RISK FACTORS
An investment in the exchange notes involves a high degree of risk. In addition to the other information in this prospectus,
prospective investors should carefully consider the following risks before participating in the exchange offer. If any of the following risks actually occur, our business, financial condition or operating results could be materially adversely
affected, which, in turn, could adversely affect our ability to pay interest or principal on the exchange notes or otherwise fulfill our obligations under the indenture governing the exchange notes.
Risks Related to the Exchange Offer
An active trading market may not develop for the old notes or the exchange notes
We are offering the exchange notes to the holders of the old notes. The old notes were sold in March 2016 to a small number of qualified institutional buyers in the United States and to investors outside
of the United States under Regulation S and were subject to certain restrictions on transfer. To the extent that the old notes are tendered and accepted in the exchange offer, the trading market for any untendered and tendered but unaccepted old
notes will be adversely affected. We cannot assure you that the market will provide liquidity for you if you want to sell your old notes. The liquidity of the trading market in the old notes and the exchange notes, and the market price quoted for
the old notes and the exchange notes, may be adversely affected by:
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changes in the overall market for these types of securities;
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changes in our financial performance or prospects;
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the prospects for companies in our industry generally;
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the number of holders of the notes;
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the interest of securities dealers in making a market for the notes; and
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prevailing interest rates.
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As a result, you cannot be sure that an active trading market will develop for the old notes or the exchange notes.
The exchange notes will be registered under the Securities Act, but will constitute a new issue of securities with no established trading market. Moreover, the exchange notes will not be listed on any
stock exchange. We cannot assure you that all of the exchange notes will be freely tradable without a restrictive legend after the exchange offer, nor can we assure you as to the liquidity of the markets that may develop for the exchange notes, your
ability to sell the exchange notes or the price at which you would be able to sell the exchange notes. If such markets were to exist, the exchange notes could trade at prices lower than their principal amount or purchase price depending on many
factors, including prevailing interest rates and the markets for similar securities. The initial purchasers of the old notes have advised us that they presently intend to make a market in the exchange notes after completion of the exchange offer, as
permitted by applicable laws and regulations. However, they are not obligated to do so, and any market-making activities that the initial purchasers do engage in may be discontinued at any time without notice. In addition, such market-making
activity may be limited during the pendency of the exchange offer.
Your old notes will not be accepted for exchange if you fail to follow
the exchange offer procedures
The issuance of exchange notes in exchange for old notes pursuant to the exchange offer will
be made only after timely receipt by the exchange agent of a properly completed and duly executed letter of transmittal, or an agents message in lieu thereof, including all other documents required by such letter of transmittal. Therefore,
holders of old notes desiring to tender such old notes in exchange for exchange notes should allow sufficient time
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to ensure timely delivery. We and the exchange agent are under no duty to give notification of defects or irregularities with respect to the tenders of old notes for exchange. Each broker-dealer
that receives exchange notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such exchange notes. See The Exchange OfferResale of Exchange Notes
and Plan of Distribution.
If you do not exchange your old notes, there will be restrictions on your ability to resell your old
notes
Holders of old notes who do not exchange their old notes for exchange notes pursuant to the exchange offer will
continue to be subject to the restrictions on transfer of such old notes as set forth in the legend on the old notes. In general, the old notes may not be offered or sold, unless registered under the Securities Act, except pursuant to an exemption
from, or in a transaction not subject to, the Securities Act and applicable state securities laws. To the extent that old notes are tendered and accepted in the exchange offer, the trading market for any untendered and tendered but unaccepted old
notes could be adversely affected. See The Exchange OfferConsequences of Failure to Exchange.
Pursuant to
the terms of the registration rights agreement, we will be required to use commercially reasonable efforts to file a shelf registration statement pursuant to Rule 415 of the Securities Act if (i) the exchange offer is not permitted by
applicable law or SEC policy, (ii) the exchange offer is not consummated by March 28, 2017 or (iii) if any holder of the old notes notifies us prior to the 10th business day following consummation of the exchange offer that
(a) such holder, alone or together with other holders who hold in the aggregate at least $1.0 million in principal amount of old notes, was prohibited by applicable law or SEC policy from participating in the exchange offer, (b) such
holder may not resell the exchange notes to the public without delivery of a prospectus and the prospectus contained in the exchange offer registration statement may not be used for such resales by such holder or (c) such holder is a
broker-dealer who holds old notes acquired directly from us or any of our affiliates. See The Exchange OfferShelf Registration Statement.
Your ability to sell your exchange notes may be impaired because the exchange notes are non-investment grade debt
At the time of this exchange offer, the exchange notes are non-investment grade debt. There can be no assurance that the exchange notes will ever achieve or maintain investment grade status. Many
institutional investors have policies that prohibit or restrict their investment in non-investment grade debt. As a result, any trading market that may develop for the exchange notes may be relatively illiquid and you may encounter difficulties in
disposing of your exchange notes. Moreover, the market for non-investment grade debt has, historically, been subject to disruptions that have caused substantial volatility in the prices of securities similar to the exchange notes. We cannot assure
you that the market, if any, for the exchange notes will be free from similar disruptions, and any such disruptions may adversely affect the prices at which you may sell your exchange notes.
Risks Related to the Exchange Notes
Your right to receive payments on the exchange notes is unsecured and will be effectively subordinated to our and our guarantors existing and future secured debt, including obligations under the
Boyd Gaming Credit Facility, to the extent of the value of the collateral securing such debt, and structurally subordinated to the existing and future debt and other liabilities of our subsidiaries that do not guarantee the exchange notes
The exchange notes will be effectively subordinated to any secured debt, including debt under the Boyd Gaming Credit
Facility, to the extent of the value of the collateral securing such debt. Certain of our current and future domestic restricted subsidiaries will guarantee the exchange notes with full and unconditional guarantees that will be unsecured senior
obligations of such subsidiaries and will rank senior to all of such subsidiaries existing and future subordinated debt. The guarantees will be effectively subordinated to any secured debt of our
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guarantor subsidiaries, including debt under the Boyd Gaming Credit Facility, to the extent of the value of the collateral securing such debt. The exchange notes will be structurally subordinated
to all of the liabilities of our subsidiaries that do not guarantee the exchange notes.
Including debt associated with the
old notes, we and our wholly-owned subsidiaries had approximately $3.0 billion of long-term debt as of September 30, 2016 (of which $1.5 billion is outstanding under the Boyd Gaming Credit Facility and which amounts include approximately
$30.3 million of current maturities of such long-term debt and exclude approximately $12.0 million in aggregate of outstanding letters of credit, in each case as of September 30, 2016. In addition, an aggregate amount of approximately
$721.0 million was available for borrowing under the Boyd Gaming Credit Facility as of September 30, 2016. All obligations under the Boyd Gaming Credit Facility would be effectively senior to the exchange notes offered hereby to the extent of
the collateral securing such facility.
For the nine months ended September 30, 2016, our wholly-owned non-guarantor
subsidiaries accounted for approximately $37.6 million, or 2.3%, of our net revenue, and at September 30, 2016, accounted for approximately $477.6 million, or 10.7%, of our total assets, and approximately $41.7 million, or 1.2%, of our
total liabilities (excluding intercompany liabilities).
We are a holding company and depend on the business of our subsidiaries to satisfy
our obligations under the exchange notes
We are a holding company. Our subsidiaries conduct substantially all of our
consolidated operations and own substantially all of our consolidated assets. Consequently, our cash flow and our ability to pay our debts depends on our subsidiaries cash flow and their payment of funds to us. Our subsidiaries are not
obligated to make funds available to us for payment on the exchange notes. In addition, our subsidiaries ability to make any payments to us will depend on their earnings, the terms of their indebtedness, business and tax considerations,
contractual, legal and regulatory restrictions, economic conditions and other factors that are beyond our control.
Depending
on our ability to service our indebtedness, we may need or decide to refinance all or a portion of our indebtedness before maturity and cannot provide assurance that we will be able to refinance any of our indebtedness, including the exchange notes,
on commercially reasonable terms, or at all. We may have to adopt one or more alternatives, such as reducing or delaying planned expenses and capital expenditures, selling assets, restructuring debt, obtaining additional equity or debt financing, or
entering into joint ventures.
Additionally, the ability of our subsidiaries to make payments to us is governed by the gaming
laws of certain jurisdictions, which place limits on the amount of funds that may be transferred to us and may require prior or subsequent approval for any payments to us.
We have, and are permitted to create further, unrestricted subsidiaries, which will not be subject to any of the covenants in the indenture, and we may not be able to rely on the cash flow or assets of
unrestricted subsidiaries to pay our indebtedness
Unrestricted subsidiaries are not subject to the covenants under the
indenture. Unrestricted subsidiaries may enter into financing arrangements that limit their ability to make loans or other payments to fund payments in respect of the exchange notes. Accordingly, we may not be able to rely on the cash flow or assets
of unrestricted subsidiaries to pay any of our indebtedness, including the exchange notes.
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We may not have the funds necessary to finance the repurchase of the exchange notes required by the
indenture upon the occurrence of certain change of control events and asset sales
Upon the occurrence of certain specific
kinds of change of control events, we will be required to offer to repurchase all outstanding exchange notes. In addition, upon the occurrence of certain asset sales, subject to our right to reinvest the proceeds from such sales or repay other
senior indebtedness, within a limited period after such sales, we will be required to offer to repurchase outstanding exchange notes as specified in the indenture governing the exchange notes. However, it is possible that we will not have sufficient
funds at the time of the change of control or the time of the repurchase obligation resulting from asset sales to make the required repurchase of the exchange notes or that restrictions in the Boyd Gaming Credit Facility will not allow such
repurchases.
Our failure to repurchase the exchange notes would be a default under the indenture governing the exchange notes
and the old notes (to the extent any remain outstanding following the exchange offer) and could result in a cross default under the Boyd Gaming Credit Facility and our 6.875% senior notes due 2023. In addition, events constituting a change of
control would generally require us to offer to repurchase our 6.875% senior notes due 2023, of which an aggregate principal amount of $750 million was outstanding at September 30, 2016, as well as the exchange notes and the old notes (to
the extent any remain outstanding following the exchange offer). A change of control could also constitute an event of default under the Boyd Gaming Credit Facility, which as of September 30, 2016 had a principal outstanding balance of
$1.5 billion. To the extent that proceeds from certain asset sales are not reinvested or used to repay the exchange notes, obligations under the Boyd Gaming Credit Facility or other senior debt, we are required by the terms of our 6.875% senior
notes due 2023, the old notes and the exchange notes offered hereby to make an offer to purchase such notes. It is possible that we will not have sufficient funds at such time to make the required repurchase of our outstanding notes, including the
exchange notes offered pursuant to this prospectus, or that restrictions in our Boyd Gaming Credit Facility, the indenture governing the exchange notes and/or the indentures governing the 6.875% senior notes due 2023 and any old notes, respectively,
will not allow such repurchases. It is also possible that we will not be able to make any obligatory payment on the Boyd Gaming Credit Facility in such circumstances.
The indenture governing the exchange notes contains restrictions and limitations that could significantly affect our ability to operate our business, as well as significantly affect our liquidity, and
adversely affect you, as holders of the exchange notes
The indenture governing the exchange notes contains a number of
significant covenants that could adversely affect our ability to operate our business, as well as significantly affect our liquidity, and therefore could adversely affect our results of operations. These covenants restrict, among other things, our
ability to:
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incur additional indebtedness or liens;
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pay dividends or make distributions on our capital stock or repurchase our capital stock;
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make certain investments;
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place restrictions on the ability of subsidiaries to pay dividends or make other distributions to us; and
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sell certain assets or merge with or into other companies.
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These covenants are subject to important exceptions and qualifications as described under Description of the Exchange Notes. For example, the asset sale covenant does not prohibit the sale or
transfer of assets with a fair market value of $100 million or less and therefore we may dispose of assets with significant value without restriction.
Our ability to comply with these covenants may be affected by events beyond our control. The breach of any such covenants or obligations not otherwise waived or cured could result in a default under the
indenture and
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could trigger acceleration of those obligations, which in turn could trigger cross defaults under other agreements governing our long-term indebtedness. Any default under the indenture governing
the exchange notes could adversely affect our growth, our financial condition, our results of operations and our ability to make payments on our debt, and could force us to seek protection under the bankruptcy laws.
Federal and state statutes allow courts, under specific circumstances, to void guarantees and require noteholders to return payments received from
guarantors
Under the federal bankruptcy law and comparable provisions of state fraudulent transfer laws, a guarantee could
be voided, or claims in respect of a guarantee could be subordinated to all other debts of that guarantor, if the guarantor at the time it incurred the indebtedness evidenced by its guarantee:
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received less than reasonably equivalent value or fair consideration for the incurrence of such guarantee and was insolvent or rendered insolvent by
reason of such incurrence;
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was engaged in a business or transaction for which the guarantors remaining assets constituted unreasonably small capital; or
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intended to incur, or believed that it would incur, debts beyond its ability to pay such debts as they mature.
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In addition, any payment by that guarantor pursuant to its guarantee could be voided and required to be returned to the guarantor or to a
fund for the benefit of the creditors of the guarantor.
The measures of insolvency for purposes of these fraudulent transfer
laws will vary depending upon the law applied in any proceeding to determine whether a fraudulent transfer has occurred. Generally, however, a guarantor would be considered insolvent if:
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the sum of its debts, including contingent liabilities, was greater than the fair saleable value of all its assets;
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the present fair saleable value of its assets was less than the amount that would be required to pay its probable liability on its existing debts,
including contingent liabilities, as they become absolute and mature; or
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it could not pay its debts as they become due.
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We, meaning only Boyd Gaming Corporation, have no significant operations of our own and derive substantially all of our revenue from our subsidiaries. If a guarantee of the exchange notes by a subsidiary
were voided as a fraudulent transfer, holders of other indebtedness of, and trade creditors of, that subsidiary would generally be entitled to payment of their claims from the assets of the subsidiary before such assets could be made available for
distribution to us to satisfy our own obligations, such as the exchange notes.
You may have to dispose of the exchange notes if your
ownership of the exchange notes is determined to be harmful to us
The gaming authority of any jurisdiction in which we
currently or in the future conduct or propose to conduct gaming may require that a holder of the exchange notes be registered, licensed, qualified or found suitable, or comply with any other requirement under applicable gaming laws. Under the
indenture governing the exchange notes, we are able to redeem or require you to dispose of all or a portion of your exchange notes, and if required by the applicable gaming authority, we will be required to redeem or require you to dispose of, all
or a portion of your exchange notes to the extent required by the gaming authority or deemed necessary or advisable by us.
The redemption price will be equal to the lesser of:
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the lowest closing sale price of the exchange notes on any trading day during the 120-day period ending on the date upon which we shall have received
notice from a gaming authority of your disqualification, or
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the price that you or the beneficial owner paid for the exchange notes,
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unless a different amount is required by such gaming authority.
By accepting an
exchange note, each holder or beneficial owner of an exchange note agrees that the exchange notes held by such holder or beneficial owner shall be subject to the aforementioned provisions. Holders of the exchange notes may not be able to reinvest
the redemption proceeds in a comparable security at an interest rate as high as the interest rate of the notes being redeemed.
The market
valuation of the exchange notes may be exposed to substantial volatility
A real or perceived economic downturn or higher
interest rates could cause a decline in the exchange notes, and to high-yield bonds generally, and thereby negatively impact the market for high-yield bonds, and more specifically, the exchange notes. Because the exchange notes may be thinly traded,
it may be more difficult to sell and accurately value the exchange notes. In addition, as has recently been evident in the recent turmoil in the global financial markets, the accompanying economic slowdown and the uncertainty over its breadth, depth
and duration, the entire high-yield bond market can experience sudden and sharp price swings, which could be exacerbated by large or sustained sales by major investors in the exchange notes, a high-profile default by another issuer, or simply a
change in the markets psychology regarding high-yield exchange notes. Moreover, if one of the major rating corporations lowers its credit rating of the exchange notes, the price of the exchange notes will likely decline.
Risks Related to Our Indebtedness
We have a significant amount of indebtedness
Including debt associated
with the old notes, we and our wholly-owned subsidiaries had approximately $3.0 billion of long-term debt as of September 30, 2016 (of which $1.5 billion is outstanding under the Boyd Gaming Credit Facility and which amounts include
approximately 30.3 million of current maturities of such long-term debt and exclude approximately $12.0 million in aggregate of outstanding letters of credit, in each case as of September 30, 2016). In addition, an aggregate amount of
approximately $721.0 million was available for borrowing under the Boyd Gaming Credit Facility as of September 30, 2016.
If we pursue, or continue to pursue, any expansion, development, investment or renovation projects, we expect that our long-term debt will substantially increase in connection with related capital
expenditures. This indebtedness could have important consequences, including:
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difficulty in satisfying our obligations under our current indebtedness;
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increasing our vulnerability to general adverse economic and industry conditions;
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requiring us to dedicate a substantial portion of our cash flows from operations to payments on our indebtedness, which would reduce the availability
of our cash flows to fund working capital, capital expenditures, expansion efforts and other general corporate purposes;
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limiting our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate;
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placing us at a disadvantage compared to our competitors that have less debt; and
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limiting, along with the financial and other restrictive covenants in our indebtedness, among other things, our ability to borrow additional funds.
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Our debt instruments contain, and any future debt instruments likely will contain, a number of restrictive
covenants that impose significant operating and financial restrictions on us, including restrictions on our ability to, among other things:
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incur additional debt, including providing guarantees or credit support;
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incur liens securing indebtedness or other obligations;
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make certain investments;
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make certain acquisitions;
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pay dividends or make distributions and make other restricted payments;
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enter into sale and leaseback transactions;
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engage in any new businesses; and
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enter into transactions with our stockholders and our affiliates.
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Failure to comply with these covenants could result in an event of default, which, if not cured or waived, could have a significant
adverse effect on our business, results of operations and financial condition.
Note 8, Long-Term Debt, included
in the notes to our audited consolidated financial statements for the fiscal year ended December 31, 2015 provided in Item 8 of our Current Report on
Form 8-K,
Note 7, Long-Term
Debt, included in the notes to our unaudited condensed consolidated financial statements provided in Item 1 of our Quarterly Report on Form 10-Q for the quarter ended September 30, 2016 and Description of Other
Indebtedness contain further disclosure regarding our outstanding debt.
To service our indebtedness, we will require a significant
amount of cash. Our ability to generate cash depends on many factors beyond our control
Our ability to make payments on
and to refinance our indebtedness and to fund planned capital expenditures and expansion efforts will depend upon our ability to generate cash in the future. This, to a certain extent, is subject to general economic, financial, competitive,
legislative, regulatory and other factors that are beyond our control.
It is unlikely that our business will generate
sufficient cash flows from operations, or that future borrowings will be available to us under the Boyd Gaming Credit Facility in amounts sufficient to enable us to pay our indebtedness, as such indebtedness matures and to fund our other liquidity
needs. We believe that we will need to refinance all or a portion of our indebtedness, at or before maturity, and cannot provide assurances that we will be able to refinance any of our indebtedness, including amounts borrowed under the Boyd Gaming
Credit Facility, on commercially reasonable terms, or at all. We may have to adopt one or more alternatives, such as reducing or delaying planned expenses and capital expenditures, selling assets, restructuring debt, or obtaining additional equity
or debt financing or joint venture partners. These financing strategies may not be affected on satisfactory terms, if at all. In addition, certain states laws contain restrictions on the ability of companies engaged in the gaming business to
undertake certain financing transactions. Some restrictions may prevent us from obtaining necessary capital.
We and our subsidiaries may
still be able to incur substantially more debt, which could further exacerbate the risks described above
We and our
subsidiaries may be able to incur substantial additional indebtedness in the future. The terms of the indenture governing our senior notes will not fully prohibit us or our subsidiaries from doing so. Borrowings under the Boyd Gaming Credit Facility
would be effectively senior to our senior notes and the guarantees of our subsidiary guarantors to the extent of the value of the collateral securing such borrowings. If new debt is added to our, or our subsidiaries, current debt levels, the
related risks that we or they now face could intensify.
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If we are unable to finance our expansion, development, investment and renovation projects, as well as
other capital expenditures, through cash flow, borrowings under the Boyd Gaming Credit Facility and additional financings, our expansion, development, investment and renovation efforts will be jeopardized
We intend to finance our current and future expansion, development, investment and renovation projects, as well as our other capital
expenditures, primarily with cash flow from operations, borrowings under our Boyd Gaming Credit Facility, and equity or debt financings. If we are unable to finance our current or future expansion, development, investment and renovation projects, or
our other capital expenditures, we will have to adopt one or more alternatives, such as reducing, delaying or abandoning planned expansion, development, investment and renovation projects as well as other capital expenditures, selling assets,
restructuring debt, obtaining additional equity financing or joint venture partners, or modifying the Boyd Gaming Credit Facility. These sources of funds may not be sufficient to finance our expansion, development, investment and renovation
projects, and other financing may not be available on acceptable terms, in a timely manner, or at all. In addition, our existing indebtedness contains certain restrictions on our ability to incur additional indebtedness.
In the past, there have been significant disruptions in the global capital markets that adversely impacted the ability of borrowers to
access capital. Although we currently anticipate that we will be able to fund any expansion projects using cash flows from operations and availability under the Boyd Gaming Credit Facility (to the extent that availability exists after we meet our
working capital needs), if availability under our Boyd Gaming Credit Facility does not exist or we are otherwise unable to make sufficient borrowings thereunder, any additional financing that is needed may not be available to us or, if available,
may not be on terms favorable to us. As a result, if we are unable to obtain adequate project financing in a timely manner, or at all, we may be forced to sell assets in order to raise capital for projects, limit the scope of, or defer such
projects, or cancel the projects altogether. In the event that capital markets do not improve and we are unable to access capital with more favorable terms, additional equity and/or credit support may be necessary to obtain construction financing
for the remaining cost of the project.
