 4.750% Notes . The Company used borrowings under its revolving credit facility to pay the redemption premium accrued and unpaid interest, fees, expenses and commissions related to this redemption.

 

Senior Notes Restrictive Covenants
Each of the Senior Notes contain certain restrictive covenants that, subject to exceptions and qualifications, among other things, limit our ability and the ability of our restricted subsidiaries (as defined in the base and supplemental indentures governing the respective notes to incur additional indebtedness or liens, pay dividends or make distributions or repurchase our capital stock, make certain investments, and sell or merge with other companies. In addition, upon the occurrence of a change of control (as defined in the respective indenture), we will be required, unless certain conditions are met, to offer to repurchase the Senior Notes at a price equal to  101% of the principal amount of the Senior Notes, plus accrued and unpaid interest and Additional Interest (as defined in the respective indenture), if any, to, but not including, the date of purchase. If we sell assets, we will be required under certain circumstances to offer to purchase the Senior Notes.

 

Other Notes

On October 15, 2018, Boyd completed the acquisition of the Pinnacle Properties. Concurrently with the acquisition, Boyd (Ohio) PropCo, LLC, a wholly owned subsidiary of Boyd TCIV, LLC, ("Boyd PropCo"), acquired the real estate associated with Belterra Park in Cincinnati, Ohio (the "Belterra Park Real Property Sale") utilizing mortgage financing from a subsidiary of Gaming and Leisure Properties, Inc. ("GLPI"), pursuant to a purchase agreement, dated December 17, 2017 ("Belterra Park Purchase Agreement), by and among Penn, Gold Merger Sub, a wholly owned subsidiary of GLPI, Belterra Park and Pinnacle Entertainment, and a Novation and Amendment Agreement, dated October 15, 2018 (the "Novation Agreement"), by and among Penn, Gold Merger Sub, Boyd PropCo, Belterra Park and Pinnacle Entertainment. Pursuant to the Novation Agreement, Gold Merger Sub, the original purchaser under the Belterra Park Purchase Agreement, assigned, transferred and conveyed to Boyd PropCo and Boyd PropCo accepted Gold Merger Sub’s rights, title and interest in the Belterra Park Purchase Agreement ("Belterra Park Note").

 

The total Belterra Park Note payable to Gold Merger Sub is $57.7 million. The Belterra Park Note provides for interest at a per annum for any monthly period equal to (a) the sum of (i) the building base rent, as defined in the master lease agreement, payable for such period annualized, plus (ii) the land base rent, as defined in the master lease agreement, payable for such period annualized, plus (iii) the percentage rent, as defined in the master lease agreement, payable for such period annualized divided by (b) the outstanding principal balance of this Belterra Park Note, divided by (c) the number twelve. The interest rate as of December 31, 2019 and 2018, was 11.20% and 11.11%, respectively. Interest payments are due monthly with a balloon payment for the outstanding principal due at the maturity date. The maturity date is the earlier to occur of (a) the expiration of the master lease term or (b) the termination of the master lease agreement.

 

Covenant Compliance

As of December 31, 2019, we believe that we were in compliance with the financial and other covenants contained in our debt instruments.

 

Scheduled Maturities of Long-Term Debt

The scheduled maturities of long-term debt, as discussed above, are as follows:

 

(In millions)

 

Total

 

Year Ending December 31,

       

2020

  $ 27.0  

2021

    509.5  

2022

    12.7  

2023

    757.1  

2024

    —  

Thereafter

    2,507.7  

Total outstanding principal of long-term debt

  $ 3,814.0  

 

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Dividends

Dividends are declared at the discretion of our Board of Directors. We are subject to certain limitations regarding payment of dividends, such as restricted payment limitations related to our outstanding notes and our Credit Facility. On May 2, 2017, the Company announced that its Board of Directors had authorized the reinstatement of the Company’s cash dividend program. The dividends declared by the Board under this program are:

 

Declaration date

 

Record date

 

Payment date

 

Amount per share

May 2, 2017

 

June 15, 2017

 

July 15, 2017

 

$0.05

September 6, 2017

 

September 18, 2017

 

October 15, 2017

 

0.05

December 7, 2017

 

December 28, 2017

 

January 15, 2018

 

0.05

March 2, 2018

 

March 16, 2018

 

April 15, 2018

 

0.05

June 8, 2018

 

June 29, 2018

 

July 15, 2018

 

0.06

September 14, 2018

 

September 28, 2018

 

October 15, 2018

 

0.06

December 7, 2018

 

December 28, 2018

 

January 15, 2019

 

0.06

March 4, 2019

 

March 15, 2019

 

April 15, 2019

 

0.06

June 7, 2019

 

June 17, 2019

 

July 15, 2019

 

0.07

September 17, 2019   September 27, 2019   October 15, 2019   0.07
December 17, 2019   December 27, 2019   January 15, 2020   0.07

 

Share Repurchase Program

Subject to applicable corporate securities laws, repurchases under our stock repurchase program may be made at such times and in such amounts as we deem appropriate. We are subject to certain limitations regarding the repurchase of common stock, such as restricted payment limitations related to our outstanding notes and our bank credit facility. Purchases under our stock repurchase program can be discontinued at any time that we feel additional purchases are not warranted. We intend to fund the repurchases under the stock repurchase program with existing cash resources and availability under our Credit Facility.

 

In July 2008, our Board of Directors authorized an amendment to our existing share repurchase program to increase the total amount of common stock available to be repurchased to $100 million. The Board reaffirmed this program in May 2017 (the "2008 Plan"). On December 12, 2018, our Board of Directors authorized a new share repurchase program of $100 million which is in addition to the existing repurchase authorization (the "2018 Plan"). We are not obligated to purchase any shares under our stock repurchase program. There were 1.1 million shares, 1.9 million shares and 1.2 million shares repurchased during the years ended December 31, 2019, 2018 and 2017, respectively. We are currently authorized to repurchase up to an additional $72.5 million in shares of our common stock under the 2018 share repurchase program. The 2008 share repurchase program has been depleted.

 

We have in the past, and may in the future, acquire our debt or equity securities through open market purchases, privately negotiated transactions, tender offers, exchange offers, redemptions or otherwise, upon such terms and at such prices as we may determine.

 

Other Items Affecting Liquidity

We anticipate the ability to fund our capital requirements using our free cash flow from operations and availability under our Credit Facility, to the extent availability exists after we meet our working capital needs for the next twelve months. Any additional financing that is needed may not be available to us or, if available, may not be on terms favorable to us. The outcome of the following specific matters, including our commitments and contingencies, may also affect our liquidity.

 

Divestiture of Borgata

The proceeds we received upon the sale of our equity interest in Borgata did not include our 50% share of any future property tax settlement benefits, from the time period during which we held a 50% ownership in MDDHC, later received by Borgata and to which Boyd Gaming retained the right to receive payment. On February 15, 2017, Borgata announced that it had entered into a settlement agreement under which it would receive payments totaling $72 million to resolve the property tax issues. Borgata received full payment, and we received our share of the proceeds, in June 2017. For the year ended December 31, 2017, we recognized $36.2 million in income for the cash we received for our share of property tax benefits realized by Borgata after the closing of the sale. These payments, net of tax of $14.8 million for the year ended December 31, 2017, are included in discontinued operations in the consolidated financial statements. During the year ended December 31, 2018, we recognized $0.3 million in income, net of tax, for the cash received for our share of miscellaneous recoveries realized by Borgata during that period, which are included in discontinued operations in the consolidated financial statements.

 

Commitments

Capital Spending and Development

We continually perform on-going refurbishment and maintenance at our facilities to maintain our standards of quality. Certain of these maintenance costs are capitalized, if such improvement or refurbishment extends the life of the related asset, while other maintenance costs that do not so qualify are expensed as incurred. The commitment of capital and the related timing thereof are contingent upon, among other things, negotiation of final agreements and receipt of approvals from the appropriate regulatory bodies. We must also comply with covenants and restrictions set forth in our debt agreements.

 

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We currently estimate that our annual cash capital requirements to perform on-going refurbishment and maintenance at our properties to maintain our quality standards ranges from between $190 million and $210 million. We intend to fund such capital expenditures through our credit facility and operating cash flows.

 

In addition to the capital spending discussed above, we continue to pursue other potential development projects that may require us to invest significant amounts of capital. For example, we continue to work with the Wilton Rancheria Tribe (the "Tribe"), a federally-recognized Native American tribe located about 15 miles southeast of Sacramento, California, to develop and manage a gaming entertainment complex. In January 2017, we funded the acquisition of land that is the intended site of the Wilton Rancheria casino for $35.1 million. We expect to be reimbursed for this cost when project financing is in place. In September 2017, the California State Legislature unanimously approved, and the Governor of California executed, a tribal-state gaming compact with the tribe allowing the development of the casino. In October 2018, the National Indian Gaming Commission approved the Company's management contract with the Tribe. With the compact now in place, we are in the process of finalizing project budget, design and construction planning. The project will be constructed using third-party financing. Once commenced and project financing put in place, the construction timeline is expected to span 18 to 24 months.

 

CONTRACTUAL OBLIGATIONS

The following summarizes our undiscounted contractual obligations as of December 31, 2019:

 

   

Year Ending December 31,

 

(In millions)

 

Total

   

2020

   

2021

   

2022

   

2023

   

2024

   

Thereafter

 

CONTRACTUAL OBLIGATIONS

                                                       

Long-Term Debt

                                                       

Bank credit facility

  $ 1,305.7     $ 26.7     $ 509.3     $ 12.6     $ 757.1     $ —     $ —  

6.375% senior notes due 2026

    750.0       —       —       —       —       —       750.0  

6.000% senior notes due 2026

    700.0       —       —       —       —       —       700.0  
4.750% senior notes due 2027     1,000.0       —       —       —       —       —       1,000.0  

Other

    58.3       0.3       0.2       0.1       —       —       57.7  

Total long-term debt

    3,814.0       27.0       509.5       12.7       757.1       —       2,507.7  
                                                         

Interest on Fixed Rate Debt

    998.0       143.8       143.7       143.7       143.7       143.7       279.4  
                                                         

Interest on Variable Rate Debt (1)

    142.3       48.6       42.4       29.5       21.8       —       —  
                                                         

Operating Leases

    1,087.5       130.4       125.6       117.9       116.9       114.6       482.1  
                                                         

Purchase Obligations (2)

    59.0       19.1       13.3       8.3       3.9       3.4       11.0  
                                                         

TOTAL CONTRACTUAL OBLIGATIONS

  $ 6,100.8     $ 368.9     $ 834.5     $ 312.1     $ 1,043.4     $ 261.7     $ 3,280.2  

 

(1)

Estimated interest payments are based on principal amounts and scheduled maturities of debt outstanding at December 31, 2019. Estimated interest payments for variable-rate debt are based on rates at December 31, 2019.

(2) Purchase obligations include various contracted amounts, including construction contracts and information technology, advertising, maintenance and other service agreements.

 

Other Opportunities

We regularly investigate and pursue additional expansion opportunities in markets where casino gaming is currently permitted. We also pursue expansion opportunities in jurisdictions where casino gaming is not currently permitted in order to be prepared to develop projects upon approval of casino gaming. Such expansions will be affected and determined by several key factors, which may include the following:

 

 

•

the outcome of gaming license selection processes;

 

•

the approval of gaming in jurisdictions where we have been active but where casino gaming is not currently permitted;

 

•

identification of additional suitable investment opportunities in current gaming jurisdictions; and

 

•

availability of acceptable financing.

 

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Additional projects may require us to make substantial investments or may cause us to incur substantial costs related to the investigation and pursuit of such opportunities, which investments and costs we may fund through cash flow from operations or availability under our Credit Facility. To the extent such sources of funds are not sufficient, we may also seek to raise such additional funds through public or private equity or debt financings or from other sources. No assurance can be given that additional financing will be available or that, if available, such financing will be obtainable on terms favorable to us. Moreover, we can provide no assurances that any expansion opportunity will result in a completed transaction.

 

Off Balance Sheet Arrangements

Our off balance sheet arrangements consist of the following:

 

Indemnification

We have entered into certain agreements that contain indemnification provisions, as well as indemnification agreements involving certain of our executive officers and directors. These agreements provide indemnity insurance pursuant to which directors and officers are indemnified or insured against liability or loss under certain circumstances, which may include liability or related loss under the Securities Act and the Exchange Act. In addition, our Restated Articles of Incorporation and Restated Bylaws contain provisions that provide for indemnification of our directors, officers, employees and other agents to the maximum extent permitted by law.

 

Outstanding Letters of Credit

At December 31, 2019, we had outstanding letters of credit totaling $12.6 million.

 

Other Arrangements

We have not entered into any transactions with special purpose entities, nor have we engaged in any derivative transactions.

 

CRITICAL ACCOUNTING POLICIES

Our discussion and analysis of our results of operations and liquidity and capital resources are based on our consolidated financial statements which have been prepared in accordance with accounting principles generally accepted in the United States of America, or GAAP. In accordance with GAAP, we are required to make estimates and assumptions that affect the reported amounts included in our consolidated financial statements. We base our estimates on historical experience and on various other assumptions that we believe to be reasonable under the circumstances. On an ongoing basis, management reviews and refines those estimates, the following of which materially impact our consolidated financial statements: the recoverability of long-lived assets; application of acquisition method of accounting; valuation of indefinite-lived intangible assets and goodwill; determination of self-insured reserves; and provisions for deferred tax assets, certain tax liabilities and uncertain tax positions.

 

Judgments are based on information including, but not limited to, historical experience, industry trends, conventional practices, expert opinions, terms of existing agreements and information from outside sources. Judgments are subject to an inherent degree of uncertainty, and therefore actual results could differ from these estimates.

 

We believe the following critical accounting policies require a higher degree of judgment and complexity, the sensitivity of which could result in a material impact on our consolidated financial statements.

 

Recoverability of Long-Lived Assets

Our long-lived assets were carried at $2.7 billion at December 31, 2019, or 40.2% of our consolidated total assets. We evaluate the carrying value of long-lived assets whenever events or changes in circumstances indicate that the carrying value of such assets may not be recoverable. If triggering events are identified, we then compare the estimated undiscounted future cash flows of the asset to the carrying value of the asset. The asset is not impaired if the undiscounted future cash flows exceed its carrying value. If the carrying value exceeds the undiscounted future cash flows, then an impairment charge is recorded, typically measured using a discounted cash flow model, which is based on the estimated future results of the relevant reporting unit discounted using our weighted-average cost of capital and market indicators of terminal year free cash flow multiples.

 

A long-lived asset shall be tested for recoverability whenever events or changes in circumstances indicate that its carrying amount may not be recoverable. The following are examples of such events or changes in circumstances:

 

 

i.

a significant decrease in the market price of a long-lived asset;

 

ii.

a significant adverse change in the extent or manner in which a long-lived asset is being used or in its physical condition;

 

iii.

a significant adverse change in legal factors or in the business climate that could affect the value of a long-lived asset, including an adverse action or assessment by a regulator;

 

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iv.

an accumulation of costs significantly in excess of the amount originally expected for the acquisition or construction of a long-lived asset;

 

v.

a current-period operating or cash flow loss combined with a history of operating or cash flow losses or a projection or forecast that demonstrates continuing losses associated with the use of a long-lived asset; and/or

 

vi.

a current expectation that, more likely than not, a long-lived asset will be sold or otherwise disposed of significantly before the end of its previously estimated useful life.

 

We reconsider changes in circumstances on a frequent basis, and if a triggering event related to potential impairment has occurred, we solicit third party valuation expertise to assist in the valuation of our investment. There are three generally accepted approaches available in developing an opinion of value: the cost, sales comparison and income approaches. We generally consider each of these approaches in developing a recommendation of the fair value of the asset; however, the reliability of each approach is dependent upon the availability and comparability of the market data uncovered, as well as, the decision-making criteria used by market participants when evaluating a property. We will bifurcate our investment and apply the most indicative approach to overall fair valuation, or in some cases, a weighted analysis of any or all of these methods.

 

Developing an opinion of land value is typically accomplished using a sales comparison approach by analyzing recent sales transactions of similar sites. Potential comparables are researched and the pertinent facts are confirmed with parties involved in the transaction. This process fosters a general understanding of the potential comparable sales and facilitates the selection of the most relevant comparables by the appraiser. Valuation is typically accomplished using a unit of comparison such as price per square foot of land or potential building area. Adjustments are applied to the unit of comparison from an analysis of comparable sales, and the adjusted unit of comparison is then used to derive a value for the property.

 

The cost approach is based on the premise that a prudent investor would pay no more for an asset of similar utility than its replacement or reproduction cost. The cost to replace the asset would include the cost of constructing a similar asset of equivalent utility at prices applicable at the time of the valuation date. To arrive at an estimate of the fair value using the cost approach, the replacement cost new is determined and reduced for depreciation of the asset. Replacement cost new is defined as the current cost of producing or constructing a similar new item having the nearest equivalent utility as the property being valued.

 

The income approach focuses on the income-producing capability of the asset. The underlying premise of this approach is that the value of an asset can be measured by the present worth of the net economic benefit (cash receipts less cash outlays) to be received over the life of the subject asset. The steps followed in applying this approach include estimating the expected before-tax cash flows attributable to the asset over its life and converting these before-tax cash flows to present value through capitalization or discounting. The process uses a rate of return that accounts for both the time value of money and risk factors. There are two common methods for converting net income into value, those methods are the direct capitalization and discounted cash flow methods ("DCF"). Direct capitalization is a method used to convert an estimate of a single year's income expectancy into an indication of value in one direct step by dividing the income estimate by an appropriate capitalization rate. Under the DCF method, anticipated future cash flows and a reversionary value are discounted to an opinion of net present value at a specific internal rate of return or a yield rate, because net operating income of the subject property is not fully stabilized.

 

Application of Acquisition Method of Accounting

We follow the guidance of ASC 805 to account for our acquisitions. We completed three acquisitions in 2018, as described in Note 2, Acquisitions and Divestitures, to our consolidated financial statements presented in Part II, Item 8, for an aggregate net purchase price of approximately $940.4 million. For purposes of these consolidated financial statements, for each of the acquisitions we have allocated the purchase price to the assets acquired and the liabilities assumed based on their fair values as determined by us with the assistance from third-party specialists. The excess of the purchase price over those fair values was recorded as goodwill. 

 

The assets and liabilities of each of the acquisitions are included in our consolidated balance sheet as of December 31, 2019 and 2018, and the results of their operations and cash flows are reported in our consolidated statements of operations and cash flows, respectively, from the respective dates of acquisition through December 31, 2019.

 

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Valuation of Indefinite-Lived Intangible Assets

Gaming license rights represent the value of the license to conduct gaming in certain jurisdictions, which is subject to highly extensive regulatory oversight and a limitation on the number of licenses available for issuance with these certain jurisdictions. Gaming license rights are tested for impairment using a discounted cash flow approach. The value of gaming licenses is determined using a multi-period excess earnings method, which is a specific discounted cash flow model. The value is determined at an amount equal to the present value of the incremental after-tax cash flows attributable only to future gaming revenue, discounted to present value at a risk-adjusted rate of return. With respect to the application of this methodology, we used the following significant projections and assumptions: gaming revenues; gaming operating expenses; general and administrative expenses; tax expense; terminal value; and discount rate. These projections are modeled for a five-year period.

 

Trademarks are based on the value of our brand, which reflects the level of service and quality we provide and from which we generate repeat business. Trademarks are valued using the relief from royalty method, which presumes that without ownership of such trademarks, we would have to make a stream of payments to a brand or franchise owner in return for the right to use their name. By virtue of this asset, we avoid any such payments and record the related intangible value of our ownership of the brand name. We used the following significant projections and assumptions to determine value under the relief from royalty method: total revenues; royalty rate; tax expense; terminal growth rate; discount rate; and the present value of tax benefit. The projections underlying this discounted cash flow model were forecasted for fifteen years. Applying the selected pretax royalty rates to the applicable revenue base in each period yielded pretax income for each property's trademarks and trade name. These pretax totals were tax effected utilizing the applicable tax rate to arrive at net, after-tax cash flows. The net, after-tax flows were then discounted to present value utilizing an appropriate discount rate. The present value of the after-tax cash flows was then added to the present value of the amortization tax benefit (considering the 15-year amortization of intangible assets pursuant to recent tax legislation) to arrive at the recommended fair values for the trademarks and trade names.

 

Gaming license rights and trademarks are indefinite-lived intangible assets and are not subject to amortization, but are subject to an annual impairment test and between annual test dates in certain circumstances. If the fair value of an indefinite-lived intangible asset is less than its carrying amount, an impairment loss is recognized equal to the difference. As part of our annual impairment testing, management assesses the likelihood of impairment and solicits third party valuation expertise to assist in the valuation of indefinite-lived intangible assets that are deemed to have a greater likelihood of impairment. Our annual impairment tests, performed as of October 1, 2019, did not result in any impairment charges.

 

We evaluate whether any triggering events or changes in circumstances had occurred subsequent to our annual impairment test that would indicate an impairment condition may exist. This evaluation required significant judgment, including consideration of whether there had been any significant adverse changes in legal factors or in our business climate, adverse action or assessment by a regulator, unanticipated competition, loss of key personnel or likely sale or disposal of all or a significant portion of a reporting unit. Based upon this evaluation, we concluded that there had not been any triggering events or changes in circumstances that indicated an impairment condition existed as of December 31, 2019. If an event described above occurs, and results in a significant impact to our revenue and profitability projections, or any significant assumption in our valuations methods is adversely impacted, the impact could result in a material impairment charge in the future.

 

Valuation of Goodwill

The authoritative guidance related to goodwill impairment requires goodwill to be tested for impairment at the reporting unit level at least annually. The guidance permits an entity to make a qualitative assessment, referred to as “Step Zero,” of whether it is more likely than not that a reporting unit’s fair value is less than its carrying amount. If the carrying value of the goodwill is considered impaired, a loss is measured as the excess of the reporting unit's carrying value over the fair value, with a limit of the goodwill allocated to that reporting unit.

 

As part of our annual impairment testing, management assesses the likelihood of impairment and solicits third party valuation expertise to assist in valuations of goodwill for those reporting units that are deemed to have a greater likelihood of impairment. We perform the test annually as of October 1 using a weighting of two different approaches to determine fair value: (i) the income approach; and (ii) the market approach.

 

The income approach is based on a discounted cash flow method, which focuses on the expected cash flow of the subject company. In applying this approach, the cash flow available for distribution is calculated for a finite period of years. Cash flow available for distribution is defined, for purposes of this analysis, as the amount of cash that could be distributed as a dividend without impairing the future profitability or operations of the subject company. The cash flow available for distribution and the terminal value (the value of the subject company at the end of the estimation period) are then discounted to present value to derive an indication of value of the business enterprise.

 

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In the valuation of an asset, the income approach focuses on the income-producing capability of the subject asset. The underlying premise of this approach is that the value of an asset can be measured by the present worth of the net economic benefit (cash receipts less cash outlays) to be received over the life of the subject asset. The steps followed in applying this approach include estimating the expected after-tax cash flows attributable to the asset over its life and converting these after-tax cash flows to present value through "discounting." The discounting process uses a rate of return which accounts for both the time value of money and investment risk factors. Finally, the present value of the after-tax cash flows over the life of the asset is totaled to arrive at an indication of the fair value of the asset.

 

The market approach is comprised of the guideline company method, which focuses on comparing the subject company to selected reasonably similar, or "guideline", publicly-traded companies. Under this method, valuation multiples are: (i) derived from the operating data of selected guideline companies; (ii) evaluated and adjusted based on the strengths and weaknesses of the subject company relative to the selected guideline companies; and (iii) applied to the operating data of the subject company to arrive at an indication of value. In the valuation of an asset, the market approach measures value based on what typical purchasers in the market have paid for assets which can be considered reasonably similar to those being valued. When the market approach is utilized, data are collected on the prices paid for reasonably comparable assets. Adjustments are made to the similar assets to compensate for differences between reasonably similar assets and the asset being valued. The application of the market approach results in an estimate of the price reasonably expected to be realized from the sale of the subject asset.

 

The two methodologies were weighted 60.0% toward the income approach and 40.0% toward the market approach, to arrive at an overall fair value. At October 1, 2019, the fair value of our reporting units substantially exceeded their carrying value. At December 31, 2019, we evaluated whether any triggering events or changes in circumstances had occurred subsequent to our annual impairment test that would indicate an impairment condition may exist. This evaluation required significant judgment, including consideration of whether there had been any significant adverse changes in legal factors or in our business climate, adverse action or assessment by a regulator, unanticipated competition, loss of key personnel or likely sale or disposal of all or a significant portion of a reporting unit. Based upon this evaluation, we concluded that there had not been a triggering event or change in circumstances that indicated an impairment condition existed at December 31, 2019.

 

Although we satisfied the impairment analysis requirements for each reporting unit tested, changes to certain underlying assumptions and variables, many of which are derived from external factors, could greatly impact the results of future tests. We cannot control or influence the impact of these factors from a fair valuation perspective, but they could nonetheless have a material effect on the results of valuation, particularly the guideline company method under the market approach, in the future.

 

Additionally, several of the assumptions underlying the discounted cash flow method under the income approach could pose a high degree of sensitivity to the resulting fair value. These factors include, but are not limited to, the following: total revenue, operating expenses, depreciation expense, depreciation overhang, tax expense and effective rates, debt-free net working capital, capital additions, terminal year growth factor, discount rate and the capitalization rate. A change in any of these variables that cause our undiscounted cash flows or terminal value or both to adversely and materially change could result in the failure of the impairment test, and a resulting impairment of our goodwill in an amount up to its book value of $1,083.3 million.

 

The Company has determined that each of its properties is a reporting unit for goodwill impairment testing, since discrete financial information is available at the property level.

 

Accounting for Leases

The determination of lease liabilities requires us to estimate the present value of our future lease commitments over their reasonably assured remaining lease term using a weighted average incremental borrowing rate commensurate with the rate of interest we would have to pay to borrow on a collateralized basis over a similar term an amount equal to our future lease payments in a similar economic environment. The determination of the interest rate could materially impact our lease liabilities.

 

We estimate the expected term of a lease by assuming the exercise of renewal options, in addition to the initial non-cancelable lease term, if the renewal is reasonably assured. Generally, “reasonably assured” relates to our contractual right to renew and the existence of an economic penalty that would preclude the abandonment of the lease at the end of the initial non-cancelable lease term. The determination of the expected term could also materially impact our lease liabilities. 

 

The determination of the expected term of a lease requires us to apply judgment and estimates concerning the number of renewal periods that are reasonably assured. If a lease is terminated prior to reaching the end of the expected term, this may result in the acceleration of depreciation or impairment of the lease right-of-use asset and related long-lived assets.

 

Determination of Self-Insured Reserves

We are fully self-insured for general liability costs and self-insured for workers' compensation costs up to a stop loss limit of $0.5 million. Self-insurance reserves include accruals of estimated settlements for known claims, ("Case Reserves") as well as accruals of estimates for claims incurred but not yet reported ("IBNR"). Case reserves represent estimated liability for unpaid loss, based on a claims administrator's estimates of future payments on individual reported claims, including Loss Adjustment Expenses ("LAE"). Generally, LAE includes claims settlement costs directly assigned to specific claims, such as legal fees. We estimate case and LAE reserves on a combined basis, but do not include claim administration costs in our estimated ultimate loss reserves. IBNR reserves include the provision for unreported claims, changes in case reserves, and future payments on reopened claims.

 

We have relied upon an industry-based method to establish our self-insurance reserves, which projects the ultimate losses estimated by multiplying the exposures by a selected ultimate loss rate. The selected ultimate loss rates were determined based on a review of ultimate loss rates for prior years, adjusted for loss and exposure trend, and benefit level changes. We believe this method best provides an appropriate result, given the maturing experience and relative stabilization of our claims history. In previous years, and in certain instances, loss rates were based on industry Loss Development Factors ("LDFs"). Industry LDFs are from various national sources for workers compensation and general liability claims, and we utilize the most recent information available, although there is some lag time between compilation and publishing of such reports, during which unfavorable trends or data could emerge, which would not be reflected in our reserves.

 

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For workers' compensation, using payroll by state as weights, we calculate a weighted average industry LDF; for general liability claims, we use revenues as weights, and apply to a weighted average Industry LDF to yield an initial expectation of the ultimate loss amount. The paid LDFs are used to determine the percentage of the expected ultimate loss that is expected to be unpaid as of the reserving date. This future unpaid percentage is multiplied by the expected ultimate losses to derive the expected future paid losses. As a loss year matures, the expected future paid losses are replaced by actual paid losses.

 

In the computation of workers' compensation claims, we exclude any claim which has reached our stop loss limitation; and therefore, we do not include any allowance for expected recoverable from excess or reinsurance. We are, however, contingently liable in the event such reinsurer cannot meet its obligations. Although we place this risk with insurers rated better than A with AM Best, a national insurance company rating agency, there can be no assurance that such reinsurer will be able to meet their obligations in the future. At December 31, 2019, unpaid case reserves on claims in excess of $0.5 million, which we have subrogated to the reinsurer, totaled less than $6.7 million.

 

In estimating our reserves for unpaid losses, it is also necessary to project future loss payments. Actual future losses will not develop exactly as projected and may, in fact, vary significantly from the projections. Further, the projections make no provision for future emergence of new classes of losses or types of losses not sufficiently represented in our historical database or that are not yet quantifiable. Additionally, our results are estimates based on long term averages. Actual loss experience in any given year may differ from what is suggested by these averages. The sensitivity of key variables and assumptions in the analysis was considered. Key variables and assumptions include (but are not limited to) loss development factors, trend factors and the expected loss rates/ratios used. It is possible that reasonable alternative selections would produce materially different reserve estimates.

 

Management believes the estimates of future liability are reasonable based upon this methodology; however, changes in key variables and assumptions used above, or generally in health care costs, accident frequency and severity could materially affect the estimate for these reserves.

 

Provisions for Deferred Tax Assets, Certain Tax Liabilities and Uncertain Tax Positions

Income taxes are recorded under the asset and liability method, whereby deferred tax assets and liabilities are recognized based on the future tax consequences attributable to temporary differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases, and attributable to operating loss and tax credit carryforwards. We reduce the carrying amounts of deferred tax assets by a valuation allowance, if based on the available evidence it is more likely than not that such assets will not be realized. Accordingly, the need to establish valuation allowances for deferred tax assets is assessed periodically based on more-likely-than-not realization threshold. This assessment considers, among other matters, the nature, frequency and severity of current and cumulative losses, forecasts of future profitability, the duration of statutory carryforward periods, our experience with the usability of operating loss and tax credit carryforwards before expiration, and tax planning alternatives.

 

The Company's income tax returns are subject to examination by the Internal Revenue Service ("IRS") and other tax authorities in the locations where it operates. The Company assesses potentially unfavorable outcomes of such examinations based on accounting standards for uncertain income taxes, which prescribe a minimum recognition threshold a tax position is required to meet before being recognized in the financial statements.

 

We recognize the tax benefit from an uncertain tax position only when it is more likely than not, based on the technical merits of the position, that the tax position will be sustained upon examination, including the resolution of any related appeals or litigation. The tax benefits recognized in the consolidated financial statements from such a position are measured as the largest benefit that has a greater than fifty percent likelihood of being realized upon ultimate resolution.

 

We have established contingency reserves for material, known tax exposures. Our tax reserves reflect management's judgment as to the resolution of the issues involved if subject to judicial review. While we believe our reserves are adequate to cover reasonably expected tax risks, there can be no assurance that, in all instances, an issue raised by a taxing authority will be resolved at a financial cost that does not exceed its related reserve. With respect to these reserves, our income tax expense would include: (i) any changes in tax reserves arising from material changes during the period in the facts and circumstances (i.e., new information) surrounding a tax issue; and (ii) any difference from our tax position as recorded in the financial statements and the final resolution of a tax issue during the period.

 

Our balance for uncertain tax benefits as of  December 31, 2019 was $2.5 million. While we believe that our reserves are adequate to cover reasonably expected tax risks, in the event that the ultimate resolution of our uncertain tax positions differ from our estimates, we may be exposed to material increases in income tax expense, which could materially impact our financial position, results of operations and cash flows.

 

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Recently Issued Accounting Pronouncements

For information with respect to recent accounting pronouncements and the impact of these pronouncements on our consolidated financial statements, see Note 1, Summary of Significant Accounting Policies - Recently Issued Accounting Pronouncements, in the notes to the consolidated financial statements.

 

ITEM 7A.    Quantitative and Qualitative Disclosures About Market Risk

Market risk is the risk of loss arising from adverse changes in market rates and prices, such as interest rates, foreign currency exchange rates and commodity prices. We do not hold any market risk sensitive instruments for trading purposes. Our primary exposure to market risk is interest rate risk, specifically long-term U.S. treasury rates and the applicable spreads in the high-yield investment market, short-term and long-term LIBOR rates, and short-term Eurodollar rates, and their potential impact on our long-term debt. We attempt to limit our exposure to interest rate risk by managing the mix of our long-term fixed-rate borrowings and short-term borrowings under our bank credit facility. We do not currently utilize derivative financial instruments for trading or speculative purposes.

 

Table of Debt Maturities and Interest Rates

The following table provides information about our financial instruments that are sensitive to changes in interest rates, including debt obligations. For our debt obligations, the table presents principal cash flows and related weighted-average interest rates by expected maturity dates. The weighted-average variable rates are based upon prevailing interest rates.

 

The scheduled maturities of our long-term debt outstanding for the years ending December 31 are as follows:

 

   

Scheduled Maturity Date

 
   

Year Ending December 31,

 

(In millions)

 

2020

   

2021

   

2022

   

2023

   

2024

   

Thereafter

   

Total

   

Fair Value

 

Long-term debt (including current portion):

                                                               

Fixed-rate

  $ 0.3     $ 0.2     $ 0.1     $ —     $ —     $ 2,507.7     $ 2,508.3     $ 2,654.2  

Average interest rate

    5.7 %     5.7 %     5.7 %     5.7 %     5.7 %     5.3 %     5.7 %        

Variable-rate

  $ 26.7     $ 509.3     $ 12.6     $ 757.1     $ —     $ —     $ 1,305.7     $ 1,308.8  

Average interest rate

    3.8 %     3.8 %     3.9 %     3.9 %     — %     — %     3.8 %        

 

As of December 31, 2019, our long-term variable-rate borrowings represented approximately 34.2% of total long-term debt. Based on December 31, 2019 debt levels, a 100-basis-point change in interest rate would cause our annual interest costs to change by approximately $13.1 million.

 

The following table provides other information about our long-term debt:

 

   

December 31, 2019

 
   

Outstanding

                 
   

Face

   

Carrying

   

Estimated

 

(In millions)

 

Amount

   

Value

   

Fair Value

 

Bank credit facility

  $ 1,305.7     $ 1,290.7     $ 1,308.8  

6.375% senior notes due 2026

    750.0       741.7       806.3  

6.000% senior notes due 2026

    700.0       690.8       750.8  
4.750% senior notes due 2027     1,000.0       984.4       1,038.8  

Other

    58.3       58.3       58.3  

Total long-term debt

  $ 3,814.0     $ 3,765.9     $ 3,963.0  

 

The estimated fair value of our Credit Facility is based on a relative value analysis performed on or about December 31, 2019. See also "Liquidity and Capital Resources" above.

 

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ITEM 8.    Financial Statements and Supplementary Data

The following consolidated financial statements for the three years in the period ended December 31, 2019 are filed as part of this Report:

 

 

Page No.

Report of Independent Registered Public Accounting Firm

53

 

 

Consolidated Balance Sheets at December 31, 2019 and 2018

55

 

 

Consolidated Statements of Operations for the years ended December 31, 2019, 2018 and 2017

56

 

 

Consolidated Statements of Comprehensive Income for the years ended December 31, 2019, 2018 and 2017

57

 

 

Consolidated Statements of Changes in Stockholders' Equity for the years ended December 31, 2019, 2018 and 2017

58

 

 

Consolidated Statements of Cash Flows for the years ended December 31, 2019, 2018 and 2017

59

 

 

Notes to Consolidated Financial Statements

61

 

The accompanying audited consolidated financial statements of Boyd Gaming Corporation (and together with its subsidiaries, the "Company," "we" or "us") have been prepared in accordance with the instructions to Form 10-K and Regulation S-X and include all information and footnote disclosures necessary for complete financial statements in conformity with accounting principles generally accepted in the United States ("GAAP").

 

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the stockholders and the Board of Directors of Boyd Gaming Corporation

 

Opinion on the Financial Statements

 

We have audited the accompanying consolidated balance sheets of Boyd Gaming Corporation and Subsidiaries (the “Company”) as of December 31, 2019 and 2018, the related consolidated statements of operations, comprehensive income, changes in stockholders’ equity, and cash flows, for each of the three years in the period ended December 31, 2019, and the related notes collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2019 and 2018, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2019, in conformity with accounting principles generally accepted in the United States of America.

 

We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Company’s internal control over financial reporting as of December 31, 2019, based on criteria established in Internal Control—Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated February 27, 2020, expressed an unqualified opinion on the Company’s internal control over financial reporting.

 

Change in Accounting Principle

 

As discussed in Note 1 to the financial statements, effective January 1, 2019, the Company adopted FASB ASU 2016-02, Leases, using the modified retrospective approach.

 

Basis for Opinion

 

These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

 

We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.

 

Critical Audit Matter

 

The critical audit matter communicated below is a matter arising from the current-period audit of the financial statements that was communicated or required to be communicated to the audit committee and that (1) relates to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.

 

Goodwill and Indefinite-Lived Intangibles—Refer to Notes 1, 4 and 5 to the financial statements

 

Critical Audit Matter Description

 

The Company’s evaluation of goodwill for impairment involves the comparison of the fair value of each reporting unit to its carrying value. Similarly, its gaming license rights and trademarks are also required to be tested for impairment by comparing the fair value of each license or trademark to its carrying value. As of December 31, 2019, the carrying value of goodwill is $1,083.3 million, gaming license rights is $1,162.8 million, and trademarks is $202.4 million.

 

The determination of these fair values requires management to make significant estimates and assumptions related to various items, such as selection of reasonably similar (“guideline”) companies and valuation multiples derived from the operating data of the selected companies used to estimate the fair value of a reporting unit (goodwill), as well as projections of future total revenues (goodwill and trademarks), gaming revenues (gaming license rights) and discount rates (goodwill, gaming license rights, and trademarks) to estimate the net present value of future revenues. Changes in these assumptions could have a significant impact on the concluded fair value. For certain of the Company’s reporting units, gaming license rights, and trademarks, a significant change in fair value could cause a significant impairment.

 

Auditing these fair values involved a high degree of subjectivity as it relates to evaluating whether management’s estimates and assumptions used to derive the fair value were reasonable.

 

53
 

 

How the Critical Audit Matter Was Addressed in the Audit

 

Our audit procedures related to management’s judgments regarding selection of guideline companies and valuation multiples, as well as projections of future revenues, and selection of the discount rate included the following:

 

•  We tested the effectiveness of management’s controls related to selection of guideline companies and valuation multiples, as well as projected revenues (total and gaming revenues), and the selection of discount rates. 

 

•  We evaluated management’s ability to accurately project future revenues by comparing actual revenue results to management’s historical projections.

 

•  We evaluated the reasonableness of management’s projections of future revenues by:

 

    –   Comparing management’s projections with:

 

    –  Historical revenues

 

    –  Internal communications to management and the Board of Directors

 

    –  Projected information included in Company press releases, as well as analyst and industry reports of the Company and selected companies in its peer group 

 

    –  Considering the impact of changes in the regulatory environment on management’s projections

 

    –  Assessing the reasonableness of the projected revenue mix based on the historical total revenue mix and the Company’s strategic plans

 

    –  Considering actual results for the period from October 1 to December 31, 2019 as compared to management’s projection for that same period, as well as any changes in management’s projection that may have occurred subsequent to October 1, 2019. 

 

•  With the assistance of our fair value specialists, we evaluated the selection of guideline companies and valuation multiples, as well as reasonableness of the discount rate by:

 

    –  Testing the source information underlying the determination of the valuation multiples and discount rate including the mathematical accuracy of these calculations

 

    –  Assessing the comparability of the guideline companies using the industry classification system

 

    –  Assessing the selection of valuation multiples through comparison of historical and projected growth and profitability

 

    –  Independently estimating the weighted average cost of capital (a component of the discount rate)

 

    –  Assessing the basis and rationale for each discount rate input

 

    –  Developing a range of independent estimates and comparing those to the discount rate selected by management.

 

/s/ DELOITTE & TOUCHE LLP

 

Las Vegas, Nevada

February 27, 2020

 

We have served as the Company’s auditor since 1981.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

CONSOLIDATED BALANCE SHEETS

 

 

   

December 31,

 

(In thousands, except share data)

 

2019

   

2018

 

ASSETS

               

Current assets

               

Cash and cash equivalents

  $ 249,977     $ 249,417  

Restricted cash

    20,471       23,785  

Accounts receivable, net

    54,864       54,667  

Inventories

    22,101       20,590  

Prepaid expenses and other current assets

    46,481       45,815  

Income taxes receivable

    5,600       5,477  

Total current assets

    399,494       399,751  

Property and equipment, net

    2,672,553       2,716,064  

Operating lease right-of-use assets

    936,170       —  

Other assets, net

    91,750       106,277  

Intangible assets, net

    1,466,891       1,466,670  

Goodwill, net

    1,083,287       1,062,102  

Other long-term tax assets

    —       5,475  

Total assets

  $ 6,650,145     $ 5,756,339  

LIABILITIES AND STOCKHOLDERS' EQUITY

               

Current liabilities

               

Accounts payable

  $ 91,003     $ 111,172  

Current maturities of long-term debt

    26,994       24,181  

Accrued liabilities

    438,896       334,175  

Income tax payable

    —       173  

Total current liabilities

    556,893       469,701  

Long-term debt, net of current maturities and debt issuance costs

    3,738,937       3,955,119  

Operating lease liabilities, net of current portion

    840,285       —  

Deferred income taxes

    162,695       121,262  

Other long-term tax liabilities

    3,840       3,636  

Other liabilities

    82,253       60,880  

Commitments and contingencies (Notes 2, 7 and 9)

           

Stockholders' equity

               

Preferred stock, $0.01 par value, 5,000,000 shares authorized

    —       —  

Common stock, $0.01 par value, 200,000,000 shares authorized; 111,542,108 and 111,757,105 shares outstanding

    1,115       1,118  

Additional paid-in capital

    883,715       892,331  

Retained earnings

    380,942       253,357  

Accumulated other comprehensive loss

    (530 )     (1,065 )

Total stockholders' equity

    1,265,242       1,145,741  

Total liabilities and stockholders' equity

  $ 6,650,145     $ 5,756,339  

 

The accompanying notes are an integral part of these consolidated financial statements.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF OPERATIONS

 

 

   

Year Ended December 31,

 

(In thousands, except per share data)

 

2019

   

2018

   

2017

 

Revenues

                       

Gaming

  $ 2,483,293     $ 1,925,424     $ 1,740,268  

Food & beverage

    447,853       367,888       346,379  

Room

    237,187       199,500       186,795  

Other

    157,786       133,918       127,377  

Total revenues

    3,326,119       2,626,730       2,400,819  

Operating costs and expenses

                       

Gaming

    1,116,448       845,486       759,612  

Food & beverage

    412,949       347,624       335,506  

Room

    110,680       90,915       85,188  

Other

    96,140       87,354       83,615  

Selling, general and administrative

    459,583       369,313       362,037  

Master lease rent expense

    97,723       20,682       —  

Maintenance and utilities

    154,673       127,027       109,462  

Depreciation and amortization

    276,569       229,979       217,522  

Corporate expense

    105,139       104,201       88,148  

Project development, preopening and writedowns

    21,728       45,698       14,454  

Impairment of assets

    —       993       (426 )

Other operating items, net

    1,919       2,174       1,900  

Total operating costs and expenses

    2,853,551       2,271,446       2,057,018  

Operating income

    472,568       355,284       343,801  

Other expense (income)

                       

Interest income

    (1,858 )     (3,721 )     (1,818 )

Interest expense, net of amounts capitalized

    237,465       204,188       173,108  

Loss on early extinguishments and modifications of debt

    34,949       61       1,582  

Other, net

    (114 )     (276 )     (184 )

Total other expense, net

    270,442       200,252       172,688  

Income before income taxes

    202,126       155,032       171,113  

Income tax provision

    (44,490 )     (40,331 )     (3,115 )

Income from continuing operations, net of tax

    157,636       114,701       167,998  

Income from discontinued operations, net of tax

    —       347       21,392  

Net income

  $ 157,636     $ 115,048     $ 189,390  
                         

Basic net income per common share

                       

Continuing operations

  $ 1.39     $ 1.01     $ 1.46  

Discontinued operations

    —       —       0.19  

Basic net income per common share

  $ 1.39     $ 1.01     $ 1.65  

Weighted average basic shares outstanding

    113,474       114,401       114,957  
                         

Diluted net income per common share

                       

Continuing operations

  $ 1.38     $ 1.00     $ 1.45  

Discontinued operations

    —       —       0.19  

Diluted net income per common share

  $ 1.38     $ 1.00     $ 1.64  

Weighted average diluted shares outstanding

    113,947       115,071       115,628  

 

The accompanying notes are an integral part of these consolidated financial statements.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME

 

 

   

Year Ended December 31,

 

(In thousands)

 

2019

   

2018

   

2017

 

Net income

  $ 157,636     $ 115,048     $ 189,390  

Other comprehensive income (loss), net of tax:

                       

Fair value adjustments to available-for-sale securities, net of tax

    535       (1,195 )     433  

Comprehensive income

  $ 158,171     $ 113,853     $ 189,823  

 

The accompanying notes are an integral part of these consolidated financial statements.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY

 

 

                                   

Accumulated

                 
                                    Other                  
                    Additional             Comprehensive                  
   

Common Stock

   

Paid-in

   

Retained

   

Income (Loss),

   

Noncontrolling

         

(In thousands, except share data)

 

Shares

   

Amount

   

Capital

   

Earnings

   

Net

   

Interest

   

Total

 

Balances, January 1, 2017

    112,896,377     $ 1,129     $ 953,440     $ (23,824 )   $ (615 )   $ 50     $ 930,180  

Cumulative effect of change in accounting principle, adoption of Update 2016-09

    —       —       —       15,777       —       —       15,777  

Net income

    —       —       —       189,390       —       —       189,390  

Comprehensive income, net of tax

    —       —       —       —       433       —       433  

Stock options exercised

    241,964       2       2,082       —       —       —       2,084  

Release of restricted stock units, net of tax

    520,854       5       (8,009 )     —       —       —       (8,004 )

Release of performance stock units, net of tax

    173,653       2       (1,793 )     —       —       —       (1,791 )

Shares repurchased and retired

    (1,198,430 )     (12 )     (31,915 )     —       —       —       (31,927 )

Dividends declared ($0.15 per share)

    —       —       —       (16,918 )     —       —       (16,918 )

Share-based compensation costs

    —       —       17,413       —       —       —       17,413  

Other

    —       —       640       —       —       (50 )     590  

Balances, December 31, 2017

    112,634,418       1,126       931,858       164,425       (182 )     —       1,097,227  

Cumulative effect of change in accounting principle, adoption of Update 2018-02

    —       —       —       (312 )     312       —       —  

Net income

    —       —       —       115,048       —       —       115,048  

Comprehensive loss, net of tax

    —       —       —       —       (1,195 )     —       (1,195 )

Stock options exercised

    338,426       3       3,539       —       —       —       3,542  

Release of restricted stock units, net of tax

    300,177       3       (3,619 )     —       —       —       (3,616 )

Release of performance stock units, net of tax

    337,537       4       (5,274 )     —       —       —       (5,270 )

Shares repurchased and retired

    (1,853,453 )     (18 )     (59,552 )     —       —       —       (59,570 )

Dividends declared ($0.23 per share)

    —       —       —       (25,804 )     —       —       (25,804 )

Share-based compensation costs

    —       —       25,379       —       —       —       25,379  

Balances, December 31, 2018

    111,757,105       1,118       892,331       253,357       (1,065 )     —       1,145,741  

Net income

    —       —       —       157,636       —       —       157,636  

Comprehensive loss, net of tax

    —       —       —       —       535       —       535  

Stock options exercised

    242,357       2       2,375       —       —       —       2,377  

Release of restricted stock units, net of tax

    358,361       4       (4,391 )     —       —       —       (4,387 )

Release of performance stock units, net of tax

    270,960       3       (3,769 )     —       —       —       (3,766 )

Shares repurchased and retired

    (1,086,675 )     (12 )     (28,033 )     —       —       —       (28,045 )

Dividends declared ($0.27 per share)

    —       —       —       (30,051 )     —       —       (30,051 )

Share-based compensation costs

    —       —       25,202       —       —       —       25,202  

Balances, December 31, 2019

    111,542,108     $ 1,115     $ 883,715     $ 380,942     $ (530 )   $ —     $ 1,265,242  

 

The accompanying notes are an integral part of these consolidated financial statements.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOWS

 

 

       
   

Year Ended December 31,

 

(In thousands)

 

2019

   

2018

   

2017

 

Cash Flows from Operating Activities

                       

Net income

  $ 157,636     $ 115,048     $ 189,390  

Adjustments to reconcile net income to net cash provided by operating activities:

                       

Income from discontinued operations, net of tax

    —       (347 )     (21,392 )

Depreciation and amortization

    276,569       229,979       217,522  

Amortization of debt financing costs and discounts on debt

    9,227       9,158       9,845  

Non-cash operating lease expense

    31,524       —       —  

Share-based compensation expense

    25,202       25,379       17,413  

Deferred income taxes

    41,433       34,470       5,203  

Non-cash impairment of assets

    —       993       —  

Gain on sale of assets

    —       —       (1,027 )

Loss on early extinguishments and modifications of debt

    34,949       61       1,582  

Other operating activities

    2,645       887       (2,033 )

Changes in operating assets and liabilities:

                       

Accounts receivable, net

    (315 )     (772 )     (9,937 )

Inventories

    (2,032 )     1,699       565  

Prepaid expenses and other current assets

    (1,423 )     4,224       4,957  

Income taxes (receivable) payable, net

    (296 )     (140 )     1,089  

Other long-term tax assets, net

    5,475       (292 )     (5,183 )

Other assets, net

    (4,508 )     (4,094 )     2,318  

Accounts payable and accrued liabilities

    (1,052 )     18,494       13,216  

Operating lease liabilities

    (31,524 )     —       —  

Other long-term tax liabilities

    204       189       140  

Other liabilities

    5,278       (409 )     (1,117 )

Net cash provided by operating activities

    548,992       434,527       422,551  

Cash Flows from Investing Activities

                       

Capital expenditures

    (207,637 )     (161,544 )     (190,464 )

Cash paid for acquisitions, net of cash received

    (5,535 )     (934,073 )     (1,153 )

Advances pursuant to development agreement

    —       —       (35,108 )

Other investing activities

    (18,259 )     (39,710 )     706  

Net cash used in investing activities

    (231,431 )     (1,135,327 )     (226,019 )

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOWS - (Continued)

 

 

       
   

Year Ended December 31,

 

(In thousands)

 

2019

   

2018

   

2017

 

Cash Flows from Financing Activities

                       

Borrowings under bank credit facility

    1,666,329       1,114,600       958,000  

Payments under bank credit facility

    (2,132,024 )     (964,322 )     (1,119,485 )

Proceeds from issuance of senior notes

    1,000,000       700,000       —  
Retirement of senior notes     (750,000 )     —       —  
Premium and consent fees     (25,785 )     —       —  

Debt financing costs, net

    (15,500 )     (14,215 )     (3,430 )

Share-based compensation activities, net

    (5,776 )     (5,344 )     (7,711 )

Shares repurchased and retired

    (28,045 )     (59,570 )     (31,927 )

Dividends paid

    (28,949 )     (24,730 )     (11,286 )

Other financing activities

    (565 )     (178 )     503  

Net cash provided by (used in) financing activities

    (320,315 )     746,241       (215,336 )

Cash Flows from Discontinued Operations

                       

Cash flows from operating activities

    —       —       (514 )

Cash flows from investing activities

    —       482       36,247  

Cash flows from financing activities

    —       —       —  

Net cash provided by discontinued operations

    —       482       35,733  

Change in cash, cash equivalents and restricted cash

    (2,754 )     45,923       16,929  

Cash, cash equivalents and restricted cash, beginning of period

    273,202       227,279       210,350  

Cash, cash equivalents and restricted cash, end of period

  $ 270,448     $ 273,202     $ 227,279  

Supplemental Disclosure of Cash Flow Information

                       

Cash paid for interest, net of amounts capitalized

  $ 231,734     $ 179,154     $ 174,090  

Cash paid for income taxes

    (2,120 )     5,657       5,189  

Supplemental Schedule of Non-cash Investing and Financing Activities

                       

Payables incurred for capital expenditures

  $ 1,897     $ 4,930     $ 9,297  

 

The accompanying notes are an integral part of these consolidated financial statements.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

as of December 31, 2019 and 2018 and for the years ended December 31, 2019, 2018 and 2017

 

 

 

NOTE 1.    SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

Organization

Boyd Gaming Corporation (and together with its subsidiaries, the "Company", the "Registrant", "Boyd Gaming", "Boyd", "we" or "us") was incorporated in the state of Nevada in 1988 and has been operating since 1975. The Company's common stock is traded on the New York Stock Exchange under the symbol "BYD".

 

As of  December 31, 2019, we are a geographically diversified operator of 29 wholly owned gaming entertainment properties. Headquartered in Las Vegas, Nevada, we have gaming operations in Nevada, Illinois, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Ohio and Pennsylvania. For financial reporting purposes, we aggregate our properties in order to present the following three reportable segments:

 

Las Vegas Locals

   

Gold Coast Hotel and Casino

 

Las Vegas, Nevada

The Orleans Hotel and Casino

 

Las Vegas, Nevada

Sam's Town Hotel and Gambling Hall

 

Las Vegas, Nevada

Suncoast Hotel and Casino

 

Las Vegas, Nevada

Eastside Cannery Casino and Hotel

 

Las Vegas, Nevada

Aliante Casino + Hotel + Spa

 

North Las Vegas, Nevada

Cannery Casino Hotel

 

North Las Vegas, Nevada

Eldorado Casino

 

Henderson, Nevada

Jokers Wild Casino

 

Henderson, Nevada

Downtown Las Vegas

   

California Hotel and Casino

 

Las Vegas, Nevada

Fremont Hotel and Casino

 

Las Vegas, Nevada

Main Street Station Casino, Brewery and Hotel

 

Las Vegas, Nevada

Midwest & South

   

Par-A-Dice Hotel and Casino

 

East Peoria, Illinois

Belterra Casino Resort

 

Florence, Indiana

Blue Chip Casino, Hotel & Spa

 

Michigan City, Indiana

Diamond Jo Dubuque

 

Dubuque, Iowa

Diamond Jo Worth

 

Northwood, Iowa

Kansas Star Casino

 

Mulvane, Kansas

Amelia Belle Casino

 

Amelia, Louisiana

Delta Downs Racetrack Casino & Hotel

 

Vinton, Louisiana

Evangeline Downs Racetrack and Casino

 

Opelousas, Louisiana

Sam's Town Hotel and Casino

 

Shreveport, Louisiana

Treasure Chest Casino

 

Kenner, Louisiana

IP Casino Resort Spa

 

Biloxi, Mississippi

Sam's Town Hotel and Gambling Hall

 

Tunica, Mississippi

Ameristar Casino Hotel Kansas City

 

Kansas City, Missouri

Ameristar Casino Report Spa St. Charles

 

St. Charles, Missouri

Belterra Park

 

Cincinnati, Ohio

Valley Forge Casino Resort

 

King of Prussia, Pennsylvania

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Our Midwest & South segment includes the results of Valley Forge Convention Center, L.P. ("Valley Forge"), which was acquired in September 2018, Ameristar Casino Kansas City, LLC ("Ameristar Kansas City"), Ameristar Casino St. Charles, LLC ("Ameristar St. Charles"), Belterra Resort Indiana LLC ("Belterra Resort"), PNK (Ohio), LLC ("Belterra Park"), which were acquired in October 2018, and Lattner Entertainment Group Illinois, LLC, our Illinois distributed gaming operator ("Lattner") which was acquired in June 2018, from the date of their respective acquisitions (see Note 2, Acquisitions and Divestitures).

 

In addition to these properties, we own and operate a travel agency and a captive insurance company that underwrites travel-related insurance, each located in Hawaii. Financial results for our travel agency and our captive insurance company are included in our Downtown Las Vegas segment, as our Downtown Las Vegas properties concentrate significant marketing efforts on gaming customers from Hawaii.

 

Basis of Presentation

The consolidated financial statements include the accounts of the Company and its subsidiaries.

 

Investments in unconsolidated affiliates, which are 50% or less owned and do not meet the consolidation criteria of the authoritative accounting guidance for voting interest, controlling interest or variable interest entities, are accounted for under the equity method.

 

All significant intercompany accounts and transactions have been eliminated in consolidation.

 

Discontinued Operations

On August 1, 2016, Boyd Gaming completed the sale of its 50% equity interest in the parent company of Borgata in Atlantic City, New Jersey, to MGM Resorts International ("MGM") pursuant to the Purchase Agreement entered into on May 31, 2016, as amended on July 19, 2016 by and among Boyd, Boyd Atlantic City, Inc., a wholly owned subsidiary of Boyd, and MGM. (See Note 2, Acquisitions and Divestitures.) We accounted for our investment in Borgata by applying the equity method and reported its results as discontinued operations for all periods presented in these consolidated financial statements.

 

Cash and Cash Equivalents

Cash and cash equivalents include highly liquid investments, which include cash on hand and in banks, interest-bearing deposits and money market funds with maturities of three months or less at their date of purchase. The instruments are not restricted as to withdrawal or use and are on deposit with high credit quality financial institutions. Although these balances may at times exceed the federal insured deposit limit, we believe such risk is mitigated by the quality of the institution holding such deposit. The carrying values of these instruments approximate their fair values as such balances are generally available on demand.

 

Restricted Cash

Restricted cash consists primarily of advance payments related to: (i) future bookings with our Hawaiian travel agency; and (ii) amounts restricted by regulation for gaming and racing purposes. These restricted cash balances are invested in highly liquid instruments with a maturity of 90 days or less. These restricted cash balances are held by high credit quality financial institutions. The carrying value of these instruments approximates their fair value due to their short maturities.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

The following table provides a reconciliation of cash, cash equivalents and restricted cash balances reported within the consolidated balance sheets to the total balance shown in the consolidated statements of cash flows.

 

   

December 31,

   

December 31,

   

December 31,

   

December 31,

 

(In thousands)

 

2019

   

2018

   

2017

   

2016

 

Cash and cash equivalents

  $ 249,977     $ 249,417     $ 203,104     $ 193,862  

Restricted cash

    20,471       23,785       24,175       16,488  

Total cash, cash equivalents and restricted cash

  $ 270,448     $ 273,202     $ 227,279     $ 210,350  

 

Accounts Receivable, net

Accounts receivable consist primarily of casino, hotel and other receivables. Accounts receivable are typically non-interest bearing and are initially recorded at cost. Accounts are written off when management deems the account to be uncollectible, based upon historical collection experience, the age of the receivable and other relevant economic factors. An estimated allowance for doubtful accounts is maintained to reduce our receivables to their carrying amount. As a result, the net carrying value approximates fair value.

 

The activity comprising our allowance for doubtful accounts is as follows:

 

   

Year Ended December 31,

 

(In thousands)

 

2019

   

2018

   

2017

 

Beginning balance, January 1,

  $ 3,607     $ 2,072     $ 1,971  

Additions due to Acquisitions

    —       1,425       —  

Additions

    929       180       478  

Deductions

    (62 )     (70 )     (377 )

Ending balance, December 31,

  $ 4,474     $ 3,607     $ 2,072  

 

Inventories

Inventories consist primarily of food & beverage and retail items and are stated at the lower of cost or market. Cost is determined using the weighted-average inventory method.

 

Property and Equipment, net

Property and equipment are stated at cost. Depreciation is computed using the straight-line method over the estimated useful lives of the assets or, for leasehold improvements, over the shorter of the asset's useful life or term of the lease.

 

The estimated useful lives of our major components of property and equipment are:

 

Building and improvements

3 through 40 years

Riverboats and barges

5 through 40 years

Furniture and equipment

1 through 10 years

 

Gains or losses on disposals of assets are recognized as incurred. Costs of major improvements are capitalized, while costs of normal repairs and maintenance are charged to expense as incurred.

 

For an asset that is held for sale, we recognize the asset at the lower of carrying value or fair market value, less costs of disposal, as estimated based on comparable asset sales, solicited offers, or a discounted cash flow model. For a long-lived asset to be held and used, we review the asset for impairment whenever events or changes in circumstances indicate that the carrying amount may not be recoverable. We then compare the estimated undiscounted future cash flows of the asset to the carrying value of the asset. The asset is not impaired if the undiscounted future cash flows exceed its carrying value. If the carrying value exceeds the undiscounted future cash flows, then an impairment charge is recorded, typically measured using a discounted cash flow model, which is based on the estimated future results of the relevant reporting unit discounted using our weighted-average cost of capital and market indicators of terminal year free cash flow multiples. All resulting recognized impairment charges are recorded as Impairment of assets within operating expenses.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Capitalized Interest

Interest costs associated with major construction projects are capitalized as part of the cost of the constructed assets. When no debt is incurred specifically for a project, interest is capitalized on amounts expended for the project using our weighted-average cost of borrowing. Capitalization of interest ceases when the project (or discernible portions of the project) is substantially complete. If substantially all of the construction activities of a project are suspended, capitalization of interest will cease until such activities are resumed. There was no interest capitalized for the years ended  December 31, 2019, 2018 and 2017.

 

Investment in Available for Sale Securities

We have an investment in $19.5 million aggregate principal amount of 7.5% Urban Renewal Tax Increment Revenue Bonds, Taxable Series 2007 ("City Bonds"). This investment is classified as available-for-sale and is recorded at fair value. The fair value at December 31, 2019 and 2018 was $16.2 million and $15.8 million, respectively. At  December 31, 2019 and 2018, $0.6 million and $0.5 million is included in prepaid expenses and other current assets, respectively, and $15.6 million and $15.3 million, respectively, is included in other assets, net.

 

Future maturities of the City Bonds, excluding the discount, for the years ending December 31 are summarized as follows:

 

(In thousands)

       

For the year ending December 31,

       

2020

  $ 550  

2021

    590  

2022

    635  

2023

    680  

2024

    730  

Thereafter

    16,350  

Total

  $ 19,535  

 

Intangible Assets

Intangible assets include customer relationships, host agreements, development agreements, gaming license rights and trademarks.

 

Amortizing Intangible Assets

Customer relationships represent the value of repeat business associated with our customer loyalty programs and are being amortized on an accelerated method over their approximate useful life. Host agreements represent the value associated with our host establishment relationships and are being amortized on a straight-line basis over 15 years. Development agreements are contracts between two parties establishing an agreement for development of a product or service. These agreements are amortized over the respective cash flow period of the related agreement.

 

Indefinite-Lived Intangible Assets

Trademarks are based on the value of our brands, which reflect the level of service and quality we provide and from which we generate repeat business. Gaming license rights represent the value of the license to conduct gaming in certain jurisdictions, which is subject to highly extensive regulatory oversight, and a limitation on the number of licenses available for issuance therein. These assets, considered indefinite-lived intangible assets, are not subject to amortization, but instead are subject to an annual impairment test, and between annual test dates in certain circumstances. If the fair value of an indefinite-lived intangible asset is less than its carrying amount, an impairment loss is recognized equal to the difference. License rights are tested for impairment using a discounted cash flow approach, and trademarks are tested for impairment using the relief-from-royalty method.

 

Goodwill

Goodwill is an asset representing the future economic benefits arising from other assets in a business combination that are not individually identified and separately recognized. Goodwill is not subject to amortization, but it is subject to an annual impairment test and between annual test dates in certain circumstances.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

We evaluate goodwill using a weighted average allocation of both the income and market approach models. The income approach is based upon a discounted cash flow method, whereas the market approach uses the guideline public company method. Specifically, the income approach focuses on the expected cash flow of the subject reporting unit, considering the available cash flow for a finite period of years. Available cash flow is defined as the amount of cash that could be distributed as a dividend without impairing the future profitability or operations of the reporting unit. The underlying premise of the income approach is that the value of goodwill can be measured by the present value of the net economic benefit to be received over the life of the reporting unit. The market approach focuses on comparing the reporting unit to selected reasonably similar (or "guideline") publicly-traded companies. Under this method, valuation multiples are: (i) derived from the operating data of selected guideline companies; (ii) evaluated and adjusted based on the strengths and weaknesses of our reporting unit relative to the selected guideline companies; and (iii) applied to the operating data of our reporting unit to arrive at an indication of value. The application of the market approach results in an estimate of the price reasonably expected to be realized from the sale of the subject reporting unit.

 

Player Loyalty Point Program

We have established promotional programs to encourage repeat business from frequent and active slot machine customers and other patrons. Members earn points based on gaming activity and such points can be redeemed for complimentary slot play, food & beverage, and other free goods and services. We record points earned based on the value of a point that can be redeemed for a hotel room, food & beverage or other items. The player loyalty point program accrual is deferred and recognized as revenue when the customer redeems the points for a hotel room stay, for food & beverage or for other amenities and is included in accrued liabilities on our consolidated balance sheets.

 

Long-Term Debt, Net

Long-term debt, net is reported as the outstanding debt amount net of amortized cost. Any unamortized debt issuance costs, which include legal and other direct costs related to the issuance of our outstanding debt, or discount granted to the initial purchasers or lenders upon issuance of our debt instruments is recorded as a direct reduction to the face amount of our outstanding debt. The debt issuance costs and discount are accreted to interest expense using the effective interest method over the contractual term of the underlying debt. In the event that our debt is modified, repurchased or otherwise reduced prior to its original maturity date, we ratably reduce the unamortized debt issuance costs and discount and record a loss on extinguishment of debt.

 

Income Taxes

Income taxes are recorded under the asset and liability method, whereby deferred tax assets and liabilities are recognized based on the future tax consequences attributable to temporary differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. We reduce the carrying amounts of deferred tax assets by a valuation allowance, if based on the available evidence it is more likely than not that such assets will not be realized. Use of the term "more likely than not" indicates the likelihood of occurrence is greater than 50%. Accordingly, the need to establish valuation allowances for deferred tax assets is continually assessed based on a more-likely-than-not realization threshold. This assessment considers, among other matters, the nature, frequency and severity of current and cumulative losses, forecasts of profitability, the duration of statutory carryforward periods, our experience with the utilization of operating loss and tax credit carryforwards before expiration and tax planning strategies. In making such judgments, significant weight is given to evidence that can be objectively verified.

 

Other Long-Term Tax Liabilities

The Company's income tax returns are subject to examination by the Internal Revenue Service ("IRS") and other tax authorities in the locations where it operates. The Company assesses potentially unfavorable outcomes of such examinations based on accounting standards for uncertain income taxes, which prescribe a minimum recognition threshold a tax position is required to meet before being recognized in the financial statements.

 

Uncertain tax position accounting standards apply to all tax positions related to income taxes. These accounting standards utilize a two-step approach for evaluating tax positions. Recognition occurs when the Company concludes that a tax position, based on its technical merits, is more likely than not to be sustained upon examination. Measurement is only addressed if the position is deemed to be more likely than not to be sustained. The tax benefit is measured as the largest amount of benefit that is more likely than not to be realized upon settlement.

 

Tax positions failing to qualify for initial recognition are recognized in the first subsequent interim period that they meet the "more likely than not" standard. If it is subsequently determined that a previously recognized tax position no longer meets the "more likely than not" standard, it is required that the tax position is derecognized. Accounting standards for uncertain tax positions specifically prohibit the use of a valuation allowance as a substitute for derecognition of tax positions. As applicable, the Company will recognize accrued penalties and interest related to unrecognized tax benefits in the provision for income taxes. Accrued interest and penalties are included in other long-term tax liabilities on the balance sheet.

 

Self-Insurance Reserves

We are self-insured for various insurance coverages such as property, general liability, employee health and workers' compensation costs with the appropriate levels of deductibles and retentions. Insurance claims and reserves include accruals of estimated settlements for known claims, as well as accruals of estimates for claims incurred but not yet reported. In estimating these accruals, we consider historical loss experience and make judgments about the expected levels of costs per claim. Management believes the estimates of future liability are reasonable based upon our methodology; however, changes in health care costs, accident frequency and severity and other factors could materially affect the estimate for these liabilities. Certain of these claims represent obligations to make future payments; and therefore, we discount such reserves to an amount representing the present value of the claims which will be paid in the future using a blended rate, which represents the inherent risk and the average payout duration. Self-insurance reserves are included in other liabilities on our consolidated balance sheets.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

The activity comprising our self-insurance reserves is as follows:

 

   

Year Ended December 31,

 

(In thousands)

 

2019

   

2018

   

2017

 

Beginning balance, January 1,

  $ 37,501     $ 33,995     $ 31,022  

Additions

                       

Charged to costs and expenses

    121,075       90,299       84,209  

Due to acquisitions

    —       3,279       —  

Payments made

    (114,972 )     (90,072 )     (81,236 )

Ending balance, December 31,

  $ 43,604     $ 37,501     $ 33,995  

 

Accumulated Other Comprehensive Income (Loss)

Comprehensive income includes net income and other comprehensive income (loss). Components of the Company's comprehensive income are reported in the accompanying consolidated statements of changes in stockholders' equity and consolidated statements of comprehensive income. The accumulated other comprehensive income (loss) at December 31, 2019, consists of unrealized gains and losses on the investment available for sale resulting from changes in fair value.

