NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Note B. Summary of Significant Accounting Policies
Revenue recognition
The Company’s patron transactions primarily consist of gaming wagers, hotel room and food and beverage purchases. The transaction price for gaming wagers is the difference between gaming wins and losses, not the total amount wagered. The transaction price for hotel room and food and beverage purchases is the net amount collected from the patron for such goods and services. Hotel room and food and beverage goods and services have been determined to be separate, stand-alone transactions and the transaction price for such goods or services is recorded as revenue as they are transferred to the patron over the duration of the patron’s stay at the hotel or when the Company provides the food and beverage services. In the case of a hotel stay involving multiple days, the total transaction price of the stay is recognized on a straight-line basis. The Company collects advanced deposits from hotel patrons for future reservations representing obligations of the Company until the room stay is provided to the patron.
Gaming wagers by patrons who are members of our loyalty programs represent two performance obligations of the Company. Patrons who are members of our loyalty programs earn loyalty points for gaming wagers. Points awarded under our loyalty programs are given to members based on their gaming play and the promise to provide points to members is required to be accounted for as a separate performance obligation. The Company applies a practical expedient by accounting for gaming wagers 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 each individual patron. For purposes of allocating the transaction price when loyalty points are earned, the Company allocates an amount to the loyalty point liability based on the stand-alone selling price ("SSP") of the points earned, which is determined by the value of a point that can be redeemed for a hotel room or food and beverage services. 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 because all such wagers settle immediately. The loyalty point liability amount is deferred and recognized as revenue when the patron redeems the points for a hotel room stay or for food and beverage services and such goods or services are provided to the patron.
Additionally, outside of our loyalty programs and at our discretion, we offer our patrons complimentary goods and services, primarily food and beverage and hotel room stays. Such complimentaries are provided in conjunction with revenue-generating gaming activity and are largely provided to entice contemporaneous and future revenue-generating gaming activities. We allocate a portion of the transaction price for gaming wagers we receive from such patrons to the complimentary goods and services provided to such patrons using the residual approach. This allocation is based on the estimated SSP of the underlying goods and services provided, which are determined based on observed SSP we receive for selling such goods and services.
Food and beverage revenues and room revenues include (i) revenues generated from transactions with patrons for such goods and/or services, (ii) revenues recognized through the redemption of points from our loyalty programs for such goods and/or services, and (iii) revenues generated as a result of providing such goods and/or services on a complimentary basis in conjunction with gaming activities. Food and beverage revenues and room revenues are recognized when goods are delivered and services are performed. In general, performance obligations associated with these transactions are satisfied at a point-in-time, but may also be satisfied over a period of time, which is typically over the course of a patron’s stay. Advance deposits on rooms are reflected as a performance obligation liability until the goods and/or services are provided to the patron. The Company's performance obligation liabilities are included in “Accrued expenses and other current liabilities” on the condensed consolidated balance sheets.
Racing revenues include revenues earned from pari-mutuel wagering on live harness racing and simulcast signals to and from other tracks. Some elements of racing revenues from Off-Track Betting Corporations (“OTBs”) are recognized as collected, due to uncertainty of receipt and timing of payments.
Other revenues primarily include commissions received on ATM transactions and cash advances, as well as lottery tickets, which are recorded on a net basis as the Company represents the agent in its relationship with the third-party service providers. Other revenues also include the sale of retail goods, which are recognized at the time the goods are delivered to the customer.
Complimentary food and beverage revenues and complimentary room revenues for the three-month periods ended March 31, 2019 and 2018, respectively, were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
March 31, 2019
|
|
March 31, 2018
|
|
|
|
(in thousands)
|
|
Complimentary food and beverage revenues
|
|
$5,152
|
|
$1,016
|
|
Complimentary room revenues
|
|
1,328
|
|
|
164
|
|
The Company’s performance obligation related to its loyalty point obligation is generally completed within one year, as a patron’s loyalty point balance is forfeited after six months of inactivity, as defined in the loyalty programs. The Company’s deferred revenue liability for its loyalty point performance obligations was
$1.8 million
and
$2.2 million
at March 31, 2019 and December 31, 2018, respectively. Loyalty points are generally earned and redeemed continuously over time.
Leases
As described below and under "Recent accounting pronouncements," the Company adopted the provisions of new accounting standards and updates as codified in ASC Topic 842 regarding lease liabilities with corresponding right-of-use ("ROU") assets. The Company adopted this guidance as of January 1, 2019 using the modified retrospective approach. The modified retrospective approach provides a method for recording existing leases at adoption and in comparative periods that approximates the results of a full retrospective approach. In addition, the Company elected the package of practical expedients permitted under the transition guidance within the new standard, which among other things, allowed us to carry forward the historical lease classification.
The adoption of the new standard resulted in recording of operating lease ROU assets and lease liabilities of approximately
$65.0 million
and
$74.7
million, respectively, as of January 1, 2019, with the difference largely due to deferred rents that were reclassified to the operating lease ROU assets. The adoption of the standard did not materially impact our consolidated net earnings and had no impact on cash flows. Leases are described further in Note L.
Cash and cash equivalents
Cash and cash equivalents include cash on hand, demand deposits and certificates of deposit with original maturities of three months or less at acquisition. The Company maintains significant cash balances with financial institutions, which are not covered by the Federal Deposit Insurance Corporation. The Company has not incurred any losses in such accounts and believes it is not exposed to any significant credit risk on cash.
Restricted cash and equivalents
The Company has several types of restricted cash accounts. The restricted cash balances of
$143,000
and
$373,000
at March 31, 2019 and December 31, 2018, respectively, are in accordance with the New York State Gaming Commission (the "NYSGC") regulations. In addition, at March 31, 2019 and December 31, 2018, the Company had restricted cash of
$15.9 million
and
$21.0 million
, respectively, remaining from the proceeds of the Term Loan Facility (as defined below) held in the lender-controlled accounts pursuant to the Term Loan Facility. A portion of these funds were used during the three-month period ended March 31, 2019 to make final payments for the construction of the Casino and The Alder.
The following table provides a reconciliation of cash, cash equivalents and restricted cash reported within the condensed consolidated balance sheets that sum to the total of the same amounts shown in the statement of cash flows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
March 31, 2019
|
|
December 31, 2018
|
|
March 31, 2018
|
|
|
|
(in thousands)
|
|
Cash and cash equivalents
|
|
$13,958
|
|
$28,338
|
|
$29,632
|
|
Restricted cash
|
|
143
|
|
|
373
|
|
|
1,212
|
|
|
Restricted cash for Development Projects
|
|
15,889
|
|
|
21,039
|
|
|
33,799
|
|
|
Total cash, cash equivalents and restricted cash shown in the statement of cash flows
|
|
$29,990
|
|
$49,750
|
|
$64,643
|
Restricted cash and cash equivalents for Development Projects
Restricted cash and cash equivalents for Development Projects represent the remaining funds from the Term Loan Facility to be utilized for the Development Projects. At March 31, 2019 and December 31, 2018, restricted cash for Development Projects of
$15.9 million
and
$21.0 million
, respectively, was comprised entirely of cash and cash equivalent balances.
Accounts receivable
Accounts receivable, net of allowances, are stated at the amount the Company expects to collect. When required, an allowance for doubtful accounts is recorded based on information on the collectibility of specific accounts. Accounts are considered past due or delinquent based on contractual terms, how recently payments have been received and the Company’s judgment of collectibility. The Company extends credit to certain gaming patrons upon completion of a credit application process. Gaming patrons are expected to repay gaming markers within a predetermined period of time, the Company also settles wagers for other racetracks and is exposed to credit risk. These amounts are included in accounts receivable. Account balances are charged against the allowance after all means of collection have been exhausted and the potential for recovery is considered remote. The Company recorded an allowance for doubtful accounts of approximately
$147,000
and
$150,000
at March 31, 2019 and December 31, 2018, respectively.
Capitalized Interest
Interest costs for the Term Loan Facility incurred in connection with the construction of the Development Projects have been capitalized in the cost of the projects. Capitalization ceased for the Casino and The Alder on March 31, 2018 and January 1, 2019, respectively, when the projects were substantially completed. Capitalization will cease for the Golf Course Project when substantially complete or if development activity is suspended for an extended period of time.
The Company capitalized
$0.1 million
and
$10.1 million
of interest charges during the three-month periods ending March 31, 2019 and March 31, 2018, respectively.
Debt issuance costs
Debt issuance costs are amortized using the effective interest method over the term of the related debt. The amortization is included within interest expense and is included as a component of the capitalized interest costs.
Long-lived assets and other financial assets
The Company periodically reviews the carrying value of its long-lived assets in relation to historical results, as well as management’s best estimate of future trends, events and overall business climate. If such reviews indicate an issue as to whether the carrying value of such assets may not be recoverable, the Company will then estimate the future cash flows generated by such assets (undiscounted and without interest charges). If such future cash flows are insufficient to recover the carrying amount of the assets, then impairment is triggered and the carrying value of any impaired assets would then be reduced to fair value. In connection with the closure of the VGM operations and food and beverage service at MRMI, the approvals to close having been obtained on April 19, 2019, we are in the process of assessing the MRMI asset group for impairment.
The Company also reviews its financial assets (i.e., non-derivative financial assets) for impairment, if it becomes probable that the commitment will not result in the receipt of proceeds from the issuance of securities.
Other long-term liabilities
The difference between our cash payments and straight-line rent on our land leases and operating leases was
$8.1 million
at December 31, 2018 and was included in "Other long-term liabilities". In addition, the Company has accrued a liability-classified guaranty of approximately
$2.3 million
at both March 31, 2019 and December 31, 2018, related to the guaranty liability due under the MHHA Agreement (as defined below). The Company has also recorded a derivative liability in the form of a put option of approximately
$1.0 million
and
$0.9 million
at March 31, 2019 and December 31, 2018, respectively, relating to the bet365 Common Stock Purchase Agreement (as described below).
Common stock - loss per share
The Company computes basic loss per share by dividing net loss applicable to common shares by the weighted-average common shares outstanding for the period. Diluted loss per share reflects the potential dilution of earnings that could occur if securities or contracts to issue common stock were exercised or converted into common stock or resulted in the issuance of common stock that then shared in the loss of the entity. Since the effect of common stock equivalents is anti-dilutive with respect to losses, these common stock equivalents have been excluded from the Company’s computation of loss per common share. Therefore, basic and diluted loss per common share for the three-month periods ended March 31, 2019 and 2018 were the same.
The following table shows the approximate number of common stock equivalents outstanding at March 31, 2019 and 2018 that could potentially dilute basic loss per share in the future, but were not included in the calculation of diluted loss per share for the three-month periods ended March 31, 2019 and 2018, because their inclusion would have been anti-dilutive to the loss per common share:
|
|
|
|
|
|
|
|
|
|
|
Outstanding at
|
|
|
March 31,
2019
|
|
March 31,
2018
|
|
Unvested Restricted stock
|
19,000
|
|
|
151,000
|
|
|
Warrants
|
193,000
|
|
|
193,000
|
|
|
Restricted stock units ("RSUs")
|
443,000
|
|
|
73,000
|
|
|
Option matching rights
|
—
|
|
|
1,000
|
|
|
Options
|
—
|
|
|
12,000
|
|
|
Total
|
655,000
|
|
|
430,000
|
|
On August 19, 2009, the Company entered into an investment agreement (the "Investment Agreement") with Kien Huat Realty Limited ("Kien Huat"), pursuant to which Kien Huat purchased shares of common stock of the Company during the year ended December 31, 2009. Under the Investment Agreement, if any options or warrants outstanding at the time of the final closing under the Investment Agreement, or the first
200,000
options or warrants granted to directors or officers as of the final closing date under the Investment Agreement, are exercised, Kien Huat has the right to purchase an equal number of additional shares of common stock as are issued upon such exercise at the exercise price for the applicable option or warrant. The Company refers to these rights as the “Option Matching Rights.” The last remaining option matching rights expired in July 2018.
Interest Rate Cap Agreement
In February 2017, the Company entered into an interest rate cap agreement with Credit Suisse AG, International to limit its exposure to increases in interest rates on its Term B Loan (as defined below) from May 1, 2017 through February 28, 2018 and then for a portion of the balance of its Term B Loan through July 31, 2019 (the "Interest Rate Cap"). The Company paid
$675,000
for the Interest Rate Cap. The cost of the Interest Rate Cap is amortized over its term as interest expense. The fair value of the Interest Rate Cap was
$19,000
at March 31, 2019 and
$143,000
at December 31, 2018, and is presented at fair value as "Other assets" on the condensed consolidated balance sheets. The difference between the fair value and amortized cost is recorded as an adjustment to "Accumulated other comprehensive loss".
Accumulated Other Comprehensive Loss
As of March 31, 2019 and December 31, 2018, accumulated other comprehensive loss was
$0.2
million for each period and consisted solely of the fair value adjustment relating to the Interest Rate Cap.
Derivative Liability and Asset
The Company’s Collaboration Agreement with bet365 along with the related bet365 Common Stock Purchase Agreement (as both agreements are defined and discussed in Note I below) contained an initial put option that met the definition of a derivative instrument and a freestanding contingent forward instrument. The Company classified the initial put option as a long-term liability on its condensed consolidated balance sheet. Also, because, bet365 has or will be obligated to purchase shares of the Company’s common stock at a strike price less than the expected equity value once bet365’s Online Sportsbook Services (as defined in Note I below) are approved in New York State, we have classified the freestanding contingent forward instrument as a long-term asset on the condensed consolidated balance sheet. The derivative liability and the contingent forward asset were initially recorded at fair value upon the effective date of the Collaboration Agreement and are remeasured to fair value at each subsequent reporting date. Changes in the fair value of the derivative liability and long-term asset are recognized as a component of "Other income (expense)" on the condensed consolidated statement of operations and comprehensive loss.