Risks Related to our Business
Our business is particularly sensitive to reductions in discretionary consumer spending as a result of downturns in the economy
Consumer demand for entertainment and other amenities at casino hotel properties, such as ours, are particularly sensitive to downturns in
the economy and the corresponding impact on discretionary spending on leisure activities. Changes in discretionary consumer spending or consumer preferences brought about by factors such as perceived or actual general economic conditions, effects of
declines in consumer confidence in the economy, including the recent housing, employment and credit crisis, the impact of high energy and food costs, the increased cost of travel, the potential for bank failures, decreased disposable consumer income
and wealth, or fears of war and future acts of terrorism could further reduce customer demand for the amenities that we offer, thus imposing practical limits on pricing and negatively impacting our results of operations and financial condition.
For example, we have recently experienced one of the toughest economic periods in Las Vegas history. The recent housing
crisis and economic slowdown in the United States resulted in a significant decline in the amount of tourism and spending in Las Vegas and other locations in which we own or invest in casino hotel properties. While the economy has improved
significantly since the end of the recent economic recession, our business continues to experience lingering effects from changes in consumer spending habits due to the recession. Las Vegas visitation has improved, and we are seeing improving
economies in our local and regional markets.
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However, our customers are spending less per visit and differently than prior to the recession, including focusing more on non-gaming amenities. We cannot say when, if ever, or to what extent,
customer behavior in our various markets will fully-revert to pre-recession behavior trends. If customers spend less per visit or customers prefer non-gaming amenities of our competitors, and we are unable to increase total visitation, our business
may be adversely affected. Since our business model relies on consumer expenditures on entertainment, luxury and other discretionary items, a slowing or stoppage of the economic recovery or a return to an economic downturn will further adversely
affect our results of operations and financial condition.
Intense competition exists in the gaming industry, and we expect competition to
continue to intensify
The gaming industry is highly competitive for both customers and employees, including those at the
management level. We compete with numerous casinos and hotel casinos of varying quality and size in market areas where our properties are located. We also compete with other non-gaming resorts and vacation destinations, and with various other casino
and other entertainment businesses, including online gaming websites, and could compete with any new forms of gaming that may be legalized in the future. The casino entertainment business is characterized by competitors that vary considerably in
their size, quality of facilities, number of operations, brand identities, marketing and growth strategies, financial strength and capabilities, level of amenities, management talent and geographic diversity. In most markets, we compete directly
with other casino facilities operating in the immediate and surrounding market areas. In some markets, we face competition from nearby markets in addition to direct competition within our market areas.
With fewer other new markets opening for development, competition in existing markets has intensified in recent years. We and our
competitors have invested in expanding existing facilities, developing new facilities, and acquiring established facilities in existing markets. This expansion of existing casino entertainment properties, the increase in the number of properties and
the aggressive marketing strategies of many of our competitors have increased competition in many markets in which we compete, and this intense competition can be expected to continue. For example, a new property opened in Shreveport, Louisiana,
during June 2013, which competes with Sams Town Shreveport for gaming customers. In December 2014, a new property also opened in Lake Charles, Louisiana, that increased competition with Delta Downs Racetrack Casino & Hotel. In
Illinois, the legalization of video lottery terminals in recent years has added more than 22,000 new gaming devices across the state, including nearly 4,000 in the immediate market of the Par-A-Dice Hotel Casino, increasing competition for that
property. Additionally, competition may intensify if our competitors commit additional resources to aggressive pricing and promotional activities in order to attract customers.
Also, our business may be adversely impacted by the additional gaming and room capacity in states where we operate or intend to operate.
Several states are also considering enabling the development and operation of casinos or casino-like operations in their jurisdictions.
The possible future expansion of gaming in Wisconsin or the possible expansion of gaming in Cedar Rapids, Iowa, if approved, could impact the operating results of the Diamond Jo Dubuque. Further, Kansas
Star could, in the future, face competition from the Wichita Greyhound Park, located approximately 30 miles away in Park City, Kansas. While gaming is not currently permitted in Sedgwick County, Kansas (the site of the Wichita Greyhound Park), the
Kansas Expanded Lottery Act permits the installation of slot machines at race tracks under certain conditions. If the Kansas legislature authorized a new gaming referendum in Sedgwick County and such referendum was approved, and certain other
regulatory conditions were satisfied, the Wichita Greyhound Park could be permitted to install slot machines.
We also compete
with legalized gaming from casinos located on Native American tribal lands. Expansion of Native American gaming in areas located near our properties, or in areas in or near those from which we draw our customers, could have an adverse effect on our
operating results. For example, increased competition from federally recognized Native American tribes near Blue Chip and Sams Town Shreveport has had a negative impact on our results. Native American gaming facilities typically have a
significant operating advantage over our properties due to lower gaming fees or taxes, allowing those facilities to market more aggressively and to
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expand or update their facilities at an accelerated rate. Although we expanded our facility at Blue Chip in an effort to be more competitive in this market, competing Native American properties
could continue to have an adverse impact on the operations of both Blue Chip and Sams Town Shreveport. Kansas Star may face additional competition in the Wichita, Kansas metropolitan area. The Wyandotte Nation of Oklahoma previously filed an
application with the U.S. Department of Interior to have certain land located in Park City, Kansas (in the Wichita metro area) taken into trust by the U.S. Government and to permit gaming. In July 2014, the U.S. Department of Interior rejected the
Wyandotte Nations trust application for the Park City land. However, the Nation has indicated it will seek to appeal this ruling. If an appeal were filed and ultimately successful, the Wyandotte Nation would be permitted to open a Class II
gaming facility, and upon successful negotiation of a compact with the State of Kansas would be permitted to open a Class III gaming facility.
In addition, we also compete to some extent with other forms of gaming on both a local and national level, including state-sponsored lotteries, charitable gaming, on-and off-track wagering, and other
forms of entertainment, including motion pictures, sporting events and other recreational activities. It is possible that these secondary competitors could reduce the number of visitors to our facilities or the amount they are willing to wager,
which could have a material adverse effect on our ability to generate revenue or maintain our profitability and cash flows.
If our competitors operate more successfully than we do, if they attract customers away from us as a result of aggressive pricing and
promotion, if they are more successful than us in attracting and retaining employees, if their properties are enhanced or expanded, if they operate in jurisdictions that give them operating advantages due to differences or changes in gaming
regulations or taxes, or if additional hotels and casinos are established in and around the locations in which we conduct business, we may lose market share or the ability to attract or retain employees. In particular, the expansion of casino gaming
in or near any geographic area from which we attract or expect to attract a significant number of our customers could have a significant adverse effect on our business, financial condition and results of operations.
In addition, increased competition may require us to make substantial capital expenditures to maintain and enhance the competitive
positions of our properties, including updating slot machines to reflect changing technology, refurbishing public service areas periodically, replacing obsolete equipment on an ongoing basis and making other expenditures to increase the
attractiveness and add to the appeal of our facilities. Because we are highly leveraged, after satisfying our obligations under our outstanding indebtedness, there can be no assurance that we will have sufficient funds to undertake these
expenditures or that we will be able to obtain sufficient financing to fund such expenditures. If we are unable to make such expenditures, our competitive position could be materially adversely affected.
The ongoing economic recovery may have an effect on our business and financial condition, as well as our access to capital, in ways that we currently
cannot accurately predict
The significant economic distress affecting financial institutions during periods of global
financial crisis can have far-reaching adverse consequences across many industries, including the gaming industry. A crisis may greatly restrict the availability of capital and cause the cost of capital (if available) to be much higher than it has
traditionally been. Although the financial markets have generally recovered from the most recent financial crisis and availability of capital has increased, the financial markets remain volatile. Although we successfully refinanced a significant
amount of our indebtedness in 2015 and 2016, we have no assurance that we will continue to have access to credit or capital markets at desirable times or at rates that we would consider acceptable, and the lack of such funding could have a material
adverse effect on our business, results of operations and financial condition, including our ability to refinance Boyd Gamings indebtedness, our flexibility to react to changing economic and business conditions and our ability or willingness
to fund new development projects.
We are not able to predict the duration or strength of the current economic recovery, the
resulting impact on the solvency or liquidity of our lenders, or the possibility of a future recession. Prolonged slow growth or a
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downturn, or further worsening or broadening of adverse conditions in worldwide and domestic economies could affect our lenders. If a large percentage of our lenders were to file for bankruptcy
or otherwise default on their obligations to us, we may not have the liquidity under the Boyd Gaming Credit Facility to fund our current projects. There is no certainty that our lenders will continue to remain solvent or fund their respective
obligations under the Boyd Gaming Credit Facility. If we were otherwise required to renegotiate or replace the Boyd Gaming Credit Facility, there is no assurance that we would be able to secure terms that are as favorable to us, if at all.
We may incur impairments to goodwill, indefinite-lived intangible assets, or long-lived assets
In accordance with the authoritative accounting guidance for goodwill and other intangible assets, we test our goodwill and
indefinite-lived intangible assets for impairment annually or if a triggering event occurs. We perform our annual impairment testing for goodwill and indefinite-lived intangible assets as of October 1. We recorded a non-cash impairment charge
of $17.5 million to the Par-A-Dice gaming license in connection with the 2015 annual impairment test. The results of our annual scheduled impairment tests performed in the fourth quarter of 2014 required us to record non-cash impairment charges of
$40.1 million, constituting $39.8 million and $0.3 million of impairments of gaming licenses and trademarks, respectively, in our Midwest and South segment. In 2013, impairment charges amounted to $4.1 million, constituting $3.2 million of
impairments of certain trade names acquired in the Peninsula Acquisition and $0.9 million to further impair the Sams Town Shreveport gaming license.
In December 2012, we reconsidered our commitment to complete our multibillion dollar Echelon development project on the Las Vegas Strip and concluded that we would not resume development. Based on the
exploration of the viability of alternatives for the project, in the three months ended December 31, 2012, we recorded a non-cash impairment charge of approximately $993.9 million related to the Echelon development and $39.4 million related to
various parcels of undeveloped land based on the difference between the book value of the assets and the estimated realizable value of the assets. On March 4, 2013, we sold the Echelon site and related improvements on the site and received net
proceeds of $157.0 million.
If our estimates of projected cash flows related to our assets are not achieved, we may be
subject to future impairment charges, which could have a material adverse impact on our consolidated financial statements.
We face risks
associated with growth and acquisitions
As part of our business strategy, we regularly evaluate opportunities for growth
through development of gaming operations in existing or new markets, through acquiring other gaming entertainment facilities or through redeveloping our existing gaming facilities. For example, on September 27, 2016 we acquired Aliante and on
December 20, 2016 we completed the Cannery Purchase (the Cannery Purchase, together with the acquisition of Aliante, the Acquisitions). In the future, we may also pursue expansion opportunities, including joint ventures, in
jurisdictions where casino gaming is not currently permitted in order to be prepared to develop projects upon approval of casino gaming.
Although we only intend to engage in acquisitions that, if consummated, will be accretive to us and our shareholders, acquisitions require significant management attention and resources to integrating new
properties, businesses and operations. Additionally, we will need to successfully integrate three additional properties into Boyd Gamings operating structure in order to realize the anticipated benefits of the Acquisitions. Potential
difficulties we may encounter as part of the integration process include the following:
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the inability to successfully incorporate the assets in a manner that permits the us to achieve the full revenue and other benefits anticipated to
result from the acquisitions;
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complexities associated with managing the combined business, including difficulty addressing possible differences in cultures and management
philosophies and the challenge of integrating complex
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systems, technology, networks and other assets of each of the companies in a seamless manner that minimizes any adverse impact on customers, suppliers, employees and other constituencies; and
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potential unknown liabilities and unforeseen increased expenses associated with the acquisitions.
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In addition, it is possible that the integration process could result in:
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diversion of the attention of our management; and
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the disruption of, or the loss of momentum in, each our ongoing business or inconsistencies in standards, controls, procedures and policies,
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any of which could adversely affect our ability to maintain relationships with customers, suppliers, employees and other
constituencies or our ability to achieve the anticipated benefits, or could reduce our earnings or otherwise adversely affect our business and financial results.
There can be no assurance that we will be able to identify, acquire, develop or profitably manage additional companies or operations or successfully integrate such companies or operations, including the
three properties associated with the Acquisitions into our existing operations without substantial costs, delays or other problems. Additionally, there can be no assurance that we will receive gaming or other necessary licenses or approvals for new
projects that we may pursue or that gaming will be approved in jurisdictions where it is not currently approved.
Ballot
measures or other voter-approved initiatives to allow gaming in jurisdictions where gaming, or certain types of gaming (such as slots), was not previously permitted could be challenged, and, if such challenges are successful, these ballot measures
or initiatives could be invalidated. Furthermore, there can be no assurance that there will not be similar or other challenges to legalized gaming in existing or current markets in which we may operate or have development plans, and successful
challenges to legalized gaming could require us to abandon or substantially curtail our operations or development plans in those locations, which could have a material adverse effect on our financial condition and results of operations.
There can be no assurance that we will not face similar challenges and difficulties with respect to new development projects or expansion
efforts that we may undertake, which could result in significant sunk costs that we may not be able to fully recoup or that otherwise have a material adverse effect on our financial condition and results of operations.
Our expansion and development opportunities may face significant risks inherent in construction projects
We regularly evaluate expansion, development, investment and renovation opportunities.
Any such development projects are subject to many other risks inherent in the expansion or renovation of an existing enterprise or
construction of a new enterprise, including unanticipated design, construction, regulatory, environmental and operating problems and lack of demand for our projects. Our current and future projects could also experience:
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changes to plans and specifications;
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delays and significant cost increases;
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shortages of materials;
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shortages of skilled labor or work stoppages for contractors and subcontractors;
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labor disputes or work stoppages;
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disputes with and defaults by contractors and subcontractors;
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health and safety incidents and site accidents;
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engineering problems, including defective plans and specifications;
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poor performance or nonperformance by any of our joint venture partners or other third parties on whom we place reliance;
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changes in laws and regulations, or in the interpretation and enforcement of laws and regulations, applicable to gaming facilities, real estate
development or construction projects;
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unforeseen construction scheduling, engineering, environmental, permitting, construction or geological problems;
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environmental issues, including the discovery of unknown environmental contamination;
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weather interference, floods, fires or other casualty losses;
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other unanticipated circumstances or cost increases; and
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failure to obtain necessary licenses, permits, entitlements or other governmental approvals.
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The occurrence of any of these development and construction risks could increase the total costs of our construction projects or delay or
prevent the construction or opening or otherwise affect the design and features of our construction projects, which could materially adversely affect our plan of operations, financial condition and ability to satisfy our debt obligations.
In addition, actual costs and construction periods for any of our projects can differ significantly from initial
expectations. Our initial project costs and construction periods are based upon budgets, conceptual design documents and construction schedule estimates prepared at inception of the project in consultation with architects and contractors. Many of
these costs can increase over time as the project is built to completion. We can provide no assurance that any project will be completed on time, if at all, or within established budgets, or that any project will result in increased earnings to us.
Significant delays, cost overruns, or failures of our projects to achieve market acceptance could have a material adverse effect on our business, financial condition and results of operations.
Although we design our projects to minimize disruption of our existing business operations, expansion and renovation projects require,
from time to time, all or portions of affected existing operations to be closed or disrupted. Any significant disruption in operations of a property could have a significant adverse effect on our business, financial condition and results of
operations.
The failure to obtain necessary government approvals in a timely manner, or at all, can adversely impact our various
expansion, development, investment and renovation projects
Certain permits, licenses and approvals necessary for some of
our current or anticipated projects have not yet been obtained. The scope of the approvals required for expansion, development, investment or renovation projects can be extensive and may include gaming approvals, state and local land-use permits and
building and zoning permits. Unexpected changes or concessions required by local, state or federal regulatory authorities could involve significant additional costs and delay the scheduled openings of the facilities. We may not obtain the necessary
permits, licenses and approvals within the anticipated time frames, or at all.
Failure to maintain the integrity of our information
technology systems, protect our internal information, or comply with applicable privacy and data security regulations could adversely affect us
We rely extensively on our computer systems to process customer transactions, manage customer data, manage employee data and communicate with third-party vendors and other third parties, and we may also
access the internet to use our computer systems. Our operations require that we collect and store customer data,
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including credit card numbers and other personal information, for various business purposes, including marketing and promotional purposes. We also collect and store personal information about our
employees. Breaches of our security measures or information technology systems or the accidental loss, inadvertent disclosure or unapproved dissemination of proprietary information or sensitive personal information or confidential data about us, or
our customers, or our employees including the potential loss or disclosure of such information as a result of hacking or other cyber-attack, computer virus, fraudulent use by customers, employees or employees of third party vendors, trickery or
other forms of deception or unauthorized use, or due to system failure, could expose us, our customers, our employees or other individuals affected to a risk of loss or misuse of this information, result in litigation and potential liability for us,
damage our casino or brand names and reputations or otherwise harm our business. We rely on proprietary and commercially available systems, software, tools and monitoring to provide security for processing, transmission and storage of customer
information, such as payment card, employee information and other confidential or proprietary information. Our data security measures are reviewed and evaluated regularly, however they might not protect us against increasingly sophisticated and
aggressive threats. The cost and operational consequences of implementing further data security measures could be significant.
Additionally, the collection of customer and employee personal information imposes various privacy compliance related obligations on our
business and increases the risks associated with a breach or failure of the integrity of our information technology systems. The collection and use of personal information is governed by privacy laws and regulations enacted in the United States and
other jurisdictions around the world. Privacy regulations continue to evolve and on occasion may be inconsistent from one jurisdiction to another. Compliance with applicable privacy laws and regulations may increase our operating costs and/or
adversely impact our ability to market our products, properties and services to our customers. In addition, non-compliance with applicable privacy laws and regulations by us (or in some circumstances non-compliance by third party service providers
engaged by us) may also result in damage of reputation, result in vulnerabilities that could be exploited to breach our systems and/or subject us to fines, payment of damages, lawsuits or restrictions on our use or transfer of personal information.
Risks Related to the Regulation of our Industry
We are subject to extensive governmental regulation, as well as federal, state and local laws affecting business in general, which may harm our business
Our ownership, management and operation of gaming facilities are subject to extensive laws, regulations and ordinances, which are
administered by the Nevada Gaming Commission and Gaming Control Board, Mississippi Gaming Commission, Indiana Gaming Commission, Illinois Gaming Board, Iowa Racing and Gaming Commission, the Kansas Lottery Commission, the Kansas Racing and Gaming
Commission, the Louisiana State Gaming Control Board, the Louisiana State Racing Commission and various other federal, state and local government entities and agencies. We are subject to regulations that apply specifically to the gaming industry and
horse racetracks and casinos, in addition to regulations applicable to businesses generally. A more detailed description of the governmental gaming regulations to which we are subject is filed as Exhibit 99.1 to our Annual Report on Form 10-K for
the year ended December 31, 2015. If additional gaming regulations are adopted in a jurisdiction in which we operate, such regulations could impose restrictions or costs that could have a significant adverse effect on us. From time to time,
various proposals are introduced in the legislatures of some of the jurisdictions in which we have existing or planned operations that, if enacted, could adversely affect the tax, regulatory, operational or other aspects of the gaming industry and
our company.
To date, we have obtained all governmental licenses, findings of suitability, registrations, permits and
approvals necessary for the operation of our properties. However, we can give no assurance that any additional licenses, permits and approvals that may be required will be given or that existing ones will be renewed or will not be revoked. Renewal
is subject to, among other things, continued satisfaction of suitability requirements. Any failure to renew or maintain our licenses or to receive new licenses when necessary would have a material adverse effect on us.
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Gambling
Legislative or administrative changes in applicable legal requirements, including legislation to prohibit casino gaming, have been proposed in the past. For example, in 1996, the State of Louisiana
adopted a statute in connection with which votes were held locally where gaming operations were conducted and which, had the continuation of gaming been rejected by the voters, might have resulted in the termination of operations at the end of their
current license terms. During the 1996 local gaming referendums, Lafayette Parish voted to disallow gaming in the Parish, whereas St. Landry Parish, the site of our racino, voted in favor of gaming. All parishes where riverboat gaming operations are
currently conducted voted to continue riverboat gaming, but there can be no guarantee that similar referenda might not produce unfavorable results in the future. Proposals to amend or supplement the Louisiana Riverboat Economic Development and
Gaming Control Act and the Pari-Mutuel Act also are frequently introduced in the Louisiana State legislature. In the 2001 session, a representative from Orleans Parish introduced a proposal to repeal the authority of horse racetracks in Calasieu
Parish (the site of Delta Downs) and St. Landry Parish (the site of Evangeline Downs) to conduct slot machine gaming at such horse racetracks and to repeal the special taxing districts created for such purposes. If adopted, this proposal would have
effectively prohibited us from operating the casino portion of our racino. In addition, the Louisiana legislature, from time to time, considers proposals to repeal the Pari-Mutuel Act.
The legislation permitting gaming in Iowa authorizes the granting of licenses to qualified sponsoring organizations. Such
qualified sponsoring organizations may operate the gambling structure itself, subject to satisfying necessary licensing requirements, or it may enter into an agreement with an operator to operate gambling on its behalf. An operator must
be approved and licensed by the Iowa Racing and Gaming Commission. The Dubuque Racing Association (DRA), a not-for-profit corporation organized for the purpose of operating a pari-mutuel greyhound racing facility in Dubuque, Iowa, first
received a riverboat gaming license in 1990 and, pursuant to the Amended DRA Operating Agreement, has served as the qualified sponsoring organization of the Diamond Jo since March 18, 1993. The term of the Amended DRA Operating
Agreement expires on December 31, 2018. The Worth County Development Authority (WCDA), pursuant to the WCDA Operating Agreement, serves as the qualified sponsoring organization of Diamond Jo Worth. The term of the WCDA
Operating Agreement expires on March 31, 2025, and is subject to automatic ten-year renewal periods. If the Amended DRA Operating Agreement or WCDA Operating Agreement were to terminate, or if the DRA or WCDA were to otherwise discontinue
acting as our qualified sponsoring organization with respect to our operation of the Diamond Jo or Diamond Jo Worth, respectively, and we were unable to obtain approval from the Iowa Racing and Gaming Commission to partner with an
alternative qualified sponsoring organization as required by our gaming license, we would no longer be able to continue our Diamond Jo or Diamond Jo Worth operations, which would materially and adversely affect our business, results of
operations and cash flows.