 

Noncontrolling Interest

Noncontrolling interest represented the ownership interest in one of our subsidiaries that was held by a third party. During 2017, the joint venture in which we held an 80% interest was dissolved, thus eliminating the noncontrolling interest.

 

Leases

Management determines if a contract is or contains a lease at inception or modification of a contract. A contract is or contains a lease if the contract conveys the right to control the use of an identified asset for a period in exchange for consideration. Control over the use of the identified asset means the lessee has both (a) the right to obtain substantially all of the economic benefits from the use of the asset and (b) the right to direct the use of the asset. Operating lease liabilities are recognized based on the present value of the remaining lease payments, discounted using the discount rate for the lease at the commencement date. For our operating leases for which the rate implicit in the lease is not readily determinable, we generally use an incremental borrowing rate based on information available at the commencement date to determine the present value of future lease payments. Operating right-of-use ("ROU") assets and finance lease assets are generally recognized based on the amount of the initial measurement of the lease liability. Lease expense is recognized on a straight-line basis over the lease term. Our lease terms may include options to extend or terminate the lease when it is reasonably certain that we will exercise that option. Lease and non-lease components are accounted for separately.

 

Operating leases are included in operating lease right-of-use assets, accrued liabilities and operating lease liabilities on our consolidated balance sheets.

 

Revenue Recognition

The Company’s revenue contracts with customers consist of gaming wagers, hotel room sales, food & beverage offerings and other amenity transactions. The transaction price for a gaming wagering contract is the difference between gaming wins and losses, not the total amount wagered. Cash discounts, commissions and other cash incentives to customers related to gaming play are recorded as a reduction of gaming revenues. The transaction price for hotel, food & beverage and other contracts is the net amount collected from the customer for such goods and services. Hotel, food & beverage and other services have been determined to be separate, stand-alone performance obligations and the transaction price for such contracts is recorded as revenue as the good or service is transferred to the customer over their stay at the hotel, when the delivery is made for the food & beverage or when the service is provided for other amenity transactions.

 

Gaming wager contracts involve two performance obligations for those customers earning points under the Company’s player loyalty programs and a single performance obligation for customers who do not participate in the programs. The Company applies a practical expedient by accounting for its gaming contracts on a portfolio basis as such wagers have similar characteristics and the Company reasonably expects the effects on the financial statements of applying the revenue recognition guidance to the portfolio to not differ materially from that which would result if applying the guidance to an individual wagering contract. For purposes of allocating the transaction price in a wagering contract between the wagering performance obligation and the obligation associated with the loyalty points earned, the Company allocates an amount to the loyalty point contract liability based on the stand-alone selling price of the points earned, which is determined by the value of a point that can be redeemed for a hotel room stay, food & beverage or other amenities. Sales and usage-based taxes are excluded from revenues. An amount is allocated to the gaming wager performance obligation using the residual approach as the stand-alone price for wagers is highly variable and no set established price exists for such wagers. The allocated revenue for gaming wagers is recognized when the wagers occur as all such wagers settle immediately. The loyalty point contract liability amount is deferred and recognized as revenue when the customer redeems the points for a hotel room stay, food & beverage or other amenities and such goods or services are delivered to the customer. See Note 6, Accrued Liabilities, for the balance outstanding related to player loyalty programs.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

The Company collects advanced deposits from hotel customers for future reservations representing obligations of the Company until the hotel room stay is provided to the customer. See Note 6, Accrued Liabilities, for the balance outstanding related to advance deposits.

 

The Company's outstanding chip liability represents the amounts owned in exchange for gaming chips held by a customer. Outstanding chips are expected to be recognized as revenue or redeemed for cash within one year of being purchased. See Note 6, Accrued Liabilities, for the balance outstanding related to the chip liability.

 

The retail value of hotel accommodations, food & beverage, and other services furnished to guests without charge is recorded as departmental revenues. Gaming revenues are net of incentives earned in our slot bonus program such as cash and the estimated retail value of goods and services (such as complimentary rooms and food & beverages). We reward customers, through the use of bonus programs, with points based on amounts wagered that can be redeemed for a specified period of time for complimentary slot play, food & beverage, and to a lesser extent for other goods or services, depending upon the property.

 

The estimated retail value related to goods and services provided to customers without charge or upon redemption of points under our player loyalty programs, included in departmental revenues, and therefore reducing our gaming revenues, are as follows:

 

   

Year Ended December 31,

 

(In thousands)

 

2019

   

2018

   

2017

 

Food & beverage

  $ 215,989     $ 182,960     $ 171,904  

Rooms

    96,296       81,671       76,565  

Other

    14,908       11,939       10,900  

 

Gaming Taxes

We are subject to taxes based on gross gaming revenues in the jurisdictions in which we operate. These gaming taxes are assessed based on our gaming revenues and are recorded as a gaming expense in the consolidated statements of operations. These taxes totaled approximately $546.7 million, $367.5 million and $324.5 million for the years ended December 31, 2019, 2018 and 2017, respectively.

 

Advertising Expense

Direct advertising costs are expensed the first time such advertising appears. Advertising costs are included in selling, general and administrative expenses on the consolidated statements of operations and totaled $44.7 million, $33.7 million and $29.9 million for the years ended December 31, 2019, 2018 and 2017, respectively.

 

Corporate Expense

Corporate expense represents unallocated payroll, professional fees, aircraft costs and various other expenses that are not directly related to our casino hotel operations.

 

Project Development, Preopening and Writedowns

Project development, preopening and writedowns represent: (i) certain costs incurred and recoveries realized related to the activities associated with various acquisition opportunities, strategic initiatives, dispositions and other business development activities in the ordinary course of business; (ii) certain costs of start-up activities that are expensed as incurred and do not qualify as capital costs; and (iii) asset write-downs.

 

Share-Based Compensation

Share-based compensation expense is measured at the grant date, based on the estimated fair value of the award, and is recognized as expense, net of estimated forfeitures, over the employee's requisite service period. The requisite service period can be impacted by the provisions of the Company’s stock compensation programs that provide for automatic vesting acceleration upon retirement (including as a result of death or disability) for those long-service participants achieving defined age and years of service criteria. These acceleration provisions do not apply to stock grants and awards issued within six months of the employee’s retirement. Compensation costs related to stock option awards are calculated based on the fair value of each major option grant on the date of the grant using the Black-Scholes option pricing model, which requires the following assumptions: expected stock price volatility, risk-free interest rates, expected option lives and dividend yields. We formed our assumptions using historical experience and observable market conditions.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

The Company did not issue any stock option grants in 2019, 2018 and 2017. 

 

Net Income per Share

Basic net income per share is computed by dividing net income by the weighted-average number of common shares outstanding during the period. Diluted earnings per share reflects the additional dilution for all potentially-dilutive securities, such as stock options.

 

Concentration of Credit Risk

Financial instruments that subject us to credit risk consist of cash equivalents and accounts receivable.

 

Our policy is to limit the amount of credit exposure to any one financial institution, and place investments with financial institutions evaluated as being creditworthy, or in short-term money market and tax-free bond funds which are exposed to minimal interest rate and credit risk. We have bank deposits that may at times exceed federally-insured limits.

 

Concentration of credit risk, with respect to gaming receivables, is limited through our credit evaluation process. We issue markers to approved gaming customers only following credit checks and investigations of creditworthiness.

 

Use of Estimates

The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from these estimates.

 

Recently Adopted Accounting Pronouncements

ASU 2019-04, Codification Improvements to Topic 326, Financial Instruments-Credit Losses, Topic 815, Derivatives and Hedging, and Topic 825, Financial Instruments ("Update 2019-04") and ASU 2019-05, Financial Instruments - Credit Losses ("Update 2019-05")

In April and May 2019, the FASB issued Update 2019-04 and Update 2019-05, respectively, to provide clarification and corrections to ASU 2016-13, Financial Instruments - Credit Losses: Measurement of Credit Losses on Financial Instruments ("Update 2016-13"). Update 2019-04 and Update 2019-05, along with Update 2016-13, are effective for financial statements issued for annual periods and interim periods within those annual periods beginning after December 15, 2019, and early adoption is permitted. The Company adopted Update 2019-04, Update 2019-05 and Update 2016-13 during 2019 and the impact of the new standards to its consolidated financial statements was not material.

 

ASU 2016-02, Leases ("Update 2016-02"); ASU 2018-10, Targeted Improvements ("Update 2018-10"); ASU 2018-01, Land Easement Practical Expedient for Transition to Topic 842 ("Update ASU 2018-01"); ASU 2018-11, Codification Improvements to Topic 842, Leases ("Update 2018-11"); ASU 2019-01, Codification Improvements to Topic 842, Leases ("Update 1901-01") (collectively, the “Lease Standard”)

The Lease Standard provides for transparency and comparability among organizations by requiring the recognition of lease assets and lease liabilities on the balance sheet and the disclosure of key information about leasing arrangements to enable users of financial statements to assess the amount, timing, and uncertainty of cash flows arising from leases.

 

The Company adopted the Lease Standard effective January 1, 2019, using the modified retrospective approach, which allows the initial application of the new guidance as of the adoption date without adjusting comparative periods presented. We elected the package of practical expedients for leases that commenced prior to the adoption date whereby we elected to not reassess (i) whether any expired or existing contracts contain leases; (ii) the lease classification for any expired or existing leases; and (iii) initial direct costs for any existing leases. We also made an accounting policy election that leases with an initial term of 12 months or less are not recognized on our consolidated balance sheet. Adoption of the Lease Standard resulted in the recognition of $935.1 million of ROU assets and $921.8 million of lease liabilities on our consolidated balance sheet as of the date of adoption, primarily related to land, buildings and office space. The difference of $13.3 million represented the reclassification of the remaining balance of favorable lease rates intangible assets and deferred rent for leases that existed as of the date of adoption, which were additions to the opening balance of right-of-use assets. The adoption of the Lease Standard did not have a material impact on our consolidated statements of income, stockholders’ equity and cash flows.

 

See Note 10, Leases, for further information regarding our leases.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

A variety of proposed or otherwise potential accounting standards are currently being studied by standard-setting organizations and certain regulatory agencies. Because of the tentative and preliminary nature of such proposed standards, we have not yet determined the effect, if any, that the implementation of such proposed standards would have on our consolidated financial statements.

 

 

NOTE 2.    ACQUISITIONS AND DIVESTITURES

Ameristar Casino Hotel Kansas City; Ameristar Casino Resort Spa St. Charles; Belterra Casino Resort; Belterra Park

On October 15, 2018, we completed the acquisition of Ameristar Kansas City, the owner and operator of Ameristar Casino Hotel Kansas City; Ameristar St. Charles, the owner and operator of Ameristar Casino Resort Spa St. Charles; Belterra Resort, the owner and operator of Belterra Casino Resort located in Florence, Indiana; and Belterra Park, the owner and operator of Belterra Park, located in Cincinnati, Ohio (collectively, the "Pinnacle Properties"), pursuant to a Membership Interest Purchase Agreement (as amended, the "Pinnacle Purchase Agreement"), dated as of December 17, 2017, as amended as of January 29, 2018 ("Amendment No. 1") and October 15, 2018 ("Amendment No. 2"), in each case by and among Boyd Gaming, Boyd TCIV, LLC, a wholly owned subsidiary of Boyd Gaming ("Boyd TCIV"), Penn National Gaming, Inc. ("Penn"), and, solely following the execution and delivery of a joinder to the Pinnacle Purchase Agreement, Pinnacle Entertainment, Inc. ("Pinnacle Entertainment") and its wholly owned subsidiary, Pinnacle MLS, LLC (collectively with Pinnacle Entertainment, "Pinnacle").

 

Pursuant to the Pinnacle Purchase Agreement, Boyd Gaming acquired from Pinnacle all of the issued and outstanding membership interests of the Pinnacle Properties as well as certain other assets (and assumed certain other liabilities) of Pinnacle related to the Pinnacle Properties (collectively, the "Pinnacle Acquisition"). Each of the Pinnacle Properties is now a wholly owned subsidiary of Boyd Gaming. The Pinnacle Properties are aggregated into our Midwest & South segment (See Note 14, Segment Information). The net purchase price was $576.1 million.

 

Pursuant to the Pinnacle Purchase Agreement, Boyd TCIV entered into a Master Lease, dated October 15, 2018 (the "Master Lease"), with Gold Merger Sub, LLC ("Gold Merger Sub"), as landlord, and Boyd TCIV, as tenant, pursuant to which the landlord agreed to lease to Boyd TCIV the facilities associated with Ameristar Kansas City, Ameristar St. Charles, Belterra Resort and Ogle Haus, LLC, a wholly owned subsidiary of Belterra Resort ("Ogle Haus"), commencing on October 15, 2018 and ending on April 30, 2026 as the initial term, with options for renewal.

 

The Pinnacle Acquisition occurred substantially concurrently with the acquisition of Pinnacle Entertainment by Penn pursuant to the Merger Agreement, dated December 17, 2017, by and among Pinnacle Entertainment, Penn and Franchise Merger Sub, Inc., a wholly owned subsidiary of Penn.

 

Concurrently with the Pinnacle Acquisition, Boyd (Ohio) PropCo, LLC, a wholly owned subsidiary of Boyd TCIV ("Boyd PropCo"), acquired the real estate associated with Belterra Park in Cincinnati, Ohio (the "Belterra Park Real Property Sale") utilizing mortgage financing from a subsidiary of Gaming and Leisure Properties, Inc. ("GLPI"), pursuant to a purchase agreement, dated December 17, 2017 ("Belterra Park Purchase Agreement"), by and among Penn, Gold Merger Sub, a wholly owned subsidiary of GLPI, Belterra Park and Pinnacle Entertainment, and a Novation and Amendment Agreement, dated October 15, 2018 (the "Novation Agreement"), by and among Penn, Gold Merger Sub, Boyd PropCo, Belterra Park and Pinnacle Entertainment. Pursuant to the Novation Agreement, Gold Merger Sub, the original purchaser under the Belterra Park Purchase Agreement, assigned, transferred and conveyed to Boyd PropCo and Boyd PropCo accepted Gold Merger Sub’s rights, title and interest in the Belterra Park Purchase Agreement.

 

Consideration Transferred

The total gross cash consideration paid to acquire the Pinnacle Properties was $615.1 million.

 

Status of Purchase Price Allocation

The Company followed the acquisition method of accounting per FASB Accounting Standards Codification Topic 805 ("ASC 805") guidance. In accordance with ASC 805, we have allocated the purchase price to the assets acquired and the liabilities assumed based on their fair values as determined by management with the assistance from third-party specialists. The excess of the purchase price over those fair values was recorded as goodwill. The purchase price allocation below represents the Pinnacle Properties opening balance sheet on October 15, 2018, which was reported in our Form 10-K for the annual period ended December 31, 2018. During the measurement period, which ended on September 30, 2019, opening balance sheet adjustments were made to finalize the preliminary fair value estimates, resulting in a $0.4 million decrease in current assets, a $36.7 million decrease in property and equipment, a $39.0 million increase in intangible assets and a $0.2 million decrease in current liabilities, with a corresponding increase of $5.8 million to goodwill. The tax impact related to the measurement period adjustments was considered immaterial to our consolidated financial statements. 

 

 
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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

The following table presents the components of the allocation of the purchase price as of the acquisition date, including the measurement period adjustments:

 

    Preliminary Allocation                

(In thousands)

 

as of December 31, 2018

 

Adjustments

   

Final Purchase Price Allocation

 

Current assets

  $ 64,604   $ (443 )   $ 64,161  

Property and equipment

    167,000     (36,694 )     130,306  

Other assets

    (28 )   —       (28 )

Intangible assets

    415,400     39,000       454,400  

Total acquired assets

    646,976     1,863       648,839  
                       

Current liabilities

    54,585     (151 )     54,434  

Other liabilities

    57,832     —       57,832  

Total liabilities assumed

    112,417     (151 )     112,266  

Net identifiable assets acquired

    534,559     2,014       536,573  

Goodwill

    72,740     5,820       78,560  

Net assets acquired

  $ 607,299   $ 7,834     $ 615,133  

 

The following table summarizes the final values assigned to acquired property and equipment and estimated useful lives:
 

(In thousands)

 

Useful Lives (in years)

   

As Recorded

 

Land

        $ 4,395  

Buildings and improvements

 

15 - 40

      56,054  

Furniture and equipment

 

2 - 10

      69,857  

Property and equipment acquired

        $ 130,306  

 

The following table summarizes the acquired intangible assets and weighted average useful lives of definite-lived intangible assets.

 

(In thousands)

 

Useful Lives (in years)

   

As Recorded

 

Customer relationship

  4     $ 42,600  

Trademark

 

Indefinite

      42,300  

Gaming license right

 

Indefinite

      369,500  

Total intangible assets acquired

        $ 454,400  

 

The goodwill recognized is the excess of the purchase price over the final values assigned to the assets acquired and liabilities assumed. All of the goodwill was assigned to the Midwest & South reportable segment and is expected to be deductible for income tax purposes.

 

The Company recognized $2.4 million, $14.5 million and $2.0 million of acquisition related costs that were expensed for the years ended December 31, 2019, 2018 and 2017, respectively. These costs are included in the Project development, preopening and writedowns line in the consolidated statements of operations.

 

Condensed Consolidated Statement of Operations for the year ended December 31, 2019 and the period from October 15, 2018 through December 31, 2018 

The following supplemental information presents the financial results of the Pinnacle Properties included in the Company's consolidated statement of operations for the year ended December 31, 2019 and the period from October 15, 2018 through December 31, 2018:

 

   

Year Ended

   

October 15 to

 

(In thousands)

 

December 31, 2019

   

December 31, 2018

 

Total revenues

  $ 671,900     $ 138,189  

Net income

  $ 59,740     $ 1,641  

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Valley Forge Convention Center Partners

On September 17, 2018, we completed the acquisition of Valley Forge, the owner and operator of Valley Forge Casino Resort, pursuant to an Agreement and Plan of Merger (as amended, the "Valley Forge Merger Agreement"), dated as of December 20, 2017, as amended as of September 17, 2018, in each case by and among Boyd, Boyd TCV, LP, a Pennsylvania limited partnership and a wholly owned subsidiary of Boyd ("Boyd TCV"), Valley Forge, and VFCCP SR LLC, a Pennsylvania limited liability company, solely in its capacity as the representative of Valley Forge’s limited partners.

 

Pursuant to the Valley Forge Merger Agreement, Boyd TCV merged with and into Valley Forge (the "Valley Forge Merger"), with Valley Forge surviving the merger. Valley Forge is now a wholly owned subsidiary of Boyd. Valley Forge is a modern casino and hotel in King of Prussia, Pennsylvania that offers premium accommodations, gaming, dining, entertainment and retail services, and is aggregated into our Midwest & South segment (See Note 14, Segment Information). The net purchase price was $264.3 million.

 

Consideration Transferred

The total gross cash consideration paid to acquire Valley Forge was $289.1 million.

 

Status of Purchase Price Allocation

The Company followed the acquisition method of accounting per ASC 805 guidance. In accordance with ASC 805, we have allocated the purchase price to the assets acquired and the liabilities assumed based on their fair values as determined by management with the assistance from third-party specialists. The excess of the purchase price over those fair values was recorded as goodwill. The purchase price allocation below represents Valley Forge's opening balance sheet on September 17, 2018, which was reported in our Form 10-K for the annual period ended December 31, 2018. During the measurement period, which concluded on September 1, 2019, opening balance sheet adjustments were made to finalize the preliminary fair value estimates, resulting in a $0.6 million decrease in current assets, a $0.6 million increase in property and equipment, a $2.4 million increase in other assets, a $12.0 million decrease in intangible assets and a $9.2 increase in other liabilities, with a corresponding increase of $16.5 million to goodwill. The measurement period adjustments and the related tax impact were immaterial to our consolidated financial statements. 

 

The following table presents the components of the allocation of the purchase price as of the acquisition date, including the measurement period adjustments:

 

   

Preliminary Allocation

           

(In thousands)

 

as of December 31, 2018

   

Adjustments

   

Final Purchase Price Allocation

 

Current assets

  $ 29,909     $ (629 )   $ 29,280  

Property and equipment

    56,500       618       57,118  

Other assets

    483       2,389       2,872  

Intangible assets

    148,600       (12,000 )     136,600  

Total acquired assets

    235,492       (9,622 )     225,870  
                         

Current liabilities

    12,968       —       12,968  

Other liabilities

    606       9,197       9,803  

Total liabilities assumed

    13,574       9,197       22,771  

Net identifiable assets acquired

    221,918       (18,819 )     203,099  

Goodwill

    69,446       16,520       85,966  

Net assets acquired

  $ 291,364     $ (2,299 )   $ 289,065  

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

The following table summarizes the final values assigned to acquired property and equipment and estimated useful lives:

 

(In thousands)

 

Useful Lives (in years)

   

As Recorded

 

Land

        $ 15,150  

Buildings and improvements

 

15 - 40

      32,908  

Furniture and equipment

 

2 - 6

      9,060  

Property and equipment acquired

        $ 57,118  

 

The following table summarizes the acquired intangible assets and weighted average useful lives of definite-lived intangible assets.

 

(In thousands)

 

Useful Lives (in years)

   

As Recorded

 

Customer relationship

 

5

    $ 16,100  

Trademark

 

Indefinite

      12,500  

Gaming license right

 

Indefinite

      108,000  

Total intangible assets acquired

        $ 136,600  

 

The goodwill recognized is the excess of the purchase price over the final values assigned to the assets acquired and liabilities assumed. All of the goodwill was assigned to the Midwest & South reportable segment and is expected to be deductible for income tax purposes.

 

The Company recognized $0.6 million, $3.6 million and $0.4 million of acquisition related costs that were expensed for the years ended December 31, 2019, 2018 and 2017, respectively. These costs are included in the Project development, preopening and writedowns line in the consolidated statements of operations.

 

Condensed Consolidated Statement of Operations for the year ended December 31, 2019 and the period from September 17, 2018 through December 31, 2018 

The following supplemental information presents the financial results of Valley Forge included in the Company's consolidated statement of operations for the year ended December 31, 2019 and the period from September 17, 2018 through December 31, 2018:

 

 

           

Period from

 
   

Year Ended

   

September 17 to

 

(In thousands)

 

December 31, 2019

   

December 31, 2018

 

Total revenues

  $ 168,610     $ 43,499  

Net income

  $ 31,286     $ 4,450  

 

Lattner Entertainment Group Illinois

On June 1, 2018, we completed the acquisition of Lattner, a distributed gaming operator headquartered in Ottawa, Illinois, pursuant to an Agreement and Plan of Merger (the "Lattner Merger Agreement") dated as of May 1, 2018, by and among Boyd, Boyd TCVI Acquisition, LLC, a wholly owned subsidiary of Boyd ("Boyd TCVI"), Lattner, and Lattner Capital, LLC, solely in its capacity as the representative of the equity holders of Lattner.

 

Pursuant to the Lattner Merger Agreement, Boyd TCVI merged with and into Lattner (the "Lattner Merger"), with Lattner surviving the Lattner Merger and becoming a wholly owned subsidiary of Boyd. Lattner currently operates approximately 1,000 gaming units in approximately 220 locations across the state of Illinois and is aggregated into our Midwest & South segment (See Note 14, Segment Information). The net purchase price was $100.0 million.

 

Consideration Transferred

The total gross cash consideration paid to acquire Lattner was $110.5 million.

 

Status of Purchase Price Allocation

The Company followed the acquisition method of accounting per ASC 805 guidance. In accordance with ASC 805, we have allocated the purchase price to the assets acquired and the liabilities assumed based on their fair values as determined by management with the assistance from third-party specialists. The excess of the purchase price over those fair values was recorded as goodwill. The purchase price allocation below represents Lattner's opening balance sheet on June 1, 2018, which was reported in our Form 10-K for the annual period ended December 31, 2018. During the measurement period, which concluded on March 31, 2019, opening balance sheet adjustments were made to finalize the preliminary fair value estimates, resulting in a $0.2 million increase in property and equipment, a $1.0 million increase in other assets, with a corresponding decrease of $1.2 million to goodwill. The measurement period adjustments and the related tax impact were immaterial to our consolidated financial statements. 

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

The following table presents the components of the allocation of the purchase price as of the acquisition date, including the measurement period adjustments:

 

   

Preliminary Allocation

               

(In thousands)

 

as of December 31, 2018

   

Adjustments

   

Final Purchase Price Allocation

 

Current assets

  $ 10,638     $ —     $ 10,638  

Property and equipment

    9,307       189       9,496  

Other assets

    1,963       970       2,933  

Intangible and other assets

    58,000       —       58,000  

Total acquired assets

    79,908       1,159       81,067  
                         

Current liabilities

    1,062       —       1,062  

Total liabilities assumed

    1,062       —       1,062  

Net identifiable assets acquired

    78,846       1,159       80,005  

Goodwill

    31,692       (1,163 )     30,529  

Net assets acquired

  $ 110,538     $ (4 )   $ 110,534  

 

The following table summarizes the final values assigned to acquired property and equipment and estimated useful lives:

 

(In thousands)

 

Useful Lives (in years)

 

As Recorded

 

Buildings and improvements

 

10 - 45

  $ 66  

Furniture and equipment

 

3 - 7

    9,430  

Property and equipment acquired

      $ 9,496  

 

The following table summarizes the acquired intangible asset and weighted average useful lives of the definite-lived intangible asset.

 

(In thousands)

 

Useful Lives (in years)

 

As Recorded

 

Host agreements

 

15

  $ 58,000  

Total intangible assets acquired

      $ 58,000  

 

The goodwill recognized is the excess of the purchase price over the final values assigned to the assets acquired and liabilities assumed. All of the goodwill was assigned to the Midwest & South reportable segment and is expected to be deductible for income tax purposes.

 

The Company recognized $0.4 million and $0.7 million of acquisition related costs that were expensed for the year ended December 31, 2019 and 2018. There were no acquisition related costs for the year ended December 31, 2017. These costs are included in the Project development, preopening and writedowns line in the consolidated statements of operations.

 

We have not provided the amount of revenue and earnings included in our consolidated financial results from the Lattner acquisition for the period subsequent to its acquisition as such amounts are not material for the year ended December 31, 2019 and the period from June 1, 2018 through December 31, 2018.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Supplemental Unaudited Pro Forma Information

The following table presents pro forma results of the Company, as though Lattner, Valley Forge and the Pinnacle Properties (the "Acquired Companies") had been acquired as of January 1, 2017. The pro forma results do not necessarily represent the results that may occur in the future. The pro forma amounts include the historical operating results of the Company, Lattner, Valley Forge and the Pinnacle Properties, prior to the acquisition, with adjustments directly attributable to the acquisitions.

 

   

Year Ended December 31, 2018

 

(In thousands)

 

Boyd Gaming Corporation (As Reported)

   

Acquired Companies

   

Boyd Gaming Corporation (Pro Forma)

 

Total revenues

  $ 2,626,730     $ 666,928     $ 3,293,658  

Net income from continuing operations, net of tax

  $ 114,701     $ 16,589     $ 131,290  

Basic net income per share

  $ 1.01             $ 1.15  

Diluted net income per share

  $ 1.00             $ 1.14  

 

 

   

Year Ended December 31, 2017

 

(In thousands)

 

Boyd Gaming Corporation (As Reported)

   

Acquired Companies

   

Boyd Gaming Corporation (Pro Forma)

 

Total revenues

  $ 2,400,819     $ 861,454     $ 3,262,273  

Net income from continuing operations, net of tax

  $ 167,998     $ 4,464     $ 172,462  

Basic net income per share

  $ 1.46             $ 1.50  

Diluted net income per share

  $ 1.45             $ 1.49  

 

Pro Forma and Other Adjustments

The unaudited pro forma results, as presented above, include adjustments to record: (i) rent expense under the Master Lease; (ii) the net incremental depreciation expense for the adjustment of property and equipment to fair value and the allocation of a portion of the purchase price to amortizing intangible assets; (iii) the increase in interest expense incurred on the incremental borrowings incurred by Boyd to fund the acquisition along with the Belterra Park Mortgage; (iv) the estimated tax effect of the pro forma adjustments and on the historical taxable income of the Acquired Companies; and (v) miscellaneous adjustments as a result of the preliminary purchase price allocation on the amortization of certain assets and liabilities.

 

Divestiture of Borgata

On August 1, 2016, Boyd Gaming completed the sale of its 50% equity interest in the parent company of Borgata in Atlantic City, New Jersey, to MGM Resorts, pursuant to the Purchase Agreement entered into on May 31, 2016, as amended on July 19, 2016, by and among Boyd, Boyd Atlantic City, Inc., a wholly-owned subsidiary of Boyd, and MGM. On February 15, 2017, Borgata announced that it had entered into a settlement agreement under which it would receive payments totaling $72 million to resolve the property tax issues. Borgata received full payment, and we received our share of the proceeds, in June 2017. For the year ended December 31, 2017, we recognized $36.2 million in income for the cash we received for our share of property tax benefits realized by Borgata after the closing of the sale. These proceeds, net of tax of $14.8 million for the year ended December 31, 2017, are included in discontinued operations in the consolidated financial statements. During the year ended December 31, 2018, we recognized $0.3 million in income, net of tax, for the cash received for our share of miscellaneous recoveries realized by Borgata during that period, which are included in discontinued operations in the consolidated financial statements.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

 

NOTE 3.    PROPERTY AND EQUIPMENT, NET

Property and equipment, net consists of the following:

 

   

December 31,

 

(In thousands)

 

2019

   

2018

 

Land

  $ 324,501     $ 316,590  

Buildings and improvements

    3,090,974       3,084,337  

Furniture and equipment

    1,596,395       1,480,917  

Riverboats and barges

    241,036       240,507  

Construction in progress

    56,069       66,752  

Total property and equipment

    5,308,975       5,189,103  

Less accumulated depreciation

    2,636,422       2,473,039  

Property and equipment, net

  $ 2,672,553     $ 2,716,064  

 

Construction in progress primarily relates to costs capitalized in conjunction with major improvements that have not yet been placed into service, and accordingly, such costs are not currently being depreciated.

 

Depreciation expense for the years ended December 31, 2019, 2018 and 2017 was $247.0 million, $212.1 million and $199.3 million, respectively.

 

 

NOTE 4.    INTANGIBLE ASSETS

Intangible assets consist of the following:

 

   

December 31, 2019

 
   

Weighted

   

Gross

           

Cumulative

         
   

Average Life

   

Carrying

   

Cumulative

   

Impairment

   

Intangible

 

(In thousands)

 

Remaining (in years)

   

Value

   

Amortization

   

Losses

   

Assets, Net

 

Amortizing intangibles

                                     

Customer relationships

  3.5     $ 68,100     $ (39,598 )   $ —     $ 28,502  

Host agreements

  13.4       58,000       (6,122 )     —       51,878  

Development agreement

  —       21,373       —       —       21,373  
            147,473       (45,720 )     —       101,753  
                                       

Indefinite lived intangible assets

                                     

Trademarks

 

Indefinite

      206,687       —       (4,300 )     202,387  

Gaming license rights

 

Indefinite

      1,376,685       (33,960 )     (179,974 )     1,162,751  
            1,583,372       (33,960 )     (184,274 )     1,365,138  

Balances, December 31, 2019

        $ 1,730,845     $ (79,680 )   $ (184,274 )   $ 1,466,891  

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

   

December 31, 2018

 
   

Weighted

   

Gross

           

Cumulative

         
   

Average Life

   

Carrying

   

Cumulative

   

Impairment

   

Intangible

 

(In thousands)

 

Remaining (in years)

   

Value

   

Amortization

   

Losses

   

Assets, Net

 

Amortizing intangibles

                                     

Customer relationships

  7.3     $ 65,400     $ (15,113 )   $ —     $ 50,287  

Host agreements

  14.4       58,000       (2,256 )     —       55,744  

Favorable lease rates

  37.0       11,730       (3,302 )     —       8,428  

Development agreement

  —       21,373       —       —       21,373  
            156,503       (20,671 )     —       135,832  
                                       

Indefinite lived intangible assets

                                     

Trademarks

 

Indefinite

      207,387       —       (4,300 )     203,087  

Gaming license rights

 

Indefinite

      1,341,685       (33,960 )     (179,974 )     1,127,751  
            1,549,072       (33,960 )     (184,274 )     1,330,838  

Balances, December 31, 2018

        $ 1,705,575     $ (54,631 )   $ (184,274 )   $ 1,466,670  

 

Amortizing Intangible Assets

Customer Relationships

Customer relationships represent the value of repeat business associated with our customer loyalty programs. The value of customer relationships is determined using a multi-period excess earnings method, which is a specific discounted cash flow model. The value is determined at an amount equal to the present value of the incremental after-tax cash flows attributable only to these customers, discounted to present value at a risk-adjusted rate of return. With respect to the application of this methodology, we used the following significant projections and assumptions: revenue of our rated customers, based on expected level of play; promotional allowances provided to these existing customers; attrition rate related to these customers; operating expenses; general and administrative expenses; trademark expense; discount rate; and the present value of tax benefit.

 

Host Agreements

Host agreements represent the value associated with our host establishment relationships. The value of host agreements is determined using a multi-period excess earnings method, which is a specific discounted cash flow model. The value is determined at an amount equal to the present value of the incremental after-tax cash flows attributable only to these establishments, discounted to present value at a risk-adjusted rate of return.

 

Favorable Lease Rates

Favorable lease rates represent the rental rates for assumed land leases that are favorable to comparable market rates. The fair value is determined on a technique whereby the difference between the lease rate and the then current market rate for the remaining contractual term is discounted to present value. The assumptions underlying this computation include the actual lease rates, the expected remaining lease term, including renewal options, based on the existing lease; current rates of rent for leases on comparable properties with similar terms obtained from market data and analysis; and an assumed discount rate. The estimates underlying the result covered a term of 41 to 52 years. This asset was reclassified and added to the operating lease right-of-use asset upon the adoption of the Lease Standard effective January 1, 2019.

 

Development Agreement

Development agreement is an acquired contract with a Native American tribe (the "Tribe") under which the Company has the right to assist the Tribe in the development and management of a gaming facility on the Tribe's land. This asset although amortizable, is not amortized until development is completed. We are in the process of finalizing project design and construction planning. In the interim, this asset is subject to periodic impairment reviews.

 

Indefinite Lived Intangible Assets

Trademarks

Trademarks are based on the value of our brands, which reflect the level of service and quality we provide and from which we generate repeat business. Trademarks are valued using the relief from royalty method, which presumes that without ownership of such trademark, we would have to make a stream of payments to a brand or franchise owner in return for the right to use their name. By virtue of this asset, we avoid any such payments and record the related intangible value of our ownership of the trade name. We used the following significant projections and assumptions to determine value under the relief from royalty method: revenue from gaming and hotel activities; royalty rate; tax expense; terminal growth rate; discount rate; and the present value of tax benefit.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Gaming License Rights

Gaming license rights represent the value of the license to conduct gaming in certain jurisdictions, which is subject to highly extensive regulatory oversight, and a limitation on the number of licenses available for issuance therein. In the majority of cases, the value of our gaming licenses is determined using a multi-period excess earnings method, which is a specific discounted cash flow model. The value is determined at an amount equal to the present value of the incremental after-tax cash flows attributable only to future gaming revenue, discounted to present value at a risk-adjusted rate of return. With respect to the application of this methodology, we used the following significant projections and assumptions: gaming revenues; gaming operating expenses; general and administrative expenses; tax expense; terminal value; and discount rate. In two instances, we determine the value of our gaming licenses by applying a cost approach. Our primary consideration in the application of this methodology is the initial statutory fee associated with acquiring a gaming license in the jurisdiction.

 

Activity for the Years Ended December 31, 2019, 2018 and 2017

The following table sets forth the changes in these intangible assets:

 

(In thousands)

 

Customer Relationships

   

Host Agreements

   

Favorable Lease Rates

   

Development Agreements

   

Trademarks

   

Gaming License Rights

   

Intangible Assets, Net

 

Balance, January 1, 2017

  $ 19,462     $ —     $ 32,331     $ 21,373     $ 149,387     $ 659,401     $ 881,954  

Additions

    —       —       —       —       —       —       —  

Purchase price adjustments

    920       —       —       —       (1,800 )     —       (880 )

Impairments

    —       —       —       —       —       —       —  

Amortization

    (14,452 )     —       (228 )     —       —       —       (14,680 )

Other (1)

    —       —       (23,448 )     —       —       —       (23,448 )

Balance, December 31, 2017

    5,930       —       8,655       21,373       147,587       659,401       842,946  

Additions

    56,000       58,000       —       —       55,500       468,350       637,850  

Impairments

    —       —       —       —       —       —       —  

Amortization

    (11,643 )     (2,256 )     (227 )     —       —       —       (14,126 )

Balance, December 31, 2018

    50,287       55,744       8,428       21,373       203,087       1,127,751       1,466,670  

Additions

    —       —       —       —       —       —       —  
Purchase price adjustments     2,700       —       —       —       (700 )     35,000       37,000  

Impairments

    —       —       —       —       —       —       —  

Amortization

    (24,485 )     (3,866 )     —       —       —       —       (28,351 )
Other (2)     —       —       (8,428 )     —       —       —       (8,428 )

Balance, December 31, 2019

  $ 28,502     $ 51,878     $ —     $ 21,373     $ 202,387     $ 1,162,751     $ 1,466,891  

 

(1) In March 2017, The Orleans Hotel and Casino exercised an option in its lease agreement to terminate the existing lease and purchase the land subject to the lease therefore combining the remaining unamortized favorable lease rate asset into the cost of the land asset.

 

(2) The remaining balance of the favorable lease rates intangible asset was reclassified and added to the operating lease right-of-use asset upon the adoption of the Lease Standard effective January 1, 2019.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Future Amortization

Customer relationships are being amortized on an accelerated basis over a weighted average original life of five years. Host agreements are being amortized on a straight-line basis over an original life of 15 years. Future amortization is as follows:

 

(In thousands)

 

Customer Relationships

   

Host Agreements

   

Total

 

For the year ending December 31,

                       

2020

  $ 15,465     $ 3,867     $ 19,332  

2021

    8,737       3,867       12,604  

2022

    3,322       3,867       7,189  

2023

    939       3,867       4,806  

2024

    39       3,867       3,906  

Thereafter

    —       32,543       32,543  

Total future amortization

  $ 28,502     $ 51,878     $ 80,380  

 

Trademarks and gaming license rights are not subject to amortization, as we have determined that they have an indefinite useful life; however, these assets are subject to an annual impairment test each year and between annual test dates in certain circumstances.

 

Impairment Considerations

No impairment charges resulted from our quarterly reviews or annual tests of intangible assets for impairment in 2019, 2018 and 2017.

 

 

NOTE 5.     GOODWILL

Goodwill consists of the following:

 

(In thousands)

 

Gross Carrying Value

   

Cumulative Amortization

   

Cumulative Impairment Losses

   

Goodwill, Net

 

Goodwill, net by Reportable Segment:

                               

Las Vegas Locals

  $ 593,567     $ —     $ (165,479 )   $ 428,088  

Downtown Las Vegas

    6,997       (6,134 )     —       863  

Midwest & South

    666,798       —       (12,462 )     654,336  

Balance, December 31, 2019

  $ 1,267,362     $ (6,134 )   $ (177,941 )   $ 1,083,287  

 

Changes in Goodwill

During the year ended December 31, 2019, we recorded $21.2 million of goodwill in our Midwest & South segment related to the Acquired Companies as the acquisition accounting was finalized in 2019 (see Note 2, Acquisitions and Divestitures). During the year ended  December 31, 2018, we recorded $173.9 million of goodwill in our Midwest & South segment related to the Acquired Companies. During the year ended December 31, 2017, we recorded $61.7 million of goodwill in our Las Vegas Locals segment related to our acquisitions of Aliante in September 2016 and Cannery and Eastside Cannery in December 2016 as the acquisition accounting was finalized in 2017.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

The following table sets forth the changes in our goodwill, net, during the years ended December 31, 2019, 2018 and 2017 .

 

(In thousands)

 

Goodwill, Net

 

Balance, January 1, 2017

  $ 826,476  

Additions

    —  

Impairments

    —  

Final purchase price adjustments

    61,748  

Balance, December 31, 2017

    888,224  

Additions

    173,878  

Impairments

    —  

Balance, December 31, 2018

    1,062,102  

Additions

    —  

Impairments

    —  

Final purchase price adjustments

    21,185  

Balance, December 31, 2019

  $ 1,083,287  

 

 

NOTE 6.    ACCRUED LIABILITIES

Accrued liabilities consist of the following:

 

   

December 31,

   

December 31,

 

(In thousands)

 

2019

   

2018

 

Payroll and related expenses

  $ 99,602     $ 85,532  

Interest

    32,239       35,734  

Gaming liabilities

    64,465       59,823  

Player loyalty program liabilities

    32,983       25,251  

Advance deposits

    22,854       21,687  

Outstanding chip liabilities

    7,394       7,449  

Dividend payable

    7,808       6,705  

Operating lease liabilities

    87,686       —  

Other accrued liabilities

    83,865       91,994  

Total accrued liabilities

  $ 438,896     $ 334,175  

 

 

NOTE 7.    LONG-TERM DEBT

Long-term debt, net of current maturities and debt issuance costs consists of the following:

 

   

December 31, 2019

 
   

Interest

                   

Unamortized

         
    Rates at                     Origination          
   

December 31,

   

Outstanding

   

Unamortized

   

Fees and

   

Long-Term

 

(In thousands)

 

2019

   

Principal

   

Discount

   

Costs

   

Debt, Net

 

Bank credit facility

  3.753 %   $ 1,305,634     $ (671 )   $ (14,255 )   $ 1,290,708  

6.375% senior notes due 2026

  6.375 %     750,000       —       (8,271 )     741,729  

6.000% senior notes due 2026

  6.000 %     700,000       —       (9,244 )     690,756  
4.750% senior notes due 2027   4.750 %     1,000,000       —       (15,584 )     984,416  

Other

  11.138 %     58,322       —       —       58,322  

Total long-term debt

          3,813,956       (671 )     (47,354 )     3,765,931  

Less current maturities

          26,994       —       —       26,994  

Long-term debt, net

        $ 3,786,962     $ (671 )   $ (47,354 )   $ 3,738,937  

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

   

December 31, 2018

 
   

Interest

                   

Unamortized

         
    Rates at                     Origination          
   

December 31,

   

Outstanding

   

Unamortized

   

Fees and

   

Long-Term

 

(In thousands)

 

2018

   

Principal

   

Discount

   

Costs

   

Debt, Net

 

Bank credit facility

  4.651 %   $ 1,771,330     $ (1,286 )   $ (21,515 )   $ 1,748,529  

6.875% senior notes due 2023

  6.875 %     750,000       —       (7,701 )     742,299  

6.375% senior notes due 2026

  6.375 %     750,000       —       (9,594 )     740,406  

6.000% senior notes due 2026

  6.000 %     700,000       —       (10,639 )     689,361  

Other

  11.010 %     58,705       —       —       58,705  

Total long-term debt

          4,030,035       (1,286 )     (49,449 )     3,979,300  

Less current maturities

          24,181       —       —       24,181  

Long-term debt, net

        $ 4,005,854     $ (1,286 )   $ (49,449 )   $ 3,955,119  

 

Bank Credit Facility

Credit Agreement

On August 2, 2018, we entered into a Joinder Agreement (the "Joinder Agreement") to Amendment No. 2 and Refinancing Amendment (the "Credit Agreement"), among the Company, certain financial institutions and Bank of America, N.A., as administrative agent.

 

The Joinder Agreement modified the Credit Agreement solely to join additional financial institutions as lenders and to provide for (i) increased commitments under the senior secured revolving credit facility under the Credit Agreement (the “Revolving Credit Facility”) by an amount equal to $170.5 million resulting in total availability under the Revolving Credit Facility of an amount equal to $945.5 million and (ii) commitments from lenders to make additional Term A Loans (as defined in the Credit Agreement) in an amount equal to $49.5 million resulting in aggregate outstanding Term A Loans under the Credit Agreement in an amount equal to approximately $234.3 million.

 

Amounts Outstanding

The outstanding principal amounts under the Credit Facility are comprised of the following:

 

   

December 31,

   

December 31,

 

(In thousands)

 

2019

   

2018

 

Revolving Credit Facility

  $ 235,000     $ 320,000  

Term A Loan

    234,300       248,351  

Refinancing Term B Loans

    795,034       1,152,679  

Swing Loan

    41,300       50,300  

Total outstanding principal amounts under the bank credit facility

  $ 1,305,634     $ 1,771,330  

 

The Refinancing Term B Loans mature on  September 15, 2023 (or earlier upon occurrence or non-occurrence of certain events). The Revolving Credit Facility and the Term A Loan mature on  September 15, 2021 (or earlier upon occurrence or non-occurrence of certain events).

 

At  December 31, 2019 approximately $1.3 billion was outstanding under the bank credit facility. A total revolving credit commitment of $945.5 million is available to us under the bank credit facility. Of this total $235.0 million was borrowed on the Revolving Credit Facility, $41.3 million was borrowed on the Swing Loan and $12.6 million allocated to support various letters of credit, leaving the remaining contractual availability to us at  December 31, 2019, of $656.6 million.

 

Interest and Fees

The interest rate on the outstanding balance from time to time of the Revolving Credit Facility and the Term A Loan is based upon, at the Company’s option, either: (i) the Eurodollar rate or (ii) the base rate, in each case, plus an applicable margin. Such applicable margin is a percentage per annum determined in accordance with a specified pricing grid based on the total leverage ratio and ranges from 1.75% to 2.75% (if using the Eurodollar rate) and from 0.75% to 1.75% (if using the base rate). A fee of a percentage per annum (which ranges from 0.25% to 0.50% determined in accordance with a specified pricing grid based on the total leverage ratio) will be payable on the unused portions of the Revolving Credit Facility.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

The interest rate on the outstanding balance of the Refinancing Term B Loans under the Amended Credit Agreement is based upon, at the Company’s option, either: (i) the Eurodollar rate or (ii) the base rate, in each case, plus an applicable margin. Such applicable margin is a percentage per annum determined in accordance with the Company’s secured leverage ratio and ranges from 2.25% to 2.50% (if using the Eurodollar rate) and from 1.25% to 1.50% (if using the base rate).

 

The "base rate" under the Credit Agreement remains the highest of (x) Bank of America’s publicly-announced prime rate, (y) the federal funds rate plus 0.50%, or (z) the Eurodollar rate for a one-month period plus 1.00%.

 

Optional and Mandatory Prepayments

Pursuant to the terms of the Credit Facility (i) the loans under the Term A Loan amortize in an annual amount equal to 5.00% of the original principal amount thereof, commencing December 31, 2016, payable on a quarterly basis, (ii) the loans under the Refinancing Term B Loans amortize in an annual amount equal to 1.00% of the original principal amount thereof, commencing June 30, 2017, payable on a quarterly basis, and (iii) beginning with the fiscal year ending December 31, 2016, the Company is required to use a portion of its annual Excess Cash Flow, as defined in the Credit Agreement, to prepay loans outstanding under the Credit Facility.

 

Amounts outstanding under the Refinancing Amendment may be prepaid without premium or penalty, and the commitments may be terminated without penalty, subject to certain exceptions.

 

Subject to certain exceptions, the Company may be required to repay the amounts outstanding under the Credit Facility in connection with certain asset sales and issuances of certain additional secured indebtedness.

 

Guarantees and Collateral

The Company's obligations under the Credit Facility, subject to certain exceptions, are guaranteed by certain of the Company's subsidiaries and are secured by the capital stock of certain subsidiaries. In addition, subject to certain exceptions, the Company and each of the guarantors will grant the administrative agent first priority liens and security interests on substantially all of their real and personal property (other than gaming licenses and subject to certain other exceptions) as additional security for the performance of the secured obligations under the Credit Facility.

 

The Credit Facility includes an accordion feature which permits an increase in the Revolving Credit Facility and the issuance and increase of senior secured term loans in an amount up to (i) $550.0 million, plus (ii) certain voluntary permanent reductions of the Revolving Credit Facility and certain voluntary prepayments of the senior secured term loans, plus (iii) certain reductions in the outstanding principal amounts under the term loans or the Revolving Credit Facility, plus (iv) any additional amount if, after giving effect thereto, the First Lien Leverage Ratio (as defined in the Credit Agreement) would not exceed 4.25 to 1.00 on a pro forma basis, less (v) any Incremental Equivalent Debt (as defined in the Credit Agreement), in each case, subject to the satisfaction of certain conditions.

 

Financial and Other Covenants

The Credit Facility contains certain financial and other covenants, including, without limitation, various covenants: (i) requiring the maintenance of a minimum consolidated interest coverage ratio 1.75 to 1.00; (ii) establishing a maximum permitted consolidated total leverage ratio (discussed below); (iii) establishing a maximum permitted secured leverage ratio (discussed below); (iv) imposing limitations on the incurrence of indebtedness; (v) imposing limitations on transfers, sales and other dispositions; and (vi) imposing restrictions on investments, dividends and certain other payments.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

The maximum permitted consolidated Total Leverage Ratio is calculated as Consolidated Funded Indebtedness to twelve-month trailing Consolidated EBITDA, as defined by the Agreement. The following table provides our maximum Total Leverage Ratio during the remaining term of the Credit Facility:

 

   

Maximum Total

 

For the Trailing Four Quarters Ending

 

Leverage Ratio

 

March 31, 2019 through December 31, 2019

  6.00 to 1.00  

March 31, 2020 through December 31, 2020

  5.75 to 1.00  

March 31, 2021 and thereafter

  5.50 to 1.00  

 

The maximum permitted Secured Leverage Ratio is calculated as Secured Indebtedness to twelve-month trailing Consolidated EBITDA, as defined by the Agreement. The following table provides our maximum Secured Leverage Ratio during the remaining term of the Credit Facility:

 

   

Maximum Secured

 

For the Trailing Four Quarters Ending

 

Leverage Ratio

 

March 31, 2019 through December 31, 2019

  3.75 to 1.00  

March 31, 2020 and thereafter

  3.50 to 1.00  

 

Current Maturities of Our Indebtedness

We classified certain non-extending balances under our Credit Facility as a current maturity, as such amounts come due within the next twelve months.

 

Senior Notes

4.750% Senior Notes due December 2027

On December 3, 2019, we issued $1.0 billion aggregate principal amount of 4.750% senior notes due December 2027 (the "4.750% Notes"). The 4.750% Notes require semi-annual interest payments on June 1 and December 1 of each year, commencing on June 1, 2020. The 4.750% Notes will mature on December 1, 2027 and are fully and unconditionally guaranteed, on a joint and several basis, by certain of our current and future domestic restricted subsidiaries, all of which are 100% owned by us. The net proceeds from the 4.750% Notes were used to finance the redemption of all of our outstanding 6.875% senior notes due in 2023 and prepay a portion of our Refinancing Term B Loan.

 

In conjunction with the issuance of the 4.750% Notes, we incurred approximately  $15.7 million in debt financing costs that have been deferred and are being amortized over the term of the 4.750% Notes using the effective interest method.

The 4.750% Notes contain certain restrictive covenants that, subject to exceptions and qualifications, among other things, limit our ability and the ability of our restricted subsidiaries (as defined in the indenture governing the 4.750% Notes, the "4.750% Indenture") to incur additional indebtedness or liens, pay dividends or make distributions or repurchase our capital stock, make certain investments, and sell or merge with other companies. In addition, upon the occurrence of a change of control (as defined in the 4.750% Indenture), we will be required, unless certain conditions are met, to offer to repurchase the 4.750% Notes at a price equal to 101% of the principal amount of the 4.750% Notes, plus accrued and unpaid interest and Additional Interest (as defined in the 4.750% Indenture), if any, to, but not including, the date of purchase. If we sell assets, we will be required under certain circumstances to offer to purchase the 4.750% Notes.

At any time prior to December 1, 2022, we may redeem the 4.750% Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, up to, but excluding, the applicable redemption date, plus a make whole premium. After December 1, 2022, we may redeem all or a portion of the 4.750% Notes at redemption prices (expressed as percentages of the principal amount) ranging from 102.375% in 2022 to 100% in 2024 and thereafter, plus accrued and unpaid interest and Additional Interest.

In connection with the private placement of the 4.750% Notes, we entered into a registration rights agreement with the initial purchasers in which we agreed to file a registration statement with the Securities and Exchange Commission (the "SEC") to permit the holders to exchange or resell the 4.750% Notes. We must use commercially reasonable efforts to file a registration statement and to consummate an exchange offer within 365 days after the issuance of the 4.750% Notes, subject to certain suspension and other rights set forth in the registration rights agreement. Under certain circumstances, including our determination that we cannot complete an exchange offer, we are required to file a shelf registration statement for the resale of the 4.750% Notes and to cause such shelf registration statement to be declared effective as soon as reasonably practicable (but in no event later than the 365th day following the issuance of the 4.750% Notes) after the occurrence of such circumstances. Subject to certain suspension and other rights, in the event that the registration statement is not filed or declared effective within the time periods specified in the registration rights agreement, the exchange offer is not consummated within 365 days after the issuance of the 4.750% Notes, or the registration statement is filed and declared effective but thereafter ceases to be effective or is unusable for its intended purpose for a period in excess of 30 days without being succeeded immediately by a post-effective amendment that cures such failure, the agreement provides that additional interest will accrue on the principal amount of the 4.750% Notes at a rate of 0.25% per annum during the 90-day period immediately following any of these events and will increase by 0.25% per annum at the end of each subsequent 90-day period, but in no event will the penalty rate exceed 1.00% per annum, until the default is cured. There are no other alternative settlement methods and, other than the 1.00% per annum maximum penalty rate, the agreement contains no limit on the maximum potential amount of consideration that could be transferred in the event we do not meet the registration statement filing requirements. We currently intend to file a registration statement, have it declared effective and consummate any exchange offer within these time periods. Accordingly, we do not believe that payment of additional interest under the registration payment arrangement is probable and, therefore, no related liability has been recorded in the consolidated financial statements.

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

6.000% Senior Notes due August 2026

On June 25, 2018, we issued $700.0 million aggregate principal amount of 6.000% senior notes due August 2026 (the "6.000% Notes"). The 6.000% Notes require semi-annual interest payments on February 15 and August 15 of each year, commencing on August 15, 2018. The 6.000% Notes will mature on  August 15, 2026 and are fully and unconditionally guaranteed, on a joint and several basis, by certain of our current and future domestic restricted subsidiaries, all of which are or will be, as applicable, 100% owned by us. The net proceeds from the debt issuance were ultimately used to fund the acquisitions of Valley Forge and the four Pinnacle properties.

 

In conjunction with the issuance of the 6.000% Notes, we incurred approximately $11.3 million in debt financing costs that have been deferred and are being amortized over the term of the 6.000% Notes using the effective interest method.

 

The 6.000% Notes contain certain restrictive covenants that, subject to exceptions and qualifications, among other things, limit our ability and the ability of our restricted subsidiaries (as defined in the indenture governing the 6.000% Notes, the "6.000% Indenture") to incur additional indebtedness or liens, pay dividends or make distributions or repurchase our capital stock, make certain investments, and sell or merge with other companies. In addition, upon the occurrence of a change of control (as defined in the 6.000% Indenture), we will be required, unless certain conditions are met, to offer to repurchase the 6.000% Notes at a price equal to 101% of the principal amount of the 6.000% Notes, plus accrued and unpaid interest and Additional Interest (as defined in the 6.000% Indenture), if any, to, but not including, the date of purchase. If we sell assets, we will be required under certain circumstances to offer to purchase the 6.000% Notes.

 

At any time prior to August 15, 2021, we may redeem the 6.000% Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest (as defined in the indenture governing the 6.000% Notes), if any, up to, but excluding, the applicable redemption date, plus a make-whole premium. On or after August 15, 2021, we may redeem all or a portion of the 6.000% Notes at redemption prices (expressed as percentages of the principal amount) ranging from 103% in 2021 to 100% in 2024 and thereafter, plus accrued and unpaid interest and Additional Interest, if any, up to, but excluding, the applicable redemption date.

 

6.375% Senior Notes due April 2026

On March 28, 2016, we issued $750.0 million aggregate principal amount of 6.375% senior notes due April 2026 (the "6.375% Notes"). The 6.375% Notes require semi-annual interest payments on April 1 and October 1 of each year, commencing on October 1, 2016. The 6.375% Notes will mature on  April 1, 2026 and are fully and unconditionally guaranteed, on a joint and several basis, by certain of our current and future domestic restricted subsidiaries, all of which are 100% owned by us. Net proceeds from the 6.375% Notes were used to pay down the outstanding amount under the Revolving Credit Facility and the balance was deposited in money market funds and classified as cash equivalents on the consolidated balance sheets.

 

In conjunction with the issuance of the 6.375% Notes, we incurred approximately $13.0 million in debt financing costs that have been deferred and are being amortized over the term of the 6.375% Notes using the effective interest method.

 

The 6.375% Notes contain certain restrictive covenants that, subject to exceptions and qualifications, among other things, limit our ability and the ability of our restricted subsidiaries (as defined in the base and supplemental indentures governing the 6.375% Notes, together, the "6.375% Indenture") to incur additional indebtedness or liens, pay dividends or make distributions or repurchase our capital stock, make certain investments, and sell or merge with other companies. In addition, upon the occurrence of a change of control (as defined in the 6.375% Indenture), we will be required, unless certain conditions are met, to offer to repurchase the 6.375% Notes at a price equal to 101% of the principal amount of the 6.375% Notes, plus accrued and unpaid interest and Additional Interest (as defined in the 6.375% Indenture), if any, to, but not including, the date of purchase. If we sell assets or experience an event of loss, as defined in the 6.375% Indenture, we will be required under certain circumstances to offer to purchase the 6.375% Notes.

 

At any time prior to April 1, 2021, we may redeem the 6.375% Notes, in whole or in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, up to, but excluding, the applicable redemption date, plus a make whole premium. After April 1, 2021, we may redeem all or a portion of the 6.375% Notes at redemption prices (expressed as percentages of the principal amount) ranging from 103.188% in 2021 to 100% in 2024 and thereafter, plus accrued and unpaid interest and Additional Interest.

 

6.875% Senior Notes due May 2023

On December 3, 2019, we redeemed all of our 6.875% senior notes due May 2023 (the "6.875% Notes") at a redemption price of 103.438% plus accrued and unpaid interest to the redemption date. The redemption was funded through the issuance of the 4.750% Notes. The Company used borrowings under its revolving credit facility to pay the redemption premium accrued and unpaid interest, fees, expenses and commissions related to this redemption.

 

Other Notes

On October 15, 2018, Boyd completed the acquisition of the Pinnacle Properties. Concurrently with the acquisition, Boyd PropCo, acquired the real estate associated with Belterra Park in Cincinnati, Ohio (the "Belterra Park Real Property Sale") utilizing mortgage financing from a subsidiary of GLPI, pursuant to the Belterra Park Purchase Agreement, and a Novation Agreement. Pursuant to the Novation Agreement, Gold Merger Sub, the original purchaser under the Belterra Park Purchase Agreement, assigned, transferred and conveyed to Boyd PropCo and Boyd PropCo accepted Gold Merger Sub’s rights, title and interest in the Belterra Park Purchase Agreement ("Belterra Park Note").

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

The total Belterra Park Note payable to Gold Merger Sub is $57.7 million. The Belterra Park Note provides for interest at a per annum for any monthly period equal to (a) the sum of (i) the building base rent, as defined in the master lease agreement, payable for such period annualized, plus (ii) the land base rent, as defined in the master lease agreement, payable for such period annualized, plus (iii) the percentage rent, as defined in the master lease agreement, payable for such period annualized divided by (b) the outstanding principal balance of this Belterra Park Note, divided by (c) the number twelve. The interest rate as of December 31, 2019 and 2018, was 11.20% and 11.11%, respectively. Interest payments are due monthly with a balloon payment for the outstanding principal due at the maturity date. The maturity date is the earlier to occur of (a) the expiration of the master lease term and (b) the termination of the master lease agreement.

 

Loss on Early Extinguishments and Modifications of Debt

The components of the loss on early extinguishments and modifications of debt are as follows:

 

   

Year Ended December 31,

 

(In thousands)

 

2019

   

2018

   

2017

 
6.875% Senior Notes premium and consent fees   $ 25,785     $ —     $ —  
6.875% Senior Notes deferred finance charges     6,092       —       —  

Boyd Gaming Credit Facility deferred finance charges

    3,072       61       1,086  

Amendment No. 2 and Refinancing Amendment

    —       —       496  

Total loss on early extinguishments and modifications of debt

  $ 34,949     $ 61     $ 1,582  

 

Covenant Compliance

As of December 31, 2019, we believe that we were in compliance with the financial and other covenants of our debt instruments.

 

The indentures governing the notes issued by the Company contain provisions that allow for the incurrence of additional indebtedness, if after giving effect to such incurrence, the coverage ratio (as defined in the respective indentures, essentially a ratio of the Company's consolidated EBITDA to fixed charges, including interest) for the Company's trailing four quarter period on a pro forma basis would be at least 2.0 to 1.0. Should this provision prohibit the incurrence of additional debt, the Company may still borrow under its existing credit facility. At December 31, 2019, the available borrowing capacity under our Credit Facility was  $656.6 million.

 

Scheduled Maturities of Long-Term Debt

The scheduled maturities of long-term debt are as follows:

 

(In thousands)

 

Total

 

For the year ending December 31,

       

2020

  $ 26,994  

2021

    509,437  

2022

    12,743  

2023

    757,099  
2024     —  

Thereafter

    2,507,683  

Total outstanding principal of long-term debt

  $ 3,813,956  

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

 

NOTE 8.    INCOME TAXES

Deferred Income Tax Assets and Liabilities

Deferred income tax assets and liabilities are provided to record the effects of temporary differences between the tax basis of an asset or liability and its amount as reported in our consolidated balance sheets. These temporary differences result in taxable or deductible amounts in future years.

 

The components comprising our deferred income tax assets and liabilities are as follows:

 

   

December 31,

 

(In thousands)

 

2019

   

2018

 

Deferred income tax assets

               

Federal net operating loss carryforwards

  $ 95,861     $ 102,806  

State net operating loss carryforwards

    67,357       55,478  
Operating lease liability     198,800       —  

Share-based compensation

    15,029       15,127  

Other

    60,540       53,434  

Gross deferred income tax assets

    437,587       226,845  

Valuation allowance

    (41,281 )     (39,516 )

Deferred income tax assets, net of valuation allowance

    396,306       187,329  
                 

Deferred income tax liabilities

               

Difference between book and tax basis of property and intangible assets

    311,365       259,495  

State tax liability

    45,314       38,891  
Right of use asset     194,874       —  

Other

    7,448       10,205  

Gross deferred income tax liabilities

    559,001       308,591  

Deferred income tax liabilities, net

  $ 162,695     $ 121,262  

 

At December 31, 2019, we have unused federal general business tax credits of approximately $14.3 million which may be carried forward or used until expiration beginning in 2031 and alternative minimum tax credits of $5.5 million which may be used or refunded through 2021. We have a federal income tax net operating loss of approximately $456.5 million, which may be carried forward or used until expiration beginning in 2033, assuming no significant change in ownership. We also have state income tax net operating loss carryforwards of approximately $1,077.5 million, which may be used to reduce future state income taxes. The state net operating loss carryforwards will expire in various years ranging from 2020 to 2039, if not fully utilized.

 

Valuation Allowance on Deferred Tax Assets

Management assesses available positive and negative evidence to estimate if sufficient future taxable income will be generated to use the existing deferred tax assets. In evaluating our ability to recover deferred tax assets, we consider whether it is more likely than not that some portion or all of the deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon scheduled reversals of deferred tax liabilities, projected future taxable income, tax-planning strategies and results of recent operations.

 

We have maintained a valuation allowance of $41.3 million against certain federal and state deferred tax assets as of December 31, 2019 due to uncertainties related to our ability to realize the tax benefits associated with these assets. In assessing the need to establish a valuation allowance, we consider, among other matters, the nature, frequency and severity of current and cumulative losses, forecasts of profitability and taxable income, the duration of statutory carryforward periods, our experience with the utilization of operating loss and tax credit carryforwards before expiration and tax planning strategies. Valuation allowances are evaluated periodically and subject to change in future reporting periods as a result of changes in the factors noted above.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Provision (Benefit) for Income Taxes

A summary of the provision (benefit) for income taxes is as follows:

 

   

Year Ended December 31,

 

(In thousands)

 

2019

   

2018

   

2017

 

Current

                       

Federal

  $ —     $ (584 )   $ (10,367 )

State

    3,475       5,897       5,335  

Total current taxes provision (benefit)

    3,475       5,313       (5,032 )

Deferred

                       

Federal

    44,877       29,434       6,449  

State

    (3,862 )     5,584       1,698  

Total deferred taxes provision

    41,015       35,018       8,147  

Provision for income taxes from continuing operations

  $ 44,490     $ 40,331     $ 3,115  
                         

Provision for income taxes included on the consolidated statement of operations

                       

Provision for income taxes from continuing operations

  $ 44,490     $ 40,331     $ 3,115  

Provision for income taxes from discontinued operations

    —       136       14,855  

Provision for income taxes from continuing operations and discontinued operations

  $ 44,490     $ 40,467     $ 17,970  

 

Our tax provision for the year ended December 31, 2019 was favorably impacted by benefits related to equity compensation and tax credits and unfavorably impacted by non-deductible expenses.

 

Our tax provision for the year ended  December 31, 2018 was unfavorably impacted by state taxes and certain nondeductible expenses which were partially offset by utilization of tax credits.

 

Our tax provision for the year ended  December 31, 2017 was favorably impacted by the federal statutory tax rate change applied to our net deferred tax liability. Based on this revaluation, we have recorded a discrete tax benefit of $60.1 million.

 

The following table provides a reconciliation between the federal statutory rate and the effective income tax rate, expressed as a percentage of income from continuing operations before income taxes:
 
   

Year Ended December 31,

 

(In thousands)

 

2019

   

2018

   

2017

 

Tax at federal statutory rate

    21.0 %     21.0 %     35.0 %

Federal statutory rate change on deferred tax liability

    — %     — %     (35.2 )%

State income taxes, net of federal benefit

    (0.2 )%     5.9 %     2.7 %

Compensation-based credits

    (1.2 )%     (1.9 )%     (1.0 )%

Nondeductible expenses

    0.4 %     0.7 %     0.5 %

Tax exempt interest

    (0.2 )%     (0.2 )%     (0.3 )%

Company provided benefits

    1.6 %     0.1 %     0.5 %

Other, net

    0.4 %     0.4 %     (0.4 )%

Effective tax rate

    21.8 %     26.0 %     1.8 %

 

Status of Examinations

We generated net operating losses on our federal income tax returns for years 2011 through 2013. These returns remain subject to federal examination until the statute of limitations expires for the year in which the net operating losses are utilized.

We are also currently under examination for various state income and franchise tax matters. As it relates to our material state returns, we are subject to examination for tax years ended on or after December 31, 2001, and the statute of limitations will expire over the period October 2020 through October 2023.

We believe that we have adequately reserved for any tax liability; however, the ultimate resolution of these examinations may result in an outcome that is different than our current expectation. We do not believe the ultimate resolution of these examinations will have a material impact on our consolidated financial statements.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Other Long-Term Tax Liabilities

The impact of an uncertain income tax position taken in our income tax return is recognized at the largest amount that is more-likely-than-not to be sustained upon audit by the relevant taxing authority. An uncertain income tax position is not recognized if it has less than a 50% likelihood of being sustained. Our liability for uncertain tax positions is recorded as other long-term tax liabilities in our consolidated balance sheets.

 

A reconciliation of the beginning and ending amount of unrecognized tax benefits is as follows:

 

   

Year Ended December 31,

 

(In thousands)

 

2019

   

2018

   

2017

 

Unrecognized tax benefit, beginning of year

  $ 2,482     $ 2,482     $ 2,482  

Additions:

                       

Tax positions related to current year

    —       —       —  

Reductions:

                       

Tax positions related to prior years

    —       —       —  

Unrecognized tax benefit, end of year

  $ 2,482     $ 2,482     $ 2,482  

 

Included in the $2.5 million balance of unrecognized tax benefits at December 31, 2019, are $2.0 million of federally tax effected benefits that, if recognized, would impact the effective tax rate. We recognize interest related to unrecognized tax benefits in our income tax provision. During the year ended December 31, 2019, we recognized interest and penalties of approximately $0.2 million in our tax provision. We have accrued $1.1 million and $1.0 million of interest and penalties at December 31, 2019 and 2018, respectively, in our consolidated balance sheets.

 

We do not anticipate any material changes to our unrecognized tax benefits over the next twelve-month period.

 

 

NOTE 9.    COMMITMENTS AND CONTINGENCIES

Commitments

Capital Spending and Development

We continually perform on-going refurbishment and maintenance at our facilities to maintain our standards of quality. Certain of these maintenance costs are capitalized, if such improvement or refurbishment extends the life of the related asset, while other maintenance costs that do not so qualify are expensed as incurred. The commitment of capital and the related timing thereof are contingent upon, among other things, negotiation of final agreements and receipt of approvals from the appropriate regulatory bodies. We must also comply with covenants and restrictions set forth in our debt agreements.

 

Kansas Management Contract

As part of the Kansas Management Contract approved by the Kansas Racing and Gaming Commission on January 11, 2011, Kansas Star committed to donate $1.5 million each year to support education in the local area in which Kansas Star operates for the duration of the Kansas Management Contract. We have made all distributions under this commitment as scheduled and such related expenses are recorded in Selling, general and administrative expenses on the consolidated statements of operations.