Fair value
The Company follows the provisions of ASC 820, “Fair Value Measurement,” issued by the FASB for financial assets and liabilities. This standard defines fair value, provides guidance for measuring fair value, requires certain disclosures and discusses valuation techniques, such as the market approach (comparable market prices), the income approach (present value of future income or cash flow) and the cost approach (cost to replace the service capacity of an asset or replacement cost). The Company chose not to elect the fair value option as prescribed by the FASB for its financial assets and liabilities that had not been previously carried at fair value. The Company’s financial instruments are primarily comprised of current assets, restricted cash and investments, Interest Rate Cap, current liabilities, long-term debt, contingent forward contract, derivative instruments and a guaranty liability. Current assets, investments and current liabilities approximate fair value due to their short-term nature.
In determining fair value, the Company uses quoted prices and observable inputs. Observable inputs are inputs that market participants would use in pricing the asset or liability based on market data obtained from sources independent of the Company.
The fair value hierarchy of observable inputs used by the Company is broken down into three levels based on the source of inputs as follows:
- Level 1 - Valuations based on unadjusted quoted prices in active markets for identical assets or liabilities.
- Level 2 - Valuations based on inputs that are observable inputs and quoted prices in active markets for similar assets and liabilities.
- Level 3 - Valuations based on inputs that are unobservable and models that are significant to the overall fair value measurement.
The following table presents the carrying amount, fair values and classification level within the fair value hierarchy of financial instruments measured or disclosed at fair value on a recurring basis:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
March 31, 2019
|
|
December 31, 2018
|
|
|
|
|
|
Carrying Amount
|
|
Fair Value
|
|
Carrying Amount
|
|
Fair Value
|
|
Level of Fair Value Hierarchy
|
|
Assets:
|
|
(in thousands)
|
|
|
|
Cash and cash equivalents
|
|
$13,958
|
|
$13,958
|
|
$28,338
|
|
$28,338
|
|
Level 1
|
|
Restricted cash
|
|
143
|
|
|
143
|
|
|
373
|
|
|
373
|
|
|
Level 1
|
|
Interest Rate Cap
|
|
19
|
|
|
19
|
|
|
143
|
|
|
143
|
|
|
Level 2
|
|
Restricted cash and cash equivalents for Development Projects
|
|
15,889
|
|
|
15,889
|
|
|
21,039
|
|
|
21,039
|
|
|
Level 1
|
|
Other assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-derivative financial asset - Series F Preferred Stock, redeemable
|
|
25,662
|
|
|
25,662
|
|
|
31,122
|
|
|
31,122
|
|
|
Level 2
|
|
Contingent forward contract - bet365
|
|
104
|
|
|
104
|
|
|
1,865
|
|
|
1,865
|
|
|
Level 3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
Term B Loan, net of discount
|
|
439,889
|
|
|
439,870
|
|
|
440,803
|
|
|
440,660
|
|
|
Level 2
|
|
Term A Loan
|
|
62,988
|
|
|
62,988
|
|
|
64,750
|
|
|
64,750
|
|
|
Level 2
|
|
Bangkok Bank Loan
|
|
20,000
|
|
|
20,000
|
|
|
20,000
|
|
|
20,000
|
|
|
Level 3
|
|
Revolving Credit Facility
|
|
15,000
|
|
|
15,000
|
|
|
15,000
|
|
|
15,000
|
|
|
Level 2
|
|
Long-term loan, related party, net of debt issuance costs
|
|
31,939
|
|
|
31,939
|
|
|
30,954
|
|
|
30,954
|
|
|
Level 3
|
|
Equipment loans
|
|
16,493
|
|
|
16,493
|
|
|
20,384
|
|
|
20,384
|
|
|
Level 3
|
|
Guaranty liability - MHHA agreement
|
|
2,306
|
|
|
2,306
|
|
|
2,300
|
|
|
2,300
|
|
|
Level 2
|
|
Derivative liability - bet365
|
|
994
|
|
|
994
|
|
|
879
|
|
|
879
|
|
|
Level 3
|
Valuation of Derivative Liability and Contingent Forward Contract
The fair value of the derivative liabilities and asset recognized in connection with the Collaboration Agreement and the bet365 Common Stock Purchase Agreement (see Note I) was determined based on significant inputs not observable in the market, which represents a Level 3 measurement within the fair value hierarchy. The derivative liability for the initial put option was recorded in "Other long-term liabilities" on the consolidated balance sheets. The contingent forward contract was recorded net of the contingent put option in "Other assets" on the condensed consolidated balance sheets. The fair value of the derivative liabilities and asset was determined using a Monte Carlo simulation valuation approach with the following assumptions:
|
|
|
|
|
|
|
|
|
|
|
|
|
March 31, 2019
|
|
December 31, 2018
|
|
|
Derivative Liability - bet365
|
|
Contingent forward contract - bet365
|
|
Derivative Liability - bet365
|
|
Contingent forward contract - bet365
|
|
Equity value
|
$21.66
|
|
$21.66
|
|
$29.48
|
|
$29.48
|
|
Strike price
|
$20.00
|
|
$18.81
|
|
$20.00
|
|
$20.00
|
|
Expected term
|
3.08 years
|
|
2.76 years
|
|
3.46 years
|
|
3.13 years
|
|
Volatility
|
61%
|
|
61%
|
|
61%
|
|
62%
|
|
Risk-free rate
|
2.2%
|
|
2.2%
|
|
2.9%
|
|
2.9%
|
|
Dividend yield
|
—
|
|
—
|
|
—
|
|
—
|
The following table provides a roll forward of the aggregate fair values of the Company’s derivative liabilities and asset, for which fair value is determined using Level 3 inputs (in thousands):
|
|
|
|
|
|
|
|
|
March 31, 2019
|
|
|
Derivative Liability - bet365
|
|
Contingent forward contract -bet365
|
|
Balance as of December 31, 2018
|
$(879)
|
|
$1,865
|
|
Change in fair value
|
$(115)
|
|
$(1,761)
|
|
Balance as of March 31, 2019
|
$(994)
|
|
$104
|
Valuation of Non-Derivative Liability
The fair value of the guaranty liability recognized in connection with the MHHA Agreement (see Note I) was determined based on significant inputs that are observable and quoted prices in active markets for similar liabilities, which represents a Level 2 measurement within the fair value hierarchy. The fair value of the derivative liability was determined using a Black Scholes valuation approach with the following assumptions:
|
|
|
|
|
|
|
|
|
March 31, 2019
|
|
December 31, 2018
|
|
|
Guaranty Liability - MHHA Horsemen
|
|
Guaranty Liability - MHHA Horsemen
|
|
Equity value
|
$10.05
|
|
$10.13
|
|
Strike price
|
$27.50
|
|
$27.50
|
|
Expected term
|
5.86 years
|
|
6.11 years
|
|
Volatility
|
68%
|
|
68%
|
|
Risk-free rate
|
2.2%
|
|
2.6%
|
|
Dividend yield
|
—
|
|
—
|
Stock-based compensation
The cost of all stock-based awards to employees, including grants of employee restricted stock units, is recognized in the financial statements based on the fair value of the awards at grant date. The fair value of share-based awards is recognized as stock-based compensation expense on a straight-line basis over the requisite service period from the date of grant. As of March 31, 2019, there was approximately
$3.9
million of total unrecognized compensation cost related to non-vested share-based compensation arrangements granted under the Company’s equity compensation plan. That cost is expected to be recognized over a period of
three years
. This expected cost does not include the impact of any future stock-based compensation awards.
Income taxes
The Company applies the asset and liability approach to financial accounting and reporting for income taxes. Deferred income tax assets and liabilities are computed for differences between the financial statement and tax bases of assets and liabilities that will result in future taxable or deductible amounts, based on enacted tax laws and rates for the periods in which the differences are expected to affect taxable income. Valuation allowances are established, when necessary, to reduce deferred tax assets to the amount expected to be realized.
Intangible Assets
In accordance with ASC 350, Intangibles - Goodwill and Other, the Company amortizes intangible assets over their estimated useful lives unless the Company determines their lives to be indefinite.
The Company paid
$51 million
to the NYSGC on February 25, 2016 for a gaming facility license (the "Gaming Facility License"). The term of the Gaming Facility License is
10
years and the amortization commenced on the date the Casino opened to the public in February 2018. Beginning in February 2018, the Company recognized amortization on a straight line basis and will continue to amortize approximately
$6.3 million
annually over the next
seven years
until the license is up for renewal in 2026. The Company will assess the intangible asset for impairment annually or more frequently if events or changes in circumstances indicate that the asset might be impaired.
Seasonality
The gaming market in the northeastern United States is seasonal in nature. Peak gaming activities occur during the months of May through September.
Segment Reporting
The Company maintains discrete financial information for each of its operating companies, which is used by the Chief Executive Officer (the "CEO") as the basis for allocating resources. Each company has been identified as an operating segment and meets the criteria for aggregation due to similar economic characteristics as all of the companies provide similar gaming and entertainment services and shares similar processes for delivering services. Our companies have a high degree of similarity in the workforces and target similar patron groups. Accordingly, based on these economic and operational similarities and the way the CEO monitors and makes decisions, the Company has concluded that its operating segments may be aggregated and that it has one reportable segment.
Recent accounting pronouncements
In February 2016, the Financial Accounting Standards Board (the "FASB") issued Accounting Standards Update ("ASU") 2016-02, "Leases (Topic 842)" ("ASU 2016-02"). This ASU requires lessees to recognize most leases on their balance sheets as lease liabilities with corresponding ROU assets. ASU 2016-02 takes effect for public companies for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2018. The standard must be adopted using a modified retrospective approach and provides for certain practical expedients. The Company adopted the standard on January 1, 2019 and applied the package of practical expedients available to it upon adoption, which among other alternatives, allows us to carry forward the historical lease classification. The adoption of this standard did not not materially affect our consolidated net income or cash flows. See Note L for further details.
Note A. Organization and Nature of Business
Overview
Empire Resorts, Inc. (“Empire,” and, together with its subsidiaries, the “Company,” “us,” “our” or “we”) was organized as a Delaware corporation on March 19, 1993 and, since that time, has served as a holding company for various subsidiaries engaged in the hospitality and gaming industries.
Our indirect, wholly-owned subsidiary, Montreign Operating Company, LLC, doing business as Resorts World Catskills ("Montreign Operating"), owns and operates Resorts World Catskills, a casino resort (the "Casino"), which is located at the
approximately 1,700-acre site of a four-season destination resort (the "Destination Resort") in Sullivan County, New York, approximately 90 miles from New York City. The Destination Resort at which Resorts World Catskills is located also includes a 101-room lifestyle hotel ("The Alder"), adjacent to the Casino. The Alder is owned and operated by Empire Resorts Real Estate II, LLC ("ERREII"), a wholly-owned subsidiary of Montreign Operating. Empire Resorts I, LLC ("ERREI"), which is a wholly-owned subsidiary of Montreign Operating, is developing a golf course (the "Golf Course Project" and together with the Casino and The Alder, the "Development Projects") at the Destination Resort.
On March 25, 2019, the NYSGC approved a request by Montreign Operating to adjust certain conditions of the gaming facility license (the "Gaming Facility License") with respect to the Casino which would reduce the minimum number of slot machines from no less than 2,150 to no less than 1,600.
Through our wholly-owned subsidiary, Monticello Raceway Management, Inc. ("MRMI"), we own and operate Monticello Casino and Raceway, which began racing operations in 1958 in Monticello, New York, which is proximate to the Casino. Monticello Casino and Raceway featured a video gaming machine ("VGM") and harness horseracing facility. VGM operations and food and beverage service at Monticello Casino and Raceway ceased on April 23, 2019. We generate racing revenues through pari-mutuel wagering on the running of live harness horse races, the import simulcasting of harness and thoroughbred horse races from racetracks across the country and internationally, and the export simulcasting of our races to offsite pari-mutuel wagering facilities.
Following our announcement that VGM operations would cease at Monticello Casino and Raceway, legislation was proposed to eliminate our license to operate a VGM facility and to enable Catskill OTB to operate a similarly-sized VGM facility in the Catskill region, other than in Sullivan, Tioga or Westchester counties. Subsequently, there have been discussions of locating a VGM facility operated by Catskill OTB in Orange County, New York. We are vigorously opposing this legislation and the operation of such a facility in Orange County, New York by a third party. At the request of legislators, we have provided analysis of the economic benefits of locating our VGM facility in Orange County, New York. The operation of any VGM facility in Orange County, New York would require New York State to enact laws allowing for such operation.
Basis for Presentation
The condensed consolidated financial statements and notes as of March 31, 2019 and December 31, 2018 and for the three- month periods ended March 31, 2019 and March 31, 2018 include the accounts of Empire and its subsidiaries. All intercompany balances and transactions are eliminated in consolidation.