Regulation of Smoking
Illinois has adopted laws that significantly restrict, or otherwise ban, smoking at our properties in those jurisdictions. The Illinois laws that restrict smoking at casinos, and similar legislation in
other jurisdictions in which we operate, could materially impact the results of operations of our properties in those jurisdictions. Kansas has attempted to pass legislation to regulate smoking in casino and racetrack gaming floors during each of
the past two years and Indiana imposes a state wide smoking ban in specified businesses, buildings, public places and other articulated locations. Indianas statute specifically exempted riverboat casinos, and all other gaming facilities in
Indiana, from the smoking ban; however, the statute also allowed local governments to enact more restrictive smoking bans than the state statute and also left in place any more restrictive local legislation that existed as of the effective date of
the statute. To date, neither Michigan City nor LaPorte County, where Blue Chip is located, has enacted any ordinance or other law that would impose a smoking ban on Blue Chip.
Regulation of Directors, Officers, Key Employees and Partners
Our
directors, officers, key employees, joint venture partners and certain shareholders must meet approval standards of certain state regulatory authorities. If state regulatory authorities were to find a person occupying
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any such position, a joint venture partner, or shareholder unsuitable, we would be required to sever our relationship with that person, or the joint venture partner or shareholder may be required
to dispose of their interest. State regulatory agencies may conduct investigations into the conduct or associations of our directors, officers, key employees or joint venture partners to ensure compliance with applicable standards.
Certain public and private issuances of securities and other transactions that we are party to also require the approval of some state
regulatory authorities.
Live Racing Regulations
Louisiana gaming regulations and our gaming license for the Evangeline Downs and Delta Downs require that we, among other things, conduct a minimum of 80 live racing days in a consecutive 20-week period
each year of live horse race meetings at the horse racetrack. Live racing days typically vary in number from year to year and are based on a number of factors, many of which are beyond our control, including the number of suitable race horses and
the occurrence of severe weather. If we fail to have the minimum number of racing days, our gaming license with respect to the racino may be canceled, and the casino will be required to cease operations. Any cessation of our operation would have a
material adverse effect on our business, prospects, financial condition, results of operations and cash flows.
Regulations Affecting
Businesses in General
In addition to gaming regulations, we are also subject to various federal, state and local laws and
regulations affecting businesses in general. These laws and regulations include, but are not limited to, restrictions and conditions concerning alcoholic beverages, environmental matters, smoking, employees, currency transactions, taxation, zoning
and building codes, and marketing and advertising. Such laws and regulations could change or could be interpreted differently in the future, or new laws and regulations could be enacted. For example, Nevada enacted legislation that eliminated, in
most instances, and, for certain pre-existing development projects, reduced, property tax breaks and retroactively eliminated certain sales tax exemptions offered as incentives to companies developing projects that meet certain environmental
green standards. As a result, we, along with other companies developing projects that meet such standards, have not been able to realize the full tax benefits that were originally anticipated.
We are subject to extensive taxation policies, which may harm our business
The federal government has, from time to time, considered a federal tax on casino revenues and may consider such a tax in the future. If
such an increase were to be enacted, it could adversely affect our business, financial conditions, results of operations and cash flow. Our ability to incur additional indebtedness in the future to finance casino development projects could be
materially and adversely affected.
In addition, gaming companies are often subject to significant state and local taxes and
fees, in addition to normal federal and state corporate income taxes, and such taxes and fees are subject to increase at any time and which increase may be retroactive to prior years. Currently, in Iowa, we are taxed at an effective rate of
approximately 21.5% of our adjusted gross receipts by the State of Iowa, we pay the city of Dubuque a fee equal to $500,000 per year and we pay a fee equal to 4.5% and 5.76% of adjusted gross receipts to the DRA and WCDA, respectively. In addition,
all Iowa gaming licensees share equally in the costs of the Iowa Racing and Gaming Commission and related entities to administer gaming in Iowa, which is currently approximately $0.8 million per year per facility. Currently, at Evangeline Downs, we
are taxed at an effective rate of approximately 36.5% of our adjusted gross slot revenue and pay to the Louisiana State Racing Commission a fee of $0.25 for each patron who enters the racino on live race days from the hours of 6:00 pm to midnight,
enters the racino during non-racing season from the hours of noon to midnight Thursday through Monday, or enters any one of our off-track betting parlors. Our Amelia Belle riverboat casino in Louisiana pays an annual state gaming tax rate of 21.5%
of adjusted gross receipts. Additionally, Amelia Belle has an agreement with the Parish of St. Mary to
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permit the berthing of the riverboat casino in Amelia, Louisiana. That agreement provides for percentage fees based on the level of net gaming revenue as follows: the first $60 million, 2.5%; $60
to $96 million, 3.5%; and greater than $96 million, 5.0%. The annual minimum fee due under the agreement is $1.5 million. Kansas Star, pursuant to its Management Contract with the State of Kansas pays total taxes of between 27% and 31% of gross
gaming revenue, based on achievement of the following revenue levels: 27% on gross gaming revenue up to $180 million, 29% on amounts from $180 million to $220 million, and 31% on amounts above $220 million in gross gaming revenue. Kansas Star is
also contractually obligated to pay its proportionate share of certain expenses incurred by the Kansas Lottery Commission and the Kansas Racing and Gaming Commission, which historically have ranged from $3.0 million to $3.5 million on an annual
basis.
If there is any material increase in state and local taxes and fees, our business, financial condition and results of
operations could be adversely affected.
Risks Related to our Properties
We own real property and are subject to extensive environmental regulation, which creates uncertainty regarding future environmental expenditures and
liabilities, and could affect our ability to develop, sell or rent our property or to borrow money where such property is required to be used as collateral
We are subject to various federal, state and local environmental laws, ordinances and regulations, including those governing discharges to air and water, the generation, handling, management and disposal
of petroleum products or hazardous substances or wastes, and the health and safety of our employees. Permits may be required for our operations and these permits are subject to renewal, modification and, in some cases, revocation. In addition, under
environmental laws, ordinances or regulations, a current or previous owner or operator of property may be liable for the costs of investigation and removal or remediation of some kinds of hazardous substances or petroleum products on, under, or in
its property, without regard to whether the owner or operator knew of, or caused, the presence of the contaminants, and regardless of whether the practices that resulted in the contamination were legal at the time they occurred. Additionally, as an
owner or operator, we could also be held responsible to a governmental entity or third parties for property damage, personal injury and investigation and cleanup costs incurred by them in connection with any contamination. The liability under those
laws has been interpreted to be joint and several unless the harm is divisible and there is a reasonable basis for allocation of the responsibility. The costs of investigation, remediation or removal of those substances may be substantial, and the
presence of those substances, or the failure to remediate a property properly, may impair our ability to use our property.
The presence of, or failure to remediate properly, the substances may adversely affect the ability to sell or rent the property or to
borrow funds using the property as collateral. Additionally, the owner of a site may be subject to claims by third parties based on damages and costs resulting from environmental contamination emanating from a site.
As part of our business in Worth County, Iowa, we operate a gas station, which includes a number of underground storage tanks containing
petroleum products.
We have reviewed environmental assessments, in some cases including soil and groundwater testing,
relating to our currently owned and leased properties in Dubuque, Iowa, and other properties we may lease from the City of Dubuque or other parties. As a result, we have become aware that there is contamination present on some of these properties
apparently due to past industrial activities. Furthermore, the location of Kansas Star is the site of several non-operational oil wells, the remediation of which has been addressed in connection with the construction of the development project
there. We have also reviewed environmental assessments and are not aware of any environmental liabilities related to any of our other properties.
Future developments regarding environmental matters could lead to material costs of environmental compliance for us and such costs could have a material adverse effect on our business and financial
condition, operating results and cash flows.
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Additionally, our horse racing operations are subject to oversight by the Environmental
Protection Agency (EPA), including regulations governing concentrated animal feeding operations and the related processing of animal waste water. In 2015, Delta Downs commenced a remediation project, as a result of an EPA examination, to
ensure its future compliance with the Clean Water Act. However, ongoing operations of our horse racing operations could result in future violations of EPA regulations and exposure to associated potential fines.
We own facilities that are located in areas that experience extreme weather conditions
Extreme weather conditions may interrupt our operations, damage our properties and reduce the number of customers who visit our facilities
in the affected areas.
For example, certain of the properties we operate have been forced to close for extended periods due
to floods and hurricanes, including Treasure Chest and Delta Downs, which have experienced closures for over 40 days on separate occasions in the past.
Blue Chip, Par-A-Dice, Sams Town Tunica, Sams Town Shreveport and Treasure Chest are each located in an area that has been identified by the director of the Federal Emergency Management Agency
(FEMA) as a special flood hazard area, which, according to the FEMA statistics, has a 1% chance of a flood equal to or exceeding the base flood elevation (a 100-year flood) in any given year. Furthermore, our properties in Iowa, Kansas,
Illinois and Indiana are at risk of experiencing snowstorms, tornadoes and flooding.
In addition to the risk of flooding and
hurricanes, snowstorms and other adverse weather conditions may interrupt our operations, damage our properties and reduce the number of customers who visit our facilities in an affected area. For example, during the first quarter of 2011, and again
in 2014, much of the country was impacted by unusually severe winter weather, particularly in the Midwest. These storms made it very difficult for our customers to visit, and we believe such winter weather had a material and adverse impact on the
results of our operations during such times. If there is a prolonged disruption at any of our properties due to natural disasters, terrorist attacks or other catastrophic events, our results of operations and financial condition could be materially
adversely affected.
To maintain our gaming license for our Evangeline Downs racino, we must conduct a minimum of 80 live
racing days in a consecutive 20-week period each year of live horse race meetings at the racetrack, and poor weather conditions may make it difficult for us to comply with this requirement.
While we maintain insurance coverage that may cover certain of the costs and loss of revenue that we incur as a result of some extreme
weather conditions, our coverage is subject to deductibles and limits on maximum benefits. There can be no assurance that we will be able to fully collect, if at all, on any claims resulting from extreme weather conditions. If any of our properties
are damaged or if their operations are disrupted as a result of extreme weather in the future, or if extreme weather adversely impacts general economic or other conditions in the areas in which our properties are located or from which they draw
their patrons, our business, financial condition and results of operations could be materially adversely affected.
Our insurance coverage
may not be adequate to cover all possible losses that our properties could suffer, our insurance costs may increase, and we may not be able to obtain similar insurance coverage in the future
Although we have all risk property insurance coverage for our operating properties, which covers damage caused by a casualty
loss (such as fire, natural disasters, acts of war, or terrorism), each policy has certain exclusions. In addition, our property insurance coverage is in an amount that may be significantly less than the expected replacement cost of rebuilding the
facilities if there was a total loss. Our level of insurance coverage also may not be adequate to cover all losses in the event of a major casualty. In addition, certain casualty events,
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such as labor strikes, nuclear events, acts of war, loss of income due to cancellation of room reservations or conventions due to fear of terrorism, deterioration or corrosion, insect or animal
damage and pollution, may not be covered at all under our policies. Therefore, certain acts could expose us to substantial uninsured losses.
We also have builders risk insurance coverage for our development and expansion projects. Builders risk insurance provides coverage for projects during their construction for
damage caused by a casualty loss. In general, our builders risk coverage is subject to the same exclusions, risks and deficiencies as those described above for our all-risk property coverage. Our level of builders risk insurance coverage
may not be adequate to cover all losses in the event of a major casualty.
Blue Chip, Par-A-Dice, Sams Town Tunica,
Sams Town Shreveport and Treasure Chest are each located in an area that has been identified by the director of the FEMA as a special flood hazard area. Our level of flood insurance coverage may not be adequate to cover all losses in the event
of a major flood.
We renew our insurance policies (other than our builders risk insurance) on an annual basis. The cost
of coverage may become so high that we may need to further reduce our policy limits or agree to certain exclusions from our coverage.
Our debt instruments and other material agreements require us to meet certain standards related to insurance coverage. Failure to satisfy these requirements could result in an event of default under these
debt instruments or material agreements.
We draw a significant percentage of our customers from certain geographic regions. Events
adversely impacting the economy or these regions, including public health outbreaks and man-made or natural disasters, may adversely impact our business
The California, Fremont and Main Street Station draw a substantial portion of their customers from the Hawaiian market, with such customers historically comprising more than half of the room nights sold
at each property. Decreases in discretionary consumer spending, as well as an increase in fuel costs or transportation prices, a decrease in airplane seat availability, or a deterioration of relations with tour and travel agents, particularly as
they affect travel between the Hawaiian market and our facilities, could adversely affect our business, financial condition and results of operations.
Our Las Vegas properties also draw a substantial number of customers from certain other specific geographic areas, including the Southern California, Arizona and Las Vegas local markets. Native American
casinos in California and other parts of the United States have diverted some potential visitors away from Nevada, which has had and could continue to have a negative effect on Nevada gaming markets. In addition, due to our significant concentration
of properties in Nevada, any man-made or natural disasters in or around Nevada, or the areas from which we draw customers to our Las Vegas properties, could have a significant adverse effect on our business, financial condition and results of
operations. Each of our properties located outside of Nevada depends primarily on visitors from their respective surrounding regions and are subject to comparable risk.
The strength and profitability of our business depends on consumer demand for hotel casino resorts in general and for the type of amenities our properties offer. Changes in consumer preferences or
discretionary consumer spending could harm our business. Terrorist activities in the United States and elsewhere, military conflicts in Iraq, Afghanistan and elsewhere, outbreaks of infectious disease and pandemics, adverse weather conditions and
natural disasters, among other things, have had negative impacts on travel and leisure expenditures. In addition, other factors affecting travel and discretionary consumer spending, including general economic conditions, disposable consumer income,
fears of further economic decline and reduced consumer confidence in the economy, may negatively impact our business. We cannot predict the extent to which similar events and conditions may continue to affect us in the future. An extended period of
reduced discretionary spending and/or disruptions or declines in tourism could significantly harm our operations.
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Furthermore, our facilities are subject to the risk that operations could be halted for a
temporary or extended period of time, as a result of casualty, flooding, forces of nature, adverse weather conditions, mechanical failure, or extended or extraordinary maintenance, among other causes. If there is a prolonged disruption at any of our
properties due to natural disasters, terrorist attacks or other catastrophic events, our results of operations and financial condition could be materially adversely affected.
The outbreak of public health threats at any of our properties or in the areas in which they are located, or the perception that such threats exist, including pandemic health threats, could have a
significant adverse effect on our business, financial condition and results of operations. Likewise, adverse economic conditions that affect the global, national or regional economies in which we operate, whether resulting from war, terrorist
activities or other geopolitical conflict, weather, general or localized economic downturns or related events or other factors, could have a significant adverse effect on our business, financial condition and results of operations.
In addition, to the extent that the airline industry is negatively impacted due to the effects of the economic recession and continued
economic downturn, outbreak of war, public health threats, terrorist or similar activity, increased security restrictions or the publics general reluctance to travel by air, our business, financial condition and results of operations could be
adversely affected.
Energy price increases may adversely affect our cost of operations and our revenues
Our casino properties use significant amounts of electricity, natural gas and other forms of energy. In addition, our Hawaiian air charter
operation uses a significant amount of jet fuel. While no shortages of energy or fuel have been experienced to date, substantial increases in energy and fuel prices, including jet fuel prices, in the United States have, and may continue to,
negatively affect our results of operations. The extent of the impact is subject to the magnitude and duration of the energy and fuel price increases, of which the impact could be material. In addition, energy and gasoline price increases could
result in a decline of disposable income of potential customers, an increase in the cost of travel and a corresponding decrease in visitation and spending at our properties, which could have a significant adverse effect on our business, financial
condition and results of operations.
Our facilities, including our riverboats and dockside facilities, are subject to risks relating to
mechanical failure and regulatory compliance
Generally, all of our facilities are subject to the risk that operations
could be halted for a temporary or extended period of time, as the result of casualty, forces of nature, mechanical failure, or extended or extraordinary maintenance, among other causes. In addition, our gaming operations, including those conducted
on riverboats or at dockside facilities could be damaged or halted due to extreme weather conditions.
We currently conduct
our Treasure Chest, Par-A-Dice, Blue Chip, Sams Town Shreveport and Amelia Belle gaming operations on riverboats. Each of our riverboats must comply with USCG requirements as to boat design, on-board facilities, equipment, personnel and
safety. Each riverboat must hold a Certificate of Inspection for stabilization and flotation, and may also be subject to local zoning codes. The USCG requirements establish design standards, set limits on the operation of the vessels and require
individual licensing of all personnel involved with the operation of the vessels. Loss of a vessels Certificate of Inspection would preclude its use as a casino.
USCG regulations require a hull inspection for all riverboats at five-year intervals. Under certain circumstances, alternative hull inspections may be approved. The USCG may require that such hull
inspections be conducted at a dry-docking facility, and if so required, the cost of travel to and from such docking facility, as well as the time required for inspections of the affected riverboats, could be significant. To date, the USCG has
allowed in-place underwater inspections of our riverboats twice every five years on alternate two and three year schedules. The USCG may not continue to allow these types of inspections in the future. The loss of a dockside
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casino or riverboat casino from service for any period of time could adversely affect our business, financial condition and results of operations.
Indiana and Louisiana have adopted alternate inspection standards for riverboats in those states. The standards require inspection by ABS
Consulting (ABSC). ABSC inspection for our riverboats at Blue Chip, Treasure Chest and Sams Town Shreveport commenced during 2010. The Amelia Belle is also inspected by the ABSC. The Par-A-Dice riverboat will remain inspected by
the USCG for the foreseeable future. ABSC imposes essentially the same design, personnel, safety, and hull inspection standards as the USCG. Therefore, the risks to our business associated with USCG inspection should not change by reason of
inspection by ABSC. Failure of a vessel to meet the applicable USCG or ABSC standards would preclude its use as a casino.
USCG regulations also require us to prepare and follow certain security programs. In 2004, we implemented the American Gaming
Associations Alternative Security Program at our riverboat casinos and dockside facilities. The American Gaming Associations Alternative Security Program is specifically designed to address maritime security requirements at riverboat
casinos and their respective dockside facilities. Only portions of those regulations will apply to our riverboats inspected by ABSC. Changes to these regulations could adversely affect our business, financial condition and results of operations.
Some of our hotels and casinos are located on leased property. If we default on one or more leases, the applicable lessors could terminate
the affected leases and we could lose possession of the affected hotel and/or casino
We lease certain parcels of land on
which The Orleans, Suncoast, Treasure Chest, Sams Town Shreveport and IPs hotels and gaming facilities are located. In addition, we lease other parcels of land on which portions of the California and the Fremont are located. As a ground
lessee, we have the right to use the leased land; however, we do not retain fee ownership in the underlying land. Accordingly, with respect to the leased land, we will have no interest in the land or improvements thereon at the expiration of the
ground leases. Moreover, since we do not completely control the land underlying the property, a landowner could take certain actions to disrupt our rights in the land leased under the long term leases. While such interruption is unlikely, such
events are beyond our control. If the entity owning any leased land chose to disrupt our use either permanently or for a significant period of time, then the value of our assets could be impaired and our business and operations could be adversely
affected. If we were to default on any one or more of these leases, the applicable lessors could terminate the affected leases and we could lose possession of the affected land and any improvements on the land, including the hotels and casinos. This
would have a significant adverse effect on our business, financial condition and results of operations as we would then be unable to operate all or portions of the affected facilities.
Our ability to utilize our net operating loss carryforwards and certain other tax attributes may be limited
As of September 30, 2016, we had net operating losses (NOLs) for federal income tax purposes. Under Section 382 of the Internal Revenue Code, if a corporation undergoes an
ownership change as defined in that section, the corporations ability to use its pre-change NOLs and other pre-change tax attributes to offset its post-change income may become subject to significant limitations. We may experience
an ownership change in the future as a result of shifts in our stock ownership, which may result from the issuance of our common stock, the exercise of stock options and other equity compensation awards, as well as ordinary sales and purchases of
our common stock, among other things. If an ownership change in our stock were to be triggered in the future, our subsequent ability to use any NOLs existing at that time could be significantly limited.
Certain of our stockholders own large interests in our capital stock and may significantly influence our affairs
William S. Boyd, our Executive Chairman of the Board of Directors, together with his immediate family, beneficially owned approximately
27% of the Companys outstanding shares of common stock as of
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September 30, 2016. As such, the Boyd family has the ability to significantly influence our affairs, including the election of members of our Board of Directors and, except as otherwise
provided by law, approving or disapproving other matters submitted to a vote of our stockholders, including a merger, consolidation, or sale of assets.
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DESCRIPTION OF THE EXCHANGE NOTES
In this description, the term Boyd Gaming refers only to Boyd Gaming Corporation and not to any of its Subsidiaries or
Affiliates, and we, our and us refer to Boyd Gaming.
Boyd Gaming will issue the 6.375%
Senior Notes due April 1, 2026 (the exchange notes) under an indenture dated as of March 28, 2016 (the indenture) among itself, the Guarantors and Wilmington Trust, National Association, as trustee (the
Trustee). The terms of the exchange notes include those stated in the indenture and those made part of the indenture by reference to the Trust Indenture Act of 1939, as amended (the Trust Indenture Act).