 

Mulvane Development Agreement

On March 7, 2011, Kansas Star entered into a Development Agreement with the City of Mulvane ("Mulvane Development Agreement") related to the provision of water, sewer, and electrical utilities to the Kansas Star site. This agreement sets forth certain parameters governing the use of public financing for the provision of such utilities, through the issuance of general obligation bonds by the City of Mulvane, paid for through the imposition of a special tax assessment on the Kansas Star site payable over 15 years in an amount equal to the City’s full obligations under the general obligation bonds. 

 

All infrastructure improvements to the Kansas Star site under the Mulvane Development Agreement are complete and the City of Mulvane issued $19.7 million in general obligation bonds related to these infrastructure improvements. As of December 31, 2019 and 2018, under the Mulvane Development Agreement, Kansas Star recorded $1.6 million and $1.7 million, respectively, which is included in accrued liabilities on the consolidated balance sheets and $6.7 million, net of a $2.5 million discount, and $7.4 million, net of a $3.0 million discount, respectively, which is recorded as a long-term obligation in other liabilities on the consolidated balance sheets. Interest costs are expensed as incurred and the discount will be amortized to interest expense over the term of the special tax assessment ending in 2028. Kansas Star's special tax assessment related to these bonds is approximately $1.7 million annually. Payments under the special tax assessment are secured by irrevocable letters of credit of $5.0 million issued by the Company in favor of the City of Mulvane, representing an amount equal to three times the annual special assessment tax imposed on Kansas Star.

 

Contingent Payments

In connection with securing the Kansas Management Contract, Kansas Star agreed to pay a former casino project promoter 1% of Kansas Star’s earnings before interest expense, taxes, depreciation and amortization ("EBITDA") each month for a period of 10 years commencing December 20, 2011.

 

Minimum Assessment Agreement

In 2007, Diamond Jo Dubuque entered into a Minimum Assessment Agreement with the City of Dubuque (the "City"). Under the Minimum Assessment Agreement, Diamond Jo Dubuque and the City agreed to a minimum taxable value related to the new casino of $57.9 million. Diamond Jo Dubuque agreed to pay property taxes to the City based on the actual taxable value of the casino, but not less than the minimum taxable value. Scheduled payments of principal and interest on the City Bonds will be funded through Diamond Jo Dubuque's payment obligations under the Minimum Assessment Agreement. Diamond Jo Dubuque is also obligated to pay any shortfall should property taxes be insufficient to fund the principal and interest payments on the City Bonds.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Interest costs under the Minimum Assessment Agreement obligation are expensed as incurred. As of December 31, 2019 and 2018, the remaining obligation under the Minimum Assessment Agreement was $1.9 million at each date, which was recorded in accrued liabilities on the consolidated balance sheets and $13.1 million, net of a $2.3 million discount, and $13.4 million, net of a $2.5 million discount, respectively, which was recorded as a long-term obligation in other liabilities on the consolidated balance sheets. The discount will be amortized to interest expense over the life of the Minimum Assessment Agreement. Total minimum payments by Diamond Jo Dubuque under the Minimum Assessment Agreement are approximately $1.9 million per year through 2036.

 

Public Parking Facility Agreement

Diamond Jo Dubuque has an agreement with the City for use of the public parking facility adjacent to Diamond Jo Dubuque's casino and owned and operated by the City (the "Parking Facility Agreement"). The Parking Facility Agreement calls for: (i) the payment by the Company for the reasonable and necessary actual operating costs incurred by the City for the operation, security, repair and maintenance of the public parking facility; and (ii) the payment by the Company to the City of $80 per parking space in the public parking facility per year, subject to annual increases based on any increase in the Consumer Price Index, which funds will be deposited into a special sinking fund and used by the City for capital expenditures necessary to maintain the public parking facility. Operating costs of the parking facility incurred by Diamond Jo Dubuque are expensed as incurred. Deposits to the sinking fund are recorded as other assets. When the sinking fund is used for capital improvements, such amounts are capitalized and amortized over their remaining useful life.

 

Iowa Qualified Sponsoring Organization Agreements

Diamond Jo Dubuque and Diamond Jo Worth are required to pay their respective qualified sponsoring organization, who hold a joint gaming license with Diamond Jo Dubuque and Diamond Jo Worth, 4.50% and 5.76%, respectively, of the casino’s adjusted gross receipts on an ongoing basis. Diamond Jo Dubuque expensed $3.2 million, $3.1 million and $3.1 million, in the year ended December 31, 2019, 2018 and 2017, respectively, related to its agreement. Diamond Jo Worth expensed $4.9 million, $4.9 million and $5.0 million during the years ended December 31, 2019, 2018 and 2017, respectively, related to its agreement. The Diamond Jo Dubuque agreement expires on December 31, 2030. The Diamond Jo Worth agreement expires on March 31, 2025, and is subject to automatic ten-year renewal periods.

 

Development Agreement

In September 2011, the Company acquired the membership interests of a limited liability company (the "LLC") for a purchase price of $24.5 million. The primary asset of the LLC was a previously executed development agreement (the "Development Agreement") with Wilton Rancheria (the "Tribe"). The purchase price was allocated primarily to an intangible asset associated with the Company's rights under the agreement to assist the Tribe in the development and management of a gaming facility on the Tribe's land.

 

In July 2012, the Company and the Tribe amended and replaced the agreement with a new development agreement and a management agreement (the "Agreements"). The Agreements obligate us to fund certain pre-development costs, which were estimated to be approximately $1 million to $2 million annually, to assist the Tribe in its development and oversight of the gaming facility construction. In the current year, as progress is being made with the development, pre-development costs were approximately $6.6 million. Upon opening, we will manage the gaming facility. The pre-development costs funded by us are reimbursable to us with future cash flows from the operations of the gaming facility under terms of a note receivable from the Tribe.

 

In January 2017, the Company funded the acquisition of land that is the intended site of the Wilton Rancheria casino and, in February 2017, the land was placed into trust by the U.S. Bureau of Indian Affairs for the benefit of the Tribe. The cost of the land is recorded as a receivable on our consolidated balance sheet, and we expect to be reimbursed for this cost when project financing is in place. Should the project be abandoned, ownership of the land would revert to the Company.

 

The Agreements provide that the Company will receive future revenue for its services to the Tribe contingent upon successful development of the gaming facility and based on future revenues at the gaming facility. In September 2017, the California State Legislature unanimously approved, and the Governor of California executed, a tribal-state gaming compact with the tribe allowing the development of the casino. In October 2018, the National Indian Gaming Commission approved the Company's management contract with the Tribe. With the compact now in place, we are in the process of finalizing project budget, design and construction planning. The project will be constructed using third-party financing. Once commenced and project financing put in place, the construction timeline is expected to span 18 to 24 months.

 

Master Lease Agreement

On October 15, 2018, Boyd completed the acquisition of the Pinnacle Properties. Pursuant to the Pinnacle Purchase Agreement, Boyd TCIV entered into the Master Lease pursuant to which the landlord agreed to lease to Boyd TCIV the facilities associated with Ameristar Kansas City, Ameristar St. Charles, Belterra Resort and Ogle Haus, LLC, commencing on October 15, 2018 and ending on April 30, 2026 as the initial term, with options for renewal. The term of this Master Lease may be extended for five separate renewal terms of five years each. The monthly lease payment consists of the following, (i) the building base rent, as defined in the Master Lease agreement, plus (ii) the land base rent, as defined in the Master Lease agreement, plus (iii) the percentage rent, as defined in the Master Lease agreement. Each and every other lease year commencing with the third lease year, the percentage rent will reset based on a calculation defined in the Master Lease agreement.

 

Contingencies

Legal Matters

We are parties to various legal proceedings arising in the ordinary course of business. We believe that all pending claims, if adversely decided, would not have a material adverse effect on our business, financial position or results of operations.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

 

NOTE 10.    LEASES

We have operating and finance leases primarily for three casino hotel properties, corporate offices, parking ramps, gaming and other equipment. Our leases have remaining lease terms of one year to 59 years, some of which include options to extend the leases for up to 67 years, and some of which include options to terminate the leases within one year. Certain of our lease agreements, including the Master Lease, include provisions for variable lease payments, which represent lease payments that vary due to changes in facts or circumstances occurring after the commencement date other than the passage of time. Such variable lease payments are expensed in the period in which the obligation for these payments is incurred. Variable lease expense recognized in the year ended ended December 31, 2019 was not material.

 

The components of lease expense were as follows:

 

   

For the Year Ended

 

(In thousands)

 

December 31, 2019

 

Operating lease cost

  $ 163,027  

Short-term lease cost

    481  

 

 

Supplemental cash flow information related to leases was as follows:

 

   

For the Year Ended

 

(In thousands)

 

December 31, 2019

 

Cash paid for amounts included in the measurement of lease liabilities:

       

Operating cash flows from operating leases

  $ 160,333  
         

Right-of-use assets obtained in exchange for lease obligations:

       

Operating leases

    13,204  

 

 

Supplemental balance sheet information related to leases was as follows:

 

(In thousands, except lease term and discount rate)

 

December 31, 2019

 

Operating Leases

       

Operating lease right-of-use assets, including favorable lease rates asset

  $ 936,170  
         

Current lease liabilities (included in accrued liabilities)

  $ 87,686  

Operating lease liabilities

    840,285  

Total operating lease liabilities

  $ 927,971  
         

Weighted Average Remaining Lease Term

       

Operating leases (in years)

    18.2  
         

Weighted Average Discount Rate

       

Operating leases

    8.9 %

 

Maturities of lease liabilities were as follows:

 

(In thousands)

 

Operating Leases

 

For the period ending December 31,

       

2020

  $ 161,404  

2021

    145,491  

2022

    113,133  

2023

    112,346  
2024     112,140  

Thereafter

    1,273,966  

Total lease payments

    1,918,480  

Less imputed interest

    (990,509 )

Less current portion (included in accrued liabilities)

    (87,686 )

Long-term portion of operating lease liabilities

  $ 840,285  

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Future minimum rental income, which is primarily related to retail and restaurant facilities located within our properties are as follows:

 

(In thousands)

 

Minimum Rental Income

 

For the Year Ended December 31,

       

2020

  $ 4,798  

2021

    2,286  

2022

    2,030  

2023

    1,903  

2024

    1,425  

Thereafter

    156  

Total

  $ 12,598  

 

 

NOTE 11.    STOCKHOLDERS' EQUITY AND STOCK INCENTIVE PLANS

Share Repurchase Program

We have in the past, and may in the future, acquire our equity securities through open market purchases, privately negotiated transactions, tender offers, exchange offers, redemptions or otherwise, upon such terms and at such prices as we may determine from time to time. In July 2008, our Board of Directors authorized an amendment to an existing share repurchase program to increase the amount of common stock that can be repurchased to $100 million. We are not obligated to repurchase any shares under this program. On May 2, 2017 the Company announced that its Board of Directors had reaffirmed the Company's existing share repurchase program (the "2008 Plan"). On December 12, 2018, our Board of Directors authorized a new share repurchase program of $100 million which is in addition to the existing repurchase authorization (the "2018 Plan"). There were 1.1 million shares, 1.9 million shares and 1.2 million shares repurchased during the years ended December 31, 2019, 2018 and 2017, respectively. As of December 31, 2019, the 2008 Plan was fully depleted and $72.5 million remained available under the 2018 Plan.

 

The following table provides information regarding share repurchases during the referenced periods.(1) 

 

   

For the Year Ended December 31,

 

(In thousands, except per share data)

 

2019

   

2018

   

2017

 

Shares repurchased (2)

    1,087       1,853       1,198  

Total cost, including brokerage fees

  $ 28,045     $ 59,570     $ 31,927  

Average repurchase price per share (3)

  $ 25.80     $ 32.14     $ 26.64  

 

(1) Shares repurchased reflect repurchases settled during the twelve months ended December 31, 2019, 2018 and 2017. These amounts exclude repurchases, if any, traded but not yet settled on or before December 31, 2019, 2018 and 2017.

(2) All shares repurchased have been retired and constitute authorized but unissued shares.

(3) Figures in the table may not recalculate exactly due to rounding. Average repurchase price per share is calculated based on unrounded numbers.

 

Subject to applicable corporate securities laws, repurchases under our stock repurchase program may be made at such times and in such amounts as we deem appropriate. Repurchases can be discontinued at any time that we feel additional purchases are not warranted. We intend to fund the repurchases under the stock repurchase program with existing cash resources and availability under our Credit Facility. We are subject to certain limitations regarding the repurchase of common stock, such as restricted payment limitations related to our outstanding notes and our Credit Facility.

 

Dividends

Dividends are declared at the discretion of our Board of Directors. We are subject to certain limitations regarding the payment of dividends, such as restricted payment limitations contained in our Credit Facility and the indentures for our outstanding notes.

 

On May 2, 2017, the Company announced that its Board of Directors had authorized the reinstatement of the Company’s cash dividend program. The dividends declared by the Board under this program are:

 

Declaration date

 

Record date

 

Payment date

 

Amount per share

 

May 2, 2017

 

June 15, 2017

 

July 15, 2017

  $0.05  

September 6, 2017

 

September 18, 2017

 

October 15, 2017

  0.05  

December 7, 2017

 

December 28, 2017

 

January 15, 2018

  0.05  

March 2, 2018

 

March 16, 2018

 

April 15, 2018

  0.05  

June 8, 2018

 

June 29, 2018

 

July 15, 2018

  0.06  

September 14, 2018

 

September 28, 2018

 

October 15, 2018

  0.06  

December 7, 2018

 

December 28, 2018

 

January 15, 2019

  0.06  

March 4, 2019

 

March 15, 2019

 

April 15, 2019

  0.06  

June 7, 2019

 

June 17, 2019

 

July 15, 2019

  0.07  
September 17, 2019   September 27, 2019   October 15, 2019   0.07  
December 17, 2019   December 27, 2019   January 15, 2020   0.07  

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Stock Incentive Plan

In May 2012, the Company's stockholders approved the 2012 Stock Incentive Plan (the "2012 Plan"), which amended and restated the Company's 2002 Stock Incentive Plan (the "2002 Plan") to (a) provide for a term ending ten years from the date of stockholder approval at the Annual Meeting, (b) increase the maximum number of shares of the Company's common stock authorized for issuance over the term of the 2012 Plan by 4 million shares from 17 million to 21 million shares, (c) permit the future grant of certain equity-based awards, including awards designed to constitute performance-based compensation under Section 162(m) of the Internal Revenue Code, and (d) make certain other changes. Under our 2012 Plan, approximately 3.3 million shares remain available for grant at December 31, 2019. The number of authorized but unissued shares of common stock under this 2012 Plan as of December 31, 2019 was approximately 7.8 million shares.

 

Grants made under the 2012 Plan include provisions that entitle the grantee to automatic vesting acceleration in the event of a grantee’s separation from service (including as a result of retirement, death or disability), other than for cause (as defined), after reaching the defined age and years of service thresholds. These provisions result in the accelerated recognition of the stock compensation expense for those grants issued to employees who have met the stipulated thresholds.

 

Stock Options

Options granted under the 2012 Plan generally become exercisable ratably over a three-year period from the date of grant. Options that have been granted under the 2012 Plan had an exercise price equal to the market price of our common stock on the date of grant and will expire no later than ten years after the date of grant.

 

Summarized stock option plan activity is as follows:

 

                   

Weighted-

         
           

Weighted-

   

Average

         
           

Average

   

Remaining

   

Aggregate

 
   

Options

   

Option Price

   

Term

   

Intrinsic Value

 
                   

(In years)

   

(In thousands)

 

Outstanding at January 1, 2017

    3,107,916     $ 23.36                  

Granted

    —       —                  

Canceled

    (1,323,500 )     39.30                  

Exercised

    (241,964 )     8.61                  

Outstanding at December 31, 2017

    1,542,452       11.99                  

Granted

    —       —                  

Canceled

    (25,000 )     3.31                  

Exercised

    (338,426 )     10.47                  

Outstanding at December 31, 2018

    1,179,026       11.98                  

Granted

    —       —                  

Canceled

    (48,941 )     13.72                  

Exercised

    (242,357 )     9.81                  

Outstanding at December 31, 2019

    887,728     $ 12.48       4.2     $ 15,504  
                                 

Exercisable at December 31, 2018

    1,106,860     $ 11.60       4.3     $ 10,159  
                                 

Exercisable at December 31, 2019

    887,728     $ 12.48       4.2     $ 15,504  

 

Share-based compensation costs related to stock option awards are calculated based on the fair value of each option grant on the date of the grant using the Black-Scholes option pricing model.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

The following table summarizes the information about stock options outstanding and exercisable at December 31, 2019:

 

     

Options Outstanding

   

Options Exercisable

 
             

Weighted-

                         
             

Average

                         
             

Remaining

   

Weighted-

           

Weighted-

 
     

Number

   

Contractual

   

Average

   

Number

   

Average

 

Range of Exercise Prices

   

Outstanding

   

Life (Years)

   

Exercise Price

   

Exercisable

   

Exercise Price

 
$5.22       25,510       2.9     $ 5.22       25,510     $ 5.22  
6.70       84,353       1.9       6.70       84,353       6.70  
8.34       146,065       0.8       8.34       146,065       8.34  
9.86       202,068       3.9       9.86       202,068       9.86  
11.57       123,849       4.9       11.57       123,849       11.57  
17.75       169,857       6.9       17.75       169,857       17.75  
19.98       136,026       5.8       19.98       136,026       19.98  

$5.22-$19.98

      887,728       4.2       12.48       887,728       12.48  

 

The total intrinsic value of in-the-money options exercised during the years ended December 31, 2019, 2018 and 2017 was $4.7 million, $7.8 million, and $3.9 million, respectively. The total fair value of options vested during the years ended December 31, 2019, 2018 and 2017 was approximately $0.6 million, $1.2 million, and $1.6 million, respectively. As of December 31, 2019, there were no unrecognized share-based compensation costs related to unvested stock options.

 

Restricted Stock Units

Our 2012 Plan provides for the grant of Restricted Stock Units ("RSUs"). An RSU is an award that may be earned in whole, or in part, upon the passage of time, and that may be settled for cash, shares, other securities or a combination thereof. The RSUs do not contain voting rights and are not entitled to dividends. The RSUs are subject to the terms and conditions contained in the applicable award agreement and the 2012 Plan. Share-based compensation costs related to RSU awards are calculated based on the market price on the date of the grant.

 

We grant RSUs to members of management of the Company, which represents a contingent right to receive one share of our common stock upon vesting. An RSU generally vests on the third anniversary of its issuance and the share-based compensation expense is amortized to expense over the requisite service period.

 

We also annually award RSUs to certain members of our Board of Directors. Each RSU is to be paid in shares of common stock upon the director’s cessation of service to the Company. These RSUs are issued for past service; therefore, they are expensed on the date of issuance.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Summarized RSU activity is as follows:

 

           

Weighted-

 
   

Restricted

   

Average Grant

 
   

Stock Units

   

Date Fair Value

 

Outstanding at January 1, 2017

    1,961,118          

Granted

    442,879     $ 27.40  

Canceled

    (38,964 )        

Awarded

    (727,821 )        

Outstanding at December 31, 2017

    1,637,212          

Granted

    510,989     $ 25.05  

Canceled

    (18,250 )        

Awarded

    (416,084 )        

Outstanding at December 31, 2018

    1,713,867          

Granted

    555,749     $ 28.46  

Canceled

    (10,100 )        

Awarded

    (490,759 )        

Outstanding at December 31, 2019

    1,768,757          

 

As of December 31, 2019, there was approximately $15.7 million of total unrecognized share-based compensation costs related to unvested RSUs, which is expected to be recognized over approximately 2.5 years.

 

Performance Stock Units

Our 2012 Plan provides for the grant of Performance Stock Units ("PSUs"). A PSU is an award which may be earned in whole, or in part, upon the passage of time, and the attainment of performance criteria, and which may be settled for cash, shares, other securities or a combination thereof. The PSUs do not contain voting rights and are not entitled to dividends. The PSUs are subject to the terms and conditions contained in the applicable award agreement and our 2012 Plan. We annually award PSUs to certain members of management.

 

Each PSU represents a contingent right to receive a share of Boyd Gaming Corporation common stock; however, the actual number of common shares awarded is dependent upon the occurrence of: (i) a requisite service period; and (ii) an evaluation of specific performance conditions. The performance conditions are based on Company metrics for net revenue growth, EBITDA growth and customer service scores, all of which are determined on a comprehensive annual three-year growth rate. Based upon actual and combined achievement, the number of shares awarded could range from zero, if no conditions are met, a 50% payout if only threshold performance is achieved, a payout of 100% for target performance, or a payout of up to 200% of the original award for achievement of maximum performance. Each condition weighs equally and separately in determining the payout, and based upon management's estimates at the service inception date, the Company is expected to meet the target for each performance condition. Therefore, the related compensation cost of these PSUs assumes all units granted will be awarded. Share-based compensation costs related to PSU awards are calculated based on the market price on the date of the grant.

 

These PSUs will vest three years from the service inception date, during which time achievement of the related performance conditions is periodically evaluated, and the number of shares expected to be awarded, and resulting compensation expense, is adjusted accordingly.

 

Performance Shares Vesting

The PSU grants awarded in fourth quarter 2015, 2014 and 2013 vested during first quarter 2019, 2018 and 2017, respectively. Common shares were issued based on the determination by the Compensation Committee of the Board of Directors of our actual achievement of net revenue growth, EBITDA growth and customer service scores for the three-year performance period of each grant. As provided under the provisions of our stock incentive plan, certain of the participants elected to surrender a portion of the shares to be received to pay the withholding and other payroll taxes payable on the compensation resulting from the vesting of the PSUs.

 

The PSU grant awarded in October 2015 resulted in a total of 395,964 shares being issued during first quarter 2019, representing approximately 1.67 shares per PSU. Of the 395,964 shares issued, a total of 125,004 were surrendered by the participants for payroll taxes, resulting in a net issuance of 270,960 shares due to the vesting of the 2015 grant. The actual achievement level under the award metrics equaled the estimated performance as of year-end 2018; therefore, the vesting of the PSUs did not impact compensation costs in our 2019 consolidated statement of operations.

 

The PSU grant awarded in December 2014 resulted in a total of 486,805 shares being issued during first quarter 2018, representing approximately 1.57 shares per PSU. Of the 486,805 shares issued, a total of 149,268 were surrendered by the participants for payroll taxes, resulting in a net issuance of 337,537 shares due to the vesting of the 2014 grant. The actual achievement level under the award metrics equaled the estimated performance as of year-end 2017; therefore, the vesting of the PSUs did not impact compensation costs in our 2018 consolidated statement of operations.

 

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as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

The PSU grant awarded in November 2013 resulted in a total of 268,429 shares being issued during first quarter 2017, representing approximately 0.80 shares per PSU. Of the 268,429 shares issued, a total of 94,776 were surrendered by the participants for payroll taxes, resulting in a net issuance of 173,653 shares due to the vesting of the 2013 grant. The actual achievement level under the award metrics equaled the estimated performance as of the year-end 2016; therefore, the vesting of the PSUs did not impact compensation costs in our 2017 consolidated statement of operations.

Summarized PSU activity is as follows:

 

           

Weighted-

 
   

Performance

   

Average Grant

 
   

Stock Units

   

Date Fair Value

 

Outstanding at January 1, 2017

    1,129,078          

Granted

    275,305     $ 28.94  

Performance Adjustment

    (73,407 )        

Canceled

    —          

Awarded

    (268,429 )        

Outstanding at December 31, 2017

    1,062,547          

Granted

    287,374     $ 24.42  

Performance Adjustment

    176,754          

Canceled

    (2,450 )        

Awarded

    (486,805 )        

Outstanding at December 31, 2018

    1,037,420          

Granted

    269,495     $ 28.67  

Performance Adjustment

    158,858          

Canceled

    —          

Awarded

    (395,964 )        

Outstanding at December 31, 2019

    1,069,809          

 

As of December 31, 2019, there was approximately $8.5 million of total unrecognized share-based compensation costs related to unvested PSUs, which is expected to be recognized over approximately 2.7 years. Based on the current estimates of performance compared to the targets set for the respective PSU grants, the Company estimates that approximately 1.4 million shares will be issued to settle the PSUs outstanding at December 31, 2019.

 

Career Shares

Our Career Shares Program is a stock incentive award program for certain executive officers to provide for additional capital accumulation opportunities for retirement. The program incentivizes and rewards executives for their period of service. Our Career Shares Program was adopted in December 2006, and modified in October 2010, as part of the overall update of our compensation programs. The Career Shares Program rewards eligible executives with annual grants of Boyd Gaming Corporation stock units, to be paid out at retirement. The payout at retirement is dependent upon the executive's age at such retirement and the number of years of service with the Company. Executives must be at least 55 years old and have at least 10 years of service to receive any payout at retirement. Career Shares do not contain voting rights and are not entitled to dividends. Career Shares are subject to the terms and conditions contained in the applicable award agreement and our 2012 Plan. The Career Share awards are tranched by specific term, in the following periods: 10 years, 15 years and 20 years of service. These grants vest over the remaining period of service required to fulfill the requisite years in each of these tranches, and compensation expense is recorded in accordance with the specific vesting provisions. Share-based compensation costs related to Career Shares awards are calculated based on the market price on the date of the grant.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Summarized Career Shares activity is as follows:

 

           

Weighted-

 
   

Restricted

   

Average Grant

 
   

Stock Units

   

Date Fair Value

 

Outstanding at January 1, 2017

    1,041,639          

Granted

    66,000     $ 20.41  

Canceled

    (11,236 )        

Awarded

    (82,944 )        

Outstanding at December 31, 2017

    1,013,459          

Granted

    40,492     $ 34.48  

Canceled

    (5,335 )        

Awarded

    (27,331 )        

Outstanding at December 31, 2018

    1,021,285          

Granted

    67,719     $ 21.27  

Canceled

    —          

Awarded

    (26,693 )        

Outstanding at December 31, 2019

    1,062,311          

 

As of December 31, 2019, there was approximately $1.2 million of total unrecognized share-based compensation costs related to unvested Career Shares.

 

Share-Based Compensation

We account for share-based awards exchanged for employee services in accordance with the authoritative accounting guidance for share-based payments. Under the guidance, share-based compensation expense is measured at the grant date, based on the estimated fair value of the award, and is recognized as expense, net of estimated forfeitures, over the employee's requisite service period.

 

The following table summarizes our share-based compensation costs by award type:

 

   

For the Year Ended December 31,

 

(In thousands)

 

2019

   

2018

   

2017

 

Stock Options

  $ 52     $ 154     $ 1,193  

Restricted Stock Units

    14,301       10,219       7,463  

Performance Stock Units

    9,525       13,647       7,381  

Career Shares

    1,324       1,359       1,376  

Total share-based compensation costs

  $ 25,202     $ 25,379     $ 17,413  

 

The following table provides classification detail of the total costs related to our share-based employee compensation plans reported in our consolidated statements of operations:

 

   

For the Year Ended December 31,

 

(In thousands)

 

2019

   

2018

   

2017

 

Gaming

  $ 628     $ 490     $ 363  

Food & beverage

    120       94       69  

Room

    57       44       33  

Selling, general and administrative

    3,195       2,488       1,846  

Corporate expense

    21,202       22,263       15,102  

Total share-based compensation expense

  $ 25,202     $ 25,379     $ 17,413  

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

 

NOTE 12.     FAIR VALUE MEASUREMENTS

We have adopted the authoritative accounting guidance for fair value measurements, which does not determine or affect the circumstances under which fair value measurements are used, but defines fair value, expands disclosure requirements around fair value and specifies a hierarchy of valuation techniques based on whether the inputs to those valuation techniques are observable or unobservable. Observable inputs reflect market data obtained from independent sources, while unobservable inputs reflect the Company's market assumptions.

 

These inputs create the following fair value hierarchy:

 

Level 1: Quoted prices for identical instruments in active markets.

 

Level 2: Quoted prices for similar instruments in active markets; quoted prices for identical or similar instruments in markets that are not active; and model-derived valuations in which all significant inputs and significant value drivers are observable in active markets.

 

Level 3: Valuations derived from valuation techniques in which one or more significant inputs or significant value drivers are unobservable.

 

As required by the guidance for fair value measurements, financial assets and liabilities are classified in their entirety based on the lowest level of input that is significant to the fair value measurement. Thus, assets and liabilities categorized as Level 3 may be measured at fair value using inputs that are observable (Levels 1 and 2) and unobservable (Level 3). Management's assessment of the significance of a particular input to the fair value measurement requires judgment and may affect the valuation of assets and liabilities and their placement within the fair value hierarchy levels.

 

Balances Measured at Fair Value

The following tables show the fair values of certain of our financial instruments:

 

   

December 31, 2019

 

(In thousands)

 

Balance

   

Level 1

   

Level 2

   

Level 3

 

Assets

                               

Cash and cash equivalents

  $ 249,977     $ 249,977     $ —     $ —  

Restricted cash

    20,471       20,471       —       —  

Investment available for sale

    16,151       —       —       16,151  
                                 

Liabilities

                               

Contingent payments

  $ 1,712     $ —     $ —     $ 1,712  

 

   

December 31, 2018

 

(In thousands)

 

Balance

   

Level 1

   

Level 2

   

Level 3

 

Assets

                               

Cash and cash equivalents

  $ 249,417     $ 249,417     $ —     $ —  

Restricted cash

    23,785       23,785       —       —  

Investment available for sale

    15,772       —       —       15,772  
                                 

Liabilities

                               

Contingent payments

  $ 2,407     $ —     $ —     $ 2,407  

 

Cash and Cash Equivalents and Restricted Cash

The fair value of our cash and cash equivalents and restricted cash, classified in the fair value hierarchy as Level 1, is based on statements received from our banks at December 31, 2019 and 2018.

 

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as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Investment Available for Sale

We have an investment in a single municipal bond issuance of $19.5 million aggregate principal amount of 7.5% Urban Renewal Tax Increment Revenue Bonds, Taxable Series 2007 that is classified as available for sale with a maturity date of June 1, 2037. We are the only holder of this instrument and there is no quoted market price for this instrument. As such, the fair value of this investment is classified as Level 3 in the fair value hierarchy. The estimate of the fair value of such investment was determined using a combination of current market rates and estimates of market conditions for instruments with similar terms, maturities, and degrees of risk and a discounted cash flows analysis as of December 31, 2019 and 2018. The fair value of the investment is estimated using a discounted cash flows approach and the significant unobservable input used in the valuation as of December 31, 2019 and 2018 is a discount rate of 10.5% and 11.2%, respectively. Unrealized gains and losses on this instrument resulting from changes in the fair value of the instrument are not charged to earnings, but rather are recorded as other comprehensive income (loss) in the stockholders' equity section of the consolidated balance sheets. At   December 31, 2019 and 2018, $0.6 million and $0.5 million of the carrying value of the investment available for sale is included as a current asset in prepaid expenses and other current assets, and at December 31, 2019 and 2018, $15.6 million and $15.3 million, respectively, is included in investment on the consolidated balance sheets. The discount associated with this investment of $2.7 million and $2.8 million as of December 31, 2019 and 2018, respectively, is netted with the investment balance and is being accreted over the life of the investment using the effective interest method. The accretion of such discount is included in interest income on the consolidated statements of operations.

 

Contingent Payments

In connection with securing the Kansas Management Contract, Kansas Star agreed to pay a former casino project promoter 1% of Kansas Star’s EBITDA each month for a period of 10 years commencing December 20, 2011. The liability is recorded at the estimated fair value of the contingent payments using a discounted cash flows approach and the significant unobservable input used in the valuation at December 31, 2019 and 2018 is a discount rate of 6.2% and 6.8%, respectively. At  December 31, 2019 and 2018, there was a current liability of $0.9 million and $0.8 million related to this agreement, which was recorded in accrued liabilities on the respective consolidated balance sheets, and long-term obligations of $0.8 million and $1.6 million, respectively, which were included in other liabilities on the respective consolidated balance sheets.

 

The following tables summarize the changes in fair value of the Company’s Level 3 assets and liabilities:

 

   

December 31, 2019

 
   

Assets

   

Liability

 

(In thousands)

 

Investment Available for Sale

   

Contingent Payments

 

Balance at beginning of reporting period

  $ 15,772     $ (2,407 )

Total gains (losses) (realized or unrealized):

               

Included in interest income (expense)

    150       (140 )

Included in other comprehensive income (loss)

    739       —  

Included in other items, net

    —       (42 )

Purchases, sales, issuances and settlements:

               

Settlements

    (510 )     877  

Balance at end of reporting period

  $ 16,151     $ (1,712 )

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

   

December 31, 2018

 
   

Assets

   

Liability

 

(In thousands)

 

Investment Available for Sale

   

Contingent Payments

 

Balance at beginning of reporting period

  $ 17,752     $ (2,887 )

Total gains (losses) (realized or unrealized):

               

Included in interest income (expense)

    144       (249 )

Included in other comprehensive income (loss)

    (1,649 )     —  

Included in other items, net

    —       (110 )

Purchases, sales, issuances and settlements:

               

Settlements

    (475 )     839  

Balance at end of reporting period

  $ 15,772     $ (2,407 )

 

We are exposed to valuation risk on our Level 3 financial instruments. We estimate our risk exposure using a sensitivity analysis of potential changes in the significant unobservable inputs of our fair value measurements. Our Level 3 financial instruments are most susceptible to valuation risk caused by changes in the discount rate. If the discount in our fair value measurements increased or decreased by 100 basis points, the change would not cause the value of our fair value measurements to change significantly.

 

The fair value of intangible assets, classified in the fair value hierarchy as Level 3, is utilized in performing its impairment analyses (see Note 4, Intangible Assets).

 

Balances Disclosed at Fair Value

The following tables provide the fair value measurement information about our obligation under minimum assessment agreements and other financial instruments:

 

   

December 31, 2019

 

(In thousands)

 

Outstanding Face Amount

   

Carrying Value

   

Estimated Fair Value

 

Fair Value Hierarchy

 

Liabilities

                           

Obligation under assessment arrangements

  $ 28,118     $ 23,300     $ 28,780  

Level 3

 

 

   

December 31, 2018

 

(In thousands)

 

Outstanding Face Amount

   

Carrying Value

   

Estimated Fair Value

 

Fair Value Hierarchy

 

Liabilities

                           

Obligation under assessment arrangements

  $ 29,943     $ 24,477     $ 29,591  

Level 3

 

 

The following tables provide the fair value measurement information about our long-term debt:

 

   

December 31, 2019

 

(In thousands)

 

Outstanding Face Amount

   

Carrying Value

   

Estimated Fair Value

 

Fair Value Hierarchy

 

Bank credit facility

  $ 1,305,634     $ 1,290,708     $ 1,308,846  

Level 2

 

6.375% senior notes due 2026

    750,000       741,729       806,250  

Level 1

 

6.000% senior notes due 2026

    700,000       690,756       750,750  

Level 1

 
4.750% senior notes due 2027     1,000,000       984,416       1,038,750   Level 1  

Other

    58,322       58,322       58,322  

Level 3

 

Total debt

  $ 3,813,956     $ 3,765,931     $ 3,962,918      

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

   

December 31, 2018

 

(In thousands)

 

Outstanding Face Amount

   

Carrying Value

   

Estimated Fair Value

 

Fair Value Hierarchy

 

Bank credit facility

  $ 1,771,330     $ 1,748,529     $ 1,720,654  

Level 2

 

6.875% senior notes due 2023

    750,000       742,299       757,500  

Level 1

 

6.375% senior notes due 2026

    750,000       740,406       724,688  

Level 1

 

6.000% senior notes due 2026

    700,000       689,361       657,125  

Level 1

 

Other

    58,705       58,705       58,705  

Level 3

 

Total debt

  $ 4,030,035     $ 3,979,300     $ 3,918,672      

 

The estimated fair value of the Credit Facility is based on a relative value analysis performed on or about December 31, 2019 and December 31, 2018. The estimated fair values of our Senior Notes are based on quoted market prices as of December 31, 2019 and December 31, 2018. The other debt is fixed-rate debt consisting of: (i) Belterra Park Mortgage payable in 96 monthly installments, beginning in 2018; and (2) capital leases with various maturity dates from 2019 to 2026. These debt obligations are not traded and do not have observable market inputs; therefore, we have estimated fair value to be equal to the carrying value for these obligations.

 

There were no transfers between Level 1, Level 2 and Level 3 measurements during the years ended December 31, 2019 and 2018.

 

 

NOTE 13.    EMPLOYEE BENEFIT PLANS

We contribute to multiemployer pension defined benefit plans under terms of collective-bargaining agreements that cover our union-represented employees. Contributions, based on wages paid to covered employees, totaled approximately $1.8 million, $1.7 million and $1.6 million for the years ended December 31, 2019, 2018 and 2017, respectively. These aggregate contributions were not individually significant to any of the respective plans. Our share of the unfunded vested liability related to multi-employer plans, if any, is not determinable and our participation is not individually significant on an individual multiemployer plan basis.

 

We have retirement savings plans under Section 401(k) of the Internal Revenue Code covering our non-union employees. The plans allow employees to defer up to the lesser of the Internal Revenue Code prescribed maximum amount or 100% of their income on a pre-tax basis through contributions to the plans. We expensed our voluntary contributions to the 401(k) profit-sharing plans and trusts of $6.3 million, $4.3 million and $4.4 million for the years ended December 31, 2019, 2018 and 2017, respectively.

 

 

NOTE 14.    SEGMENT INFORMATION

We have aggregated our properties in order to present three Reportable Segments: (i) Las Vegas Locals; (ii) Downtown Las Vegas; and (iii) Midwest & South. The table in Note 1, Summary of Significant Accounting Policies, lists the classification of each of our properties.

 

Results of Operations - Total Reportable Segment Total Revenues and Adjusted EBITDAR

We evaluate each of our property's profitability based upon Property Adjusted EBITDAR, which represents each property's earnings before interest expense, income taxes, depreciation and amortization, deferred rent, share-based compensation expense, project development, preopening and writedowns expenses, impairments of assets, other operating items, net, gain or loss on early retirements of debt and master lease rent expense, as applicable. Total Reportable Segment Adjusted EBITDAR is the aggregate sum of the Property Adjusted EBITDAR for each of the properties included in our Las Vegas Locals, Downtown Las Vegas, and Midwest & South segments. Results for Downtown Las Vegas include the results of our Hawaii-based travel agency and captive insurance company. Results for Lattner, our Illinois distributed gaming operator, are included in our Midwest & South segment.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

The following tables set forth, for the periods indicated, departmental revenues for our Reportable Segments:

 

   

Year Ended December 31, 2019

 

(In thousands)

 

Gaming Revenue

   

Food & Beverage Revenue

   

Room Revenue

   

Other Revenue

   

Total Revenue

 

Revenues

                                       

Las Vegas Locals

  $ 566,443     $ 156,932     $ 105,619     $ 51,941     $ 880,935  

Downtown Las Vegas

    138,623       57,732       28,784       32,528       257,667  

Midwest & South

    1,778,227       233,189       102,784       73,317       2,187,517  

Total Revenues

  $ 2,483,293     $ 447,853     $ 237,187     $ 157,786     $ 3,326,119  

 

   

Year Ended December 31, 2018

 

(In thousands)

 

Gaming Revenue

   

Food & Beverage Revenue

   

Room Revenue

   

Other Revenue

   

Total Revenue

 

Revenues

                                       

Las Vegas Locals

  $ 565,579     $ 155,107     $ 100,110     $ 52,708     $ 873,504  

Downtown Las Vegas

    132,870       55,767       26,943       32,530       248,110  

Midwest & South

    1,226,975       157,014       72,447       48,680       1,505,116  

Total Revenues

  $ 1,925,424     $ 367,888     $ 199,500     $ 133,918     $ 2,626,730  

 

   

Year Ended December 31, 2017

 

(In thousands)

 

Gaming Revenue

   

Food & Beverage Revenue

   

Room Revenue

   

Other Revenue

   

Total Revenue

 

Revenues

                                       

Las Vegas Locals

  $ 563,785     $ 154,451     $ 98,406     $ 51,735     $ 868,377  

Downtown Las Vegas

    133,072       54,451       24,623       32,295       244,441  

Midwest & South

    1,043,411       137,477       63,766       43,347       1,288,001  

Total Revenues

  $ 1,740,268     $ 346,379     $ 186,795     $ 127,377     $ 2,400,819  

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

The following table reconciles, for the periods indicated, Total Reportable Segment Adjusted EBITDAR to operating income, as reported in our accompanying consolidated statements of operations:

 

   

Year Ended December 31,

 

(In thousands)

 

2019

   

2018

   

2017

 

Adjusted EBITDAR

                       

Las Vegas Locals

  $ 283,030     $ 274,344     $ 249,906  

Downtown Las Vegas

    62,413       56,517       54,613  

Midwest & South

    635,182       432,366       364,458  

Total Reportable Segment Adjusted EBITDAR

    980,625       763,227       668,977  

Corporate expense

    (83,937 )     (81,938 )     (73,046 )

Adjusted EBITDAR

    896,688       681,289       595,931  
                         

Other operating costs and expenses

                       

Deferred rent

    979       1,100       1,267  

Master lease rent expense

    97,723       20,682       —  

Depreciation and amortization

    276,569       229,979       217,522  

Share-based compensation expense

    25,202       25,379       17,413  

Project development, preopening and writedowns

    21,728       45,698       14,454  

Impairment of assets

    —       993       (426 )

Other operating items, net

    1,919       2,174       1,900  

Total other operating costs and expenses

    424,120       326,005       252,130  

Operating income

  $ 472,568     $ 355,284     $ 343,801  

 

For purposes of this presentation, corporate expense excludes its portion of share-based compensation expense. Corporate expense represents unallocated payroll, professional fees, aircraft expenses and various other expenses not directly related to our casino and hotel operations.

 

Total Reportable Segment Assets

The Company's assets by Reportable Segment consisted of the following amounts:

 

   

December 31,

   

December 31,

 

(In thousands)

 

2019

   

2018

 

Assets

               

Las Vegas Locals

  $ 1,804,476     $ 1,732,138  

Downtown Las Vegas

    212,936       169,495  

Midwest & South

    4,229,174       3,562,926  

Total Reportable Segment Assets

    6,246,586       5,464,559  

Corporate

    403,559       291,780  

Total Assets

  $ 6,650,145     $ 5,756,339  

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Capital Expenditures

The Company's capital expenditures by Reportable Segment consisted of the following:

 

   

Year Ended December 31,

 

(In thousands)

 

2019

   

2018

   

2017

 

Capital Expenditures:

                       

Las Vegas Locals

  $ 26,207     $ 33,503     $ 59,382  

Downtown Las Vegas

    8,881       12,885       21,705  

Midwest & South

    80,883       69,285       37,657  

Total Reportable Segment Capital Expenditures

    115,971       115,673       118,744  

Corporate

    88,633       50,238       71,673  

Total Capital Expenditures

    204,604       165,911       190,417  

Change in Accrued Property Additions

    3,033       (4,367 )     47  

Cash-Based Capital Expenditures

  $ 207,637     $ 161,544     $ 190,464  

 

The Company utilizes the Corporate entities to centralize the development of major renovation and other capital development projects that are included as construction in progress. After the project is complete, the corporate entities transfer the projects to the segment subsidiaries.

 

 

NOTE 15.     SELECTED QUARTERLY FINANCIAL INFORMATION (UNAUDITED)

The following table presents selected quarterly financial information:

 

   

Year Ended December 31, 2019

 

(In thousands, except per share data)

 

First

   

Second

   

Third

   

Fourth

   

Year

 

Summary Operating Results:

                                       

Total revenues

  $ 827,288     $ 846,132     $ 819,568     $ 833,131     $ 3,326,119  

Operating income

    117,626       126,692       113,391       114,859       472,568  
Net income     45,451       48,484       39,405       24,296       157,636  
                                         

Basic net income per common share

  $ 0.40     $ 0.43     $ 0.35     $ 0.21     $ 1.39  

Diluted net income per common share

  $ 0.40     $ 0.43     $ 0.35     $ 0.20     $ 1.38  

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

   

Year Ended December 31, 2018

 

(In thousands, except per share data)

 

First

   

Second

   

Third

   

Fourth

   

Year

 

Summary Operating Results:

                                       

Total revenues

  $ 606,118     $ 616,793     $ 612,196     $ 791,623     $ 2,626,730  

Operating income

    94,774       96,258       69,568       94,684       355,284  
                                         

Income from continuing operations, net of tax

  $ 41,399     $ 38,598     $ 11,837     $ 22,867     $ 114,701  

Income from discontinued operations, net of tax

    —       347       —       —       347  

Net income

  $ 41,399     $ 38,945     $ 11,837     $ 22,867     $ 115,048  
                                         

Basic net income per common share:

                                       

Continuing operations

  $ 0.36     $ 0.34     $ 0.10     $ 0.21     $ 1.01  

Discontinued operations

    —       —       —       —       —  

Basic net income per common share

  $ 0.36     $ 0.34     $ 0.10     $ 0.21     $ 1.01  

Diluted net income per common share:

                                       

Continuing operations

  $ 0.36     $ 0.34     $ 0.10     $ 0.20     $ 1.00  

Discontinued operations

    —       —       —       —       —  

Diluted net income per common share

  $ 0.36     $ 0.34     $ 0.10     $ 0.20     $ 1.00  

 

 

NOTE 16.    CONDENSED CONSOLIDATING FINANCIAL INFORMATION

Separate condensed consolidating financial information for our subsidiary guarantors and non-guarantors of our 6.375% Notes, our 6.000% Notes and our 4.750% Notes is presented below. The 6.375% Notes are fully and unconditionally guaranteed, on a joint and several basis, by certain of our current and future domestic restricted subsidiaries, all of which are 100% owned by us. The non-guarantors primarily represent our special purpose entities, tax holding companies, our less significant operating subsidiaries and our less than wholly owned subsidiaries.

 

The 6.000% Notes and 4.750% Notes are fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis by certain of our current and future domestic restricted subsidiaries. With the exception of one subsidiary, the guarantors of the 6.000% Notes and 4.750% Notes are the same as for our 6.375% Notes. The non-guarantors primarily represent our special purpose entities, tax holding companies, our less significant operating subsidiaries, our less than wholly owned subsidiaries and those properties acquired in 2018.

 

The tables below present the condensed consolidating balance sheets as of December 31, 2019 and 2018, the condensed consolidating statements of operations for the years ended December 31, 2019, 2018 and 2017 and the condensed consolidating statements of cash flows for the years ended December 31, 2019, 2018 and 2017. On January 10, 2019, Ameristar Kansas City, Ameristar St. Charles, Belterra Resort, Belterra Park and Valley Forge became guarantors of the 6.375% Notes, the 6.000% Notes and the Credit Facility. We have reclassified certain prior year amounts in the current year presentation to reflect the designation of the additional restricted subsidiaries listed above as subsidiary guarantors.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Condensed Consolidating Balance Sheets

 

   

December 31, 2019

 
                           

Non-

   

Non-

                 
                           

Guarantor

   

Guarantor

                 
                   

Subsidiary

   

Subsidiaries

   

Subsidiaries

                 
           

Guarantor

    (100%     (100%    

(Not 100%

                 

(In thousands)

 

Parent

   

Subsidiaries

   

Owned)*

   

Owned)

   

Owned)

   

Eliminations

   

Consolidated

 

Assets

                                                       

Cash and cash equivalents

  $ 3,007     $ 231,866     $ —     $ 15,104     $ —     $ —     $ 249,977  

Restricted cash

    —       12,668       —       7,803       —       —       20,471  

Other current assets

    24,164       100,219       55       4,608       —       —       129,046  

Property and equipment, net

    159,139       2,411,456       —       101,958       —       —       2,672,553  

Investments in subsidiaries

    3,718,900       47,759       —       —       —       (3,766,659 )     —  

Intercompany receivable

    1,031,342       —       59,116       —       —       (1,090,458 )     —  

Operating leases right-of-use assets

    23,229       886,463       —       26,478       —       —       936,170  

Other long-term assets

    20,662       22,636       —       48,452       —       —       91,750  

Intangible assets, net

    —       1,390,954       —       75,937       —       —       1,466,891  

Goodwill, net

    —       1,051,968       —       31,319       —       —       1,083,287  

Total assets

  $ 4,980,443     $ 6,155,989     $ 59,171     $ 311,659     $ —     $ (4,857,117 )   $ 6,650,145  
                                                         

Liabilities and Stockholders' Equity

                                                       

Current maturities of long-term debt

  $ 26,695     $ 299     $ —     $ —     $ —     $ —     $ 26,994  

Other current liabilities

    159,138       332,393       —       39,858       —       (1,490 )     529,899  
Accumulated losses of subsidiaries in excess of investment     —       —       —       9,946       —       (9,946 )     —  

Intercompany payable

    —       104,697       —       984,298       —       (1,088,995 )     —  

Long-term debt, net of current maturities and debt issuance costs

    3,680,912       341       —       57,684       —       —       3,738,937  

Operating lease liabilities, net of current portion

    19,189       814,779       —       6,317       —       —       840,285  

Other long-term liabilities

    (170,733 )     420,775       900       (2,154 )     —       —       248,788  
                                                         

Total stockholders' equity (deficit)

    1,265,242       4,482,705       58,271       (784,290 )     —       (3,756,686 )     1,265,242  

Total liabilities and stockholders' equity

  $ 4,980,443     $ 6,155,989     $ 59,171     $ 311,659     $ —     $ (4,857,117 )   $ 6,650,145  

 

*Subsidiary is a 100% owned guarantor of the 6.375% Notes and is a 100% owned non-guarantor of the 6.000% Notes and 4.750% Notes.

 

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Condensed Consolidating Balance Sheets - continued

 

   

December 31, 2018

 
                           

Non-

   

Non-

                 
                           

Guarantor

   

Guarantor

                 
                   

Subsidiary

   

Subsidiaries

   

Subsidiaries

                 
           

Guarantor

   

(100%

   

(100%

   

(Not 100%

                 

(In thousands)

 

Parent

   

Subsidiaries

   

Owned)*

   

Owned)

   

Owned)

   

Eliminations

   

Consolidated

 

Assets

                                                       

Cash and cash equivalents

  $ 8,697     $ 226,200     $ —     $ 14,520     $ —     $ —     $ 249,417  

Restricted cash

    —       13,703       —       10,082       —       —       23,785  

Other current assets

    15,636       108,069       191       2,844       —       (191 )     126,549  

Property and equipment, net

    117,642       2,505,987       —       92,435       —       —       2,716,064  

Investments in subsidiaries

    6,381,321       —       —       3,861       —       (6,385,182 )     —  

Intercompany receivable

    —       2,106,566       374,108       —       —       (2,480,674 )     —  

Other long-term assets

    33,513       30,002       —       48,237       —       —       111,752  

Intangible assets, net

    —       1,386,868       —       79,802       —       —       1,466,670  

Goodwill, net

    —       1,029,628       —       32,474       —       —       1,062,102  

Total assets

  $ 6,556,809     $ 7,407,023     $ 374,299     $ 284,255     $ —     $ (8,866,047 )   $ 5,756,339  
                                                         

Liabilities and Stockholders' Equity

                                                       

Current maturities of long-term debt

  $ 23,895     $ 286     $ —     $ —     $ —     $ —     $ 24,181  

Other current liabilities

    160,262       267,250       —       17,679       —       329       445,520  

Accumulated losses of subsidiaries in excess of investment

    —       9,459       —       —       —       (9,459 )     —  

Intercompany payable

    1,509,857       —       —       971,060       —       (2,480,917 )     —  

Long-term debt, net of current maturities and debt issuance costs

    3,896,699       736       —       57,684       —       —       3,955,119  

Other long-term liabilities

    (179,645 )     382,148       900       (17,625 )     —       —       185,778  
                                                         

Total stockholders' equity (deficit)

    1,145,741       6,747,144       373,399       (744,543 )     —       (6,376,000 )     1,145,741  

Total liabilities and stockholders' equity

  $ 6,556,809     $ 7,407,023     $ 374,299     $ 284,255     $ —     $ (8,866,047 )   $ 5,756,339  

 

*Subsidiary is a 100% owned guarantor of the 6.375% Notes and is a 100% owned non-guarantor of the 6.000% Notes and 4.750% Notes.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Condensed Consolidating Statements of Operations

 

   

Year Ended December 31, 2019

 
                           

Non-

   

Non-

                 
                           

Guarantor

   

Guarantor

                 
                   

Subsidiary

   

Subsidiaries

   

Subsidiaries

                 
           

Guarantor

    (100%     (100%    

(Not 100%

                 

(In thousands)

 

Parent

   

Subsidiaries

   

Owned)*

   

Owned)

   

Owned)

   

Eliminations

   

Consolidated

 

Total revenues

  $ 84,144     $ 3,258,013     $ —     $ 86,053     $ —     $ (102,091 )   $ 3,326,119  

Operating costs and expenses

                                                       

Operating

    —       1,664,496       —       71,721       —       —       1,736,217  

Selling, general and administrative

    —       449,422       —       10,161       —       —       459,583  

Master lease rent expense

    —       97,723       —       —       —       —       97,723  

Maintenance and utilities

    —       153,324       —       1,349       —       —       154,673  

Depreciation and amortization

    39,490       224,612       —       12,467       —       —       276,569  

Corporate expense

    100,919       673       —       3,547       —       —       105,139  

Project development, preopening and writedowns

    6,557       6,128       —       9,043       —       —       21,728  

Other operating items, net

    1,895       24       —       —       —       —       1,919  

Intercompany expenses

    203       101,888       —       —       —       (102,091 )     —  

Total operating costs and expenses

    149,064       2,698,290       —       108,288       —       (102,091 )     2,853,551  

Equity in earnings (losses) of subsidiaries

    438,736       (757 )     —       —       —       (437,979 )     —  

Operating income (loss)

    373,816       558,966       —       (22,235 )     —       (437,979 )     472,568  

Other expense (income)

                                                       

Interest expense, net

    227,757       1,381       —       6,469       —       —       235,607  

Loss on early extinguishments and modifications of debt

    34,949       —       —       —       —       —       34,949  

Other, net

    513       (564 )     —       (63 )     —       —       (114 )

Total other expense (income), net

    263,219       817       —       6,406       —       —       270,442  

Income (loss) from continuing operations before income taxes

    110,597       558,149       —       (28,641 )     —       (437,979 )     202,126  

Income tax benefit (provision)

    47,039       (95,948 )     —       4,419       —       —       (44,490 )

Net income (loss)

  $ 157,636     $ 462,201     $ —     $ (24,222 )   $ —     $ (437,979 )   $ 157,636  

Comprehensive income (loss)

  $ 158,171     $ 462,736     $ —     $ (24,222 )   $ —     $ (438,514 )   $ 158,171  

 

*Subsidiary is a 100% owned guarantor of the 6.375% Notes and is a 100% owned non-guarantor of the 6.000% Notes and 4.750% Notes.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Condensed Consolidating Statements of Operations - continued

 

   

Year Ended December 31, 2018

 
                           

Non-

   

Non-

                 
                           

Guarantor

   

Guarantor

                 
                   

Subsidiary

   

Subsidiaries

   

Subsidiaries

                 
           

Guarantor

   

(100%

   

(100%

   

(Not 100%

                 

(In thousands)

 

Parent

   

Subsidiaries

   

Owned)*

   

Owned)

   

Owned)

   

Eliminations

   

Consolidated

 

Total revenues

  $ 83,508     $ 2,579,317     $ —     $ 66,084     $ —     $ (102,179 )   $ 2,626,730  

Operating costs and expenses

                                                       

Operating

    —       1,313,823       —       57,556       —       —       1,371,379  

Selling, general and administrative

    13       360,089       —       9,222       —       (11 )     369,313  

Master lease rent expense

    —       20,682       —       —       —       —       20,682  

Maintenance and utilities

    —       125,667       —       1,360       —       —       127,027  

Depreciation and amortization

    19,052       203,570       —       7,357       —       —       229,979  

Corporate expense

    100,844       403       —       2,954       —       —       104,201  

Project development, preopening and writedowns

    31,514       4,043       —       10,141       —       —       45,698  

Impairment of assets

    993       —       —       —       —       —       993  

Other operating items, net

    58       2,116       —       —       —       —       2,174  

Intercompany expenses

    203       101,965       —       —       —       (102,168 )     —  

Total operating costs and expenses

    152,677       2,132,358       —       88,590       —       (102,179 )     2,271,446  

Equity in earnings (losses) of subsidiaries

    311,701       (1,352 )     —       —       —       (310,349 )     —  

Operating income (loss)

    242,532       445,607       —       (22,506 )     —       (310,349 )     355,284  

Other expense (income)

                                                       

Interest expense, net

    174,299       1,192       —       24,976       —       —       200,467  

Loss on early extinguishments and modifications of debt

    61       —       —       —       —       —       61  

Other, net

    161       (371 )     —       (66 )     —       —       (276 )

Total other expense (income), net

    174,521       821       —       24,910       —       —       200,252  

Income (loss) from continuing operations before income taxes

    68,011       444,786       —       (47,416 )     —       (310,349 )     155,032  

Income tax benefit (provision)

    47,037       (97,358 )     —       9,990       —       —       (40,331 )

Income (loss) from continuing operations, net of tax

    115,048       347,428       —       (37,426 )     —       (310,349 )     114,701  

Income (loss) from discontinued operations, net of tax

    —       —       347       —       —       —       347  

Net income (loss)

  $ 115,048     $ 347,428     $ 347     $ (37,426 )   $ —     $ (310,349 )   $ 115,048  

Comprehensive income (loss)

  $ 113,853     $ 346,233     $ 347     $ (37,426 )   $ —     $ (309,154 )   $ 113,853  

 

*Subsidiary is a 100% owned guarantor of the 6.375% Notes and is a 100% owned non-guarantor of the 6.000% Notes and 4.750% Notes.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Consolidating Statements of Operations - continued

 

   

Year Ended December 31, 2017

 
                           

Non-

   

Non-

                 
                           

Guarantor

   

Guarantor

                 
                   

Subsidiary

   

Subsidiaries

   

Subsidiaries

                 
           

Guarantor

   

(100%

   

(100%

   

(Not 100%

                 

(In thousands)

 

Parent

   

Subsidiaries

   

Owned)*

   

Owned)

   

Owned)

   

Eliminations

   

Consolidated

 

Total revenues

  $ 73,292     $ 2,377,514     $ —     $ 42,670     $ —     $ (92,657 )   $ 2,400,819  

Operating costs and expenses

                                                       

Operating

    —       1,225,765       —       38,156       —       —       1,263,921  

Selling, general and administrative

    44       354,423       —       7,612       —       (42 )     362,037  

Maintenance and utilities

    —       108,092       —       1,370       —       —       109,462  

Depreciation and amortization

    12,041       201,401       —       4,080       —       —       217,522  

Corporate expense

    85,362       1,140       —       1,646       —       —       88,148  

Project development, preopening and writedowns

    7,806       2,758       154       3,736       —       —       14,454  

Impairment of assets

    600       1       —       (1,027 )     —       —       (426 )

Other operating items, net

    725       1,175       —       —       —       —       1,900  

Intercompany expenses

    1,204       91,411       —       —       —       (92,615 )     —  

Total operating costs and expenses

    107,782       1,986,166       154       55,573       —       (92,657 )     2,057,018  

Equity in earnings (losses) of subsidiaries

    330,711       (1,374 )     —       —       —       (329,337 )     —  

Operating income (loss)

    296,221       389,974       (154 )     (12,903 )     —       (329,337 )     343,801  

Other expense (income)

                                                       

Interest expense, net

    169,990       1,275       —       25       —       —       171,290  

Loss on early extinguishments and modifications of debt

    1,582       —       —       —       —       —       1,582  

Other, net

    (16 )     (98 )     —       (70 )     —       —       (184 )

Total other expense (income), net

    171,556       1,177       —       (45 )     —       —       172,688  

Income (loss) from continuing operations before income taxes

    124,665       388,797       (154 )     (12,858 )     —       (329,337 )     171,113  

Income tax benefit (provision)

    64,725       (73,426 )     —       5,586       —       —       (3,115 )

Income (loss) from continuing operations, net of tax

    189,390       315,371       (154 )     (7,272 )     —       (329,337 )     167,998  

Income (loss) from discontinued operations, net of tax

    —       —       21,392       —       —       —       21,392  

Net income (loss)

  $ 189,390     $ 315,371     $ 21,238     $ (7,272 )   $ —     $ (329,337 )   $ 189,390  

Comprehensive income (loss)

  $ 189,823     $ 315,804     $ 21,238     $ (7,272 )   $ —     $ (329,770 )   $ 189,823  

 

*Subsidiary is a 100% owned guarantor of the 6.375% Notes and is a 100% owned non-guarantor of the 6.000% Notes and 4.750% Notes.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Condensed Consolidating Statements of Cash Flows

 

   

Year Ended December 31, 2019

 
                           

Non-

   

Non-

                 
                           

Guarantor

   

Guarantor

                 
                   

Subsidiary

   

Subsidiaries

   

Subsidiaries

                 
           

Guarantor

   

(100%

   

(100%

   

(Not 100%

                 

(In thousands)

 

Parent

   

Subsidiaries

   

Owned)*

   

Owned)

   

Owned)

   

Eliminations

   

Consolidated

 

Cash flows from operating activities

                                                       

Net cash from operating activities

  $ 2,992,943     $ (2,114,670 )   $ (314,992 )   $ (12,583 )   $ —     $ (1,706 )   $ 548,992  

Cash flows from investing activities

                                                       

Capital expenditures

    (129,678 )     (76,274 )     —       (1,685 )     —       —       (207,637 )

Cash paid for acquisition, net of cash received

    (5,535 )     —       —       —       —       —       (5,535 )

Net activity with affiliates

    —       2,211,263       314,992       —       —       (2,526,255 )     —  
Distributions from subsidiary     9,000       —       —       —       —       (9,000 )     —  

Other investing activities

    (11,471 )     (6,788 )     —       —       —       —       (18,259 )

Net cash from investing activities

    (137,684 )     2,128,201       314,992       (1,685 )     —       (2,535,255 )     (231,431 )

Cash flows from financing activities

                                                       

Borrowings under bank credit facility

    1,666,329       —       —       —       —       —       1,666,329  

Payments under bank credit facility

    (2,132,024 )     —       —       —       —       —       (2,132,024 )
Proceeds from issuance of senior notes     1,000,000       —       —       —       —       —       1,000,000  
Retirements of senior notes     (750,000 )     —       —       —       —       —       (750,000 )
Premium and consent fees     (25,785 )     —       —       —       —       —       (25,785 )

Debt financing costs, net

    (15,500 )     —       —       —       —       —       (15,500 )

Net activity with affiliates

    (2,541,199 )     —       —       13,238       —       2,527,961       —  
Distributions to parent     —       (8,335 )     —       (665 )     —       9,000       —  

Share-based compensation activities, net

    (5,776 )     —       —       —       —       —       (5,776 )

Shares repurchased and retired

    (28,045 )     —       —       —       —       —       (28,045 )

Dividends paid

    (28,949 )     —       —       —       —       —       (28,949 )

Other financing activities

    —       (565 )     —       —       —       —       (565 )

Net cash from financing activities

    (2,860,949 )     (8,900 )     —       12,573       —       2,536,961       (320,315 )

Change in cash, cash equivalents and restricted cash

    (5,690 )     4,631       —       (1,695 )     —       —       (2,754 )

Cash, cash equivalents and restricted cash, beginning of period

    8,697       239,903       —       24,602       —       —       273,202  

Cash, cash equivalents and restricted cash, end of period

  $ 3,007     $ 244,534     $ —     $ 22,907     $ —     $ —     $ 270,448  

 

*Subsidiary is a 100% owned guarantor of the 6.375% Notes and is a 100% owned non-guarantor of the 6.000% Notes and 4.750% Notes.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Condensed Consolidating Statements of Cash Flows - continued

 

   

Year Ended December 31, 2018

 
                           

Non-

   

Non-

                 
                           

Guarantor

   

Guarantor

                 
                   

Subsidiary

   

Subsidiaries

   

Subsidiaries

                 
           

Guarantor

   

(100%

   

(100%

   

(Not 100%

                 

(In thousands)

 

Parent

   

Subsidiaries

   

Owned)*

   

Owned)

   

Owned)

   

Eliminations

   

Consolidated

 

Cash flows from operating activities

                                                       

Net cash from operating activities

  $ (323,948 )   $ 660,683     $ (92 )   $ 97,640     $ —     $ 244     $ 434,527  

Cash flows from investing activities

                                                       

Capital expenditures

    (95,576 )     (65,015 )     —       (953 )     —       —       (161,544 )

Cash paid for acquisition, net of cash received

    (934,073 )     —       —       —       —       —       (934,073 )

Net activity with affiliates

    —       (545,725 )     (390 )     —       —       546,115       —  

Distributions from subsidiary

    7,975       —       —       —       —       (7,975 )     —  

Other investing activities

    (13,860 )     (15,850 )     —       (10,000 )     —       —       (39,710 )

Net cash from investing activities

    (1,035,534 )     (626,590 )     (390 )     (10,953 )     —       538,140       (1,135,327 )

Cash flows from financing activities

                                                       

Borrowings under bank credit facility

    1,114,600       —       —       —       —       —       1,114,600  

Payments under bank credit facility

    (964,322 )     —       —       —       —       —       (964,322 )

Proceeds from issuance of senior notes

    700,000       —       —       —       —       —       700,000  

Debt financing costs, net

    (14,215 )     —       —       —       —       —       (14,215 )

Net activity with affiliates

    621,413       —       —       (75,054 )     —       (546,359 )     —  

Distributions to parent

    —       (7,975 )             —       —       7,975       —  

Share-based compensation activities, net

    (5,344 )     —       —       —       —       —       (5,344 )

Shares repurchased and retired

    (59,570 )     —       —       —       —       —       (59,570 )

Dividends paid

    (24,730 )     —       —       —       —       —       (24,730 )

Other financing activities

    —       (178 )     —       —       —       —       (178 )

Net cash from financing activities

    1,367,832       (8,153 )     —       (75,054 )     —       (538,384 )     746,241  

Cash Flows from Discontinued Operations

                                                       

Cash flows from operating activities

    —       —       —       —       —       —       —  

Cash flows from investing activities

    —       —       482       —       —       —       482  

Cash flows from financing activities

    —       —       —       —       —       —       —  

Net cash provided by discontinued operations

    —       —       482       —       —       —       482  

Change in cash, cash equivalents and restricted cash

    8,350       25,940       —       11,633       —       —       45,923  

Cash, cash equivalents and restricted cash, beginning of period

    347       213,963       —       12,969       —       —       227,279  

Cash, cash equivalents and restricted cash, end of period

  $ 8,697     $ 239,903     $ —     $ 24,602     $ —     $ —     $ 273,202  

 

*Subsidiary is a 100% owned guarantor of the 6.375% Notes and is a 100% owned non-guarantor of the 6.000% Notes and 4.750% Notes.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

Condensed Consolidating Statements of Cash Flows - continued

 

   

Year Ended December 31, 2017

 
                           

Non-

   

Non-

                 
                           

Guarantor

   

Guarantor

                 
                   

Subsidiary

   

Subsidiaries

   

Subsidiaries

                 
           

Guarantor

   

(100%

   

(100%

   

(Not 100%

                 

(In thousands)

 

Parent

   

Subsidiaries

   

Owned)*

   

Owned)

   

Owned)

   

Eliminations

   

Consolidated

 

Cash flows from operating activities

                                                       

Net cash from operating activities

  $ (82,632 )   $ 532,515     $ (12,907 )   $ (15,628 )   $ 254     $ 949     $ 422,551  

Cash flows from investing activities

                                                       

Capital expenditures

    (102,277 )     (87,590 )     —       (597 )     —       —       (190,464 )

Cash paid for acquisition, net of cash received

    (1,153 )     —       —       —       —       —       (1,153 )

Net activity with affiliates

    —       (420,716 )     (22,826 )     —       —       443,542       —  

Distributions from subsidiary

    10,867       —       —       —       —       (10,867 )     —  

Advances pursuant to development agreement

    —       —       —       (35,108 )     —       —       (35,108 )

Other investing activities

    —       706       —       —       —       —       706  

Net cash from investing activities

    (92,563 )     (507,600 )     (22,826 )     (35,705 )     —       432,675       (226,019 )

Cash flows from financing activities

                                                       

Borrowings under bank credit facility

    958,000       —       —       —       —       —       958,000  

Payments under bank credit facility

    (1,119,485 )     —       —       —       —       —       (1,119,485 )

Debt financing costs, net

    (3,430 )     —       —       —       —       —       (3,430 )

Net activity with affiliates

    389,579       —       —       55,166       (254 )     (444,491 )     —  

Distributions to parent

    —       (10,475 )             (392 )     —       10,867       —  

Share-based compensation activities, net

    (7,711 )     —       —       —       —       —       (7,711 )

Shares repurchased and retired

    (31,927 )     —       —       —       —       —       (31,927 )

Dividends paid

    (11,286 )     —       —       —       —       —       (11,286 )

Other financing activities

    590       (87 )     —       —       —       —       503  

Net cash from financing activities

    174,330       (10,562 )     —       54,774       (254 )     (433,624 )     (215,336 )

Cash Flows from Discontinued Operations

                                                       

Cash flows from operating activities

    —       —       (514 )     —       —       —       (514 )

Cash flows from investing activities

    —       —       36,247       —       —       —       36,247  

Cash flows from financing activities

    —       —       —       —       —       —       —  

Net cash provided by discontinued operations

    —       —       35,733       —       —       —       35,733  

Change in cash, cash equivalents and restricted cash

    (865 )     14,353       —       3,441       —       —       16,929  

Cash, cash equivalents and restricted cash, beginning of period

    1,212       199,610       —       9,528       —       —       210,350  

Cash, cash equivalents and restricted cash, end of period

  $ 347     $ 213,963     $ —     $ 12,969     $ —     $ —     $ 227,279  

 

*Subsidiary is a 100% owned guarantor of the 6.375% Notes and is a 100% owned non-guarantor of the 6.000% Notes and 4.750% Notes.