The accompanying unaudited condensed consolidated financial statements of the Company have been prepared under the rules and regulations of the Securities and Exchange Commission ("SEC") applicable for interim periods, and therefore do not include all information necessary for complete financial statements in conformity with accounting principles generally accepted in the United States (“U.S. GAAP”). Our financial statements require the use of estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses, as well as the disclosure of contingent liabilities. Actual amounts could differ from those estimates. These condensed consolidated financial statements reflect all adjustments (consisting primarily of normal recurring accruals) which are, in the Company’s opinion, necessary for a fair presentation of financial position, results of operations and cash flows for the interim periods. These condensed consolidated financial statements and notes should be read in conjunction with the consolidated financial statements and notes thereto included in the Company's Annual Report on Form 10-K for the year ended December 31, 2018. The results of operations for our interim periods may not be necessarily indicative of the results of operations that may be achieved for the entire year.
Liquidity and Capital Resources
The accompanying consolidated financial statements have been prepared on a basis that contemplates the realization of assets and the satisfaction of liabilities and commitments in the normal course of business. Historically and prospectively, our primary sources of liquidity and capital resources have been, and will continue to be, cash flow from operations, borrowings from banks and proceeds from the issuance of debt and equity securities. The Company anticipates that its current cash and cash generated from operations, as well as the remaining net proceeds of the Term Loan Facility and equity financing available under the 2018 Kien Huat Preferred Stock Commitment Letter (as defined below), will be sufficient to meet the working capital requirements, the expected costs of the Development Projects and our anticipated debt service requirements for the next 12 months. Our future operating performance and our ability to service our debt will be subject to future economic conditions and to financial, business and other factors, many of which are beyond our control. See “Risk Factors” in our Annual Report on Form 10‑K for the fiscal year ended December 31, 2018 for a discussion of the risks related to our liquidity and capital structure.
Note C. Prepaid Expenses and Other Assets
The amounts of the unreceived New York State gaming tax receivable for MRMI of approximately
$4.3 million
and
$3.4 million
at March 31, 2019 and December 31, 2018, respectively, were included in prepaid expenses and other current assets. This receivable will be paid by New York State to the Company at or around June 30, 2019. Prepaid real estate taxes at March 31, 2019 and December 31, 2018 of
$2.2 million
and
$0.3
million, respectively, primarily include real estate taxes paid for the Casino and MRMI and will be amortized during 2019 on a straight-line basis.
Prepaid expenses and other current assets, as presented on the condensed consolidated balance sheets, are comprised of the following at March 31, 2019 and December 31, 2018:
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March 31, 2019
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December 31, 2018
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(in thousands)
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|
Receivable from New York State
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|
$4,308
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|
$3,422
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|
Prepaid real estate taxes
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|
2,201
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|
|
284
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|
|
Prepaid insurance
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8
|
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392
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|
Prepaid supplies
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1,633
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|
|
1,528
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|
Prepaid advertising
|
|
101
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|
23
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|
Prepaid gaming expenses
|
|
587
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|
773
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|
Prepaid maintenance contracts
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889
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|
657
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Development escrow and refundable security deposit
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531
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|
572
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Prepaid other
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570
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|
375
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|
Total prepaid expenses and other current assets
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$10,828
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|
$8,026
|
Note D. Property and Equipment
Property and equipment at March 31, 2019 and December 31, 2018 consists of the following:
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March 31, 2019
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December 31, 2018
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(in thousands)
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Land
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$770
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|
$770
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Land improvements
|
2,382
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2,382
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Buildings
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624,290
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622,043
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Building improvements
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104,654
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103,621
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Furniture, fixtures and equipment
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11,057
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10,954
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Construction in Progress
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2,966
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|
2,784
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|
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746,119
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742,554
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Less: Accumulated depreciation
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(53,271
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)
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(44,875
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)
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$692,848
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$697,679
|
The
$3.6 million
increase in property and equipment was primarily due to the reclassification of capitalized Development Projects costs to buildings, building improvements and furniture, fixtures and equipment during the three-month period ended March 31, 2019. At March 31, 2019,
$6.9
million remains classified as capitalized Development Projects costs reflecting the ongoing construction of the Development Projects, primarily related to the Golf Course Project.
Depreciation expense was approximately
$8.4 million
and
$4.7 million
for the three-month periods ended March 31, 2019 and 2018, respectively.
The VGMs at Monticello Casino and Raceway are owned by the NYSGC and, accordingly, the Company's condensed consolidated financial statements include neither the cost nor the depreciation of those devices.
Note E. Development Projects Costs
Capitalized Project Development Costs
At March 31, 2019 and December 31, 2018, capitalized Development Projects costs incurred were approximately
$6.9 million
and $
5.7 million
, respectively. Total capitalized Development Projects costs at March 31, 2019 consisted of
$5.9 million
of construction costs, site development, contractor insurance, general conditions, architectural fees and construction manager fees, and approximately
$1.0
million of professional service fees including legal and accounting fees. Total capitalized Development Projects costs at December 31, 2018 consisted of
$4.2 million
of construction costs, site development, contractor insurance, general conditions, architectural fees and construction manager fees, and approximately
$1.5 million
of professional service fees, including legal and accounting fees.
In September 2018, ERREI entered into a standard contractor agreement for the construction of the Golf Course Project, at a cost of approximately
$21.2 million
. The Company began construction in September 2018.
Note F. Accrued Expenses and Other Current Liabilities
Accrued Development Projects costs at March 31, 2019 and December 31, 2018 were
$31.4 million
and
$33.7 million
, respectively, and were primarily comprised of amounts due to the construction managers for costs incurred for the Development Projects, as well as amounts due to other vendors. The proceeds from the Term Loan Facility will be used to pay the accrued Development Projects costs.
Accrued expenses and other current liabilities, as presented on the condensed consolidated balance sheets, are comprised of the following at March 31, 2019 and December 31, 2018:
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March 31, 2019
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December 31, 2018
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(in thousands)
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Liability for horseracing purses
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$756
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$868
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Accrued payroll
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5,408
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|
8,142
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Accrued interest expense
|
4,937
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|
5,033
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Accrued marketing
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4,978
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|
5,298
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Deferred revenue - loyalty points
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1,768
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2,202
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Liability to the NYSGC
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1,851
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2,816
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Liability for local progressive jackpot
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2,922
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2,560
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Accrued premium game leases
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625
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1,288
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Accrued professional fees
|
2,231
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2,337
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Accrued utilities
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342
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|
561
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Accrued other
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5,540
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2,573
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Total accrued expenses and other current liabilities
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$31,358
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$33,678
|
Note G. Long-Term Debt
Long-term debt, other than related party debt, consisted of the following at March 31, 2019 and December 31, 2018:
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March 31, 2019
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December 31, 2018
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(in thousands)
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Term B Loan (net of unamortized discount)
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$439,889
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$440,803
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Term A Loan
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62,988
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64,750
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Bangkok Bank Loan
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|
20,000
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20,000
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Revolving Credit Facility
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15,000
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15,000
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Equipment Loans
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16,493
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20,384
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Total long-term debt
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554,370
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560,937
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Debt issuance costs
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|
(16,149
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)
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|
(17,240
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)
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Total long-term debt, net
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538,221
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543,697
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Less: Current portion of long-term debt
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(46,388
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)
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(48,004
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)
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Long term-debt, net of current portion
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$491,833
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$495,693
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Term Loan Facility
At March 31, 2019 and December 31, 2018, Montreign Operating's senior secured term loan facility (the "Term Loan Facility") consisted of
$63.0 million
and
$64.8
million, respectively, outstanding under the Term A loan (the "Term A Loan") and
$439.9 million
and
$440.8 million
, respectively, outstanding (net of original issue discount) under the Term B loan (the "Term B Loan"). Pursuant to the Building Term Loan Agreement (as amended, the "Term Loan Agreement"), among Montreign Operating, the lenders from time to time party thereto, and Credit Suisse AG, Cayman Islands Branch (“Credit Suisse”), as administrative agent, the Term A Loan is fully drawn in accordance with the Term Loan Agreement, which required the Company to complete the draw down of the Term A Loan by July 24, 2018. The Term A Loan will mature on January 24, 2022 and the Term B Loan will mature on January 24, 2023. Interest accrues on outstanding borrowings under the Term A Loan at a rate equal to LIBOR plus
5.0%
per annum, or an alternate base rate plus
4.0%
per annum. At March 31, 2019 and December 31, 2018, the interest rate on the Term A Loan was
7.65%
and
7.68
%, respectively. Interest accrues on outstanding borrowings under the Term B Loan at a rate equal to LIBOR (with a floor of
1%
) plus
8.25%
per annum, or an alternate base rate plus
7.25%
per annum. At March 31, 2019 and December 31, 2018, the interest rate on the Term B Loan was
10.88%
and
10.96%
, respectively. In addition, Montreign Operating paid a commitment fee to each Term A Loan lender equal to the undrawn amount of such lender’s commitment multiplied by a rate equal to
5.0%
per annum through July 24, 2018.
The Company is currently required to make principal payments under the Term B Loan and the Term A Loan at the end of each calendar quarter, which began with the period ended June 30, 2018. The Company repays
1%
of the original principal balance of the Term B Loan each year, in quarterly payments of approximately
$1.1 million
. The Company currently repays
2.5%
of the original principal amount of the Term A Loan, in quarterly payments of approximately $
1.8 million
for the period ending March 31, 2019, and quarterly installments of approximately
$2.6 million
thereafter. The Company repaid approximately
$1.8 million
and
$1.2 million
on the Term A Loan and Term B Loan, respectively, in the three-month period ended March 31, 2019. Loan repayments began in June 2018, as such no loan repayments were made during the period ended March 31, 2018.
The Term Loan Agreement contains representations and warranties, customary events of default, and affirmative, negative and financial covenants. Mandatory prepayments of the Term Loan Facility will be required upon the occurrence of certain events, including sales of certain assets and casualty events. In addition, the Term Loan Agreement restricts the Project Parties (as defined below) from incurring additional indebtedness except for, among other things, obligations pursuant to hedging agreements required under the Term Loan Agreement, capital lease obligations and purchase money indebtedness (including FF&E financing) in an amount not exceeding
$40 million
, subordinated indebtedness so long as the proceeds are applied pursuant to the terms of the Term Loan Agreement and other indebtedness not exceeding
$10 million
. Also, the Project Parties may not make any dividend or other distribution, redeem or otherwise acquire any equity securities or subordinated indebtedness. Moreover, the Project Parties are restricted from entering into advisory, management or consulting agreements with an affiliate of any Project Party, including Empire, except for payments pursuant to tax sharing agreements, distributions in an amount not exceeding
1%
of the net revenues of the Project Parties in any fiscal year, repurchase of capital stock of the Company in an amount not exceeding
$1 million
and required by the NYSGC, and certain available amounts of cash based on the application of financial covenants.
Additional affirmative, negative and financial covenants under the Term Loan Agreement include that the Company maintain compliance with a maximum first lien leverage ratio not to exceed
5
.0:
1.0
, a minimum interest coverage ratio not to fall below
2
.0:
1.0
and a consolidated capital expenditure covenant not to exceed
$10.5 million
of eligible expenses in any calendar year. In addition, the Company is allowed to add back pro forma EBITDA in the amount of
$108.4 million
,
$77.5 million
and
$39.4 million
in each of the first three testing quarters, respectively. The Company has a right to cure any covenant defaults through the use of specified equity contributions during the first three quarters tested for covenant compliance. The financial covenants relating to the maximum first lien leverage ratio and the minimum interest coverage ratio will be measured beginning in the fiscal quarter ending on June 30, 2019. As of March 31, 2019, the Company was in compliance with all applicable covenant requirements under the Term Loan Facility.
The Term Loan Facility is guaranteed by Montreign Operating, ERREI and ERREII (together, the "Project Parties") and is secured by security interests in substantially all the real and personal property of the Project Parties and by a pledge of all the membership interests of Montreign Operating held by Montreign Holding Company, LLC ("Montreign Holding"), a wholly-owned subsidiary of Empire.
Obligations under the Term Loan Agreement may be accelerated upon certain customary events of default, including, among others: nonpayment of principal, interest or fees; breach of the affirmative or negative covenants; revocation of a gaming license for seven consecutive business days; and a Change in Control (as such term is defined in the Term Loan Agreement) of Montreign Operating.
Revolving Credit Facility
At March 31, 2019 and December 31, 2018, Montreign Operating's revolving credit facility (the "Revolving Credit Facility") consisted of
$15 million
of outstanding borrowings. The Revolving Credit Facility provides for loans or other extensions of credit to be made to Montreign Operating in an aggregate principal amount of up to
$15 million
(including a letter of credit sub-facility of
$10 million
) pursuant to the terms of the Revolving Credit Agreement, among Montreign Operating, the lenders from time to time party thereto, and Fifth Third Bank, as administrative agent (as amended, the "Revolving Credit Agreement"). The proceeds of the Revolving Credit Facility were used for working capital needs, capital expenditures and other general corporate purposes. The Revolving Credit Facility will mature on January 24, 2022. Interest accrues on outstanding borrowings at a rate equal to LIBOR plus
5.0%
per annum, or an alternate base rate plus
4.0%
per annum. At March 31, 2019 and December 31, 2018, the interest rate on borrowings under the Revolving Credit Facility was
7.63%
and
7.71%
, respectively.
The Revolving Credit Facility is guaranteed by the Project Parties and is secured by security interests in substantially all the real and personal property of the Project Parties and by a pledge of all the membership interests of Montreign Operating held by Montreign Holding Company, LLC, a wholly-owned subsidiary of Empire.