The following description is a summary of the material provisions of the indenture. It does not restate the indenture in its entirety. We
urge you to read the indenture because it, and not this description, defines your rights as Holders of the exchange notes.
You can find the definitions of certain terms used in this description under Certain Definitions. Certain defined terms
used in this description but not defined in this Description of the Exchange Notes including under Certain Definitions, have the meanings assigned to them in the indenture. A copy of the indenture is filed as an exhibit
to the registration statement of which this prospectus is a part.
Except as otherwise indicated below, the following summary
applies to both the exchange notes and the old notes. As used in this section of the prospectus, the term notes means both the exchange notes and the old notes, unless otherwise indicated.
The form and terms of the exchange notes will be identical in all material respects to the form and terms of the respective old notes,
except that the exchange notes will be registered under the Securities Act, and therefore the exchange notes will not be subject to certain transfer restrictions, registration rights and certain provisions regarding additional interest applicable to
the old notes prior to the consummation of the exchange offer. See The Exchange Offer.
The registered Holder of a
note will be treated as the owner of it for all purposes. Only registered Holders will have rights under the indenture.
Brief Description
of the Notes
The notes:
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are general unsecured obligations of Boyd Gaming;
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are
pari passu
in right of payment to all existing and future senior Indebtedness of Boyd Gaming, including its obligations under the Credit
Facility;
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are senior in right of payment to all existing and future subordinated Indebtedness of Boyd Gaming;
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are effectively junior to existing and future secured Indebtedness of Boyd Gaming to the extent of the value of the collateral securing such
Indebtedness, including obligations under our existing Credit Facility;
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are unconditionally guaranteed by the Guarantors;
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are structurally subordinated to all existing and future Indebtedness of Boyd Gamings Subsidiaries that are not Guarantors; and
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are subject to registration with the SEC pursuant to the Registration Rights Agreement.
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See Risk FactorsRisks Related to the Exchange Notes. Your right to receive
payments on the exchange notes will be effectively subordinated to our secured debt and the secured indebtedness of the Guarantors to the extent of the value of the collateral securing such debt, including obligations under our Credit Facility, and
structurally subordinated to the existing and future debt and other liabilities of any Subsidiaries that do not guarantee the exchange notes.
Brief Description of the Note Guarantees
The notes are guaranteed by each of the existing and, subject to compliance with applicable Gaming Laws, future Significant Subsidiaries of Boyd Gaming.
The guarantees of the notes:
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are general unsecured obligations of each Guarantor;
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are
pari passu
in right of payment to all existing and future senior Indebtedness of each Guarantor, including its obligations as a guarantor of
the obligations under the Credit Facility;
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are senior in right of payment to all existing and future subordinated Indebtedness of each Guarantor;
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are effectively junior to all existing and future secured Indebtedness of each Guarantor to the extent of the value of the assets securing such
Indebtedness, including obligations under our existing Credit Facility secured by the Capital Stock of the Guarantors;
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are structurally subordinated to all existing and future Indebtedness of Boyd Gamings Subsidiaries that are not Guarantors; and
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are subject to release in the circumstances specified in the indenture.
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The Note Guarantees are full and unconditional, joint and several obligations of the Guarantors. The obligations of each Guarantor under
its Note Guarantee are subject to a net worth limitation to reduce the risk that a Note Guarantee would constitute a fraudulent conveyance under applicable law.
Under the circumstances described below under the caption Certain CovenantsDesignation of Restricted and Unrestricted Subsidiaries, we will be permitted to designate certain
Subsidiaries as Unrestricted Subsidiaries. Our Unrestricted Subsidiaries will not be subject to many of the restrictive covenants in the indenture and will not guarantee the notes.
Not all of our Restricted Subsidiaries will guarantee the notes. In the event of a bankruptcy, liquidation or reorganization
of any of these non-guarantor Subsidiaries, these non-guarantor Subsidiaries will pay the holders of their debt and their trade creditors before they will be able to distribute any of their assets to us. For the nine months ended September 30, 2016,
our wholly-owned Subsidiaries that will be non-guarantor Subsidiaries under the Indenture accounted for approximately $37.6 million, or 2.3%, of our net revenue, respectively, and, at September 30, 2016, represented approximately $477.6 million, or
10.7%, of our total assets and approximately $41.7 million, or 1.2%, of our total liabilities (excluding intercompany liabilities).
Including debt associated with the old notes, as of September 30, 2016, we and our wholly-owned Subsidiaries had $3.0 billion of long-term debt outstanding (which amounts exclude approximately $12.0
million of outstanding letters of credit). In addition, approximately $721.0 million was available for borrowing under our Credit Facility as of September 30, 2016. All amounts under our Credit Facility would be effectively senior to the notes
offered hereby to the extent of the collateral securing our Credit Facility.
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Principal, Maturity and Interest
Boyd Gaming will exchange the old notes, which have an aggregate principal amount of $750.0 million, for the exchange notes. Boyd Gaming
may issue additional notes under the indenture from time to time after this exchange offer. Any issuance of additional notes is subject to all of the covenants in the indenture, including the covenant described below under the caption
Certain CovenantsLimitation on Indebtedness. The old notes, the exchange notes and any additional notes subsequently issued under the indenture will be treated as a single class for all purposes under the indenture,
including, without limitation, waivers, amendments, redemptions and offers to purchase. It is possible, however, that any such additional notes will not be treated as part of the same issue for U.S. federal income tax purposes. Boyd Gaming will
issue exchange notes in denominations of $1,000 and minimum integral multiples of $1,000 in excess of $1,000. The exchange notes will mature on April 1, 2026.
Interest on the exchange notes will accrue at the rate of 6.375% per annum and will be payable semi-annually in arrears on April 1 and October 1, commencing on April 1, 2017. Boyd
Gaming will make each interest payment to the Holders of record on the immediately preceding March 15 and September 15. Interest on overdue principal and interest and on Additional Interest, if any, will accrue at a rate that is 1% higher
than the then applicable interest rate on the notes. Additional Interest may accrue on the notes in certain circumstances if we do not consummate the exchange offer or shelf registration, as applicable, as provided in the Registration Rights
Agreement and if we fail to comply with certain reporting requirements.
Interest on the notes will accrue from the date of
original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year comprising twelve 30-day months.
Methods of Receiving Payments on the Notes
Boyd Gaming will make, or cause
to be made, payments in respect of the notes represented by the Global Notes by wire transfer of immediately available funds to the account specified by the Holder of the Global Notes. All other payments on notes will be made at the office or agency
of the paying agent and registrar unless Boyd Gaming elects to make payments by check mailed to the Holders at their address set forth in the register of Holders. Principal and interest shall be considered paid on the date due if on such date the
Trustee or paying agent holds money sufficient to pay all principal and interest then due.
Paying Agent and Registrar for the Notes
The Trustee will initially act as paying agent and registrar. Boyd Gaming may change the paying agent or registrar without
prior notice to the Holders of the notes, and Boyd Gaming or any of its Subsidiaries may act as paying agent or registrar.
Transfer and
Exchange
A Holder may transfer or exchange notes in accordance with the indenture. The registrar and the Trustee may
require a Holder to furnish appropriate endorsements and transfer documents in connection with a transfer of notes. Holders will be required to pay all taxes due on transfer. Boyd Gaming is not required to transfer or exchange any note selected for
redemption. Also, Boyd Gaming is not required to transfer or exchange any note for a period of fifteen days before a selection of notes to be redeemed.
Subsidiaries Providing Note Guarantees
The notes are guaranteed by each of
the existing and, subject to compliance with applicable Gaming Laws, future Significant Subsidiaries of Boyd Gaming. The Note Guarantees are joint and several obligations of the Guarantors. The obligations of each Guarantor under its Note Guarantee
contain a net worth limitation to reduce
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the risk that a Note Guarantee would constitute a fraudulent conveyance under applicable law. See Risk FactorsRisks Related to the Exchange OfferFederal and state statutes allow
courts, under specific circumstances, to void guarantees and require noteholders to return payments received from guarantors.
A Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another
Person, other than Boyd Gaming or another Guarantor, unless:
(1)
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immediately after giving effect to such transaction, no Default or Event of Default exists; and
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(a)
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the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger unconditionally assumes all the
obligations of that Guarantor under its Note Guarantee, the indenture and the Registration Rights Agreement pursuant to a supplemental indenture; or
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(b)
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the Net Proceeds of such sale or other disposition are applied in accordance with the Asset Sale provisions of the indenture.
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The Note Guarantee of a Guarantor will be released:
(1)
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in connection with any sale or other disposition of all or substantially all of the assets of that Guarantor, by way of merger, consolidation or otherwise, to a Person
that is not (either before or after giving effect to such transaction) Boyd Gaming or a Restricted Subsidiary of Boyd Gaming, if the sale or other disposition does not violate the Asset Sale provisions of the indenture;
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(2)
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in connection with any sale or other disposition of Capital Stock of that Guarantor to a Person that is not (either before or after giving effect to such transaction)
Boyd Gaming or a Restricted Subsidiary of Boyd Gaming, if the sale or other disposition does not violate the Asset Sale provisions of the indenture and the Guarantor ceases to be a Restricted Subsidiary of Boyd Gaming as a result of the
sale or other disposition;
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(3)
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if Boyd Gaming designates any Restricted Subsidiary that is a Guarantor to be an Unrestricted Subsidiary in accordance with the applicable provisions of the indenture;
or
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(4)
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upon legal defeasance, covenant defeasance or satisfaction and discharge of the indenture as provided below under the captions Legal Defeasance and Covenant
Defeasance and Satisfaction and Discharge.
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See Repurchase at the Option of
HoldersAsset Sales; Event of Loss.
Optional Redemption
At any time prior to April 1, 2019, Boyd Gaming may on any one or more occasions redeem up to 35% of the aggregate principal amount
of notes issued under the indenture at a redemption price of 106.375% of the principal amount, plus accrued and unpaid interest and Additional Interest, if any, to the redemption date, with the Net Cash Proceeds of one or more Public Equity
Offerings; provided that:
(1) at least 65% of the aggregate principal amount of notes issued under the
indenture remains outstanding immediately after the occurrence of such redemption (excluding notes held by Boyd Gaming and its Subsidiaries); and
(2) the redemption occurs within 90 days of the date of the closing of such Public Equity Offering.
At any time prior to April 1, 2021 Boyd Gaming may also redeem all or a part of the notes, upon not less than 15 nor more than 60 days prior notice sent to each Holders registered
address, at a redemption price equal to 100% of the principal amount of notes redeemed plus the Applicable Premium as of the date of redemption,
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and accrued and unpaid interest and Additional Interest, if any, to the date of redemption, subject to the rights of Holders of notes on any relevant record date to receive interest due on the
relevant interest payment date occurring on or prior to the redemption date.
Except pursuant to the two preceding paragraphs,
the notes will not be redeemable prior to April 1, 2021.
On or after April 1, 2021, Boyd Gaming may redeem all or
part of the notes upon not less than 15 nor more than 60 days notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and Additional Interest, if any, on the notes
redeemed, to the applicable redemption date (subject to the rights of Holders of notes on any relevant record date to receive interest due on the relevant interest payment date occurring on or prior to the redemption date occurring on or prior to
the redemption date), if redeemed during the twelve-month period beginning on April 1 of the years indicated below:
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Year
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Percentage
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2021
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103.188
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2022
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102.125
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%
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2023
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101.063
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%
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2024 and thereafter
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100.000
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%
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Notices of redemption may be conditional.
Mandatory Redemption
Boyd Gaming is not required to make mandatory
redemption or sinking fund payments with respect to the notes.
Mandatory Disposition or Redemption Pursuant to Gaming Laws
If a Holder or beneficial owner of a note is required to be licensed, qualified or found suitable under applicable Gaming Laws and is not
so licensed, qualified or found suitable within any time period specified by the applicable Gaming Authority, the Holder shall be obligated, at the request of Boyd Gaming, to dispose of such Holders notes within a time period prescribed by
Boyd Gaming or such other time period prescribed by such Gaming Authority (in which event Boyd Gamings obligation to pay any interest after the receipt of such notice shall be limited as provided in such Gaming Laws). Thereafter, Boyd Gaming
shall have the right to redeem, on the date fixed by Boyd Gaming for the redemption of such notes, such Holders notes at a redemption price equal to the lesser of (1) the lowest closing sale price of the notes on any trading day during
the 120-day period ending on the date upon which Boyd Gaming shall have received notice from a Gaming Authority of such Holders disqualification or (2) the price at which such Holder or beneficial owner acquired the notes, unless a
different redemption price is required by such Gaming Authority, in which event such required price shall be the redemption price. Boyd Gaming is not required to pay or reimburse any Holder or beneficial owner of a note for the costs of licensure,
qualification or finding of suitability or investigation for such licensure, qualification or finding of suitability. Any Holder or beneficial owner of a note required to be licensed, qualified or found suitable under applicable Gaming Laws must pay
all investigative fees and costs of the Gaming Authorities in connection with such licensure, qualification, finding of suitability or application therefor.
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Repurchase at the Option of Holders
Change of Control
If (i) a Change of Control (if, at the
Change of Control Time, the notes do not have Investment Grade Status) or (ii) a Change of Control Triggering Event (if, at the Change of Control Time, the notes have Investment Grade Status) occurs, each Holder of notes will have the right to
require Boyd Gaming to repurchase all or any part (equal to $1,000 or a minimum integral multiple of $1,000 in excess of $1,000) of that Holders notes pursuant to a Change of Control Offer on the terms set forth in the indenture. In the Change
of Control Offer, Boyd Gaming will offer a Change of Control Payment in cash equal to 101% of the aggregate principal amount of notes repurchased plus accrued and unpaid interest and Additional Interest, if any, on the notes repurchased, to the date
of purchase. Not later than 30 days following (i) any Change of Control or (ii) in the event the notes have Investment Grade Status at the earlier of the public announcement of (x) a Change of Control or (y) (if applicable) our
intention to effect a Change of Control, a Change of Control Triggering Event, Boyd Gaming will send a notice (which notice may be conditional) to each Holder (with a copy to the Trustee) stating, among other things:
(1) that a Change of Control or Change of Control Triggering Event, as the case may be, has occurred and a Change of
Control Offer is being made pursuant to the covenant entitled Repurchase at the Option of HoldersChange of Control and that all notes (or portions thereof) timely tendered will be accepted for payment;
(2) the purchase price and the Change of Control Payment Date, which date will be no earlier than 15 days and, subject to
the following sentence, no later than 60 days from the date such notice is mailed, pursuant to the procedures required by the indenture and described in such notice;
(3) that any note (or portion thereof) accepted for payment (and for which payment has been duly provided on the Change of
Control Payment Date) pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(4) that any notes (or portions thereof) not tendered will continue to accrue interest;
(5) a description of the transaction or transactions constituting the Change of Control or Change of Control Triggering Event, as the case may be; and
(6) the procedures that Holders must follow in order to tender their notes (or portions thereof) for payment and the
procedures that Holders must follow in order to withdraw an election to tender notes (or portions thereof) for payment.
A
Change of Control Offer may be made in advance of a Change of Control, and conditioned upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of the making of the Change of Control Offer. In
addition, Boyd Gaming will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the time and otherwise in compliance with the requirements set forth in the
indenture applicable to a Change of Control made by Boyd Gaming and such third party purchases all notes properly tendered and not withdrawn under such Change of Control Offer.
Boyd Gaming will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the notes as a result of a Change of Control or Change of Control Triggering Event, as the case may be. To the extent that the provisions of any
securities laws or regulations conflict with the Change of Control provisions of the indenture, Boyd Gaming will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of
Control provisions of the indenture by virtue of such conflict.
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On the Change of Control Payment Date, Boyd Gaming will, to the extent lawful:
(1) accept for payment all notes or portions of notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the paying agent an amount equal to the Change of Control Payment in respect of all notes or
portions of notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the notes
properly accepted together with an Officers Certificate stating the aggregate principal amount of notes or portions of notes being purchased by Boyd Gaming.
The paying agent will promptly send to each Holder of notes properly tendered the Change of Control Payment for such notes, and the Trustee will promptly authenticate and mail (or cause to be transferred
by book entry) to each Holder a new note equal in principal amount to any unpurchased portion of the notes surrendered, if any; provided that each new note will be in a principal amount of $1,000 or a minimum integral multiple of $1,000 in excess of
$1,000.
The provisions described above that require Boyd Gaming to make a Change of Control Offer following a Change of
Control will be applicable whether or not any other provisions of the indenture are applicable. Except as described above with respect to a Change of Control, the indenture does not contain provisions that permit the Holders of the notes to require
that Boyd Gaming repurchase or redeem the notes in the event of a takeover, recapitalization or similar transaction.
There
can be no assurance that Boyd Gaming will be able to fund any repurchase of the notes pursuant to a Change of Control Offer. Boyd Gamings future credit facilities or other agreements relating to Indebtedness of Boyd Gaming may contain
prohibitions or restrictions on Boyd Gamings ability to effect such a repurchase. In the event a Change of Control Offer is mandated at a time when such prohibitions or restrictions are in effect, Boyd Gaming could seek the consent of its
lenders to the purchase of notes or could attempt to refinance the borrowings that contain such prohibition. If Boyd Gaming does not obtain such a consent or repay such borrowings, Boyd Gaming will be effectively prohibited from purchasing notes. In
such case, Boyd Gamings failure to purchase tendered notes would constitute an Event of Default under the indenture. See Risk FactorsRisks Relating to this OfferingWe may not have the funds necessary to finance the repurchase
of the Notes required by the Indenture upon the occurrence of certain change of control events and asset sales.
The
definition of Change of Control includes a phrase relating to the sale, lease, conveyance or other transfer of all or substantially all of the Property of Boyd Gaming, determined on a consolidated basis. Although there is a limited body
of case law interpreting the phrase substantially all, there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a Holder of notes to require Boyd Gaming to repurchase its notes as a
result of a sale, lease, conveyance or other transfer of less than all of the assets of Boyd Gaming, determined on a consolidated basis, to another Person or group may be uncertain.
Prior to the occurrence of a Change of Control, the provisions under the indenture relating to Boyd Gamings obligation to make an
offer to purchase the notes as a result of a Change of Control may be waived or modified with the written consent of the holders of a majority in principal amount of the notes.
Asset Sales; Event of Loss
Other than upon an Event of Loss, Boyd
Gaming shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Sale after the Issue Date, unless:
(1) Boyd Gaming or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the Property subject to such Asset Sale;
and
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(2) at least 75% of such consideration consists of cash, Temporary Cash
Investments or any stock or assets of the kind referred to in clause (1) or (3) of the definition of Additional Assets; provided, however, that for purposes of this clause (2):
(a) the assumption of Indebtedness of Boyd Gaming or a Restricted Subsidiary which is not subordinated to the notes or any
Note Guarantee shall be deemed to be Temporary Cash Investments if Boyd Gaming, such Restricted Subsidiary and all other Restricted Subsidiaries of Boyd Gaming, to the extent any of the foregoing are liable with respect to such Indebtedness, are
expressly released from all liability for such Indebtedness by the holder thereof in connection with such Asset Sale;
(b) any securities or notes received by Boyd Gaming or such Restricted Subsidiary, as the case may be, from such transferee that are converted by Boyd Gaming or such Restricted Subsidiary into cash or
Temporary Cash Investments within 180 days of the date of such Asset Sale shall be deemed to be Temporary Cash Investments; and
(c) Boyd Gaming and its Restricted Subsidiaries may receive consideration in the form of securities exceeding 25% of the consideration for one or more Asset Sales so long as Boyd Gaming and its Restricted
Subsidiaries do not hold such securities having an aggregate Fair Market Value in excess of the greater of $150.0 million and 5% of Consolidated Total Assets of Boyd Gaming at any time outstanding.
The definition of Asset Sale and Event of Loss each exclude any single transaction or series of related
transactions that involve assets having a Fair Market Value of $100.0 million or less and therefore Boyd Gaming and its Restricted Subsidiaries may dispose of assets or suffer an Event of Loss with significant value without restrictions under this
covenant.
Upon an Event of Loss incurred by Boyd Gaming or any of its Restricted Subsidiaries, the Net Proceeds received from
such Event of Loss shall be applied in the same manner as proceeds from Asset Sales described below and pursuant to the procedures set forth below.
Within 360 days after the receipt of the Net Proceeds of an Asset Sale or Event of Loss, an amount equal to 100% of the Net Proceeds from such Asset Sale or Event of Loss may be applied by Boyd Gaming or
a Restricted Subsidiary to do one or both of the following:
(1) repay, redeem or repurchase senior
Indebtedness of Boyd Gaming or any Guarantor, including Indebtedness under the Credit Facility or the notes and, in the case of any such repayment under any revolving credit or other facility that permits future borrowings, effect a corresponding
reduction in the availability or commitments; or
(2) reinvest in Additional Assets (including by means of an
Investment in Additional Assets by a Restricted Subsidiary with Net Proceeds received by Boyd Gaming or another Restricted Subsidiary);
provided
,
however
, reinvestments in Additional Assets after the occurrence of an Event of Loss and prior to the receipt of the Net Proceeds
of such Event of Loss shall be included as reinvestments pursuant to clause (2);
provided
,
further
,
however
, that if Boyd Gaming or any Restricted Subsidiary contractually commits within such 360-day period to apply such Net
Proceeds within 180 days of such contractual commitment in accordance with the above clause (1) and/or (2), and such Net Proceeds are subsequently applied as contemplated in such contractual commitment, then the requirement for application of
Net Proceeds set forth in this paragraph shall be considered satisfied.