 

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BOYD GAMING CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)

as of December 31, 2019 and 2018 and for the years ended  December 31, 2019, 2018 and 2017

 

 

 

NOTE 17.     RELATED PARTY TRANSACTIONS

Boyd Percentage Ownership

William S. Boyd, our Executive Chairman of the Board of Directors, together with his immediate family, beneficially owned approximately 27% of our outstanding shares of common stock as of December 31, 2019. As such, the Boyd family has the ability to significantly influence our affairs, including the election of members of our Board of Directors and, except as otherwise provided by law, approving or disapproving other matters submitted to a vote of our stockholders, including a merger, consolidation or sale of assets. For each of the years ended December 31, 2019, 2018 and 2017, there were no related party transactions between the Company and the Boyd family other than compensation, including salary and equity incentives.

 

 

NOTE 18.    SUBSEQUENT EVENTS

We have evaluated all events or transactions that occurred after December 31, 2019. During this period, up to the filing date, we did not identify any subsequent events, other than the payment of the cash dividend disclosed in Note 11, Stockholders' Equity and Stock Incentive Plans, the effects of which would require disclosure or adjustment to our financial position or results of operations.

 

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ITEM 9.    Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

There were no changes in or disagreements with accountants on accounting and financial disclosures during the two years in the period ended December 31, 2019.

 

ITEM 9A.    Controls and Procedures

As of the end of the period covered by this Report, we carried out an evaluation, under the supervision and with the participation of our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the "Exchange Act")). Our disclosure controls and procedures are designed to provide reasonable assurance that information required to be disclosed in our reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC's rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information we are required to disclose in reports we file or submit under the Exchange Act is accumulated and communicated to our management, including our principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure. Based on the evaluation of the effectiveness of the design and operation of our disclosure controls and procedures, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective at a reasonable assurance level as of the end of the period covered by this Report.

 

Pursuant to Section 404 of the Sarbanes-Oxley Act of 2002, we include a report of management's assessment of the design and effectiveness of our internal controls as part of this Annual Report on Form 10-K for the fiscal year ended December 31, 2019. Our independent registered public accounting firm also reported on the effectiveness of our internal controls over financial reporting. Management's report and the independent registered public accounting firm's attestation report are located below.

 

There has been no change in our internal control over financial reporting that occurred during our most recent fiscal quarter that has materially affected or is reasonably likely to materially affect our internal control over financial reporting.

 

Management's Annual Report on Internal Control over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act. Under the supervision and with the participation of our management, including our principal executive officer and principal financial officer, we evaluated the effectiveness of our internal control over financial reporting as of the end of the most recent fiscal year, December 31, 2019, utilizing the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) in the Internal Control-Integrated Framework (2013).

 

Based on our evaluation under the framework set forth in Internal Control - Integrated Framework, our management concluded that our internal control over financial reporting was effective as of December 31, 2019, the end of our most recent fiscal year.

 

Deloitte & Touche LLP, an independent registered public accounting firm, has issued an attestation report on our internal control over financial reporting as of December 31, 2019, which report follows below.

 

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the stockholders and the Board of Directors of Boyd Gaming Corporation

 

Opinion on Internal Control over Financial Reporting

 

We have audited the internal control over financial reporting of Boyd Gaming Corporation and Subsidiaries (the “Company”) as of December 31, 2019, based on criteria established in Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2019, based on criteria established in Internal Control — Integrated Framework (2013) issued by COSO.

 

We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated financial statements as of and for the year ended December 31, 2019, of the Company and our report dated February 27, 2020, expressed an unqualified opinion on those financial statements and included an explanatory paragraph regarding the Company’s adoption of ASU 2016-02, Leases, and related amendments.

 

Basis for Opinion

 

The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Management’s Report on Internal Control over Financial Reporting. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

 

We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

 

Definition and Limitations of Internal Control over Financial Reporting

 

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

 

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

 

/s/ DELOITTE & TOUCHE LLP

 

Las Vegas, Nevada

February 27, 2020

 

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ITEM 9B.    Other Information

Effective as of February 13, 2020, the Board of Directors amended and restated the Company's Bylaws to revise the name of the "Compensation and Stock Options Committee" to the "Compensation Committee."

 

PART III

 

ITEM 10.    Directors, Executive Officers and Corporate Governance

Information required by this item regarding the members of our board of directors and our audit committee, including our audit committee financial experts, is set forth under the captions Board Committees - Audit Committee, Director Nominees, and Delinquent Section 16(a) Reports in our Definitive Proxy Statement to be filed in connection with our 2020 Annual Meeting of Stockholders and is incorporated herein by reference.

 

The following table sets forth the non-director executive officers of Boyd Gaming Corporation as of February 27, 2020:

 

Name

 

Age

 

Position

Josh Hirsberg

 

58

 

Executive Vice President, Chief Financial Officer and Treasurer (Principal Financial Officer)

Theodore A. Bogich

 

65

 

Executive Vice President, Operations

Stephen S. Thompson

 

60

 

Executive Vice President, Operations

Anthony D. McDuffie

 

59

 

Vice President and Chief Accounting Officer (Principal Accounting Officer)

 

Josh Hirsberg joined the Company as our Senior Vice President, Chief Financial Officer and Treasurer effective January 1, 2008 and was promoted to Executive Vice President effective January 13, 2016. Prior to his position with the Company, Mr. Hirsberg served as the Chief Financial Officer for EdgeStar Partners, a Las Vegas-based resort development concern. He previously held several senior-level finance positions in the gaming industry, including Vice President and Treasurer for Caesars Entertainment and Vice President, Strategic Planning and Investor Relations for Harrah's Entertainment.

 

Theodore A. Bogich was appointed an Executive Vice President, Operations on January 13, 2016. Mr. Bogich joined Boyd Gaming in 2004 as Vice President and General Manager of Sam’s Town Tunica, and was named Vice President and General Manager of Blue Chip Casino Hotel in Michigan City, Indiana, in 2007. He was promoted to Senior Vice President, Operations in 2012.

 

Stephen S. Thompson was appointed an Executive Vice President, Operations on January 13, 2016. Prior to his being appointed this position, Mr. Thompson served in numerous senior executive positions with Boyd Gaming since joining the Company in 1983, including Senior Vice President, Operations for Boyd Gaming’s Nevada region since 2004.

 

Anthony D. McDuffie has served as our Vice President and Chief Accounting Officer since March 2013. Prior to being appointed Vice President and Chief Accounting Officer, Mr. McDuffie, served as the Company's Director, Accounting Policy & Reporting, since October 2012. Mr. McDuffie previously served in senior-level financial accounting positions with several public companies, including Vice President, Finance and Controller of Pinnacle Airlines Corp. and as Controller and Chief Accounting Officer of Caesars Entertainment Corporation.

 

Code of Ethics. We have adopted a Code of Business Conduct and Ethics ("Code of Ethics") that applies to each of our directors, executive officers and employees. Our Code of Ethics is posted on our website at www.boydgaming.com. Any waivers or amendments to our Code of Ethics will be posted on our website.

 

ITEM 11.    Executive Compensation

The information required by this item is set forth under the captions Executive Officer and Director Compensation, Compensation Committee Interlocks and Insider Participation, and Compensation Committee Report in our Definitive Proxy Statement to be filed in connection with our 2020 Annual Meeting of Stockholders and is incorporated herein by reference.

 

ITEM 12.    Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

The information required by this item is set forth under the captions Ownership of Certain Beneficial Owners and Management and Equity Compensation Plan Information in our Definitive Proxy Statement to be filed in connection with our 2020 Annual Meeting of Stockholders and is incorporated herein by reference.

 

ITEM 13.    Certain Relationships and Related Transactions, and Director Independence

The information required by this item is set forth under the captions Transactions with Related Persons and Director Independence in our Definitive Proxy Statement to be filed in connection with our 2020 Annual Meeting of Stockholders and is incorporated herein by reference.

 

ITEM 14.    Principal Accounting Fees and Services

Information about principal accounting fees and services, as well as the audit committee's pre-approval policies appears under the captions Audit and Non-Audit Fees and Audit Committee Pre-Approval of Audit and Non-Audit Services in our Definitive Proxy Statement to be filed in connection with our 2020 Annual Meeting of Stockholders and is incorporated herein by reference.

 

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PART IV

 

 

ITEM 15.    Exhibits, Financial Statement Schedules

 

1.

Financial Statements

 

Financial statements of the Company (including related notes to consolidated financial statements) filed as part of this report are listed below:

 

 

Page No.

Report of Independent Registered Public Accounting Firm

53

 

 

Consolidated Balance Sheets at December 31, 2019 and 2018

55

 

 

Consolidated Statements of Operations for the years ended December 31, 2019, 2018 and 2017

56

 

 

Consolidated Statements of Comprehensive Income for the years ended December 31, 2019, 2018 and 2017

57

 

 

Consolidated Statements of Changes in Stockholders' Equity for the years ended December 31, 2019, 2018 and 2017

58

 

 

Consolidated Statements of Cash Flows for the years ended December 31, 2019, 2018 and 2017

59

 

 

Notes to Consolidated Financial Statements

61

 

2.

Financial Statement Schedules

 

All schedules have been omitted because they are not applicable, not required or the information required to be set forth therein is included in Consolidated Financial Statements or Notes thereto included in this Report.

 

3.

Exhibit List

 

Exhibit

 

 

 

 

Number

 

Description of Exhibit

 

Method of Filing

 

 

 

 

 

2.1†

 

Equity Purchase Agreement entered into as of May 31, 2016, by and among MGM Resorts International, Boyd Atlantic City, Inc., and Boyd Gaming Corporation.

 

Incorporated by reference to Exhibit 2.1 of the Registrant's Current Report on Form 8-K filed with the SEC on June 2, 2016.

 

 

 

 

 

2.2

 

First amendment to Equity Purchase Agreement entered into as of July 19, 2016, by and among MGM Resorts International, Boyd Atlantic City, Inc., and Boyd Gaming Corporation.

 

Incorporated by reference to Exhibit 2.2 of the Registrant's Current Report on Form 8-K filed with the SEC on August 5, 2016.

 

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Exhibit

 

 

 

 

Number

 

Description of Exhibit

 

Method of Filing

         

2.3†

 

Membership Interest Purchase Agreement, made and entered into on December 17, 2017, by and among Boyd Gaming Corporation, Boyd TCIV, LLC, Penn National Gaming, Inc., and, solely following the execution and delivery of a joinder to the Purchase Agreement, Pinnacle Entertainment, Inc. and Pinnacle MLS, LLC.

 

Incorporated by reference to Exhibit 2.1 of the Registrant’s Current Report on Form 8-K filed with the SEC on December 20, 2017.

 

 

 

 

 

2.4†

 

Master Lease Commitment and Rent Allocation Agreement, made and entered into as of December 17, 2017, by and among Boyd Gaming Corporation, Boyd TCIV, LLC, Penn National Gaming, Inc., Gaming and Leisure Properties, Inc., and Gold Merger Sub, LLC.

 

Incorporated by reference to Exhibit 2.2 of the Registrant's Current Report on Form 8-K filed with the SEC on December 20, 2017.

 

 

 

 

 

2.5†

 

Agreement and Plan of Merger, made and entered into on December 20, 2017, by and among Boyd Gaming Corporation, Boyd TCV, LP, a wholly owned subsidiary of Boyd, Valley Forge Convention

 

Incorporated by reference to Exhibit 2.1 of the Registrant's Current Report on Form 8-K filed with the SEC on December 22, 2017.

 

 

 

 

 

2.6†

 

Agreement and Plan of Merger, made and entered into on May 1, 2018, by and among the Company, Boyd TCVI Acquisition, LLC, Lattner Entertainment Group Illinois, LLC, and Lattner Capital, LLC, solely in its capacity as the Representative.

 

Incorporated by reference to Exhibit 2.1 of the Registrant’s Current Report on Form 8-K filed May 3, 2018.

 

 

 

 

 

2.7†

 

First Amendment to Agreement and Plan of Merger, dated as of September 17, 2018, by and among Boyd Gaming Corporation, Boyd TCV, LP, Valley Forge Convention Center Partners, L.P. and VFCCP SR LLC.

 

Incorporated by reference to Exhibit 2.2 of the Registrant’s Current Report on Form 8-K filed September 20, 2018.

 

 

 

 

 

2.8†

 

Amendment No. 1 to Membership Interest Purchase Agreement, dated as of December 17, 2017, by and among Boyd Gaming Corporation, Boyd TCIV, LLC, Penn National Gaming, Inc., and solely following the execution and delivery of a joinder to the Purchase Agreement, Pinnacle Entertainment, Inc., and Pinnacle MLS, LLC.

 

Incorporated by reference to Exhibit 2.11 of the Registrant's Annual Report on Form 10-K for the year ended December 31, 2017 filed with the SEC on February 26, 2018.

 

 

 

 

 

2.9†

 

Amendment No. 2 to Membership Interest Purchase Agreement, dated October 15, 2018, by and among Boyd Gaming Corporation, Boyd TCIV, LLC, Penn National Gaming, Inc., and, solely following the execution and delivery of a joinder to the Purchase Agreement, Pinnacle Entertainment, Inc. and Pinnacle MLS, LLC.

 

Incorporated by reference to Exhibit 2.3 of the Registrant’s Current Report on Form 8-K filed October 18, 2018.

 

 

 

 

 

2.10†

 

Purchase Agreement, dated December 17, 2017, by and between Penn National Gaming, Inc., Gold Merger Sub, LLC, PNK (Ohio), LLC and Pinnacle Entertainment, Inc.

 

Incorporated by reference to Exhibit 2.4 of the Registrant’s Current Report on Form 8-K filed October 18, 2018.

 

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Exhibit

 

 

 

 

Number

 

Description of Exhibit

 

Method of Filing

 

 

 

 

 

2.11†

 

Novation and Amendment Agreement, dated October 15, 2018, by and among Penn National Gaming, Inc., Gold Merger Sub, LLC, Boyd (Ohio) PropCo, LLC, PNK (Ohio), LLC and Pinnacle Entertainment, Inc.

 

Incorporated by reference to Exhibit 2.5 of the Registrant’s Current Report on Form 8-K filed October 18, 2018.

 

 

 

 

 

3.1

 

Amended and Restated Articles of Incorporation of the Registrant.

 

Incorporated by reference to Exhibit 3.1 of the Registrant's Current Report on Form 8-K, filed with the SEC on May 24, 2006.

 

 

 

 

 

3.2

 

Amended and Restated By-Laws of Boyd Gaming Corporation, effective February 13, 2020.

 

Filed electronically herewith.

 

 

 

 

 

4.1

 

Form of Indenture relating to senior debt securities

 

Incorporated by reference to Exhibit 4.1 of the Registrant's Automatic Shelf Registration Statement on Form S-3ASR dated May 1, 2015.

 

 

 

 

 

4.2

 

Form of Indenture relating to subordinated debt securities

 

Incorporated by reference to Exhibit 4.2 of the Registrant's Automatic Shelf Registration Statement on Form S-3ASR dated May 1, 2015.

 

 

 

 

 

4.3

 

Form of Indenture relating to senior debt securities between the Company, Guarantors party thereto and Wilmington Trust, National Association, as Trustee.

 

Incorporated by reference to Exhibit 4.1 of the Registrant's Current Report on Form 8-K filed May 8, 2015.

 

 

 

 

 

4.4

 

First Supplemental Indenture, the Company's 6.875% Senior Notes due 2023, dated May 21, 2015, by and among the Company, Guarantors party thereto and Wilmington Trust, National Association, as Trustee, to that certain Indenture dated May 21, 2015, by and among the Company, Guarantors party thereto and Wilmington Trust, National Association, as Trustee.

 

Incorporated by reference to Exhibit 4.2 of the Registrant's Current Report on Form 8-K filed May 21, 2015.

 

 

 

 

 

4.5

 

Indenture governing the Company's 6.375% Senior Notes due 2026, dated March 28, 2016, by and among the Company, the guarantors named therein and Wilmington Trust, National Association, as trustee.

 

Incorporated by reference to Exhibit 4.1 of the Registrant's Current Report on Form 8-K filed with the SEC on March 29, 2016.

 

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Exhibit

 

 

 

 

Number

 

Description of Exhibit

 

Method of Filing

 

 

 

 

 

4.6

 

Form of 6.375% Senior Note.

 

Incorporated by reference to Exhibit 4.2 of the Registrant's Current Report on Form 8-K filed with the SEC on March 29, 2016.

 

 

 

 

 

4.7

 

Second Supplemental Indenture dated December 15, 2016 governing the Company's 6.875% Senior Notes due 2023, by and among the Company, the guarantors named therein and Wilmington Trust, National Association, as trustee.

 

Incorporated by reference to Exhibit 4.1 of the Registrant's Current Report on Form 8-K filed with the SEC on December 20, 2016.

 

 

 

 

 

4.8

 

First Supplemental Indenture dated December 15, 2016 governing the Company's 6.375% Senior Notes due 2026, by and among the Company, the guarantors named therein and Wilmington Trust, National Association, as trustee.

 

Incorporated by reference to Exhibit 4.2 of the Registrant's Current Report on Form 8-K filed with the SEC on December 20, 2016.

 

 

 

 

 

4.9

 

Third Supplemental Indenture dated March 7, 2017 governing the Company's 6.875% Senior Notes due 2023, by and among the Company, the guarantors named therein and Wilmington Trust, National Association, as trustee.

 

Incorporated by reference to Exhibit 4.1 of the Registrant's Current Report on Form 8-K filed with the SEC on March 7, 2017.

 

 

 

 

 

4.10

 

Second Supplemental Indenture dated March 7, 2017 governing the Company's 6.375% Senior Notes due 2026, by and among the Company, the guarantors named therein and Wilmington Trust, National Association, as trustee.

 

Incorporated by reference to Exhibit 4.2 of the Registrant's Current Report on Form 8-K filed with the SEC on March 7, 2017.

 

 

 

 

 

4.11

 

Indenture governing the Company’s 6.000% Senior Notes due 2026, dated June 25, 2018, by and among the Company, the guarantors named therein and Wilmington Trust, National Association, as trustee.

 

Incorporated by reference to Exhibit 4.1 of the Registrant’s Current Report on Form 8-K filed June 25, 2018.

 

 

 

 

 

4.12

 

Form of 6.000% Senior Note due 2026, (included in Exhibit 4.11).

 

Incorporated by reference to Exhibit 4.2 of the Registrant’s Current Report on Form 8-K filed June 25, 2018.

 

 

 

 

 

4.13

 

Fourth Supplemental Indenture dated January 10, 2019 governing the Company's 6.875% Senior Notes due 2023, by and among the Company, the guarantors named therein and Wilmington Trust, National Association, as trustee.

 

Incorporated by reference to Exhibit 4.17 of the Registrant's Annual Report on Form 10-K for the year ended December 31, 2018 filed with the SEC on March 1, 2019.

 

 

 

 

 

4.14

 

Third Supplemental Indenture dated January 10, 2019 governing the Company's 6.375% Senior Notes due 2026, by and among the Company, the guarantors named therein and Wilmington Trust, National Association, as trustee.

 

Incorporated by reference to Exhibit 4.18 of the Registrant's Annual Report on Form 10-K for the year ended December 31, 2018 filed with the SEC on March 1, 2019.

 

119
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Exhibit

 

 

 

 

Number

 

Description of Exhibit

 

Method of Filing

         

4.15

 

First Supplemental Indenture dated January 10, 2019 governing the Company’s 6.000% Senior Notes due 2026, by and among the Company, the guarantors named therein and Wilmington Trust, National Association, as trustee.

 

Incorporated by reference to Exhibit 4.19 of the Registrant's Annual Report on Form 10-K for the year ended December 31, 2018 filed with the SEC on March 1, 2019.

         
4.16   Indenture governing the Company's 4.750% Senior Notes due 2027, dated December 3, 2019, by and among the Company, the guarantors named therein and Wilmington Trust, National Association, as trustee.   Incorporated by reference to Exhibit 4.1 of the Registrant’s Current Report on Form 8-K filed December 3, 2019.
         
4.17   Form of 4.750% Senior Note due 2027, (included in Exhibit 4.16).   Incorporated by reference to Exhibit 4.2 of the Registrant’s Current Report on Form 8-K filed December 3, 2019.
         
4.18   Registration Rights Agreement, dated December 3, 2019, by and among the Company, the guarantors named therein and BofA Securities, Inc., on behalf of itself and as representative of the several initial purchasers.   Incorporated by reference to Exhibit 4.2 of the Registrant’s Current Report on Form 8-K filed December 3, 2019.
         

4.19

 

Description of Registrant's Securities

 

Filed electronically herewith.

         

10.1

 

Ninety-Nine Year Lease dated June 30, 1954, by and among Fremont Hotel, Inc., and Charles L. Ronnow and J.L. Ronnow, and Alice Elizabeth Ronnow

 

Incorporated by reference to the Registration Statement on Form S-1, File No. 33-51672, of California Hotel and Casino and California Hotel Finance Corporation, which was declared effective on November 18, 1992.

 

 

 

 

 

10.2

 

Lease Agreement dated October 31, 1963, by and between Fremont Hotel, Inc. and Cora Edit Garehime

 

Incorporated by reference to the Registration Statement on Form S-1, File No. 33-51672, of California Hotel and Casino and California Hotel Finance Corporation, which was declared effective on November 18, 1992.

 

 

 

 

 

10.3

 

Lease Agreement dated December 31, 1963, by and among Fremont Hotel, Inc., Bank of Nevada and Leon H. Rockwell, Jr.

 

Incorporated by reference to the Registration Statement on Form S-1, File No. 33-51672, of California Hotel and Casino and California Hotel Finance Corporation, which was declared effective on November 18, 1992.

 

 

 

 

 

10.4

 

Lease Agreement dated June 7, 1971, by and among Anthony Antonacci, Margaret Fay Simon and Bank of Nevada, as Co-Trustees under Peter Albert Simon's Last Will and Testament, and related Assignment of Lease dated February 25, 1985 to Sam-Will, Inc. and Fremont Hotel, Inc.

 

Incorporated by reference to the Registration Statement on Form S-1, File No. 33-51672, of California Hotel and Casino and California Hotel Finance Corporation, which was declared effective on November 18, 1992.

 

 

 

 

 

10.5

 

Lease Agreement dated July 25, 1973, by and between CH&C and William Peccole, as Trustee of the Peter Peccole 1970 Trust

 

Incorporated by reference to the Registrant's Annual Report on Form 10-K for the year ended June 30, 1995.

 

 

 

 

 

10.6

 

Lease Agreement dated July 1, 1974, by and among Fremont Hotel, Inc. and Bank of Nevada, Leon H. Rockwell, Jr. and Margorie Rockwell Riley

 

Incorporated by reference to the Registration Statement on Form S-1, File No. 33-51672, of California Hotel and Casino and California Hotel Finance Corporation, which was declared effective on November 18, 1992.

 

 

 

 

 

10.7

 

Ninety-Nine Year Lease, dated December 1, 1978, by and between Matthew Paratore, and George W. Morgan and LaRue Morgan, and related Lease Assignment dated November 10, 1987, to Sam-Will, Inc., d.b.a. Fremont Hotel and Casino

 

Incorporated by reference to the Registration Statement on Form S-1, File No. 33-51672, of California Hotel and Casino and California Hotel Finance Corporation, which was declared effective on November 18, 1992.

 

 

 

 

 

10.8

 

Form of Indemnification Agreement

 

Incorporated by reference to the Registrant's Registration Statement on Form S-1, File No. 33-64006, which was declared effective on October 15, 1993.

 

 

 

 

 

10.9

 

401(k) Profit Sharing Plan and Trust

 

Incorporated by reference to the Registration Statement on Form S-1, File No. 33-51672, of California Hotel and Casino and California Hotel Finance Corporation, which was declared effective on November 18, 1992.

 

120
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Exhibit

 

 

 

 

Number

 

Description of Exhibit

 

Method of Filing

         

10.10*

 

2000 Executive Management Incentive Plan (incorporated by reference to Appendix A of the Registrant's Definitive Proxy Statement filed with the SEC on April 21, 2000).

 

Incorporated by reference to Appendix A of the Registrant's Definitive Proxy Statement filed with the SEC on April 21, 2000.

 

 

 

 

 

10.11*

 

Annual Incentive Plan

 

Incorporated by reference to Exhibit 10.29 of the Registrant's Annual Report on Form 10-K for the year ended December 31, 2002.

 

 

 

 

 

10.12*

 

Form of Stock Option Award Agreement pursuant to the 2002 Stock Incentive Plan

 

Incorporated by reference to Exhibit 10.2 of the Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2008.

 

 

 

 

 

10.13*

 

Form of Restricted Stock Unit Agreement and Notice of Award pursuant to the 2002 Stock Incentive Plan

 

Incorporated by reference to Exhibit 10.1 of the Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2008.

 

 

 

 

 

10.14*

 

The Boyd Gaming Corporation Amended and Restated Deferred Compensation Plan for the Board of Directors and Key Employees

 

Incorporated by reference to Exhibit 10.39 of the Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 2004.

 

 

 

 

 

10.15*

 

Amendment Number 1 to the Amended and Restated Deferred Compensation Plan

 

Incorporated by reference to Exhibit 10.40 of the Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 2004.

 

 

 

 

 

10.16*

 

Amendment Number 2 to the Amended and Restated Deferred Compensation Plan

 

Incorporated by reference to Exhibit 10.41 of the Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 2004.

 

 

 

 

 

10.17*

 

Amendment Number 3 to the Amended and Restated Deferred Compensation Plan

 

Incorporated by reference to Exhibit 10.42 of the Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 2004.

 

 

 

 

 

10.18*

 

Amendment Number 4 to the Amended and Restated Deferred Compensation Plan

 

Incorporated by reference to Exhibit 10.43 of the Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 2004.

 

 

 

 

 

10.19*

 

Form of Stock Option Award Agreement Under the Registrant's Directors' Non-Qualified Stock Option Plan

 

Incorporated by reference to Exhibit 10.48 of the Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2005.

 

 

 

 

 

10.20*

 

Boyd Gaming Corporation's 2002 Stock Incentive Plan (as amended and restated on May 15, 2008)

 

Incorporated by reference to Appendix A of the Registrant's Definitive Proxy Statement filed with the SEC on April 2, 2008.

 

 

 

 

 

10.21*

 

Amendment Number 5 to the Amended and Restated Deferred Compensation Plan

 

Incorporated by reference to Exhibit 10.35 of the Registrant's Annual Report on Form 10-K for the year ended December 31, 2005.

 

 

 

 

 

10.22*

 

Amended and Restated 2000 Executive Management Incentive Plan

 

Incorporated by reference to Exhibit 10.1 of the Registrant's Current Report on Form 8-K, filed with the SEC on May 24, 2006.

 

 

 

 

 

10.23*

 

Amended and Restated 2002 Stock Incentive Plan

 

Incorporated by reference to Exhibit 10.2 of the Registrant's Current Report on Form 8-K, filed with the SEC on May 24, 2006.

 

121
Table of Contents

 

Exhibit

 

 

 

 

Number

 

Description of Exhibit

 

Method of Filing

         

10.24*

 

Form of Award Agreement for Restricted Stock Units under 2002 Stock Incentive Plan for Non-Employee Directors

 

Incorporated by reference to Exhibit 10.3 of the Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 2006.

 

 

 

 

 

10.25*

 

Form of Award Agreement for Restricted Stock Units under the 2002 Stock Incentive Plans

 

Incorporated by reference to Exhibit 10.3 of the Registrant's Current Report on Form 8-K filed with the SEC on May 24, 2006.

 

 

 

 

 

10.26*

 

Form of Career Restricted Stock Unit Award Unit Agreement under the 2002 Stock Incentive Plan

 

Incorporated by reference to Exhibit 10.1 of the Registrant's Current Report on Form 8-K filed with the SEC on December 13, 2006.

 

 

 

 

 

10.27*

 

Form of Restricted Stock Unit Agreement and Notice of Award Pursuant to the 2002 Stock Incentive Plan

 

Incorporated by reference to Exhibit 10.1 of the Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 2007.

 

 

 

 

 

10.28*

 

Change in Control Severance Plan for Tier I, II and III Executives

 

Incorporated by reference to Exhibit 10.46 of the Registrant's Annual Report on Form 10-K for the year ended December 31, 2006.

 

 

 

 

 

10.29

 

Form of Performance Share Unit Agreement and Notice of Award Pursuant to the 2002 Stock Incentive Plan

 

Incorporated by reference to Exhibit 10.49 of the Registrant's Annual Report on Form 10-K for the year ended December 31, 2011.

 

 

 

 

 

10.30

 

Offer to Purchase Real Estate, Acceptance and Lease, dated September 27, 2006, between Diamond Jo, LLC and Dubuque County Historical Society

 

Incorporated by reference to Exhibit 10.1 of Peninsula Gaming, LLC's Quarterly Report on Form 10-Q filed November 14, 2006.

 

 

 

 

 

10.31

 

Closing Agreement, dated September 27, 2006, between Diamond Jo, LLC and Dubuque County Historical Society

 

Incorporated by reference to Exhibit 10.2 of Peninsula Gaming, LLC's Quarterly Report on Form 10-Q filed November 14, 2006.

 

 

 

 

 

10.32

 

Real Estate Ground Lease, dated September 27, 2006, between Diamond Jo, LLC and Dubuque County Historical Society

 

Incorporated by reference to Exhibit 10.3 of Peninsula Gaming, LLC's Quarterly Report on Form 10-Q filed November 14, 2006.

 

 

 

 

 

10.33

 

Minimum Assessment Agreement, dated October 1, 2007, among Diamond Jo, LLC, the City of Dubuque, Iowa and the City Assessor of the City of Dubuque, Iowa

 

Incorporated by reference to Exhibit 10.63 of Peninsula Gaming, LLC's Annual Report on Form 10-K filed March 28, 2008.

 

 

 

 

 

10.34

 

Amended and Restated Port of Dubuque Public Parking Facility Development Agreement, dated October 1, 2007, between the City of Dubuque, Iowa and Diamond Jo, LLC

 

Incorporated by reference to Exhibit 10.65 of Peninsula Gaming, LLC's Annual Report on Form 10-K filed March 28, 2008.

 

 

 

 

 

10.35

 

Lottery Gaming Facility Management Contract, dated October 19, 2010

 

Incorporated by reference to Exhibit 10.2 of Peninsula Gaming, LLC's Current Report on Form 8-K filed February 4, 2011.

 

 

 

 

 

10.36

 

Third Amended and Restated Credit Agreement dated as of August 14, 2013 among the Company certain financial institutions, Bank of America, N.A., as administrative agent and letter of credit issuer, and Wells Fargo Bank, National Association, as swing line lender.

 

Incorporated by reference from the Registrant’s Current Report on Form 8-K dated August 14, 2013.

 

122
Table of Contents

 

Exhibit

 

 

 

 

Number

 

Description of Exhibit

 

Method of Filing

         

10.38

 

Amendment No. 1 and Joinder Agreement, dated as of September 15, 2016, among the Company, certain financial institutions, Bank of America, N.A., as administrative agent and letter of credit issuer, and Wells Fargo Bank, National Association, as swing line lender.

 

Incorporated by reference to Exhibit 10.1 of the Registrant's Current Report on Form 8-K filed with the SEC on September 19, 2016.

 

 

 

 

 

10.39   Amendment No. 2 and Refinancing Amendment dated March 29, 2017, to the Third Amended and Restated Credit Agreement, dated as of August 14, 2013.   Incorporated by reference to Exhibit 10.1 of the Registrant's Current Report on Form 8-K filed with the SEC on March 31, 2017.
         

10.40

 

Joinder Agreement, dated as of August 2, 2018, among the Company, certain financial institutions and Bank of America, N.A., as administrative agent.

 

Incorporated by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K filed August 6, 2018.

 

 

 

 

 

10.41*

 

2012 Stock Incentive Plan (As amended and restated effective May 17, 2012) (incorporated by reference to Appendix A of the Registrant's Definitive Proxy Statement filed with the SEC on April 2, 2012).

 

Incorporated by reference to Appendix A of the Registrant's Definitive Proxy Statement filed with the SEC on April 2, 2012.

 

 

 

 

 

10.42†

 

Real Estate Ground Lease, dated September 22, 2006, as Amended between NP Land LLC and Nevada Palace, LLC

 

Incorporated by reference to Exhibit 10.40 of the Registrant's Current Report on Form 10-K filed with the SEC on February 21, 2017.

 

 

 

 

 

10.43

 

Master Lease, dated October 15, 2018, by and between Gold Merger Sub, LLC and Boyd TCIV, LLC.

 

Incorporated by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K filed October 18, 2018.

 

 

 

 

 

21.1

 

Subsidiaries of the Registrant.

 

Filed electronically herewith.

 

 

 

 

 

23.1

 

Consent of Deloitte & Touche LLP.

 

Filed electronically herewith.

 

 

 

 

 

24

 

Power of Attorney (included in Part IV to this Annual Report on Form 10-K).

 

Filed electronically herewith.

 

 

 

 

 

31.1

 

Certification of the Chief Executive Officer of the Registrant pursuant to Exchange Act Rule 13a-14(a).

 

Filed electronically herewith.

 

 

 

 

 

31.2

 

Certification of the Chief Financial Officer of the Registrant pursuant to Exchange Act Rule 13a-14(a).

 

Filed electronically herewith.

 

 

 

 

 

32.1

 

Certification of the Chief Executive Officer of the Registrant pursuant to Exchange Act Rule 13a - 14(b) and 18 U.S.C. § 1350.

 

Filed electronically herewith.

 

 

 

 

 

32.2

 

Certification of the Chief Financial Officer of the Registrant pursuant to Exchange Act Rule 13a - 14(b) and 18 U.S.C. § 1350.

 

Filed electronically herewith.

 

 

 

 

 

99.1

 

Governmental Gaming Regulations

 

Filed electronically herewith.

 

123
Table of Contents

 

Exhibit

 

 

 

 

Number

 

Description of Exhibit

 

Method of Filing

         

101

 

The following materials from Boyd Gaming Corporation's Annual Report on Form 10-K for the year ended December 31, 2019, formatted in iXBRL (Inline eXtensible Business Reporting Language): (i) Consolidated Balance Sheets as of December 31, 2019 and December 31, 2018; (ii) Consolidated Statements of Operations for the years ended December 31, 2019, 2018 and 2017; (iii) Consolidated Statement of Changes in Stockholders' Equity for the years ended December 31, 2019; (iv) Consolidated Statements of Cash Flows for the years ended December 31, 2019, 2018 and 2017; and (vi) Notes to Consolidated Financial Statements. ***

 

Filed electronically herewith.

104   Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101).    Filed electronically herewith.

________________________________

* Management contracts or compensatory plans or arrangements.
** Certain portions of this exhibit have been granted confidential treatment by the Securities and Exchange Commission.

***

Pursuant to Rule 406T of Regulation S-T, the Interactive Data Files on Exhibit 101 hereto are deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, are deemed not filed for purposes of Section 18 of the Securities and Exchange Act of 1934, as amended, and otherwise are not subject to liability under those sections.

† 

Exhibits and schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company hereby undertakes to furnish supplementally copies of any of the omitted schedules upon request by the SEC.

 

ITEM 16.    Form 10-K Summary

None

 

124
Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities and Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, on February 27, 2020.

 

 

 

BOYD GAMING CORPORATION

 

 

 

 

By:

/s/ Anthony D. McDuffie

 

 

Anthony D. McDuffie

 

 

Vice President and Chief Accounting Officer

 

 

(Principal Accounting Officer)

 

125
Table of Contents

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Keith E. Smith, Josh Hirsberg and Anthony D. McDuffie, and each of them, his attorneys-in-fact, each with the power of substitution, for him or her in any and all capacities, to sign any amendments to this Annual Report on Form 10-K and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in fact, or his substitute or substitutes, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed by the following persons on behalf of the registrant and in the capacities and on the date indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ WILLIAM S. BOYD

 

Executive Chairman of the Board of Directors

 

February 27, 2020

William S. Boyd

 

 

 

 

 

 

 

 

 

/s/ MARIANNE BOYD JOHNSON

 

Vice Chairman of the Board of Directors,

 

February 27, 2020

Marianne Boyd Johnson

 

Executive Vice President and Director

 

 

 

 

 

 

 

/s/ KEITH E. SMITH

 

President, Chief Executive Officer and Director

 

February 27, 2020

Keith E. Smith

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ JOSH HIRSBERG

 

Executive Vice President, Chief Financial Officer and Treasurer

 

February 27, 2020

Josh Hirsberg

 

(Principal Financial Officer)

 

 

 

 

 

 

 

/s/ WILLIAM R. BOYD

 

Vice President and Director

 

February 27, 2020

William R. Boyd

 

 

 

 

 

 

 

 

 

/s/ JOHN R. BAILEY

 

Director

 

February 27, 2020

John R. Bailey

 

 

 

 

 

 

 

 

 

/s/ ROBERT L. BOUGHNER

 

Director

 

February 27, 2020

Robert L. Boughner

 

 

 

 

 

 

 

 

 

/s/ RICHARD E. FLAHERTY

 

Director

 

February 27, 2020

Richard E. Flaherty

 

 

 

 

 

 

 

 

 

/s/ CHRISTINE J. SPADAFOR

 

Director

 

February 27, 2020

Christine J. Spadafor

 

 

 

 

 

 

 

 

 

/s/ A. RANDALL THOMAN

  Director   February 27, 2020

A. Randall Thoman

       
         

/s/ PETER M. THOMAS

 

Director

 

February 27, 2020

Peter M. Thomas

 

 

 

 

 

 

 

 

 

/s/ PAUL W. WHETSELL

 

Director

 

February 27, 2020

Paul W. Whetsell

 

 

 

 

 

 

 

 

 

/s/ VERONICA J. WILSON

 

Director

 

February 27, 2020

Veronica J. Wilson

 

 

 

 

 

 

 

 

 

/s/ ANTHONY D. MCDUFFIE

 

Vice President and Chief Accounting Officer

 

February 27, 2020

Anthony D. McDuffie

 

(Principal Accounting Officer)

 

 

 

136

Exhibit 3.2

 

 

 

AMENDED AND RESTATED BY-LAWS

 

OF BOYD GAMING CORPORATION

 

(a Nevada corporation)

 

(as amended on February 13, 2020)

 

 

 

 

 

 

ARTICLE I

 

Offices

 

SECTION 1.1.        Principal Office. The principal offices of the corporation shall be in the City of Las Vegas, State of Nevada, or other location as the Board of Directors may determine.

 

SECTION 1.2.        Other Offices. The corporation may also have offices at such other places both within and without the State of Nevada as the Board of Directors may from time to time determine or the business of the corporation may require.

 

ARTICLE 2

 

Meetings of Stockholders

 

SECTION 2.1.        Place of Meeting. All meetings of stockholders shall be held at such place, either within or without the State of Nevada, as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting.

 

SECTION 2.2.        Annual Meetings. The annual meeting of stockholders shall be held at such date and time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting.

 

SECTION 2.3.        Special Meetings. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by the Nevada Revised Statutes (“NRS”) or by the Articles of Incorporation of the corporation, as amended (the “Articles of Incorporation”), may be called by the Chairman of the Board, the President or by the Board of Directors or by written order of a majority of the directors and shall be called by the Chairman of the Board, the President or the Secretary at the request in writing of stockholders owning not less than sixty-six and two-thirds percent (66 2/3%) of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purposes of the proposed meeting. The officers or directors shall fix the time and any place, either within or without the State of Nevada, as the place for holding such meeting.

 

SECTION 2.4.        Notice of Meeting. Notice of the annual and each special meeting of stockholders, stating the time, place and, for special meetings, the purpose or purposes thereof, shall be given to each stockholder entitled to vote thereat, not less than ten (10) nor more than sixty (60) days before the meeting.

 

SECTION 2.5.        Business Conducted at Meetings. At a meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before a meeting, business must be (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Chairman of the Board, the President or the Board of Directors, (b) otherwise properly brought before the meeting by or at the direction of the Board of Directors, or (c) otherwise properly brought before the meeting by a stockholder. In addition to any other applicable requirements, for business to be properly brought before a meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the corporation. To be timely, a stockholder's notice must be delivered to or mailed and received by the Secretary at the principal executive offices of the corporation not less than forty-five (45) days nor more than seventy-five (75) days prior to the anniversary of the date on which the corporation first mailed its proxy materials for the previous year's annual meeting of stockholders (or the

 

 

 

 

 

 

date on which the corporation mails its proxy materials for the current year if during the prior year the corporation did not hold an annual meeting or if the date of the annual meeting was changed more than thirty (30) days from the prior year). A stockholder's notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before the meeting (a) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the meeting, (b) the name and address, as they appear on the corporation's books, of the stockholder proposing such business, (c) the class and number of shares of the corporation which are beneficially owned by the stockholder, and (d) any material interest of the stockholder in such business. Notwithstanding anything in the by-laws to the contrary, no business shall be conducted at a meeting except in accordance with the procedures set forth in this Section 2.5; provided, however, that nothing in this Section 2.5 shall be deemed to preclude discussion by any stockholder of any business properly brought before the meeting in accordance with said procedure. The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the provisions of this Section 2.5, and if he or she should so determine, he or she shall so declare to the meeting. Any such business not properly brought before the meeting shall not be transacted. Nothing in this Section 2.5 shall affect the right of a stockholder to request inclusion of a proposal in the corporation's proxy statement to the extent that such right is provided by an applicable rule of the Securities and Exchange Commission (“SEC”).

 

SECTION 2.6.        Nomination of Directors. Nomination of candidates for election as directors of the corporation at any meeting of stockholders called for the election of directors, in whole or in part (an “Election Meeting”), may be made (i) by the Board of Directors; (ii) by any stockholder of the corporation who is (a) a stockholder of record (1) on the date of the giving of the notice provided for in Section 2.6.2, and (2) on the record date for the determination of stockholders entitled to vote at such meeting and (b) who complies with the notice procedures set forth in Section 2.6.2; or (iii) in connection with an Election Meeting that is an annual meeting of stockholders, by any stockholder or group of stockholders of the corporation that complies with Sections 2.6.2 and 2.6.3. In addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the corporation, in each case, as provided in these by-laws. This Section 2.6 references various forms proscribed by the Board of Directors from time to time that are to be provided to the corporation as provided herein. The initial forms proscribed by the Board of Directors are included as exhibits attached to these by-laws and contain the form of notice and other required information to be provided to the corporation in connection with nominations by stockholders of candidates for election as directors. Such exhibits are not, and shall not be construed to be, a part of these by-laws.

 

2.6.1.    Nominations made by the Board of Directors shall be made at a meeting of the Board of Directors or by written consent of the directors in lieu of a meeting prior to the date of the Election Meeting. At the request of the Secretary of the corporation, each proposed nominee shall provide the corporation with such information concerning himself or herself as is required, under the rules of the SEC, to be included in the corporation's proxy statement soliciting proxies for his or her election as a director.

 

2.6.2.    To be timely, a stockholder’s notice to the Secretary pursuant to this Section 2.6 must (a) be delivered to or mailed and received by the Secretary at the principal executive offices of the corporation not less than sixty (60) days prior to the date of the Election Meeting and (b) updated and supplemented, as necessary, as required by this Section 2.6.2 within the time periods specified in this Section 2.6.2. To be in proper form, a stockholder’s notice to the Secretary must use the form attached to these by-laws as Exhibit 1 and, in addition to other information required to be provided under Section 2.6 of these by-laws, must (x) set forth, as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination is made, the Ownership Information (as defined below); and (y) set forth, as to each person, if any, whom the stockholder proposes to nominate for election or reelection to the Board of Directors (A) all

 

 

 

 

 

 

information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (including such person’s written consent to being named as a nominee and to serving as a director if elected (in the form attached to these by-laws as Exhibit 2 or, for any person a stockholder seeks to include as nominee in the corporation’s proxy statement pursuant to Section 2.6.3 of these by-laws, in the form attached to these by-laws as Exhibit 3) and (B) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three (3) years, and any other material relationships, between or among such stockholder and beneficial owner, if any, and their respective affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 of Regulation S-K if the stockholder making the nomination and any beneficial owner on whose behalf the nomination is made, if any, or any affiliate or associate thereof or person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant. In addition, to be considered timely, a stockholder’s notice shall further be updated and supplemented, as necessary, so that the information (with respect to the Ownership Information of such stockholder, such beneficial owners, such nominee and their respective affiliates and associates, or others acting in concert therewith) provided or required to be provided in such notice shall also be true and correct in all material respects (i) as of the record date for the meeting and (ii) as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to or mailed and received by the Secretary at the principal executive offices of the corporation not later than five (5) business days after the record date for the meeting in the case of the foregoing clause (i), and not later than eight (8) business days prior to the date for the meeting, any adjournment or postponement thereof in the case of the foregoing clause (ii). For the avoidance of doubt, the requirement to update and supplement a stockholder’s notice shall not allow a stockholder to change or add to the proposed nominees.

 

For purposes of this Section 2.6.2, “Ownership Information” is defined as (A) the name and address of such stockholder, as they appear on the corporation’s books, of such beneficial owner, if any, and of their respective affiliates or associates or others acting in concert therewith (but only to the extent that information with respect or relating to any such affiliates or associates or others is required to be disclosed pursuant to Section 2.6.2 of these by-laws, including the remainder of this definition of “Ownership Information”), (B) (1) the class or series and number of shares of the corporation which are, directly or indirectly, owned beneficially and of record by such stockholder and such beneficial owner, and their respective affiliates or associates or others acting in concert therewith, (2) any option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the corporation or with a value derived in whole or in part from the value of any class or series of shares of the corporation, or any other derivative or synthetic arrangement having the characteristics of a long position in any class or series of shares of the corporation, or any other contract, derivative, swap or other transaction or series of transactions designed to produce economic benefits and risks that correspond substantially to the ownership of any class or series of shares of the corporation, including due to the fact that the value of such contract, derivative, swap or other transaction or series of transactions is determined by reference to the price, value or volatility of any class or series of shares of the corporation, whether or not such instrument, contract or right shall be subject to settlement in the underlying class or series of shares of the corporation, through the delivery of cash or other property, or otherwise, and without regard to whether the stockholder of record, the beneficial owner, if any, or any affiliates or associates or others acting in concert therewith, may have entered into transactions that hedge or mitigate the economic effect of such instrument, contract or right, or any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the

 

 

 

 

 

 

value of shares of the corporation (any of the foregoing, a “Derivative Instrument”) directly or indirectly owned beneficially by such stockholder, the beneficial owner, if any, or any affiliates or associates or others acting in concert therewith, (3) any proxy, contract, arrangement, understanding, or relationship pursuant to which such stockholder, such beneficial owner and their respective affiliates or associates or others acting in concert therewith have any right to vote any class or series of shares of the corporation, (4) any agreement, arrangement, understanding, relationship or otherwise, including any repurchase or similar so-called “stock borrowing” agreement or arrangement, involving such stockholder, such beneficial owner and their respective affiliates or associates or others acting in concert therewith, directly or indirectly, the purpose or effect of which is to mitigate loss to, reduce the economic risk (of ownership or otherwise) of any class or series of shares of the corporation by, manage the risk of share price changes for, or increase or decrease the voting power of, such stockholder, such beneficial owner and their respective affiliates or associates or others acting in concert therewith with respect to any class or series of shares of the corporation, or which provides, directly or indirectly, the opportunity to profit or share in any profit derived from any decrease in the price or value of any class or series of shares of the corporation (any of the foregoing, a “Short Interest”), (5) any rights to dividends on the shares of the corporation owned beneficially by such stockholder, such beneficial owner and their respective affiliates or associates or others acting in concert therewith that are separated or separable from the underlying shares of the corporation, (6) any proportionate interest in shares of the corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such stockholder, such beneficial owner and their respective affiliates or associates or others acting in concert therewith is a general partner or, directly or indirectly, beneficially owns an interest in a general partner of such general or limited partnership, and (7) any performance-related fees (other than an asset-based fee) that such stockholder, such beneficial owner and their respective affiliates or associates or others acting in concert therewith are entitled to based on any increase or decrease in the value of shares of the corporation or Derivative Instruments, if any, including without limitation any such interests held by members of the immediate family sharing the same household of such stockholder, such beneficial owner and their respective affiliates or associates or others acting in concert therewith, (C) any direct or indirect interest of such stockholder, such beneficial owner and their respective affiliates or associates or others acting in concert therewith in any contract with the corporation or any affiliate of the corporation (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement), and (D) any other information relating to such stockholder, such beneficial owner and their respective affiliates or associates or others acting in concert therewith, if any, that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder.

 

2.6.3.    The corporation shall include in its proxy statement for any Election Meeting that is an annual meeting of stockholders the name, together with the Required Information (defined below), of any person nominated for election (the “Stockholder Nominee”) identified in a notice that is timely and in proper form pursuant to Section 2.6.2 and delivered by one or more stockholders who at the time the request is delivered satisfy, or are acting on behalf of persons who satisfy the ownership and other requirements of Section 2.6 (such stockholder or stockholders, and any person on whose behalf they are acting, the “Eligible Stockholder”), and who expressly elects at the time of providing the notice required by Section 2.6.2 to have its nominee included in the corporation’s proxy materials pursuant to this Section 2.6.3.

 

2.6.3.1. For purposes of this Section 2.6.3, the “Required Information” that the corporation will include in its proxy statement is (i) the information concerning the Stockholder Nominee and the Eligible Stockholder that, as determined by the corporation, is required to be disclosed in a proxy statement filed pursuant to the proxy rules of the SEC, and (ii) if the Eligible Stockholder so elects, a Statement (defined below). To be timely, the Required Information must be provided using the form attached to these

 

 

 

 

 

 

by-laws as Exhibit 1, and delivered to or mailed and received by the Secretary at the principal executive offices of the corporation within the time period specified in Section 2.6.2 for providing the notice of nomination.

 

2.6.3.2. The corporation shall not be required to include a Stockholder Nominee in its proxy materials for any meeting of stockholders for which (i) the Secretary receives a notice that the Eligible Stockholder has nominated a person for election to the Board of Directors pursuant to the notice requirements set forth in Section 2.6.2 and (ii) the Eligible Stockholder does not expressly elect at the time of providing the notice to have its nominee included in the corporation’s proxy materials pursuant to this Section 2.6.3.

 

2.6.3.3. The number of Stockholder Nominees (including Stockholder Nominees that were submitted by an Eligible Stockholder for inclusion in the corporation’s proxy materials pursuant to this Section 2.6.3 but either are subsequently withdrawn or that the Board of Directors decides to nominate as a Board Nominee) appearing in the corporation’s proxy materials with respect to a meeting of stockholders shall not exceed 20% of the number of directors in office as of the last day on which notice of a nomination may be delivered pursuant to Section 2.6.2 and in accordance with this Section 2.6.3, or if such amount is not a whole number, the closest whole number below 20%. In the event that the number of Stockholder Nominees submitted by Eligible Stockholders pursuant to this Section 2.6.3 exceeds this maximum number, each Eligible Stockholder shall select one Stockholder Nominee for inclusion in the corporation’s proxy materials until the maximum number is reached, going in the order of the amount (largest to smallest) of shares of the corporation’s capital stock each Eligible Stockholder disclosed as owned in the written notice of the nomination submitted to the corporation. If the maximum number is not reached after each Eligible Stockholder has selected one Stockholder Nominee, this selection process shall continue as many times as necessary, following the same order each time, until the maximum number is reached. For Eligible Stockholders with more than one Stockholder Nominee, the order of selection for purposes of this Section 2.6.3.3 shall be determined by the order the Stockholder Nominees are presented in the notice of nomination provided in the form attached to these by-laws as Exhibit 1.

 

2.6.3.4. An Eligible Stockholder must have owned (as defined below) 3% or more of the corporation’s outstanding capital stock continuously for at least three (3) years (the “Required Shares”) as of both the date the written notice of the nomination is delivered to or mailed and received by the Secretary of the corporation in accordance with Section 2.6.2 and the record date for determining stockholders entitled to vote at the meeting and must continue to own the Required Shares through the meeting date. For purposes of satisfying the foregoing ownership requirement under this Section 2.6.3, (i) the shares of common stock owned by one or more stockholders, or by the person or persons who own shares of the corporation’s common stock and on whose behalf any stockholder is acting, may be aggregated, provided that the number of stockholders and other persons whose ownership of shares is aggregated for such purpose shall not exceed twenty (20), and (ii) a group of funds under common management and investment control shall be treated as one stockholder or person for this purpose. Within the time period specified in Section 2.6.2 for providing notice of a nomination, an Eligible Stockholder must provide the following information in writing (using the form attached to these by-laws as Exhibit 1) to the Secretary (in addition to the information required to be provided by Section 2.6.2): (i) one or more written statements from the record holder of the shares (and from each intermediary through which the shares are or have been held during the requisite three-year holding period) verifying that, as of a date within seven (7) calendar days prior to the date the written notice of the nomination is delivered to or mailed and received by the Secretary at the principal executive offices of the corporation, the Eligible Stockholder owns, and has owned continuously for the preceding three (3) years, the Required Shares, and the Eligible Stockholder’s agreement to provide, within five (5) business days after the record date for the meeting, written statements from the record holder and intermediaries verifying the

 

 

 

 

 

 

Eligible Stockholder’s continuous ownership of the Required Shares through the record date (with such written statements being provided by each member of any group of stockholders that together is an Eligible Stockholder under this Section 2.6.3), (ii) the written consent of each Stockholder Nominee to be named in the proxy statement as a nominee and to serve as a director if elected (using the form attached to these by-laws as Exhibit 3), (iii) a copy of the Schedule 14N that has been filed with the SEC as required by Rule 14a-18 under the Exchange Act, as may be amended, (iv) a representation that the Eligible Stockholder (including each member of any group of stockholders that together is an Eligible Stockholder under this Section 2.6.3) (A) acquired the Required Shares in the ordinary course of business and not with the intent to change or influence control at the corporation, and does not presently have such intent, (B) has not nominated and will not nominate for election to the Board of Directors at the meeting any person other than the Stockholder Nominee(s) being nominated pursuant to this Section 2.6.3, (C) has not engaged and will not engage in, and has not and will not be, a “participant” in another person’s “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act in support of the election of any individual as a director at the meeting other than its Stockholder Nominee or an individual nominated by the Board of Directors (a “Board Nominee”), (D) will not distribute to any stockholder any form of proxy for the meeting other than the form distributed by the corporation, (E) will own the Required Shares through the date of the meeting, (F) will provide facts, statements and other information in all communications with the corporation and its stockholders that are or will be true and correct in all material respects and do not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, and (G) will own the Required Shares for at least one (1) year following the meeting, and (v) an undertaking that the Eligible Stockholder (including each member of any group of stockholders that together is an Eligible Stockholder under this Section 2.6.3) agrees to (A) assume all liability in connection with any legal or regulatory violation arising out of the Eligible Stockholder’s communications with the corporation’s stockholders or out of the information that the Eligible Stockholder provided to the corporation, (B) indemnify and hold harmless the corporation and each of its directors, officers and employees individually against any liability, loss or damages in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the corporation or any of its directors, officers or employees arising out of any nomination submitted by the Eligible Stockholder pursuant to this Section 2.6.3, (C) file with the SEC all soliciting and other materials as required under Section 2.6.3.10, (D) comply with all other applicable laws, rules, regulations and listing standards with respect to any solicitation in connection with the meeting, and (E) provide to the corporation prior to the annual meeting such additional information as necessary with respect thereto.

 

2.6.3.5. For purposes of this Section 2.6.3, an Eligible Stockholder shall be deemed to “own” only those outstanding shares of the corporation’s capital stock as to which the stockholder possesses both (i) the full voting and investment rights pertaining to the shares and (ii) the full economic interest in (including the opportunity for profit and risk of loss on) such shares; provided that the number of shares calculated in accordance with clauses (i) and (ii) shall not include any shares (x) sold by such stockholder or any of its affiliates in any transaction that has not been settled or closed, (y) borrowed by such stockholder or any of its affiliates for any purposes or purchased by such stockholder or any of its affiliates pursuant to an agreement to resell or (z) subject to any option, warrant, forward contract, swap, contract of sale, other derivative or similar agreement entered into by such stockholder or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of outstanding shares of the corporation’s capital stock, in any such case which instrument or agreement has, or is intended to have, the purpose or effect of (1) reducing in any manner, to any extent or at any time in the future, such stockholder’s or affiliates’ full right to vote or direct the voting of any such shares, and/or (2) hedging, offsetting or altering to any degree gain or loss arising from the full economic ownership of such shares by such stockholder or affiliate. A stockholder shall “own” shares held in the name of a nominee or other intermediary so long as the stockholder retains the right to instruct how the shares are voted with

 

 

 

 

 

 

respect to the election of directors and possesses the full economic interest in the shares through the annual meeting date. A stockholder’s ownership of shares shall be deemed to continue during any period in which the stockholder has delegated any voting power by means of a proxy, power of attorney or other instrument or arrangement which is revocable at any time by the stockholder. A stockholder’s ownership of shares shall be deemed to continue during any period in which the person has loaned such shares, provided that the person has the power to recall such loaned shares on three (3) business days’ notice and has in fact recalled such loaned shares as of the time the notice of a nomination is submitted to the corporation pursuant to Section 2.6.2 and through the annual meeting date. The terms “owned,” “owning” and other variations of the word “own” shall have correlative meanings. Whether outstanding shares of the corporation’s capital stock are “owned” for these purposes shall be determined by the Board of Directors or any committee thereof, which determination shall be conclusive and binding on the corporation and its stockholders. For purposes of this Section 2.6.3, the term “affiliate” shall have the meaning ascribed thereto in the regulations promulgated under the Exchange Act.

 

2.6.3.6. The Eligible Stockholder may provide to the Secretary (using the form attached to these by-laws as Exhibit 1), within the time period specified in Section 2.6.2 for providing notice of a nomination, a written statement for inclusion in the corporation’s proxy statement for the meeting, not to exceed 500 words, in support of the Stockholder Nominee’s candidacy (the “Statement”). Notwithstanding anything to the contrary contained in this Section 2.6, the corporation may omit from its proxy materials any information or Statement that it believes would violate any applicable law, rule, regulation or listing standard.

 

2.6.3.7. Within the time period specified in Section 2.6.2 for delivering notice of a nomination to the corporation, a Stockholder Nominee must deliver to the Secretary of the corporation a written representation and agreement (in the form attached to these by-laws as Exhibit 3) that the Stockholder Nominee (i) is not and will not become a party to any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the corporation, will act or vote on any issue or question, (ii) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director, and (iii) will comply with all the corporation’s corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines, and any other corporation policies and guidelines applicable to directors, as well as any applicable law, rule or regulation or listing requirement. Within the time period specified in Section 2.6.2 for delivering notice of a nomination to the corporation, a Stockholder Nominee also must deliver to the Secretary of the corporation a written consent to a background check (contained in the form attached to these by-laws as Exhibit 3). At the request of the corporation, the Stockholder Nominee must submit all completed and signed questionnaires required of the corporation’s directors and officers, as well as any additional information needed by the corporation to perform a background check. The corporation may request such additional information as necessary to permit the Board of Directors to determine if each Stockholder Nominee is independent under the listing standards of the principal exchange upon which the corporation’s capital stock is listed, any applicable rules of the SEC and any publicly disclosed standards used by the Board of Directors in determining and disclosing the independence of the corporation’s directors (the “Applicable Independence Standards”). If the Board of Directors determines that the Stockholder Nominee is not independent under the Applicable Independence Standards, the Shareholder Nominee will not be eligible for inclusion in the Corporation’s proxy materials.

 

2.6.3.8. The corporation shall not be required to include, pursuant to this Section 2.6.3, a Stockholder Nominee in its proxy materials (i) for any meeting for which the Secretary receives a notice that the Eligible Stockholder or any other stockholder has nominated a Stockholder Nominee for election to the board of directors pursuant to Section 2.6.2 and does not expressly elect at the time of providing

 

 

 

 

 

 

the notice to have its nominee included in the corporation’s proxy materials pursuant to this Section 2.6.3, (ii) if the Eligible Stockholder who has nominated such Stockholder Nominee has engaged in or is currently engaged in, or has been or is a “participant” in another person’s, “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act in support of the election of any individual as a director at the meeting other than its Stockholder Nominee(s) or a Board Nominee, (iii) who is not independent under the Applicable Independence Standards, as determined by the Board of Directors or any committee thereof, (iv) whose election as a member of the Board of Directors would cause the corporation to be in violation of these by-laws, the corporation’s articles of incorporation, the listing standards of the principal exchange upon which the corporation’s capital stock is listed, or any applicable state or federal law, rule or regulation, (v) who is or has been, within the past three (3) years, an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, (vi) who, in the opinion of counsel to the corporation following completion of the background check required under Section 2.6.3.7, is not likely to be deemed suitable to serve as a director of the corporation by the Gaming Authorities (as defined in Section 2.6.3.13), (vii) who is a director, trustee, officer or employee with management functions for any depository institution, depository institution holding company or entity that has been designated as a Systemically Important Financial Institution, each as defined in the Depository Institution Management Interlocks Act (DIMIA), provided, however, that this clause (viii) shall apply only while the corporation is subject to DIMIA, (ix) who is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in such a criminal proceeding within the past ten (10) years, (x) who is subject to any order of the type specified in Rule 506(d) of Regulation D promulgated under the Securities Act of 1933, as amended, (xi) if such Stockholder Nominee or the applicable Eligible Stockholder shall have provided information to the corporation in respect to such nomination that was untrue in any material respect or omitted to state a material fact necessary in order to make the statement made, in light of the circumstances under which they were made, not misleading, as determined by the Board of Directors, or (xii) if the Eligible Stockholder or applicable Stockholder Nominee otherwise contravenes any of the agreements or representations made by such Eligible Stockholder or Stockholder Nominee or fails to comply with its obligations pursuant to, or the terms of, this Section 2.6.

 

2.6.3.9. Notwithstanding anything to the contrary set forth herein, the Board of Directors or the person presiding at the meeting shall declare a nomination by an Eligible Stockholder to be invalid, and such nomination shall be disregarded notwithstanding that proxies in respect of such vote may have been received by the corporation, if (i) the Stockholder Nominee(s) and/or the applicable Eligible Stockholder shall have breached its or their obligations, agreements or representations under this Section 2.6, as determined by the Board of Directors, any committee thereof or the person presiding at the meeting, or (ii) the Eligible Stockholder (or a qualified representative thereof) does not appear at the meeting to present any nomination pursuant to this Section 2.6.3.

 

2.6.3.10. The Eligible Stockholder (including any person who owns shares that constitute part of the Eligible Stockholder’s ownership for purposes of satisfying Section 2.6.3.5) shall file with the SEC any solicitation or other communication with the corporation’s stockholders relating to the meeting at which the Stockholder Nominee will be nominated, regardless of whether any such filing is required under Regulation 14A of the Exchange Act or whether any exemption from filing is available for such solicitation or other communication under Regulation 14A of the Exchange Act.

 

2.6.3.11. No person may be a member of more than one group of persons constituting an Eligible Stockholder under this Section 2.6.3.

 

2.6.3.12. Any Stockholder Nominee who is included in the corporation’s proxy materials for a particular meeting of stockholders but either (i) withdraws from or becomes ineligible or

 

 

 

 

 

 

unavailable for election at the meeting, or (ii) does not receive at least 33% of the votes cast in favor of the Stockholder Nominee’s election, shall be ineligible to be a Stockholder Nominee pursuant to this Section 2.6.3 for the next two annual meetings of stockholders following the meeting for which the Stockholder Nominee has been nominated for election.

 

2.6.3.13. Any Stockholder Nominee who is included in the corporation’s proxy materials for an annual meeting of stockholders pursuant to this Section 2.6.3 must tender an irrevocable resignation, in the form attached to these by-laws as Exhibit 3 and within the time period specified in Section 2.6.2 for providing the notice of nomination, that will become effective upon a determination by the Board of Directors or committee thereof in accordance with the terms of this Section 2.6.3.13. Such resignation shall become effective upon a determination by the Board of Directors or any committee thereof that (i) the information provided pursuant to Section 2.6.2 of the by-laws or this Section 2.6.3 to the Corporation by such individual or by the Eligible Stockholder (or any member of any group of Stockholders that together is such Eligible Stockholder) who nominated such individual was untrue in any material respect or omitted to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, (ii) such individual, or the Eligible Stockholder (or any member of any group of Stockholders that together is such Eligible Stockholder) who nominated such individual, shall have breached or failed to comply with its agreements, representations undertakings and/or obligations pursuant to these by-laws, including, without limitation, this Section 2.6.3, or (iii) such individual has been found to be unsuitable to serve as a director by the Nevada Gaming Commission, the Nevada State Gaming Control Board, or any agency of any sovereign entity, state, county, city or other political subdivision which has, or may at any time after the date of these by-laws have, jurisdiction over all or any portion of the gaming activities of the corporation or any of its subsidiaries, or over ownership of an interest in an entity engaged in gaming activities, or any successor to any such authority (collectively, the “Gaming Authorities”).

 

2.6.4.    If the Chairman of the Election Meeting determines that a nomination was not made in accordance with the foregoing procedures, such nomination shall be void.

 

SECTION 2.7.        Quorum. The holders of a majority of the shares of capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy (regardless of whether the proxy has authority to vote on each matter at such meeting), shall constitute a quorum at any meeting of stockholders for the transaction of business, except when stockholders are required to vote by class, in which event a majority of the issued and outstanding shares of the appropriate class shall be present in person or by proxy (regardless of whether the proxy has authority to vote on each matter at such meeting), and except as otherwise provided by the NRS or by the Articles of Incorporation. Notwithstanding any other provision of the Articles of Incorporation or these by-laws, the holders of a majority of the shares of capital stock entitled to vote thereat, present in person or represented by proxy (regardless of whether the proxy has authority to vote on each matter at such meeting), whether or not a quorum is present, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified.

 

SECTION 2.8.        Voting. When a quorum is present at any meeting of the stockholders, an action by the stockholders is approved if the number of votes cast in favor of the action exceeds the number of votes cast in opposition to the action, unless the action is one upon which, by express provision of applicable law, of the Articles of Incorporation or of these by-laws (including, without limitation, Section 3.2), a different

 

 

 

 

 

 

vote is required, in which case such express provision shall govern and control the vote required to approve such action. Every stockholder having the right to vote shall be entitled to vote in person, or by proxy (a) appointed by an instrument in writing subscribed by such stockholder or by his or her duly authorized attorney or (b) authorized by the transmission of an electronic record by the stockholder to the person who will be the holder of the proxy or to a firm which solicits proxies or like agent who is authorized by the person who will be the holder of the proxy to receive the transmission subject to any procedures the Board of Directors may adopt from time to time to determine that the electronic record is authorized by the stockholder; provided, however, that no such proxy shall be valid after the expiration of six (6) months from the date of its execution, unless coupled with an interest, or unless the person executing it specifies therein the length of time for which it is to continue in force, which in no case shall exceed seven (7) years from the date of its execution. If such instrument or record shall designate two (2) or more persons to act as proxies, unless such instrument shall provide the contrary, a majority of such persons present at any meeting at which their powers thereunder are to be exercised shall have and may exercise all the powers of voting or giving consents thereby conferred, or if only one (1) be present, then such powers may be exercised by that one (1). Unless required by the NRS or determined by the Chairman of the meeting to be advisable, the vote on any matter need not be by written ballot. No stockholder shall have cumulative voting rights.

 

SECTION 2.9.        Consent of Stockholders. Whenever the vote of the stockholders at a meeting thereof is required or permitted to be taken for or in connection with any corporate action, the meeting and vote of stockholders may be dispensed with if all the stockholders who would have been entitled to vote upon the action if such meeting were held shall consent in writing to such corporate action being taken; or if the Articles of Incorporation authorize the action to be taken with the written consent of the holders of less than all the stock who would have been entitled to vote upon the action if a meeting were held, then on the written consent of the stockholders having not less than such percentage of the number of votes as may be authorized in the Articles of Incorporation; provided, that in no case shall the written consent be by the holders of stock having less than the minimum percentage of the vote required by the NRS, and provided that prompt notice must be given to all stockholders of the taking of corporate action without a meeting and less than unanimous written consent.

 

SECTION 2.10.    Voting of Stock of Certain Holders. Shares standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent or proxy as the by-laws of such corporation may prescribe, or in the absence of such provision, as the Board of Directors of such corporation may determine. Shares standing in the name of a deceased person may be voted by the executor or administrator of such deceased person, either in person or by proxy. Shares standing in the name of a guardian, conservator or trustee may be voted by such fiduciary, either in person or by proxy, but no such fiduciary shall be entitled to vote shares held in such fiduciary capacity without a transfer of such shares into the name of such fiduciary. Shares outstanding in the name of a receiver may be voted by such receiver. A stockholder whose shares are pledged shall be entitled to vote such shares, unless in the transfer by the pledgor on the books of the corporation, he or she has expressly empowered the pledgee to vote thereon, in which case only the pledgee, or his or her proxy, may represent the stock and vote thereon.