The Revolving Credit Facility contains representations and warranties, customary events of default, and affirmative, negative and financial covenants substantially similar to the terms of the Term Loan Agreement. Mandatory prepayments of the Revolving Credit Facility will be required upon the occurrence of certain events, including sales of certain assets, casualty events and the incurrence of certain additional indebtedness, subject to certain exceptions and reinvestment rights. As of March 31, 2019, the Company was in compliance with all applicable covenant requirements under the Term Loan Facility.
Bangkok Bank Loan
At March 31, 2019 and December 31, 2018, the Delayed Draw Term Loan, as amended (the "Bangkok Bank Loan") consisted of
$20 million
of outstanding borrowings pursuant to the Delayed Draw Term Loan Credit Agreement (the “Bangkok Bank Loan Agreement”), among Empire, Bangkok Bank PCL, New York Branch (“Bangkok Bank”), as lender, and MRMI, as guarantor.
The Bangkok Bank Loan will mature on December 28, 2019. Interest accrues on outstanding borrowings under the Bangkok Bank Loan at a rate equal to LIBOR plus
6.25%
, or an alternate base rate plus
5.25%
per annum. At March 31, 2019 and December 31, 2018, the interest rate on the Bangkok Bank Loan was
8.74%
and
8.77%
, respectively.
The Bangkok Bank Loan was amended (the "Bangkok Bank Loan Amendment") on June 25, 2018 concurrently with the execution of the Kien Huat Subordinate Loan Agreement (which is defined and discussed in Note H below). The Bangkok Bank Loan Amendment permitted the Company to incur the Kien Huat Subordinate Loan.
The Bangkok Bank Loan is guaranteed by MRMI and is secured by a security interest in Monticello Casino and Raceway. The Bangkok Bank Loan Agreement contains customary representations and warranties and affirmative, negative and financial covenants, including representations, warranties and covenants that, among other things, restrict the ability of the Company and MRMI to incur additional debt, incur or permit liens on assets, make investments and acquisitions, consolidate or merge with any other company, engage in certain transactions with affiliates, or make dividends or other distributions. Obligations under the Bangkok Bank Loan Agreement may be accelerated upon certain customary events of default, including, among others, nonpayment of principal, interest or fees, breach of the affirmative or negative covenants, revocation of a gaming license after the expiration of certain cure periods, and a change of control of the Company.
In addition, the Bangkok Bank Loan Agreement contains a financial covenant that restricts the maximum total leverage ratio to four times the adjusted EBITDA of MRMI, which financial covenant is applicable beginning with the fiscal quarter ending December 31, 2018. The Bangkok Bank Loan Amendment excludes the Kien Huat Subordinate Loan from calculations of the Company's maximum total leverage so long as the Kien Huat Subordinate Loan remains subordinate to the Bangkok Bank Loan. The Company is in compliance with the covenant requirements as of March 31, 2019.
Equipment Loans
The Company has entered into several financing agreements related to the purchase of its slot machines, equipment and software for its telephone, hotel and Casino operations. The original amount financed was
$31.1 million
and the terms of these agreements run between
six
and
36
months. The balances outstanding at March 31, 2019 and December 31, 2018 totaled approximately
$16.5 million
and
$20.4 million
, respectively. The stated interest rates for these loans are between
zero
and
eight
percent per annum. The Company has imputed interest on several equipment loans with stated interest rates of
0%
, using the Company's cost of funds rate of approximately
10%
. The weighted average of the monthly principal repayments is approximately
$1.0 million
.
The following table lists the annual principal repayments due for the Company's long term debt as of March 31, 2019:
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Year ending December 31,
|
Totals
|
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|
(in thousands)
|
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2019
|
$41,236
|
|
2020
|
20,686
|
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2021
|
15,821
|
|
|
2022
|
30,000
|
|
|
2023
|
28,113
|
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|
Thereafter
|
424,043
|
|
|
Totals
|
$559,899
|
Note H. Long-Term Loans, Related Party
Subsidiary Revolving Loan Agreement
On November 30, 2018, Empire entered into a Revolving Loan Agreement (the “Sub Revolving Loan Agreement”) with Montreign Operating. The Sub Revolving Loan Agreement provides for loans (in the aggregate, the “Sub Revolving Loan”) to Montreign Operating in a principal amount of up to
$10 million
(the “Subsidiary Loan Amount”). Interest accrues on outstanding borrowings at a rate of
7%
per annum and will be payable beginning on the last day of each calendar quarter beginning on March 31, 2019. Of that interest,
1%
will be payable in cash and
6%
will accrue and remain outstanding until paid in full (and continue to bear interest). The Sub Revolving Loan, together with interest accrued and yet unpaid, will be due and payable on April 25, 2023.
The Sub Revolving Loan Agreement contains customary representations and warranties and affirmative covenants, including representations, warranties and covenants on organization, authorization, enforceability and maintenance of existence. The Sub Revolving Loan is secured by a security interest in all personal property of Montreign Operating subject to the limitations and exceptions described in the Sub Revolving Loan Agreement. Obligations under the Sub Revolving Loan Agreement may be accelerated upon certain customary events of default, including, among others: nonpayment of principal, interest or fees; breach of any term, covenant, or agreement under the Sub Revolving Loan Agreement; a bankruptcy proceeding involving Montreign, whether voluntary or involuntary; or the acceleration of any indebtedness in excess of
$10 million
.
Montreign Operating agreed to indemnify Empire and its officers, partners, members, directors, employees and agents (together, the “Indemnified Parties” and each an “Indemnified Party”) against any and all damages arising out of any negligence or tortious acts or omissions by Montreign Operating or its agents, contractors, servants or employees, any failure by Montreign to comply with the terms of the Sub Revolving Loan Agreement, and any failure by Montreign Operating to comply with the law, except to the extent any such damages result from the gross negligence or willful misconduct of an Indemnified Party.
At March 31, 2019 and December 31, 2018,
$10 million
was due from Montreign Operating pursuant to requests under the Sub Revolving Loan.
Loan Arrangements with Kien Huat Realty III Limited
Kien Huat Subordinate Loan Agreement
On June 25, 2018, Kien Huat and the Company entered into a loan agreement (the “Kien Huat Subordinate Loan Agreement”), providing for loans of up to
$30 million
(the “Kien Huat Subordinate Loan”). The Kien Huat Subordinate Loan is subordinate to the Bangkok Bank Loan. The proceeds of the Kien Huat Subordinate Loan may be used exclusively to make capital contributions to Montreign Operating. Montreign may use such funds for marketing and general corporate purposes (including the payment of debt service). All amounts due under the Kien Huat Subordinate Loan will mature on December 28, 2020, which date may be extended for additional
one
-year periods if the Bangkok Bank Loan is similarly extended or accelerated in the event the Bangkok Bank Loan is accelerated. The maturity of the Kien Huat Subordinate Loan may also be extended for up to one year at the sole discretion of Kien Huat.
At March 31, 2019 and December 31, 2018,
$30 million
was outstanding under the Kien Huat Subordinate Loan. The Company paid Kien Huat a commitment fee of
$300,000
(or
1%
of the principal amount) out of the proceeds of the first advance.
The Kien Huat Subordinate Loan bears interest at a rate of
12%
per annum, compounded monthly, and will be payable at maturity. Prior to the maturity of the Kien Huat Subordinate Loan, interest will not be required to be paid in cash and will be added to the outstanding principal of the Kien Huat Subordinate Loan and will thereafter be deemed to be part of the principal indebtedness due thereunder upon maturity. The Kien Huat Subordinate Loan may be repaid in full or in part at any time without premium or penalty.
The Kien Huat Subordinate Loan Agreement contains customary representations and warranties and affirmative covenants, including a restriction on the use of the proceeds of the Kien Huat Subordinate Loan as described above. Obligations under the Kien Huat Subordinate Loan Agreement may be accelerated upon certain customary events of default, including among others: nonpayment of principal, interest or fees; breach of the affirmative covenants; and a default in payment of or acceleration of the Bangkok Bank Loan. Additionally, any future amendments to the Bangkok Bank Loan Agreement relating to default provisions thereunder, prepayment provisions or an increase of the maximum principal amount thereunder will be subject to Kien Huat’s prior written consent.
The Company agreed to indemnify and defend Kien Huat and its affiliates from negligent acts or omissions of the Company and its affiliates, any failure of the Company to comply with the terms of the Kien Huat Subordinate Loan Agreement and any failure of the Company to comply with any laws, except to the extent resulting from the gross negligence or willful misconduct of Kien Huat or its affiliates.
Kien Huat Backstop Loan Agreement
Concurrently with and as a condition to the closing of the Bangkok Bank Loan Agreement, on December 28, 2017, Empire and Kien Huat entered into a loan agreement (the "Kien Huat Backstop Loan Agreement"), providing for loans to Empire in an aggregate principal amount of up to
$20 million
(the "Kien Huat Backstop Loan"). Any amounts borrowed pursuant to the Kien Huat Backstop Loan Agreement will be used exclusively to make payments required under the Bangkok Bank Loan Agreement and will mature on the one-year anniversary of the maturity date of the Bangkok Bank Loan, or such earlier date that the Bangkok Bank Loan is terminated (the "Backstop Maturity Date"). As of March 31, 2019 and December 31, 2018,
no
amounts had been borrowed under the Kien Huat Backstop Loan.
The Kien Huat Backstop Loan bears interest at a rate of
12%
per annum. Prior to the Backstop Maturity Date, interest on any principal amount outstanding under the Kien Huat Backstop Loan will accrue and be added to the outstanding principal of the Kien Huat Backstop Loan on the first business day of each calendar month beginning on January 1, 2018 and will thereafter be deemed to be part of the principal indebtedness. The Kien Huat Backstop Loan, including all interest and any other amounts due under the Kien Huat Backstop Loan, will be payable in cash on the Backstop Maturity Date.
The Kien Huat Backstop Loan Agreement contains representations and warranties and affirmative covenants that are usual and customary, including representations, warranties and covenants that restrict the Company’s use of the proceeds of the Kien Huat Backstop Loan Agreement to pay amounts due and payable under the Bangkok Bank Loan. Obligations under the Kien Huat Backstop Loan Agreement may be accelerated upon certain customary events of default, including among others: nonpayment of principal, interest or fees; and breach of the affirmative covenants.
Note I. Stockholders’ Equity
Common Stock
Restriction on Ownership
Our common stock is transferable only subject to the provisions of Section 303 of the Racing, Pari-Mutuel Wagering and Breeding Law, so long as we hold, directly or indirectly, a license issued by the NYSGC, and may be subject to compliance with the requirements of other laws pertaining to licenses held directly or indirectly by us. The owners of common stock issued by us may be required by regulatory authorities to possess certain qualifications and may be required to dispose of their common stock if the owner does not possess such qualifications.
Restriction on Ability to Pay Dividends
Pursuant to the terms of the Bangkok Bank Loan Agreement, neither Empire nor any of its subsidiaries is permitted to declare or pay any dividends or make other payments to purchase, redeem, retire or otherwise acquire any capital stock of the Company. Such restriction will lapse upon the payment in full of any amounts outstanding under the Bangkok Bank Loan Agreement. Notwithstanding the foregoing, so long as no event of default has occurred, subsidiaries of Empire are permitted to pay dividends to Empire and Empire may pay dividends on the Series B Preferred Stock and for withholding taxes payable in connection with equity compensation programs.
Bet365 Common Stock Purchase Agreement
On November 14, 2018, the Company entered into a sportsbook and digital gaming collaboration agreement (the “Collaboration Agreement”) with Hillside (New York) LLC, an affiliate of bet365 Group Limited (“bet365”). In connection with entering into the Collaboration Agreement, Hillside (New Media Holdings) Limited, an affiliate of bet365 ("bet365 Investor"), and the Company entered into a common stock purchase agreement (the “bet365 Common Stock Purchase Agreement”) pursuant to which bet365 Investor agreed to purchase up to
2.5 million
shares of common stock of the Company at a purchase price of
$20.00
per share, for an aggregate investment of
$50 million
.
Upon execution of the bet365 Common Stock Purchase Agreement, the bet365 Investor purchased
1,685,759
shares of common stock. The Company received net proceeds of
$29.6 million
from the offering.
Pursuant to the bet365 Common Stock Purchase Agreement, the bet365 Investor will be obligated to purchase the remaining
814,241
shares of common stock at
$20.00
per share so long as the following closing conditions are met: (i)
30
days have passed following the receipt of approval from the NYSGC of bet365 Investor’s ownership of the Shares and the enactment of laws by New York State allowing the offering of the online sportsbook services by bet365, as outlined in the Collaboration Agreement (the "bet365 Online Sportsbook Services"); (ii) the representations and warranties of the Company are true and correct in all material respects and the Company has complied with its obligations under the bet365 Common Stock Purchase Agreement; (iii) the Collaboration Agreement is in full force and effect and there is no material breach of the Collaboration Agreement by the Company outstanding; (iv) the common stock of the Company continues to be listed on The Nasdaq Stock Market; (v) the Company continues to own
100%
of the equity interests in the Casino; and (vi) the Company's Gaming Facility License for the Casino is still valid.