Any Net Proceeds from an Asset Sale or Event of Loss
that are not used in accordance with the preceding paragraph shall constitute Excess Proceeds. When the aggregate amount of Excess Proceeds exceeds $100.0 million, Boyd Gaming shall make an offer to purchase (the Prepayment
Offer), from all Holders of the notes, and, at the election of Boyd Gaming, the holders of any other outstanding Pari Passu Indebtedness containing
74
comparable repurchase rights, an aggregate principal amount of notes and, if applicable, such other Pari Passu Indebtedness equal to the Excess Proceeds, at a price in cash at least equal to 100%
of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, in accordance with the procedures summarized herein and set forth in the indenture. To the extent that any portion of the Excess Proceeds remains
after compliance with the preceding sentence and provided that all Holders have been given the opportunity to tender their notes for repurchase in accordance with the indenture, Boyd Gaming or such Restricted Subsidiary may use such remaining amount
for general corporate purposes or the repurchase of Indebtedness subordinated in right of payment to the notes or the Note Guarantee if required to be repurchased pursuant to their respective terms and the amount of Excess Proceeds shall be reset to
zero. Pending application of Net Proceeds pursuant to clauses (1) and (2) above, such Net Proceeds will be invested in Temporary Cash Investments or used to temporarily repay Pari Passu Indebtedness that is revolving Indebtedness.
Not more than 20 Business Days after the amount of Excess Proceeds exceeds $100.0 million, Boyd Gaming shall send a
prepayment offer notice to the Holders (with a copy to the Trustee), accompanied by such information regarding Boyd Gaming and its Subsidiaries as Boyd Gaming in good faith believes will enable such Holders to make an informed decision with respect
to the Prepayment Offer. The prepayment offer notice will state, among other things:
(1) that Boyd Gaming is
offering to purchase notes pursuant to the provisions of the indenture described herein;
(2) that any note (or
any portion thereof) accepted for payment (and for which payment has been duly provided on the purchase date) pursuant to the Prepayment Offer shall cease to accrue interest after the purchase date;
(3) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less
than 15 days nor more than 60 days from the date the prepayment offer notice is mailed;
(4) the aggregate
principal amount of notes (or portions thereof) to be purchased;
(5) a description of any conditions to such
Prepayment Offer; and
(6) a description of the procedure which Holders must follow in order to tender their
notes (or portions thereof) and the procedures that Holders must follow in order to withdraw an election to tender their notes (or portions thereof) for payment.
Boyd Gaming may send such a prepayment offer notice at any time after it receives Net Proceeds from an Asset Sale and/or an Event of Loss in an amount in excess of $100.0 million.
Future credit agreements or other agreements relating to Indebtedness of Boyd Gaming may contain prohibitions or restrictions on Boyd
Gamings ability to effect a Prepayment Offer. If Boyd Gaming is required to make a Prepayment Offer at a time when any such prohibitions or restrictions are in effect, Boyd Gaming could seek the consent of its lenders to the purchase of notes
or could attempt to refinance the borrowings that contain such prohibition. In such case, if Boyd Gaming does not obtain such a consent or repay such borrowings, Boyd Gaming will be effectively prohibited from purchasing notes and Boyd Gamings
failure to purchase tendered notes would constitute an Event of Default under the indenture.
Boyd Gaming will comply with the
requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the purchase of notes as a result of a Prepayment Offer. To the
extent that the provisions of any securities laws or regulations conflict with the provisions relating to the Prepayment Offer, Boyd Gaming will comply with the applicable securities laws and regulations and will not be deemed to have breached its
obligations under the indenture by virtue of such conflict.
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Selection and Notice
If less than all of the notes are to be redeemed or purchased in an offer to purchase at any time, the Trustee will select notes to be redeemed or purchased among the holders of the notes, as applicable,
that are subject to redemption or purchase, by lot unless otherwise required by law or applicable stock exchange requirements; provided that as long as DTC serves as the depository for a Global Note, any redemption shall comply with DTCs
procedural requirements with respect to such note.
No notes of $1,000 or less can be redeemed in part. Notices of redemption
will be sent at least 15 but not more than 60 days before the redemption date to each Holder of notes to be redeemed at its registered address, except that redemption notices may be sent more than 60 days prior to a redemption date if the notice is
issued in connection with a defeasance of the notes or a satisfaction and discharge of the indenture. Notices of redemption may be conditional. If the redemption conditions specified in the redemption notice are not satisfied by the redemption date
set forth therein, Boyd Gaming may, as specified in the redemption notice, extend the redemption period or withdraw the redemption notice or the redemption notice may be deemed to be null and void.
If any note is to be redeemed in part only, the notice of redemption that relates to that note will state the portion of the principal
amount of that note that is to be redeemed. A new note in principal amount equal to the unredeemed portion of the original note (so long as such amount is in a denomination of $1,000 or a minimum integral multiple of $1,000 in excess of $1,000) will
be issued in the name of the Holder of notes upon cancellation of the original note. Notes called for redemption become due on the date fixed for redemption. On and after the redemption date, unless Boyd Gaming defaults in making such redemption
payment, interest ceases to accrue on notes or portions of them called for redemption.
Certain Covenants
Changes in Covenants when Notes Rated Investment Grade
Set forth below are certain covenants contained in the Indenture. During any period of time that:
(1) the notes have Investment Grade Status, and
(2) no Default or
Event of Default has occurred and is continuing under the indenture with respect to the notes,
Boyd Gaming and its Restricted
Subsidiaries will not be subject to the provisions of the indenture with respect to the notes described under Repurchase at the Option of HoldersAsset Sales; Event of Loss, Limitation on Indebtedness and
Limitation on Restricted Payments (collectively, the Suspended Covenants); provided that with respect to those covenants that will remain in effect (the Effective Covenants), references in such Effective
Covenants to clauses in the Suspended Covenants will be deemed to continue to exist for purposes of interpretation of the Effective Covenants.
In the event that Boyd Gaming and its Restricted Subsidiaries are not subject to the Suspended Covenants with respect to the notes for any period of time as a result of the preceding sentence and,
subsequently, at least one of the two designated Rating Agencies withdraws its rating or assigns the notes a rating below the required Investment Grade Ratings, then Boyd Gaming and its Restricted Subsidiaries will thereafter again be subject to the
Suspended Covenants for the benefit of the notes. Calculations under the reinstated Limitation on Restricted Payments covenant will be made as if such covenant had been in effect since the date of the indenture except that no
default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended.
There can be no assurance that the notes will ever achieve or maintain Investment Grade Status.
76
Limitation on Indebtedness
Boyd Gaming shall not, and shall not permit any Restricted Subsidiary to, Incur any Indebtedness; provided, however, that Boyd Gaming or
any Guarantor may Incur Indebtedness if Boyd Gamings Consolidated Fixed Charge Coverage Ratio would exceed 2.0 to 1.0, after giving effect to:
(1) the Incurrence of such Indebtedness as if such Indebtedness was Incurred at the beginning of the Reference Period and (if applicable) the application of the net proceeds thereof to repay or defease
other Indebtedness as if the application of such proceeds occurred at the beginning of the Reference Period;
(2) the Incurrence and retirement (including any Indebtedness that has been defeased) of any other Indebtedness since the
first day of the Reference Period as if such Indebtedness was Incurred or retired at the beginning of the Reference Period;
(3) the execution or termination of any management agreement pursuant to which Boyd Gaming or any Restricted Subsidiary was or will be paid a management fee since the first day of the Reference Period
including any execution or termination which will be effective contemporaneously with the Incurrence of such Indebtedness, as if such execution or termination occurred at the beginning of the Reference Period; and
(4) the acquisition or disposition of any Property or any company or business by Boyd Gaming or any Restricted Subsidiary
since the first day of the Reference Period including any acquisition or disposition which will be consummated contemporaneously with the Incurrence of such Indebtedness, as if such acquisition or disposition occurred at the beginning of the
Reference Period, including without limitation any net reduction of lease payments in connection with any acquisition of Property and any related income or expense.
For purposes of such computation, with respect to Indebtedness that bears interest at a variable rate, such Indebtedness shall be deemed to bear interest at the applicable interest rate (or weighted
average interest rate, if there are multiple applicable interest rates) on the date such Indebtedness is Incurred or repaid.
Notwithstanding the foregoing limitation, Boyd Gaming or any Restricted Subsidiary, as specified below, may Incur the following
Indebtedness:
(1) Indebtedness of Boyd Gaming represented by the notes to be issued on the date of the
indenture and of the Guarantors under the Note Guarantees and the exchange notes and related Note Guarantees, if any, that may be issued pursuant to the Registration Rights Agreement;
(2) Indebtedness of Boyd Gaming or any Restricted Subsidiary outstanding on the Issue Date (other than Indebtedness under
clauses (1) and (3));
(3) Indebtedness of Boyd Gaming or any Restricted Subsidiary under the Credit
Facility in an aggregate amount outstanding at any time not to exceed the greater of (i) $2.75 billion, and (ii) 4.5 times Consolidated EBITDA during the Reference Period (after giving pro forma effect to the acquisition or disposition of
any company or business by Boyd Gaming or any Restricted Subsidiary since the first day of the Reference Period including any acquisition or disposition which will be consummated contemporaneously with the Incurrence of Indebtedness under this
clause (3), as if such acquisition or disposition occurred at the beginning of the Reference Period);
(4)
Indebtedness of Boyd Gaming or a Restricted Subsidiary owing to and held by a Restricted Subsidiary or Boyd Gaming;
provided, however,
that (A) if Boyd Gaming or any Guarantor is the obligor on such Indebtedness and the payee is not Boyd
Gaming or a Guarantor, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all obligations then due with respect to the notes, in the case of Boyd Gaming, or the Note Guarantees, in the case of a
Guarantor; (B) any subsequent issuance or transfer of any Capital Stock or other event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any such Indebtedness except to Boyd
Gaming or a Restricted Subsidiary shall be deemed in each case to constitute the Incurrence of such Indebtedness by the issuer thereof;
77
(5) Indebtedness of Boyd Gaming or a Restricted Subsidiary under Interest
Rate Agreements; provided that the obligations under such agreements were entered into in connection with payment obligations on Indebtedness otherwise permitted by the terms of this covenant;
(6) Indebtedness of Boyd Gaming or a Restricted Subsidiary under Currency Exchange Protection Agreements; provided that
such Currency Exchange Protection Agreements were entered into for the purpose of limiting exchange rate risks and not as speculative investments;
(7) Indebtedness of Boyd Gaming or any Restricted Subsidiary in connection with one or more letters of credit, bankers acceptances, workers compensation claims, surety bonds, appeal bonds,
performance bonds or completion guarantees issued in the ordinary course of business or pursuant to self-insurance and similar obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(8) Indebtedness of Boyd Gaming or any Restricted Subsidiary outstanding under Permitted FF&E Financings which are
either:
(a) Non-Recourse Indebtedness of Boyd Gaming and its Restricted Subsidiaries; or
(b) limited in amount (including all Permitted Refinancing Indebtedness Incurred to renew, refund, refinance, replace,
defease or discharge any Indebtedness Incurred pursuant to this clause (8)(b)) for each Gaming Facility owned or leased by Boyd Gaming or any of its Restricted Subsidiaries to the lesser of:
(1) the amount of FF&E used in such Gaming Facility and financed by such Permitted FF&E Financing; or
(2) $25.0 million;
(9) Indebtedness (including Capital Lease Obligations) Incurred by Boyd Gaming or any of its Restricted Subsidiaries to finance (whether prior to or within 270 days after) the acquisition, lease,
construction, repair, replacement or improvement of property (real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) in an aggregate amount not to exceed the greater of
(i) $150.0 million and (ii) 5% of Boyd Gamings Consolidated Total Assets;
(10) Indebtedness
consisting of the financing of insurance premiums or take-or-pay obligations contained in supply arrangements;
(11) Indebtedness arising from agreements of Boyd Gaming or any Restricted Subsidiary providing for indemnification,
adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Person otherwise permitted by the indenture;
(12) guarantees incurred in the ordinary course of business supporting obligations of suppliers, lessees and vendors;
(13) Acquired Debt and any other Indebtedness incurred to finance a merger, consolidation or other
acquisition; provided that immediately after giving effect to the incurrence of such Acquired Debt and such other Indebtedness, as the case may be, on a pro forma basis as if such incurrence (and the related merger, consolidation or other
acquisition) had occurred at the beginning of the applicable Reference Period, Boyd Gamings Consolidated Fixed Charge Coverage Ratio would be equal or greater than Boyd Gamings Consolidated Fixed Charge Coverage Ratio immediately prior
to such merger, consolidation or other acquisition;
(14) Indebtedness of Boyd Gaming to the extent the net
proceeds thereof are promptly deposited to defease the notes as described below under the heading Legal Defeasance and Covenant Defeasance;
(15) Indebtedness (including under the Credit Facility) of Boyd Gaming or any Restricted Subsidiary not otherwise permitted to be Incurred pursuant to the provisions of the first paragraph of this
covenant or
78
this paragraph in an aggregate amount outstanding as of the date of any Incurrence of such Indebtedness not to exceed 7.5% of Boyd Gamings Consolidated Total Assets; or
(16) Permitted Refinancing Indebtedness Incurred by Boyd Gaming or any Restricted Subsidiary in respect of Indebtedness of
Boyd Gaming or any Restricted Subsidiary outstanding pursuant to the provisions of the first paragraph of this covenant or clauses (1), (2), (8), (9), (13) and this clause (16) of this paragraph;
provided, however,
any such
Permitted Refinancing Indebtedness may be Incurred up to 90 days prior to the repayment, repurchase or redemption of the Indebtedness being refinanced, redeemed or repaid with such Permitted Refinancing Indebtedness;
provided, further,
that
prior to any repayment, repurchase or redemption of the Indebtedness being refinanced with such Permitted Refinancing Indebtedness, Boyd Gaming or the applicable Restricted Subsidiary may temporarily invest the proceeds of such Permitted Refinancing
Indebtedness in Temporary Cash Investments or use the proceeds of such Permitted Refinancing Indebtedness to pay down Indebtedness under the revolving credit portion of the Credit Facility.
For purposes of determining compliance with the Limitation on Indebtedness covenant, in the event that an item of proposed
Indebtedness meets the criteria of more than one of the categories described in clauses (1) through (16) above, or is entitled to be Incurred pursuant to the first paragraph of this covenant, Boyd Gaming will be permitted to
(a) classify such item of Indebtedness on the date of its Incurrence in any manner that complies with this covenant and (b) divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in clauses
(1) through (16) above or as Incurred pursuant to the first paragraph of this covenant. Boyd Gaming may reclassify such Indebtedness from time to time in its sole discretion and may classify any item of Indebtedness in part under one or
more of the categories described in clauses (1) through (16) above and/or in part as Indebtedness entitled to be Incurred pursuant to the first paragraph of this section. Notwithstanding the foregoing, Indebtedness outstanding under the
Credit Facility on the Issue Date, after giving effect to the application of the proceeds from the issuance of the old notes that were applied on the Issue Date, initially was be deemed to have been Incurred on such date under clause (3) of the
preceding paragraph, and may later be reclassified.
Accrual of interest, the accretion of principal amount, the payment of
interest on any Indebtedness in the form of additional Indebtedness, fair value adjustments to the amount of Indebtedness and the payment of dividends in the form of additional Disqualified Stock or Preferred Stock, as applicable, in each case will
not be deemed to be an Incurrence of Indebtedness for purposes of this covenant. In addition, a guarantee of Indebtedness of Boyd Gaming or of a Restricted Subsidiary will not constitute a separate Incurrence, or amount outstanding, of Indebtedness
so long as the Indebtedness so guaranteed was Incurred in accordance with the terms of the indenture. Boyd Gaming may rely on internal or publicly reported financial reports even though there may be subsequent adjustments (including review and audit
adjustments) to such financial statements. For the avoidance of doubt, any Incurrence of Indebtedness which is based upon or made in reliance on a computation based on such internal or publicly reported financial statements, shall be deemed to
continue to comply with the applicable covenant, notwithstanding any subsequent adjustments that may result in changes to such internal or publicly reported financial statements.
Limitation on Layered Indebtedness
Boyd Gaming will not Incur, and
will not permit any Guarantor to Incur, any Indebtedness (including any Indebtedness described in clauses (1) through (16) of the second paragraph of the covenant described under the caption Limitation on Indebtedness)
that is contractually subordinated in right of payment to any other Indebtedness of Boyd Gaming or such Guarantor, as applicable, unless such Indebtedness is also contractually subordinated in right of payment to the notes and the applicable Note
Guarantee on substantially identical terms;
provided
,
however
, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of Boyd Gaming or any Guarantor solely by virtue of being
unsecured or by virtue of being secured on a junior priority basis.
79
Limitation on Restricted Payments
Boyd Gaming shall not make, and shall not permit any Restricted Subsidiary to make, any Restricted Payment if at the time of, and after
giving effect to, such proposed Restricted Payment:
(1) a Default or an Event of Default shall have occurred
and be continuing;
(2) Boyd Gaming could not Incur at least $1.00 of additional Indebtedness pursuant to the
first paragraph of the covenant described above under the caption Limitation on Indebtedness; or
(3) the aggregate amount of such Restricted Payment and all other Restricted Payments made from and after July 22, 1997 (the amount of any Restricted Payment, if made other than in cash, to be based
upon Fair Market Value) would exceed an amount equal, without duplication, to the sum of:
(a) 50% of the
Consolidated Net Income accrued during the period (treated as one accounting period) from April 1, 1997 to the end of the most recent fiscal quarter ended immediately prior to the date of such Restricted Payment (or, in the case such
Consolidated Net Income shall be a deficit, minus 100% of such deficit);
(b) the aggregate proceeds received
by Boyd Gaming from the issue or sale of its Capital Stock (other than Disqualified Stock) subsequent to March 31, 1997 (other than an issuance or sale (i) to a Subsidiary of Boyd Gaming or an employee stock ownership plan or other trust
established by Boyd Gaming or any of its Subsidiaries, (ii) pursuant to clauses (3) or (4) in the following paragraph or (iii) in connection with the acquisition of Coast Casinos, Inc.);
(c) the amount by which Indebtedness of Boyd Gaming or any Restricted Subsidiary is reduced on Boyd Gamings balance
sheet upon the conversion or exchange (other than an issuance or sale to a Subsidiary of Boyd Gaming or an employee stock ownership plan or other trust established by Boyd Gaming or any of its Subsidiaries) subsequent to March 31, 1997, of any
Indebtedness of Boyd Gaming or any Restricted Subsidiary convertible or exchangeable for Capital Stock (other than Disqualified Stock) of Boyd Gaming (less the amount of any cash or other property distributed by Boyd Gaming or any Restricted
Subsidiary upon such conversion or exchange);
(d) the amount equal to the net reduction in Investments that
were treated as Restricted Payments subsequent to March 31, 1997 resulting from:
(1) payments of
dividends, repayments of loans or advances or other transfers of assets to Boyd Gaming or any Restricted Subsidiary or the satisfaction or reduction (other than by means of payments by Boyd Gaming or any Restricted Subsidiary) of obligations of
other Persons which have been Guaranteed by Boyd Gaming or any Restricted Subsidiary; or
(2) the
redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries, in each case such net reduction in Investments being:
(x) valued as provided in the definition of Investment;
(y) an amount not to exceed the aggregate amount of Investments previously made by Boyd Gaming or any Restricted Subsidiary which were treated as a Restricted Payment when made; and
(z) included in this clause (d) only to the extent not included in Consolidated Net Income;
(e) payments of dividends, repayments of loans or advances or other transfers of assets to Boyd Gaming or any Restricted
Subsidiary from the Borgata Joint Venture to the extent such dividends, repayments, advances or other transfers exceed $100.0 million, but only to the extent that any such payments are excluded from the computation of Consolidated Net Income and in
an aggregate amount not in excess of the amount of Investments in the Borgata Joint Venture that were treated as Restricted Payments when made; and
80
(f) $50.0 million.