 

SECTION 2.11.    Treasury Stock. The corporation shall not vote, directly or indirectly, shares of its own stock owned by it; and such shares shall not be counted in determining the total number of outstanding shares.

 

SECTION 2.12.    Fixing Record Date. The Board of Directors may fix in advance a date for any meeting of stockholders (which date shall not be more than sixty (60) nor less than ten (10) days preceding the date of any such meeting of stockholders), a date for payment of any dividend or distribution, a date for the allotment of rights, a date when any change or conversion or exchange of capital stock shall go into effect,

 

 

 

 

 

 

or a date in connection with obtaining a consent of stockholders (which date shall not precede or be more than ten (10) days after the date the resolution setting such record date is adopted by the Board of Directors), in each case as a record date (the “Record Date”) for the determination of the stockholders entitled to notice of, and to vote at, any such meeting and any adjournment thereof, to receive payment of any such dividend or distribution, to receive any such allotment of rights, to exercise the rights in respect of any such change, conversion or exchange of capital stock, or to give such consent, as the case may be. In any such case such stockholders and only such stockholders as shall be stockholders of record on the Record Date shall be entitled to such notice of and to vote at any such meeting and any adjournment thereof, to receive payment of such dividend or distribution, to receive such allotment of rights, to exercise such rights, or to give such consent, as the case may be, notwithstanding any transfer of any stock on the books of the corporation after any such Record Date.

 

ARTICLE 3

 

Board of Directors

 

SECTION 3.1.        Powers. The business and affairs of the corporation shall be managed by its Board of Directors, which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the Articles of Incorporation or by these by-laws directed or required to be exercised or done by the stockholders.

 

SECTION 3.2.        Number, Election and Term. The number of directors which shall constitute the whole Board of Directors shall be not less than five (5) and not more than fifteen (15). Within the limits above specified, the number of the directors of the corporation shall be determined by resolution of the Board of Directors. All directors shall be elected annually. Except as provided in Section 3.3, directors shall be elected at the annual meeting of stockholders by a plurality of the votes cast at the applicable election and each director shall hold office until his or her successor is elected and qualified. A minimum of two (2) of the directors of the whole Board of Directors must be directors who are not employees, officers or former officers of the corporation or a subsidiary or division thereof, or relatives of a principal executive officer, or individual members of an organization acting as an advisor, consultant, legal counsel or in a similar role, receiving compensation on a continuing basis from the corporation in addition to director's fees (“Outside Directors”). Directors need not be residents of Nevada or stockholders of the corporation.

 

SECTION 3.3.        Vacancies, Additional Directors and Removal From Office. If any vacancy occurs in the Board of Directors caused by death, resignation, retirement, disqualification or removal from office of any director, or otherwise, or if any new directorship is created by an increase in the authorized number of directors, a majority of the directors then in office, though less than a quorum, or a sole remaining director, may choose a successor or fill the newly created directorship. Any director so chosen shall hold office for the unexpired term of his or her predecessor in his or her office and until his or her successor shall be elected and qualified, unless sooner displaced. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. Notwithstanding any other provisions of these by-laws or the fact that some lesser percentage may be specified by law, any director or the entire Board of Directors may be removed at any time, but only for cause or only by the affirmative vote of the holders of sixty-six and two-thirds percent (66-2/3%) or more of the outstanding shares of the capital stock of the corporation entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose.

 

SECTION 3.4.        Regular Meetings. A regular meeting of the Board of Directors shall be held each year, without notice other than this by-law provision, at the place of, and immediately following, the annual

 

 

 

 

 

 

meeting of stockholders; and other regular meetings of the Board of Directors shall be held during each year, at such time and place as the Board of Directors may from time to time provide by resolution, either within or without the State of Nevada, without other notice than such resolution.

 

SECTION 3.5.        Special Meeting. A special meeting of the Board of Directors may be called by the Chairman of the Board or by the President and shall be called by the Secretary on the written request of any two (2) directors. The Chairman of the Board or President so calling, or the directors so requesting, any such meeting shall fix the time and any place, either within or without the State of Nevada, as the place for holding such meeting.

 

SECTION 3.6.        Notice of Special Meeting. Written notice of special meetings of the Board of Directors shall be given to each director at least forty-eight (48) hours prior to the time of a special meeting. Any director may waive notice of any meeting. The attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting solely for the purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting, except that notice shall be given with respect to any matter when notice is required by the NRS.

 

SECTION 3.7.        Quorum. A majority of the Board of Directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, and the act of a majority of the directors present at any meeting at which there is quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by the NRS, by the Articles of Incorporation or by these by-laws. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting, without notice other than announcement at the meeting, until a quorum shall be present.

 

SECTION 3.8.        Action Without Meeting. Unless otherwise restricted by the Articles of Incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof as provided in Article IV of these by-laws, may be taken without a meeting, if a written consent thereto is signed by all (or such lesser proportion as may be permitted by the NRS) of the members of the Board of Directors or of such committee, as the case may be.

 

SECTION 3.9.        Meeting by Telephone. Any action required or permitted to be taken by the Board of Directors or any committee thereof may be taken by means of a meeting by telephone conference or similar communications method so long as all persons participating in the meeting can hear each other. Any person participating in such meeting shall be deemed to be present in person at such meeting.

 

SECTION 3.10.    Compensation. Directors, as such, may receive reasonable compensation for their services, which shall be set by the Board of Directors, and expenses of attendance at each regular or special meeting of the Board of Directors; provided, however, that nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity and receiving additional compensation therefor. Members of special or standing committees may be allowed like compensation for their services on committees.

 

 

 

 

 

 

 

ARTICLE 4

 

Committees of Directors

 

SECTION 4.1.        Executive Committee. The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, designate an executive committee of the Board of Directors (the “Executive Committee”). If such a committee is designated by the Board of Directors, it shall be composed of members who are directors, and the members of the Executive Committee shall be designated by the Board of Directors in the resolution appointing the Executive Committee. Thereafter, the Board of Directors shall designate the members of the Executive Committee on an annual basis at its first regular meeting held pursuant to Section 3.4 of these by-laws after the annual meeting of stockholders or as soon thereafter as conveniently possible. The Executive Committee shall have and may exercise all of the powers of the Board of Directors during the period between meetings of the Board of Directors except as reserved to the Board of Directors or as delegated by these by-laws or by the Board of Directors to another standing or special committee or as may be prohibited by law.

 

SECTION 4.2.        Audit Committee. An audit committee of the Board of Directors (the “Audit Committee”) shall be designated annually by the Board of Directors at its first regular meeting held pursuant to Section 3.4 of these by-laws after the annual meeting of stockholders or as soon thereafter as conveniently possible. The Audit Committee shall consist solely of directors who are Outside Directors and who are free from any relationship that, in the opinion of the Board of Directors, would interfere with the designated director's exercise of independent judgment as a member of the Audit Committee. Members of the Audit Committee shall review and supervise the financial controls of the corporation, make recommendations to the Board of Directors regarding the corporation's auditors, review the books and accounts of the corporation, meet with the officers of the corporation regarding the corporation's financial controls, act upon recommendations of the auditors and take such further action as the Audit Committee deems necessary to complete an audit of the books and accounts of the corporation.

 

SECTION 4.3.        Compensation Committee. The compensation committee of the Board of Directors (the “Compensation Committee”) shall consist of two (2) or more directors to be designated annually by the Board of Directors at its first regular meeting held pursuant to Section 3.4 of these by-laws after the annual meeting of stockholders or as soon thereafter as conveniently possible. The Compensation Committee shall consist of at least two (2) Outside Directors. The Compensation Committee shall review with management cash and other compensation policies for employees, shall determine the compensation of the Chief Executive Officer and shall make recommendations to the Chief Executive Officer regarding the compensation to be established for all other officers of the corporation. In addition, the Compensation Committee shall have full power and authority to administer the corporation's stock plans and, within the terms of the respective stock plans, determine the terms and conditions of issuances thereunder.

 

SECTION 4.4.        Other Committees. The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, designate one (1) or more additional special or standing committees, each such additional committee to consist of one (1) or more of the directors of the corporation. Each such committee shall have and may exercise such of the powers of the Board of Directors in the management of the business and affairs of the corporation as may be provided in such resolution, except as delegated by these by-laws or by the Board of Directors to another standing or special committee or as may be prohibited by law.

 

 

 

 

 

 

 

SECTION 4.5.        Committee Operations. A majority of a committee shall constitute a quorum for the transaction of any committee business. Such committee or committees shall have such name or names and such limitations of authority as provided in these by-laws or as may be determined from time to time by resolution adopted by the Board of Directors. The corporation shall pay all expenses of committee operations. The Board of Directors may designate one (1) or more appropriate directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee. In the absence or disqualification of any members of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another appropriate member of the Board of Directors to act at the meeting in the place of any absent or disqualified member.

 

SECTION 4.6.        Minutes. Each committee of directors shall keep regular minutes of its proceedings and report the same to the Board of Directors when required. The corporation's Secretary, any Assistant Secretary or any other designated person shall (a) serve as the Secretary of the special or standing committees of the Board of Directors of the corporation, (b) keep regular minutes of standing or special committee proceedings, (c) make available to the Board of Directors, as required, copies of all resolutions adopted or minutes or reports of other actions recommended or taken by any such standing or special committee and (d) otherwise as requested keep the members of the Board of Directors apprised of the actions taken by such standing or special committees.

 

ARTICLE 5

 

Notice

 

SECTION 5.1.        Methods of Giving Notice.

 

5.1.1.     Notice to Directors or Committee Members. Whenever under the provisions of the NRS, the Articles of Incorporation or these by-laws, notice is required to be given to any director or member of any committee of the Board of Directors, personal notice is not required but such notice may be (a) given in writing and mailed to such director or member, (b) sent by electronic transmission to such director or member, or (c) given orally or by telephone or telecopy; provided, however, that any notice from a stockholder to any director or member of any committee of the Board of Directors must be given in writing and mailed to such director or member and shall be deemed to be given upon receipt by such director or member. If mailed, notice to a director or member of a committee of the Board of Directors shall be deemed to be given when deposited in the United States mail first class, or by overnight courier, in a sealed envelope, with postage thereon prepaid, addressed, to such person at his or her business address. If sent by electronic transmission, notice to a director or member of a committee of the Board of Directors shall be deemed to be given if by (i) telecopy, when receipt of the telecopy is confirmed electronically, (ii) electronic mail, when directed to an electronic mail address of the director or member, (iii) a posting on an electronic network together with a separate notice to the director or member of the specific posting, upon the later of (1) such posting and (2) the giving of the separate notice (which notice may be given in any of the manners provided above), or (iv) any other form of electronic transmission, when directed to the director or member.

 

5.1.2.     Notice to Stockholders. Whenever under the provisions of the NRS, the Articles of Incorporation or these by-laws, notice is required to be given to any stockholder, personal notice is not required but such notice shall be given, at the election of the Board of Directors, either (a) in writing and mailed to such stockholder or (b) in accordance with NRS 75.150(9), by a form of electronic transmission. If mailed, notice to a stockholder shall be deemed to be given when deposited in the United States mail in a sealed envelope, with postage thereon prepaid, addressed to the stockholder at the stockholder's address as

 

 

 

 

 

 

it appears on the records of the corporation. If sent by electronic transmission, notice to a stockholder shall be deemed to be effective as provided in NRS 75.150.

 

SECTION 5.2.        Written Waiver. Whenever any notice is required to be given by the NRS, the Articles of Incorporation or these by-laws, a waiver thereof in a signed writing or sent by the transmission of an electronic record signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

 

SECTION 5.3.        Consent. Whenever all parties entitled to vote at any meeting, whether of directors or stockholders, consent, either by a writing on the records of the meeting or filed with the Secretary, or by presence at such meeting and oral consent entered on the minutes, or by taking part in the deliberations at such meeting without objection, the actions taken at such meeting shall be as valid as if had at a meeting regularly called and noticed. At such meeting any business may be transacted which is not excepted from the written consent or to the consideration of which no objection for lack of notice is made at the time, and if any meeting be irregular for lack of notice or such consent, provided a quorum was present at such meeting, the proceedings of such meeting may be ratified and approved and rendered valid and the irregularity or defect therein waived by a writing signed by all parties having the right to vote thereat. Such consent or approval, if given by stockholders, may be by proxy or power of attorney, but all such proxies and powers of attorney must be in writing.

 

ARTICLE 6

 

Officers

 

SECTION 6.1.        Officers. The officers of the corporation shall include the Chairman of the Board and President, as elected or appointed by the Board of Directors, shall further include the Secretary and Treasurer, as elected or appointed by the Board of Directors, Chairman of the Board, Executive Committee or President, may include the Chief Executive Officer, as elected or appointed by the Board of Directors, and may further include, without limitation, such other officers and agents, including, without limitation, a Chief Financial Officer, one or more Vice Presidents (any one or more of which may be designated Senior Executive Vice President, Executive Vice President or Senior Vice President), Assistant Vice Presidents, Assistant Secretaries and Assistant Treasurers, as the Board of Directors, Chairman of the Board, Executive Committee or President deem necessary and elect or appoint. All officers of the corporation shall hold their offices for such terms and shall exercise such powers and perform such duties as prescribed by these by-laws, the Board of Directors, Chairman of the Board, Executive Committee or President, as applicable. Any two (2) or more offices may be held by the same person. No officer shall execute, acknowledge, verify or countersign any instrument on behalf of the corporation in more than one (1) capacity, if such instrument is required by law, by these by-laws or by any act of the corporation to be executed, acknowledged, verified or countersigned by two (2) or more officers. The Chairman of the Board shall be elected from among the directors. With the foregoing exception, none of the other officers need be a director, and none of the officers need be a stockholder of the corporation. Notwithstanding anything herein to the contrary, the Board of Directors may delegate to any officer of the corporation the power to appoint other officers and to prescribe their respective duties and powers.

 

SECTION 6.2.        Election and Term of Office. The officers of the corporation shall be elected or ratified annually by the Board of Directors at its first regular meeting held after the annual meeting of stockholders or as soon thereafter as conveniently possible (or, in the case of those officers elected or appointed other than by the Board of Directors, ratified at the Board of Directors' first regular meeting held following their election or appointment or as soon thereafter as conveniently possible). Other than the Chairman of the

 

 

 

 

 

 

Board, President and Chief Executive Officer, who shall each be elected or appointed by the Board of Directors, all other officers of the corporation may be elected or appointed by the Board of Directors, Chairman of the Board, Executive Committee or President. Each officer shall hold office until his or her successor shall have been chosen and shall have qualified or until his or her death or the effective date of his or her resignation or removal, or until he or she shall cease to be a director in the case of the Chairman of the Board.

 

SECTION 6.3.        Removal and Resignation. Any officer or agent may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors and, other than the Chairman of the Board, President and Chief Executive Officer, may also be removed, either with or without cause, by action of the Chairman of the Board, Executive Committee or President whenever, in its or their judgment, as applicable, the best interests of the corporation shall be served thereby, but such removal shall be without prejudice to the contractual rights, if any, of the person so removed. Any executive officer or other officer or agent may resign at any time by giving written notice to the corporation. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 

SECTION 6.4.        Vacancies. Any vacancy occurring in any required office of the corporation by death, resignation, removal or otherwise, shall be filled by the Board of Directors for the unexpired portion of the term.

 

SECTION 6.5.        Compensation. The compensation of the Chief Executive Officer shall be determined by the Compensation Committee. Compensation of all other officers of the corporation shall be determined by the Chief Executive Officer in consultation with the Compensation Committee. No officer who is also a director shall be prevented from receiving such compensation by reason of his or her also being a director.

 

SECTION 6.6.        Chairman of the Board. The Chairman of the Board (who may also be designated as Executive Chairman if serving as an employee of the corporation) (the “Chairman of the Board”) shall preside at all meetings of the Board of Directors and of the stockholders of the corporation. In the Chairman of the Board's absence, such duties shall be attended to by any vice chairman of the Board of Directors, or if there is no vice chairman, or such vice chairman is absent, then by the President. The Chairman of the Board may also hold the position of Chief Executive Officer of the corporation, if so elected or appointed by the Board of Directors. The Chairman of the Board shall formulate and submit to the Board of Directors or the Executive Committee matters of general policy for the corporation and shall perform such other duties as usually appertain to the office or as may be prescribed by the Board of Directors. He or she may sign with the President or any other officer of the corporation thereunto authorized by the Board of Directors certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the Board of Directors, and any deeds or bonds, which the Board of Directors or the Executive Committee has authorized to be executed, except in cases where the signing and execution thereof has been expressly delegated or reserved by these by-laws or by the Board of Directors or the Executive Committee to some other officer or agent of the corporation, or shall be required by law to be otherwise executed.

 

SECTION 6.7.        President. The President, subject to the control of the Board of Directors, the Executive Committee, and the Chairman of the Board, shall in general supervise and control the business and affairs of the corporation. The President shall keep the Board of Directors, the Executive Committee and the Chairman of the Board fully informed as they or any of them shall request and shall consult them concerning the business of the corporation. He or she may sign with the Chairman of the Board or any other officer of the corporation thereunto authorized by the Board of Directors, certificates for shares of capital stock of the corporation, the issuance of which shall have been authorized by resolution of the Board of

 

 

 

 

 

 

Directors, and any deeds, bonds, mortgages, contracts, checks, notes, drafts or other instruments which the Board of Directors or the Executive Committee has authorized to be executed, except in cases where the signing and execution thereof has been expressly delegated by these by-laws or by the Board of Directors or the Executive Committee to some other officer or agent of the corporation, or shall be required by law to be otherwise executed. In general, he or she shall perform all other duties normally incident to the office of the President, except any duties expressly delegated to other persons by these by-laws, the Board of Directors, or the Executive Committee, and such other duties as may be prescribed by the stockholders, Chairman of the Board, the Board of Directors or the Executive Committee, from time to time.

 

SECTION 6.8.        Vice Presidents. In the absence of the President, or in the event of his or her inability or refusal to act, the Senior Executive Vice President (or in the event there shall be more than one Vice President designated Senior Executive Vice President, any Senior Executive Vice President designated by the Board of Directors), or in the event of the Senior Executive Vice President's inability or refusal to act, the Executive Vice President (or in the event there shall be more than one such officer, any such officer designated by the Board of Directors) shall perform the duties and exercise the powers of the President. Any Vice President authorized by resolution of the Board of Directors to do so, may sign with any other officer of the corporation thereunto authorized by the Board of Directors, certificates for shares of capital stock of the corporation, the issuance of which shall have been authorized by resolution of the Board of Directors. The Vice Presidents shall perform such other duties as from time to time may be assigned to them by the Chairman of the Board, the Board of Directors, the Executive Committee or the President.

 

SECTION 6.9.        Secretary. The Secretary shall (a) keep the minutes of the meetings of the stockholders, the Board of Directors and committees of directors; (b) see that all notices are duly given in accordance with the provisions of these by-laws and as required by law; (c) be custodian of the corporate records and of the seal of the corporation, and see that the seal of the corporation or a facsimile thereof is affixed to all certificates for shares prior to the issuance thereof and to all documents, the execution of which on behalf of the corporation under its seal is duly authorized in accordance with the provisions of these by-laws; (d) keep or cause to be kept a register of the post office address of each stockholder which shall be furnished by such stockholder; (e) have general charge of other stock transfer books of the corporation; and (f) in general, perform all duties normally incident to the office of the Secretary and such other duties as from time to time may be assigned to him or her by the Chairman of the Board, the President, the Board of Directors or the Executive Committee.

 

SECTION 6.10.    Treasurer. The Treasurer shall (a) have charge and custody of and be responsible for all funds and securities of the corporation; receive and give receipts for moneys due and payable to the corporation from any source whatsoever and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of Section 7.3 of these by-laws; (b) prepare, or cause to be prepared, for submission at each regular meeting of the Board of Directors, at each annual meeting of stockholders, and at such other times as may be required by the Board of Directors, the Chairman of the Board, the President or the Executive Committee, a statement of financial condition of the corporation in such detail as may be required; and (c) in general, perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him or her by the Chairman of the Board, the President, the Board of Directors or the Executive Committee. If required by the Board of Directors or the Executive Committee, the Treasurer shall give a bond for the faithful discharge of his or her duties in such sum and with such surety or sureties as the Board of Directors or the Executive Committee shall determine.

 

SECTION 6.11.    Assistant Secretary or Treasurer. The Assistant Secretaries and Assistant Treasurers shall, in general, perform such duties as shall be assigned to them by the Secretary or the Treasurer,

 

 

 

 

 

 

respectively, or by the Chairman of the Board, the President, the Board of Directors or the Executive Committee. The Assistant Secretaries or Assistant Treasurers shall, in the absence of the Secretary or Treasurer, respectively, perform all functions and duties which such absent officers may delegate, but such delegation shall not relieve the absent officer from the responsibilities and liabilities of his or her office. The Assistant Treasurers shall respectively, if required by the Board of Directors or the Executive Committee, give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board of Directors or the Executive Committee shall determine.

 

SECTION 6.12.    Chief Executive Officer.    The Chief Executive Officer shall, in general, perform such duties as usually pertain to the position of chief executive officer and such duties as may be prescribed by the Board of Directors.

 

SECTION 6.13.    Chief Financial Officer.    The Chief Financial Officer shall, in general, perform such duties as usually pertain to the position of chief financial officer and such duties as may be prescribed by the Board of Directors.

 

ARTICLE 7

 

Execution of Corporate Instruments and Voting of Securities Owned by the Corporation

 

SECTION 7.1.        Contracts. Subject to the provisions of Section 6.1, the Board of Directors or the Executive Committee may authorize any officer, officers, agent or agents to enter into any contract or execute and deliver an instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.

 

SECTION 7.2.        Checks, etc. All checks, demands, drafts or other orders for the payment of money, and notes or other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers or such agent or agents of the corporation, and in such manner, as shall be determined by the Board of Directors or the Executive Committee.

 

SECTION 7.3.        Deposits. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositories as the Chairman of the Board, the President or the Treasurer may be empowered by the Board of Directors or the Executive Committee to select or as the Board of Directors or the Executive Committee may select.

 

SECTION 7.4.        Voting of Securities Owned by Corporation. All stock and other securities of any other corporation owned or held by the corporation for itself, or for other parties in any capacity, and all proxies with respect thereto shall be executed by the person authorized to do so by resolution of the Board of Directors or, in the absence of such authorization, by the Chairman of the Board, the Chief Executive Officer, the President or any Vice President.

 

ARTICLE 8

 

Shares of Stock

 

SECTION 8.1.        Issuance. Each stockholder of this corporation shall be entitled to a certificate or certificates showing the number of shares of stock registered in his or her name on the books of the corporation. The certificates shall be in such form as may be determined by the Board of Directors or the Executive Committee, shall be issued in numerical order and shall be entered in the books of the corporation as they

 

 

 

 

 

 

are issued. They shall exhibit the holder's name and the number of shares and shall be signed by the Chairman of the Board and the President or such other officers as may from time to time be authorized by resolution of the Board of Directors. Any or all the signatures on the certificate may be a facsimile. The seal of the corporation shall be impressed, by original or by facsimile, printed or engraved, on all such certificates. In case any officer who has signed or whose facsimile signature has been placed upon any such certificate shall have ceased to be such officer before such certificate is issued, such certificate may nevertheless be issued by the corporation with the same effect as if such officer had not ceased to be such officer at the date of its issue. If the corporation shall be authorized to issue more than one (1) class of stock or more than one (1) series of any class, the designation, preferences and relative participating, option or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and rights shall be set forth in full or summarized on the face or back of the certificate which the corporation shall issue to represent such class of stock; provided that except as otherwise provided by the NRS, in lieu of the foregoing requirements there may be set forth on the face or back of the certificate which the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish to each stockholder who so requests the designations, preferences and relative participating, option or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and rights. All certificates surrendered to the corporation for transfer shall be canceled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and canceled, except that in the case of a lost, stolen, destroyed or mutilated certificate a new certificate (or uncertificated shares in lieu of a new certificate) may be issued therefor upon such terms and with such indemnity, if any, to the corporation as the Board of Directors may prescribe. In addition to the above, all certificates (or uncertificated shares in lieu of a new certificate) evidencing shares of the corporation's stock or other securities issued by the corporation shall contain such legend or legends as may from time to time be required by the NRS, the Nevada Gaming Commission Regulations, or the statutes and regulations of any other gaming jurisdiction in which the corporation or any of its affiliates has operations, which are then in effect.

 

SECTION 8.2.        Lost Certificates. The Board of Directors may direct that a new certificate or certificates (or uncertificated shares in lieu of a new certificate) be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates (or uncertificated shares in lieu of a new certificate), the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his or her legal representative, to advertise the same in such manner as it shall require or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate or certificates alleged to have been lost, stolen or destroyed, or both.

 

SECTION 8.3.        Transfers. In the case of shares of stock represented by a certificate, upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Transfers of shares shall be made only on the books of the corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney and filed with the Secretary of the corporation or the transfer agent.

 

SECTION 8.4.        Registered Stockholders. The corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person,

 

 

 

 

 

 

whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Nevada.

 

SECTION 8.5.        Uncertificated Shares. The Board of Directors may approve the issuance of uncertificated shares of some or all of the shares of any or all of its classes or series of capital stock.

 

ARTICLE 9

 

Dividends

 

SECTION 9.1.        Declaration. Dividends upon the capital stock of the corporation, subject to the provisions of the Articles of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property or in shares of capital stock, subject to the provisions of the Articles of Incorporation.

 

SECTION 9.2.        Reserve. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the Board of Directors shall think conducive to the interests of the corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created.

 

ARTICLE 10

 

Indemnification

 

SECTION 10.1.     Third Party Actions. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including amounts paid in settlement and attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful.

 

SECTION 10.2.     Actions by or in the Right of the Corporation. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit if he or she acted in good faith and

 

 

 

 

 

 

in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation. No indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged by a court of competent jurisdiction to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which such action or suit was brought or other court of competent jurisdiction shall determine upon application that in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court shall deem proper.

 

SECTION 10.3.     Successful Defense. To the extent that a director, officer, employee or agent of the corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Sections 10.1 or 10.2, or in defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him or her in connection with the defense.

 

SECTION 10.4.     Determination of Conduct. Any indemnification under Section 10.1 or 10.2 (unless ordered by a court or advanced pursuant to Section 10.5) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances. Such determination shall be made (a) by the stockholders, (b) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, (c) by independent legal counsel in a written opinion if a majority vote of a quorum consisting of directors who were not parties to the act, suit or proceedings so orders, or (d) by independent legal counsel in a written opinion if a quorum consisting of directors who were not parties to the act, suit or proceeding cannot be obtained.

 

SECTION 10.5.     Payment of Expenses in Advance. Expenses incurred in defending a civil or criminal action, suit or proceeding shall be paid by the corporation as they are incurred and in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it is ultimately determined by a court of competent jurisdiction that he or she is not entitled to be indemnified by the corporation. The provisions of this Section 10.5 do not affect any rights to advancement of expenses to which corporate personnel other than directors or officers may be entitled under any contract or otherwise by law.

 

SECTION 10.6.     Indemnity Not Exclusive. The indemnification and advancement of expenses authorized herein or ordered by a court shall not exclude any other rights to which a person seeking indemnification or advancement of expenses may be entitled under the Articles of Incorporation, agreement, vote of stockholders or disinterested directors or otherwise, for either an action in his or her official capacity or an action in another capacity while holding his or her office, except that indemnification, unless ordered by a court pursuant to Section 10.2 or for the advancement of expenses made pursuant to Section 10.5, may not be made to or on behalf of any director or officer if a final adjudication establishes that his or her acts or omissions involved intentional misconduct, fraud or a knowing violation of the law and was material to the cause of action. The indemnification and advancement of expenses shall continue for a person who has ceased to be a director, officer, employee or agent and inures to the benefit of the heirs, executors and administrators of such a person.

 

SECTION 10.7.     The Corporation. For purposes of this Article 10, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or agents. Accordingly, any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was

 

 

 

 

 

 

serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under and subject to the provisions of this Article 10 (including, without limitation, the provisions of Section 10.4) with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.

 

ARTICLE 11

 

Miscellaneous

 

SECTION 11.1.     Seal. The corporate seal shall have inscribed thereon the name of the corporation and the words “Corporate Seal, Nevada.” The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.

 

SECTION 11.2.     Books. The books of the corporation may be kept within or without the State of Nevada (subject to any provisions contained in the NRS) at such place or places as may be designated from time to time by the Board of Directors or the Executive Committee.

 

SECTION 11.3.     Fiscal Year. The fiscal year of the corporation shall begin the first day of January of each year or upon such other day as may be designated by the Board of Directors.

 

SECTION 11.4.     Certain Acquisitions by Fiduciaries. The provisions of NRS 78.378 to NRS 78.3793 do not apply to (i) an Acquisition by a person acting in a fiduciary capacity from another person acting in a fiduciary capacity for the same beneficiaries (and pursuant to the same instrument) or (ii) an Acquisition by the spouse of a person acting in a fiduciary capacity or by a relative of such fiduciary within the first, second or third degree of consanguinity, provided that such Acquisition is pursuant to the instrument creating such fiduciary relationship. “Acquisition” has the meaning set forth in NRS 78.3783, and the term “fiduciary” has the meaning set forth in the Uniform Fiduciaries Act as adopted in the State of Nevada.

 

ARTICLE 12

 

Amendment

 

These by-laws may be altered, amended, or repealed at any regular meeting of the stockholders (or at any special meeting thereof duly called for such purpose) by the affirmative vote of holders of at least sixty-six and two-thirds percent (66 2/3%) of the entire capital stock of the corporation issued and outstanding and entitled to vote. Subject to the laws of the State of Nevada, the Board of Directors may, by majority vote of those present at any meeting at which a quorum is present, alter, amend or repeal these by-laws, or enact such other by-laws as in their judgment may be advisable for the regulation of the conduct of the affairs of the corporation.

 

 

 

 

 

 

Exhibit 1

 

Boyd Gaming Corporation

Form of Stockholder Notice for Nomination of Directors

Pursuant to Section 2.6 of Amended and Restated By-Laws

 

Stockholders must use this form of notice (the “Notice”) for nominations of candidates for election as directors of Boyd Gaming Corporation (the “Corporation”) pursuant to Section 2.6 of the Corporation’s Amended and Restated By-Laws (the “By-Laws”). All stockholders desiring to make a nomination must address Part I of this Notice. Stockholders desiring to have a nominee included in the Corporation’s proxy statement pursuant to Section 2.6.3 of the By-Laws also must address Part II of this Notice. Stockholders may attach additional sheets to this Notice to provide the required information but each additional sheet must accompany this Notice, include the name of the stockholder(s) submitting the Notice and be dated. Further, in certain circumstances as noted herein and in the By-Laws, the information provided in this Notice must be updated or supplemented within the time periods specified in the By-Laws. There is no specific form in which such updates or supplements must be provided. However, stockholders must clearly indicate which items of this Notice are being updated or supplemented, and each page of information provided must include the name of the stockholder(s) submitting the information and be dated. Capitalized terms not defined herein shall have the meanings ascribed to them in the By-Laws.

 

This Notice is being provided to facilitate the Corporation’s evaluation of the eligibility of nominees and to provide stockholders with a convenient avenue for complying with the requirements of Section 2.6 of the By-Laws. Submission of this Notice in and of itself does not, and shall not be construed to, mean that a stockholder has complied with the requirements of Section 2.6 of the By-Laws. The Corporation shall consider the adequacy of notice and a nominee’s eligibility through the date of the Election Meeting.

 

Part I - Required Information for all Nominations

 

   

1.

Provide the full legal name of each stockholder of record making the nomination(s).

_____________________________________________________________

 

   

2.

Provide the full legal name of each beneficial owner, if any, on whose behalf the nomination(s) is (are) being made.

_____________________________________________________________

 

 

 

 

 

 

   

3.

Provide the full legal name of each person being nominated as a candidate for election to the Corporation’s board of directors.

_____________________________________________________________

 

   

4.

a.    For each person or entity identified in Items 1 and 2 above, provide the Ownership Information described in Section 2.6.2 of the By-Laws.

_____________________________________________________________

 

(1)    all information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election pursuant to Section 14 of the Securities Exchange Act of 1934 (the “Exchange Act”) and the rules and regulations promulgated by the Securities and Exchange Commission (“SEC”) thereunder.

_____________________________________________________________

 

 

 

 

 

(2)    a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three (3) years, and any other material relationships, between or among each stockholder and beneficial owner identified in Item 1 and 2 above, and their respective affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee identified in Item 3 above, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-K if the stockholder making the nomination and any beneficial owner on whose behalf the nomination is made, if any, or any affiliate or associate thereof or person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant.

_____________________________________________________________

Note - As provided in Section 2.6.2 of the By-Laws, to be considered timely, the information provided pursuant to this Item 4 must be further updated and supplemented, if necessary, so that the information provided or required to be provided in this Item 4 shall also be true and correct in all material respects (i) as of the record date for the Election Meeting and (ii) as of the date that is ten (10) business days prior to the Election Meeting or any adjournment or postponement thereof, and such update and supplement must be delivered to the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for the Election Meeting in the case of the foregoing clause (i), and not later than eight (8) business days prior to the date for the Election Meeting, any adjournment or postponement thereof in the case of the foregoing clause (ii). For the avoidance of doubt, the requirement to update and supplement a stockholder’s Notice shall not allow a stockholder to change or add to the proposed nominees.

 

   

5.

For each person identified in Item 3 above, other than persons also identified in Item 6 of Part II below, provide an executed consent in the form attached as Exhibit 2 to the By-Laws.

 

 

 

 

 

 

Part II - Required Information and Representations for Proxy Access Nominations under Section 2.6.3 of the By-Laws

 

   

6.

Provide the full legal name of each person being nominated as a candidate for election to the Corporation’s board of directors that the nominating stockholders expressly elect to include in the Corporation’s proxy materials. List the candidates in order of preference, which order will be used to determine the Stockholder Nominee(s) that will be included in the Corporation’s proxy statement in accordance with the procedure set forth in Section 2.6.3.3 of the By-Laws, in the event the Corporation receives a number of Stockholder Nominees that exceeds the maximum number of director slots available for stockholder nominations.

_____________________________________________________________

 

   

7.

For each person identified in Item 6 above, provide an executed consent, representation, agreement and resignation in the form attached as Exhibit 3 to the By-Laws.

 

   

8.

If not provided in response to Item 1 or Item 2 of Part I above, provide the full legal name of each stockholder of record and beneficial owner that is a member of a group of stockholders that together is an Eligible Stockholder seeking to have the nominee(s) named in Item 6 above included in the Corporation’s proxy statement pursuant to Section 2.6.3 of the By-Laws.

_____________________________________________________________

 

   

9.

If not provided in response to Item 4.a of Part I above, for each person or entity identified in Item 8 above, provide the Ownership Information described in Section 2.6.2 of the By-Laws. Note also the requirement to update such information, as needed, as described in the Note to Item 4 of Part I of this Notice.

_____________________________________________________________

 

 

 

 

 

 

   

10.

Provide:

 

a.    The following Required Information, as set forth in Section 2.6.3.1 of the By-Laws. To the extent not provided in response to Item 4.b of Part I above, the information concerning the Stockholder Nominee and the Eligible Stockholder that is required to be disclosed in a proxy statement filed pursuant to the proxy rules of the SEC. Note - If the Corporation determines that additional information regarding the Stockholder Nominee or Eligible Stockholder is necessary to meet the proxy statement disclosure requirements under the SEC’s proxy rules, it will request such information from the Eligible Stockholder. Failure to provide such additional information within the time period required by the Corporation will result in a determination that the nomination is invalid.

_____________________________________________________________

b.    A Statement, as described in Section 2.6.3.6 of the By-Laws. Note - Inclusion of a Statement is optional. If an Eligible Stockholder does not wish to include a Statement, leave this response blank.

_____________________________________________________________

   

11.

Provide the full legal names of all entities identified in Items 1 and 2 of Part I and Item 8 of Part II of this Notice that are under common management and investment control.

_____________________________________________________________

 

   

12.

Attach to this Notice a copy of the Schedule 14N that has been filed with the SEC as required by Rule 14a-18 under the Exchange Act.

 

 

 

 

 

 

 

   

13.

Through the Eligible Stockholder’s signature at the end of this Notice, the Eligible Stockholder (including each member of any group of stockholders that together is an Eligible Stockholder under Section 2.6.3 of the By-Laws) hereby represents that such Eligible Stockholder:

 

a.    owns (as such term is defined in Section 2.6.3.5 of the By-Laws) the Required Shares and has attached to this Notice one or more written statements from the record holder of Required Shares (and from each intermediary through which the shares are or have been held during the requisite three-year holding period) verifying that, as of a date within seven (7) calendar days prior to the date this Notice of the nomination is delivered to or mailed and received by the Corporation, the Eligible Stockholder owns, and has owned continuously for the preceding three (3) years, the Required Shares.

 

b.    acquired the Required Shares in the ordinary course of business and not with the intent to change or influence control at the Corporation, and does not presently have such intent;

 

c.    has not nominated and will not nominate for election to the Board of Directors at the Election Meeting any person other than the Stockholder Nominee(s) being nominated pursuant to Section 2.6.3 of the By-Laws pursuant to this Notice;

 

d.    is not a member of any other group of persons constituting an Eligible Stockholder under Section 2.6.3 of the By-Laws;

 

e.    has not engaged and will not engage in, and has not and will not be, a “participant” in another person’s “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act in support of the election of any individual as a director at the Election Meeting other than its Stockholder Nominee or an individual nominated by the Board of Directors;

 

f.    will not distribute to any stockholder any form of proxy for the Election Meeting other than the form distributed by the Corporation;

 

g.    will own the Required Shares through the date of the Election Meeting;

 

h.    has recalled all loaned shares (if any) as of the date of this Notice and will hold such shares through the date of the Election Meeting;

 

i.    will provide facts, statements and other information in all communications with the Corporation and its stockholders that are or will be true and correct in all material respects and do not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading;

 

j.    will own the Required Shares for at least one (1) year following the Election Meeting; and

 

k.    will promptly provide to the Corporation any amendment or supplement to Schedule 14N that it has filed with the SEC.

 

   

14.

Through the Eligible Stockholder’s signature at the end of this Notice, the Eligible Stockholder (including each member of any group of stockholders that together is an Eligible Stockholder under Sections 2.6.2 and 2.6.3 of the By-Laws, as well as Exhibits 1, 2 and 3) hereby:

 

 

 

 

 

 

 

a.    assumes all liability, jointly and severally, in connection with any legal or regulatory violation arising out of the Eligible Stockholder’s communications with the Corporation’s stockholders or out of the information that the Eligible Stockholder has provided or will provide to the Corporation;

 

b.    indemnifies and holds harmless, jointly and severally, the Corporation and each of its directors, officers and employees individually against any liability, loss or damages in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the Corporation or any of its directors, officers or employees arising out of any nomination submitted by the Eligible Stockholder pursuant to Section 2.6.3 of the By-Laws;

 

c.    agrees to file with the SEC all solicitations or other communications with the Corporation’s stockholders relating to the Election Meeting at which the Stockholder Nominee will be nominated, regardless of whether any such filing is required under Regulation 14A of the Exchange Act or whether any exemption from filing is available for such solicitation or other communication under Regulation 14A of the Exchange Act;

 

d.    agrees to comply with all other applicable laws, rules, regulations and listing standards with respect to any solicitation in connection with the Election Meeting;

 

e.    agrees to provide to the Corporation prior to the Election Meeting such additional information as may reasonably be requested by the Corporation; and

 

f.    agrees to provide, within five (5) business days after the record date for the Election Meeting, written statements from the record holders and intermediaries identified pursuant to Item 13.a above (and any successor record holders and intermediaries) verifying the Eligible Stockholder’s continuous ownership of the Required Shares through the record date.

 

   

15.

With respect to the Ownership Information of an Eligible Stockholder (including each member of any group of stockholders that together is an Eligible Stockholder under Section 2.6.3 of the By-Laws) provided in response to Item 4 of Part I or Item 9 of Part II above, identify:

 

a.    any shares as to which an Eligible Stockholder does not possesses both (i) the full voting and investment rights pertaining to the shares and (ii) the full economic interest in (including the opportunity for profit and risk of loss on) such shares:

_____________________________________________________________

 

b.    any shares sold by an Eligible Stockholder or any of its affiliates in any transaction that has not been settled or closed:

_____________________________________________________________

 

 

 

 

 

 

 

c.    any shares borrowed by an Eligible Stockholder or any of its affiliates for any purposes or purchased by such Eligible Stockholder or any of its affiliates pursuant to an agreement to resell:

_____________________________________________________________

 

d.    any shares subject to any option, warrant, forward contract, swap, contract of sale, other derivative or similar agreement entered into by an Eligible Stockholder or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of outstanding shares of the Corporation’s capital stock, in any such case which instrument or agreement has, or is intended to have, the purpose or effect of (1) reducing in any manner, to any extent or at any time in the future, such Eligible Stockholder’s or affiliates’ full right to vote or direct the voting of any such shares, and/or (2) hedging, offsetting or altering to any degree gain or loss arising from the full economic ownership of such shares by such Eligible Stockholder or affiliate:shares:

_____________________________________________________________

 

e.    any shares with respect to which an Eligible Stockholder has delegated any voting power by means of a proxy, power of attorney or other instrument or arrangement that is not revocable at any time by the Eligible Stockholder:shares:

_____________________________________________________________

 

f.    any shares an Eligible Stockholder has loaned that the Eligible Stockholder (i) does not have the power to recall on three (3) business days’ notice and/or (ii) has not recalled as of the date of this Notice.shares:

_____________________________________________________________

 

 

 

 

 

 

 

 

 

Signatures

I hereby confirm that the foregoing responses and any responses provided in any attachments hereto or otherwise included herewith are, and any information provided to the Corporation in the future to update or supplement this Notice will be, true, correct and complete. I understand that the information that I am furnishing to the Corporation herein and herewith, and any information provided to the Corporation in the future to update or supplement this Notice, will be used by the Corporation to evaluate the eligibility of the nominees named herein and in preparing its proxy statement for the annual meeting of stockholders. Accordingly, I agree to notify the Corporation promptly of any changes in the information provided to the Corporation as part of this Notice, and any updates or supplements to the information provided in or with this Notice.

[ENTITY NAME]

 

Date:___________________                By:_______________________________

Name:

Title:

 

Important Note - All persons and entities identified in Items 1 and 2 of Part I and Item 8 of Part II of this Notice must provide a signature for this Notice to constitute a valid notice for purposes of Section 2.6.2 of the By-Laws.

 

 

 

 

 

 

 

 

Exhibit 2

 

Consent of Candidate Nominated for

Election to the Boyd Gaming Corporation

Board of Directors Pursuant to

Section 2.6 of the By-Laws

 

 

[Note - All stockholder-nominated candidates, other than Stockholder Nominees whom an Eligible Stockholder has expressly elected to include in the Corporation’s proxy materials pursuant to Section 2.6.3 of the By-Laws, must provide the following consent.]

 

To the Board of Directors of Boyd Gaming Corporation (the “Corporation”):

 

I hereby consent to being named as a nominee for director of the Corporation and serving as a director of the Corporation, if elected.

 

 

Date:_____________________            By:_______________________________

Name:

 

 

 

 

 

 

 

Exhibit 3

 

Consent, Representation, Agreement and Resignation

of Stockholder Nominee Pursuant to

Section 2.6.3 of the By-Laws

 

[Note - Each individual whom an Eligible Stockholder is seeking to nominate as a director and to be included in the Corporation’s proxy materials must provide the following consents, representations, agreements and resignation.]

 

To the Board of Directors of Boyd Gaming Corporation (the “Corporation”):

 

I hereby consent to:

 

   

•

serving as a director of the Corporation, if elected;

   

•

being named in the proxy materials of the Corporation as a nominee for election to the Corporation’s Board of Directors; and

   

•

a background check.

 

I further hereby agree and represent that I:

 

   

•

am not and will not become a party to any agreement, arrangement or understanding with, and have not given any commitment or assurance to, any person or entity as to how I, if elected as a director of the Corporation, will act or vote on any issue or question;

   

•

am not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Corporation;

   

•

will comply with all the Corporation’s corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines, and any other Corporation policies and guidelines applicable to directors, as well as any applicable law, rule or regulation or listing requirement;

   

•

will submit, at the request of the Corporation, all completed and signed questionnaires required of the Corporation’s directors and officers and will provide such information and signatures as are necessary for the Corporation to perform a background check; and

   

•

will provide, at the request of the Corporation, such additional information as necessary to permit the Board of Directors to determine if I am independent under the listing standards of the principal exchange upon which the Corporation’s capital stock is listed, any applicable rules of the Securities and Exchange Commission and any publicly disclosed standards used by the Board of Directors in determining and disclosing the independence of the Corporation’s directors.

 

I further hereby tender my resignation from the Board of Directors of the Corporation that will be effective, if I am elected to the Board of Directors, upon a determination by the Board of Directors or any committee thereof that any of the circumstances set forth in Section 2.6.3.13 of the By-Laws has occurred. Upon request, I further agree to execute another form of this resignation upon my election to the Board of Directors, if I am so elected by stockholders.

 

 

Date:___________________________        By:________________________________

Name:

 

 

Exhibit 4.19

 

 

 

 

DESCRIPTION OF THE REGISTRANT’S SECURITIES

REGISTERED PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934

 

The following is a brief description of the common stock, $0.01 par value per share (the “Common Stock”), of Boyd Gaming Corporation (the “Company”), which is the only security of the Company registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended.

 

Description of Common Stock

 

The following is a brief description of the common stock, $0.01 par value per share (the “Common Stock”), of Boyd Gaming Corporation (the “Company”), which is the only security of the Company registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended.

Description of Common Stock

General

 

The following summary of the material features of our Common Stock and certain provisions of Nevada law do not purport to be complete and is subject to, and qualified in its entirety by, the provisions of our Amended and Restated Articles of Incorporation, our Amended and Restated Bylaws, the Nevada Revised Statutes (“NRS”) and other applicable law. Copies of our Amended and Restated Articles of Incorporation and our Amended and Restated Bylaws have been filed with the Securities and Exchange Commission (the “SEC”) as Exhibit 3.1 and Exhibit 3.2, respectively, to our Annual Report on Form 10-K. All of our outstanding Common Stock are validly issued, fully paid and non-assessable.  Our Common Stock is listed on the New York Stock Exchange and trades under the symbol “BYD.”

 

Common Stock

 

Dividend rights

 

Subject to provisions of the NRS and to any future rights which may be granted to the holders of any series of our preferred stock, dividends are paid on our Common Stock when and as declared by our board of directors. We are subject to certain limitations regarding the payment of dividends, such as restricted payment limitations contained in our credit facility and the indentures for our outstanding notes.

 

Voting rights

 

Each holder of shares of our Common Stock is entitled to one vote per share on all matters submitted to a vote of our common stockholders. Holders of our Common Stock are not entitled to cumulative voting rights. Accordingly, holders of a majority of the voting shares are able to elect all of the directors. Our Amended and Restated Articles of Incorporation does not provide for a classified Board of Directors; all directors of the Company are elected annually.

 

Restrictions

 

Each holder of shares of our Common Stock will be subject to and comply with any rules, regulations and any other laws which we or any of our subsidiaries or partnerships must comply with in connection with our gaming business, and each share of our Common Stock will be subject to redemption at its then fair market value as determined by our board of directors if necessary to comply with the rules, regulations and laws of our gaming business.

 

Our Amended and Restated Articles of Incorporation provide that as long as we remain either a holding company or an intermediary holding company subject to the statutes, regulations, rules, ordinances, orders or interpretations (the “Gaming Laws”) of any gaming authority (the “Gaming Authorities”), all securities issued by us shall be held subject to the applicable provisions of such Gaming Laws. Not by way of limitation, if we become, and so long as we remain, either a holding company or an intermediary holding company subject to regulation under the Indiana Riverboat Gambling Act (the “Indiana Act”) or any other Gaming Authority which has similar requirements, all securities issued by us shall be held subject to the condition that if a holder thereof is found to be disqualified by the Indiana Gaming Commission pursuant to the Indiana Act, or any other Gaming Authority which has similar requirements, such holder shall, at the election of the Corporation, either: (i) sell any or all of such securities to us at the Redemption Price (defined below); or (ii) otherwise dispose of such holder’s interest in us, all within 30 days following our receipt of notice (the “Notice Date”) of the holder’s disqualification. The Redemption Price shall be the lesser of (i) the lowest closing sale price of the such securities between the Notice Date and the date 30 days after the Notice Date or (ii) such holder’s original purchase price for such securities. The disqualified holder will also be responsible for and will pay all costs associated by us in connection with the disposition or redemption of securities, including but not limited to attorneys fees. Promptly following the Notice Date, we shall either deliver such written notice along with our election personally to the disqualified holder or shall mail it to such holder at the address shown on our records, or use any other reasonable means to provide notice. Our failure to provide notice to a disqualified holder after making reasonable efforts to do so shall not preclude us from exercising our rights. If any disqualified holder fails to dispose such holder’s securities within 30 days following the Notice Date, we, by action of our board of directors, may redeem such securities at the lesser of (i) the lowest closing sale price of such securities between the Notice Date and the date 30 days after the Notice Date or (ii) such holder’s original purchase price for such securities. So long as we are a “publicly traded holding company” as defined in the Indiana Act, commencing on the Notice Date, it shall be unlawful for the disqualified holder to: (i) receive any dividends or interest upon any securities issued by us held by such holder; (ii) exercise, directly or through any trustee or nominee, any right conferred by such securities; or (iii) receive any remuneration in any form, for services rendered or otherwise, from us or any of our subsidiaries that holds a casino license.

 

 
 

 

Liquidation

 

If the Company is liquidated, holders of our Common Stock are entitled to receive all remaining assets available for distribution to stockholders after satisfaction of our liabilities and the preferential rights of any of our preferred stock that may be outstanding at that time.

 

No preemptive or similar rights

 

The holders of our Common Stock do not have any preemptive, conversion or redemption rights by virtue of their ownership of the Common Stock.

 

Limitation on Rights of Holders of Common Stock – Preferred Stock

 

The rights of holders of Common Stock may be materially limited or qualified by the rights of holders of preferred shares that we may issue in the future.

 

Our Amended and Restated Articles of Incorporation authorizes our Board of Directors, without further stockholder action, to provide for the issuance of up to 5,000,000 shares of preferred stock. Shares of our preferred stock may be issued in one or more series, and our board of directors is authorized to determine the designation and to fix the number of shares of each series. Our board of directors is further authorized to fix and determine the dividend rate, premium or redemption rates, conversion rights, voting rights, preferences, privileges, restrictions and other variations granted to or imposed upon any wholly unissued series of our preferred stock. The Company may amend from time to time our Amended and Restated Articles of Incorporation to increase the number of authorized shares of preferred stock. Any such amendment would require the approval of the holders of a majority of our shares of Common Stock entitled to vote.

 

Prior to the issuance of shares of a series of preferred stock, our board of directors will adopt resolutions and file a certificate of designation with the Secretary of State of the State of Nevada. The certificate of designation will fix for each series the designation and number of shares and the rights, preferences, privileges and restrictions of the shares including, but not limited to, the following:

 

 

•

 

voting rights, if any, of the preferred stock;

 

 

•

 

any rights and terms of redemption;

 

 

•

 

the dividend rate(s), period(s) and/or payment date(s) or method(s) of calculation applicable to the preferred stock;

 

 

•

 

whether dividends are cumulative or non-cumulative, and if cumulative, the date from which dividends on the preferred stock will accumulate;

 

 

•

 

the relative ranking and preferences of the preferred stock as to dividend rights and rights upon the liquidation, dissolution or winding up of our affairs;

 

 

•

 

the terms and conditions, if applicable, upon which the preferred stock will be convertible into Common Stock, another series of preferred stock, or any other class of securities being registered hereby, including the conversion price (or manner of calculation) and conversion period;

 

 

•

 

the provision for redemption, if applicable, of the preferred stock;

 

 

•

 

the provisions for a sinking fund, if any, for the preferred stock;

  

•

 

liquidation preferences;

 

 

•

 

any limitations on the issuance of any class or series of preferred stock ranking senior to or on a parity with the class or series of preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs; and

 

 

•

 

any other specific terms, preferences, rights, limitations or restrictions of the preferred stock.

 

Certain Anti-Takeover Matters

 

Amended and Restated Articles of Incorporation and Amended and Restated Bylaw Provisions

 

Our Amended and Restated Articles of Incorporation and Amended and Restated Bylaws contain certain provisions that are intended to enhance the likelihood of continuity and stability in the composition of our board of directors and in the policies formulated by our board of directors and to discourage an unsolicited takeover of our company if our board of directors determines that such a takeover is not in the best interests of our company and stockholders. However, these provisions could have the effect of discouraging certain attempts to acquire us or remove incumbent management even if some or a majority of our stockholders deemed such an attempt to be in their best interests, including those attempts that might result in a premium over the market price for the shares of our Common Stock held by stockholders.

 

Our Amended and Restated Bylaws establish advance notice procedures with regard to stockholder proposals and the nomination, other than by or at the direction of the board of directors or a committee thereof, of candidates for election as directors. We may reject a stockholder proposal or nomination that is not made in accordance with such procedures. In addition, our Amended and Restated Bylaws provide that:

 

 

•

 

stockholders owning not less than 66 2/3% of our entire capital stock that is issued, outstanding and entitled to vote may cause a special meeting of stockholders to be called; and

 

 

•

 

our bylaws may be altered, amended or repealed at any regular meeting of the stockholders (or at any special meeting thereof duly called for such purpose) by the affirmative vote of holders of at least 66 2/3% of our entire capital stock that is issued, outstanding and entitled to vote.

 

 
 

 

Our Amended and Restated Articles of Incorporation provide that a director may not be removed from office without cause unless by the vote of the holders of 66 2/3% or more of the outstanding shares of our Common Stock entitled to vote. Our Amended and Restated Articles of Incorporation also contain the redemption provisions discussed above under “—Common Stock—Restrictions” which could have the effect of discouraging certain attempts to acquire us.

 

Nevada Takeover Statutes

 

Nevada’s Combination with Interested Stockholders Statute and Control Share Acquisition Statute may both have the effect of delaying or making it more difficult to effect a change in control of our company.

 

The Combination with Interested Stockholders Statute prevents an “interested stockholder” and an applicable Nevada corporation from entering into a “combination,” unless certain conditions are met. A “combination” means any merger or consolidation with an “interested stockholder” or affiliate or associate of an “interested stockholder,” or any sale, lease, exchange, mortgage, pledge, transfer or other disposition, in one transaction or a series of transactions with an “interested stockholder” or affiliate or associate of an “interested stockholder”:

 

 

•

 

having an aggregate market value equal to more than 5% of the aggregate market value of the assets of the corporation;

 

 

•

 

having an aggregate market value equal to more than 5% of the aggregate market value of all of the outstanding voting shares of the corporation; or

 

 

•

 

representing more than 10% of the earning power or net income, determined on a consolidated basis, of the corporation.

 

An “interested stockholder” means (i) the beneficial owner of 10% or more of the voting shares of the corporation or (ii) an affiliate or associate of the corporation who at any time within 2 years immediately prior to the date in question was the beneficial owner of 10% or more of the voting shares of the corporation. A corporation may not engage in a “combination” within two years after the interested stockholder acquired his shares unless the combination meets all of the requirements of the articles of incorporation of the corporation and (x) the combination or the purchase of shares made by the interested stockholder was approved by the board of directors before the interested stockholder acquired such shares or (y) the combination is approved by the board of directors and, at or after that time, the combination is approved at an annual or special meeting of the stockholders of the corporation representing at least 60% of the outstanding voting power of the corporation not beneficially owned by interested stockholders or affiliates or associates thereof. If such approval is not obtained, then after the expiration of the two-year period, the business combination may be consummated if the combination meets all of the requirements of the corporation’s articles of incorporation and (a) the combination or the transaction in which the person became an interested stockholder was approved by the board of directors before the person became an interested stockholder, (b) if it is approved at an annual or special meeting of the stockholders of the corporation by a majority of the voting power held by disinterested stockholders, or (c) if the consideration to be paid by the interested stockholder for disinterested shares of common and preferred stock, as applicable, is at least equal to the highest of:

 

 

•

 

The highest price per share paid by the interested stockholder, at a time when the interested stockholder was the beneficial owner, directly or indirectly, of 5 percent or more of the outstanding voting shares of the corporation, for any common shares of the same class or series acquired by the interested stockholder within 2 years immediately before the date of announcement with respect to the combination or within 2 years immediately before, or in, the transaction in which the person became an interested stockholder, whichever is higher, plus, in either case, interest compounded annually from the earliest date on which the highest price per share was paid through the date of consummation at the rate for one-year obligations of the United States Treasury in effect on that earliest date, less the aggregate amount of any dividends paid in cash and the market value of any dividends paid other than in cash, per common share since that earliest date.

 

 

•

 

The market value per common share on the date of announcement with respect to the combination or on the date that the person first became an interested stockholder, whichever is higher, plus interest compounded annually from that date through the date of consummation at the rate for one-year obligations of the United States Treasury in effect on that date, less the aggregate amount of any dividends paid in cash and the market value of any dividends paid other than in cash, per common share since that date. 

 

 

Nevada’s Control Share Acquisition Statute prohibits an acquiror, under certain circumstances, from voting shares of a target corporation’s stock after crossing certain threshold ownership percentages, unless the acquiror obtains the approval of the target corporation’s disinterested stockholders. The Control Share Acquisition Statute specifies three thresholds: (i) one-fifth or more but less than one-third, (ii) one-third or more but less than a majority, and (iii) a majority or more, of the outstanding voting power in the election of directors. Once an acquiror crosses one of the above thresholds, those shares in the immediate offer or acquisition and those shares acquired within 90 days become Control Shares (as defined in the statute) and those Control Shares are deprived of the right to vote until disinterested stockholders restore the right. The Control Share Acquisition Statute also provides that in the event Control Shares are accorded full voting rights and the acquiring person has acquired a majority or more of all voting power, all other stockholders who do not vote in favor of authorizing voting rights to the Control Shares are entitled to demand payment for the fair value of their shares. Our board is required to notify such stockholders within 10 days after the vote of the stockholders that they have the right to receive the fair value of their shares in accordance with statutory procedures established generally for dissenter’s rights.

 

Limitation of Liability and Indemnification Matters

 

Article IX of our Amended and Restated Articles of Incorporation and Article 10 of our Amended and Restated Bylaws provide for indemnification of our directors, officers, employees and other agents to the maximum extent permitted by Nevada law. We also have entered into indemnification agreements with our executive officers and directors and provide indemnity insurance pursuant to which directors and officers are indemnified or insured against liability or loss under certain circumstances which may include liability or related loss under the Securities Act and the Exchange Act.

 

 

EXHIBIT 21.1

 

BOYD GAMING CORPORATION

 

 

Subsidiary Name

State or Other Jurisdiction of Incorporation

Boyd Gaming Corporation

Nevada

BGM Co. Inc.

Nevada

East West Gaming, LLC

California

Tides 8, LLC

California

ALST Casino Holdco, LLC

Delaware

Aliante Gaming, LLC dba Aliante Casino + Hotel + Spa

Nevada

Blue Chip Casino, LLC dba Blue Chip Casino Hotel Spa

Indiana

Boyd Acquisition, LLC

Delaware

Boyd Acquisition I, LLC

Delaware

Boyd Acquisition II, LLC

Delaware

Peninsula Gaming, LLC

Delaware

Belle of Orleans, L.L.C. dba Amelia Belle Casino

Louisiana

Diamond Jo, LLC dba Diamond Jo Casino

Delaware

Diamond Jo Worth, LLC dba Diamond Jo Worth

Delaware

Kansas Star Casino, LLC dba Kansas Star Casino

Kansas

Peninsula Gaming Corp.

Delaware

The Old Evangeline Downs, L.L.C. dba Evangeline Downs Racetrack & Casino

Louisiana

OED Acquisition, LLC

Delaware

Boyd Atlantic City, Inc.

New Jersey

Boyd Central Region, Inc.

Nevada

Boyd Corporate Campus, LLC

Nevada

Boyd Development Corporation

Nevada

Boyd FSE, Inc.

Nevada

Boyd Gaming Japan Development Co.

Nevada

Boyd Interactive Gaming, Inc.

Nevada

Boyd Interactive Gaming, L.L.C.

Nevada

IA - IPR Holdings LLC

Nevada

Boyd Louisiana Racing, L.L.C.

Louisiana

Boyd Racing, L.L.C. dba Delta Downs Racetrack Hotel & Casino

Louisiana

Red River Entertainment of Shreveport, L.L.C. dba Sam's Town Shreveport

Louisiana

Treasure Chest Casino, L.L.C. dba Treasure Chest Casino

Louisiana

Boyd Office Building, Inc.

Nevada

Boyd Pennsylvania, Inc.

Pennsylvania

Boyd Pennsylvania Partners, LP

Pennsylvania

Boyd Rhode Island, Inc.

Nevada

Boyd Robinsonville, Inc.

Mississippi

Boyd Shared Services Inc. dba Boyd Linen and Uniform Services

Nevada

Boyd Social Gaming, LLC Nevada

Boyd TCIV, LLC

Nevada

Ameristar Casino Kansas City, LLC dba Ameristar Casino ٭ Hotel Kansas City

Missouri

Ameristar Casino St. Charles, LLC dba Ameristar Casino ٭ Resort ٭ Spa St. Charles

Missouri

Belterra Resort Indiana LLC dba Belterra Casino Resort

Nevada

Ogle Haus, LLC dba Ogle Haus Inn

Indiana

Boyd (Ohio) PropCo, LLC

Delaware

PNK (Ohio), LLC dba Belterra Park

Ohio

PNK (Ohio) II, LLC

Ohio

PNK (Ohio) III, LLC

Ohio

Boyd TCV GP, LLC

Pennsylvania

Boyd Travel, Inc. dba Vacations Hawaii

Nevada

Coast Vacations, Inc.

Nevada

Boyd Tunica, Inc. dba Sam's Town Hotel and Gambling Hall Tunica

Mississippi

Boyd Biloxi, LLC dba IP Casino Resort Spa

Mississippi

Boyd Florida, LLC

Mississippi

The Aragon Group (1)

Florida

Summersport Enterprises, LLC

Florida

Boyd Sunrise, LLC

Florida

Tunica Golf Course, LLC

Mississippi

California Hotel & Casino dba California Hotel and Casino, Sam's Town Hotel & Gambling Hall

Nevada

1100 Boulder Highway, LLC

Nevada

California Hotel Finance Corporation

Nevada

Echelon Resorts LLC

Nevada

Eldorado, Inc. dba Eldorado Casino and Jokers Wild

Nevada

M.S.W., Inc. dba Main Street Station Hotel and Casino

Nevada

Sam-Will, Inc. dba Fremont Hotel & Casino

Nevada

Coast Casinos, Inc.

Nevada

Coast Hotels & Casinos, Inc. dba The Orleans Hotel and Casino, Gold Coast Hotel and Casino, Suncoast Hotel and Casino

Nevada

BNLV, L.L.C.

Nevada

BCO Gaming, L.L.C.

Nevada

Constellation Insurance Company, Inc.

Hawaii

Echelon Resorts Corporation

Nevada

FGB Development, Inc.

Florida

Lattner Entertainment Group Illinois, LLC

Illinois

Rock Solid Amusements, LLC

Illinois

Nevada Palace, LLC dba Eastside Cannery Casino and Hotel

Nevada

Par-A-Dice Gaming Corporation dba Par-A-Dice Casino

Illinois

The Cannery Hotel and Casino, LLC dba Cannery Casino Hotel

Nevada

Valley Forge Convention Center Partners, LLC dba Valley Forge Casino Resort

Pennsylvania

VF Colonial GP, LLC

Pennsylvania

Valley Forge Colonial, LLC

Pennsylvania

 

 

(1) 99% owned by Boyd Florida, LLC; 1% owned by FGB Development, Inc.

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in Registration Statement Nos. 333-90840, 333-119850, 333-129421, 333-153852, and 333-184158 on Form S-8 of our reports dated February 27, 2020 relating to the financial statements of Boyd Gaming Corporation and Subsidiaries and the effectiveness of Boyd Gaming Corporation and Subsidiaries' internal control over financial reporting, appearing in this Annual Report on Form 10-K of Boyd Gaming Corporation for the year ended December 31, 2019.

 

 

/s/ DELOITTE & TOUCHE LLP

 

Las Vegas, Nevada

 

February 27, 2020

 

 

Exhibit 31.1

 

BOYD GAMING CORPORATION

CERTIFICATION

 

I, Keith E. Smith, certify that:

 

1.     I have reviewed this annual report on Form 10-K of Boyd Gaming Corporation;

 

 

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

 

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

 

4.

The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

 

a.

designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

 

b.

designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

 

c.

evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

 

d.

disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

 

 

5.

The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

 

 

a.

all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

 

b.   any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

 

 

 

Date:

February 27, 2020

By:

/s/ Keith E. Smith

     

Keith E. Smith

     

President and Chief Executive Officer

 

 

Exhibit 31.2

 

BOYD GAMING CORPORATION

CERTIFICATION

 

I, Josh Hirsberg, certify that:

 

1.     I have reviewed this annual report on Form 10-K of Boyd Gaming Corporation;

 

 

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

 

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

 

4.

The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

 

a.

designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

 

b.

designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

 

c.

evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

 

d.

disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

 

 

5.

The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

 

 

a.

all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

 

b.   any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

 

 

 

Date:

February 27, 2020

By:

/s/ Josh Hirsberg

     

Josh Hirsberg

     

Executive Vice President, Chief Financial Officer and Treasurer

 

 

Exhibit 32.1

 

 

BOYD GAMING CORPORATION

 

CERTIFICATION

 

In connection with the periodic report of Boyd Gaming Corporation (the "Company") on Form 10-K for the period ended December 31, 2019 as filed with the Securities and Exchange Commission (the "Report"), I, Keith E. Smith, President and Chief Executive Officer of the Company, hereby certify as of the date hereof, solely for purposes of Title 18, Chapter 63, Section 1350 of the United States Code, that to the best of my knowledge:

 

(1)         the Report fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934, and

 

(2)         the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company at the dates and for the periods indicated.

 

A signed original of this written statement required by Section 906, or other document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version of this written statement required by Section 906, has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.

 

This Certification has not been, and shall not be deemed, "filed" with the Securities and Exchange Commission.

 

 

 

Date:

February 27, 2020

By:

/s/ Keith E. Smith

     

Keith E. Smith

     

President and Chief Executive Officer

 

 

Exhibit 32.2

 

 

BOYD GAMING CORPORATION

 

CERTIFICATION

 

In connection with the periodic report of Boyd Gaming Corporation (the "Company") on Form 10-K for the period ended December 31, 2019 as filed with the Securities and Exchange Commission (the "Report"), I, Josh Hirsberg, Executive Vice President, Chief Financial Officer and Treasurer of the Company, hereby certify as of the date hereof, solely for purposes of Title 18, Chapter 63, Section 1350 of the United States Code, that to the best of my knowledge:

 

(1)         the Report fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934, and

 

(2)         the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company at the dates and for the periods indicated.

 

A signed original of this written statement required by Section 906, or other document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version of this written statement required by Section 906, has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.

 

This Certification has not been, and shall not be deemed, "filed" with the Securities and Exchange Commission.

 

 

 

Date:

February 27, 2020

By:

/s/ Josh Hirsberg

     

Josh Hirsberg

     

Executive Vice President, Chief Financial Officer and Treasurer

 

 

 

Exhibit 99.1

 

GOVERNMENTAL GAMING REGULATIONS

 

We are subject to extensive regulation under laws, rules and supervisory procedures primarily in the jurisdictions where our facilities are located or docked. If additional gaming regulations are adopted in a jurisdiction in which we operate, such regulations could impose restrictions or costs that could have a significant adverse effect on us. From time to time, various proposals have been introduced in the legislatures of some of the jurisdictions in which we have existing or planned operations that, if enacted, could adversely affect the tax, regulatory, operational or other aspects of the gaming industry and us. Currently, numerous jurisdictions in which we operate or that are contiguous to jurisdictions in which we operate are considering legislative proposals that would expand gaming whether through increasing the availability of existing gaming products in such jurisdiction or authorizing new types of gaming products previously unavailable to gaming patrons in such jurisdiction, such as sports betting, online sports betting, daily fantasy sports, distributed gaming and new lottery products. The enactment of any such expansion proposals in such jurisdictions could significantly impact the competitive environment in which we operate. We do not know whether or in what form any such legislation will be enacted. The federal government has also previously considered a federal tax on casino revenues and the elimination of betting on amateur sporting events and may consider such a tax or eliminations on betting in the future. In addition, gaming companies are currently subject to significant state and local taxes and fees in addition to normal federal and state corporate income taxes, and such taxes and fees are subject to increase at any time. Any material increase in these taxes or fees could adversely affect us.

 

Some jurisdictions, including Nevada, Illinois, Indiana, Louisiana, Mississippi, Missouri, Iowa, Kansas, Ohio, and Pennsylvania empower their regulators to investigate participation by licensees in gaming outside their jurisdiction and require access to periodic reports respecting those gaming activities. Violations of laws or disciplinary action in one jurisdiction could result in investigative activity and disciplinary actions in other jurisdictions.

 

Under provisions of gaming laws in jurisdictions in which we have operations, and under our organizational documents, certain of our securities are subject to restrictions on ownership which may be imposed by specified governmental authorities. The restrictions may require a holder of our securities to dispose of the securities or, if the holder refuses, or is unable, to dispose of the securities, we may be required to repurchase the securities.