After all gaming taxes have been paid and the parties have recouped their costs and expenses, bet365 may receive a distribution (the “Preferred Distribution”) equal to
50%
of the positive difference, if any (the “delta”), between
$20
and the value of the Company’s common stock measured on a given date (such date, the “Trigger Date”), multiplied by the number of shares of common stock then held by bet365 Investor. The Trigger Date is
30
days after the Company’s first filing of an annual or quarterly report with the Securities and Exchange Commission after bet365 recoups its costs incurred pursuant to the Collaboration Agreement. The delta will be the positive difference between
$20
and the
30-day
volume-weighted average price of the Company’s common stock on the Trigger Date. If the Company is no longer a reporting company, or if the Company’s common stock is not listed on a national securities exchange, the delta will be the positive difference between
$20
and the fair market value of the Company’s common stock as determined by an investment bank retained by the parties. If a change of control (as such term is defined in the Collaboration Agreement) of the Company occurs before the Trigger Date, the delta will be the positive difference between
$20
and the per share value paid by a third party in a change of control transaction. The Preferred Distribution, if any, will be payable on a monthly basis over a period of
three years
. If bet365 Investor sells any shares of common stock prior to the Trigger Date, the Preferred Distribution will be deemed to be
$0
.
The Company concluded that the Preferred Distribution (an initial put option) is an embedded derivative liability because the right to receive the Preferred Distribution will not transfer with any shares of common stock sold by bet365 Investor. The fair value of the derivative liability associated with shares already sold to bet365 Investor was
$1.0 million
and
$0.9 million
at March 31, 2019 and December 31, 2018, respectively.
The Company also concluded the ability to purchase the remaining shares under the bet365 Common Stock Purchase Agreement is a freestanding contingent forward instrument. The fair value of this instrument was approximately
$0.1 million
and
$1.9 million
at March 31, 2019 and December 31, 2018, respectively, net of the derivative liability (contingent put option) of approximately
$0.5 million
and
$0.4 million
, respectively, for the right associated with the remaining shares to also receive the Preferred Distribution.
The derivative liability and the contingent forward asset were recorded at fair value upon the effective date of the Collaboration Agreement and are remeasured to fair value at each subsequent reporting date. Changes in the fair value of the derivative liabilities and long-term asset are recognized as a component of "Other income (expense)" in the condensed consolidated statement of operations and comprehensive loss.
Preferred Stock and Dividends
Series F Preferred Stock, redeemable
On February 20, 2019, under the terms of the KH Series F Preferred Stock Commitment, the Company and KH entered into a subscription agreement, pursuant to which KH purchased
200
shares of the Company's Series F Preferred Stock for an aggregate purchase price of
$20 million
and net proceeds to the Company (after deducting an approximately
$200,000
funding fee due to KH) of
$19.8 million
.
Series B Preferred Stock
A quarterly payment in the amount of
$32,087
was made on April 2, 2019 for the quarter ended March 31, 2019 and a quarterly payment in the amount of
$32,087
was made on April 2, 2018 for the quarter ended March 31, 2018.
Warrants
As of March 31, 2019 and December 31, 2018, respectively, there were outstanding warrants to purchase an aggregate of approximately
133,300
shares of Empire’s common stock at
$30.00
per share with an expiration date of May 10, 2020 and warrants to purchase
60,000
shares of common stock at
$81.50
per share with an expiration date of March 15, 2025.
Note J. Concentration
As of March 31, 2019, the Company had
one
marker receivable which represented more than
10%
of the total net outstanding accounts receivable.
As of December 31, 2018, the Company had
no
receivable which represented more than
10%
of the total net outstanding accounts receivable.
Note K. Related Party Transactions
Kien Huat 2018 Preferred Stock Commitment Letter
On November 6, 2018, the Company and Kien Huat entered into a commitment letter (as amended and restated on November 9, 2018, the "2018 Kien Huat Preferred Stock Commitment Letter"), pursuant to which Kien Huat committed to provide equity financing in support of the general corporate and working capital requirements of the Company and its subsidiaries. Pursuant to the 2018 Kien Huat Preferred Stock Commitment Letter, Kien Huat agreed to purchase up to
$126 million
(the "Commitment Amount") of Series F Preferred Stock on the terms set forth in the 2018 Kien Huat Preferred Stock Commitment Letter and the Certificate of Designations of the Series F Preferred Stock, which the Company filed with the Secretary of State of the State of Delaware on November 5, 2018. Kien Huat committed to purchase the Commitment Amount of the Series F Preferred Stock pursuant to the following schedule: (i) up to
$12 million
no earlier than November 9, 2018; (ii) up to
$20 million
no earlier than February 15, 2019; (iii) up to
$20 million
no earlier than May 15, 2019; (iv) up to
$15 million
no earlier than August 15, 2019; (v) up to
$37 million
no earlier than November 15, 2019 and (vi) up to
$22 million
no earlier than March 15, 2020. The Company agreed to use its reasonable efforts to secure third-party financing in an amount equal to the Commitment Amount and the Commitment Amount will be reduced by the amount of any third-party financing raised by the Company. However, any equity financing raised by the Company from any person entering into a commercial agreement relating to online gaming and sports betting at the Casino in an amount up to
$29 million
will not reduce the Commitment Amount. Kien Huat will be entitled to a funding fee in the amount of
1%
of the portion of the Commitment Amount funded by Kien Huat. Unless earlier terminated by mutual agreement, the 2018 Kien Huat Preferred Stock Commitment Letter will terminate upon the earlier of (a) the Company's receipt of third-party financing in the Commitment Amount or (b) April 15, 2020.
On November 13, 2018, in accordance with the 2018 Kien Huat Preferred Stock Commitment Letter, the Company and Kien Huat entered into a subscription agreement to purchase an aggregate
120
shares of Series F Preferred Stock for an aggregate purchase price of
$12 million
and net proceeds to the Company (after deducting a
$120,000
funding fee due to Kien Huat) of
$11.9 million
.
On February 20, 2019, in accordance with the 2018 Kien Huat Preferred Stock Commitment Letter, the Company and Kien Huat entered into a subscription agreement to purchase an aggregate
200
shares of Series F Preferred Stock for an aggregate purchase price of
$20 million
and net proceeds to the Company (after deducting a
$200,000
funding fee due to Kien Huat) of
$19.8 million
.
On May 7, 2019, the Company and Kien Huat entered into the Kien Huat Commitment Letter Amendment, which is defined and discussed in Note M below. See Note M for further details.
RWS License Agreement
On March 31, 2017, Montreign Operating entered into a license agreement (the “RWS License Agreement”) with RW Services Pte Ltd (“RWS”). RWS is an affiliate of Tan Sri Lim Kok Thay, who is a beneficiary of, and controls, Kien Huat. Pursuant to the RWS License Agreement, RWS granted Montreign Operating the non-exclusive, non-transferable, revocable and limited right to use certain “Genting” and “Resorts World” trademarks (the “RWS Licensed Marks”) in connection with the development, marketing, sales, management and operation (the “Permitted Uses”) of the Development Projects. The name of the Casino is “Resorts World Catskills,” and, notwithstanding the foregoing, the use of such name is exclusive to Montreign Operating and may be used in connection with online gaming in addition to the Permitted Uses.
The initial term of the RWS License Agreement will expire on December 31, 2027, and will be extended automatically for additional terms of
12
months each, up to a maximum of
39
additional terms, unless either of the parties provides notice to terminate the RWS License Agreement or upon the mutual written consent of both parties. Beginning on the date on which the Casino opened to the public, Montreign Operating pays to RWS a fee equivalent to a percentage of Net Revenue (as such term is defined in the RWS License Agreement) generated in each calendar year from (i) all activity at the Casino, (ii) each specific use of the RWS Licensed Marks in The Alder or golf course and (iii) each specific use of the name Resorts World Catskills in connection with online gaming. The percentage of Net Revenue payable as the fee is a low single-digit percentage that will increase incrementally between the third year and sixth year of the term of the RWS License Agreement and will remain a low single-digit percentage during the entire term of the RWS License Agreement. The Company incurred an expense of approximately
$0.5
million and
$0.2
million, for the three-month periods ended March 31, 2019 and 2018, respectively, reflecting the fee payable pursuant to the RWS License Agreement.
Gerard Lim, one of the directors of the Company, is also a director of Resorts World Inc. Pte Ltd., the parent company of RWS.
2019 Moelis Letter Agreement
On February 15, 2019, the Company and Moelis entered into a letter agreement (the “2019 Moelis Letter Agreement”), pursuant to which Moelis will act as the Company’s financial advisor to review and analyze the Company's historical results, financial projections and business plan, conduct a business and financial analysis of the Company's prospective online gaming and sports betting business, and evaluate the capital structure of the Company and its subsidiaries. Pursuant to the 2019 Moelis Letter Agreement, we paid Moelis a general advisory fee of approximately
$350,000
upon execution of the 2019 Moelis Letter Agreement.
Gregg Polle, one of the directors of the Company, is a Managing Director of Moelis. Mr. Polle refrained from participating in the discussion of the 2019 Moelis Letter Agreement and abstained from voting on whether to enter into such.
Note L. Commitments and Contingencies
Legal Proceedings
The Company is a party from time to time to various legal actions that arise in the normal course of business. In the opinion of management, the resolution of these other matters will not have a material and adverse effect on our consolidated financial position, results of operations or cash flows.
Leases
The Company primarily leases land, vehicles, slot machines and certain office equipment. The Company determines if an agreement is or contains a lease at inception. Leases with an initial term of 12 months or less are not recorded on the condensed consolidated balance sheets.
ROU assets represent the Company's right to use an underlying asset for the lease term and lease liabilities represent the Company's obligation to make lease payments arising from the lease. ROU assets and liabilities are based on the estimated present value of the lease payments over the lease term and are recognized at the lease commencement date.
Since most of the Company's leases do not provide an implicit rate, we use our estimated incremental borrowing rate in determining the present value of lease payments. The estimated incremental borrowing rate is derived from information available at the lease commencement date.
The Company's lease terms may include options to extend or terminate the lease when it is reasonably certain that we will exercise that option. A limited number of the Company's lease agreements include rental payments adjusted periodically for inflation. Our lease agreements generally do not contain residual value guarantees or material restrictive covenants.
The following table represents the components of lease expenses for the three month period ended March 31, 2019:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three months ended
|
|
Lease expense
|
|
Classification
|
|
March 31, 2019
|
|
|
|
|
|
(in thousands)
|
|
Operating lease cost
|
|
Gaming expense or SG&A expense
|
|
$2,810
|
|
|
|
|
|
|
|
Variable lease cost:
|
|
Gaming expense or SG&A expense
|
|
384
|
|
|
Net lease cost (1)
|
|
|
|
$3,194
|
(1) Net lease cost does not include short-term leases, none of which are material.
The schedule below lists the Company's lease terms and discount rates as of March 31, 2019:
|
|
|
|
|
|
|
|
|
|
March 31, 2019
|
|
Weighted-average remaining lease term (years)
|
|
|
|
|
|
|
|
Operating leases
|
|
13.5
|
|
|
|
|
|
|
Weighted-average discount rate
|
|
|
|
|
|
|
|
Operating leases
|
|
12.29
|
%
|
Supplemental condensed consolidated balance sheet information related to leases at March 31, 2019 is presented below:
|
|
|
|
|
|
|
|
|
Leases
|
|
Classification
|
|
March 31, 2019
|
|
Assets
|
|
|
|
(in thousands)
|
|
Operating lease ROU assets
|
|
Other assets (non-current)
|
|
$65,465
|
|
|
|
|
|
|
|
Total leased assets
|
|
|
|
$65,465
|
|
|
|
|
|
|
|
Liabilities
|
|
|
|
|
|
Operating
|
|
Other long-term liabilities
|
|
$74,673
|
|
|
|
|
|
|
|
Total lease liabilities
|
|
|
|
$74,673
|
The Company's lease liability maturities at March 31, 2019 were as follows:
|
|
|
|
|
|
|
|
|
|
Operating
|
|
Period
|
|
Leases
|
|
|
|
(in thousands)
|
|
2019 (remaining of year)
|
|
$6,729
|
|
2020
|
|
9,025
|
|
|
2021
|
|
8,503
|
|
|
2022
|
|
8,400
|
|
|
2023
|
|
8,400
|
|
|
Thereafter
|
|
353,473
|
|
|
Total lease payments
|
|
394,530
|
|
|
Less: Imputed interest
|
|
319,857
|
|
|
Total lease liabilities
|
|
$74,673
|
Supplemental cash flow and other information related to leases for the three-month period ended March 31, 2019 is presented below:
|
|
|
|
|
|
|
|
|
Three months ended
|
|
|
|
March 31, 2019
|
|
Cash paid for amounts included in the measurement of lease liabilities:
|
|
(in thousands)
|
|
Operating cash flows from operating leases
|
|
$5
|
Note M. Subsequent Events
On May 7, 2019, the Company and Kien Huat entered into an amendment (the "Kien Huat Commitment Letter Amendment") to the 2018 Kien Huat Preferred Stock Commitment Letter to accelerate the schedule on which Kien Huat will purchase additional shares of Series F Preferred Stock. In particular, pursuant to the Kien Huat Commitment Letter Amendment, Kien Huat agreed as follows: (i) to increase its commitment to purchase up to
$20 million
no earlier than May 15, 2019 to up to
$27 million
by such date; (ii) to accelerate its commitment to purchase up to an incremental
$15 million
to no earlier than June 17, 2019; and (iii) to maintain its commitment to purchase up to
$15 million
by August 15, 2019 and up to
$37 million
by November 15, 2019, respectively. Accordingly, Kien Huat accelerated its commitment to purchase up to the full Commitment Amount from March 15, 2020 to November 15, 2019. Other than the acceleration of the schedule pursuant to which Kien Huat would purchase up to the Commitment Amount, all other terms of the 2018 Kien Huat Preferred Stock Commitment Letter remain unchanged.
|
|
|
|
|
|
Item 2.
|
Management's Discussion and Analysis of Financial Condition and Results of Operations.
|
The Management’s Discussion and Analysis of the Financial Condition and Results of Operations should be read together with the Management’s Discussion and Analysis of Financial Condition and Results of Operations and the Condensed Consolidated Financial Statements and related notes thereto in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2018.