The provisions of the preceding paragraph shall not prohibit:
(1) the payment of any dividend within 60 days after the date of its declaration if such dividend could have been paid on
the date of its declaration in compliance with the provisions of the indenture;
(2) the redemption or
repurchase of any Capital Stock or Indebtedness of Boyd Gaming
(a) if the holder or beneficial owner of such
Capital Stock or Indebtedness is required to qualify under the Gaming Laws and does not so qualify; or
(b) if
necessary in the reasonable, good faith judgment of the Board of Directors, as evidenced by a Board Resolution, to prevent the loss or secure the reinstatement of any Gaming License which if lost or not reinstated, as the case may be, would have a
material adverse effect on the business of Boyd Gaming and its Subsidiaries, taken as a whole, or would restrict the ability of Boyd Gaming or any of its Subsidiaries to conduct business in any gaming jurisdiction;
(3) any purchase, redemption or other acquisition or retirement of Capital Stock of Boyd Gaming made by exchange for, or
with proceeds of the sale of, Capital Stock (other than Disqualified Stock) of Boyd Gaming received not more than 90 days before or after such purchase, redemption or other acquisition or retirement of Capital Stock;
(4) any purchase, redemption or other acquisition or retirement of the Indebtedness of any Person made by exchange for, or
with proceeds of the sale of, Capital Stock (other than Disqualified Stock) of Boyd Gaming received not more than 90 days before or after such purchase, redemption or other acquisition or retirement of Indebtedness;
(5) any purchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of Boyd Gaming or
any Guarantor that is contractually subordinated to the notes or to any Note Guarantee from the proceeds of Permitted Refinancing Indebtedness Incurred not more than 90 days before or after such repurchase, redemption, defeasance or other
acquisition or retirement of such Indebtedness;
(6) cash payments in lieu of fractional shares issuable as
dividends on Capital Stock of Boyd Gaming or any of its Restricted Subsidiaries;
(7) the redemption or
repurchase of any (i) Indebtedness subordinated in right of payment to the Notes or any Note Guarantee, or (ii) Capital Stock of Boyd Gaming, in each case to the extent required by a final non-appealable order or judgment entered by a
court or courts of competent jurisdiction;
(8) the purchase, redemption or other acquisition or retirement of
Indebtedness subordinated in right of payment to the notes or any Note Guarantee (i) with any Excess Proceeds remaining after all Holders have been given the opportunity to tender their notes for repurchase in accordance with the indenture if
any such subordinated Indebtedness is required to be repurchased pursuant to its respective terms, and (ii) other purchases, redemptions or other acquisition or retirement of Indebtedness subordinated in right of payment to the notes or any
Note Guarantee in an aggregate amount not to exceed $250.0 million in the aggregate;
(9) so long as no Default
or Event of Default has occurred and is continuing, repurchases by Boyd Gaming of its common stock or options, warrants or other securities exercisable or convertible into such common stock (excluding any debt security that is convertible into, or
exercisable for, common stock) held by employees, officers, consultants or directors of Boyd Gaming or any of its direct or indirect Subsidiaries upon death, disability or termination of employment or directorship of such employees, officers,
consultants or directors not to exceed $10.0 million in the aggregate in any fiscal year, with unused amounts in any fiscal year permitted to be carried over for the next two succeeding fiscal years;
(10) the repurchase of Capital Stock deemed to occur upon the exercise of stock options to the extent such Capital Stock
represents a portion of the exercise price of those stock options;
81
(11) the repurchase of Capital Stock upon the vesting of restricted stock,
restricted stock units or performance share units to the extent necessary to satisfy tax withholding obligations attributable to such vesting;
(12) other Investments in an aggregate amount at any time not to exceed 10% of Boyd Gamings Consolidated Total Assets (in each case with Investments calculated at the time of such Investment);
(13) so long as no Default or Event of Default has occurred and is continuing, the repurchase of Indebtedness
subordinated in right of payment to the notes or any Note Guarantee with any Excess Proceeds as provided under Repurchase at the Option of HoldersAsset Sales; Event of Loss or pursuant to provisions requiring such repurchase
similar to those described under the caption Repurchase at the Option of HoldersChange of Control; provided that all notes tendered by Holders in connection with a Change of Control Offer or Prepayment Offer, as applicable,
have been repurchased, redeemed or acquired for value; and
(14) Restricted Payments made on or after the Issue
Date pursuant to this clause (14) not to exceed (i) $100.0 million in the aggregate prior to a Peninsula Restricted Subsidiary Designation and (ii) $200.0 million in the aggregate after a Peninsula Restricted Subsidiary Designation.
The full amount of any Restricted Payments made subsequent to March 31, 1997 pursuant to clauses (1) and
(2) of the preceding paragraph (but not pursuant to any other clause of the immediately preceding paragraph) shall be included in the calculation of the aggregate amount of Restricted Payments referred to under clause (3) in the first
paragraph of this covenant. For the avoidance of doubt, only Restricted Payments made from and after July 22, 1997 pursuant to clauses corresponding to clauses (1) and (2) of the preceding paragraph (but not pursuant to any other
clause of any indenture that is or was excluded from the calculation of the aggregate amount of Restricted Payments corresponding to the calculation in clause (3) in the first paragraph of this covenant) shall be included in the calculation of
the aggregate amount of Restricted Payments made from and after July 22, 1997 pursuant to clause (3) in the first paragraph of this covenant.
Limitation on Liens
Boyd Gaming shall not, and shall not permit any
Guarantor to, directly or indirectly, Incur or suffer to exist, any Lien (other than Permitted Liens) upon any of its Property, whether owned at the Issue Date or thereafter acquired, or any interest therein or any income or profits therefrom, which
secures Indebtedness that ranks
pari passu
with or is subordinated to the notes unless:
(1) if such
Lien secures Indebtedness that ranks
pari passu
in right of payment with the notes or any Note Guarantee, the notes or such Note Guarantee are secured on an equal and ratable basis with the obligations so secured; or
(2) if such Lien secures Indebtedness that is subordinate in right of payment to the notes or any Note Guarantee, the
notes or such Note Guarantee are secured on a senior basis to the obligations so secured.
Any Lien created for the benefit of
the Holders pursuant to the preceding paragraph shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Lien securing such Indebtedness that gave rise to the
obligations to secure the notes or such Note Guarantee under this covenant.
Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries
Boyd Gaming shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions to Boyd Gaming or any other Restricted Subsidiary on its Capital Stock or with respect to any other interest or participation in, or measured by, its
profits;
82
(2) pay any Indebtedness owed to Boyd Gaming or any other Restricted
Subsidiary;
(3) make loans or advances to Boyd Gaming or any other Restricted Subsidiary;
(4) transfer any of its Property to Boyd Gaming or any other Restricted Subsidiary.
Notwithstanding the above, Boyd Gaming may, and may permit any Restricted Subsidiary to, directly or indirectly, create or otherwise
suffer to exist or become effective such encumbrances or restrictions existing under or by reason of:
(A)
agreements in effect on the Issue Date;
(B) applicable law, including rules, regulations or orders issued by
any Gaming Authority;
(C) customary nonassignment provisions in contracts, leases or licenses entered into in
the ordinary course of business;
(D) agreements in existence with respect to a Restricted Subsidiary at the
time it is acquired or so designated;
provided, however
, that such agreements are not entered into in anticipation or contemplation of such designation;
(E) any agreement or other instrument of a Person whose property, assets or Capital Stock is acquired by Boyd Gaming or any Restricted Subsidiary which agreement or other instrument was in existence at
the time of such acquisition (but not created in contemplation thereof); provided that such encumbrance or restriction is not, and will not be, applicable to any Person, or the properties or assets of any Person, other than such acquired Person and
its Subsidiaries or such property or assets, including directly-related assets, such as accessions and proceeds so acquired or leased;
(F) provisions limiting the disposition or distribution of assets or Property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar
agreements; which limitation is applicable only to the assets that are the subject of such agreements;
(G) any
restrictions or transfer of property with respect to the transfer of assets secured by a Lien permitted to be Incurred under the provisions of the covenant described above under the caption Limitation on Liens;
(H) purchase money obligations for Property or equipment acquired for use in the business of Boyd Gaming or any of its
Restricted Subsidiaries and Capital Lease Obligations that impose restrictions on the Property or equipment purchased or leased in the ordinary course of business;
(I) any instrument governing Indebtedness represented by industrial revenue or development bonds issued by a municipality
and guaranteed by Boyd Gaming or any of its Restricted Subsidiaries;
(J) customary provisions contained in
leases, licenses and other similar agreements entered into in the ordinary course of business;
(K) any
restriction on cash or other deposits or net worth imposed by customers or lessors or required by insurance, surety or bonding companies, in each case under contracts entered into in the ordinary course of business; or
(L) any encumbrances or restrictions of the type referred to in clauses (1), (2), (3) and (4) above imposed by
any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (A) through (K) above; provided that such
amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of Boyd Gaming, no more restrictive with respect to such dividend and other payment restrictions than
those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
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For purposes of determining compliance with this covenant (i) the priority of any
Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to pay dividends or make other distributions on Capital
Stock and (ii) the subordination of loans or advances made to Boyd Gaming or a Restricted Subsidiary to other Indebtedness Incurred by Boyd Gaming or any such Restricted Subsidiary shall not be deemed a restriction on the ability to pay
indebtedness owed or to make loans or advances.
Nothing contained in this covenant shall prevent Boyd Gaming or any
Restricted Subsidiary from granting any Lien permitted by the covenant described above under the caption Limitation on Liens.
Limitation on Transactions with Affiliates
Boyd Gaming shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, conduct any business or enter into or suffer to exist any transaction or series of transactions (including
the purchase, sale, transfer, lease or exchange of any Property, the making of any Investment, the giving of any Guarantee or the rendering or receiving of any service) with, from or for the benefit of any Affiliate, any Related Person or any
officer or director of any Affiliate or a Related Person involving aggregate consideration in excess of $25.0 million (an Affiliate Transaction) unless:
(1) the terms of such Affiliate Transaction are in writing, in the best interest of Boyd Gaming or such Restricted
Subsidiary, as the case may be, and at least as favorable to Boyd Gaming or such Restricted Subsidiary, as the case may be, as those that could be obtained at the time of such Affiliate Transaction in a similar transaction in arms-length
dealings with a Person who is not such an Affiliate, Related Person or officer or director of an Affiliate or Related Person;
(2) with respect to each Affiliate Transaction involving aggregate payments to either party in excess of $50.0 million, such Affiliate Transaction was approved by a majority of the disinterested members
of the Board of Directors and that such Affiliate Transaction complies with clause (1); and
(3) with respect
to each Affiliate Transaction involving aggregate payments in excess of $100.0 million, Boyd Gaming delivers to the Trustee an opinion letter from an Independent Advisor to the effect that such Affiliate Transaction is fair, from a financial point
of view;
provided
,
however
, that the foregoing limitation shall not apply for so long as Boyd Gamings common stock is
listed for trading on the New York Stock Exchange or NYSE Amex Equities or is quoted on the National Association of Securities Dealers Automated Quotation System and designated as a national market system security.
Notwithstanding the foregoing limitations, Boyd Gaming or any of its Restricted Subsidiaries may enter into or suffer to exist the
following:
(1) any transaction pursuant to any contract in existence on the Issue Date;
(2) any Restricted Payment permitted to be made pursuant to the covenant described above under the caption
Limitation on Restricted Payments;
(3) any transaction or series of transactions between
Boyd Gaming and one or more of its Restricted Subsidiaries or between two or more of its Restricted Subsidiaries;
(4) the pledge of the Capital Stock of any Unrestricted Subsidiary or joint venture to secure the Indebtedness of any such Person;
(5) the payment of compensation (including amounts paid pursuant to employee benefit plans) for the personal services of,
indemnity provided on behalf of, and reimbursement of expense to, officers, directors, employees or consultants of Boyd Gaming or any of its Restricted Subsidiaries;
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(6) any Permitted Investment and any other Investment made by Boyd Gaming or
any of its Restricted Subsidiaries other than an Investment in a holder of 10% or more of the Capital Stock of Boyd Gaming or an Investment in an entity controlled by a holder of 10% or more of the Capital Stock of Boyd Gaming (other than indirect
control by reason of such holders ownership of Capital Stock of Boyd Gaming); and
(7) transactions
pursuant to agreements existing on the Issue Date and any modification thereto or any transaction contemplated thereby in any replacement agreement therefor so long as such modification or replacement is not more disadvantageous to Boyd Gaming or
any of its Restricted Subsidiaries in any material respect than the respective agreement existing on the Issue Date.
Limitation on
Status as an Investment Company
Boyd Gaming shall not, and shall not permit any of its Restricted Subsidiaries to,
become an investment company (as that term is defined in the Investment Company Act of 1940, as amended), to the extent such status would subject Boyd Gaming or any such Subsidiary to regulation under the Investment Company Act, except
for Subsidiaries established for the purpose of financing the operating businesses of Boyd Gaming and its Subsidiaries.
Merger,
Consolidation and Sale of Assets
Boyd Gaming shall not merge or consolidate with or into any other entity (other than
a merger or consolidation of a Restricted Subsidiary with or into Boyd Gaming) or in one transaction or a series of related transactions sell, convey, assign, transfer, lease or otherwise dispose of all or substantially all of its Property unless:
(1) the entity formed by or surviving any such consolidation or merger (if Boyd Gaming is not the surviving
entity) or the Person to which such sale, assignment, transfer, lease or conveyance is made (the Successor):
(a) shall be a Person (other than an individual) organized and existing under the laws of the United States of America or a State thereof or the District of Columbia and such Person expressly assumes, by
supplemental indenture, executed and delivered to the Trustee by such Person, the due and punctual payment of the principal, premium, if any, interest and Additional Interest, if any, on all the notes and the due and punctual performance and
observance of all the covenants, conditions and obligations under the notes, the indenture and the Registration Rights Agreement to be performed by Boyd Gaming;
provided
, that if any Successor is not a corporation, there shall be a co-issuer
that is a corporation; and
(b) the Successor shall have all Gaming Licenses required to operate all Gaming
Facilities to be owned by such Successor;
(2) in the case of a sale, transfer, assignment, lease, conveyance
or other disposition of all or substantially all of Boyd Gamings Property, such Property shall have been transferred as an entirety or virtually as an entirety to any Person;
(3) immediately before and after giving effect to such transaction or series of transactions on a pro forma basis, no
Default or Event of Default shall have occurred and be continuing; and
(4) immediately after giving effect to
such transaction or series of transactions on a pro forma basis (including, without limitation, any Indebtedness Incurred or anticipated to be Incurred in connection with such transaction or series of transactions), Boyd Gaming or the Successor, as
the case may be, would be able to Incur at least $1.00 of additional Indebtedness pursuant to the first paragraph of the covenant described above under the caption Limitation on Indebtedness.
In connection with any such supplemental indenture, Boyd Gaming shall deliver to the Trustee an Officers Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, sale, transfer, lease or
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conveyance and such supplemental indenture, if any, complies with the Indenture, and such Opinion of Counsel shall also state that such supplemental indenture constitutes the legal, valid and
binding obligation of such Successor.
Business activities
Boyd Gaming will not, and will not permit any of its Restricted Subsidiaries to, engage in any business other than a Core Business, except
to such extent as would not be material to Boyd Gaming and its Restricted Subsidiaries taken as a whole.
Additional Note Guarantees
If Boyd Gaming or any of its Restricted Subsidiaries acquires or creates a Significant Subsidiary, or any
non-Guarantor Restricted Subsidiary becomes a Significant Subsidiary after the date of the indenture, then such Restricted Subsidiary shall become a Guarantor and execute a supplemental indenture and deliver an Opinion of Counsel satisfying the
requirements of Section 12.04 and 12.05 of the indenture and stating that such supplemental indenture constitutes the legal, valid and binding obligations of such Guarantor within 30 days following the date on which it was acquired, created or
otherwise became a Significant Subsidiary (or such longer period as may be required to obtain any necessary approvals under applicable Gaming Laws or other regulatory requirements). Any Subsidiary that does not constitute a Significant Subsidiary
need not become a Guarantor unless and until such time as it becomes a Significant Subsidiary. Notwithstanding the foregoing, to the extent any Significant Subsidiary is subject to the terms of any instrument governing Acquired Debt, as in effect at
the time of acquisition which instrument or restriction prohibits such Significant Subsidiary from issuing a Guarantee, such Significant Subsidiary shall not be required to execute such a supplemental indenture until it is permitted to issue such
Guarantee pursuant to the terms of such Acquired Debt. Boyd Gaming shall use reasonable commercial efforts to obtain all approvals of any Gaming Authority necessary to permit any Significant Subsidiary to become a Guarantor as promptly as
practicable.
Designation of restricted and unrestricted subsidiaries
The Board of Directors may designate any Restricted Subsidiary and any newly acquired or newly formed Subsidiary to be an Unrestricted
Subsidiary; provided that:
(1) such designation would not cause a Default;
(2) such Subsidiary has no Indebtedness other than Qualified Non-Recourse Debt;
(3) such Subsidiary does not own any Capital Stock or Indebtedness of or own or hold any lien on any Property of Boyd
Gaming or any other Subsidiary of Boyd Gaming that is not a Subsidiary of the Subsidiary to be so designated; and
(4) such Subsidiary is not a Significant Subsidiary.
If a Restricted Subsidiary
is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Boyd Gaming and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an
Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the covenant described above under the caption Limitation on Restricted Payments or under one or more clauses of
the definition of Permitted Investment, as determined by Boyd Gaming. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
Any designation of a Subsidiary of Boyd Gaming as an Unrestricted Subsidiary will be evidenced to the Trustee by
filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers Certificate certifying that (i) such designation complied with the preceding
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conditions and (ii) was permitted by the covenant described above under the caption Limitation on Restricted Payments and giving the effective date of such designation,
such filing with the Trustee to occur within 75 days after the end of the fiscal quarter of Boyd Gaming in which such designation is made (or, in the case of a designation made during the last fiscal quarter of the fiscal year, within 120 days after
the end of such fiscal year). If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of the indenture and any
Indebtedness of such Subsidiary will be deemed to be Incurred by a Restricted Subsidiary of Boyd Gaming as of such date.
The
Board of Directors may at any time designate, or redesignate, any Unrestricted Subsidiary to be a Restricted Subsidiary of Boyd Gaming (with notice to the Trustee); provided that such designation, or redesignation, will be deemed to be an Incurrence
of Indebtedness by a Restricted Subsidiary of Boyd Gaming of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation, or redesignation, will only be permitted if (1) such Indebtedness is permitted under the covenant
described under the caption Limitation on Indebtedness, calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable Reference Period and (2) no Default or Event of Default would be in
existence following such designation or redesignation.
As of the Issue Date, each of: OED Acquisition, LLC, a Delaware
limited liability company, BYDSSE Gaming, LLC, a Florida limited liability company, Boyd Interactive Gaming, a Nevada corporation, and each Subsidiary of each such Person is an Unrestricted Subsidiary.
Reports
Whether or not
required by the SEC, so long as any notes are outstanding, Boyd Gaming will furnish to the Trustee and the Holders of notes, within 15 days after the time periods specified in the SECs rules and regulations:
(1) all quarterly and annual reports, including financial information that would be required to be contained in a filing
with the SEC on Forms 10-Q and 10-K if Boyd Gaming were required to file such Forms, including a Managements Discussion and Analysis of Financial Condition and Results of Operations and, with respect to the annual information only,
a report on the annual financial statements by Boyd Gamings certified independent accountants; and
(2)
all current reports that would be required to be filed with the SEC on Form 8-K if Boyd Gaming were required to file such reports.
Whether or not required by the SEC, Boyd Gaming will file a copy of all of the information and reports referred to in clauses (1) and (2) above with the SEC for public availability within the
time periods specified in the SECs rules and regulations (unless the SEC will not accept such a filing) and will post the reports on its website within those time periods. If, at any time Boyd Gaming is no longer subject to the periodic
reporting requirements of the Exchange Act for any reason, Boyd Gaming will nevertheless continue filing the reports specified in the preceding paragraphs of this covenant with the SEC within the time periods specified above unless the SEC will not
accept such a filing. Boyd Gaming will not take any action for the purpose of causing the SEC not to accept any such filings. If, notwithstanding the foregoing, the SEC will not accept Boyd Gamings filings for any reason, Boyd Gaming will post
the reports referred to in the preceding paragraphs on its website within the time periods that would apply if Boyd Gaming were required to file those reports with the SEC.
Notwithstanding the foregoing, Boyd Gaming will be deemed to have furnished such reports referred to above to the Trustee and the Holders of the notes if (i) Boyd Gaming has filed (or, in the case of
a Form 8-K,
87
furnished) such reports with the SEC via the EDGAR filing system and such reports are publicly available, or (ii) the reports are posted and publicly available on the Boyd Gaming website.
The Trustee shall have no responsibility to verify that such reports have been filed. Delivery of such reports, information and documents to the Trustee pursuant to this covenant is for informational purposes only, and the Trustees receipt
thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including Boyd Gamings compliance with any of its covenants under the Indenture (as to which the Trustee
is entitled to certificates).
Events of Default and Remedies
Each of the following is an Event of Default:
(1)
default with respect to payment of interest (including Additional Interest, if any) on any of the notes when it becomes due and payable, and the continuance of such default for a period of 30 days;
(2) default with respect to payment of principal or premium, if any, on any of the notes when due at maturity, upon
acceleration, required purchase or otherwise;
(3) failure by Boyd Gaming to observe, perform or comply with
the covenants and agreements in the covenant described above under the caption Merger, Consolidation and Sale of Assets;
(4) failure by Boyd Gaming or any Guarantor to observe, perform or comply with any of the other covenants and agreements in the indenture, the notes or the Note Guarantees and such failure to observe,
perform or comply continues for a period of 60 days after receipt by Boyd Gaming of a written notice from the Trustee or Holders of not less than 30% in aggregate principal amount of the notes (including any additional notes, if any) then
outstanding;
(5) Indebtedness of Boyd Gaming or any Restricted Subsidiary is not paid when due or within any
applicable grace period or is accelerated by the holders thereof and, in either case, the total amount of such unpaid or accelerated Indebtedness exceeds $75.0 million;
(6) the entry by a court of competent jurisdiction of one or more judgments or orders against Boyd Gaming or any
Restricted Subsidiary in an uninsured aggregate amount in excess of $75.0 million and such judgment or order is not discharged, waived, stayed or satisfied for a period of 60 consecutive days after such judgment or judgments become final and
non-appealable;
(7) certain events of bankruptcy, insolvency or reorganization described in the indenture
affecting Boyd Gaming or any Guarantor that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary;
(8) except as permitted by the indenture, any Note Guarantee is held in any judicial proceeding to be unenforceable or
invalid or ceases for any reason to be in full force and effect, or any Guarantor, or any Person controlling such Guarantor, denies or disaffirms its obligations under its Note Guarantee, and such default continues for a period of 30 days; and
(9) any revocation, suspension or loss of any Gaming License which results in the cessation of business for a
period of more than 90 consecutive days of the business of any Gaming Facility or Gaming Facilities owned, leased or operated directly by Boyd Gaming or any of its Restricted Subsidiaries, which, taken together, collectively contribute more than 10%
of Boyd Gamings Consolidated EBITDA (other than any voluntary relinquishment of a Gaming License if such relinquishment is, in the reasonably good faith judgment of the Board of Directors and evidenced by a Board Resolution, desirable in the
conduct of the business of Boyd Gaming and its Subsidiaries, taken as a whole).