 

The indentures governing our outstanding notes provide that if a holder of a note or beneficial owner of a note is required to be licensed, qualified or found suitable under the applicable gaming laws and is not so licensed, qualified or found suitable within the time period specified by the applicable gaming authority, the holder will be required, at our request, to dispose of its notes within a time period that either we prescribe or such other time period prescribed by the applicable gaming authority, and thereafter, we shall have the right to redeem such holder’s notes.

 

Nevada

 

The ownership and operation of casino gaming facilities in Nevada are subject to the Nevada Gaming Control Act and the regulations promulgated by the Nevada Gaming Commission thereunder, which we refer to as the Nevada Act, including various local codes and ordinances. Our gaming operations are subject to the licensing and regulatory control of the Nevada Gaming Commission, which we refer to as the Nevada Commission, the Nevada Gaming Control Board, which we refer to as the Nevada Board, the Clark County Liquor and Gaming Licensing Board, and the City of Las Vegas, which, with the Nevada Commission and the Nevada Board, we collectively refer to as the Nevada Gaming Authorities.

 

The laws, regulations and supervisory procedures of the Nevada Gaming Authorities are based upon declarations of public policy that are concerned with, among other things:

 

 

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the prevention of unsavory or unsuitable persons from having a direct or indirect involvement with gaming at any time or in any capacity;

 

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the prevention of unsavory or unsuitable persons from having a direct or indirect involvement with gaming at any time or in any capacity;

 

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the establishment and maintenance of responsible accounting practices and procedures;

 

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the maintenance of effective controls over the financial practices of licensees, including establishing minimum procedures for internal fiscal affairs and the safeguarding of assets and revenues;

 

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providing reliable record keeping and requiring the filing of periodic reports with the Nevada Gaming Authorities;

 

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the prevention of cheating and fraudulent practices;

 

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the maintenance of a Gaming Compliance and Reporting Plan, including the establishment of a Gaming Compliance Committee and the retention of a Corporate Compliance Officer; and

 

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the provision of a source of state and local revenues through taxation and licensing fees.

 

Changes in such laws, regulations and procedures could have an adverse effect on our gaming operations and our business, financial condition and results of operations.

 

 
 

 

Corporations that operate casinos in Nevada are required to be licensed by the Nevada Gaming Authorities. A gaming license requires the periodic payment of fees and taxes and is not transferable. We are registered by the Nevada Commission as a publicly traded corporation, or a Registered Corporation. As a Registered Corporation, we are required periodically to submit detailed financial and operating reports to the Nevada Commission and furnish any other information which the Nevada Commission may require. We have been licensed by the Nevada Commission to own the stock of California Hotel and Casino, and to be the sole member and manager of The Cannery Hotel and Casino, LLC, the operator of The Cannery Hotel Casino, and of Nevada Palace, LLC, the operator of the Eastside Cannery Casino & Hotel, and have been found suitable to own the stock of Coast Casinos, Inc., and of Boyd Interactive Gaming, Inc., and to be the sole member and manager of ALST Casino Holdco, LLC. California Hotel and Casino is licensed by the Nevada Commission to operate non-restricted gaming activities at the California and Sam's Town Las Vegas and is additionally registered as an intermediary company and found suitable by the Nevada Commission to own the stock of Sam-Will, Inc., the operator of the Fremont, Eldorado, Inc., the operator of the Eldorado Casino and Jokers Wild, and M.S.W., Inc., the operator of Main Street Station. Coast Casinos, Inc., is registered as an intermediary company and found suitable by the Nevada Commission to own the stock of Coast Hotels and Casinos, Inc., the operator of the Gold Coast Hotel and Casino, The Orleans Hotel and Casino, and the Suncoast Hotel and Casino. ALST Casino Holdco is registered as an intermediary company and licensed by the Nevada Commission to be the sole member and manager of Aliante Gaming, LLC, the operator of the Aliante Casino + Hotel. Boyd Interactive Gaming, Inc., is registered as an intermediary company and is licensed to be the sole member of Boyd Interactive Gaming, LLC. In 2003, the Nevada Commission approved Boyd Louisiana Racing Inc. and Boyd Racing L.L.C., d.b.a. Delta Downs Racetrack, Casino & Hotel, to share in the revenue from the conduct of off-track pari-mutuel wagering, under certain conditions, as it pertains to the broadcast of live racing events to licensed Nevada pari-mutuel race books. No person may become a more than 5% stockholder or holder of more than a 5% interest in, or receive any percentage of profits from, California Hotel and Casino or its subsidiaries, Coast Casinos, Inc., or its subsidiary, ALST Casino Holdco, LLC, or its subsidiary, The Cannery Hotel and Casino, LLC, Nevada Palace, LLC, or Boyd Interactive Gaming, Inc., or its subsidiary, without first obtaining licenses and approvals from the Nevada Gaming Authorities. We refer to all of the foregoing entities collectively as the Licensed Subsidiaries. Boyd Gaming and all of its Licensed Subsidiaries have obtained from the Nevada Gaming Authorities the various registrations, approvals, permits and licenses required in order to engage in gaming activities in Nevada.

 

The Nevada Gaming Authorities may investigate any individual who has a material relationship to, or material involvement with, Boyd Gaming and its Licensed Subsidiaries in order to determine whether such individual is suitable or should be licensed as a business associate of a gaming licensee. Officers, directors and certain key employees of the Licensed Subsidiaries must file applications with the Nevada Gaming Authorities and may be required to be licensed or found suitable by the Nevada Gaming Authorities. Our officers, directors and key employees who are actively and directly involved in gaming activities of the Licensed Subsidiaries may be required to be licensed or found suitable by the Nevada Gaming Authorities. The Nevada Gaming Authorities may deny an application for licensing for any cause which they deem reasonable. A finding of suitability is comparable to licensing, and both require submission of detailed personal and financial information followed by a thorough investigation. The applicant for licensing or a finding of suitability must pay all the costs of the investigation. Changes in licensed positions must be reported to the Nevada Gaming Authorities within 30 days as prescribed by law and, in addition to their authority to deny an application for a finding of suitability or licensure, the Nevada Gaming Authorities have jurisdiction to disapprove a change in a corporate position.

 

If the Nevada Gaming Authorities were to find an officer, director or key employee unsuitable for licensing or unsuitable to continue having a relationship with us or any of our Licensed Subsidiaries, the companies involved would have to sever all relationships with such person. In addition, the Nevada Commission may require Boyd Gaming or any of its Licensed Subsidiaries to terminate the employment of any person who refuses to file appropriate applications. Determinations of suitability or questions pertaining to licensing are not subject to judicial review in Nevada.

 

Boyd Gaming and its Licensed Subsidiaries are required to submit detailed financial and operating reports to the Nevada Commission. Substantially all material loans, leases, sales of securities and similar financing transactions by the Licensed Subsidiaries must be reported to, and/or approved by, the Nevada Commission.

 

If it were determined that the Nevada Act was violated by any of the Licensed Subsidiaries, the gaming licenses they hold could be limited, conditioned, suspended or revoked, subject to compliance with certain statutory and regulatory procedures. In addition, Boyd Gaming and the persons involved could be subject to substantial fines for each separate violation of the Nevada Act or Regulations at the discretion of the Nevada Commission. Further, a supervisor could be nominated by the Nevada Commission for court appointment to operate our gaming properties and, under certain circumstances, earnings generated during the supervisor’s appointment (except for reasonable rental value of our gaming properties) could be forfeited to the State of Nevada. Limitation, conditioning or suspension of any gaming license or the appointment of a supervisor could (and revocation of any gaming license would) materially adversely affect our gaming operations and our business, financial condition and results of operations.

 

Any beneficial holder of our voting securities, regardless of the number of shares owned, may be required to file an application, be investigated and have his suitability reviewed as a beneficial holder of our voting securities if the Nevada Commission has reason to believe that such ownership would otherwise be inconsistent with the declared policies of the State of Nevada. The applicant must pay all costs of investigation incurred by the Nevada Gaming Authorities in conducting any such investigation.

 

 
 

 

The Nevada Act requires any person who acquires more than 5% of our voting securities to report the acquisition to the Nevada Commission on the date specified therein. The Nevada Act requires that beneficial owners of more than 10% of our voting securities apply to the Nevada Commission for a finding of suitability within 30 days after the date specified by the Nevada Commission therein. Under certain circumstances, an “institutional investor,” as defined in the Nevada Act, which acquires more than 10%, but not more than 25%, of our voting securities may apply to the Nevada Commission for a waiver of such finding of suitability if such institutional investor holds the voting securities for investment purposes only. An institutional investor that has obtained such a waiver may, in certain circumstances, hold up to 29% of our voting securities and maintain its waiver for a limited period of time. An institutional investor shall not be deemed to hold voting securities for investment purposes unless the voting securities were acquired and are held in the ordinary course of business as an institutional investor and not for the purpose of causing, directly or indirectly, the election of a majority of the members of our board of directors, any change in our corporate charter, bylaws, management, policies or operations, or any of our gaming affiliates, or any other action which the Nevada Commission finds to be inconsistent with holding our voting securities for investment purposes only. Activities that are not deemed to be inconsistent with holding voting securities for investment purposes include only:

 

 

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voting on all matters voted on by stockholders;

 

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making financial and other inquiries of management of the type normally made by securities analysts for informational purposes and not to cause a change in our management, policies or operations; and

 

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such other activities as the Nevada Commission may determine to be consistent with such investment intent.

 

The Nevada Act also requires that any beneficial owner of 10% or more of any class of our voting securities who has the intent to engage in any proscribed activity, shall, (a) within 2 days after possessing such intent, notify the Chair of the Nevada Board in writing in the manner prescribed by such Chair, (b) file an application with the Nevada Commission for a finding of suitability within 30 days after notifying the Chair of the Nevada Board pursuant to (a) above, and (c) deposit with the Nevada Board the sum of money which, in the opinion of the Nevada Board, will be adequate to pay the anticipated costs and charges incurred in the investigation and processing of such application, and thereafter deposit such additional sums as are required by the Nevada Board to pay all final costs and charges. The Nevada Act defines “proscribed activity” to mean (a) an activity that necessitates a change or amendment to our corporate charter, bylaws, management, policies or operation; (b) an activity that materially influences or affects our affairs; or (c) any other activity determined by the Nevada Commission to be inconsistent with holding our voting securities for investment purposes only. Such a shareholder who has the intent to engage in a proscribed activity is deemed to be engaged in an activity that influences or affects our affairs. Subject to the foregoing requirements, a person shall not be unduly prohibited from lawfully exercising any of his or her voting rights derived from being a shareholder, and a person who has submitted an application pursuant to the foregoing requirements may exercise his or her voting rights while such application is pending. A person who is found unsuitable by the Nevada Commission shall immediately cease engaging in all proscribed activities and shall no longer engage in such activities thereafter. Any violation of these provisions is a gross misdemeanor.

 

If the beneficial holder of voting securities who must be found suitable is a corporation, partnership or trust, it must submit detailed business and financial information including a list of beneficial owners. The applicant is required to pay all costs of investigation.

 

Any person who fails or refuses to apply for a finding of suitability or a license within 30 days after being ordered to do so by the Nevada Commission or the Chair of the Nevada Board, may be found unsuitable. The same restrictions apply to a record owner if the record owner, after request, fails to identify the beneficial owner. Any stockholder found unsuitable and who holds, directly or indirectly, any beneficial ownership of the common stock of a Registered Corporation beyond such period of time as may be prescribed by the Nevada Commission may be guilty of a gross misdemeanor. We are subject to disciplinary action if, after we receive notice that a person is unsuitable to be a stockholder or to have any other relationship with us, or any of our Licensed Subsidiaries, we:

 

 

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pay that person any dividend or interest upon voting securities of Boyd Gaming;

 

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allow that person to exercise, directly or indirectly, any voting right conferred through securities held by the person;

 

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pay remuneration in any form to that person for services rendered or otherwise; or

 

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fail to pursue all lawful efforts to require such unsuitable person to relinquish their voting securities for cash at fair market value.

 

Additionally, the Clark County Liquor and Gaming Licensing Board has taken the position that it has the authority to approve all persons owning or controlling the stock of any corporation controlling a gaming license.

 

The Nevada Commission may, at its discretion, require the holder of any debt security of a Registered Corporation to file applications, be investigated and be found suitable to own the debt security of a Registered Corporation. If the Nevada Commission determines that a person is unsuitable to own such security, then pursuant to the Nevada Act, the Registered Corporation can be sanctioned, including the loss of its approvals, if without the prior approval of the Nevada Commission, it:

 

 

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pays to the unsuitable person any dividend, interest, or any distribution whatsoever;

 

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recognizes any voting right by such unsuitable person in connection with such securities;

 

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pays the unsuitable person remuneration in any form; or

 

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makes any payment to the unsuitable person by way of principal, redemption, conversion, exchange, liquidation, or similar transaction.

 

 
 

 

We are required to maintain a current stock ledger in Nevada which may be examined by the Nevada Gaming Authorities at any time. If any securities are held in trust by an agent or by a nominee, the record holder may be required to disclose the identity of the beneficial owner to the Nevada Gaming Authorities. A failure to make such disclosure may be grounds for finding the record holder unsuitable. We are also required to render maximum assistance in determining the identity of the beneficial owner.

 

We may not make a public offering of our securities without the prior approval of the Nevada Commission if the securities or the proceeds therefrom are intended to be used to construct, acquire or finance gaming facilities in Nevada, or to retire or extend obligations incurred for such purposes. Any representation to the contrary is unlawful. In November 2017, the Nevada Commission granted us three years, the maximum time permitted, in which to make public offerings of debt or equity. This three-year approval or continuous or delayed public offering approval, also known as a shelf approval, is subject to certain conditions and expires in November 2020, at which time we will seek to renew the approval. The Nevada Commission's approval may be rescinded for good cause without prior notice upon the issuance of an interlocutory stop order by the Chair of the Nevada Board.

 

Changes in control of Boyd Gaming through merger, consolidation, stock or asset acquisitions, management or consulting agreements, or any act or conduct by a person whereby he obtains control, may not occur without the prior approval of the Nevada Commission. Entities seeking to acquire control of a Registered Corporation must satisfy the Nevada Gaming Authorities in a variety of stringent standards prior to assuming control of such Registered Corporation. The Nevada Commission may also require controlling stockholders, officers, directors and other persons having a material relationship or involvement with the entity proposing to acquire control, to be investigated and licensed as part of the approval process relating to the transaction.

 

The Nevada legislature has declared that some corporate acquisitions opposed by management, repurchase of voting securities and corporate defense tactics affecting Nevada gaming licensees, and Registered Corporations that are affiliated with those licensees, may be injurious to stable and productive corporate gaming. The Nevada Commission has established a regulatory scheme to ameliorate the potentially adverse effects of these business practices upon Nevada’s gaming industry and to further Nevada’s policy to:

 

 

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assure the financial stability of corporate gaming operators and their affiliates;

 

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protect the continued integrity of corporate gaming in matters of corporate governance;

 

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preserve the beneficial aspects of conducting business in the corporate form; and

 

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promote a neutral environment for the orderly governance of corporate affairs.

 

Approvals are, in certain circumstances, required from the Nevada Commission before we can make exceptional repurchases of voting securities above the current market price thereof and before a corporate acquisition opposed by management can be consummated. As a Registered Corporation, the Nevada Act also requires prior approval of a plan of recapitalization proposed by our board of directors in response to a tender offer made directly to our stockholders for the purposes of acquiring control of us.

 

License fees and taxes, computed in various ways depending on the type of gaming or activity involved, are payable to the State of Nevada, Clark County and the City of Las Vegas. Depending upon the particular fee or tax involved, these fees and taxes are payable either monthly, quarterly or annually and are based upon:

 

 

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a percentage of the gross revenues received;

 

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the number of gaming devices operated; or

 

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the number of table games operated.

 

An excise tax is also paid by casino operations upon the amount of consideration collected in connection with admission to certain indoor or outdoor premises or areas where live entertainment is provided, subject to certain exclusions.

 

Any person who is licensed, required to be licensed, registered, required to be registered, or is under common control with such persons, which we refer to as Licensees, and who proposes to become involved in a gaming venture outside of Nevada is required to deposit with the Nevada Board, and thereafter maintain, a revolving fund in the amount of $10,000 to pay the expenses of investigation of the Nevada Board of their participation in such foreign gaming. The revolving fund is subject to increase or decrease in the discretion of the Nevada Commission. Thereafter, Licensees are required to comply with certain reporting requirements imposed by the Nevada Act. Licensees are also subject to disciplinary action by the Nevada Commission if they knowingly violate any laws of the foreign jurisdiction pertaining to the foreign gaming operation, fail to conduct the foreign gaming operation in accordance with the standards of honesty and integrity required of Nevada gaming operations, engage in activities that are harmful to the State of Nevada or its ability to collect gaming taxes and fees, or employ a person in the foreign operation who has been denied a license or finding of suitability in Nevada on the ground of personal unsuitability.

 

The sale of food or alcoholic beverages at our Nevada casinos is subject to licensing, control and regulation by the applicable local authorities. All licenses are revocable and are not transferable. The agencies involved have full power to limit, condition, suspend or revoke any such license, and any such disciplinary action could, and a revocation would, have a significant adverse effect upon the operations of the affected casino or casinos.

 

 
 

 

Illinois

 

We are subject to the jurisdiction of the Illinois gaming authorities as a result of our ownership and operation of 1) Par-A-Dice Hotel Casino in East Peoria, Illinois, and 2) the Illinois Video Gaming Terminal Operator Lattner Entertainment Group Illinois, LLC.

 

In February 1990, the State of Illinois legalized riverboat gambling. The Illinois Riverboat Gambling Act, which we refer to as the initial Illinois Act, authorizes the five-member Illinois Gaming Board, which we refer to as the Illinois Board, to issue up to ten riverboat gaming owners' licenses on navigable streams within or forming a boundary of the State of Illinois except for Lake Michigan and any waterway in Cook County, which includes Chicago. Pursuant to the initial Illinois Act, a licensed owner who holds greater than a 10% interest in one riverboat operation could hold no more than a 10% interest in any other riverboat operation. In addition, the initial Illinois Act restricted the location of certain of the ten owners' licenses. Four of the licenses were to be located on the Mississippi River, one license was to be at a location on the Illinois River south of Marshall County and one license had to be located on the Des Plaines River in Will County. The remaining licenses were not restricted as to location. Currently, ten owners' licenses are in operation, including one license in each of Alton, Aurora, Des Plaines, East Peoria, East St. Louis, Elgin, Metropolis, Rock Island and two licenses in Joliet.

 

The tenth license that was initially granted to Emerald Casino Inc. - an operator in East Dubuque which we refer to as Emerald Casino - was not renewed by the Illinois Board and was the subject of protracted litigation that concluded. Various appeals in the Illinois Appellate Court for the First and Fourth Districts followed the Illinois Board's denial of Emerald Casino's request for renewal of the tenth license on March 6, 2001 and subsequent revocation of the license in December 2005. Although the Illinois Appellate Court ultimately ordered the Illinois Board to issue Emerald Casino's license for renewal, the Illinois Appellate Court also affirmed the Illinois Board's decision to revoke that license. The Illinois Supreme Court refused Emerald Casino's request to review the latter decision, and Emerald Casino announced that it would not pursue any additional appeals in the matter. As a result, the Board authorized a bid process to issue the tenth license to a new operator. On December 6, 2007, the Illinois Department of Central Management Services issued a Request for Proposal to receive bids from investment banking firms to oversee the bid process. Credit Suisse was the successful bidder and oversaw the bid process for the tenth Illinois gaming license. Seven bids were submitted to the Illinois Board to provide gaming operations in Waukegan, Rosemont, Des Plaines, Stickney, Country Club Hills, Calumet City, and Harvey. The Illinois Board selected the Waukegan, Rosemont and Des Plaines sites as the three finalists. On December 22, 2008, the Illinois Board announced that it awarded the tenth Illinois gaming license to Midwest Gaming & Entertainment LLC, which developed and operates the Rivers Casino in Des Plaines. The Rivers Casino commenced gaming operations on June 18, 2011.

 

Furthermore, under the initial Illinois Act, no gambling could be conducted while a riverboat was docked. A gaming excursion could last no more than four hours, and a gaming excursion was deemed to have started when the first passenger boarded a riverboat. Gaming could continue during passenger boarding for a period of up to 30 minutes. Gaming was also allowed for a period of up to 30 minutes after the gangplank or its equivalent was lowered, thereby allowing passengers to exit the riverboat. During the 30-minute exit time period, new passengers were not allowed to board the riverboat. Although riverboats were mandated to cruise, there were certain exceptions. If a riverboat captain reasonably determined that either it was unsafe to transport passengers on the waterway due to inclement weather or the riverboat had been rendered temporarily inoperable by unforeseeable mechanical or structural difficulties or river icing, the riverboat could remain dockside or return to the dock. In those situations, a gaming excursion could commence or continue while the gangplank or its equivalent was raised and remained raised, in which event the riverboat was not considered docked. If a gaming excursion had to begin or continue with the gangplank or its equivalent raised, and the riverboat did not leave the dock, entry of new patrons on to the riverboat was prohibited until the completion of the excursion.

 

In June of 1999, amendments to the Illinois Act, which we refer to as the Amended Illinois Act, were passed by the legislature and signed into law by the Governor. The Amended Illinois Act redefined the conduct of gaming in the state. Pursuant to the Amended Illinois Act, riverboats can conduct gambling without cruising, and passengers can enter and leave a riverboat at any time. In addition, riverboats may now be located upon any water, other than Lake Michigan, within Illinois, and not just navigable waterways. There is no longer any prohibition of a riverboat being located in Cook County. Riverboats are now defined as self-propelled excursion boats or permanently moored barges. The Amended Illinois Act requires that only three, rather than four, owners' licenses, be located on the Mississippi River. The 10% ownership prohibition has also been removed. Therefore, subject to certain Illinois Board rules, individuals or entities could own more than one riverboat operation.

 

The Amended Illinois Act also allows for the relocation of a riverboat home dock. A licensee that was not conducting riverboat gambling on January 1, 1998, may apply to the Illinois Board for renewal and approval of relocation to a new home dock and the Illinois Board shall grant the application and approval of the new home dock upon the licensee providing to the Illinois Board authorization from the new dockside community. Any licensee that relocates in accordance with the provisions of the Amended Illinois Act must attain a level of at least 20% minority ownership of such a gaming operation.

 

 
 

 

The initial Illinois Act strictly regulates the facilities, persons, associations and practices related to gaming operations. The initial Illinois Act grants the Illinois Board specific powers and duties, and all other powers necessary and proper to fully and effectively execute the initial Illinois Act for the purpose of administering, regulating and enforcing the system of riverboat gaming. The Illinois Board has authority over every person, association, corporation, partnership and trust involved in riverboat gaming operations in the State of Illinois.

 

The initial Illinois Act requires the owner of a riverboat gaming operation to hold an owner's license issued by the Illinois Board. Gaming participants are limited to 1,200 for any owner's license. The number of gaming participants will be determined by the number of gaming positions available. Gaming positions are counted as follows:

 

 

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electronic gaming devices positions will be determined as 90% of the total number of devices available for play;

 

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craps tables will be counted as having ten gaming positions; and

 

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games utilizing live gaming devices, except for craps, will be counted as having five gaming positions.

 

Each owner's license initially runs for a period of three years. Thereafter, the license must be renewed annually. Under the Amended Illinois Act, the Board may renew an owner's license for up to four years. An owner licensee is eligible for renewal upon payment of the applicable fee and a determination by the Illinois Board that the licensee continues to meet all of the requirements of the initial Illinois Act and Illinois Board rules. The owner's license for Par-A-Dice Riverboat Casino initially expired in February 1995. Since that time the license has been renewed every four years, the maximum time permitted by the Illinois Act. An ownership interest in an owner's license may not be transferred or pledged as collateral without the prior approval of the Illinois Board.

 

Pursuant to the Amended Illinois Act, which removed the 10% ownership prohibition, the Illinois Board established certain rules to effectuate this statutory change. In deciding whether to approve direct or indirect ownership or control of an owner's license, the Illinois Board shall consider the impact of any economic concentration of the ownership or control. No direct or indirect ownership or control shall be approved which will result in undue economic concentration of the ownership of riverboat gambling operations in Illinois. Undue economic concentration means that a person or entity would have actual or potential domination of riverboat gambling in Illinois sufficient to:

 

 

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substantially impede or suppress competition among holders of owners' licenses;

 

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adversely impact the economic stability of the riverboat casino industry in Illinois; or

 

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negatively impact the purposes of the initial Illinois Act, including tourism, economic development, benefits to local communities, and State and local revenues.

 

The Illinois Board will consider the following criteria in determining whether the approval of the issuance, transfer or holding of a license will create undue economic concentration:

 

 

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the percentage share of the market presently owned or controlled by the person or entity;

 

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the estimated increase in the market share if the person or entity is approved to hold the owner's license;

 

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the relative position of other persons or entities that own or control owners' licenses in Illinois;

 

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the current and projected financial condition of the riverboat gaming industry;

 

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the current market conditions, including proximity and level of competition, consumer demand, market concentration, and any other relevant characteristics of the market;

 

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whether the license to be approved has separate organizational structures or other independent obligations;

 

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the potential impact on the projected future growth and development of the riverboat gambling industry, the local communities in which licenses are located, and the State of Illinois;

 

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the barriers to entry into the riverboat gambling industry and if the approval of the license will operate as a barrier to new companies and individuals desiring to enter the market;

 

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whether the approval of the license is likely to result in enhancing the quality and customer appeal of products and services offered by riverboat casinos in order to maintain or increase their respective market shares;

 

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whether a restriction on the approval of the additional license is necessary in order to encourage and preserve competition in casino operations; and

 

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any other relevant information.

 

The initial Illinois Act does not limit the maximum bet or per patron loss. Minimum and maximum wagers on games are set by the owner licensee. Wagering may not be conducted with money or other negotiable currency. No person under the age of 21 is permitted to wager and wagers may only be received from a person present on the riverboat. With respect to electronic gaming devices, the payout percentage may not be less than 80% nor more than 100%.

 

An admission tax is imposed on the owner of a riverboat operation. Effective July 1, 2003, additional amendments to the Amended Illinois Act were passed by the legislature and signed into law by the Governor, which we refer to as the Second Amended Illinois Act. Under the Second Amended Illinois Act, for an owner licensee that admitted 2,300,000 persons or fewer in the previous calendar year, the admission tax is $4.00 per person and for a licensee that admitted more than 2,300,000 persons in the previous calendar year, the admission tax is $5.00. Additionally, a wagering tax is imposed on the adjusted gross receipts, as defined in the initial Illinois Act, of a riverboat operation. As of July 1, 2003, pursuant to the Second Amended Illinois Act, the wagering tax was increased as follows: 15% of annual adjusted gross receipts up to and including $25 million; 27.5% of annual adjusted gross receipts in excess of $25 million but not exceeding $37.5 million; 32.5% of annual adjusted gross receipts in excess of $37.5 million but not exceeding $50 million; 37.5% of annual adjusted gross receipts in excess of $50 million but not exceeding $75 million; 45% of annual adjusted gross receipts in excess of $75 million but not exceeding $100 million; 50% of annual adjusted gross receipts in excess of $100 million but not exceeding $250 million; and 70% of annual adjusted gross receipts in excess of $250 million. The owner licensee is required, on a daily basis, to wire the wagering tax payment to the Illinois Board. The wagering tax as outlined in the Second Amended Illinois Act shall no longer be imposed beginning on the earlier of (i) July 1, 2005; (ii) the first date after the effective date of the Second Amended Illinois Act that riverboat gambling operations are conducted pursuant to the dormant tenth license or (iii) the first day that riverboat gambling operations are conducted under the authority of an owner's license that is in addition to the ten owners' licenses authorized by the Initial Act. Thereafter, the tax will roll back to the rates as outlined in the Amended Illinois Act.

 

 
 

 

Effective July 1, 2005, additional amendments to the Second Amended Act were passed by the legislature and signed into law by the Governor, which we refer to as the Third Amended Illinois Act. Under the Third Amended Act, for an owner that admitted 1,000,000 persons or fewer in calendar year 2004, the admission tax is $2.00 and for all other licensees it is $3.00 per person admitted. Additionally, the wagering tax provisions were “rolled back” to the rates as defined in the Amended Illinois Act. Thus, the effective wager tax rates are: 15% of annual adjusted gross receipts up to and including $25 million; 22.5% of annual adjusted gross receipts in excess of $25 million but not exceeding $50 million; 27.5% of annual adjusted gross receipts in excess of $50 million but not exceeding $75 million; 32.5% of annual adjusted gross receipts in excess of $75 million but not exceeding $100 million; 37.5% of annual adjusted gross receipts in excess of $100 million but not exceeding $150 million; 45% of annual adjusted gross receipts in excess of $150 million but not exceeding $200 million; and 50% of annual adjusted gross receipts in excess of $200 million, which we refer to as the Privilege Tax. In addition to payment of the above listed amounts, by June 15 of each year, each owner (other than an owner that admitted 1,000,000 or fewer persons in calendar year 2004) must pay to the Illinois Board the amount, if any, by which the base amount for the licensed owner exceeds the amount of tax paid pursuant to the Third Amended Act. The base amount for a riverboat in East Peoria is $43 million. This obligation terminates on the earliest of (i) July 1, 2007, (ii) the first day after the effective date of the Third Amended Act that riverboat gambling operations are conducted pursuant to a dormant license, (iii) the first day that riverboat gambling operations are conducted under the authority of an owner's license that is in addition to the ten owners' licenses initially authorized, or (iv) the first day that a licensee under the Illinois Horse Racing Act of 1975 conducts gaming operations with slot machines or other electronic gaming devices. The obligation to meet these base amount requirements terminated on July 1, 2007.

 

The Illinois Board has the authority to reduce the above mentioned wagering tax obligation imposed under the Third Amended Act by an amount the Board deems reasonable for acts of God, terrorism, bioterrorism or a condition beyond the control of the owner licensee. There can be no assurance that the Illinois legislature will not enact additional legislation regarding admission and wagering tax rates.

 

Effective May 26, 2006, additional amendments to the Third Amended Act were passed by the legislature and signed into law by the Governor, which we refer to as the Fourth Amended Act. Under the Fourth Amended Act, and for a period of two (2) years beginning May 26, 2006, owner licensees that operate a riverboat with adjusted gross receipts in 2004 greater than $200 million paid - in addition to the amounts referenced above - an amount equal to 3% of the adjusted gross receipts received into the Horse Racing Equity Trust Fund, which we refer to as the Surcharge. This provision affected four owner licensees, but did not apply to Par-A-Dice Hotel Casino in East Peoria, Illinois.

 

On May 30, 2006, four days after the Fourth Amended Act was signed into law, the four casinos affected by the Surcharge filed a lawsuit in the Circuit Court of the Twelfth Judicial Circuit in Will County, Illinois against the Treasurer of the State of Illinois and the Illinois Racing Board. The four-count Complaint sought a declaratory judgment that the Fourth Amended Act's Surcharge was unconstitutional and a permanent injunction against its enforcement. On March 26, 2007, the Illinois circuit court granted summary judgment in favor of the four casinos for violation of the Illinois Constitution's Uniformity Clause, but in favor of the defendants and the racetracks that later intervened on the remaining claims in the complaint. The defendants and the racetracks filed an appeal with the Illinois Supreme Court, which reversed the lower court's decision and ruled in favor of the State. The affected casinos appealed this decision to the US Supreme Court, and, on June 8, 2009, the U.S. Supreme Court denied the petition for a writ of certiorari.

 

On June 10, 2009 the same four casinos filed a motion to reopen the judgment based on new evidence in the original trial court in Illinois. The judge denied the petition to reopen the case and the casinos appealed on January 15, 2010. Following a ruling by the Illinois Appellate Court refusing to stay the distribution of the funds held in protest, the four casinos voluntarily dismissed the appeal. Additionally, a civil RICO suit was also filed in the Northern District of Illinois against former governor Rod Blagojevich et al. and John Johnston, owner of Balmoral Park Racetrack and Maywood Park Racetrack. The suit claims that the taxed casinos were the victims of the criminal conduct of the former governor and the conspiracy between the former governor and the named racetracks. On interlocutory appeal the 7th Circuit Court of Appeals found former Governor Blagojevich to be protected by the immunity granted by virtue of his position of governor and dismissed former Governor Blagojevich from the suit. On December 11, 2014, the judge entered an order consistent with the jury determination in the civil RICO proceedings awarding the plaintiff casinos a total of $82,900,000 in compensatory and punitive damages. Following the award, on December 24, 2014, Balmoral Park, Maywood Park Racetrack, and John Johnston filed for bankruptcy. The court award was subsequently reduced to $25,940,000 following the defendants’ appeal. The parties agreed to abandon further court action in this matter in connection with an agreed upon plan of liquidation approved by the bankruptcy court in June of 2016. The court appointed bankruptcy trustee continues to manage the assets of the bankrupt parties in accordance with the plan of liquidation and make distribution to the creditors as warranted. No other suit is actively pursued by the four effected casinos at this time. All other court proceedings have been concluded and ruled upon in favor of the State. Par-A-Dice Hotel and Casino is not a party to any of the foregoing lawsuits.

 

Effective December 15, 2008, the legislature passed and the Governor signed into law amendments that re-enact similar provisions of the Fourth Amended Act, which require the same casinos to pay the Surcharge until the earliest of the following occurs: (i) December 15, 2011; (ii) any organization licensee begins to operate a slot machine or video game of chance under the Illinois Horse Racing Law of 1975 or the initial Illinois Act; (iii) payments begin under subsection (c-5) of Section 13 of the initial Illinois Act or (iv) the wagering tax imposed under Section 13 of the initial Illinois Act is increased to reflect a tax rate that is at least as stringent or more stringent than the wagering tax imposed under the Second Amended Act described above. A second state court claim challenging the constitutionality of the 2008 act was dismissed with prejudice on November 19, 2009. On February 11, 2011, the Appellate Court affirmed. The new law does not apply to the Par-A-Dice Hotel and Casino.

 

Effective June 6, 2006, additional amendments to the Fourth Amended Act were passed by the legislature and signed into law by the Governor, which we refer to as the Fifth Amended Act to restate and clarify the Third Amended Act as to the amount of payments an owner licensee is required to make to the Illinois Board. The Fifth Amended Act now provides that - in addition to any amounts due pursuant to the Privilege Tax - each owner licensee (other than an owner that admitted 1,000,000 or fewer persons in calendar year 2004) must pay to the Illinois Board the amount by which its pre-determined base amount exceeds the amount of “net privilege tax” remitted. The Fifth Amended Act defines “net privilege tax” as all Privilege Taxes paid by a licensed owner to the Illinois Board, less the amount equal to 5% of the adjusted gross receipts generated by an owner licensee that is paid from the State Gaming Fund to the unit of local government designated as the home dock of the owner licensee's riverboat. As stated above, the requirement to pay the difference between pre-determined base amounts and “net privilege taxes” terminated on July 1, 2007.

 

 
 

 

In addition to owner's licenses, the Illinois Board also requires licensing for all vendors of gaming supplies and equipment and for all employees of a riverboat gaming operation. The Illinois Board is authorized to conduct investigations into the conduct of gaming and into alleged violations of the Illinois Act and the Illinois Board rules. Employees and agents of the Illinois Board have access to and may inspect any facilities relating to the riverboat gaming operation.

 

A holder of any license is subject to the imposition of fines, suspension or revocation of such license, or other action for any act or failure to act by himself or his agents or employees, that is injurious to the public health, safety, morals, good order and general welfare of the people of the State of Illinois, or that would discredit or tend to discredit the Illinois gaming industry or the State of Illinois. Any riverboat operations not conducted in compliance with the initial Illinois Act may constitute an illegal gaming place and consequently may be subject to criminal penalties, which penalties include possible seizure, confiscation and destruction of illegal gaming devices and seizure and sale of riverboats and dock facilities to pay any unsatisfied judgment that may be recovered and any unsatisfied fine that may be levied. The initial Illinois Act also provides for civil penalties, equal to the amount of gross receipts derived from wagering on the gaming, whether unauthorized or authorized, conducted on the day of any violation. The Illinois Board may revoke or suspend licenses, as the Illinois Board may see fit and in compliance with applicable laws of the State of Illinois regarding administrative procedures and may suspend an owner's license, without notice or hearing, upon a determination that the safety or health of patrons or employees is jeopardized by continuing a riverboat's operation. The suspension may remain in effect until the Illinois Board determines that the cause for suspension has been abated and it may revoke the owner's license upon a determination that the owner has not made satisfactory progress toward abating the hazard.

 

If the Illinois Board has suspended, revoked or refused to renew the license of an owner or if a riverboat gambling operation is closing and the owner is voluntarily surrendering its owner's license, the Illinois Board may petition the local circuit court, which we refer to as the Court, in which the riverboat is situated for appointment of a receiver. The court will have sole jurisdiction over any and all issues pertaining to the appointment of a receiver. The Illinois Board will specify the specific powers, duties and limitations for the receiver, including but not limited to the authority to:

 

 

•

hire, fire, promote and discipline personnel and retain outside employees or consultants;

 

•

take possession of any and all property, including but not limited to its books, records, and papers;

 

•

preserve or dispose of any and all property;

 

•

continue and direct the gaming operations under the monitoring of the Illinois Board;

 

•

discontinue and dissolve the gaming operation;

 

•

enter into and cancel contracts;

 

•

borrow money and pledge, mortgage or otherwise encumber the property;

 

•

pay all secured and unsecured obligations;

 

•

institute or defend actions by or on behalf of the holder of an owner's license; and

 

•

distribute earnings derived from gaming operations in the same manner as admission and wagering taxes are distributed under Sections 12 and 13 of the initial Illinois Act.

 

The Illinois Board will submit at least three nominees to the Court. The nominees may be individuals or entities selected from an Illinois Board approved list of pre-qualified receivers who meet the same criteria for a finding of preliminary suitability for licensure under Sections 3000.230(c)(2)(B) and (C) of the rules promulgated by the Illinois Board. In the event that the Illinois Board seeks the appointment of a receiver on an emergency basis, the Illinois Board will submit at least two nominees selected from the Illinois Board approved list of pre-qualified receivers to the Court and will issue a Temporary Operating Permit to the receiver appointed by the Court. A receiver, upon appointment by the court, will before assuming his or her duties, execute and post the same bond as an owner licensee pursuant to Section 10 of the initial Illinois Act.

 

The receiver will function as an independent contractor, subject to the direction of the Court; however, the receiver will also provide to the Illinois Board regular reports and provide any information deemed necessary for the Illinois Board to ascertain the receiver's compliance with all applicable rules and laws. From time to time, the Illinois Board may, at its sole discretion, report to the Court on the receiver's level of compliance and any other information deemed appropriate for disclosure to the Court. The term and compensation of the receiver shall be set by the Court. The receiver will provide to the Court and the Illinois Board at least 30 days written notice of any intent to withdraw from the appointment or to seek modification of the appointment. Except as otherwise provided by action to the Illinois Board, the gaming operation will be deemed a licensed operation subject to all rules of the Illinois Board during the tenure of any receivership.

 

 
 

 

The Illinois Board requires that a “Key Person” of an owner licensee submit a Personal Disclosure or Business Entity Form and be investigated and approved by the Illinois Board. The Illinois Board shall certify for each applicant for or holder of an owner's license each position, individual or Business Entity that is to be approved by the Illinois Board and maintain suitability as a Key Person. With respect to an applicant for or the holder of an owner's license, Key Person shall include:

 

 

•

any Business Entity and any individual with an ownership interest or voting rights of more than 5% in the licensee or applicant, and the trustee of any trust holding such ownership interest or voting rights;

 

•

the directors of the licensee or applicant and its chief executive officer, president and chief operating officer, or their functional equivalents; and

 

•

all other individuals or Business Entities that, upon review of the applicant's or licensee's Table of Organization, Ownership and Control (as discussed below), the Illinois Board determines hold a position or a level of ownership, control or influence that is material to the regulatory concerns and obligations of the Illinois Board for the specified licensee or applicant.

 

In order to assist the Illinois Board in its determination of Key Persons, applicants for or holders of an owner's license shall provide to the Illinois Board a Table of Organization, Ownership and Control, which we refer to as the Table. The Table will identify in sufficient detail the hierarchy of individuals and Business Entities that, through direct or indirect means, manage, own or control the interest and assets of the applicant or license holder. If a Business Entity identified in the Table is a publicly-traded company, the following information must be provided in the Table:

 

 

•

the name and percentage of ownership interest of each individual or Business Entity with ownership of more than 5% of the voting shares of the entity, to the extent such information is known or contained in Schedules 13D or 13G filed with the Securities and Exchange Commission;

 

•

to the extent known, the names and percentage of interest of ownership of persons who are relatives of one another and who together (as individuals or through trusts) exercise control over or own more than 10% of the voting shares of the entity; and

 

•

any trust holding more than 5% of the ownership or voting interest in the entity, to the extent such information is known or contained in Schedules 13D or 13G filed with the Securities and Exchange Commission. The Table may be disclosed under the Freedom of Information Act.

 

Each owner licensee must provide a means for the economic disassociation of a Key Person in the event such economic disassociation is required by an order of the Illinois Board. Based upon findings from an investigation into the character, reputation, experience, associations, business probity and financial integrity of a Key Person, the Illinois Board may enter an order upon the licensee or require the economic disassociation of such Key Person.

 

Furthermore, each applicant or owner licensee must disclose the identity of every person, association, trust or corporation having a greater than 1% direct or indirect pecuniary interest in an owner licensee or in the riverboat gaming operation with respect to which the license is sought. The Illinois Board may also require an applicant or owner licensee to disclose any other principal or investor and require the investigation and approval of such individuals.

 

The Illinois Board (unless the investor qualifies as an Institutional Investor) requires a Personal Disclosure Form from any person or entity who or which, individually or in association with others, acquires directly or indirectly, beneficial ownership of more than 5% of any class of voting securities or non-voting securities convertible into voting securities of a publicly-traded corporation which holds an ownership interest in the holder of an owner's license. If the Illinois Board denies an application for such a transfer and if no hearing is requested, the applicant for the transfer of ownership interest must promptly divest those shares in the publicly-traded parent corporation. The holder of an owner's license would not be able to distribute profits to a publicly-traded parent corporation until such shares have been divested. If a hearing is requested, the shares need not be divested and profits may be distributed to a publicly-held parent corporation pending the issuance of a final order from the Illinois Board.

 

An Institutional Investor that, individually or jointly with others, cumulatively acquires, directly or indirectly, 5% or more of any class of voting securities of a publicly-traded licensee or a licensee's publicly-traded parent corporation shall, within no less than ten days after acquiring such securities, notify the administrator of the Illinois Board, who we refer to as the Administrator, of such ownership and shall provide any additional information as may be required. If an Institutional Investor (as specified above) acquires 10% or more of any class of voting securities of a publicly-traded licensee or a licensee's publicly-traded parent corporation, then it shall file an Institutional Investor Disclosure Form within 45 days after acquiring such level of ownership interest. The owner licensee shall notify the Administrator as soon as possible after it becomes aware that it or its parent is involved in an ownership acquisition by an Institutional Investor. The Institutional Investor also has an obligation to notify the Administrator of its ownership interest.

 

 
 

 

In addition to Institutional Investor Disclosure Forms, certain other forms may be required to be submitted to the Illinois Board. An owner licensee must submit a Marketing Agent Form to the Illinois Board for each Marketing Agent with whom it intends to do business. A Marketing Agent is a person or entity, other than a junketeer or an employee of a riverboat gaming operation, who is compensated by the riverboat gaming operation in excess of $100 per patron per trip for identifying and recruiting patrons. Key Persons of owner licensees must submit Trust Identification Forms for trusts, excluding land trusts, for which they are a grantor, trustee or beneficiary each time such a trust relationship is established, amended or terminated.

 

Applicants for and holders of an owner's license are required to obtain formal approval from the Illinois Board for changes in the following areas:

 

 

•

Key Persons;

 

•

type of entity;

 

•

equity and debt capitalization of the entity;

 

•

investors or debt holders;

 

•

source of funds;

 

•

applicant's economic development plan;

 

•

riverboat capacity or significant design change;

 

•

gaming positions;

 

•

anticipated economic impact; or

 

•

agreements, oral or written, relating to the acquisition or disposition of property (real or personal) of a value greater than $1 million.

 

A holder of an owner's license is allowed to make distributions to its stockholders only to the extent that such distribution would not impair the financial viability of the gaming operation. Factors to be considered by the licensee include, but are not limited to, the following:

 

 

•

cash flow, casino cash and working capital requirements;

 

•

debt service requirements, obligations and covenants associated with financial instruments;

 

•

requirements for repairs and maintenance and capital improvements;

 

•

employment or economic development requirements of the Amended Illinois Act; and

 

•

a licensee's financial projections.

 

The Illinois Board may waive any licensing requirement or procedure provided by rule if it determines that such waiver is in the best interests of the public and the gaming industry. Also, the Illinois Board may, from time to time, amend or change its rules. In general, uncertainty exists regarding the Illinois gaming regulatory environment due to limited experience in interpreting the Illinois Act.

 

Additionally, on July 13, 2009, Governor Pat Quinn signed the Video Gaming Act (230 ILCS 40/ Art 5) making video gaming terminals legal in Illinois. The Act allows for video gaming terminals to be placed in certain liquor establishments, truck stops and fraternal/ veterans clubs throughout the state. Under the Video Gaming Act, municipalities are authorized to pass an ordinance prohibiting video gaming within the corporate limits of the municipality and county boards may pass ordinances prohibiting video gaming within the unincorporated areas of the county. On January 26, 2011, the Illinois Court of Appeals found the Video Gaming Act to be unconstitutional due to a violation of the single subject rule. The State appealed the decision to the Illinois Supreme Court on February 1, 2011. The State also filed motions, which were approved by the Illinois Supreme Court, permitting the Illinois Board to continue its review of applications filed pursuant to the Video Gaming Act. On July 11, 2011 the Illinois Supreme Court overturned the ruling of the Illinois Court of Appeals, holding that the Video Gaming Act and associated legislation did not violate the single subject rule and was otherwise constitutional. Video gaming terminals may not be placed within 1,000 feet of the home dock of a riverboat licensed under the Riverboat Gambling Act. Through December, 2019, there were approximately 34,076video gaming terminals in Illinois. On June 1, 2018, Boyd Gaming acquired Lattner Entertainment Group Illinois, LLC, a video gaming terminal operator licensed pursuant to the Video Gaming Act.

 

From time to time, various proposals have been introduced in the Illinois legislature that, if enacted, would affect the taxation, regulation, operation or other aspects of the gaming industry or Boyd Gaming. Some of this legislation, if enacted, could adversely affect the gaming industry or Boyd Gaming, and no assurances can be given as to whether such legislation or similar legislation will be enacted.

 

A potential piece of legislation that may have affected the gaming industry in Illinois is House Bill 4194, which we refer to as Bill 4194 that was introduced to the Illinois General Assembly on December 11, 2007. Bill 4194 was an attempt to expand gaming in Illinois by introducing one additional riverboat license, a land-based casino located in Chicago, Illinois, the ability of existing and new casinos to purchase additional gaming positions, and the ability of Illinois horse race tracks to operate slot machines and video poker upon the payment of a per-position fee. Bill 4194 also called for the formation of a new Gaming Board appointed by the Governor and a new Gaming Enforcement Division to monitor gaming operations, conduct background checks, conduct investigations and investigate violations of the Illinois Gaming Act. Although Bill 4194 was not enacted, bills providing for a gaming expansion bill have been introduced in 2010. HB0091, which we refer to as Bill 0091, was filed on January 27, 2010 and would add four additional owners' licenses, including one in Chicago. It would also allow for owners’ licensees to competitively bid for unused gaming positions and would authorize slot machines at horse racetracks. Bill 0091was not enacted. HB5110, which we refer to as Bill 5110, was filed on January 29, 2010 and provides for the issuance of a license to operate a riverboat in Danville, Illinois. HB4885, which we refer to as Bill 4885, provides for the issuance of a license to operate a riverboat in a municipality with a population of less than 50,000 and which is more than 50 miles from a licensed riverboat. Bill 5110 and Bill 4885 were pending in the House Rules Committee, but the legislative session ended before the Bills could be put to a vote resulting in their expiration. SB3371, which we refer to as Bill 3371, would have also authorized slot machine gambling at horse racetracks, but the legislative session ended causing Bill 3371 to expire.

 

 
 

 

Continuing efforts to revise the manner in which the Illinois Board is appointed and operates would affect the gaming industry. SB3384, which we refer to as Bill 3384, was introduced on February 10, 2010. Bill 3384 would end the term of the current members of the Illinois Board and require the Governor to replace them with persons nominated by a specified Nominating Panel. Bill 3384 would prohibit the Illinois Board from taking action with regard to a license until the new members are appointed. Bill 3384 would also require Illinois Board approval for contracts entered into by an owner's licensee in an aggregate amount of $10,000 or more or for a term exceeding 365 days. The legislative session ended while Bill 3384 was pending in the Senate Assignments Committee resulting in its expiration.

 

Another potential piece of legislation that, if passed, will directly affect the gaming industry is Illinois House Bill 0261, which we refer to as Bill 0261 that was introduced to the Illinois General Assembly on January 23, 2009. Bill 0261 would remove the provisions setting the admission tax rate at $3 per person admitted into a casino for licensees that have been conducting gambling operations since 2004. It would also provide that if a licensed owner of a riverboat in operation on January 1, 2009 has capital projects of at least $45,000,000 that are approved by the Illinois Gaming Board after January 1, 2006 or for which at least $45,000,000 in capital expenditures have been made after January 1, 2006, then no admissions tax will be imposed on admissions to that riverboat; however, if a riverboat does not have admissions tax imposed on it, an additional privilege tax of 1% of adjusted gross receipts will be imposed on that riverboat. On May 26, 2009, the Illinois House voted against concurring with Senate amendments to this bill, which included the provisions described above. This matter was returned to the Senate Assignments Committee on August 15, 2009, but the Bill expired when the legislative session ended.

 

Similar bills have recently been filed in the Illinois General Assembly. HB5962, which we refer to as Bill 5962, and SB3574, which we refer to as Bill 3574, also eliminate the admissions tax for certain riverboats. Those that qualify must have been in operation on January 1, 2009, have had capital projects of at least $45,000,000 approved by the Illinois Board in calendar years 2006 through 2009 and at least $45,000,000 in expenditures in calendar years 2006 through 2009. Bill 5962 and Bill 3574 also impose the additional 1% privilege tax. SB3542, which we refer to as Bill 3542, has similar provisions which apply to riverboats with capital projects of at least $75,000,000 approved by the Illinois Board in calendar years 2006 through 2009. All three bills were introduced on February 10, 2010. Bill 5962 was pending in the House Rules Committee, when the legislative session ended resulting in its expiration. The Senate voted against Bill 3574 on March 10, 2010, and Bill 3542 also expired when the legislative session ended.

 

Additionally, Illinois Senate Bill 1654 , which we refer to as Bill 1654, which was introduced to the Illinois General Assembly on February 19, 2009, would permit the State to enter into a management agreement with a third party to manage or operate the Illinois Lottery. If passed, it would also permit individuals to purchase Illinois lottery tickets on-line. On August 15, 2009, Bill 1654 was referred to the Senate Assignments Committee. However, on July 13, 2009, the Governor approved Public Acts 96-034 and 96-037, which we refer to as Acts 96-034 and 96-037, which permit the State's entry into a management agreement with a private party to manage the Illinois Lottery. Acts 96-034 and 96-037 also authorize the Illinois Lottery to conduct a pilot program to permit the purchase of Illinois lottery tickets on-line. Both Acts condition online sales upon the issuance of a U.S. Department of Justice memorandum stating that online sales are permitted under the U.S. Unlawful Internet Gambling Enforcement Act of 2006. On October 16, 2008, the Department of Justice issued its opinion and concluded, in part, that it would be permissible under the federal lottery statute exemption for a State to contract with private firms to provide goods and services necessary to enable the State to conduct its lottery. On September 15, 2010, Illinois selected Northstar Lottery Group to be the private manager of the Illinois Lottery; however, on January 26, 2011, in the same ruling that found the Video Gaming Act to be unconstitutional, the Illinois Court of Appeals found the Acts 96-034 and 96-037 to be unconstitutional due to a violation of the single subject rule. The State appealed the decision to the Illinois Supreme Court on February 1, 2011. On July 11, 2011 the Illinois Supreme Court overturned the ruling of the Illinois Court of Appeals, holding that Acts 96-034, 96-037 and associated legislation did not violate the single subject rule and were otherwise constitutional. On December 9, 2014, the Illinois Lottery and Northstar Lottery entered into a termination agreement, which was subsequently disapproved by the Illinois Attorney General on January 23, 2015. A subsequent termination agreement was entered into on September 18, 2015. On July 1, 2018, Camelot Group, a UK based lottery operator, replaced Northstar Lottery as the private operator of the Illinois Lottery. It remains unclear what effect, if any, the change to the private manager of the lottery will have on the Illinois gaming industry.

 

Additionally, on May 31, 2011 after passage in the Illinois Senate, the Illinois House of Representatives approved Illinois Senate Bill 744, which we refer to as Bill 744, which expands gambling in Illinois. After passage, Senate President John Cullerton placed a motion to reconsider on Bill 744, preventing Bill 744 from being sent to Governor Quinn. Bill 744 permits five new land based casinos, including one located in and owned by the City of Chicago and one each in Danville, Rockford, Park City, and a to-be-determined location in the south suburbs of Chicago. Illinois will also see increased gaming positions for existing operators, an option for those same operators to convert existing riverboats to land-based casinos, a mechanism for the issuance of a provisional license of Video Gaming Terminal site locations, and slot machines at the Chicago airports and Illinois horse racing tracks. In addition, the Bill offers tax incentives to build land-based casinos and offers a dollar-for-dollar tax credit of up to $2,000,000 for renovations at existing casinos. With Illinois Board and municipality approval, the Par-A-Dice Casino would be permitted to relocate to a location that is no more than 10 miles away from its current location and is either in the same municipality or another municipality that borders on the Illinois River.

 

Bill 744 authorizes the City of Chicago to offer 4,000 gaming positions to be distributed among the City casino and the airport locations. All other casinos in the State (including existing riverboats) will be allowed to purchase up to 1,600 positions (up from 1,200) until January 1, 2013, and 2,000 positions thereafter. If some casinos do not purchase all of their available positions, those additional positions may be available to casinos that do purchase all their positions. Existing casinos may purchase positions for $12,500 a piece. Racetracks can operate up to 1,200 gaming positions in Cook County, and 900 gaming positions in any other county. Additional positions may be available for Racetrack licensees who purchase all their positions if any positions are left open by other licensees in the State. A $3 per person tax will be imposed for admission to electronic gaming facilities, payable by the electronic gaming licensee.

 

 
 

 

Bill 744 also amends existing tax rates as follows: Changes will be made to the privilege tax rates for all businesses conducting riverboat gambling or electronic gaming operations beginning January 1, 2012. Tax rates are based on adjusted gross receipts, or “AGR”:

 

Table Games -- January 1, 2012 - June 30, 2013

Table Games -- Beginning July 1, 2013

AGR

Privilege Tax Rate

AGR

Privilege Tax Rate

0 to $25M

12.0%

0 to $25M

10.0%

$25M to $50M

19.5%

$25M to $50M

17.5%

$50M to $70M

24.5%

$50M to $70M

22.5%

$70M and up

16.0%

$70M and up

16.0%

 

 

 

 

All Other Games -- January 1, 2012 - June 30, 2013

All Other Games -- Beginning July 1, 2013

AGR

Privilege Tax Rate

AGR

Privilege Tax Rate

0 to $25M

12.0%

0 to $25M

10.0%

$25M to $50M

19.5%

$25M to $50M

17.5%

$50M to $75M

24.5%

$50M to $75M

22.5%

$75M to $100M

29.5%

$75M to $100M

27.5%

$100M to $150M

34.5%

$100M to $150M

32.5%

$150M to $200M

39.0%

$150M to $200M

35.0%

$200M and up

44.0%

$200M and up

40.0%

 

 

 

Privilege taxes for land-based casino gambling will differ from riverboat and electronic gaming facilities.

 

Table Games -- January 1, 2012 - June 30, 2013

Table Games -- Beginning July 1, 2013

AGR

Privilege Tax Rate

AGR

Privilege Tax Rate

0 to $50M

12.0%

0 to $50M

10.0%

$50M to $100M

19.5%

$50M to $100M

17.5%

$100M to $140M

24.5%

$100M to $140M

22.5%

$140M and up

16.0%

$140M and up

16.0%

 

 

 

 

All Other Games -- January 1, 2012 - June 30, 2013

All Other Games -- Beginning July 1, 2013

AGR

Privilege Tax Rate

AGR

Privilege Tax Rate

0 to $50M

12.0%

0 to $50M

10.0%

$50M to $100M

19.5%

$50M to $100M

17.5%

$100M to $150M

24.5%

$100M to $150M

22.5%

$150M to $200M

29.5%

$150M to $200M

27.5%

$200M to $300M

34.5%

$200M to $300M

32.5%

$300M to $400M

39.0%

$300M to $400M

35.0%

$400M and up

44.0%

$400M and up

40.0%

 

Bill 744 also grants the Illinois Board oversight and enforcement responsibility for all riverboat and casino gambling, as well as electronic gaming in the State of Illinois. The Board's five members will include someone with experience as a senior officer at a company and have no more than three members from the same political party. Bill 744 requires that all internal controls submitted by licensees must be approved or denied by the IGB within 60 days of receipt. If the Illinois Board takes no action the internal control is deemed approved.

 

Bill 744 was held by the Senate President's motion and later released to Governor Quinn, who later vetoed Bill 744. As Governor Quinn vetoed Bill 744 following the final adjournment of the 97th General Assembly, the veto could not be overridden by the legislature. Bill 744 expired with the adjournment of the legislative session.

 

 
 

 

On May 31, 2012, following passage by the Illinois House of Representatives, the Illinois Senate passed Senate Bill 1849, which we refer to as Bill 1849, which expands gambling in Illinois. Bill 1849 permits five new casinos, including one located in and owned by the City of Chicago and one each in Rockford, Danville, Park City, and a to-be-determined location in the south suburbs of Chicago. Bill 1894 also permits increasing gaming positions for existing operators, an option for operators to convert riverboats to land-based casinos, and slot machines at Illinois horse racing tracks. In addition, the bill offers a tax credit of $2,000,000 for capital improvements at existing casinos. With Illinois Board and municipality approval, the Par-A-Dice Casino would be permitted to relocate to a location that is no more than 10 miles away from its original location, in a municipality that (1) borders on the Illinois River or is within 5 miles of the city limits of a municipality that borders on the Illinois River and (2) on January 1, 2010 had a riverboat conducting riverboat gambling operations.

 

Bill 1849 authorizes the City of Chicago to offer 4,000 gaming positions. All other casinos in the State (including existing riverboats) will be allowed to purchase up to 1,600 positions for 90 days following the effective date of Bill 1849, at a price of $12,500 per position outside of Cook County and $25,000 per position in Cook County. If some casinos do not purchase all of their available positions, those additional positions will be reserved by the Illinois Board. Thereafter, the Board will publish the number of gaming positions reserved by each owner’s licensee, will accept requests for additional gaming positions from any owners’ licensee which initially reserved 1,600 positions, and will allocate the unreserved gaming positions in a manner to maximize revenue to the State. Illinois racetracks within Cook County may purchase up to 1,200 gaming positions. Illinois racetracks outside of Cook County that conducted racing in 2010 may purchase up to 900 gaming positions. Illinois racetracks outside of Cook County that did not conduct racing in 2010 may purchase up to 350 positions.

 

Bill 1849 also amends existing tax rates as follows: Changes will be made to the privilege tax rates for businesses conducting riverboat gambling operations or electronic gambling operations beginning on the date when at least 500 additional gaming positions authorized by Bill 1849 are active. Tax rates are based on adjusted gross receipts, or “AGR”:

 

Non-Table Games

Table Games

AGR

Privilege Tax Rate

AGR

Privilege Tax Rate

0 to $25M

10%

0 to $25M

10%

$25M to $50M

17.5%

$25M to $50M

17.5%

$50M to $75M

22.5%

$50M to $70M

22.5%

$75M to $100M

27.5%

$70M and up

16%

$100M to $150M

32.5%

 

 

$150M to $200M

35%

 

 

$200M to $300M

40%

 

 

$300M to $350M

30%

 

 

$350M and up

20%

 

 

 

 

 

Beginning on January 1, 2012, the calculation of AGR will not include non-cashable vouchers, coupons, and electronic gaming promotions redeemed by wagerers up to 30% of AGR.

 

Bill 1849 was transmitted to the Governor on June 29, 2012. The Governor vetoed Bill 1849 on August 28, 2012. The General Assembly did not override the veto prior to the constitutional deadline of November 29, 2012.

 

On February 15, 2013, Senate Bill 1739 was introduced, and two amendments were filed on March 6, 2013 and March 7, 2013, which we refer to collectively as Bill 1739. Bill 1739 expands gambling in Illinois. Bill 1739 permits five new casinos, one each in Danville, Rockford, a Lake County location, a location in the south suburbs of Chicago, and one located in and owned by the City of Chicago (which may place slot machines at Chicago’s two airports). The bill also permits slot machines at Illinois horseracing tracks. The facility within the City of Chicago may offer 4,000 gaming positions, including positions at the Chicago airports. All other casino facilities may have 1,200 positions. Illinois racetracks located in Cook County may offer 1,200 positions. Illinois racetracks outside of Cook County that conducted live racing in 2010 may offer 900 positions. Illinois racetracks outside of Cook County that did not conduct live racing in 2010 may offer 350 positions, which increases to 900 positions in the year following the year in which it conducts 96 live races. Positions in Cook County may be purchased for $30,000 per position. Positions outside of Cook County may be purchased for $17,500.

 

 
 

 

In addition, Bill 1739 permits owners’ licensees to conduct land-based gaming with Illinois Board approval. The bill also offers a tax incentive of up to a $2,000,000 dollar-for-dollar credit for any renovation or construction costs. With Illinois Board approval, the Par-A-Dice casino would be permitted to relocate to a new location that is no more than 10 miles away from its original location, in a municipality that (1) borders on the Illinois River or is within 5 miles of the city limits of a municipality that borders on the Illinois River and (2) on January 1, 2010 had a riverboat conducting gambling operations.

 

Bill 1739 amends existing tax rates as follows: an admissions tax of $3 per person will be imposed on admissions to electronic gaming facilities at Illinois racetracks. Privilege taxes imposed on AGR will be amended beginning in the year following the year that the facility within the City of Chicago begins gaming operations, but not before July 1, 2015 as follows:

 

Non-Table Games

Table Games

AGR

Privilege Tax Rate

AGR

Privilege Tax Rate

0 to $25M

10%

0 to $25M

10%

$25M to $50M

17.5%

$25M to $50M

17.5%

$50M to $75M

22.5%

$50M to $70M

22.5%

$75M to $100M

27.5%

$70M and up

16%

$100M to $150M

32.5%

 

 

$150M to $200M

35%

 

 

$200M to $300M

40%

 

 

$300M to $350M

30%

 

 

$350M to $800M

20%

 

 

$800M and up

50%

 

 

 

 

 

Beginning on January 1, 2014, the calculation of AGR will not include the dollar amount of non-cashable vouchers, coupons, and electronic promotions redeemed by wagerers up to 30% of AGR.

 

Bill 1739 also establishes the Division of Internet Gambling within the Department of Lottery for the purpose of administrating, regulating and enforcing a system of internet gambling in the state. Internet gaming licenses will be available to: (i) entities that hold owners’ licenses for wagering at Illinois riverboats and casinos, (ii) entities that hold electronic gaming licenses for wagering at Illinois racetracks, and (iii) entities that hold Advance Deposit Wagering licenses. An Internet gaming licensee will be assessed a licensed fee of $20,000,000, to be used to offset initial taxes. Taxes are imposed at a rate of 20% of non-fee-based game gross gaming revenue (“GGR”) and 15% of all fee-based game GGR following an initial 5-year license term, where taxes will be imposed at a rate of 10% of non-fee-based game GGR up to $200,000,000 and 7.5% of fee-based game GGR up to $200,000,000.

 

Bill 1739 terminates the terms of all members of the Illinois Board on the effective date of the bill. The Governor will nominate five new Illinois Board members, subject to confirmation of the Illinois Senate, who meet the following criteria: (i) one member who has at least 10 years of law enforcement experience, (ii) one member who is a certified public accountant, (iii) one member who has 5 years experience as a principal, senior officer, or director of a business, and (iv) one member who is licensed to practice law in Illinois. No more than 3 members of the Illinois Board may be from the same political party.

 

Finally, Bill 1739 would provide for the following items. It would prohibit gaming industry interests from making certain political contributions. It would require licensees to establish and maintain diversity programs. It would require all gaming operations that begin following January 1, 2013 or relocate following the effective date of Bill 1739 to consist of buildings certified as meeting the U.S. Green Building Council’s Leadership in Energy and Environmental Design standards. It would require licensees to include in public disclosures the name and addresses of all stockholders and directors (if the entity is a corporation), the names and addresses of all members (if the entity is a limited liability company), the names of addresses of all partners (if the entity is a partnership), and the names of all beneficiaries (if the entity is a trust). And it requires the Illinois Board to approve or deny internal controls within 60 days of submission or provide licensees assistance with remedying deficiencies in internal controls. There were no additional amendments filed on Bill 1739 after March 7, 2013, and Bill 1793 expired when the legislative session ended.

 

In 2015, a number of bills amending the Illinois Act were introduced in the Illinois General Assembly. Illinois Senate Bill 2139 amends the Illinois Act to provide an owners licensee that conducted gambling operations prior to January 1, 2015 a dollar-for-dollar credit against the taxes imposed by the Illinois Act for any money paid to a local government or charitable organization. Illinois Senate Bill 2139 remains in the Senate Assignments committee. Two bills, Illinois House Bill 3170 and Illinois House Bill 3607, amend the Illinois Act to permit land-based gaming operations. Both bills remain in the House Rules Committee. Two other bills, Illinois House Bill 2939 and Illinois House Bill 3564, would expand gambling in Illinois by providing for additional land-based or riverboat casinos, including within the City of Chicago. Both of these bills are presently in the House Rules Committee. These bills did not pass prior to the adjournment of the General Assembly and expired when the legislative session ended.

 

 
 

 

On January 11, 2017, the 100th session of the General Assembly convened. State Senator Terry Link introduced Illinois Senate Bill 7, which we will refer to as Bill 7, which would expand gaming in Illinois. Bill 7 would authorize the operation of additional riverboat casinos in the City of Chicago, Danville, one of three municipalities in Lake County, Rockford, one of six townships in Cook County, and in unincorporated Williamson County. The facility in the City of Chicago is authorized for 4,000 gaming positions; the other facilities, with the exception of the one in Williamson County, are authorized for 1,600 positions. The facility in unincorporated Williamson County is authorized for 1,200 positions.

 

Bill 7 also allows the Illinois Board to award one electronic gaming license to each operator of an Illinois racetrack. Upon payment of certain fees, a racetrack in Cook County that conducted racing in 2016 may receive up to 1,200 positions. A racetrack outside of Cook County that conducted racing in 2016 may receive up to 900 positions. A racetrack outside of Cook County that did not conduct live racing in 2010 may receive up to 350 positions which shall increase to 900 positions in the calendar year following the year in which in conducts 96 live races. An admissions tax of $3 will be imposed on admissions to electronic gaming facilities at Illinois racetracks in addition to a tax on AGR.

 

Beginning in the fiscal year following the opening of a casino facility in Chicago, the privilege tax imposed on AGR in riverboats will be amended as follows:

 

Non-Table Games

Table Games

AGR

Privilege Tax Rate

AGR

Privilege Tax Rate

0 to $25M

10%

0 to $25M

10%

$25M to $50M

17.5%

$25M to $50M

17.5%

$50M to $75M

22.5%

$50M to $70M

22.5%

$75M to $100M

27.5%

$70M and up

16%

$100M to $150M

32.5%

 

 

$150M to $200M

35%

 

 

$200M to $300M

40%

 

 

$300M to $350M

30%

 

 

$350M to $800M

20%

 

 

$800M and up

50%

 

 

 

 

 

Beginning on January 1, 2018, the calculation of AGR will not include non-cashable vouchers, coupons, and electronic promotions redeemed by wagerers up to 30% of AGR.

 

Bill 7 also makes various other changes related to the regulation and taxation of gaming in Illinois. For instance, with approval of the Board, a riverboat in Tazewell County may relocate to a new location that is no more than 10 miles away from its original location, in a municipality that borders on the Illinois River or is within 5 miles of the city limits of a municipality that borders on the Illinois River. The bill also offers a dollar-for-dollar tax credit of up to $2,000,000 for renovations or construction costs at riverboats in operation prior to January 1, 2011. Ultimately, Bill 7 did not pass prior to the adjournment of the General Assembly and expired when the legislation session ended.

 

The 2018 General Assembly session began on January 30, 2018. Five gaming related bills have been filed thus far. Senate Bill 2325 would authorize a new casino in Williamson County. Senate Bill 2326 would require the Illinois Gaming Board to establish a policy to prevent underage gambling and alcohol consumption at video gaming locations. Senate Bill 2327 would require the Illinois Gaming Board to server written notice upon video gaming locations of any violations of the Video Gaming Act or the Illinois Gaming Board rules within fifteen (15) days of violation. Finally, Senate Bill 2478 the Sports Betting Consumer Protection Act would authorize a State agency or entity charged by law with enforcing the Act, unless prohibited under federal law and as otherwise provided by State law, to adopt rules which prohibit or authorize sports betting. A companion bill has been filed in the house. None of the bills were voted out of committee.