Forward-Looking Statements
This Quarterly Report on Form 10-Q contains statements which constitute forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements generally relate to our strategies, plans and objectives for future operations and are based upon management’s current plans and beliefs or estimates of future results or trends. Forward-looking statements also involve risks and uncertainties, including, but not restricted to, the risks and uncertainties described in Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2018 which could cause actual results to differ materially from those contained in any forward-looking statement. Many of these factors are beyond our ability to control or predict.
You should not place undue reliance on any forward-looking statements, which are based on current expectations. Further, forward-looking statements speak only as of the date they are made, and we will not update these forward-looking statements, even if our situation changes in the future. We caution the reader that a number of important factors discussed herein, and in other reports filed with the Securities and Exchange Commission, could affect our actual results and cause actual results to differ materially from those discussed in forward-looking statements.
Overview
Empire was organized as a Delaware corporation on March 19, 1993, and since that time has served as a holding company for various subsidiaries engaged in the hospitality and gaming industries.
Our indirect, wholly-owned subsidiary, Montreign Operating Company, LLC, doing business as Resorts World Catskills ("Montreign Operating"), owns and operates Resorts World Catskills, a casino resort (the "Casino"), which is located at the approximately1,000-acre site of a four-star destination resort (the "Destination Resort") in Sullivan County, New York, approximately 90 miles from New York City. The Destination Resort at which Resorts World Catskills is located also includes a 101-room lifestyle hotel ("The Alder"), adjacent to the Casino. The Alder is owned and operated by Empire Resorts Real Estate II, LLC ("ERREII"), a wholly-owned subsidiary of Montreign Operating. Empire Resorts I, LLC ("ERREI"), which is a wholly-owned subsidiary of Montreign Operating, is developing a golf course (the "Golf Course" and, together with the Casino and The Alder, the "Development Projects") at the Destination Resort.
On March 25, 2019, the NYSGC approved a request by Montreign Operating to adjust certain conditions of the gaming facility license (the "Gaming Facility License") with respect to the Casino which would reduce the minimum number of slot machines from no less than 2,150 to no less than 1,600.
Through our wholly-owned subsidiary, Monticello Raceway Management, Inc. ("MRMI"), we own and operate Monticello Casino and Raceway, which began racing operations in 1958 in Monticello, New York, which is proximate to the Casino. The video gaming machine ("VGM") operations and food and beverage service at Monticello Casino and Raceway ceased on April 23, 2019. We generate racing revenues through pari-mutuel wagering on the running of live harness horse races, the import simulcasting of harness and thoroughbred horse races from racetracks across the country and internationally, and the export simulcasting of our races to offsite pari-mutuel wagering facilities.
Following our announcement that VGM operations would cease at Monticello Casino and Raceway, legislation was proposed to eliminate our license to operate a VGM facility and to enable Catskill OTB to operate a similarly-sized VGM facility in the Catskill region, other than in Sullivan, Tioga or Westchester counties. Subsequently, there have been discussions of locating a VGM facility operated by Catskill OTB in Orange County, New York. We are vigorously opposing this legislation and the operation of such a facility in Orange County, New York by a third party. At the request of legislators, we have provided analysis of the economic benefits of locating our VGM facility in Orange County, New York. The operation of any VGM facility in Orange County, New York would require New York State to enact laws allowing for such operation.
Critical Accounting Policies and Estimates
We make certain judgments and use certain estimates and assumptions when applying accounting principles in the preparation of our consolidated financial statements. The nature of the estimates and assumptions are material due to the levels of subjectivity and judgment necessary to account for highly uncertain factors or the susceptibility of such factors to change.
We believe the current assumptions and other considerations used to estimate amounts reflected in our consolidated financial statements are appropriate. However, if actual experience differs from the assumptions and other considerations used in estimating amounts reflected in our consolidated financial statements, the resulting changes could have a material adverse effect on our consolidated results of operations and, in certain situations, could have a material adverse effect on our consolidated financial condition.
For further information on our critical accounting estimates, see Item 7. “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the notes to our audited consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2018. With the exception of the adoption of ASC 842 on January 1, 2019, there have been no material changes to our critical accounting policies and estimates. See Note B to the condensed consolidated financial statements for further information regarding our updated lease accounting policies.
Results of Operations - Three months ended March 31, 2019 compared to three months ended March 31, 2018
The following table highlights the various sources of revenues and expenses for the three months ended March 31, 2019 as compared to the three months ended March 31, 2018:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
|
March 31, 2019
|
|
March 31, 2018
|
|
Percent Change
|
|
|
(in thousands, except percentages)
|
|
|
|
Gaming revenues
|
$
|
44,622
|
|
|
$
|
28,646
|
|
|
55.8
|
%
|
|
Gaming expenses
|
35,333
|
|
|
21,336
|
|
|
65.6
|
%
|
|
|
|
|
|
|
|
|
Racing revenues
|
1,263
|
|
|
1,364
|
|
|
(7.4
|
)%
|
|
Racing expenses
|
2,197
|
|
|
1,708
|
|
|
28.6
|
%
|
|
|
|
|
|
|
|
|
Food and beverage revenues
|
7,614
|
|
|
2,572
|
|
|
196.0
|
%
|
|
Food and beverage expenses
|
8,121
|
|
|
3,566
|
|
|
127.7
|
%
|
|
|
|
|
|
|
|
|
Room revenues
|
2,490
|
|
|
684
|
|
|
264.0
|
%
|
|
Room expenses
|
2,492
|
|
|
857
|
|
|
190.8
|
%
|
|
|
|
|
|
|
|
|
Other revenues
|
1,625
|
|
|
375
|
|
|
333.3
|
%
|
|
Other expenses
|
16
|
|
|
62
|
|
|
(74.2
|
)%
|
|
|
|
|
|
|
|
|
Selling, general and administrative expenses
|
18,093
|
|
|
13,297
|
|
|
36.1
|
%
|
|
|
|
|
|
|
|
|
Development Projects expenses
|
17
|
|
|
11,095
|
|
|
N.M.
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
9,975
|
|
|
5,708
|
|
|
74.8
|
%
|
|
|
|
|
|
|
|
|
Interest expense
|
17,269
|
|
|
2,396
|
|
|
620.7
|
%
|
|
|
|
|
|
|
|
Gaming Revenues and Expenses
Gaming revenues increased $16.0 million, or 55.8%, for the three-month period ended March 31, 2019 as compared to the three-month period ended March 31, 2018, from $28.6 million to $44.6 million. The increase in gaming revenues was primarily due to revenues generated by the Casino, which generated $55.8 million in gross gaming revenues for the three-month period ended March 31, 2019 as compared to $30.2 million for the three-month period ended March 31, 2018. Monticello Casino and Raceway generated $5.0 million in gross gaming revenues for the three-month period ended March 31, 2019 as compared to $8.7 million for the three-month period ended March 31, 2018. The decrease in gaming revenues at Monticello Casino and Raceway was primarily due to a decrease in customer attendance caused by the opening of the new Casino.
Gaming expenses increased $14.0 million, or 65.6%, for the three-month period ended March 31, 2019 as compared to the three-month period ended March 31, 2018, from $21.3 million to $35.3 million. The increase in gaming expenses was primarily due to expenses generated by the Casino, which includes gaming taxes and payroll expenses, offset by an increase in the commission rate earned by the Company at operations at Monticello Casino and Raceway. The Company's commission rate was increased due to NYSGC regulations that allow for a higher commission that is commensurate with the blended tax rate paid by the Casino.
Racing Revenues and Expenses
Racing revenues decreased approximately $0.1 million, or 7.4%, for the three-month period ended March 31, 2019 as compared to the three-month period ended March 31, 2018. The decrease in racing revenues is primarily due to a decrease in racing simulcast revenues as compared to the three-month period ended March 31, 2018. Racing expenses increased $0.5 million, or 28.6%, for the three-month period ended March 31, 2019 as compared to the three-month period ended March 31, 2018, from $1.7 million to $2.2 million. The increase is due to larger purse contributions and higher fees required by New York State.
Food and Beverage
Revenues and Expenses
Food and beverage revenues increased approximately $5.0 million, or 196.0%, for the three-month period ended March 31, 2019 as compared to the three-month period ended March 31, 2018, from approximately $2.6 million to $7.6 million due to the opening of the new food and beverage venues at the Casino. Food and beverage expenses increased $4.6 million, or 127.7%, for the three-month period ended March 31, 2018 as compared to the three-month period ended March 31, 2018, from $3.6 million to $8.1 million. The increase was primarily due to the opening of the Casino and its accompanying additional food and beverage venues, which increased costs for food, beverage and supplies, as well as payroll expense.
Room Revenues and Expenses
Room revenues increased approximately $1.8 million, or 264.0%, for the three-month period ended March 31, 2019 as compared to the three-month period ended March 31, 2018, from approximately $0.7 million to $2.5 million primarily due to the increased occupancy rate in the three-month period ended March 31, 2019 as compared to the three-month period ended March 31, 2018. Room expenses increased $1.6 million, or 190.8%, for the three-month period ended March 31, 2018 as compared to the three-month period ended March 31, 2018, from $0.9 million to $2.5 million. The increase was primarily due to the opening of the Casino hotel on February 8, 2018 and The Alder on January 1, 2019, which resulted in more room availability during the 2019 period along with the attendant additional payroll and benefit expenses for these facilities.
Other Revenues and Expenses
Other revenues are primarily due to ATM revenues at the Casino, as well as retail sales and commissions from the sale of lottery tickets. Other revenues increased by approximately $1.3 million, or 333.3%, during the three-month period ended March 31, 2019 as compared to the three-month period ended March 31, 2018, from approximately $0.4 million to approximately $1.6 million, primarily due to an increase in ATM revenues along with the opening of the retail store and spa at the Casino. Other expenses decreased by approximately $46,000, or 74.2%, during the three-month period ended March 31, 2019 as compared to the three-month period ended March 31, 2018, from approximately $62,000 to approximately $16,000 due to staff attrition in the ordinary course at Monticello Casino and Raceway.
Selling General and Administrative (“SG&A”)
SG&A expenses increased $4.8 million, or 36.1%, for the three-month period ended March 31, 2019 as compared to the three-month period ended March 31, 2018, from $13.3 million to $18.1 million. The increase in SG&A expenses is primarily due to an increase in payroll and benefits, insurance, marketing and the branding fee, all relating to the Casino. SG&A expenses for the three-month period ended March 31, 2018 included $5.1 million of stock-based expense related to the MHHA Agreement.
Development Projects Expenses
Development Projects expenses decreased by $11.1 million for the three-month period ended March 31, 2019 as compared to the three-month period ended March 31, 2018, from $11.1 million to $17,000. The decrease was primarily due to the substantial completion of the Casino and The Alder projects. Development costs associated with the Casino and The Alder ceased to be capitalized upon the substantial completion of the Casino and The Alder projects. As of March 31, 2019, the Casino and The Alder are substantially complete and open. The Company is also currently constructing the Golf Course Project. Costs associated with the Golf Course Project are primarily capitalized and are included in "Capitalized Development Projects costs" on the condensed consolidated balance sheets.
Depreciation and amortization
Depreciation and amortization expense increased $4.3 million, or 74.8%, for the three-month period ended March 31,2019 as compared to the three-month period ended March 31, 2018, from $5.7 million to $10.0 million. The increase in depreciation expense of $3.7 million was primarily driven by the fixed assets placed in service for the Casino and The Alder during 2018. Amortization of the Gaming Facility License increased from $1.1 million in 2018 to $1.6 million for the three-month period ended March 31, 2019 primarily due to the Casino opening on February 8, 2018.
Interest expense
Interest expense increased $14.9 million, or 620.7%, for the three-month period ended March 31,2019 as compared to the three-month period ended March 31, 2018, from $2.4 million to $17.3 million. The increase in interest expense was primarily due the reduction to capitalized interest expense for the 2019 period as compared to the 2018 period, due to the opening of the Casino on February 8, 2018 and The Alder on January 1, 2019. Montreign Operating paid a commitment fee to each Term A Loan lender equal to the undrawn amount of such lender’s commitment multiplied by a rate equal to
5.0%
per annum through July 24, 2018. Borrowings under the Term Loan Facility also increased during July 2018 to finance the remaining Development Projects. Upon the substantial completion of the Casino and The Alder, interest expense for the Term Loan Facility (as defined below) associated with the construction of these projects could no longer be capitalized.
Liquidity and Capital Resources
The accompanying consolidated financial statements have been prepared on a basis that contemplates the realization of assets and the satisfaction of liabilities and commitments in the normal course of business. Historically and prospectively, our primary sources of liquidity and capital resources have been, and will continue to be, cash generated from operations, borrowings from banks and proceeds from the issuance of debt and equity securities. The Company anticipates that its current cash and cash generated from operations, as well as the remaining net proceeds of the Term Loan Facility and equity financing available under the 2018 Kien Huat Preferred Stock Commitment Letter, which are discussed below, will be sufficient to meet our working capital requirements, the expected costs of the Development Projects and our anticipated debt service requirements for the next 12 months. Our future operating performance and our ability to service our debt will be subject to future economic conditions and to financial, business and other factors, many of which are beyond our control. See “Risk Factors” in our Annual Report on Form 10‑K for the fiscal year ended December 31, 2018 for a discussion of the risks related to our liquidity and capital structure.