A Default under clauses (5), (6) or
(9) above is not an Event of Default until the Trustee or Holders of not less than 30% in aggregate principal amount of the notes notify Boyd Gaming of the Default; provided that any Default under clause (5) above resulting from a default
or acceleration with respect to Indebtedness will not be
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considered an Event of Default if such default or acceleration is cured or annulled, respectively, within 30 days of the receipt by Boyd Gaming of the abovementioned notice of Default from the
Trustee or Holders of not less than 30% in aggregate principal amount of the notes.
Boyd Gaming shall deliver to the Trustee,
within 30 days after the occurrence thereof, written notice in the form of an Officers Certificate of any Event of Default, its status and what action Boyd Gaming and/or any Guarantor is taking or proposes to take with respect thereto.
The indenture provides that the Trustee, within 90 days after the occurrence of any continuing Default or Event of Default
that is known to the Trustee, will give notice to the Holders;
provided
,
however
, that, except in the case of a default in payment of principal of or interest on the notes, the Trustee may withhold such notice as long as it in good
faith determines that such withholding is in the interest of the Holders.
Subject to the last paragraph of Events of
Default and Remedies, the indenture provides that if an Event of Default (other than an Event of Default resulting from certain events of bankruptcy, insolvency or reorganization described in clause (7) above) shall have occurred and be
continuing, the Trustee or the Holders of not less than 30% in aggregate principal amount of the notes then outstanding may accelerate the maturity of all the notes by a notice in writing to Boyd Gaming (and to the Trustee, if given by the Holders)
specifying the Event of Default and that it is a notice of acceleration and on the fifth business day after delivery of such notice, the principal amount, together with any accrued and unpaid interest and premium and Additional Interest,
if any, on all of the notes then outstanding will become immediately due and payable. In case an Event of Default resulting from certain events of bankruptcy, insolvency or reorganization described in clause (7) above shall occur, the notes
shall be due and payable immediately without any declaration or other act on the part of the Trustee or the Holders.
The
Holders of a majority in aggregate principal amount of the notes then outstanding shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, subject to certain limitations
specified in the indenture.
The Holders of a majority in aggregate principal amount of the then outstanding notes (including
any additional notes, if any) voting in a single class by written notice to the Trustee may, on behalf of the Holders of all of the notes, rescind an acceleration or waive any existing Default or Event of Default and its consequences under the
indenture, if the rescission would not conflict with any judgment or decree, except a continuing Default or Event of Default in the payment of principal of, premium or Additional Interest, if any, or interest on the Notes.
No Holder will have any right to institute any proceeding with respect to the indenture or for any remedy thereunder, unless:
(1) such Holder shall have previously given to the Trustee written notice of a continuing Event of Default;
(2) Holders of at least 30% in aggregate principal amount of the notes then outstanding shall have made written request
and offered indemnity satisfactory to the Trustee to institute such proceeding as a trustee; and
(3) the
Trustee shall not have received from the Holders of a majority in aggregate principal amount of the notes then outstanding a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days.
However, such limitations do not apply to a suit instituted by a Holder for enforcement of payment of the principal of and premium and
Additional Interest, if any, or interest on such Holders note on or after the respective due dates expressed in such note (including in connection with an offer to purchase).
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Notwithstanding any other provision of the indenture, the sole remedy for an Event of
Default relating to the failure to comply with the reporting obligations described above under the heading Reports, and for any failure to comply with the requirements of Section 314(a) of the Trust Indenture Act, will for the
365 days after the occurrence of such an Event of Default consist exclusively of the right to receive Additional Interest on the principal amount of the notes at a rate equal to 0.50% per annum. The Additional Interest will be payable in the
same manner and subject to the same terms as other interest payable under the indenture. The Additional Interest will accrue on all outstanding notes from and including the date on which an Event of Default relating to a failure to comply with the
reporting obligations described above under the heading Reports or Section 314(a) of the Trust Indenture Act first occurs to but excluding the 365th day thereafter (or such earlier date on which the Event of Default relating
to such reporting obligations is cured or waived). If the Event of Default resulting from such failure to comply with the reporting obligations is continuing on such 365th day, such Additional Interest will cease to accrue and the notes will be
subject to the other remedies provided under the heading Events of Default and Remedies.
No Personal Liability of
Directors, Officers, Employees and Stockholders
No director, officer, employee, incorporator or stockholder of Boyd Gaming
or any Guarantor, as such, will have any liability for any obligations of Boyd Gaming or the Guarantors under the notes, the indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of notes by accepting a note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the notes. The waiver may not be effective to waive liabilities under the federal
securities laws.
Legal Defeasance and Covenant Defeasance
Boyd Gaming may, at its option and at any time, elect to have all of its obligations discharged with respect to the outstanding notes and all obligations of the Guarantors discharged with respect to their
Note Guarantees (Legal Defeasance) except for:
(1) the rights of Holders of outstanding notes to
receive payments in respect of the principal of, or interest, Additional Interest or premium, if any, on such notes when such payments are due from the trust referred to below;
(2) Boyd Gamings obligations with respect to the notes concerning issuing temporary notes, mutilated, destroyed,
lost or stolen notes and the maintenance of an office or agency for payment and money for security payments held in trust;
(3) the rights, powers, trusts, duties and immunities of the Trustee, and Boyd Gamings and the Guarantors obligations in connection therewith; and
(4) the Legal Defeasance provisions of the indenture.
In addition, Boyd Gaming may, at its option and at any time, elect to have the obligations of Boyd Gaming and the Guarantors released
with respect to certain covenants that are described in the indenture (Covenant Defeasance) and thereafter any omission to comply with those covenants will not constitute a Default or Event of Default with respect to the notes. In the
event Covenant Defeasance occurs, certain events (not including non-payment, bankruptcy, receivership, rehabilitation and insolvency events with respect to Boyd Gaming) described under Events of Default and Remedies will no longer
constitute an Event of Default with respect to the notes.
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(1) Boyd Gaming must irrevocably deposit with the Trustee, in trust, for the benefit of the
Holders of the notes, cash in U.S. dollars, non-callable U.S. Government Obligations, or a combination of cash in U.S.
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dollars and non-callable U.S. Government Obligations, in amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of,
interest, Additional Interest and premium, if any, on the outstanding notes on the stated maturity or on the applicable redemption date, as the case may be, and Boyd Gaming must specify whether the notes are being defeased to maturity or to a
particular redemption date;
(2) in the case of Legal Defeasance, Boyd Gaming has delivered to the Trustee an
Opinion of Counsel confirming that:
(a) Boyd Gaming has received from, or there has been published by, the
Internal Revenue Service a ruling; or
(b) since the date of the indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel will confirm that, the beneficial owners of the outstanding notes will not recognize income, gain or loss for federal income tax purposes
as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, Boyd Gaming has delivered to the Trustee an Opinion of Counsel confirming that the
beneficial owners of the outstanding notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event
of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from (a) the borrowing of funds to be applied to such deposit or (b) the repayment of other Indebtedness being repaid
concurrently);
(5) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of,
or constitute a default under any material agreement or instrument (other than the indenture) to which Boyd Gaming or any of the Guarantors is a party or by which Boyd Gaming or any of the Guarantors is bound;
(6) Boyd Gaming must deliver to the Trustee an Officers Certificate stating that the deposit was not made by Boyd
Gaming with the intent of preferring the Holders of notes over the other creditors of Boyd Gaming with the intent of defeating, hindering, delaying or defrauding creditors of Boyd Gaming or others; and
(7) Boyd Gaming must deliver to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as applicable, have been complied with.
Amendment,
Supplement and Waiver
Except as provided in the next three succeeding paragraphs, the indenture, the notes or the Note
Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the notes (including additional notes, if any) then outstanding voting as a single class (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer for, notes), and any existing default or compliance with any provision of the indenture, the notes or the Note Guarantees, may be waived with the consent of the Holders of
a majority in principal amount of the then outstanding notes (including, without limitation, consents obtained in connection with a tender offer, exchange offer for, or purchase of, the notes).
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Without the consent of each Holder of notes affected, an amendment, supplement or waiver may
not (with respect to any notes held by a non-consenting Holder):
(1) reduce the principal amount of notes
whose Holders must consent to an amendment, supplement or waiver;
(2) reduce the rate of or extend the time
for payment of interest on any note;
(3) reduce the principal of or extend the stated maturity of any note;
(4) reduce the premium payable upon the redemption of any note, waive a redemption payment with respect to any
note or change the time at which a note may be redeemed;
(5) impair the right of any Holder to receive payment
of principal of, or interest, premium or Additional Interest, if any, on the notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holders notes, except (i) a
rescission of acceleration of the notes by the Holders of at least a majority in aggregate principal amount of the then outstanding notes, (ii) a waiver of the payment default that resulted from such acceleration, and (iii) any waiver or
modification of the obligation to make an offer to purchase as a result of a Change of Control prior to the occurrence of such Change of Control;
(6) make any note payable in money other than that stated in the notes;
(7) make any change in the provisions of the indenture relating to waivers of past Defaults; or
(8) make any change in the preceding amendment and waiver provisions.
In
addition, any amendment which releases any Guarantor from its obligations under any Note Guarantee (except as specified in the Guaranty release provisions contained in the indenture prior to any such amendment) will require the consent of the
Holders of at least 66 2/3% in aggregate principal amount of the notes then outstanding.
Notwithstanding the preceding,
without the consent of any Holder of notes, Boyd Gaming, the Guarantors and the Trustee may amend or supplement the indenture, the notes or the Note Guarantees to, among other things:
(1) to cure any ambiguity, defect, mistake, omission or inconsistency as evidenced in an Officers Certificate;
(2) to provide for the assumption of Boyd Gamings or a Guarantors obligations to Holders of notes
and Note Guarantees, as applicable, in the case of a merger or consolidation or sale of all or substantially all of Boyd Gamings or such Guarantors assets, as applicable;
(3) to provide for uncertificated notes in addition to or in place of certificated notes;
(4) to add any Note Guarantees with respect to the notes and to release such Note Guarantees when required or permitted by
the terms of the indenture;
(5) to secure the notes;
(6) to add to the covenants of Boyd Gaming or any Guarantor for the benefit of the Holders of the notes or the Note
Guarantees or to surrender any right or power conferred upon Boyd Gaming or any Guarantor;
(7) to make any
change that would provide any additional rights or benefits to the Holders of notes or that does not adversely affect the legal rights under the indenture of any such Holder of notes in the good faith opinion of Boyd Gaming;
(8) to comply with the requirements of applicable Gaming Laws or to provide for requirements imposed by applicable Gaming
Authorities;
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(9) to comply with requirements of the SEC in order to effect or maintain
the qualification of the indenture under the Trust Indenture Act;
(10) to conform the text of the indenture,
the notes or the Note Guarantees to any provision of the description of notes contained in the original offering memorandum for the old notes, to the extent that such provision in the description of notes contained therein was intended to be a
verbatim recitation of a provision of the indenture or such notes (as evidenced by an Officers Certificate of Boyd Gaming);
(11) to provide for the issuance of additional notes in accordance with the limitations set forth in the indenture on the Issue Date; and
(12) remove redemption provisions included in any additional notes that are no longer in effect.
The consent of the Holders of the notes is not necessary under the indenture to approve the particular form of any proposed amendment. It
is sufficient if such consent approves the substance of the proposed amendment.
After an amendment, supplement, or waiver of
the indenture becomes effective, Boyd Gaming is required to mail to the Holders of notes affected thereby a notice briefly describing such amendment, supplement or waiver. However, the failure to give such notice to all Holders of notes, or any
defect therein, will not impair or affect the validity of any such amended or supplemented indenture or waiver.
Satisfaction and Discharge
The indenture will be discharged and will cease to be of further effect as to all notes issued thereunder, when:
(1) either:
(a) all notes that have been authenticated, except lost, stolen or destroyed notes that have been replaced or paid and notes for whose payment money has been deposited in trust and thereafter repaid to
Boyd Gaming, have been delivered to the Trustee for cancellation; or
(b) all notes that have not been
delivered to the Trustee for cancellation have become due and payable by reason of the sending of a notice of redemption or otherwise or will become due and payable within one year and Boyd Gaming or any Guarantor has irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable U.S. Government Obligations, or a combination of cash in U.S. dollars and non-callable U.S. Government Obligations, in
amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest and
Additional Interest, if any, to the date of maturity or redemption;
(2) other than with respect to a discharge
when the notes have become due and payable, no Default or Event of Default has occurred and is continuing on the date of the deposit or will occur as a result of the deposit (other than a Default or Event of Default resulting from (i) the
borrowing of funds to be applied to such deposit or (ii) the repayment of other Indebtedness being repaid concurrently) and the deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which
Boyd Gaming or any Guarantor is a party or by which Boyd Gaming or any Guarantor is bound;
(3) Boyd Gaming or
any Guarantor has paid or caused to be paid all other sums payable by it under the indenture; and
(4) Boyd
Gaming has delivered irrevocable instructions to the Trustee under the indenture to apply the deposited money toward the payment of the notes at maturity or the redemption date, as the case may be.
In addition, Boyd Gaming must deliver an Officers Certificate and an Opinion of Counsel to the Trustee stating that all conditions
precedent to satisfaction and discharge have been satisfied.
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Upon compliance with the foregoing, the Trustee shall execute such instrument(s) as
reasonably requested by Boyd Gaming acknowledging the satisfaction and discharge of all of Boyd Gamings and the Guarantors obligations under the notes and the indenture.
Concerning the Trustee
If the Trustee becomes a creditor of Boyd Gaming or
any Guarantor, the indenture limits its right to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim as security or otherwise. The Trustee will be permitted to engage in other
transactions; provided, however, that if the Trustee acquires any conflicting interest (as defined in the Trust Indenture Act) the Trustee must eliminate such conflict within 90 days, apply to the SEC for permission to continue or resign.
The Holders of a majority in principal amount of the then outstanding notes will have the right to direct the time, method
and place of conducting any proceeding for exercising any remedy available to the Trustee, subject to certain exceptions. The indenture provides that in case an Event of Default occurs and is continuing, the Trustee will be required, in the exercise
of its power, to use the degree of care of a prudent man in the conduct of his own affairs. The Trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request of any Holder of notes, unless such Holder
has offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
Additional Information
Anyone who receives this prospectus may obtain a copy of the indenture without charge by writing to Boyd Gaming
Corporation, 3883 Howard Hughes Parkway, 9th Floor, Las Vegas, NV 89169, Attention: General Counsel.
Book-entry, Delivery and Form
The exchange notes will be initially issued in the form of one or more notes in global form without interest coupons (the
Global Notes) registered in the name of The Depository Trust Company (DTC) or its nominee.
Upon the
issuance of a Global Note, DTC or its nominee will credit the accounts of Persons holding through it with the respective principal amounts of the notes represented by such Global Note. Ownership of beneficial interests in a Global Note will be
limited to Persons that have accounts with DTC (Participants) or Persons that may hold interests through Participants. The Notes will be issued in registered, global form in minimum denominations of $1,000 and minimum integral multiples
of $1,000 in excess thereof.
Except as set forth below, the Global Notes may be transferred, in whole and not in part, only
to another nominee of DTC or to a successor of DTC or its nominee. Beneficial interest in the Global Notes may not be exchanged for definitive notes in registered certificated form (Certificated Notes) except in the limited circumstances
described below. See Exchange of Global Notes for Certificated Notes. Except in limited circumstances described below, owners of beneficial interests in the Global Notes will not be entitled to receive physical delivery of notes in
certificated form. In addition, transfers of beneficial interest in the Global Notes will be subject to the applicable rules and procedures of DTC and its direct and indirect participants (including, if applicable, those of Euroclear and
Clearstream), which may change from time to time.
So long as the Holder of a Global Note is the registered owner of any
notes, the Holder of such Global Note will be considered the sole Holder under the indenture of any notes evidenced by the Global Notes. Beneficial owners of notes evidenced by the Global Notes will not be considered the owners or Holders of the
notes under the indenture for any purpose, including with respect to the giving of any directions, instructions or approvals to
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the Trustee thereunder. Neither Boyd Gaming nor the Trustee will have any responsibility or liability for any aspect of the records of DTC or for maintaining, supervising or reviewing any records
of DTC relating to the notes.
Depository Procedures
The following description of the operations and procedures of DTC, Euroclear and Clearstream are provided solely as a matter of convenience. These operations and procedures are solely within the control
of the respective settlement systems and are subject to changes by them. Boyd Gaming takes no responsibility for these operations and procedures and urges investors to contact the system or their participants directly to discuss these matters.
However, Boyd Gaming will remain responsible for any actions DTC, Euroclear and Clearstream and their respective participants take in accordance with instructions provided by Boyd Gaming.
DTC has advised Boyd Gaming that DTC is a limited-purpose trust company created to hold securities for the Participants and to facilitate
the clearance and settlement of transactions in those securities between Participants through electronic book-entry changes in accounts of its Participants. The Participants include securities brokers and dealers (including the underwriters), banks,
trust companies, clearing corporations and certain other organizations. Access to DTCs system is also available to other entities such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with
a Participant, either directly or indirectly (collectively, the Indirect Participants). Persons who are not Participants may beneficially own securities held by or on behalf of DTC only through the Participants or the Indirect
Participants. The ownership interests in, and transfers of ownership interests in, each security held by or on behalf of DTC are recorded on the records of the Participants and Indirect Participants.
DTC has also advised Boyd Gaming that, pursuant to procedures established by it:
(1) upon deposit of the Global Notes, DTC will credit the accounts of Participants designated by the Initial Purchasers
with portions of the principal amount of the Global Notes; and
(2) ownership of these interests in the Global
Notes will be shown on, and the transfer of ownership of these interests will be effected only through, records maintained by DTC (with respect to the Participants) or by the Participants and the Indirect Participants (with respect to other owners
of beneficial interest in the Global Notes).
Investors who are Participants in DTCs system may hold their interests
therein directly through DTC. Investors who are not Participants may hold their interests therein indirectly through organizations (including Euroclear and Clearstream) which are Participants in such system. All interests in a Global Note, including
those held through Euroclear or Clearstream, may be subject to the procedures and requirements of DTC. Those interests held through Euroclear or Clearstream may also be subject to the procedures and requirements of such systems. Prospective
purchasers are advised that the laws of some states require that certain Persons take physical delivery in definitive form of securities that they own. Consequently, the ability to transfer beneficial interests in a Global Note to such Persons will
be limited to that extent. Because DTC can act only on behalf of Participants, which in turn act on behalf of Indirect Participants, the ability of a Person having beneficial interests in a Global Note to pledge such interests to Persons that do not
participate in the DTC system, or otherwise take actions in respect of such interests, may be affected by the lack of a physical certificate evidencing such interests.
Payments in respect of the principal of, and interest, Additional Interest and premium, if any, on, a Global Note registered in the name of DTC or its nominee will be payable to DTC in its capacity as the
registered Holder under the indenture. Under the terms of the indenture, Boyd Gaming and the Trustee will treat the Persons in whose names the notes, including the Global Notes, are registered as the owners of the notes for the purpose of receiving
payments and for all other purposes. Consequently, neither Boyd Gaming, the Trustee nor any agent of Boyd Gaming or the Trustee has or will have any responsibility or liability for:
(1) any aspect of DTCs records or any Participants or Indirect Participants records relating to or
payments made on account of beneficial ownership interest in the Global Notes or for maintaining, supervising or reviewing any of DTCs records or any Participants or Indirect Participants records relating to the beneficial
ownership interests in the Global Notes; or
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(2) any other matter relating to the actions and practices of DTC or any of
its Participants or Indirect Participants.
DTC has advised Boyd Gaming that its current practice, upon receipt of any payment
in respect of securities such as the notes (including principal and interest), is to credit the accounts of the relevant Participants with the payment on the payment date unless DTC has reason to believe it will not receive payment on such payment
date. Each relevant Participant is credited with an amount proportionate to its beneficial ownership of an interest in the principal amount of the relevant security as shown on the records of DTC. Payments by the Participants and the Indirect
Participants to the beneficial owners of notes will be governed by standing instructions and customary practices and will be the responsibility of the Participants or the Indirect Participants and will not be the responsibility of DTC, the Trustee
or Boyd Gaming. Neither Boyd Gaming nor the Trustee will be liable for any delay by DTC or any of its Participants in identifying the beneficial owners of the notes, and Boyd Gaming and the Trustee may conclusively rely on and will be protected in
relying on instructions from DTC or its nominee for all purposes.
Transfers between Participants in DTC will be effected in
accordance with DTCs procedures, and will be settled in same-day funds, and transfers between participants in Euroclear and Clearstream will be effected in accordance with their respective rules and operating procedures.
Cross-market transfers between the Participants in DTC, on the one hand, and Euroclear or Clearstream participants, on the other hand,
will be effected through DTC in accordance with DTCs rules on behalf of Euroclear or Clearstream, as the case may be, by its respective depositary; however, such cross-market transactions will require delivery of instructions to Euroclear or
Clearstream, as the case may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (Brussels time) of such system. Euroclear or Clearstream, as the case may be, will, if the
transaction meets its settlement requirements, deliver instructions to its respective depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the relevant Global Note in DTC, and making or receiving
payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Euroclear participants and Clearstream participants may not deliver instructions directly to the depositories for Euroclear or Clearstream.
DTC has advised Boyd Gaming that it will take any action permitted to be taken by a Holder of notes only at the direction of one or more
Participants to whose account DTC has credited the interests in the Global Notes and only in respect of such portion of the aggregate principal amount of the notes as to which such Participant or Participants has or have given such direction.
However, if there is an Event of Default under the notes, DTC, Euroclear and Clearstream each reserves the right to exchange the Global Notes for legended notes in certificated form, and to distribute such Notes to its Participants.