 

On August 22, 2018, the Illinois House convened a joint hearing of the House Executive Gaming Subcommittee and the House Revenue Sales and Other Taxes Subcommittee to consider House Amendment #3 to Senate Bill 7. House Amendment #3 would establish 6 new Riverboat licenses, allow for relocation of the Par-A-Dice riverboat, bifurcate tax rates for table games and slots, allow full gaming at racetracks, allow establishments with Video Gaming Terminals to add a sixth Video Gaming Terminal, and raise tax rates for the terminals. On October 17, 2018, a subsequent hearing was held to discuss sports wagering, fantasy sports, and internet gaming. None of the bills discussed at the hearings in August or October passed either house prior to the end of the 2018 legislative session. On January 14, 2019, Governor Pritzker was sworn into office. On February 20, 2019, the Governor made his first budget address where he encouraged the legislature to take up regulated sports wagering initiatives immediately. The Governor asked for Illinois to become the first state in the Midwest to move on this initiative, promising that the State can realize more than $200 million from sports betting fees and taxes in FY 2020. The 2019 legislature has yet to take action consistent with the Governor’s February 20, 2019 address. Other legislative measures that may impact Boyd Gaming could be offered prior to the adjournment of the General Assembly.

 

 
 

 

On June 28, 2019, Governor Pritzker signed into law Senate Bill 0690. The bill permits sports wagering, including online/mobile, a Chicago casino, five additional casinos, slots and table games at racetracks, possible slots at the Chicago airports, an additional video gaming terminal at each establishment and in some instances five additional video gaming terminals, and the opportunity for existing casinos to move to land-based operations or purchase additional gaming positions. Along with the expansion, significant taxes and licensing fees are levied.

 

With the appropriate master sports wagering license, the 3 existing horse tracks, the 10 existing casinos, up to three OTBs per track, and up to seven sports facilities (requires 17,000-plus seating capacity) or its designee within five blocks of the sports facility, can offer onsite sports wagering. Each of those groups (tracks, casinos, and sports facilities) may offer online or mobile wagering if the offering is under its brand or owned by the casino or track operator. Initially, online and mobile wagering is permissible but will require in-person registration/account establishment until such time as an online sports wagering operator is licensed (maximum of three) pursuant to a competitive bid process, which cannot result in a license until 630 days after the passage of the Act. The Act also establishes a lottery pilot program, which permits sports lottery terminals to be placed at 2,500 lottery retail locations in each of the first 2 years (5,000 total) following the effective date of the Act. The lottery pilot program can only offer parley wagers and sunsets on Jan. 1, 2024.

 

The master sports wagering licensees are taxed at 15% of adjusted gross sports wagering receipts, with the tax payable monthly in arrears, with an additional 2% tax on revenue generated (online/mobile or otherwise) in the city of Chicago. There are also various provisions relating to sharing data with the leagues, official data requirements for in-game betting, and minority, women, disabled, and veteran engagement targets for all licensees under the Act. (See the detailed sports wagering summary below).

 

New Casinos: The amendments permit the Illinois Gaming Board (the Board) to issue a license to 1) the City of Chicago, 2) the City of Danville, 3) the City of Waukegan, 4) the City of Rockford, 5) certain townships of Cook County, and 6) unincorporated Williamson County adjacent to the Big Muddy River. Except for the Chicago casino, applications for the other casinos must be submitted within 120 days of the amendments becoming effective. The Board will only consider an applicant if the county board or authority of the host municipality certifies that the applicant met certain criteria including negotiating with the host community in good faith and agreement as to the location. The Board is required to engage with a consultant to conduct a feasibility study for the Chicago casino within 10 days of the effectiveness of the amended Act. Each applicant shall pay $15 million upon issuance of the license and three years later a reconciliation fee equal to 75% of the adjusted gross receipts (AGR) for the most lucrative 12-month period minus any initial per-position payment paid by the specific licensee. The reconciliation fee may be made in two annual installments. In addition to the license fee, the per-position payments are set at $17,500 for the non-Chicago casino (max $35 million) and $30,000 for Chicago (max $120 million). The Chicago casino will have up to 4,000 positions, which it can split by offering slots at the Chicago airports. The other new casinos will be limited to 2,000 positions, except for the one in Williamson County, which can only have 1,200.

 

Existing Casinos: Existing casinos may conduct land-based gambling with approval of the Board and payment of a $250,000 fee. The existing operators may also add positions but will be required to pay both the per-position fee and the reconciliation fee as set forth for the non-Chicago casinos in the paragraph above. Unless granted an extension by the Board, the existing casinos are also required to make their position expansion election, from 1,200 to up to 2,000 within 30 days of the effective date of the Act. Note that for the existing casinos, the reconciliation fee is a percentage of the additional positions divided by the total number of positions at the casino.

 

Racetrack gaming operations: The Illinois Gaming Act is amended to grant authority to the Board over racetrack operations. The Board is granted 120 days from the date of the application to grant the organization gaming license to the applicant.

 

Taxes – Admission and Privilege: The admission tax is left at $3, but the allocation of the tax is spelled out by location. The admission tax is also applied to the racetracks offering gambling games pursuant to the organization licenses. The tax rate remains unchanged for owner licensees for revenue from anything other than table games, with the top privilege tax set at 50% for income over $200 million. For the first time, table games are taxed differently than slot machines. Table game AGR of up to and including $25 million is taxed at 15%, and any AGR over $25 million is taxed at 20%. Also, the Casino Queen is given an additional downward adjustment to its AGR. Although the language is not clear, the Chicago casino appears to be exempted from the privilege tax schedule, but simply has a tax of one-third of AGR. The existing casinos receive a dollar-for-dollar credit not to exceed $2 million for renovations or construction costs through 2023. If the existing casinos have a lower AGR in 2019 (or subsequent years) than they did in 2018, the privilege tax liability is reduced until AGR equals the amount of AGR in 2018 (3% cap unless the cap is expanded due to non-gaming improvement spend). The reduction in liability is not refunded but applied as a credit against the subsequent year’s taxes. The adjustment period under this provision can be extended by spending $15 million in non-gaming amenities (subject to a cap of $75 million in successive years). All the construction work must be union contracts to be eligible for the tax credits. Beginning in 2020, free play up to 20% of AGR is excluded from gross receipts. In March 2023, the Board is required to report to the General Assembly on the impact of the free play provision for the years 2020-2022. The Act details how the taxes received from the new casinos will be split among the various municipalities – significantly, the tax revenue from the Chicago casino (subject to appropriation) will be applied to the city’s obligation to fund pension payments.

 

 
 

 

Miscellaneous Provisions, including Test Labs and Diversity Requirements: Amendments also require the Board to use multiple accredited testing labs regardless of contractual obligations or discretion, mandate the approval of internal control changes if the Board has not acted on the proposed changes within 90 days, strengthen the ethics controls on Board members, and revise the criteria to be appointed to the Board. The bill clarifies the disclosure of ownership in the public 5.1 disclosures. New section 5.3, “Ethical Conduct,” was added to prevent gifts or influence with the host communities of the new casinos, requiring all communication between the host communities and prospective licensees to be disclosed to the Board. Violation of this new section 5.3 is a Class 4 felony. New Section 230 ILCS 10/6(a-5) sets forth additional and new criteria for applicants for an Owners License. These new criteria include history and success of developing tourism facilities ancillary to gaming, the creation of living wage jobs for Illinois residents, the projected number of jobs to be created, commitment to community-based organizations, identification of adverse effects and the ancillary costs of those effects, and engagement with minorities and women-owned business. The most significant criteria for new applicants is a requirement to demonstrate best efforts to reach a goal of 25% minority ownership and 5% women ownership.

 

The bill also mandates a diversity program for all licensees that includes annual reporting and makes achievement in diversity inclusion criteria for the renewal of a license. The focus of the diversity language not only includes vendor spend but also employee engagement and advancement. Copies of the licensee’s annual report on its diversity efforts will be provided to the state legislature. 24-hour gaming is expressly authorized for owners licensees (but not organizational licensees). And a provision appears in both the Illinois Gambling Act and Video Gaming Act that makes it clear that conflicts in the two Acts are resolved in favor of the Illinois Gambling Act.

 

Licensed establishments may offer up to 6 Video Gaming Terminals, except that a new establishment license category is established for large truck stop establishments, which may operate up to 10 video gaming terminals. These large truck stop establishments must be within three miles of the freeway and have volume exceeding 50,000 gallons per month. Terminal Handlers are able to access the logic door and other internal mechanisms of the Video Gaming Terminal without the physical presence of a Board agent. Maximum wagers are increased from $2 to $4, and the maximum jackpot (excluding the progressive $10,000 bonus) is increased from $500 to $1,199 (to avoid W2G issuance). The Board is required to issue emergency rules for the progressive bonus within 90 days of the effective date of the Act. Beginning July 1, 2019, an additional tax of 3% is implemented on net terminal income. On July 1, 2020, the tax increases to 4%. New language placing restrictions on “video gaming malls” is introduced, leaving the Board to make determinations about the application of the restriction.

 

Through a new Section 230 ILCS 5/56, the Horse Racing Act is amended to allow racetracks to apply to the Board for an organization gaming license. Per the amendments to the Riverboat Gambling Act, which becomes the “Illinois Gambling Act,” the number of gaming positions at a racetrack are limited to 1,200 for the track located in Cook County and 900 positions for any tracks outside of Cook County. The positions may include table games. There is a provision that permits the Board to retain unused positions and reallocate those positions to the tracks that want them (in excess of the maximums). (See 230 ILCS 10/7.7). The tracks are required to pay the per-position fee that the casinos are required to pay ($17,500), but the Madison County track is only required to pay for 540 positions, regardless of an election exceeding 540. The reconciliation payment described above also applies. The amendment also prohibits additional regulation of the organization gaming licensees by the local municipality. (See 230 ILCS 10/7.8)

 

A number of requirements surround the issuance of the organization gaming license including specifics around capital contributions, proceeds contributed to purses, and contributions to the Horsemen Associations. Following the authorization of gambling games at the tracks, the amendments institute a $0.40 admission tax per patron (which is inconsistent with language amending the Riverboat Gambling Act) and adjustment to a number of bonds, fees and payments, including the maximum discipline the Racing Board is authorized to issue and discontinuing the subsidy based on the 1994 purses once gambling games are authorized. The amendment also establishes the pari-mutuel tax rate as a percentage of handle, topping out at 3.5% for handle that is 175% or more above the 2011 average daily pari-mutuel handle. Language has also been added to safeguard against the appropriation of the various Illinois Breeders Trust Funds, giving incentive to races involving Illinois horses, and requiring an annual contribution of $1 million by all tracks to backstretch workers once gambling games are operational. The amendments also permit a new standard bread track in Cook County that may have up to 16 inter-track wagering locations. The new track will have all rights that the existing tracks have including sports wagering and up to 1,200 gaming positions. Finally, the definition of pari-mutuel wagering (Section 3.12) was amended to expressly exclude historical race wagering.

 

Illinois Transfer Tax and Withholding Requirements: The newly added 35 ILCS 5/201(14)(b-5) imposes a surcharge on the sale or exchange of assets, properties and intangibles of an organizational licensee equal to the amount of federal income tax liability for the sale or exchange. The surcharge is in effect from 2019-2027 and will not apply in certain instances including bankruptcy, loss of license, death of current owners, or a transfer by any licensee that is not an “initial licensee.” The Illinois Department of Revenue is authorized to adopt rules to administer this section. “Initial licensee” is not defined in the Act. In addition, a separate provision, 25 ILCS 5/710(a)(3), is amended to require tracks, casinos, or any gaming facility to withhold state income tax.

 

 
 

 

Gaming Board Closed Session Fix: The Open Meetings Act was amended to expressly permit the Board to discuss personal, commercial, financial, or other information that is considered confidential in closed session. The absence of this provision previously had resulted in a number of lawsuits relating to violations of the Open Meetings Act.

 

Board Member Political Party: No more than three members of the Board may be from the same political party.

 

The following summaries in more detail some key points of the Sports Wagering Act (Article 25):

 

 

 

●

Board Authority

 

 

●

Except for the lottery pilot program, which will be regulated by the Illinois State Lottery, the Illinois Gaming Board will regulate all manner of sports wagering.

 

 

●

The Board is granted the customary rule making authority and broad discretion to implement the Act. The Board’s authority includes the awarding of all licenses (other than the central communication system for the lottery program), but also whether licensees are permitted to share data with the leagues, what wagers may be restricted at the request of various stakeholders, and, in certain circumstances, whether official data is required for in-game betting.

 

 

●

Wagering Restrictions

 

 

●

The bettor must be at least 21 and physically located in the state.

 

 

●

Wagers cannot be placed on any minor league sports events or any Illinois collegiate teams – and, as much reported, wagers cannot be placed on any kindergarten through 12th-grade sporting events.

 

 

●

In addition to the established limitations or those set by the Board, the casinos, racetracks, sports facilities, online operators, professional sports team, league, association, sports-governing body, or institution of higher education may request that the Board prohibit certain wagers if the requesting party believes that wagering is “contrary to public policy, unfair to consumers or affects the integrity” of either the sport or the sports betting industry. (25-15(g))

 

 

●

For the sports facility to offer sports wagering, each professional sports team that plays at that venue must give written authorization to the venue.

 

 

●

Licenses

 

 

●

Sports wagering, subject to licensure, can be offered at 1) the three horseracing tracks (organizational licensees) 2) up to nine OTBs (3 per track), 3) the 10 existing casinos, 4) up to seven sports facilities, and eventually by three online operators.

 

 

●

The Sports Wagering Act authorizes the Board to issue licenses in six different categories: (1) master sports wagering, (2) occupational, (3) supplier, (4) management services provider, (5) tier 2 official league data provider, and (6) central system provider.

 

 

o

Master Sports Wagering - This license is awarded to the operators of the casinos, the horse tracks, the sports facilities, and, eventually, the three (maximum) online operators awarded the license pursuant to the competitive bid process.

 

 

o

Occupational – Self-explanatory. These are the individuals who work for the other licensees issued pursuant to this Act.

 

 

o

Supplier – These are the technology providers or other suppliers to the Master Sports Wagering licensee. Treated like a traditional supplier – all hardware and software are required to go through independent testing labs.

 

 

o

Management Services Provider – These are any suppliers taking a share of the revenue, any third party the Master Sports Wagering licensee engages with to run the sports wagering operation, or anyone else deemed a Management Service Provider by the Board.

 

 

o

Tier 2 Official League Data Provider – Self-Explanatory. As noted elsewhere, this licensee is only for providing data for in-game betting.

 

 

o

Central System Provider – This licensee runs the central system under the lottery pilot program, is selected following a competitive bid, and is regulated by the Illinois State Lottery and not the Illinois Gaming Board.

 

 
 

 

 

●

The Board determines the scope of licensing, but the Act requires fingerprints and release of information from all officers and directors of a corporation, all members of an LLC, and all partners of a partnership.

 

 

o

The Board is authorized to accept licensing by another jurisdiction as evidence that the supplier applicant or management service provider meets the necessary requirements (25-50(c) and 25-55(c)). This same provision is not in the licensing section for any of the other four licensing groups (master sports wagering, occupational, tier 2 official League Data, or Central System Provider).

 

 

●

Taxes

 

 

o

All master sports wagering licensees are taxed at 15% of adjusted gross sports wagering receipts, with the tax payable monthly in arears (25-90(a)), with an additional 2% tax on revenue generated within the city of Chicago. (25-90(a-5)). There is a distinction in 25-90(a-5) between terrestrial and online/mobile wagering.

 

 

●

Fees and Renewals

 

 

o

Initial Master Sports Wagering License (four years):

 

 

■

Existing Horseracing Tracks - 5% of handle from the preceding calendar year or the lowest master sports wagering licensee fee paid by casino operators, whichever is greater. The fee cannot exceed $10 million. The tracks are required to pay the fee on July 1, 2020.

 

  ■

Future Horseracing Tracks - $5 million, but that amount will be adjusted (up) based on the handle from the first 12 months of operations.

 

  ■

Casinos – 5% of AGR for the preceding calendar year, not to exceed $10 million. The casinos are required to pay the fee on July 1, 2020.

 

 

■

Sports facilities - $10 million

 

 

■

Online Sports Wagering Operator - $20 million

 

 

o

Fees for Renewal Master Sports Wagering License (four years) - $1 million

 

 

■

Supplier: $150,000 for the initial license (four years) and then $150,000 annually for each renewal (one year).

 

 

■

Management Services Provider: $1 million for the initial license (four years) and then $500,000 for each renewal (four years).

 

 

■

Tier 2 Official Data Provider: The licensing fee for the initial license (three years) is payable to the Board at the end of the first year of licensure based on the amount of data sold to master sports wagering licensees as official league data as follows: (1) for data sales up to and including $500,000, the fee is $30,000; (2) for data sales in excess of $500,000 and up to and including $750,000, the fee is $60,000; (3) for data sales in excess of $750,000 and up to and including $1,000,000, the fee is $125,000; (4) for data sales in excess of $1,000,000 and up to and including $1,500,000, the fee is $250,000; (5) for data sales in excess of $1,500,000 and up to and including $2,000,000, the fee is $375,000; and (6) for data sales in excess of $2,000,000, the fee is $500,000. The renewal license (three years) uses the same metrics but is based on the previous year’s fee.

 

 

■

Central System Licensee: $20 million upon being awarded the contract with the Lottery following the competitive bid process. The length of time for the award of this contract is not dictated in the Act.

 

 

●

Data and Integrity Issues

 

 

o

The Board may require the licensees to share sports wagering account data in real time with the Board and, if a sports governing body has notified the Board that such data is “necessary and desirable,” the licensees may share that information with the sports governing body, so long as that body only uses that information for “integrity purposes” (25-15(f)

 

 

o

The Board and the licensees “may” but are not required to cooperate with investigations conducted by sports governing bodies (25-15(h)). The licensees are required to disclose to the Board any abnormal wagering, breach of protocol, violations of the Act, etc.

 

 

o

Licensees may use any data to determine the outcome of “tier one” wagers (not in-game wagers) (25-25(f)).

 

 

o

If a sports governing body headquartered in the United States notifies the Board of its desire to supply official data for in-game betting, the licensees must use such data. If the sports governing bodies do not make this notification, the licensees may use any data. The licensee, with the approval of the Board, is relieved of the obligation to use official data if the official data limitations frustrate the desired in-game bet (25-25(g)).

 

 

o

The Act establishes a hotline for anonymous reporting of prohibited conduct and obligates the Board to investigate reasonable allegations on a confidential basis (25-75).

 

 

o

The Act prohibits a master sports wagering licensee (but not other licensees) from purchasing an athlete’s personal biometric data unless it received written permission from the athlete’s “exclusive bargaining representative” (25-80).

 

 
 

 

 

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Other Provisions

 

 

o

The Act goes into great detail regarding minority, disabled, women, and veteran vendor engagement and reporting (25-85). This section also sets forth an annual job fair requirement.

 

 

o

The Act establishes a sports wagering self-exclusion option (25-100).

 

 

o

The Act requires the Board to provide a report on sports wagering on or before Jan. 15, 2021 and every year thereafter.

 

The Administrative Procedure Act is amended to permit for emergency rules to be issued by the Board and the Lottery to implement the Sports Wagering Act. Similarly, the criminal code and other relevant state acts are amended to account for permissible sports wagering.

 

Indiana

 

The Indiana Riverboat Gaming Act, or the Indiana Act, was passed in 1993 and authorized the issuance of up to eleven Riverboat Owner’s Licenses to be operated from counties that are contiguous to the Ohio River, Lake Michigan and Patoka Lake. Five riverboats operate from counties contiguous to the Ohio River and five operate from counties contiguous to Lake Michigan. Subsequent legislation has amended or modified the Indiana Act, including:

 

 

•

Legislation adopted in May 2003 eliminated the Riverboat Owner’s License for a riverboat to be docked in a county contiguous to Patoka Lake. However, the General Assembly authorized the Indiana Gaming Commission to enter into a contract pursuant to which an Operating Agent can operate a riverboat in Orange County, which is contiguous to Patoka Lake, on behalf of the Indiana Gaming Commission. This contract was awarded to Blue Sky Casino, LLC, d/b/a French Lick Casino & Resort, which commenced operations on November 3, 2006.

 

•

Legislation enacted in April 2007 specified a riverboat cannot be moved from the county in which it was docked on January 1, 2007, to another county.

 

•

In May 2008 the horse track located in Anderson, Indiana commenced slot operations and in June 2008 the horse track located in Shelbyville, Indiana commenced slot operations pursuant to the Gambling Games at Racetracks legislation. Each horse track may install up to 2,000 slot machines (“Racino”). The Indiana Gaming Commission may authorize the installation of additional slot machines at each Racino.

 

•

Public Law 255-2015 specifies a process for entering into tribal-state compacts concerning Indian Gaming, a procedure not previously in Indiana law. It should be noted that in May of 2012, the Pokagon Band of Potawatomi Indians submitted to the Bureau of Indian Affairs a fee-to-trust application to take 165 acres of land in South Bend into trust. The proposed development includes a Class III casino-style gaming facility. In 2017 the Pokagon Band of Potawatomi Indians opened a Class II gaming facility in South Bend, Indiana. Legislation passed in 2017 changes the revenue sharing provisions for South Bend, Indiana. It is anticipated that the Pokagon Band of Potawatomi Indians will seek to enter into a tribal-state compact for Class III gaming at the facility in South Bend, Indiana.

 

•

Public Law 255-2015provides for table games at Racinos beginning in 2021 upon application and approval by the Indiana Gaming Commission and further limits the number of gambling games a Racino may offer to 2,200 after January 1, 2021.

 

•

Public Law 212-2016, codified at Indiana Code 4-33-24-1., legalized Fantasy Sports play in Indiana.

 

•

Public Law 72-2016, codified at Indiana Code 4-33-4-3.5, amended existing law and now requires all licensed owners and operating agent to pay to the commission a special Workers Compensation Fee of $12,000 per year in exchange for the removal of the requirement to reimburse Workers Compensation costs incurred by Gaming Enforcement Agents and support staff.

 

The Indiana Act and rules promulgated thereunder provide for the strict regulation of the facilities, persons, associations and practices related to gaming operations. The Indiana Act vests the seven member Indiana Gaming Commission with the power and duties of administering, regulating and enforcing riverboat gaming in Indiana. In 2005 the Indiana Act was amended to change the residency requirements of Indiana Gaming Commission members requiring only one member, rather than three, reside in counties contiguous to Lake Michigan and to the Ohio River. The Indiana Gaming Commission’s jurisdiction extends to every person, association, corporation, partnership and trust involved in any riverboat gaming operation located in the State of Indiana.

 

The Indiana Act requires that the owner of a riverboat gambling operation hold a Riverboat Owner’s License issued by the Indiana Gaming Commission. The applicants for a Riverboat Owner’s License must submit a comprehensive application and the substantial owners and key persons must submit personal disclosure forms. The company, substantial owners and key persons must undergo an exhaustive background investigation prior to the issuance of a Riverboat Owner’s License. A person who owns or will own five percent of a Riverboat Owner’s License must automatically undergo the background investigation. The Indiana Gaming Commission may investigate any person with any level of ownership interest. The Operating Agent of an Orange County riverboat and Racino licensees undergo the same background investigation as a Riverboat Licensee. If the holder of a Riverboat license, the Riverboat Licensee or the Operating Agent is a publicly-traded corporation, its Articles of Incorporation must contain language concerning transfer of ownership, suitability determinations and possible divestiture of ownership if a shareholder is found unsuitable.

 

A Riverboat Owner’s License and Operating Contract entitle the licensee or the Operating Agent to operate one riverboat. The Indiana Act was amended in May 2003 to allow a person to hold up to one hundred percent of two individual Riverboat Owner’s Licenses. In addition, a transfer fee of two million dollars will be imposed on a Riverboat Licensee who purchases or otherwise acquires a controlling interest in a second Indiana Riverboat Owner’s License.

 

 
 

 

Pursuant to language that became effective on July 1, 2009, each riverboat licensee, Operating Agent and Racino licensee must execute and submit a Power of Attorney and name a Trustee who would operate the casino and related facilities if a statutory event occurs and the Indiana Gaming Commission adopts a resolution authorizing the Trustee to temporarily conduct the riverboat gambling operations. Specifically, the Indiana Gaming Commission may adopt a resolution authorizing a Trustee to temporarily conduct riverboat gambling operations if any of the following occurs: (i) The Indiana Gaming Commission revokes the owner’s license; (ii) the Indiana Gaming Commission declines to the renew the owner’s license; (iii) a proposed transferee is denied a license when attempting to purchase a riverboat and current owner is unable or unwilling to retain ownership of the riverboat; or (iv) a licensee agrees, in writing, to relinquish control of a riverboat to a trustee as approved by the Indiana Gaming Commission. The Power of Attorney and potential Trustees had to be submitted by November 1, 2009. Blue Chip’s Power of Attorney and its proposed Trustee were initially approved by the Indiana Gaming Commission at its March 4, 2009, business meeting and last approved August 18, 2016. The approval of the Trustee is annual and coincides with the annual renewal of the Casino Owner’s License.

 

All riverboats must comply with applicable federal and state laws including, but not limited to, U.S. Coast Guard regulations. Each riverboat must be certified to carry at least five hundred passengers and be at least one hundred fifty feet in length. Those riverboats located in counties contiguous to the Ohio River must replicate historic Indiana steamboat passenger vessels of the nineteenth century. Public Law 255-2015 allows for inland casinos on adjacent and existing casino. Two casinos appear to be prepared to avail themselves of this provision and build new land based facilities. Originally, the Indiana Act did not limit the number of gaming positions allowed on each riverboat. Public Law 255-2015 now sets a limit, whether inland or on the existing riverboat, at the highest number since January 1, 2007. The only limitation on the number of permissible patrons previously allowed was established by the U.S. Coast Guard Certificate of Inspection in the specification of the riverboat’s capacity. In 2005 the Indiana Act was amended to allow the Indiana Gaming Commission to adopt an alternative certification process if the U.S. Coast Guard discontinues issuing Certifications of Inspections to Indiana riverboats. On June 7, 2007, the Indiana Gaming Commission adopted the Guide for Alternate Certification of Continuously Moored, Self-Propelled, Riverboat Gaming Vessels in the State of Indiana. Vessels with an existing Certificate of Inspection operating as a dockside riverboat casino will be accepted as-is into the Alternative Certification program, subject to satisfactory completion of the United States Coast Guard procedures for becoming a Permanently Moored Vessel and a satisfactory inspection by ABS Consulting. Upon surrendering the United States Coast Guard Certificate of Inspection rules and regulation of the Occupational Health and Safety Administration will apply to the vessel and its crew, including casino personnel.

 

The Indiana Gaming Commission, after consultation with the Corps, may determine those navigable waterways located in counties contiguous to Lake Michigan or the Ohio River that are suitable for riverboats. If the Corps rescinds approval for the operation of a riverboat gambling facility, the Riverboat Owner’s License issued by the Indiana Gaming Commission is void and the Riverboat Licensee may not commence or must cease conducting gambling operations.

 

The initial Riverboat Owner’s License ran for a period of five years. Thereafter, the license is subject to renewal on an annual basis upon a determination by the Indiana Gaming Commission that it continues to be eligible to hold a Riverboat Owner’s License pursuant to the Indiana Act and rules promulgated thereunder. After the expiration of the initial license, the Riverboat Owner’s License must be renewed annually with each Riverboat Licensee undergoing a complete reinvestigation every three years. The Indiana Gaming Commission reserves the right to investigate Riverboat Licensees at any time it deems necessary. The initial license was issued to Blue Chip Casino, Inc., the predecessor to Blue Chip Casino, LLC, in August of 1997. Blue Chip underwent a reinvestigation in 2018 and its license was renewed. The license is valid for a period of one year and must be renewed annually. Blue Chip's license was renewed and reinvestigated in 2018 as a part of the investigation conducted relating to the acquisition of four (4) casino properties from Penn National Gaming, Inc. (“Penn”) as a part of Penn’s acquisition of Pinnacle Entertainment, Inc.; the Belterra Resort in Florence, Indiana is one of the four casino properties acquired by Boyd. The Operating Contract for an Orange County riverboat is valid for a period of twenty years. However, the Operating Agent is to be reinvestigated every three years to determine continued suitability. In addition, the Indiana Gaming Commission has the right to reinvestigate the Operating Agent at any time it deems necessary. Racino licenses must be renewed annually with a reinvestigation every three years.

 

Pursuant to legislation enacted in 2009, all riverboat licensees, Operating Agents, and Racino licensees must submit to the Indiana Gaming Commission for approval a proposed Power of Attorney identifying the person who would temporarily operate the facility on a temporary basis and upon approval of the Indiana Gaming Commission (“Trustee”). The Trustee is to operate the facility if one of the following occurs: (i) the Indiana Gaming Commission revokes the license or the Operating Agreement; (ii) the Indiana Gaming Commission does not renew a license or an Operating Agent contract; (iii) a proposed transferee of a license or Operating Agent is denied a license or an Operating Agent Contract and the licensee or Operating Agent is unwilling to retain ownership of the riverboat or Racino; or (iv) the licensee agrees, in writing, to relinquish control to a trustee approved by the Indiana Gaming Commission. The Indiana Gaming Commission will establish a deadline for all licensees and Operating Agents to submit a proposed Power of Attorney. After the deadline passes the Indiana Gaming Commission may not renew a license or Operating Agent Contract until the Power of Attorney is submitted and the Indiana Gaming Commission has approved the Power of Attorney and the proposed trustee. If the Indiana Gaming Commission adopts a resolution authorizing a trustee to temporarily operate a riverboat or a Racino the licensee will have 180 days from the date the resolution is adopted to sell the riverboat or Racino to a person approved by the Indiana Gaming Commission. If the riverboat or Racino is not sold within 180 days, the trustee may sell the riverboat or Racino to a person approved by the Indiana Gaming Commission. All licensees must apply for and hold all other licenses necessary for the operation of a riverboat gambling operation, including, but not limited to, alcoholic beverage licenses and food preparation licenses.

 

Neither the Riverboat Owner’s License nor the Operating Contract may be leased, hypothecated or have money borrowed or loaned against it. An ownership interest in a Riverboat Owner’s License or an Operating Contract may only be transferred in accordance with the Indiana Act and rules promulgated thereunder.

 

The Indiana Act does not limit the amount a patron may bet or lose. Minimum and maximum wagers for each game are set by the Riverboat Licensee or an Operating Agent. Wagering may not be conducted with money or other negotiable currency. No person under the age of 21 is permitted to wager on a riverboat. A person at least 18 years of age may be present on a riverboat only if that person has applied for and received an occupational license but a person under 21 may not deal or otherwise participate in the gambling games. Wagers may only be taken from a person present on the riverboat. All electronic gaming devices must pay out in a theoretical range that is at least eighty but less than one hundred percent of the amount wagered. In addition, in May 2003, the Indiana General Assembly adopted legislation authorizing twenty-four hour operation for all Indiana riverboats upon application to, and approval by, the Indiana Gaming Commission. The Indiana Gaming Commission had previously allowed only twenty-one hour gaming. As a result of the legislative change and upon receipt of the requisite approval, Blue Chip commenced twenty-four hour gaming on August 1, 2003.

 

 
 

 

Pursuant to legislation adopted in May 2003, the Indiana Gaming Commission adopted rules to establish and implement a voluntary exclusion program that requires, among other things, (i) that persons who participate in the voluntary exclusion program be included on a list of persons excluded from all Indiana riverboats, (ii) that persons who participate in the voluntary exclusion program may not seek readmittance to Indiana riverboats, (iii) Riverboat Licensees and Operating Agents must make reasonable efforts, as determined by the Indiana Gaming Commission, to cease all direct marketing efforts to a person participating in the voluntary exclusion program, and (iv) a Riverboat Licensee or Operating Agent may not cash a check of, or extend credit to, a person participating in the voluntary exclusion program. The voluntary exclusion program does not preclude a Riverboat Licensee or Operating Agent from seeking payment of a debt accrued by a person before entry into the voluntary exclusion program. The Indiana Gaming Commission commenced the voluntary exclusion program on July 1, 2004. As of September 2012, 5,869 individuals had enrolled in the program.

 

The Indiana General Assembly amended the Indiana Act in 2002 to allow riverboats to choose between continuing to conduct excursions or operate dockside. The Indiana Gaming Commission authorized riverboats to commence dockside operations on August 1, 2002. Blue Chip opted to operate dockside and commenced dockside operations on August 1, 2002. Pursuant to the legislation, the tax rate was increased from 20% to 22.5% during any time an Indiana riverboat does not operate dockside. For those riverboats that operate dockside, the following graduated tax rate is applicable: (i) 15% of the first $25 million of adjusted gross receipts, which we refer to as AGR; (ii) 20% of AGR in excess of $25 million, but not exceeding $50 million; (iii) 25% of AGR in excess of $50 million, but not exceeding $75 million; (iv) 30% of AGR in excess of $75 million, but not exceeding $150 million; and (v) 35% of AGR in excess of $150 million, but not exceeding $600 million; (vi) 40% of AGR in excess of $600 million. AGR is based on Indiana’s fiscal year (July 1 of one year through June 30 of the following year). Public Law 229-2013 changed the graduated tax rate for a riverboat that received less than $75,000,000.00 AGR in the preceding state fiscal year by taxing the first $25,000,000.00 at a 5% rate as opposed to the prevailing 15%. However, a riverboat that is taxed at the 5% rate shall pay an additional $2,500,000.00 in any state fiscal year that it exceeds $75,000,000.00 AGR.

 

Public Law 229-2013 also allows the licensees to deduct not more than $2.5 million from AGR in state fiscal year 2013 attributable to free play wagering (statutorily referred to as “qualified wagering”) and not more than $5 million from AGR for subsequent years ending before July 1, 2016 (new legislation is being considered to extend the free play deduction to additional fiscal years). Public Law 255-2015 extended the deduction permanently and increased the deduction to $7 million.

 

The Operating Agent in Orange County will pay the wagering tax on the same basis as the other ten Indiana riverboats. The Indiana Act requires that Riverboat Licensees pay a $3.00 admission tax for each person. A riverboat that opts to continue excursions pays the admission tax on a per excursion basis while a riverboat that operates dockside pays the admission tax on a per entry basis. Legislation enacted in April 2007 provides the Indiana Gaming Commission with the authority to adopt rules to determine the point at which a patron is considered admitted to a riverboat. Legislation enacted in 2017 eliminated the admissions tax and replaced it with a supplemental wagering tax which is a formula calculated based on the riverboat’s AGR. For a riverboat that has relocated from dockside to an inland casino the supplemental wagering tax was set at 3% of AGR imposed starting the day operations commenced at the inland casino. For dockside riverboat casinos the supplemental wagering tax takes effect July 1, 2018 and may not exceed 4% for the fiscal year commencing July 1, 2018 and ending June 30, 2019 and may not exceed 3.5% beginning July 1, 2019. Legislation proposed in Senate Bill 242, in the 2018 session, would clarify the formula for the calculation of the supplemental wagering tax commencing July 1, 2018. The 2017 legislation changed the collection of the admissions tax, wagering tax and the supplemental wagering tax from daily to monthly. The 2018 legislative session did not pass any laws which impact the operation of the Blue Chip Casino as only slight adjustments were made to existing law which primarily affected the Racinos.

 

On April 24, the Indiana General Assembly voted to approve a significant omnibus gaming bill. What began as Senate Bill 552 and ultimately became House Enrolled Act 1015 passed the Indiana Senate 37-12 and the Indiana House of Representatives 59-36. The bill changed several times and in major ways throughout the legislative session, but has sought from the beginning to tackle several major matters for Indiana’s gaming landscape, including: the movement (and, at one point, creation) of gaming licenses; the acceleration of live dealers at the state’s two race track casinos (racinos); tax rates to be paid by Indiana’s casino operators; the impact of all of these things on municipalities that are home to casinos, and; legalizing sports wagering.

 

The following is a summary of some of the key provisions of the final version of HEA 1015:

 

 

 

●

Currently, the Majestic Star Casino in Gary has two gaming licenses, which are operated at one casino location. HEA 1015 authorizes the owner of the Gary casino to petition the Indiana Gaming Commission to relocate one of those licenses to a more profitable and desirable land-based location in Gary. Upon doing so, Majestic will surrender one of its licenses back to the state. However, while a gaming license allows an operator to operate a statutorily prescribed number of gambling games in a stated location, under HEA 1015, Majestic would still be allowed to operate the same number of gambling games, 2,764, it is currently allowed to operate with both licenses. Upon moving the casino, Majestic Star would be subject to payment of a $20 million fee to the state. However, this fee may be paid to the Indiana Gaming Commission over a period of five years.

 

 

●

The license surrendered by Majestic Star will be relocated to Vigo County, specifically Terre Haute. The county will undertake a public referendum process to approve the presence of a casino. Once a referendum passes, the Indiana Gaming Commission will commence a competitive RFP process to receive proposals from any interested party for the Terre Haute casino license. The project will require a $100 million minimum investment by the prospective operator. The operator selected will be subject to payment of a $5 million license fee to the state.

 

 

●

Several additional considerations are contemplated under HEA 1015, including: (i) changes to the casino tax structure, which will lower certain wagering tax rates for casinos beginning in 2021 (which coincides with the next biennium for state budget considerations); (ii) an additional $2 million in tax-free promotional play for all casino properties in the state, and; (iii) an amended wagering tax structure for the Majestic Star Casino, should it move to a new location within Gary, which will allow it to continue to reap the benefits of being taxed as if it were operating under two licenses, for eight years.

 

 

●

The two racinos will be allowed to implement live dealer table games beginning Jan. 1 (prior to the passage of HEA 1015, they would be required by statute to wait until 2021 to do so).

 

 
 

 

 

●

“Hold harmless” provisions (local protections/payments) will be implemented for municipalities that will be impacted by the move of the Majestic Star Casino to a new location (including Hammond, East Chicago and Michigan City, each of which is home to casinos), as well as those that anticipate increased competition from a Terre Haute casino (including Evansville and an adjusted tax benefit for the French Lick Casino in Orange County).

 

 

●

The payments made to Evansville will be temporary in nature, beginning with a payment of $1.2 million within the first year of gaming operations in Terre Haute, by the Terre Haute operator, and decreasing from there over a three-year period. The payments being made to the three cities located in northwest Indiana will be made by Gary and will remain in place for the first four fiscal years after gaming operations commence at the new Gary location. The tax adjustment for French Lick is ongoing, beginning in fiscal year 2021.

 

 

●

Finally, HEA 1015 legalizes sports wagering throughout Indiana. Under HEA 1015, the following structure for legalized sports betting will be implemented in Indiana, likely beginning in September:

 

 

o

Legalizes sports wagering in Indiana for persons over 21, beginning Sept. 1;

 

 

o

Allows sports wagering to take place at any of the Indiana licensed casinos, racinos and off-track betting parlors and via mobile device;

 

 

o

Allows registration for a mobile sports betting app to take place from any mobile device, rather than requiring in-person registration at a brick and mortar location;

 

 

o

Establishes the Indiana Gaming Commission as the regulatory oversight body for sports wagering;

 

 

o

Establishes a 9.5 percent tax rate on the adjusted gross receipts obtained by a certificate holder;

 

 

o

Establishes licensure categories for: certificate holders (licensed Indiana operators seeking to offer sports wagering); vendors (a contractor with a certificate holder that manages sports wagering operations either at the brick and mortar sports book or via mobile application), and; sports wagering service providers (a contractor with a certificate holder or vendor that provides associated equipment for sports betting, services such equipment, or provides risk management, integrity services or odds to a certificate holder or vendor);

 

 

o

Allows the IGC to determine rules for in-play sports bets and whether or not “official league data” will be required for such bets;

 

 

o

Establishes a $100,000 license fee for certificate holders, an annual fee of $50,000 for certificate holders, a $100,000 license fee for vendors, an annual fee of $50,000 for vendors and a $10,000 license fee for a sports wagering service provider;

 

 

o

Requires all data related to sports wagering to be shared with the Indiana Gaming Commission, which may then provide it to any sports governing body;

 

 

o

Prohibits wagering on e-sports, high school athletics and amateur sporting events, or any sporting event not approved by the IGC;

 

 

o

Requires reporting by certificate holders or vendors to the IGC and relevant sports governing bodies of any information related to certain integrity concerns related to sports betting, including abnormal betting activity, and;

 

 

o

Allows a certificate holder three “skins” to operate.

 

The Orange County Operating Agent must pay a $4.00 admission tax for each person that enters the riverboat. However, Public Law 255-2015 exempted the payment of the admissions tax for the French Lick Casino and creates a fee for each Racino in the amount of $2.250 million per Racino. Racino licensees must pay the following graduated wagering tax: (i) 25% of the first $100 million; (ii) 30% of AGR in excess of $100 million, but not exceeding $150 million; (iii) 35% of AGR in excess of $150 million, but not exceeding $600 million; (iv) 40% of AGR in excess of $600 million. The Indiana Act provides for the suspension or revocation of a license whose owner does not timely submit the wagering or admission tax. Racino licensees must also pay (i) a 3% county slot machines wagering fee not to exceed $8 million in a fiscal year; (ii) an annual $500,00 problem gambling fee; (iii) 15% of its respective AGR to horsemen's purses, horsemen's associations and the gaming integrity fee; and (iv) an annual supplemental fee of 1% AGR to the Operating Agent for the first five years of operation and, thereafter, an annual renewal fee of $100 per slot machine.

 

In April 2007, the Indiana General Assembly amended the manner in which riverboats are to be taxed for property tax purposes. Retroactive to March 1, 2006, riverboats are to be taxed based on the lowest valuation as determined by an application of each of the following methodologies: (i) cost approach; (ii) sales comparison approach; and (iii) income capitalization approach. Alternatively, the Riverboat Licensee and the respective Township Assessor may reach an agreement regarding the value of the riverboat. All Indiana state excise taxes, use taxes and gross retail taxes apply to sales made on a riverboat. In 2004 the Indiana Supreme Court ruled that vessels purchased out of the State of Indiana and brought into the State of Indiana would be subject to Indiana sales tax. Additionally, the Supreme Court declined to hear an Indiana Tax Court case that determined wagering tax payments made by a riverboat could not be deducted from the riverboat’s adjusted gross income. Finally, for taxable years beginning after December 31, 2014 the adjusted gross income tax rate was lowered from 3.4% to 3.3% thereby lowering the required withholding from qualifying jackpots from 3.4% to 3.3%. The Legislation enacted in 2017 changed the phase out of the state income tax add back for wagering taxes deducted on a taxpayer’s federal income tax return to an 8-year phase out.

 

 
 

 

The Indiana Gaming Commission is authorized to conduct investigations into gambling games, the maintenance of equipment, and violations of the Indiana Act as it deems necessary. The Indiana Gaming Commission may subject a Riverboat Licensee, an Operating Agent or a Racino licensee to fines, suspension or revocation of its license or Operating Contract for any conduct that violates the Indiana Act, rules promulgated thereunder or that constitutes a fraudulent act.

 

The Riverboat Licensee, Operating Agent and Racino licensees must carry insurance in types and amounts as required by the Indiana Gaming Commission. By rule promulgated by the Indiana Gaming Commission, neither a Riverboat Licensee, Operating Agent nor a Racino licensee may enter into or perform any contract or transaction in which it transfers or receives consideration that is not commercially reasonable or that does not reflect the fair market value of goods and services rendered or received. All contracts are subject to disapproval by the Indiana Gaming Commission and contracts should reflect the potential for disapproval.

 

The Indiana Act places special emphasis on minority and women business enterprise participation in the riverboat industry. The Indiana Gaming Commission recently hired consultants who performed a Statistical Analysis of the Utilization of minority and women business enterprises by Riverboat Licensees and the Operating Agents. Based on the results of that Statistical Analysis Riverboat Licensees, Operating Agents and Racino licensees must establish goals of expending ten and nine-tenths percent of the total dollars spent on construction expenditures with women business enterprises. The Indiana Gaming Commission encourages the purchase of goods and services in the following categories from minority and women business enterprises based on the capacity measurement determined by the Statistical Analysis: (i) Twenty-three and two-tenths percent with minority-owned construction firms; (ii) four and two-tenths percent with minority-owned procurement firms; (iii) two and five-tenths percent with women-owned procurement firms; (iv) eleven and two-tenths percent with minority-owned professional services firms; (v) seven and eight-tenths percent with women-owned professional services firms; (vi) two and nine-tenths percent of other expenditures with minority-owned firms; and (vii) one and eight-tenths percent with other women-owned firms. Riverboat Licensees, Operating Agents and Racino licensees may be subject to a disciplinary action for failure to meet the minority and women business enterprise expenditure goals.

 

By rule promulgated by the Indiana Gaming Commission, a Riverboat Licensee or affiliate may not enter into a debt transaction in excess of $1 million without the prior approval of the Indiana Gaming Commission. A debt transaction is any transaction that will result in the encumbrance of assets. Unless waived, approval of debt transactions requires consideration by the Indiana Gaming Commission at two business meetings. The Indiana Gaming Commission, by resolution, has authorized the Executive Director, subject to subsequent approval by the Indiana Gaming Commission, to approve debt transactions after a review of the documents and consultation with the Chair and the Indiana Gaming Commission’s outside financial analyst.

 

A rule promulgated by the Indiana Gaming Commission requires the reporting of currency transactions to the Indiana Gaming Commission after the transactions are reported to the federal government. Indiana rules also require that Riverboat Licensees track and maintain logs of transactions that exceed $3,000. The Indiana Gaming Commission has promulgated a rule that prohibits distributions, excluding distributions for the payment of taxes, by a Riverboat Licensee to its partners, shareholders, itself or any affiliated entity if the distribution would impair the financial viability of the riverboat gaming operation. The Indiana Gaming Commission has also promulgated a rule mandating Riverboat Licensees to maintain a cash reserve to protect patrons against defaults in gaming debts. The cash reserve is to be equal to a Riverboat Licensee’s average payout for a three-day period based on the riverboat’s performance the prior calendar quarter. The cash reserve can consist of cash on hand, cash maintained in Indiana bank accounts and cash equivalents not otherwise committed or obligated.

 

In January 2011, the Indiana Gaming Commission extended an Emergency Rule originally promulgated based on two Supreme Court decisions clearly establishing the Indiana Gaming Commission’s authority over Local Development Agreements between Riverboat, Contracting Agent and Racino licensees and the local community in which each is located. The Emergency Rule requires recipients of local development payments to follow specific guidelines to promote openness and transparency in the receipt, dissemination and use of the payments. SB 325, which has passed the Senate and has been sent to the House for its consideration, tracts the language of the Emergency Rule.

 

The Indiana Act prohibits contributions to a candidate for a state legislative or local office or to a candidate’s committee or to a regular party committee by:

 

 

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a person who owns at least one percent of a Riverboat Licensee, Operating Agent or Racino licensee;

 

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a person who is an officer of a Riverboat Licensee, Operating Agent or Racino Licensee;

 

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a person who is an officer of a person that owns at least one percent of a Riverboat Licensee, Operating Agent or Racino Licensee; or

 

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a person who is a political action committee of a Riverboat Licensee, Operating Agent, or Racino Licensee.

 

The prohibition against political contributions extends for three years following a change in the circumstances that resulted in the prohibition.

 

 
 

 

Individuals employed on a riverboat and in certain positions must hold an occupational license issued by the Indiana Gaming Commission. Suppliers of gaming equipment and gaming or revenue tracking services must hold a supplier’s license issued by the Indiana Gaming Commission. By rule promulgated by the Indiana Gaming Commission, Riverboat Licensees, Operating Agents and Racino Licensees who employ non-licensed individuals in positions requiring licensure or who purchase supplies from a non-licensed entity may be subject to a disciplinary action.

 

As earlier mentioned, in 2018 Boyd acquired Belterra Resort Indiana, LLC, and three other gambling properties, from Penn as a part of Penn’s acquisition of Pinnacle Entertainment, Inc. Boyd’s financing for the acquisition of the four properties and for other corporate activities was approved by the Indiana Gaming Commission in Order 2018-60; the Order approving the acquisition of the Belterra Resort Indiana, LLC is 2018-121. The acquisition of Belterra Resort Indiana, LLC maximized the number of riverboat casinos Boyd may own in Indiana as a result of Indiana’s two license limitation for a single licensee of riverboat casinos. The acquisition also triggered a one-time $2,000,000.00 fee for the second license which was paid by Boyd as a part of the timing of the Indiana Gaming Commission’s approval.

 

2018 also saw the opening of a second Indian casino located in the South Bend, Indiana area. The casino opened with Class 2 Gaming.

 

Louisiana

 

In the State of Louisiana, we, through our wholly owned subsidiaries, own and operate five gaming properties: Treasure Chest Casino in Kenner, Delta Downs Racetrack, Casino & Hotel in Vinton, Sam's Town Hotel and Casino in Shreveport, Evangeline Downs Racetrack and Casino in Opelousas and the Amelia Belle Casino in Amelia. Through Evangeline Downs, we also operate three off-track betting facilities, which contain Video Draw Poker Devices. The operation and management of these riverboat casinos, slot machine operations at certain racetracks, live racing facilities, off-track betting facilities and video poker operations in Louisiana are subject to extensive state regulation. The Louisiana Riverboat Economic Development and Gaming Control Act, or the Riverboat Act, became effective on July 19, 1991. The Louisiana Pari-Mutuel Live Racing Facility Economic Redevelopment and Gaming Control Act, or the Slots Act, became effective on July 9, 1997. The Video Draw Poker Act became effective July 30, 1991. The statutory scheme regulating live and off-track betting, or the Horse Racing Act, has been in existence since 1958.

 

The Riverboat Act states, among other things, that certain of the policies of the State of Louisiana are:

 

 

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to develop a historic riverboat industry that will assist in the growth of the tourism market;

 

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to license and supervise the riverboat industry from the period of construction through actual operation;

 

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to regulate the operators, manufacturers, suppliers and distributors of gaming devices; and

 

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to license all entities involved in the riverboat gaming industry.

 

The Slots Act states, among other things, that certain policies of the State of Louisiana are:

 

 

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to revitalize and rehabilitate pari-mutuel racing facilities through the allowance of slot machine operations at certain racetracks; and

 

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to regulate and license owners of such facilities.

The Horse Racing Act states, among other things, that certain policies of the State of Louisiana are:

 

 

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to encourage the development of horse racing with pari-mutuel wagering on a high plane;

 

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to encourage the development and ownership of race horses;

 

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to regulate the business of racing horses and to provide the orderly conduct of racing;

 

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to provide financial assistance to encourage the business of racing horses; and

 

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to provide a program for the regulation, ownership, possession, licensing, keeping, breeding and inoculation of horses.

 

Both the Riverboat Act and the Slots Act make it clear, however, that no holder of a license or permit possesses any vested interest in such license or permit and that the license or permit may be revoked at any time.

 

In a special session held in April 1996, the Louisiana legislature passed the Louisiana Gaming Control Act, or the Gaming Control Act, which created the Louisiana Gaming Control Board, or the Gaming Control Board. Pursuant to the Gaming Control Act, all of the regulatory authority, control and jurisdiction of licensing for both riverboats and slot facilities was transferred to the Gaming Control Board. The Gaming Control Board came into existence on May 1, 1996 and is made up of nine members and two ex-officio members (the Secretary of Revenue and Taxation and the superintendent of Louisiana State Police). It is domiciled in Baton Rouge and regulates riverboat gaming, the land-based casino in New Orleans, racetrack slot facilities and video poker. The Attorney General acts as legal counsel to the Gaming Control Board. Any material alteration in the method whereby riverboat gaming, slot facilities or video draw poker is regulated in the State of Louisiana could have an adverse effect on the operations of the Treasure Chest, Delta Downs, Sam's Town Shreveport, Evangeline Downs and Amelia Belle.

 

Riverboats

 

The Riverboat Act approved the conducting of gaming activities on a riverboat, in accordance with the Riverboat Act, on twelve separate waterways in Louisiana. The Riverboat Act allows the Gaming Control Board to issue up to fifteen licenses to operate riverboat gaming projects within the state, with no more than six licenses for operation from any one designated waterway. There are presently fifteen licenses issued and all are operating currently.

 

 
 

 

We and certain of our directors and officers and certain of our key personnel were found suitable to operate riverboat gaming in the State of Louisiana. New directors, officers and certain key employees associated with gaming must also be found suitable by the Gaming Control Board prior to working in gaming-related areas. These approvals may be immediately revoked for a number of causes as determined by the Gaming Control Board. The Gaming Control Board may deny any application for a certificate, permit or license for any cause found to be reasonable by the Gaming Control Board. The Gaming Control Board has the authority to require us to sever our relationships with any persons for any cause deemed reasonable by the Gaming Control Board or for the failure of that person to file necessary applications with the Gaming Control Board.

 

The three current Louisiana riverboat gaming licenses are in the process of renewals for a new five year term. Sam’s Town Shreveport was approved on January 16, 2020 for five years and will expire on January 15, 2025. Amelia Belle’s renewal application is scheduled for hearing on February 20, 2020 and having heard nothing to the contrary, should be approved on that day for a five year period. Its current license will expire on March 24, 2020. Treasure Chest’s renewal hearing is scheduled for March 23, 2020, should be approved on that date for a five year period. Its current license will expire on May 18, 2020.

 

Annual fees are currently charged to each riverboat project as follows:

 

 

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$50,000 per year for the first year and $100,000 for each year thereafter; and

 

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21.5% of net gaming proceeds.

 

Additionally, each local government may charge a boarding fee or admissions tax. Treasure Chest pays the City of Kenner a fee of ($2.50 per passenger boarding the vessel multiplied by 1.2). Sam's Town Shreveport pays admission taxes of up to 5.5% of adjusted gross receipts to various local governmental bodies. Amelia Belle pays St. Mary Parish $15 million per year (subject to adjustment) as admission tax. Any increase in these fees or taxes could have a material and detrimental effect on the operations of Treasure Chest, Sam's Town and Amelia Belle.

 

Slot Facilities

 

The Slots Act allows for four separate "eligible facilities" to operate slot machines at live horse racing pari-mutuel facilities (one each in Calcasieu Parish, St. Landry Parish, Bossier Parish and Orleans Parish). Each facility, with the exception of Orleans Parish, may, upon proper licensure, operate slot machines in a designated gaming space of up to 15,000 square feet.

 

Gaming licenses and approvals of slot operations are issued by the Gaming Control Board, and are subject to revocation for any cause deemed reasonable by the Gaming Control Board. Our operation of slot machines at Delta Downs and Evangeline Downs is subject to strict regulation by the Gaming Control Board and the Louisiana State Police. Extensive regulations concerning accounting, internal controls, underage patrons and other aspects of slot machine operations have been promulgated by the Gaming Control Board. Failure to adhere to these rules and regulations can result in substantial fines and the suspension or revocation of the license to conduct slot machine operations. Any failure to comply with the Louisiana Gaming Control Board's rules or regulations in the future could ultimately result in the revocation of our license to operate slot machines at Delta Downs and Evangeline Downs.

 

Annual Fees and taxes currently charged Delta Downs and Old Evangeline Downs under the Slots Acts are as follows:

 

 

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15% of the annual net slot machine proceeds are dedicated to supplement purses of the live horse race meets held at the facility;

 

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3% of the annual net slot machine proceeds dedicated to horse breeders associations;

 

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18.5% taxable net slot machine proceeds are paid to the state;

 

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For Delta Downs, an admission tax of $0.25 per person attending live racing and off-track betting facilities only on those days when there are scheduled live races at its racetrack (currently Thursdays through Sundays) from the hours of 6:00 p.m. until 12:00 a.m. and during those periods when it is not conducting live racing (i.e., between race meetings) only on Thursdays through Mondays from the hours of 12:00 p.m. until 12:00 a.m.; and

 

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For Evangeline Downs, an admission tax of $0.25 per person attending live racing and off-track betting facilities during those periods when it is conducting race meetings from one hour before post time until one hour after the conclusion of racing; during periods when it is not conducting race meetings, on all persons entering on Thursday through Monday from 12 p.m. until 12 a.m. each day.

 

Gaming Control Board

 

At any time, the Gaming Control Board may investigate and require the finding of suitability of any stockholder, beneficial stockholder, officer or director of Boyd Gaming or of any of its subsidiaries. The Gaming Control Board requires all holders of more than a 5% interest in the license holder to submit to suitability requirements. Additionally, if a shareholder who must be found suitable is a corporate or partnership entity, then the shareholders or partners of the entity must also submit to investigation. The sale or transfer of more than a 5% interest in any riverboat or slot project is subject to Gaming Control Board approval.

 

 
 

 

Pursuant to the regulations promulgated by the Gaming Control Board, all licensees are required to inform the Gaming Control Board of all debt, credit, financing and loan transactions, including the identity of debt holders. Our subsidiaries, Treasure Chest Casino, L.L.C., Boyd Racing, L.L.C., Red River Entertainment of Shreveport, L.L.C. (Sam's Town Shreveport), Old Evangeline Downs, LLC and Belle of Orleans, LLC (Amelia Belle) are licensees and are subject to these regulations. In addition, the Gaming Control Board, in its sole discretion, may require the holders of such debt securities to file applications and obtain suitability certificates from the Gaming Control Board. Although the Riverboat Act and the Slots Act do not specifically require debt holders to be licensed or to be found suitable, the Gaming Control Board retains the discretion to investigate and require that any holders of debt securities be found suitable under the Riverboat Act or the Slots Act. Additionally, if the Gaming Control Board finds that any holder exercises a material influence over the gaming operations, a suitability certificate will be required. If the Gaming Control Board determines that a person is unsuitable to own such a security or to hold such an indebtedness, the Gaming Control Board may propose any action which it determines proper and necessary to protect the public interest, including the suspension or revocation of the license. The Gaming Control Board may also, under the penalty of revocation of license, issue a condition of disqualification naming the person(s) and declaring that such person(s) may not:

 

 

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receive dividends or interest in debt or securities;

 

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exercise directly or through a nominee a right conferred by the securities or indebtedness; receive any remuneration from the licensee;

 

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receive any economic benefit from the licensee; or

 

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continue in an ownership or economic interest in a licensee or remain as a manager, director or partner of a licensee.

 

Any violation of the Riverboat Act, the Slots Act or the rules promulgated by the Gaming Control Board could result in substantial fines, penalties (including a revocation of the license) and criminal actions. Additionally, all licenses and permits issued by the Gaming Control Board are revocable privileges and may be revoked at any time by the Gaming Control Board.

 

Live Horse Racing

 

Pari-mutuel betting and the conducting of live horse race meets in Louisiana are strictly regulated by the Louisiana State Racing Commission, which we refer to as the Racing Commission. The Racing Commission is comprised of thirteen members and is domiciled in New Orleans, Louisiana. In order to be approved to conduct a live race meet and to operate pari-mutuel wagering (including off-track betting), an applicant must show, among other things:

 

 

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racing experience;

 

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financial qualifications;

 

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moral and financial qualifications of applicant and applicant's partners, officers and officials;

 

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the expected effect on the breeding and horse industry;

 

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the expected effect on the State's economy; and

 

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the hope of financial success.

 

In May 2001, a subsidiary of Boyd Gaming applied for and received approval from the Racing Commission to buy Delta Downs. Approval was also granted to conduct live race meets and to operate pari-mutuel wagering at the Delta Downs facility and to conduct off-track wagering at Delta Downs. The term of each of these licenses is ten years and they renew annually.

 

In April 2002, Peninsula Gaming (now a subsidiary of Boyd Gaming) applied for and received approval from the Racing Commission to buy Evangeline Downs. Approval was also granted to conduct live race meets and to operate pari-mutuel wagering at the Evangeline Downs facility and to conduct off-track wagering at Evangeline Downs and other locations. The term of each of these licenses is ten years and they renew annually.

 

Any alteration in the regulation of riverboat casinos, slot machine operations at certain racetracks, or live racing facilities could have a material adverse effect on the operations of Treasure Chest, Delta Downs, Sam's Town Shreveport, Amelia Belle Casino or Evangeline Downs.

 

Mississippi

 

The ownership and operation of casino gaming facilities in the State of Mississippi, such as those at Sam's Town Tunica and IP Biloxi, are subject to extensive state and local regulation, but primarily the licensing and regulatory control of the Mississippi Gaming Commission, or the Mississippi Commission.

 

The Mississippi Gaming Control Act, or the Mississippi Act, is similar to the Nevada Gaming Control Act. The Mississippi Commission has adopted regulations that are also similar in many respects to the Nevada gaming regulations.

 

 
 

 

The laws, regulations and supervisory procedures of the Mississippi Commission are based upon declarations of public policy that are concerned with, among other things:

 

 

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the prevention of unsavory or unsuitable persons from having a direct or indirect involvement with gaming at any time or in any capacity;

 

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the establishment and maintenance of responsible accounting practices and procedures;

 

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the maintenance of effective controls over the financial practices of licensees, including the establishment of minimum procedures for internal fiscal affairs and the safeguarding of assets and revenues, providing for reliable record keeping and requiring the filing of periodic reports with the Mississippi Commission;

 

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the prevention of cheating and fraudulent practices;

 

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providing a source of state and local revenues through taxation and licensing fees; and

 

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ensuring that gaming licensees, to the extent practicable, employ Mississippi residents.

 

The regulations are subject to amendment and interpretation by the Mississippi Commission. We believe that our compliance with the licensing procedures and regulatory requirements of the Mississippi Commission will not affect the marketability of our securities. Changes in Mississippi laws or regulations may limit or otherwise materially affect the types of gaming that may be conducted and such changes, if enacted, could have an adverse effect on us and our business, financial condition and results of operations.

 

The Mississippi Act provides for legalized gaming in each of the fourteen counties that border the Gulf Coast or the Mississippi River, but only if the voters in the county have not voted to prohibit gaming in that county. Currently, gaming is permissible in nine of the fourteen eligible counties in the state and gaming operations have commenced in seven counties. Traditionally, Mississippi law required gaming vessels to be located on the Mississippi River or on navigable waters in eligible counties along the Mississippi River, or in the waters lying south of the counties along the Mississippi Gulf Coast. However, the Mississippi Legislature amended the Mississippi Act to permit licensees in the three counties along the Gulf Coast to establish casino structures that are located in whole or part on shore and land-based casino operations provided the land-based gaming areas do not extend inland more than 800 feet beyond the nineteen-year mean high water line, except in Harrison County where the 800-foot limit can be extended as far inland as the greater of 800 feet beyond the 19 year mean high water line or the southern boundary of Highway 90. Due to another change in the interpretation of the Mississippi Act, the Commission has also permitted licensees in approved Mississippi River counties to conduct gaming operations on permanent structures, provided that the majority of the gaming floor in any such structure is located on the river side of the "bank full" line of the Mississippi River.

 

Our Sam's Town Tunica casino is located on barges situated in a specially constructed basin several hundred feet inland from the Mississippi River. The Mississippi Attorney General issued an opinion in July 1993 addressing legal locations for gaming vessels under the Mississippi Act and the Mississippi Commission later approved the location of the casino barges on the Sam's Town Tunica site as legal under the opinion of the Mississippi Attorney General. We believe that Sam's Town Tunica is in compliance with the Mississippi Act and the Mississippi Attorney General's 1993 opinion regarding legal gaming sites. However, no assurance can be given that a court ultimately would conclude that our casino barges at Sam's Town Tunica are located on a site that is legal within the meaning of Mississippi law. If the basin in which our Sam's Town Tunica casino barges presently are located was not deemed a legal location within the meaning of Mississippi law, such a decision would have a significant adverse effect on us and our business, financial condition and results of operations. Our IP Biloxi casino is located on permanent structures elevated above the Back Bay of Biloxi.

 

The Mississippi Act permits unlimited stakes gaming on a 24-hour basis and does not restrict the number of gaming positions or percentage of space which may be utilized for gaming. The Mississippi Act permits substantially all traditional casino games and gaming devices and race books and sports pools. While mobile sports and race book wagering is permitted, such wagers may be made only while the patron is located on the property of a licensed gaming establishment.

 

We and any subsidiary of ours that operates a casino in Mississippi (each a “Gaming Subsidiary” and together, the “Gaming Subsidiaries”) are subject to the licensing and regulatory control of the Mississippi Commission. We are registered under the Mississippi Act as a publicly traded corporation, or a Registered Corporation, of Boyd Tunica, Inc., the owner and operator of Sam's Town Tunica, a licensee of the Mississippi Commission, and of Boyd Biloxi, LLC, the owner and operator of IP Biloxi. As a Registered Corporation, we are required periodically to submit detailed financial and operating reports to the Mississippi Commission and furnish any other information the Mississippi Commission may require. If we are unable to continue to satisfy the registration requirements of the Mississippi Act, we and any Gaming Subsidiary cannot own or operate gaming facilities in Mississippi. No person may become a stockholder of or receive any percentage of profits from a licensed subsidiary of a Registered Corporation without first obtaining licenses and approvals from the Mississippi Commission. We have obtained such approvals in connection with the licensing of Sam's Town Tunica and IP Biloxi.

 

 
 

 

A Gaming Subsidiary must maintain a gaming license from the Mississippi Commission to operate a casino in Mississippi. Such licenses are issued by the Mississippi Commission subject to certain conditions, including continued compliance with all applicable state laws and regulations. There are no limitations on the number of gaming licenses that may be issued in Mississippi. Gaming licenses require the payment of periodic fees and taxes, are not transferable, are issued for a three-year period and must be renewed periodically thereafter. Sam's Town Tunica's current gaming license expires on December 3, 2022, and IP Biloxi’s gaming license expires on October 3, 2020.

 

Certain of our officers and employees and the officers, directors and certain key employees of Sam's Town Tunica and IP Biloxi must be found suitable or approved by the Mississippi Commission. We believe that we have obtained, applied for or are in the process of applying for all necessary findings of suitability with respect to Boyd Gaming, Sam's Town Tunica and IP Biloxi, although the Mississippi Commission, in its discretion, may require additional persons to file applications for findings of suitability. In addition, any person having a material relationship or involvement with us may be required to be found suitable, in which case those persons must pay the costs and fees associated with such investigation. The Mississippi Commission may deny an application for a finding of suitability for any cause that it deems reasonable. Changes in certain licensed positions must be reported to the Mississippi Commission. In addition to its authority to deny an application for a finding of suitability, the Mississippi Commission has jurisdiction to disapprove a change in any corporate position or title and such changes must be reported to the Mississippi Commission. The Mississippi Commission has the power to require us and our Gaming Subsidiaries to suspend or dismiss officers, directors and other key employees or sever relationships with other persons who refuse to file appropriate applications or whom the authorities find unsuitable to act in such capacities. Determination of suitability or questions pertaining to licensing are not subject to judicial review in Mississippi.

 

At any time, the Mississippi Commission has the power to investigate and require the finding of suitability of any record or beneficial stockholder of Boyd Gaming. The Mississippi Act requires any person who acquires more than five percent of any class of voting securities of a Registered Corporation, as reported to the Securities and Exchange Commission, or SEC, to report the acquisition to the Mississippi Commission, and such person may be required to be found suitable. Also, any person who becomes a beneficial owner of more than ten percent of any class of voting securities of a Registered Corporation, as reported to the SEC, must apply for a finding of suitability by the Mississippi Commission and must pay the costs and fees that the Mississippi Commission incurs in conducting the investigation. If a stockholder who must be found suitable is a corporation, partnership or trust, it must submit detailed business and financial information including a list of beneficial owners.

 

The Mississippi Commission generally has exercised its discretion to require a finding of suitability of any beneficial owner of five percent or more of any class of voting securities of a Registered Corporation. However, under certain circumstances, an “institutional investor,” as defined in the Mississippi Commission's regulations, which acquires more than ten percent, but not more than twenty-five percent, of the voting securities of a Registered Corporation may apply to the Mississippi Commission for a waiver of such finding of suitability if such institutional investor holds the voting securities for investment purposes only. An institutional investor shall not be deemed to hold voting securities for investment purposes unless the voting securities were acquired and are held in the ordinary course of business as an institutional investor and not for the purpose of causing, directly or indirectly, the election of a majority of the members of the board of directors of the Registered Corporation, any change in the corporate charter, bylaws, management, policies or operations, or any of its gaming affiliates, or any other action which the Mississippi Commission finds to be inconsistent with holding the voting securities for investment purposes only. Activities which are not deemed to be inconsistent with holding voting securities for investment purposes include:

 

 

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voting on all matters voted on by stockholders;

 

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making financial and other inquiries of management of the type normally made by securities analysts for informational purposes and not to cause a change in management, policies or operations; and

 

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such other activities as the Mississippi Commission may determine to be consistent with such investment intent.

 

Any person who fails or refuses to apply for a finding of suitability or a license within thirty days after being ordered to do so by the Mississippi Commission may be found unsuitable. The same restrictions apply to a record owner if the record owner, after request, fails to identify the beneficial owner. Any person found unsuitable and who holds, directly or indirectly, any beneficial ownership of our securities beyond such time as the Mississippi Commission prescribes, may be guilty of a misdemeanor. We may be subject to disciplinary action if, after receiving notice that a person is unsuitable to be a stockholder or to have any other relationship with us or any Gaming Subsidiary owned by us, the company involved:

 

 

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pays the unsuitable person any dividend or other distribution upon such person's voting securities;

 

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recognizes the exercise, directly or indirectly, of any voting rights conferred by securities held by the unsuitable person;

 

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pays the unsuitable person any remuneration in any form for services rendered or otherwise, except in certain limited and specific circumstances; or

 

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fails to pursue all lawful efforts to require the unsuitable person to divest himself of the securities, including, if necessary, the immediate purchase of the securities for cash at a fair market value.