Cash Flows
Net cash used in operating activities was approximately $27.3 million during the three-month period ended March 31, 2019. Net cash provided by operating activities was $1.9 million during the three-month period ended March 31, 2018. We are currently generating operating losses as Casino revenues have not yet exceeded the Company's fixed costs related to the Casino. We incurred $11.1 million of Development Projects costs during the three-month period ended March 31, 2018. The decrease in cash flow for the three-month period ended March 31, 2019 was primarily due to the impact of the net operating loss for the period along with the seasonal increase in accounts receivable and prepaid expenses associated with the Casino.
The Casino opened to the public in February 2018 with limited amenities. Additional amenities were added to the Casino during the remainder of fiscal 2018, along with the opening of The Alder, the Cellaio restaurant and Top Golf. The Casino opened during the winter season, which is historically a season of lower visitation to casinos. The three-month period ended March 31, 2018 included several snow storms, which limited customer visits. For the three-month period ended March 31, 2019, the winter weather pattern included much less snow than usual. In addition, the Company increased its promotional activity during the 2019 period, which received a favorable response from its customers. Greater frequency of visits to the Casino by patrons has resulted in higher occupancy rates at the Company's hotels and restaurants after a slower than expected start. As a result, net revenues increased from $33.6 million to $57.6 million for the three-month periods ended March 31, 2018 and March 31, 2019, respectively.
Net cash used in investing activities was approximately $5.2 million and $1.2 million during the three-month periods ended March 31, 2019 and 2018, respectively. The increase in net cash used for the three-month period ended March 31, 2019 as compared to 2018 was due primarily to the significant cash provided during the 2018 period resulting from the refund of cash that had been previously been posted as collateral for the Casino Gaming License, along with the release of restricted cash for Development Projects, as the Development Projects were completed. The Golf Course Project is the only current ongoing project as of March 31, 2019. At March 31, 2019, our total assets included approximately $15.9 million of remaining net proceeds available from the Term Loan Facility, which are presented on the condensed consolidated balance sheet as a non-current asset (restricted cash for Development Projects). The proceeds of the Term Loan Facility may be used solely to pay for costs relating to the Development Projects. During the three-month period ended March 31, 2018, the Company redeemed $61.0 million of net proceeds from the restricted investments for the Development Projects and incurred $97.2 million of capitalized Development Project costs. Also during the three-month period ended March 31, 2018, the Company received a refund of $35.0 million from cash collateral bonds required to be posted upon construction of the Development Projects.
Net cash provided by financing activities was approximately $12.8 million and $10.9 million during the three-month periods ended March 31, 2019 and 2018, respectively. In February 2019, the Company issued approximately $20.0 million of redeemable Series F Preferred Stock to Kien Huat. The Company repaid approximately $3.9 million of equipment loans and an additional $3.0 million of Term A and Term B Loans during the three-month period ended March 31, 2019. At March 31, 2019, the Company had approximately $16.5 million of equipment loans outstanding for the purchase of slot machines, equipment and software for the Casino. Approximately $13.0 million was borrowed under the Revolving Credit Facility (as defined below) during the three-month period ended March 31, 2018. During the three-month period ended March 31, 2018, restricted stock grants of certain executives vested, resulting in $1.5 million of income tax withholding taxes paid by the Company in exchange for the surrender of a portion of the vested shares.
Development Projects Expenditures
The Company expects that upon completion, the Development Projects will have cost approximately $928 million, which includes $765 million of anticipated costs for construction of the Development Projects and contingency, $68 million for interest reserves, $51 million for the Gaming Facility License fee and $44 million of original issue discount and financing and legal fees. The Company substantially completed construction of The Alder on January 1, 2019, under a guaranteed maximum price agreement with its construction manager, which was amended to $35.2 million in December 2018. During the fall of 2018, the Company signed a contractor agreement for the Golf Course Project for a total cost of approximately $21.2 million.
As of March 31, 2019, the Company had incurred an aggregate total of $872.1 million related to the Development Projects, including $709.5 million of capitalized Development Projects costs, of which $699.0 million was reclassified to property and equipment upon the opening of the Casino and The Alder, $67.6 million of interest expense related to bank debt for the Development Projects, $51.0 million for the Gaming Facility License and $44.0 million of debt issuance costs related to the Development Projects.
Principal Debt Arrangements
Term Loan Facility
On January 24, 2017, Montreign Operating entered into that certain Building Term Loan Agreement (the “Original Term Loan Agreement”), among Montreign Operating, the lenders from time to time party thereto, and Credit Suisse AG, Cayman Islands Branch (“Credit Suisse”), as administrative agent. On May 26, 2017, the parties entered into the first amendment to the Term Loan Agreement and certain ancillary agreements (the “Amended Term Loan Agreement” and, together with the Original Term Loan Agreement, the “Term Loan Agreement”). In the aggregate, the Term Loan Agreement provides Montreign Operating with loans in principal amount of $520 million (the “Term Loan Facility”). The borrowings under the Term Loan Facility are being used to fund the costs of the Development Projects.
The Term Loan Agreement provides Montreign Operating with senior secured first lien term loans consisting of $70 million of Term A Loans and $450 million of Term B Loans. The obligations of Montreign Operating under the Term Loan Facility are guaranteed by the Project Parties and are secured by security interests in substantially all of the assets of the Project Parties, as well as by a pledge of the membership interests in Montreign Operating. In connection with the Term Loan Facility, Empire provided a completion guaranty capped at $30 million on the completion of construction of the Casino and The Alder. Interest accrues on outstanding borrowings under the Term A Loan at a rate equal to LIBOR plus 5.0% per annum, or an alternate base rate plus 4.0% per annum. Interest accrues on outstanding borrowings under the Term B Loan at a rate equal to LIBOR (with a LIBOR floor of 1%) plus 8.25% per annum, or an alternate base rate plus 7.25% per annum. As of March 31, 2019 and December 31, 2018, approximately $63.0 million and $64.8 million, respectively, was outstanding under the Term A Loan, and approximately, $445.4 million and $446.6 million,respectively, was outstanding under the Term B Loan.
As a condition to the Term Loan Agreement, the net proceeds from the Term Loan Facility and the Kien Huat Montreign Loan, which is discussed below, were deposited into an account controlled by the lenders under the Term Loan Facility. The Company further funded this lender-controlled account with approximately $9.9 million in the fiscal 2017 period pursuant to the Term Loan Agreement from the proceeds of the Bangkok Bank Loan, which is discussed below. In order to access the funds (including the net proceeds from the Term Loan Facility and the Kien Huat Montreign Loan) held in these lender-controlled accounts, Montreign Operating had to satisfy the applicable disbursement conditions set forth in the Term Loan Agreement and ancillary agreements, such as providing evidence that the withdrawn funds are used for permitted purposes in connection with the Development Projects.
The Term Loan Agreement restricts the Project Parties from incurring additional indebtedness except for, among other things, obligations pursuant to hedging agreements required under the Term Loan Agreement, capital lease obligations and purchase money indebtedness (including FF&E financing) in an amount not exceeding $40 million, subordinated indebtedness so long as the proceeds are applied pursuant to the terms of the Term Loan Agreement and other indebtedness not exceeding $10 million. Also, the Project Parties may not make any dividend or other distribution, redeem or otherwise acquire any equity securities or subordinated indebtedness. Moreover, the Project Parties are restricted from entering into advisory, management or consulting agreements with an affiliate of any Project Party, including Empire, except for payments pursuant to tax sharing agreements, distributions in an amount not exceeding 1% of the net revenues of the Project Parties in any fiscal year, repurchase of capital stock of the Company in an amount not exceeding $1 million and required by the NYSGC, and certain available amounts of cash based on the application of financial covenants.
The Term Loan Agreement contains representations and warranties, customary events of default, and affirmative, negative and financial covenants, including that the Company maintain compliance with a maximum first lien net leverage ratio not to exceed 5.0:1.0, a minimum interest coverage ratio not to exceed 2.0:1.0 and a consolidated capital expenditure covenant not to exceed $10 million of eligible expenses in any calendar year. In addition, the Company is allowed to add back pro forma EBITDA in the amount of $108.4 million, $77.5 million and $39.4 million, respectively, in each of the first three testing quarters, respectively. The Company has a right to cure any covenant defaults through the use of specified equity contributions during the first three quarters tested for covenant compliance. The financial covenants relating to the maximum first lien coverage ratio and the minimum interest coverage ration will be measured beginning in the fiscal quarter ending on June 30, 2019. Additionally, excess cash flow, as such term is defined in the Term Loan Agreement, must be applied towards repayment of the Term Loan Facility commencing with the fiscal year in which the "full opening" of the Casino occurs. At March 31, 2019, Montreign Operating was in compliance with all the required financial covenants.
In March 2018, the Company contributed $3.6 million to an interest reserve fund under the Term Loan Agreement. This contribution reflects the additional interest paid on the Term Loan Facility, as a result of the Company's deferral of the completion of 15 VIP suites at the Casino from March 1, 2018 to March 30, 2018.
Revolving Credit Facility
At March 31, 2019, Montreign Operating's revolving credit facility (the "Revolving Credit Facility") consisted of $15 million of outstanding borrowings. The Revolving Credit Facility provides for loans or other extensions of credit to be made to Montreign Operating in an aggregate principal amount of up to $15 million (including a letter of credit sub-facility of $10 million) pursuant to the terms of the Revolving Credit Agreement, among Montreign Operating, the lenders from time to time party thereto, and Fifth Third Bank, as administrative agent (as amended, the "Revolving Credit Agreement"). The proceeds of the Revolving Credit Facility may be used for working capital needs, capital expenditures and other general corporate purposes. The Revolving Credit Facility will mature on January 24, 2022. Interest accrues on outstanding borrowings at a rate equal to LIBOR plus 5.0% per annum, or an alternate base rate plus 4.0% per annum. At March 31,2019, the interest rate on borrowings under the Revolving Credit Facility was 7.63%.
The Revolving Credit Facility is guaranteed by the Project Parties and is secured by security interests in substantially all the real and personal property of the Project Parties and by a pledge of all the membership interests of Montreign Operating held by Montreign Holding.
The Revolving Credit Facility contains representations and warranties, customary events of default, and affirmative, negative and financial covenants substantially similar to the terms of the Term Loan Agreement. Mandatory prepayments of the Revolving Credit Facility will be required upon the occurrence of certain events, including sales of certain assets, casualty events and the incurrence of certain additional indebtedness, subject to certain exceptions and reinvestment rights. As of March 31, 2019, the Company was in compliance with all applicable covenant requirements under the Term Loan Facility.
Bangkok Bank Loan
At March 31, 2019, the Delayed Draw Term Loan, as amended (the "Bangkok Bank Loan") consisted of $20 million of outstanding borrowings pursuant to the Delayed Draw Term Loan Credit Agreement (the “Bangkok Bank Loan Agreement”), among Empire, Bangkok Bank PCL, New York Branch (“Bangkok Bank”), as lender, and MRMI, as guarantor.
The Bangkok Bank Loan will mature on December 28, 2019. Interest accrues on outstanding borrowings under the Bangkok Bank Loan at a rate equal to LIBOR plus 6.25%, or an alternate base rate plus 5.25% per annum. At March 31, 2019, the interest rate on the Bangkok Bank Loan was 8.74%.
The Bangkok Bank Loan was amended (the "Bangkok Bank Loan Amendment") on June 25, 2018 concurrently with the execution of the Kien Huat Subordinate Loan Agreement (which is defined and discussed in Note H below). The Bangkok Bank Loan Amendment permitted the Company to incur the Kien Huat Subordinate Loan.
The Bangkok Bank Loan is guaranteed by MRMI and is secured by a security interest in Monticello Casino and Raceway. The Bangkok Bank Loan Agreement contains customary representations and warranties and affirmative, negative and financial covenants, including representations, warranties and covenants that, among other things, restrict the ability of the Company and MRMI to incur additional debt, incur or permit liens on assets, make investments and acquisitions, consolidate or merge with any other company, engage in certain transactions with affiliates, or make dividends or other distributions. Obligations under the Bangkok Bank Loan Agreement may be accelerated upon certain customary events of default, including, among others, nonpayment of principal, interest or fees, breach of the affirmative or negative covenants, revocation of a gaming license after the expiration of certain cure periods, and a change of control of the Company.
In addition, the Bangkok Bank Loan Agreement contains a financial covenant that restricts the maximum total leverage ratio to four times the adjusted EBITDA of MRMI, which financial covenant is applicable beginning with the fiscal quarter ending December 31, 2018. The Bangkok Bank Loan Amendment excludes the Kien Huat Subordinate Loan from calculations of the Company's maximum total leverage so long as the Kien Huat Subordinate Loan remains subordinate to the Bangkok Bank Loan. The Company is in compliance with the covenant requirements as of March 31, 2019.