 

 
 

 

We may be required to disclose to the Mississippi Commission, upon request, the identities of the holders of our debt or other securities. In addition, under the Mississippi Act, the Mississippi Commission, in its discretion, may require the holder of any debt security of a Registered Corporation to file an application, be investigated and be found suitable to own the debt security if the Mississippi Commission has reason to believe that the ownership of the debt security by the holder would be inconsistent with the declared policies of the State of Mississippi.

 

Although the Mississippi Commission generally does not require the individual holders of obligations such as notes to be investigated and found suitable, the Mississippi Commission retains the discretion to do so for any reason, including but not limited to, a default, or where the holder of the debt instruments exercises a material influence over the gaming operations of the entity in question. Any holder of debt securities required to apply for a finding of suitability must pay all investigative fees and costs of the Mississippi Commission in connection with such an investigation.

 

If the Mississippi Commission determines that a person is unsuitable to own a debt security, then the Registered Corporation maybe sanctioned, including the loss of its approvals, if without the prior approval of the Mississippi Commission, it:

 

 

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pays to the unsuitable person any dividend, interest, or any distribution whatsoever;

 

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recognizes any voting right by the unsuitable person in connection with those securities;

 

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pays the unsuitable person remuneration in any form; or

 

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makes any payment to the unsuitable person by way of principal, redemption, conversion, exchange, liquidation, or similar transaction.

 

Each Gaming Subsidiary must maintain in Mississippi a current ledger with respect to the ownership of its equity securities, and we must maintain in Mississippi a current list of our stockholders which must reflect the record ownership of each outstanding share of any class of our equity securities. The ledger and stockholder lists must be available for inspection by the Mississippi Commission at any time. If any securities are held in trust by an agent or by a nominee, the record holder may be required to disclose the identity of the beneficial owner to the Mississippi Commission. A failure to make such disclosure may be grounds for finding the record holder unsuitable. We must also render maximum assistance in determining the identity of the beneficial owner.

 

The Mississippi Act requires that the certificates representing securities of a Registered Corporation bear a legend indicating that the securities are subject to the Mississippi Act and the regulations of the Mississippi Commission. We have received from the Mississippi Commission a waiver of this legend requirement. The Mississippi Commission has the power to impose additional restrictions on the holders of our securities at any time.

 

Substantially all material loans, leases, sales of securities and similar financing transactions by a Registered Corporation or a Gaming Subsidiary must be reported to or approved by the Mississippi Commission. A Gaming Subsidiary may not make a public offering of its securities but may pledge or mortgage its casino facilities. A Registered Corporation may not make a public offering of its securities without the prior approval of the Mississippi Commission if any part of the proceeds of the offering is to be used to finance the construction, acquisition or operation of gaming facilities in Mississippi or to retire or extend obligations incurred for those purposes. Such approval, if given, does not constitute a recommendation or approval by the Mississippi Commission of the investment merits of the securities subject to the offering. We have received a waiver of the prior approval requirement with respect to public offerings and private placements of securities, subject to certain conditions, including the ability of the Mississippi Commission to issue a stop order with respect to any such offering if the staff determines it would be necessary to do so.

 

Under the regulations of the Mississippi Commission, a Gaming Subsidiary may not guarantee a security issued by an affiliated company pursuant to a public offering, or pledge its assets to secure payment or performance of the obligations evidenced by the security issued by the affiliated company, without the prior approval of the Mississippi Commission. A pledge of the stock of a Gaming Subsidiary and the foreclosure of such a pledge are ineffective without the prior approval of the Mississippi Commission. Moreover, restrictions on the transfer of an equity security issued by a Gaming Subsidiary or its holding companies and agreements not to encumber such securities are ineffective without the prior approval of the Mississippi Commission. We have obtained approvals from the Mississippi Commission for such guarantees, pledges and restrictions in connection with offerings of securities, subject to certain restrictions, but we must obtain separate prior approvals from the Mississippi Commission for pledges and stock restrictions in connection with certain financing transactions. Moreover, the regulations of the Mississippi Commission require us to file a Loan to Licensees and Lease Transaction Report with the Mississippi Commission within thirty (30) days following certain financing transactions and the offering of certain debt securities. If the Mississippi Commission were to deem it appropriate, the Mississippi Commission could order any such transaction rescinded.

 

 
 

 

Changes in control of us through merger, consolidation, acquisition of assets, management or consulting agreements or any act or conduct by a person by which he or she obtains control, may not occur without the prior approval of the Mississippi Commission. Entities seeking to acquire control of a Registered Corporation must satisfy the Mississippi Commission in a variety of stringent standards prior to assuming control of the Registered Corporation. The Mississippi Commission also may require controlling stockholders, officers, directors, and other persons having a material relationship or involvement with the entity proposing to acquire control to be investigated and found suitable as part of the approval process relating to the transaction.

 

The Mississippi legislature has declared that some corporate acquisitions opposed by management, repurchases of voting securities and other corporate defense tactics that affect corporate gaming licensees in Mississippi and Registered Corporations may be injurious to stable and productive corporate gaming. The Mississippi Commission has established a regulatory scheme to ameliorate the potentially adverse effects of these business practices upon Mississippi's gaming industry and further Mississippi's policy to:

 

 

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assure the financial stability of corporate gaming operators and their affiliates;

 

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preserve the beneficial aspects of conducting business in the corporate form; and

 

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promote a neutral environment for the orderly governance of corporate affairs.

 

Approvals are, in certain circumstances, required from the Mississippi Commission before a Registered Corporation may make exceptional repurchases of voting securities (such as repurchases which treat holders differently) in excess of the current market price and before a corporate acquisition opposed by management can be consummated. Mississippi's gaming regulations also require prior approval by the Mississippi Commission of a plan of recapitalization proposed by the Registered Corporation's board of directors in response to a tender offer made directly to the Registered Corporation's shareholders for the purpose of acquiring control of the Registered Corporation.

 

Neither we nor any Gaming Subsidiary may engage in gaming activities in Mississippi while also conducting gaming operations outside of Mississippi without approval of, or a waiver of such approval by, the Mississippi Commission. The Mississippi Commission may require determinations that, among other things, there are means for the Mississippi Commission to have access to information concerning the out-of-state gaming operations of us and our affiliates. We previously have obtained, or otherwise qualified for, a waiver of foreign gaming approval from the Mississippi Commission for operations in other jurisdictions in which we conduct gaming operations and will be required to obtain approval or a waiver of such approval from the Mississippi Commission prior to engaging in any additional future gaming operations outside of Mississippi; provided, however, that upon notice to the Mississippi Commission within thirty days of conducting such activity, such a waiver shall be deemed automatically granted under the Mississippi Commission's regulations in connection with foreign gaming activities (except for internet gaming activities) conducted (i) within the fifty (50) states or any territory of the United States, (ii) on board any cruise ship embarking from a port located therein, and (iii) in any other jurisdiction in which a casino operator's license or its equivalent is not required in order to legally conduct gaming operations.

 

If the Mississippi Commission were to determine that we or our Gaming Subsidiaries had violated a gaming law or regulation, the Mississippi Commission could limit, condition, suspend or revoke our approvals and the license of such Gaming Subsidiary, subject to compliance with certain statutory and regulatory procedures. In addition, we, the Gaming Subsidiary and the persons involved could be subject to substantial fines for each separate violation. Because of such a violation, the Mississippi Commission could attempt to appoint a supervisor to operate the casino facilities. Limitation, conditioning or suspension of any gaming license or approval or the appointment of a supervisor could (and revocation of any gaming license or approval would) materially adversely affect us and our business, financial condition and results of operations.

 

License fees and taxes, computed in various ways depending on the type of gaming or activity involved, are payable to the State of Mississippi, to the Mississippi Commission and to the counties and cities in which a Gaming Subsidiary's operations are conducted. Depending upon the particular fee or tax involved, these fees and taxes are payable either monthly, quarterly or annually. Generally, gaming fees and taxes are based upon the following:

 

 

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a percentage of the gross gaming revenues received by the casino operation;

 

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the number of gaming devices operated by the casino; or

 

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the number of table games operated by the casino.

 

The gaming operator license fees payable to the State of Mississippi include an annual license fee of $5,000, plus a monthly licensed fee based upon “gaming receipts” (generally defined as gross receipts less payouts to customers as winnings), and the current maximum tax rate imposed by the State of Mississippi is eight percent of all gaming receipts in excess of $134,000 per month. The foregoing license fees we pay are allowed as a credit against our Mississippi income tax liability for the year paid. Additionally, there is an annual license fee payable by us to the state equal to $81,200 plus $100 for each game in excess of thirty-five games on the casino floor. Moreover, the Mississippi Commission assesses each of Sam’s Town Tunica and IP Biloxi with an annual investigative fee of up to $325,000, which is based on the number of gaming devices on the property. The gross revenues fee imposed by Tunica County in which Sam's Town Tunica is located and the City of Biloxi in which IP Biloxi is located equals approximately four percent of the gaming receipts.

 

 
 

 

The Mississippi Commission's regulations require as a condition of licensure that a project include a 500-car or larger parking facility in close proximity to the casino complex, a 300-room or larger hotel of at least a three diamond rating as defined by an acceptable travel publication as determined by the Mississippi Commission, a restaurant capable of seating at least 200 people and a fine dining facility capable of seating at least 75 people, a casino floor of at least 40,000 square feet and have (or support) an amenity that will be unique to the market, encourage economic development and promote tourism. Unless waived, such regulations apply to new casinos or acquisitions of closed casinos. Sam's Town Tunica and IP Biloxi were both grandfathered under a prior version of the regulation and thus are exempt from the current regulation’s requirements.

 

The sale of alcoholic beverages by Sam's Town Tunica and IP Biloxi is subject to licensing, control and regulation by both the local jurisdiction and the Alcoholic Beverage Control Division, or ABC, of the Mississippi Department of Revenue. Each is located in an area designated as special resort area, which allows the property to serve alcoholic beverages on a 24-hour basis. If the ABC laws are violated, the ABC has the full power to limit, condition, suspend or revoke any license for the serving of alcoholic beverages or to place such licensee on probation with or without conditions. Any such disciplinary action could (and revocation would) have a significant adverse effect upon us and our business, financial condition and results of operations. Certain of our officers and managers at Sam's Town Tunica and IP Biloxi must be investigated by the ABC in connection with our liquor permits and changes in certain key positions must be approved by the ABC.

 

In 2018, the Mississippi Legislature enacted legislation establishing a statewide lottery. The sale of lottery tickets is subject to the licensing, control and regulation of the Mississippi Lottery Corporation. Sam’s Town Tunica and IP Biloxi have applied for retailer permits for the sale of lottery tickets at their casino properties.

 

Missouri

 

Conducting gambling activities and operating a riverboat gaming facility in Missouri are subject to extensive regulation under Missouri’s Riverboat Gambling Act and the rules and regulations promulgated thereunder. The Missouri Gaming Commission (the “Commission”) was created by the Missouri Riverboat Gambling Act and is charged with regulatory authority over riverboat gaming operations in Missouri, including the issuance of gaming licenses to owners, operators, suppliers and certain affiliates of riverboat gaming facilities. In August 2018, the Commission issued Boyd Gaming Corporation a Class A riverboat gaming license in connection with its proposed acquisition of Ameristar Casino Kansas City, LLC and Ameristar Casino St. Charles, LLC. In addition, the Commission approved the company’s petition for approval of transfer of interest and change in control to allow for the proposed acquisition to close in October 2018. This acquisition resulted in the company operating two casino properties in Missouri, one in Kansas City and one in St. Charles, through these acquired subsidiaries. Each of the acquired subsidiaries maintains a Class B riverboat gaming license issued by the Commission which allows for the operation of the casino properties.

 

In order to obtain a license to operate a riverboat gaming facility, the proposed operating business entity must complete a Riverboat Gaming Application form requesting a Class B License. In order to obtain a license to own and/or control a Class B Licensee as its ultimate holding company, a company must complete a Riverboat Gaming Application form requesting a Class A License. The Riverboat Gaming Application form is comprised of comprehensive questions regarding the nature and suitability of the applicant. Applicants who submit the Riverboat Gaming Application form requesting either a Class A or Class B License undergo an extensive background investigation by the Commission. In addition, each key person associated with the applicant (including directors, officers, managers and owners of a significant direct or indirect interest in the Class A or Class B License applicant) must complete a Key Person and Level 1 Application (Personal Disclosure Form 1) and undergo a substantial background investigation. Certain key business entities closely related to the applicant must undergo a similar application process and background check. An applicant for a Class A or Class B License will not receive or be allowed to retain a license if the applicant and its key persons, including key business entities, have not established and maintained good repute and moral character. No licensee shall either employ or contract with any person who has pled guilty to, or been convicted of, a felony, to perform any duties directly connected with the licensee’s privileges under a license granted by the Commission.

 

Each Class B License granted entitles a licensee to conduct gambling activities at a specific riverboat gaming operation. Each Class A License granted entitles the licensee to develop and operate a Class B licensee or, if authorized, multiple Class B licensees. The duration of both the Class A and Class B License initially runs for two one-year terms; thereafter, for four-year terms. In conjunction with the renewal of each license, the Commission requires the filing of a Riverboat Gaming Renewal Application form and renewal fees. In conjunction with each renewal, the Commission may conduct an additional investigation of the licensee with specific emphasis on new information provided in the Riverboat Gaming Renewal Application form. The Commission also possesses the right to periodically conduct a comprehensive investigation on any Class A, Class B, supplier or key person licensee since the date on which the last comprehensive investigation was conducted. The Commission also licenses the serving of alcoholic beverages on riverboats and related facilities operated by the Class A or Class B.

 

In determining whether to grant and allow the continued possession of a gaming license, the Commission considers the following factors, among others: (i) the integrity of the applicant; (ii) the types and variety of games the applicant may offer; (iii) the quality of the physical facility, together with improvements and equipment; (iv) the financial ability of the applicant to develop and operate the facility successfully; (v) the status of governmental actions required by the facility; (vi) the management ability of the applicant; (vii) compliance with applicable statutes, rules, charters and ordinances; (viii) the economic, ecological and social impact of the facility as well as the cost of public improvements; (ix) the extent of public support or opposition; (x) the plan adopted by the home dock city or county; and (xi) effects on competition.

 

A licensee is subject to the imposition of penalties, suspension or revocation of its license for any act that is injurious to the public health, safety, morals, good order and general welfare of the people of the State of Missouri, or that would discredit or tend to discredit the Missouri gaming industry or the State of Missouri, including without limitation: (i) failing to comply with or make provision for compliance with the legislation, the rules promulgated thereunder or any federal, state or local law or regulation; (ii) failing to comply with any rules, order or ruling of the Commission or its agents pertaining to gaming; (iii) receiving goods or services from a person or business entity who does not hold a supplier’s license but who is required to hold such license by the legislation or the rules; (iv) being suspended or ruled ineligible or having a license revoked or suspended in any state or gaming jurisdiction; (v) associating with, either socially or in business affairs, or employing persons of notorious or unsavory reputation or who have extensive police records, or who have failed to cooperate with any officially constituted investigatory or administrative body and would adversely affect public confidence and trust in gaming; (vi) employing in any Missouri gaming operation any person known to have been found guilty of cheating or using any improper device in connection with any gambling game; (vii) use of fraud, deception, misrepresentation or bribery in securing any license or permit issued pursuant to the legislation; (viii) obtaining any fee, charge or other compensation by fraud, deception or misrepresentation; and (ix) incompetence, misconduct, gross negligence, fraud, misrepresentation or dishonesty in the performance of the functions or duties regulated by the Missouri Riverboat Gambling Act.

 

 
 

 

Any transfer or issuance of ownership interests in a publicly held gaming licensee or its holding company that results in an entity or group of entities acting in concert owning, directly or indirectly, an aggregate ownership interest of 5% or more in the gaming licensee must be reported to the Commission within seven days. Further, any pledge or hypothecation of, or grant of a security interest in, 5% or more of the ownership interest in a publicly held gaming licensee or its holding company must be reported to the Commission within seven days. The Commission will impose certain licensing requirements upon a holder of an aggregate ownership interest of 5% or more in a publicly-traded Missouri Class A or Class B licensee, unless such holder applies for and obtains an institutional investor exemption in accordance with the Missouri gaming regulations. The Executive Director of the Commission may grant a waiver to an institutional investor that holds up to 10% of the outstanding equity of the Missouri licensee. The Commission itself may grant a waiver to an institutional investor that holds up to 20% of the outstanding equity of the Missouri licensee. No investor may increase holdings above 25% without triggering a change in control that requires prior approval by the Commission. The Commission may grant a petition to approve a change in control if the petitioner proves that (i) the transfer is in the best interest of the state of Missouri and would have no potential to affect suitability of the gaming operation; (ii) the transfer is not injurious to the public health, safety, morals, good order, or general welfare of the state; (iii) it would have no material negative competitive impact; and (iv) it would not potentially result in any significant negative changes in the financial condition of the licensee. In addition, any sale, transfer or lease of the Class B’s real estate (outside of the normal course of business) shall trigger a change in control that requires prior approval by the Commission. The petition to approve a change in control in such an instance will be considered by the Commission using the same criteria set forth above for an ownership interest change in control.

 

Every employee participating in a riverboat gaming operation must hold an occupational license. In addition, the Commission issues supplier’s licenses, which authorize the supplier licensee to sell or lease gaming equipment and supplies to any licensee involved in the operation of gaming activities. Class A and Class B licensees may not be licensed as suppliers.

 

Riverboat gaming activities may only be conducted on, or within 1,000 feet of the nearest edge of the main channel of, the Missouri River or Mississippi River. Minimum and maximum wagers on games are set by the licensee, and wagering may be conducted only with a cashless wagering system, whereby money is converted to tokens, electronic cards or chips that can only be used for wagering. No person under the age of 21 is permitted to wager, and wagers may only be taken from a person present on a licensed excursion gambling boat.

 

The Missouri Riverboat Gambling Act imposes a 21% wagering tax on adjusted gross receipts (generally defined as gross receipts less winnings paid to wagerers) from gambling games. The tax imposed is to be paid by the licensee to the Commission on the day after the day when the wagers were made. Of the proceeds of the wagering tax, 10% of such proceeds go to the local government where the home dock is located, and the remainder goes to the State of Missouri.

 

The Missouri Riverboat Gambling Act also requires that licensees pay a two dollar admission tax to the Commission for each person admitted to each two hour synthetic gaming excursion; no Missouri casinos actually offer excursions currently. One dollar of the admission fee goes to the State of Missouri, and one dollar goes to the home dock city in which the licensee operates. The licensee is required to maintain public books and records clearly showing amounts received from admission fees, the total amount of gross receipts and the total amount of adjusted gross receipts. In addition, all local income, earnings, use, property and sales taxes are applicable to licensees. From time to time, there have been several proposed bills pending before the Missouri General Assembly which, individually or in combination, if adopted, would (1) allow gaming credits to be used in food and beverage purchases, (2) adjust the amount of wagering tax imposed on adjusted gross receipts of licensees and/or (3) adjust the amount of admission tax paid by the licensee for each person admitted for a gaming cruise. Currently, there are two bills pending before the Missouri General Assembly for the expansion of gaming in the state. The Missouri sports betting bill would allow Class B gaming licensees and daily fantasy sports licensees to conduct sports wagering including on mobile devices so long as such devices are located within the state of Missouri. The Missouri VLT bill would allow the state lottery to operate video gaming terminals, similar to slot machines, at various bars, restaurants, veterans and fraternal organizations and convenience stores throughout the state. Each of these bills are in the early stages of the law making process. Consequently, it is unclear whether there will be effective support in the Missouri General Assembly to move the bills forward.

 

Iowa

 

Our Diamond Jo and Diamond Jo Worth operations are subject to Chapters 99D and 99F of the Iowa Code and the regulations promulgated under those Chapters, and the licensing and regulatory control of the Iowa Racing and Gaming Commission (“IRGC” or “Commission”). Our licenses held by Diamond Jo, LLC (“DJL”) and Diamond Jo Worth, LLC, (“DJW”) are subject to annual renewal and are further dependent upon successful annual license renewal of our respective “qualified sponsoring organizations,” Dubuque Racing Association, Ltd. (“DRA”) and Worth County Development Authority (“WCDA”).

 

The legislation permitting gambling in Iowa authorizes the granting of licenses to conduct gambling games to “qualified sponsoring organizations.” A “qualified sponsoring organization” is defined as a nonprofit corporation organized under Iowa law, whether or not exempt from federal taxation, or a person or association that can show to the satisfaction of the Commission that the person or association is eligible for exemption from federal income taxation under Sections 501(c)(3), (4), (5), (6), (7), (8), (10) or (19) of the Internal Revenue Code. Such nonprofit corporation may operate the excursion gambling boat or gambling structure itself, or it may enter into an agreement with another operator to operate the boat or structure on its behalf. An operator must be approved and licensed by the Commission.

 

Diamond Jo, LLC & Dubuque Racing Association, Ltd.

 

DRA, a nonprofit corporation originally organized for the purpose of operating a pari-mutuel greyhound racing facility in Dubuque, Iowa, first received an excursion gambling boat license in 1990 and has been licensed as the “qualified sponsoring organization” of the Diamond Jo Casino since March 18, 1993. DRA entered into an operating agreement (the “DRA Operating Agreement”) with Greater Dubuque Riverboat Entertainment Company, L.C., the previous owner and operator of the Diamond Jo Casino, authorizing Greater Dubuque Riverboat Entertainment Company, L.C. to operate excursion gambling boat gaming operations in Dubuque. The Commission approved the DRA Operating Agreement on March 18, 1993. Our licensed operator DJL assumed the rights and obligations of Greater Dubuque Riverboat Entertainment Company, L.C. under the DRA Operating Agreement.

 

 
 

 

During 2005, the DRA Operating Agreement was amended to provide for, among other things, the extension of the agreement through December 31, 2018. The Agreement also authorized the DRA to operate up to 1,500 gaming positions at Mystique, a greyhound racetrack that DRA operates under a separate license. On November 13, 2014, the Commission approved a request by DRA to conduct gambling games at a gambling structure instead of a racetrack enclosure effective January 1, 2015. This change was in response to a 2014 statutory amendment allowing DRA to maintain a license to conduct gambling games at Mystique without the requirement of scheduling performances of live dog races. DJL pays the DRA 4.5% of DJL’s adjusted gross receipts (the gross receipts less winnings paid to wagerers) from gaming operations of DJL. In 2017, the DRA and DJL executed an Amended and Restated Operating Agreement, effective January 1, 2019, that extends the term through December 31, 2030.

 

In 2007, DJL entered into an Amended and Restated Port of Dubuque Public Parking Facility Development Agreement with the City of Dubuque, Iowa (“the City”). Pursuant to that agreement, DJL agreed to and has now completed construction of a land-based casino of not less than one hundred forty thousand (140,000) square feet of floor space. DJL is obligated to pay the full property taxes on the casino development and valuation of the property is subject to a minimum assessment agreement. DJL further agreed to escrow funds for the City to construct a parking facility. The parking garage has been completed and DJL is obligated to pay the reasonable and necessary actual operating costs incurred by the City for the operation, security, repair and maintenance of that Public Parking Facility and to contribute $80 per parking space (adjusted by the Consumer Price Index) annually to a Sinking Fund from which certain of those expenses are withdrawn. As part of that agreement, the City agreed to make the parking garage available for public use 24 hours/day and 7 days/week subject to certain emergency situations. The parking garage was largely funded through tax increment financing over a 30-year period and the parking agreement between the City and DJL continues for the life of the Public Parking Facility. The development agreement was amended June 11, 2009 to provide parking privileges in the public parking facility for DJL’s customer valet parking and for certain management personnel. The amended agreement terminates June 18, 2029.

 

Diamond Jo Worth, LLC & Worth County Development Authority

 

The WCDA, a nonprofit corporation, was organized on July 14, 2003 for the purpose of serving as a “qualified sponsoring organization” for an excursion gambling boat licensed in Worth County, Iowa. Pursuant to an operating agreement with the WCDA (the “WCDA Operating Agreement”), DJW is entitled to own and operate a gambling facility in Worth County, Iowa. As the “qualified sponsoring organization” for DJW, WCDA receives 5.76% of DJW’s adjusted gross receipts from gaming operations. An Amendment to the WCDA Operating Agreement was entered into on October 7, 2014 and was approved by the Commission on November 13, 2014. This First Amendment to Amended and Restated Operator’s Agreement provides for a continuation of the operating agreement until March 31, 2025 with DJW’s right to renew for succeeding ten year periods thereafter subject to the following conditions:

 

●

Gaming is allowed in Worth County pursuant to Iowa Code Chapter 99F;

 

●

DJW has substantially complied with the WCDA Operating Agreement; and

 

●

DJW’s and WCDA’s gaming licenses are successfully renewed and/or remain in effect.

 

Under Iowa law, a license to conduct gaming may be issued in a county only if the county electorate has approved the gaming. The electorate of Dubuque County, Iowa, which includes the City of Dubuque, approved gaming on May 17, 1994, by referendum, with 80% of the electorate voting in favor of gaming conducted by DJL. The electorate of Worth County, Iowa, approved gaming on June 24, 2003, by referendum, including gaming conducted by DJW, with 75% of the electorate voting in favor. In 2011, the legislature amended the law to remove the requirement for referendums to be conducted every eight years if a proposition to operate gambling games is approved by a majority of the county electorate voting on the proposition in two successive elections. Because both Dubuque County and Worth County have had two successive referendums approving the proposition allowing for the operation of gambling games, no further referendums approving a proposition to operate gambling games are required for DJL and DJW.

 

Under Iowa law, the legal age for gaming is 21 years of age, and wagering on a “gambling game” is legal when conducted by a licensee on the gaming floor of an “excursion gambling boat” or a "gambling structure." An “excursion gambling boat” is an excursion boat or moored barge and a "gambling structure" is any man-made stationary structure that does not contain a race track and is approved by the Commission. A “gambling game” is any game of chance authorized by the Iowa Racing and Gaming Commission.

 

In July 1995, legislation was enacted requiring the Commission to cooperate with the gambler’s
self-exclusion program and to incorporate information regarding the program and its toll-free telephone number in printed materials distributed by the Commission. It also provided that, as a condition of licensing, the Commission could require licensees to have information on the program available in a conspicuous place.

 

Legislation enacted in May 2004, and subsequently amended in 2017, required licensees to establish a voluntarily exclusion program, whereby persons may voluntarily ban themselves from the gaming floor of all licensed facilities under Iowa Code Chapter 99F for an initial period of five years or life and that person can then make subsequent requests to be excluded from the gaming floor for five years or life. This process also requires the licensee to disseminate information regarding persons voluntarily excluded to all other licensees. The 2004 legislation also prohibited cash and credit devices in the wagering area or on the gaming floor and required that the CPA conducting the annual audit be selected by the board of supervisors of the licensee’s county and required that new operating agreements between a qualified sponsoring organization and an operator provide for a minimum distribution for charitable purposes to average at least three percent of the adjusted gross receipts for each license year.

 

A substantial amount of all resources and goods used in the operation of an excursion gambling boat must emanate from and be made in Iowa. Also, as a condition of granting a license, the licensee must make every effort to ensure a substantial number of staff and entertainers are Iowa residents and reserve a section for promotion and sale of arts, crafts, and gifts native to and made in Iowa.

 

Substantially all of DJL’s and DJW’s material transactions are subject to review and approval by the Commission. All contracts or business arrangements, verbal or written, with any related party or in which the term exceeds three years or the total value of the contract exceeds $100,000 in a calendar year are agreements that qualify for submission to and approval by the Commission subject to certain limited exceptions. The agreement must be submitted within 30 days of execution and approval must be obtained prior to implementation unless the agreement contains a written clause stating that the agreement is subject to Commission approval. Additionally, contracts negotiated between DJL or DJW and a related party must be accompanied by economic and qualitative justification.

 

 
 

 

We must submit detailed financial, operating and other reports to the Commission. We must file weekly gaming reports indicating adjusted gross receipts received from gambling games. Additionally, we and our qualified sponsoring organizations must file annual audited financial statements covering all financial activities related to our operations for each fiscal year. We must also keep detailed records regarding our equity structure and owners.

 

Iowa has a graduated wagering tax on excursion gambling boat and gambling structure gaming equal to 5% of the first one million dollars of adjusted gross receipts, 10% on the next two million dollars of adjusted gross receipts and 22% on adjusted gross receipts of more than three million dollars. In addition, Iowa excursion gambling boats and gambling structures share equally in costs of the Commission and related entities to administer gaming in Iowa.

 

Proposals to amend or supplement Iowa’s gaming statutes are frequently introduced in the Iowa state legislature. In addition, the state legislature sometimes considers proposals to amend or repeal Iowa law and regulations, which could effectively prohibit gaming in gambling structures and excursion gambling boats in the State of Iowa, limit the expansion of existing operations or otherwise affect our operations. Although we do not believe that a prohibition of gaming in Iowa is likely, we can give no assurance that changes in Iowa gaming laws will not occur or that the changes will not have a material adverse effect on our business. Similarly, there could be changes in laws governing prohibition of smoking at our facilities or other laws that would impact our business.

 

On May 13, 2019, Governor Kim Reynolds approved Senate File 617, thereby legalizing sports wagering and fantasy sports contests in the state of Iowa. Under the law, licensed facilities seeking an additional sports wagering license are required to complete a separate application procedure and pay an initial fee of $45,000. Successful applicants are further subject to annual renewal requirements regarding their sports wagering license, including a renewal fee of $10,000.

 

In a special meeting session held on July 30, 2019, the Commission approved the final set of regulatory rules intended to enact and govern the administration of authorized sports wagering and fantasy sports contests. Additionally, the Commission reviewed and approved several applications for sports wagering licenses, including those submitted by DJL and DJW. The Commission also approved both DJL and DJW’s request for contract approval with out of state vendor Betfair Interactive US Limited Liability Company/FanDuel. These contracts set forth the operations for Advanced Deposit Sports Wagering at both DJL and DJW.

 

If the Commission decides that a gaming law or regulation has been violated, the Commission has the power to assess fines, revoke, or suspend licenses or to take any other action as may be reasonable or appropriate to enforce the gaming rules and regulations. In addition, annual license renewal is subject to, among other things, continued satisfaction of suitability requirements.

 

We are required to notify the Commission as to the identity of, and may be required to submit background information regarding, each director, corporate officer and owner, partner, joint venture, trustee or any other person who has a beneficial interest, direct or indirect, in DJL or DJW. The Commission may also request that we provide them with a list of persons holding beneficial ownership interests in DJL or DJW. For purposes of these rules, “beneficial interest” includes all direct and indirect forms of ownership or control, voting power or investment power held through any contract, lien, lease, partnership, stockholding, syndication, joint venture, understanding, relationship, present or reversionary right, title or interest, or otherwise. The Commission may limit, condition, suspend or revoke the license of a licensee in which a director, corporate officer or holder of a beneficial interest is found to be ineligible as a result of want of character, moral fitness, financial responsibility, or professional qualifications or due to failure to meet other criteria employed by the Commission.

 

If the Commission were to find an officer, director or key employee unsuitable for licensing or unsuitable to continue having a relationship with us or DJL or DJW, all relationships with such person would have to be severed. If any gaming authority, including the Commission, requires any person, including a holder of record or beneficial owner of securities or holder of a “beneficial interest", to be licensed, qualified or found suitable, the person must apply for a license, qualification or finding of suitability within the time period specified by the Commission. The person would be required to pay all costs of obtaining the license, qualification or finding of suitability. If a holder of record of or holder of a “beneficial interest” in the licensee is required to be licensed, qualified or found suitable and is not licensed, qualified or found suitable by the Commission within the applicable time period, membership interests or “beneficial interests” as the case may be, must be redeemed or transferred to a person or entity that is licensed, qualified or found suitable or the gaming license could be adversely affected, including revocation.

 

Kansas Gaming Regulation

 

On January 14, 2011, the State of Kansas gave its final approval to develop, construct and manage a casino in the South Central Gaming Zone. On December 17, 2011, the Kansas Racing and Gaming Commission (“KRGC”) gave its Final Certification to open the Kansas Star Casino, which then opened to the public on December 20, 2011. On October 15, 2012, the Kansas Lottery consented to and approved the assignment/transfer of the ownership and control of the Lottery Gaming Management Facility Contract (“Management Contract”) and the Kansas Star Casino to Boyd Gaming Corporation. On November 16, 2012, the KRGC issued its certification and approved Boyd Gaming Corporation as the Gaming Manager for the South Central Zone. Pursuant to the terms of the Management Contract, the State retains 22%-26% of gross gaming revenue, based on a tiered revenue structure. In addition, 3% is paid to the City of Mulvane and Sumner County and 2% is paid to the Problem Gaming and Addiction Grant Fund. Kansas Star Casino receives the balance of gross gaming revenue, as well as all non-gaming revenue. Kansas Star Casino is contractually committed to providing $1.5 million annually to a county fund to support education in the region and $100.00 to each Sumner County student grades K-12 for school supplies plus $1,000.00 to each Sumner County student pursuing post-secondary endeavors.

 

 
 

 

The state gaming regulations in Kansas provide for four (4) designated gaming zones, with a single state sanctioned casino to be located in each such zone. Kansas regulations authorize gaming operations through the execution of management contracts between the State of Kansas and commercial gaming managers. The Management Contract confers the exclusive right to manage a lottery gaming business in a designated gaming zone for a period of 15 years from commencement of operations. It provides the Lottery Gaming Facility Manager (the “Gaming Manager”) the right to own and develop all of the assets of the casino and related amenities (except for lottery facility games, including slot machines and table games) and manage the Lottery Gaming Facility on behalf of the State of Kansas. Subject to the approval of the Executive Director of the Kansas Lottery, the Gaming Manager purchases the lottery facility games on behalf of the State of Kansas and title to the lottery facility games is placed in the name of the State of Kansas for the duration of the Management Contract. If this Management Contract were to eventually expire, title to these games would be transferred to the Gaming Manager, if legally permitted, or the games would be sold and the State of Kansas would convey the residual value of such games to the Gaming Manager. The Management Contract also provides the Gaming Manager and the Kansas Lottery with discretion to renew the Management Contract or to negotiate a new Management Contract provided the new Management Contract contains substantially the same terms as contained in the existing Management Contract and compels the parties to negotiate in good faith. Kansas law additionally allows for the development of racetrack gaming facilities in three of the gaming zones, the Northeast Zone, the South Central Zone and the Southeast Zone. These facilities would be allowed to place up to 2,200 slot machines between the three tracks, provided the public in each Gaming Zone approved the expansion of gaming into racetrack facilities. On August 7, 2007, voters in Sedgwick County, Kansas rejected the expansion of gaming to the Wichita Greyhound Park in Park City, Kansas. The Wichita Greyhound Park is located in the South Central zone. Given the relatively high tax rate and race requirements for racetrack gaming facilities in Kansas, no proposals to establish slots at either of the other gaming zones have been received and the other two racetracks (the Woodlands in Kansas City, Kansas and Camptown in Frontenac, Kansas) have been closed for many years.

 

The Gaming Manager is subject to regulation by both the Kansas Lottery Commission and the KRGC. These regulations require the Gaming Manager to comply with strict operating, accounting and audit procedures. Additionally, pursuant to the Management Contract, the Executive Director of the Kansas Lottery has approval rights over certain operational areas such as advertising, promotions and marketing materials as well as the purchase, lease, sale or transfer of lottery facility games. Pursuant to the Expanded Lottery Gaming Act, the Gaming Manager, together with all officers, directors, key employees and persons owning directly or indirectly 0.5% or greater interest in a Gaming Manager are required to be certified by the KRGC. Such certification requires the Gaming Manager, entities and individuals to submit to a background investigation, and includes compliance with such security, fitness and background investigations and standards as the Executive Director of the KRGC deems necessary to determine whether such person’s reputation, habits or associations pose a threat to the public interest of the state or to the reputation of or effective regulation and control of the Lottery Gaming Facility or Racetrack Gaming Facility. The KRGC has the power to assess fines, revoke or suspend licenses or to take any other action it deems necessary to comply with Kansas laws, rules and regulations. The KRGC from time to time adopts regulations it considers necessary and appropriate.

 

During the 2017 legislative session bills designed to permit slot machines at racetracks in Kansas were introduced in both the House and Senate. On January 26, 2017 HB 2173, was introduced in the Kansas House of Representatives, and, referred to the House Committee on Federal and State Affairs. The Bill contained numerous provisions designed to permit electronic gaming machines to be placed at various dog and horse racing tracks in Kansas and regulating such activities at the tracks. In part, HB 2173 required the Sedgwick County Board of County Commissioners to submit a ballot proposition to the voters of Sedgwick County that would permit the operation of electronic gaming machines at the Wichita Greyhound Park racetrack facility if a petition signed by 5,000 or more qualified voters supporting the proposition is presented to the Board of County Commissioners. The Bill further provided that if a majority of Sedgwick County voters approved the proposition (at an election held no than 120 days after the petition was certified), the Bill would authorize the Executive Director of the Kansas Lottery to enter into a contract with the pari-mutuel licensee at Wichita Greyhound Park to operate electronic gaming machines at the racetrack facility. The Bill, as amended, received the approval of the Committee on February 13, 2017 with a recommendation for passage. On February 16, 2017, the amended HB 2173 was referred by the Speaker of the House to the House Committee on Appropriations for further consideration. On March 23, 2017, the House Committee on Appropriations held a hearing on the Bill as amended and took no further action.

 

Substantially similar legislation, Senate Bill 207, was introduced in the Kansas Senate on February 21, 2017 and referred to the Senate Committee on Federal and State Affairs. The Senate Committee heard the bill on March 23, 2017 and took no further action.

 

The 2017 session of the Kansas Legislature adjourned without taking any action on either HB 2173, as amended, or SB 207.

 

On February 8, 2017, the Kansas Lottery introduced identical bills in the Senate and House Federal and State Committees. The bills attempted to change Kansas law to authorize lottery ticket vending machines in Kansas, such as keno ticket vending machines, pull-tab vending machines and instant bingo vending machines. The bills also authorized certain lottery ticket facilities to place lottery dispensing machines in such facilities and would have extended the sunset of the Kansas Lottery an additional fifteen (15) years, from 2022 to 2037. The House of Representatives version of the legislation, HB 2313, passed both the Kansas House and Kansas Senate, in amended form, but was vetoed by the Governor on June 15, 2017. On January 22, 2018, HB 2517 was introduced as legislation and, ultimately, referred to the House Federal and State Affairs Committee. HB 2517, as drafted, was substantially similar to the 2017 version of HB 2313 but died on the House calendar.

 

During 2018 legislative session HB 2545 was introduced and referred to the House Committee on Federal and State Affairs. The Bill was once again designed to permit electronic gaming machines to be placed at various dog and horse racetracks in Kansas including the Wichita Greyhound Park facility. The bill, in part, contains provisions that provided for a new election in Sedgwick County to determine whether the operation of electronic gaming machines should be authorized at Wichita Greyhound Park either as a result of a resolution of the Board of County Commissioners or a petition signed by 5,000 or more qualified voters supporting the proposition. If a majority of Sedgwick County voters approved the proposition at an election, the Bill authorized the Executive Director of the Kansas Lottery to enter into a contract with the pari-mutuel licensee at Wichita Greyhound Park to operate electronic gaming machines at that facility. The Bill also included provisions that attempted to limit the State’s liability to Lottery Gaming Facility Managers for authorizing and enabling pari-mutuel racetracks to operate electronic gaming machines, simulcast gaming and limited live racing programs within the Northeast, South Central and Southeast gaming zones.

 

 
 

 

Senate Bill No. 427, which was referred to the Senate Committee on Federal and State Affairs, sought to amend the Kansas Expanded Lottery Act and the Kansas Pari-mutuel Racing Act to significantly reduce the live racing required at pari-mutuel racetracks located in Wyandotte County (100% reduction in greyhound racing) and Crawford County (50% reduction in live greyhound racing) for the Kansas lottery to install and operate slot machines at any racetrack gaming facility which may be established on the racetrack premises. Since the results of a Sedgwick County election in August 2007 prohibits the Kansas lottery from installing and operating any slot machines in Sedgwick County, the bill proposed to permit a re-vote regarding the placement of slot machines at a racetrack gaming facility in Sedgwick County. The bill would have also changed the distribution of net slot machine income at all racetrack gaming facilities by reducing the State’s share from 40% to 22% and increasing the racetrack gaming facility manager’s share from 25% of net slot machine income to: 65.5% for two years and 61.5% thereafter in Wyandotte County; 68.4% in Sedgwick County; and 67.5% in Crawford County. SB 427 also sought to significantly reduce the number of live racing days required for a simulcast license and inter-track pari-mutuel wagering thereon. SB 427 was favorably reported out of committee but failed to pass upon a full vote of the Senate on April 28, 2018. Neither SB 427 nor HB 2545 and the Substitute for House Bill No. 2545 were submitted to a vote of the full House of Representatives during the session.

 

In May of 2018, the Legislature passed without a hearing, and Governor Colyer signed into law, the Substitute for House Bill No. 2194. The Legislature originally passed this measure in 2017 as House Bill No. 2313, but it was vetoed by then-Governor Brownback. Sub. for HB 2194 became effective on May 24, 2018 and amends the Kansas Lottery Act to extend the sunset for the Kansas lottery from July 1, 2022 to July 1, 2037, to allow the use of lottery ticket vending machines and instant bingo vending machines, and to permit underage purchases of lottery tickets as part of authorized law enforcement investigations. Sub. for HB 2194 also amends various provisions of Kansas law concerning the State Debt Setoff Program to direct the Secretary of Administration to enter into agreements with lottery gaming facility managers to check prize winners for whom an IRS Form W-2G must be completed against the Kansas Debt Recovery database and to withhold the amount of any reported debt from any qualifying prize. To date, the Secretary of Administration and the lottery gaming facility managers have engaged in negotiations, but no agreements have been reached or executed.

 

Several bills to authorize sports wagering in Kansas were also introduced during the 2018 legislative session in anticipation of a United State Supreme Court decision invalidating the Professional and Amateur Sports Protection Act of 1992. These measures included House Bill Nos. 2533, 2792 and 2793, which were referred to the House Committee on Federal and State Affairs, and Senate Bill No. 455, which was referred to the Senate Committee on Federal and State Affairs. None of these bills, however, were favorably reported out of committee or submitted to a full vote of the House of Representatives or the Senate.

 

The 2019 Kansas Legislature considered various proposals to authorize sports wagering in the wake of the U.S. Supreme Court’s decision invalidating the Professional and Amateur Sports Protection Act of 1992, including HB 2032. 2068, 2204, 2280, 2204 and 2390, and SB 23 and 98.

 

HB 2032, was introduced and referred to the House Committee on Federal and State Affairs on January 19, 2019, and was designed to amend the Kansas Expanded Lottery Act to authorize the Kansas Lottery that if sports gambling is authorized by the Kansas Lottery, then it would be required to be conducted solely at racetrack gaming facilities and would be managed and operated by one or more racetrack gaming facility managers. The bill also provided a definition of sports gambling to offer sports wagering only on the premises of racetrack gaming facilities. HB 2032 was never heard by the House Committee and no action was taken on the bill during the 2019 Session of the Kansas Legislature.

 

Senate Bill No. 23, was introduced on January 17, 2019 and referred to the Senate Committee on Federal and State Affairs on January 18, 2019, would enact the Kansas sports wagering act authorizing the Kansas lottery to offer betting on professional and amateur sporting events directly using its retail outlets, through lottery gaming facilities and racetrack gaming facilities. The lottery, lottery gaming facilities and racetrack gaming facilities would be permitted to conduct sports wagering through internet websites and mobile applications. The House counterpart to SB 23 is HB 2068, was introduced and referred to the House Committee on Federal and State Affairs on January 24, 2019.

 

SB 23/HB 2068 have authorized the Kansas Lottery to offer sports wagering in-person at a facility operated by the Kansas Lottery, through lottery retailers and lottery gaming facilities who have contracted with the Kansas Lottery to conduct sports wagering on behalf of the Kansas Lottery, over the internet through approved interactive sports wagering platforms, including but not limited to, authorized websites and mobile devise applications. The Executive Director of the Kansas Lottery would have been allowed to enter into contracts with lottery gaming facility managers or racetrack gaming facility managers for conducting, operating, and managing sports wagering on behalf of the Kansas Lottery or through the licensed interactive sports wagering platform that has contracted with the Kansas Lottery to offer sports wagering. The bill would prohibit sports wagering for persons under 21 years of age and would require sports wagering operators to verify that any person placing a wager is of legal minimum age, including wagers placed through internet websites or mobile device applications.

 

The sports wagering manager would be required to maintain the security of wagering data, customer data, and other confidential information from unauthorized access and distribution. Sports wagering managers could use whatever data source to determine the result of a sports wager that is determined by the final score or final outcome of a sports event for a wager placed before the start of a sports event. For all other sports wagering, the sports wagering operator would be required to purchase official league data from the relevant sports governing body to determine the outcome of that wager.

 

 
 

 

These bills provide that a sports governing body would be allowed to notify the Kansas Racing and Gaming Commission that it desired to restrict, limit, or exclude wagering on its sporting events and the Commission would review the request and determine if the sports wagering should be restricted. Sports wagering operators would be required to cooperate with investigations by the Kansas Racing and Gaming Commission, sports governing bodies, or law enforcement agencies by providing account-level betting information and audio or video files relating to persons placing wagers. Sports wagering operators would be required to immediately report to the Kansas Racing and Gaming Commission any criminal or disciplinary proceedings; abnormal wagering activity or patterns that may indicate a concern with the integrity of a sporting event or events; any potential breach of the sports governing body’s internal rules and codes of conduct pertaining to sports wagering; any other conduct that corrupts a betting outcome of a sporting event for purposes of financial gain; and suspicious or illegal wagering activities, including use of funds derived from illegal activity, wagers to conceal or launder funds derived from illegal activity, using agents to place wagers, and giving false identification. These bills would authorize a sports governing body to pursue a civil action to recover damages or other equitable relief against any person who knowingly engages in, facilitates, or conceals conduct that intends to improperly influence a betting outcome of a sporting event for purposes of financial gain.

 

SB 23/HB 2068 required that each sports wagering manager remit a sport betting right and integrity fee to each sports governing body with authority over a sporting event that was the subject of betting in the preceding calendar quarter. The fee would be 0.25 percent of the aggregate amount wagered on those sporting events during the previous quarter and would be paid to the relevant sports governing body on July 1, October 1, January 1, and April 1 of each year.

 

The bills would have created a Sports Wagering Receipts Fund in the State Treasury and separate accounts would have been maintained for the receipt of moneys from sports wagering conducted by the Kansas Lottery, each lottery gaming facility manager, and each racetrack gaming facility manager. All revenues from sports wagering conducted by the Kansas Lottery was required deposited in the Lottery Operating Fund. The Kansas Lottery would be allowed to contract with multiple interactive sports wagering platforms without limitations. If a lottery gaming facility manager and racetrack gaming facility manager offered sports wagering, then the management contract would include a provision that no less than 6.75 percent of the sports wagering revenues (total revenues from sports wagering at a gaming facility after all prize related payments are made) would be distributed to the Expanded Lottery Revenues Fund (ELARF). If the lottery gaming facility manager or racetrack gaming facility manager agreed to offer sports wagering, the Kansas Lottery would be the licensee and owner of all software programs used in offering sports wagering. All sports wagering would be under the ultimate control of the Kansas Lottery. Counties would not be allowed to be exempt from or effect changes in the Kansas Sports Wagering Act.

 

SB 23/HB 2068 included definitions of interactive sports wagering platform, official league data, sports governing body, sports wagering, sports wagering operator, sports wagering revenue, tier one and tier two sports wager, and wager or bet. The Kansas Lottery was provided the authority to write rules and regulations for implementation of the Kansas Sports Wagering Act including sports wagering conducted by the Kansas Lottery; management contracts for sports wagering conducted by lottery gaming facility managers and racetrack gaming facility managers; provisions for the confidentiality of information submitted by interactive sports wagering platform licensees and sports wagering operators; and provisions ensuring the integrity of sports wagering conducted in this state.

 

These bills also required the Kansas Racing and Gaming Commission to establish certification requirements and enforcement procedures for employees of a lottery retailer, lottery gaming facility manager, or racetrack gaming facility manager who are directly involved in the conduct, operation, or management of sports wagering. The certification requirements and enforcement procedures would also apply to persons involved in interactive sports wagering platforms and other technology and computer systems providers that have a contract with a lottery gaming facility manager, racetrack gaming facility manager, or the Kansas Lottery for providing goods or services related to sports wagering, including management services. The certification requirements would include compliance with security, fitness, and background investigations.

 

No hearings were held and no action was taken on either SB 23 or HB 2068 during the 2019 Session of the Kansas Legislature.

 

Senate Bill No. 98, which was introduced on February 5, 2019 and referred to the Senate Committee on Federal and State Affairs on February 6, 2019, would amend the Kansas Expanded Lottery Act to authorize the Kansas lottery to install and operate slot machines at a racetrack gaming facility which may be established on the premises of The Woodlands pari-mutuel racetrack in Kansas City, Kansas. The bill also sought to reduce the live racing days required for a simulcast and inter-track pari-mutuel wagering and eliminates the requirement for live greyhound racing. The bill retained the requirement for a limited live horse racing program in order to operate slot machines and change the distribution of net slot machine income by reducing the State’s share from 40% to 22% and increasing the racetrack gaming facility manager’s share from 25% to 63.5% in the first two years of operation, 61.5% in the third year of operation and 59.5% thereafter. The House counterpart to SB 98 was House Bill No. 2280, which was referred to the House Committee on Commerce, Labor and Economic Development on February 12, 2019.

 

No hearings were held and no action was taken on either SB 98 or HB 2280 during the 2019 Session of the Kansas Legislature.

 

HB 2204, was introduced and referred to the House Committee on Appropriations on February 8, 2019, and prohibited the Kansas lottery from entering into or extending an existing management contract with a lottery gaming facility manager without prior approval by the Kansas Legislature. No hearings were held and no action was taken on HB 2204 during the 2019 Session of the Kansas Legislature.

 

 
 

 

HB 2390 was introduced and referred to the House Committee on Federal and State Affairs on March 6, 2019. The Senate counterpart to HB 2390 was SB 222, which was introduced on March 7, 2019 and referred to the Senate Committee on Federal and State Affairs on March 8, 2919. Both bills would allowed the Kansas Lottery to enter into contracts with lottery gaming facility managers or racetrack gaming facility managers for operating and managing sports wagering in-person at their facility or over the internet through an interactive sports wagering platform. Each gaming facility manager would only be allowed to contract with one interactive sports wagering platform, but could also contract with a third party to provide ancillary services related to sports wagering, including banking for sports wagering operations, setting of odds for sports wagering, and supplying equipment, software, and any other items needed to process sports wagers in-person or through the interactive sports wagering platform. If a lottery gaming facility manager and racetrack gaming facility manager offer sports wagering, then the management contract would include a provision that 6.75 percent of the sports wagering revenues (total revenues from sports wagering after applicable fees, federal excise taxes, and all prize related payments are made) would be distributed to the Expanded Lottery Revenues Fund. If the lottery gaming facility manager or racetrack gaming facility manager agreed to offer sports wagering, the Kansas Lottery would be the licensee and owner of all software programs used in authorized sports wagering. All sports wagering would be under the ultimate control of the Kansas Lottery. Sports wagering managers would be required to immediately report to the Kansas Racing and Gaming Commission any criminal or disciplinary proceedings; abnormal wagering activity or patterns that may indicate a concern with the integrity of a sporting event or events; any conduct that corrupts a betting outcome of a sporting event for purposes of financial gain, including match fixing; and any wagering activity that the operator knew or suspected violated federal or state laws including the use of funds derived from illegal activity, using other individuals to place wagers, or the use of a false identification when placing a wager. Under HB 2390/SB 222, the Kansas Racing and Gaming Commission would be authorized to write implementing rules and regulations to implement, including certification requirements and enforcement procedures.

 

No hearings were held and no action was taken on either HB 2390 or SB 222 during the 2019 Session of the Kansas Legislature.

 

Kansas law provides that bills remaining under consideration upon adjournment of the 2019 legislative session may be considered during the regular 2020 Session of the Kansas Legislature as if there had been no adjournment. All of those sports wagering bills were automatically carried over into the 2020 legislative session, which commenced on January 6, 2020.

 

SB 283 was introduced on January 21, 2020 and referred to the Senate Committee on Federal and State Affairs on January 22, 2020. This bill would authorize the Kansas lottery to offer sports wagering through lottery gaming facility managers which have contracted with the Kansas Lottery to manage sports wagering on behalf of the State of Kansas, in-person at lottery gaming facilities and over the internet and digital cell networks through approved interactive sports wagering platforms. If no more than one (1) lottery gaming facility manager continually offers and manages sports wager on behalf of the Kansas lottery within two (2) years after the effective date of enactment, the Kansas lottery may directly offer sports wagering through an interactive sports wagering platform. Each lottery gaming facility is limited to no more than two (2) interactive sports wagering platforms. Sports wagering would not include parimutuel wagering, and the Kansas lottery and the Kansas Racing and Gaming Commission would be granted temporary and permanent rulemaking authority to promulgate rules and regulations to implement the bill. The Kansas Racing and Gaming Commission would be required to adopt rules and regulations regarding advertisement for sports wagering by October 31, 2020.

 

Under SB 283, the executive director of the Kansas lottery would be allowed to enter into contracts with lottery gaming facility managers and a racetrack gaming facility manager in Wyandotte County for conducting, operating, and managing sports wagering on behalf of the Kansas Lottery. Subject to approval by the Kansas lottery, certain sporting facilities in Wyandotte County may contract with a lottery gaming facility to provide a dedicated space or area on-site for patrons attending a sporting event to place sports wagers through an approved interactive sports wagering platform.

 

SB 283 further provides that if a lottery gaming facility manager contracts with the Kansas lottery to manage sports wagering, all sports wagering revenue (i.e., total revenues from sports wagering after applicable fees, federal excise taxes, and all prize related payments are made) must be remitted to the Kansas lottery for deposit into a special sports wagering revenue fund and subsequent distribution. The management contract must include a provision that 7.5% percent of sports wagering revenue from in-person wagering and 10% of such revenue from wagers on interactive platforms shall be retained by the State. If the lottery gaming facility manager agrees to manage sports wagering, the Kansas lottery would be the licensee or owner of all software programs used by the manager and its contracted parties in managing sports wagering for the State. All sports wagering would be under the ultimate control of the Kansas lottery. SB 283 also grants rulemaking authority to the Kansas lottery and the Kansas Racing and Gaming Commission to implement the provisions of the bill.

 

SB 283 is scheduled for hearing on January 29, 2020 before the Senate Committee on Federal and State Affairs and no action has been taken thus far by either the Committee or the Kansas Legislature.

 

Ohio Gaming Regulation

 

Ohio has eleven (11) gaming facilities. Four of these gaming facilities are casinos and subject to the Ohio Casino Control Commission. Casino gaming was authorized in Ohio on November 3, 2009 through a voter approved Constitutional Amendment (Issue 3). The other seven (7) gaming facilities conduct video lottery terminal sales and pari-mutuel wagering as described below.

 

Boyd Gaming Corporation, or its subsidiaries, does not conduct casino gaming in Ohio. Instead, Boyd, through a subsidiary, owns and operates Belterra Park Gaming. Belterra Park operates and conducts video lottery terminals ("VLTs") sales, and also conducts pari-mutuel wagering on horse racing. Belterra Park also sells traditional lottery games.

 

 
 

 

Video Lottery Terminals

 

VLT sales were authorized by House Bill 1 (effective 07/17/09) (the "Lottery Act"). The Governor at this time also issued an executive order authorizing VLTs at the seven (7) commercial racetracks (issued 08/18/09). Two of the VLT facilities are in Cuyahoga County with one of the facilities sharing a border with an adjoining county. Finally, one VLT facility is in each of the following counties: Franklin, Hamilton Mahoning, Montgomery, and Warren. The Lottery Act was subsequently amended by House Bill 386 (effective 06/11/12). The Lottery Act authorized Lottery to implement VLT sales and regulation through administrative code regulations which were originally effective on 08/18/09 (the "Lottery Regulations"). The Lottery Regulations have been amended numerous times since original enactment and can be found in Ohio Administrative Code Section 3770:2.

 

Currently, video lottery sales can only be conducted at a commercial horse racing facility that has been issued a permit by the Ohio State Racing Commission. The Ohio Lottery Commission ("Lottery") licenses and regulates VLTs at seven (7) facilities in the state including Belterra Park. Lottery regulation restricts the number of authorized video lottery licenses to seven (7) for ten years from the issuance of the first video lottery sales agent license. The first VLT facility opened on June 1, 2012.

 

To conduct VLT sales, an applicant must be issued a video lottery license as a video lottery sales agent. An applicant must pay applicable application and license fees. Each initial licensed video lottery licensee was required to invest $150 Million in the VLT and racing facilities.

 

A video lottery license is valid for three (3) years and Belterra Park's license expires on April 28, 2020. Annual disclosures are required. A license may be renewed by the Lottery. Video lottery licenses are not transferable for five years from the initial issuance of an operating license unless the Director permits a license transfer to protect the public interest and trust.

 

A video lottery sales agent receives 66.5% commission of video lottery terminal income through Lottery regulation. Up to 1% can be dedicated to support problem gaming also through Lottery Regulation.

 

Video lottery sales agent employees are required to be licensed prior to being involved in gaming activity. The Lottery has the following license categories for such employees: key gaming employees, gaming employees and non-gaming employees. Key gaming employees may be provided temporary licenses if approved by the Director.

 

No person may own, directly or indirectly, more than five (5) percent in a video lottery applicant or licensee without notice and ultimate approval by Lottery unless such person is a qualifying institutional investor. An institutional investor who owns five (5) percent to fifteen (15) percent may be exempt from suitability review upon submitting to the director sufficient documentation and certifications. However, the Director of the Lottery may determine that any person affiliated with a video lottery applicant or video lottery sales agent must submit to background checks and suitability reviews.

 

Lottery has authority to audit and inspect video lottery sales agent facilities. Belterra Park is required to comply with all aspects of the Lottery Act including all rules, regulations, policies and directives of the Lottery, and all terms and conditions of the license. Failure to comply may subject the video lottery sales agent's video lottery license to suspension or revocation, or monetary penalties.

 

If Lottery were to find an officer, director, key employee or other licensee or applicant unsuitable for licensing or unsuitable to continue having a relationship with Belterra Park, Belterra Park would have to sever all relationships with such person. In addition, the Lottery may require Boyd Gaming or Belterra Park to terminate the employment of any person who refuses to file appropriate applications.

 

Video lottery sales agents may only have twenty-five hundred (2,500) VLTs unless otherwise approved by the Director. Video lottery participants must be twenty one (21) to wager on video lottery terminals. Projected average return to video lottery participants must be eighty give (85) percent or more. Video lottery sales agents receive a commission of sixty-six and one-half (66.5) percent of video lottery terminal sales, but a portion goes to support problem gaming. Lottery keeps the remainder to support education of the state.

 

Pari-mutuel wagering

 

Pari-mutuel wagering on horse racing was first authorized in 1933 by the Ohio General Assembly. Commercial horse racing is permitted and regulated pursuant to Ohio Revised Code Chapter 3769 and Ohio Administrative Code Chapter 3769 (collectively the "Horse Racing Act"). The Horse Racing Act is dedicated to the protection, preservation and promotion of horse racing and its related industry.

 

 
 

 

The Ohio State Racing Commission ("Racing Commission") permits and regulates horse racing at seven (7) commercial facilities in the state which currently are at the same facilities as the VLT facilities. The Horse Racing Act requires a racing permit only for a corporation that holds, conducts, assists, or aid and abets in holding or conducting any meetings, at which horse racing is permitted for any stake, purse, or award. The Racing Commission licenses all industry participants and regulated pari-mutuel wagering.

 

To conduct pari-mutuel wagering at horse racing facilities, an applicant must be issued a permit annually. An applicant must pay applicable license fees. A permit may be renewed by the Racing Commission. Racing permits are not transferable without approval of the Racing Commission.

 

Persons participating in racing are required to be licensed by the Racing Commission.

 

The Racing Commission has authority to audit and inspect the racing facilities. Belterra Park is required to comply with all aspects of the Horse Racing Act including all rules, regulations, policies and directives of the Racing Commission, and all terms and conditions of the license. Failure to comply may subject the video lottery sales agent's video lottery license to suspension or revocation, or monetary penalties.

 

Ohio has taxed pari-mutuel wagering on horse racing since 1933. In 1981, the horse racing tax was expanded to include “exotic” wagering - meaning all bets made on placements other than win, place or show.

 

An additional tax on pari-mutuel wagering is also levied for the municipal corporation or township in which racing takes place, intended as a reimbursement for expenses incurred due to racing meets.

 

 

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Tax Base- The base of the tax includes the:

 

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Amount wagered each day on all pari-mutuel racing.

 

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Amount wagered each day on exotic bets.

 

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Total amount wagered at each horse racing meeting of a permit holder.

 

 

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Rates- Pari-mutuel wagering tax: The tax rates on daily pari-mutuel wagering are as follows:

 

 

Amount wagered daily           Rates

 

◦      First $200,000                1.0%

◦      Next $100,000                2.0%

◦      Next $100,000                3.0%

◦      Over $400,000                4.0%

 

In addition to the pari-mutuel tax, a special tax of 3.5% applies to daily wagering on results other than win, place or show. There is an additional pari-mutuel wagering tax as follows which is capped at $15,000 per meet:

 

     Total wagering per meet               Rates

 

◦      Less than $5 million       0.10%

◦      45 million or more          0.15%

 

Liquor

 

Belterra Park is also subject to the jurisdiction and regulation of the Ohio Division of Liquor Control ("Liquor Control") for the liquor sales conducted at the property. Liquor Control issues permits to Belterra Park to conduct liquor sales and regulates liquor sales along with the Ohio Liquor Control Commission and the Ohio Department of Public Safety.

 

Changes in such laws, regulations and procedures could have an adverse effect on our gaming operations and our business, financial condition and results of operations.

 

 
 

 

Pennsylvania

 

The ownership and operation of casinos in Pennsylvania - including the Valley Forge Casino Resort that is owned and operated by our wholly-owned subsidiary, Valley Forge Convention Center Partners, LLC (the “PA Subsidiary”) - are subject to extensive state regulation under the Pennsylvania Race Horse Development and Gaming Act, as amended, (4 Pa. C.S. §§ 1101 et seq.) and the regulations set forth in Title 58, Part VII of the Pennsylvania Code, (collectively referred to herein as the “Pennsylvania Act”). The primary objective of the Pennsylvania Act is to protect the public through regulation and policing of all activities involving gaming. Secondary objectives of the Pennsylvania Act include the generation of licenses fee and tax revenue for state and local government, tourism promotion, economic development, and promotion of the horse racing industry.

 

The Pennsylvania Act vests the Pennsylvania Gaming Control Board (“PGCB”) with general and sole regulatory authority over the conduct of casino gaming and related activities, which includes interactive gaming and sports wagering under Act 42 of 2017. The PGCB was formed in 2004 and consists of seven voting members; three of whom are appointed by the governor and four of whom are appointed by the leadership of the Pennsylvania General Assembly. The PGCB grants various licenses, certificates, and other approvals, including, without limitation:

 

 

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Slot machine licenses that authorize a holder to make slot machines available to play in accordance with the Pennsylvania Act;

 

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Table games operation certificates that authorize a holder to make table games available to play in accordance with the Pennsylvania Act;

 

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Interactive gaming certificates that authorize a holder to conduct interactive gaming directly or through an interactive gaming operator in accordance with the Pennsylvania Act; and

 

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Sports wagering operation certificates that authorize a holder to conduct sports wagering directly or through an sports wagering operator in accordance with the Pennsylvania Act.

A slot machine license and the three other certificates listed above are required for casinos to offer slot machines, table games, interactive games and sports wagering. Each license or certificate has statutory and regulatory conditions that applicants must satisfy by clear and convincing evidence. In addition, persons with material relationships to, or material involvement with Boyd Gaming or the PA Subsidiary, including officers, directors and certain key employees, are required to apply to the PGCB for and maintain principal licenses and key employee licenses in accordance with the Pennsylvania Act. Any person with a beneficial ownership interest in Boyd Gaming of 5% or more must also apply for and obtain a principal license. Institutional investors, as defined in the Pennsylvania Act, that hold a beneficial ownership interest in Boyd Gaming of less than 20% which file and remain eligible to file a statement of beneficial ownership on Schedule 13G with the U.S. Securities and Exchange Commission may qualify for an institutional investor waiver in lieu of full licensure as a principal. If the PGCB were to find an officer, director, key employee or beneficial owner unsuitable for licensing or unsuitable to continue having a relationship with Boyd Gaming or the PA Subsidiary, the individuals and/or companies involved would have to sever all relationships with such person or entity.

 

All applicants to the PGCB must pay upfront fees for the issuance of the license or certificate and, for certain certificates, a periodic renewal fee. The PA Subsidiary has applied for, obtained and paid the requisite license fee for the license and certificates that authorize slot machines, table games, interactive games and sports wagering, each of which has been issued by the PGCB subject to customary regulatory conditions.

 

Pennsylvania has twelve operating casinos throughout the state, with three additional licensed casinos under development and applications pending for two additional licenses. Among the 17 potential casinos, six licenses have been issued to existing horse racetracks (Category 1), five licenses have been issued to stand-alone casinos (Category 2), two licenses have been issued to well-established hotel resorts (Category 3), three licenses have been issued to ancillary casinos (Category 4). The two pending applications are for Category 4 licenses. The Pennsylvania Act was amended on January 7, 2010, which amendment allowed the Category 1 and Category 2 casinos to offer up to 250 table games, while Category 3 casinos are limited to offer a maximum of 50 table games. The Pennsylvania Act was amended again on October 30, 2017, which amendment authorized ancillary casinos (Category 4) to operate between 300 and 750 slot machines and up to 30 table games, and further authorized Category 3 casinos to add up to 250 additional slot machines (over and above the previously authorized number of 600 machines) for a $2.5 million fee and up to 15 table games (over and above the previously authorized number of 50 table games) for a $1.0 million fee.

 

The PA Subsidiary holds a Category 3 license and paid the $2.5 million fee in order to offer the additional 250 slot machines. Boyd Gaming and its applicable principals and key employees have been licensed by the PGCB for Boyd Gaming to own Valley Forge Casino Resort. All permits and licenses issued by the PGCB are subject to renewal every five years. An application for renewal should be submitted at least six months prior to the expiration of the permit or license. The renewal application shall include an update of the information contained in the initial and any prior renewal applications and the payment of any renewal fee required.

 

Boyd Gaming and the PA Subsidiary are required to submit detailed financial and operating reports to the PGCB on regular intervals and in advance of the occurrence of certain material financing transactions.

 

If it were determined that the Pennsylvania Act was violated by Boyd Gaming or the PA Subsidiary, the gaming licenses for Valley Forge Casino Resort could be limited, conditioned, suspended or revoked, subject to compliance with certain statutory and regulatory procedures. In addition, Boyd Gaming and the persons involved could be subject to substantial fines for each separate violation of the Pennsylvania Act. Furthermore, a trustee could be appointed by the PGCB to operate Valley Forge Casino Resort.

 

 
 

 

All licenses under the Pennsylvania Act are grants of privilege to conduct business in the state and are nontransferable. If a slot machine licensee becomes aware of any proposed or contemplated change of ownership of the slot machine licensee, they must immediately notify the PGCB. A change of ownership includes:

 

 

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More than 5% of a slot machine licensee's securities or other ownership interests;

 

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More than 5% of the securities or other ownership interests of a corporation or other form of business entity that owns directly or indirectly at least 20% of the voting or other securities or other ownership interests of the licensee;

 

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The sale - other than in the ordinary course of business - of a licensee's assets; or

 

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Any other transaction or occurrence deemed by the PGCB to be relevant to license qualifications.

 

Within the PGCB is the Bureau of Investigations and Enforcement (“BIE”), Bureau of Casino Compliance (“BCC”) and the Office of Enforcement Counsel (“OEC”). BIE and OEC enforce the Pennsylvania Act and have pervasive investigative powers. BIE and OEC investigate and review all applicants and applications for a license, permit or registration. BCC and OEC also monitor gaming operations and can inspect and examine licensed facilities. A review may include the review of accounting, administrative and financial records, management control systems, procedures and other records utilized by a licensed entity. Licensees are obligated to comply with all investigations and the failure to do so may jeopardize the licensee’s ability to continue its business.

 

The passage of Act 42 of 2017 was the largest expansion of gaming in Pennsylvania since 2004. The most significant change was the establishment of Category 4 licenses. The PGCB was initially given authorization to establish up to 10 locations, with licenses awarded via sealed bid auctions. However, no further auctions for Category 4 licenses are authorized presently which limit the number of Category 4 licenses to no more than four. In addition, Act 42 of 2017 authorized the operation of up to 5 video gaming terminals at truck stops. Further, sports wagering was authorized in anticipation of changes in applicable federal law, and Act 42 of 2017 gave the PGCB the authority to establish standards and procedures to govern sports wagering in the state. Finally, the Department of Revenue was given the authority to establish an iLottery program to sell existing products as well as internet instant games.