Kien Huat Backstop Loan Agreement
Concurrently with and as a condition to the closing of the Bangkok Bank Loan Agreement, on December 28, 2017, Empire and Kien Huat entered into a loan agreement (the “Kien Huat Backstop Loan Agreement”), providing for loans to Empire in an aggregate principal amount of up to $20 million (the “Kien Huat Backstop Loan”). Any amounts borrowed under the Kien Huat Backstop Loan will be used exclusively to make payments required under the Bangkok Bank Loan Agreement and will mature on the one-year anniversary of the Maturity Date of the Bangkok Bank Loan, or such earlier date that the Bangkok Bank Loan is terminated. As of March 31, 2019, no amounts had been borrowed under the Kien Huat Backstop Loan.
Equipment Loan Agreements
The Company has entered into several long-term financing agreements related to the purchase of its slot machines, equipment and software for the Casino' s hotel, information technology and other operations. The original amount financed was approximately $31.1 million and the terms of these agreements run between six and 36 months. The balances outstanding at March 31, 2019 and December 31, 2018 were approximately $16.5 million and $20.4 million, respectively. The stated interest rates for these loans are between zero and eight percent per annum. The Company has imputed interest on several equipment loans with stated interest rates of 0%, using the Company's cost of funds rate of approximately 10%. The weighted average of the monthly repayments is approximately $1.0 million.
Equity Financings
2018 Kien Huat Preferred Stock Commitment Letter
On November 6, 2018, the Company and Kien Huat entered into a commitment letter (as amended and restated on November 9, 2018, the "2018 Kien Huat Preferred Stock Commitment Letter"), pursuant to which Kien Huat committed to provide equity financing in support of the general corporate and working capital requirements of the Company and its subsidiaries. Pursuant to the 2018 Kien Huat Preferred Stock Commitment Letter, Kien Huat agreed to purchase up to $126 million (the "Commitment Amount") of Series F Preferred Stock on the terms set forth in the 2018 Kien Huat Preferred Stock Commitment Letter. Kien Huat committed to purchase the Series F Preferred Stock pursuant to the following schedule: (i) up to $12 million no earlier than November 9, 2018; (ii) up to $20 million no earlier than February 15, 2019; (iii) up to $20 million no earlier than May 15, 2019; (iv) up to $15 million no earlier than August 15, 2019; (v) up to $37 million no earlier than November 15, 2019; and (vi) up to $22 million no earlier than March 15, 2020. In accordance with this schedule, on each of November 13, 2018 and February 20, 2019, the Company and Kien Huat entered into subscription agreements to purchase an aggregate of 320 shares of Series F Preferred Stock for an aggregate purchase price of $32 million and net proceeds to the Company (after deducting a $300,000 funding fee due to Kien Huat) of $31.7 million. On May 7, 2019, the Company and Kien Huat entered into the Kien Huat Commitment Letter Amendment to accelerate the schedule on which Kien Huat will purchase additional shares of Series F Preferred Stock. In particular, pursuant to the Kien Huat Commitment Letter Amendment, Kien Huat agreed as follows: (i) to increase its commitment to purchase up to
$20 million
no earlier than May 15, 2019 to up to
$27 million
by such date; (ii) to accelerate its commitment to purchase up to an incremental
$15 million
to no earlier than June 17, 2019; and (iii) to maintain its commitment to purchase up to
$15 million
by August 15, 2019 and up to
$37 million
by November 15, 2019, respectively. Accordingly, Kien Huat accelerated its commitment to purchase up to the full Commitment Amount from March 15, 2020 to November 15, 2019. Other than the acceleration of the schedule pursuant to which Kien Huat would purchase up to the Commitment Amount, all other terms of the 2018 Kien Huat Preferred Stock Commitment Letter remain unchanged.
The Company agreed to use its reasonable efforts to secure third-party financing in an amount equal to the Commitment Amount and the Commitment Amount will be reduced by the amount of any third-party financing raised by the Company. However, any equity financing raised by the Company from any person entering into a commercial agreement relating to online gaming and sports betting at the Casino in an amount up to $29 million will not reduce the Commitment Amount. Any future sales to bet365 pursuant to the bet365 Common Stock Purchase Agreement would further reduce the Commitment Amount by such additional amount.
Kien Huat is entitled to a funding fee in the amount of 1% of the portion of the Commitment Amount funded by Kien Huat. Unless earlier terminated by mutual agreement, the 2018 Kien Huat Preferred Stock Commitment Letter will terminate upon the earlier of (a) the Company's receipt of third-party financing in the Commitment Amount or (b) April 15, 2020.
On each of November 13, 2018 and February 20, 2019, the Company and Kien Huat entered into subscription agreements to purchase an aggregate of 320 shares of Series F Preferred Stock for an aggregate purchase price of $32 million and net proceeds to the Company (after deducting a $300,000 funding fee due to Kien Huat) of $31.7 million.
bet365 Common Stock Purchase Agreement
On November 14, 2018, the Company entered into a sportsbook and digital gaming collaboration agreement (the “Collaboration Agreement”) with Hillside (New York) LLC, an affiliate of bet365 Group Limited (“bet365”). In connection with entering into the Collaboration Agreement, Hillside (New Media Holdings) Limited, an affiliate of bet365 ("bet365 Investor"), and the Company entered into a common stock purchase agreement (the “bet365 Common Stock Purchase Agreement”) pursuant to which bet365 Investor agreed to purchase up to 2.5 million shares of common stock of the Company at a purchase price of $20.00 per share, for an aggregate investment of $50 million.
In accordance with the bet365 Common Stock Purchase Agreement, the bet365 Investor purchased 1,685,759 shares of common stock upon execution of the bet365 Common Stock Purchase Agreement. The offer and sale of these shares was made pursuant to a shelf registration statement on Form S-3 (File No. 333-214119), which became effective on November 17, 2016, pursuant to a base prospectus dated as of November 17, 2016 contained in such registration statement and a prospectus supplement
filed with the Securities and Exchange Commission on November 14, 2018. The Company received net proceeds of $29.6 million from the offering, which are being used for general working capital purposes.
Pursuant to the bet 365 Common Stock Purchase Agreement, bet365 Investor will be obligated to purchase the remaining 814,241 shares of common stock at $20.00 per share so long as the conditions set forth in the bet365 Common Stock Purchase Agreement are met.
After all gaming taxes have been paid and the parties have recouped their costs and expenses, bet365 may receive a distribution (the “Preferred Distribution”) equal to 50% of the positive difference, if any (the “delta”), between $20 and the value of the Company’s common stock measured on a given date (such date, the “Trigger Date”), multiplied by the number of shares of common stock then held by bet365 Investor. The Trigger Date is 30 days after the Company’s first filing of an annual or quarterly report with the Securities and Exchange Commission after bet365 recoups its costs incurred pursuant to the Collaboration Agreement. The delta will be the positive difference between $20 and the 30-day volume-weighted average price of the Company’s common stock on the Trigger Date.
The payment of a Preferred Distribution, if any, will defer and may materially adversely affect the amount of profits the Company receives pursuant to the Collaboration Agreement. If bet365 or bet365 Investor do not obtain and maintain the required licenses, permits and approvals, we may never sell the remaining 814,241 shares pursuant to the bet365 Common Stock Purchase Agreement and we may need to repurchase the shares previously purchased by bet365 Investor.
Other Factors Affecting Liquidity
The Company may also raise additional equity or debt capital or enter into arrangements to secure necessary financing to fund the completion of the Development Projects, to meet obligations under the Term Loan Facility or for the general corporate purposes of the Company. Such arrangements may take the form of loans, strategic agreements, joint ventures or other agreements. The sale of additional equity could result in additional dilution to the Company’s existing stockholders, and financing arrangements may not be available to us, or may not be available in sufficient amounts or on acceptable terms.
On October 14, 2016, we filed a universal shelf registration statement on Form S-3 (the "Shelf Registration Statement") covering the offer and sale of $250 million of our securities. The Shelf Registration Statement, which also carried over $83.8 million of our securities registered on an expiring shelf registration statement that remained unsold, was declared effective on November 17, 2016. Instruction I.B.6 of Form S-3 imposes a limitation on the maximum amount of securities that we may sell pursuant to the registration statement during any 12-month period to the extent that the aggregate market value of our outstanding common stock held by non-affiliates (our “public float”) as of a day during the 60 days immediately preceding such sale is less than $75 million. As of May 7, 2019, our public float was $70,251,321. If our public float remains below $75 million, then at the time we sell securities pursuant to the registration statement, the amount of securities to be sold plus the amount of any securities we have sold during the prior 12 months in reliance on Instruction I.B.6 may not exceed one-third of our public float as of a day during the 60 days immediately preceding such sale as computed in accordance with Instruction I.B.6. Unless otherwise indicated in a prospectus supplement, the Company expects the net proceeds from the sale of securities will be used to support the Development Projects, working capital and for other general corporate purposes. The Company may also use a portion of the net proceeds to acquire or invest in businesses, products and technologies that are complementary to our business.
From time to time, we may pursue various strategic business opportunities. These opportunities may include proposed development and/or management of, investment in or ownership of additional gaming operations through direct investments, acquisitions, joint venture arrangements and other transactions. We are not currently exploring such opportunities. We can provide no assurance that we will successfully identify such opportunities or that, if we identify and pursue any of these opportunities, any of them will be consummated.
Our common stock is transferable subject to the provisions of Section 303 of the Racing, Pari-Mutuel Wagering and Breeding Law, so long as we hold directly or indirectly, a racetrack license issued by the NYSGC, and may be subject to compliance with the requirements of other laws pertaining to licenses held directly or indirectly by us. The owners of common stock issued by us may be required by regulatory authorities to possess certain qualifications and may be required to dispose of their common stock if the owner does not possess such qualifications.
Contractual Obligations
The table below lists the payment commitments of the Company as of March 31, 2019.
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Payments due by period
(in thousands)
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Total
|
|
Less than
1 year
|
|
1 – 3
years
|
|
3 – 5
years
|
|
Years 6 - 40
|
|
Casino Lease (a)
|
$
|
375,749
|
|
|
$
|
7,500
|
|
|
$
|
15,650
|
|
|
$
|
16,200
|
|
|
$
|
336,399
|
|
|
Golf Course Lease (b)
|
8,058
|
|
|
—
|
|
|
300
|
|
|
300
|
|
|
7,458
|
|
|
Entertainment Project Lease (c)
|
8,254
|
|
|
150
|
|
|
300
|
|
|
300
|
|
|
7,504
|
|
|
Term A Loan (d)
|
73,829
|
|
|
15,090
|
|
|
58,739
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|
|
—
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|
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—
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Term B Loan (e)
|
629,395
|
|
|
53,536
|
|
|
105,316
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|
|
470,543
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Equipment Loans (f)
|
16,965
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12,452
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4,513
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—
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—
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Bangkok Bank Loan (g)
|
21,331
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|
|
21,331
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|
|
—
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|
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—
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—
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Operating leases (h)
|
2,603
|
|
|
1,483
|
|
|
1,120
|
|
|
—
|
|
|
—
|
|
|
Revolving Credit Facility (i)
|
18,291
|
|
|
1,169
|
|
|
17,122
|
|
|
—
|
|
|
—
|
|
|
Kien Huat Subordinate Loan (j)
|
39,725
|
|
|
—
|
|
|
39,725
|
|
|
—
|
|
|
—
|
|
|
Total
|
$
|
1,194,200
|
|
|
$
|
112,711
|
|
|
$
|
242,785
|
|
|
$
|
487,343
|
|
|
$
|
351,361
|
|
|
|
|
|
(a)
|
Annual fixed rent payments under the Casino Lease are as follows: beginning September 2018, payments of $625,000 per month, escalating every five years by 8% through the end of the lease term.
|
|
|
|
|
(b)
|
Annual fixed rent payments under the Golf Course Lease are as follows: (i) $0 prior to the Golf Course Opening Date; (ii) $150,000 for the first 10 years following the Golf Course Opening Date; and (iii) $250,000 thereafter for the remainder of the term of the Golf Course Lease.
|
|
|
|
|
(c)
|
Annual fixed rent payments under the Alder Lease are as follows: (i) $0 prior to the Alder Opening Date, which occurred on January 1, 2019; (ii) $150,000 for the first 10 years following the Alder Opening Date; and (iii) $250,000 thereafter for the remainder of the term of the Alder Lease.
|
|
|
|
|
(d)
|
The Term A Loan is a variable rate instrument. The payments reflected above include principal amounts and interest payments based on the interest rate at March 31, 2019.
|
|
|
|
|
(e)
|
The Term B Loan is a variable rate instrument. The payments reflected above include principal amounts and interest payments based on the interest rate at March 31, 2019.
|
|
|
|
|
(f)
|
Equipment loan payments primarily for the purchase of slot machines, software and other equipment for the Casino. The repayment period terms are between 24 and 36 months. These amounts include interest payments.
|
|
|
|
|
(g)
|
The Bangkok Bank Loan is a variable rate instrument. The payments reflected above include principal amounts and interest payments based on the interest rate at March 31, 2019.
|
|
|
|
|
(h)
|
Operating lease payments for the short-term lease of slot machines, copiers and other Casino equipment. The lease periods extend from six months to 36 months.
|
|
|
|
|
(i)
|
The Revolving Credit Facility is a variable rate instrument. The payments reflected above include principal amounts and interest payments based on the interest rate at March 31, 2019.
|
|
|
|
|
(j)
|
The Kien Huat Subordinate Note includes accrued cumulative compounded interest and matures on December 20, 2020.
|
Off-balance Sheet Arrangements
None.