Although DTC, Euroclear and Clearstream have agreed to the foregoing procedures to facilitate transfers of interests in the Global Notes
among participants in DTC, Euroclear and Clearstream, they are under no obligation to perform or to continue to perform such procedures, and may discontinue such procedures at any time. Neither Boyd Gaming nor the Trustee nor any of their respective
agents will have any responsibility for the performance by DTC, Euroclear or Clearstream or their respective participants or indirect participants of their respective obligations under the rules and procedures governing their operations.
Exchange of Global Notes for Certificated Notes
A Global Note is exchangeable for Certificated Notes if:
(1) Boyd
Gaming delivers to the Trustee notice from DTC that (a) it is unwilling or unable to continue as depositary for the Global Notes or (b) it has ceased to be a clearing agency registered under the Exchange Act and, in either case, Boyd
Gaming fails to appoint a successor depositary; or
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(2) there has occurred and is continuing an Event of Default with respect to
the notes;
then, upon surrender by a Holder of its Global Note, notes in such form will be issued to each Person that the Holder of the
Global Note and DTC identify as being the beneficial owner of the related notes. In addition, beneficial interests in Global Notes may be exchanged for Certificated Notes upon prior written notice given to the Trustee by or on behalf of DTC in
accordance with the indenture. In all cases, Certificated Notes delivered in exchange for any Global Note or beneficial interest in Global Notes will be registered in the names, and issued in any approved denominations, requested by or on behalf of
the depositary (in accordance with its customary procedures).
Neither Boyd Gaming nor the Trustee will be liable for any
delay by the Global Note Holder or DTC in identifying the beneficial owners of notes and Boyd Gaming and the Trustee may conclusively rely on, and will be protected in relying on, instructions from the Holder of the Global Note or DTC for all
purposes.
Exchange of Certificated Notes for Global Notes
Certificated Notes may not be exchanged for beneficial interests in any Global Note unless the transferor complies with the applicable provisions in the indenture.
Same-day Settlement and Payment
Boyd Gaming will make, or cause to be made, payments in respect of the notes represented by the Global Notes (including principal, premium, if any, interest and Additional Interest, if any) by wire
transfer of immediately available funds to the accounts specified by the Holder of the Global Note. All other payments on the notes will be made at the office or agency of the paying agent and registrar within the United States unless Boyd Gaming
elects to make payments by check mailed to the Holders at their address set forth in the register of Holders. The notes represented by the Global Notes are expected to be eligible to trade in DTCs Same-Day Funds Settlement System, and any
permitted secondary market trading activity in such notes will, therefore, be required by DTC to be settled in immediately available funds.
Because of time zone differences, the securities account of a Euroclear or Clearstream participant purchasing an interest in a Global Note from a Participant in DTC will be credited, and any such
crediting will be reported to the relevant Euroclear or Clearstream participant, during the securities settlement processing day (which must be a business day for Euroclear and Clearstream) immediately following the settlement date of DTC. DTC has
advised Boyd Gaming that cash received in Euroclear or Clearstream as a result of sales of interests in a Global Note by or through a Euroclear or Clearstream participant to a Participant in DTC will be received with value on the settlement date of
DTC but will be available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or Clearstream following DTCs settlement date.
Governing Law
The indenture provides that it and the notes are governed
by, and construed in accordance with, the laws of the State of New York.
Certain Definitions
Set forth below are certain defined terms used in the indenture. Reference is made to the indenture for a full disclosure of all such
terms, as well as any other capitalized terms used herein for which no definition is provided.
Acquired Debt
means, with respect to any specified Person, (1) Indebtedness of another Person and any of such other Persons Subsidiaries existing at the time such other Person becomes a Subsidiary of the specified
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Person or at the time it merges or consolidates with the specified Person or any of the specified Persons Subsidiaries or is assumed by the specified Person or any Subsidiary of the
specified Person in connection with the acquisition of assets from such other Person and (2) Indebtedness secured by a Lien encumbering any asset acquired by the specified Person, in each case, to the extent that such Indebtedness is not
Incurred by the specified Person or any Subsidiary of the specified Person or such other Person in connection with, or in anticipation or contemplation of, such other Person becoming a Subsidiary of the specified Person or such acquisition, merger
or consolidation.
Additional Assets means:
(1) any Property (other than cash, cash equivalents or securities) to be owned by Boyd Gaming or a Restricted Subsidiary
and used in a Related Business;
(2) the costs of improving, restoring, replacing or developing any Property
owned by Boyd Gaming or a Restricted Subsidiary which is used or usable in a Related Business; or
(3)
Investments in any other Person engaged primarily in a Related Business (including the acquisition from third parties of Capital Stock of such Person) as a result of which such other Person becomes a Restricted Subsidiary and satisfies the
requirements for a Restricted Subsidiary set forth below in the definition of Restricted Subsidiary.
Additional Interest means all amounts, if any, payable (1) pursuant to the provisions relating to additional interest
described above under the heading Events of Default and Remedies as the sole remedy for an Event of Default relating to the failure to comply with the reporting obligations described above under the heading
Reports, and for any failure to comply with the requirements of Section 314(a) of the Trust Indenture Act and/or (2) pursuant to the provisions relating to additional interest described under the heading The
Exchange OfferAdditional Interest and provided for in the Registration Rights Agreement.
Affiliate
means, with respect to any Person, a Person:
(1) which directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common control with, such Person;
(2) which directly
or indirectly through one or more intermediaries beneficially owns or holds 10% or more of any class of the Voting Stock of such Person (or a 10% or greater equity interest in a Person which is not a corporation); or
(3) of which 10% or more of any class of the Voting Stock (or, in the case of a Person which is not a corporation, 10% or
more of the equity interest) is beneficially owned or held directly or indirectly through one or more intermediaries by such Person.
The term control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
Applicable Premium means, with respect to any note on any redemption date,
the greater of:
(1) 1.0% of the principal amount of the note; or
(2) the excess of:
(a) the present value at such redemption date of (i) the redemption price of the Note at April 1, 2021 (such redemption price being set forth in the table appearing under the caption
Optional Redemption) plus (ii) all required interest payments due on the Note through April 1, 2021 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate
as of such redemption date plus 50 basis points; over
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(b) the principal amount of the Note, if greater.
Applicable Premium shall be determined by Boyd Gaming, and the Trustee shall have no obligation to confirm or verify such determination.
Asset Sale means the sale, conveyance, transfer, lease or other disposition, whether in a single transaction or a
series of related transactions (including, without limitation, dispositions pursuant to Sale/Leaseback Transactions or pursuant to the merger of Boyd Gaming or any of its Restricted Subsidiaries with or into any person other than Boyd Gaming or one
of its Restricted Subsidiaries), by Boyd Gaming or one of its Restricted Subsidiaries to any Person other than Boyd Gaming or one of its Restricted Subsidiaries of:
(1) any of the Capital Stock or other ownership interests of any Restricted Subsidiary of Boyd Gaming (other than
directors qualifying shares or shares required by law to be held by a Person other than Boyd Gaming or a Restricted Subsidiary); or
(2) any other Property of Boyd Gaming or any Property of its Restricted Subsidiaries, in each case not in the ordinary course of business of Boyd Gaming or such Restricted Subsidiary.
Notwithstanding the foregoing, the following items will not be deemed to be Asset Sales:
(A) any single transaction or series of related transactions that involves assets having a Fair Market Value of $100.0
million or less;
(B) any issuance or other such disposition of Capital Stock or other ownership interests of
any Restricted Subsidiary to Boyd Gaming or another Restricted Subsidiary;
(C) any such disposition of
property between or among Boyd Gaming and its Restricted Subsidiaries;
(D) the sale or other disposition of
cash or Temporary Cash Investments;
(E) any exchange of like Property pursuant to Section 1031 of the
Internal Revenue Code of 1986, as amended, for use in a Related Business;
(F) a Restricted Payment that is
permitted by the covenant described above under the caption Certain CovenantsLimitation on Restricted Payments or a Permitted Investment;
(G) the disposition of all or substantially all of the assets of Boyd Gaming in a manner permitted pursuant to the
provisions described under Certain CovenantsMerger, Consolidation and Sale of Assets or any disposition that constitutes a Change of Control;
(H) the sale or discount, in each case without recourse (direct or indirect), of accounts receivable arising in the
ordinary course of business of Boyd Gaming or such Restricted Subsidiary, as the case may be, but only in connection with the compromise or collection thereof;
(I) sales or grants of licenses or sublicenses to use trademarks, know-how, patents and any other intellectual property or intellectual property rights to the extent not materially interfering with the
business of Boyd Gaming and its Restricted Subsidiaries;
(J) dispositions that occur in the ordinary course of
Boyd Gamings or a Restricted Subsidiarys business in connection with Permitted Liens;
(K) any sale
of inventory or other assets or any disposition of any obsolete, damaged or worn out property, equipment or assets (including the abandonment or other disposition of intellectual property that is, in the reasonable judgment of the Board of
Directors, no longer economically practicable to maintain or useful in the conduct of the business of Boyd Gaming and its Restricted Subsidiaries);
(L) the disposition of receivables in connection with the compromise, settlement or collection thereof;
(M) foreclosures, condemnation or any similar action on assets or the granting of Liens permitted by the covenant described above under the caption Certain CovenantsLimitation on
Liens; or
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(N) any surrender or waiver of contractual rights or the settlement,
release, recovery on or surrender of contract, tort or other claims of any kind that occur in the ordinary course of Boyd Gamings or any Restricted Subsidiarys business.
Attributable Indebtedness means Indebtedness deemed to be Incurred in respect of a Sale/Leaseback Transaction and shall be,
at the date of determination, the present value (discounted at the actual rate of interest implicit in such transaction, compounded annually), of the total obligations of the lessee for rental payments during the remaining term of the lease included
in such Sale/Leaseback Transaction (including any period for which such lease has been extended).
Board of
Directors means the Board of Directors of Boyd Gaming or any committee thereof duly authorized to act on behalf of such Board.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant Secretary of Boyd Gaming to have been duly adopted by the Board of Directors, to be in full force and
effect on the date of such certification and delivered to the Trustee.
Borgata Joint Venture means Marina
District Development Holding Co., LLC and its successors and assigns.
Boyd Gaming Family means William S. Boyd,
any direct descendant or spouse of such person, or any direct descendant of such spouse, and any trust or other estate in which each person who has a beneficial interest, directly or indirectly through one or more intermediaries, in Capital Stock of
Boyd Gaming is one of the foregoing persons.
Capital Lease Obligations means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP and the amount of such Indebtedness shall be the capitalized amount of such obligations determined in accordance with GAAP. For
purposes of Certain CovenantsLimitation on Liens, Capital Lease Obligations shall be deemed secured by a Lien on the Property being leased. For the avoidance of doubt, any lease obligation that would not be required to be
classified and accounted for as a capital lease obligation under GAAP as in effect as of the Issue Date shall not be treated as a Capital Lease Obligation even if such lease obligation would be required to be classified and accounted for as a
capital lease obligation under generally accepted accounting principles in the United States as in effect at any time after the Issue Date, whether such lease obligation was entered into before or after the Issue Date.
Capital Stock means, with respect to any Person, any and all shares or other equivalents (however designated) of corporate
stock, partnership interests or any other participation, right, warrants, options or other interest in the nature of an equity interest in such Person, but excluding any debt security convertible or exchangeable into such equity interest.
A Change of Control shall be deemed to occur if:
(1) any person or group (within the meaning of Sections 13(d)(3) and 14(d)(2) of the Exchange Act
or any successor provision to either of the foregoing, including any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than the Permitted Holders and
other than a Restricted Subsidiary, becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act, except that a Person shall be deemed to have beneficial ownership of all shares that any such person has the
right to acquire, whether such right is exercisable immediately or only after the passage of time) of 50% or more of the total voting power of all classes of the Voting Stock of Boyd Gaming and/or warrants or options to acquire such Voting Stock,
calculated on a fully diluted basis; provided that for purposes of this clause (1), the members of the Boyd Gaming Family shall be deemed to beneficially own any Voting Stock of a corporation held by any other
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corporation (the parent corporation) so long as the members of the Boyd Gaming Family beneficially own (as so defined), directly or indirectly through one or more intermediaries, in
the aggregate 50% or more of the total voting power of the Voting Stock of the parent corporation;
(2) the
sale, lease, conveyance or other transfer of all or substantially all of the Property of Boyd Gaming (other than to any Restricted Subsidiary), determined on a consolidated basis, shall have occurred;
(3) the stockholders of Boyd Gaming shall have approved any plan of liquidation or dissolution of Boyd Gaming; or
(4) Boyd Gaming consolidates with or merges into another Person or any Person consolidates with or merges into
Boyd Gaming in any such event pursuant to a transaction in which the outstanding Voting Stock of Boyd Gaming is reclassified into or exchanged for cash, securities or other property, other than any such transaction where:
(a) the outstanding Voting Stock of Boyd Gaming is reclassified into or exchanged for Voting Stock of the surviving
corporation that is Capital Stock; and
(b) the holders of the Voting Stock of Boyd Gaming immediately prior to
such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the surviving corporation immediately after such transaction in substantially the same proportion as before the transaction.
Change of Control Time means the earlier of the public announcement of (1) a Change of Control or (2) (if
applicable) our intention to effect a Change of Control.
Change of Control Triggering Event means both a Change
of Control and a Rating Decline;
provided
,
however
, that a Change of Control Triggering Event shall not be deemed to have occurred if (i) at the Change of Control Time the notes have Investment Grade Status and (ii) Boyd
Gaming effects defeasance of the notes pursuant to the provisions of the indenture prior to a Rating Decline.
Consolidated EBITDA means, for any period, without duplication, the sum of:
(1) Consolidated Net Income;
(2) to the extent Consolidated Net Income has been reduced thereby: (A) Consolidated Fixed Charges; (B) provisions for taxes based on income; (C) consolidated depreciation expense;
(D) consolidated amortization expense; (E) all preopening expenses paid or accrued; and (F) other noncash items reducing Consolidated Net Income, and minus other noncash items increasing Consolidated Net Income; and
(3) an estimate of the amount (determined in good faith by Boyd Gaming) of business interruption insurance expected to be
collected with respect to such period, whether or not (A) any applicable insurance carrier has designated all or any portion of any expected recovery as attributable to business interruption coverage as opposed to other types of coverage, and
(B) the affected operations are classified as discontinued operations or any such operations have been or are being disposed of, minus any business interruption insurance received or expected to be received and included in the calculation of
Consolidated Net Income for such period;
all as determined on a consolidated basis for Boyd Gaming and its Restricted Subsidiaries in
conformity with GAAP; provided that, (i) from and after the date Boyd Gaming and any of its Restricted Subsidiaries enters into any management agreement pursuant to which such Person is paid management fees, such management fees shall be
annualized, and (ii) with respect to each Project, from and after the date of any Project Opening, that portion of the Consolidated EBITDA which is attributable to the applicable Project owned and operated by Boyd Gaming or any of its
Restricted Subsidiaries shall be annualized. In computing such annualization, for the period from and after entering into any management agreement or from and after any Project Opening, as applicable, until the end of the fourth full fiscal quarter
thereafter shall be treated as one accounting period and annualized.
Consolidated Fixed Charge Coverage Ratio
means the ratio of Consolidated EBITDA during the Reference Period to the aggregate amount of Consolidated Fixed Charges during the Reference Period.
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Consolidated Fixed Charges means, for any period, the total interest expense of
Boyd Gaming and its Restricted Subsidiaries including:
(1) the interest component of Capital Lease
Obligations, which shall be deemed to accrue at any interest rate reasonably determined by Boyd Gaming to be the rate of interest implicit in such Capital Lease Obligations,
(2) one-third of the rental expense attributable to operating leases,
(3) amortization of Indebtedness discount and commissions, discounts and other similar fees and charges owed with respect
to Indebtedness,
(4) commissions, discounts and other fees and charges owed with respect to letters of credit
and bankers acceptance financing,
(5) net costs pursuant to Interest Rate Agreements,
(6) dividends on all Preferred Stock of Restricted Subsidiaries held by Persons other than Boyd Gaming or a Restricted
Subsidiary,
(7) interest attributable to the Indebtedness of any other Person for which Boyd Gaming or any
Restricted Subsidiary is responsible or liable as obligor, guarantor or otherwise; plus
(8) the product of:
(a) dividends on all Preferred Stock of Restricted Subsidiaries held by Persons other than Boyd Gaming or a
Restricted Subsidiary and any dividend or distribution, whether in cash, Property or securities, on Disqualified Stock of Boyd Gaming (other than dividends paid in Capital Stock that is not Disqualified Stock); times
(b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal,
state and local statutory income tax rate of such Person, expressed as a decimal, in each case, on a consolidated basis and in accordance with GAAP.
minus interest income. In addition, Consolidated Fixed Charges shall not include (w) non-cash interest expense, (x) deferred financing costs amortized or written off, and premiums and prepayment
penalties and other fees, premiums or reserves paid in connection with any refinancing or repayment of Indebtedness, any amendment, supplement, consent or waiver in connection with any Indebtedness, or any acquisition, disposition or financing;
(y) any expensing of commitment and other financing fees or (z) write-offs relating to termination of Interest Rate Agreements. For the avoidance of doubt and consistent with GAAP, Consolidated Fixed Charges shall not include any
capitalized interest.
Consolidated Net Income means for any period, the net income (loss) of Boyd Gaming and its
Subsidiaries determined in accordance with GAAP;
provided
,
however
, that the following items shall be excluded from the computation of Consolidated Net Income:
(1) any net income (loss) of any Person if such Person is not a Restricted Subsidiary, except that, subject to the
limitations contained in (3) below:
(a) the net income (or, if applicable, Boyd Gamings equity in
the net income) of any such Person for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to Boyd Gaming or a Restricted Subsidiary as a dividend or
other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in clause (2) below); and
(b) Boyd Gamings equity in a net loss of any such Person (other than an Unrestricted Subsidiary) for such period
shall be included in determining such Consolidated Net Income;
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(2) any net income (loss) of any Restricted Subsidiary if such Subsidiary is
subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to Boyd Gaming, except that:
(a) subject to the limitations contained in (3) below, Boyd Gamings equity in the net income of any such
Restricted Subsidiary for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash that could have been distributed by such Restricted Subsidiary during such period to Boyd Gaming or another Restricted
Subsidiary as a dividend (subject, in the case of a dividend to another Restricted Subsidiary, to the limitation contained in this clause); and
(b) Boyd Gamings equity in a net loss of any such Restricted Subsidiary for such period shall be included in determining such Consolidated Net Income;
(3) any gain or loss realized upon the sale or other disposition of any Property of Boyd Gaming or its consolidated
Subsidiaries (including pursuant to any Sale/Leaseback Transaction) which is not sold or otherwise disposed of in the ordinary course of business and any gain or loss realized upon the sale or other disposition of any Capital Stock of any Person;
(4) accruals and reserves that are established or adjusted, in each case within 12 months of the subject
transaction, as a result of any acquisition, Investment, asset disposition, write down or write off (including the related tax benefit) in accordance with GAAP (including any adjustments of estimated payouts on earn-outs);
(5) items classified as extraordinary or any non-cash item classified as nonrecurring;
(6) any non-cash charges related to fair value adjustments;
(7) expenses or charges relating to the amortization of intangibles;
(8) deferred financing costs amortized or written off, and premiums and prepayment penalties and any gain or loss realized
in connection with any refinancing or repayment of Indebtedness, any amendment, supplement, consent or waiver in connection with any Indebtedness, or any acquisition, disposition or financing; and
(9) the cumulative effect of a change in accounting principles.
For purposes of calculating Consolidated Net Income, any non-recurring charges or expenses of such Person or of a company or business
acquired by such Person (in each case, including but not limited to those relating to severance, relocation costs and one time compensation charges and any charges or expenses in connection with conforming accounting policies or reaudited, combining
or restating financial information), in each case, incurred in connection with or as a result of the purchase or acquisition of such acquired company or business by such Person shall be added to the Consolidated Net Income of such Person, to the
extent any such charges or expenses were deducted in computing such Consolidated Net Income of such Person.
Consolidated Total Assets of any Person as of any date means the total assets of such Person and its Restricted Subsidiaries
as of the most recent fiscal quarter end for which a consolidated balance sheet of such Person and its Restricted Subsidiaries is available, calculated on a consolidated basis in accordance with GAAP.
Core Business means (1) the gaming, card club, racing, sports, entertainment, leisure, amusement, lodging, restaurant,
retail operations, service station operations, riverboat operations, real estate development and all other businesses and activities necessary for or reasonably related or incident thereto, including, without limitation, related acquisition,
construction, development or operation of related truck stop, transportation, retail and other facilities designed to enhance any of the foregoing and online or internet gaming, and (2) any of the types of preexisting businesses being operated
on land acquired (whether by purchase, lease or otherwise) by Boyd Gaming or any Restricted Subsidiary, or similar types of businesses conducted by Boyd Gaming or such Restricted Subsidiary after such acquisition of land, and all other businesses
and activities necessary for or
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reasonably related or incident thereto; provided that such land was acquired by Boyd Gaming or such Restricted Subsidiary for the purpose, determined in good faith by Boyd Gaming, of ultimately
conducting a business or activity described in clause (1) above at some time in the future.
Credit Facility
means (1) the Third Amended and Restated Credit Agreement, dated as of August 14, 2013, among Boyd Gaming, the financial institutions named therein, Bank of America, National Association, as administrative agent and letter of credit
issuer, and Wells Fargo Bank, N.A., as swing line lender, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or
otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or indenture or
indentures or any successor or replacement agreement or agreements or indenture or indentures or increasing or decreasing the amount loaned or issued thereunder or altering the maturity thereof and (2) whether or not the Credit Agreement
referred to in clause (1) remains outstanding, if designated by Boyd Gaming to be included in the definition of Credit Facility, one or more (A) debt facilities or commercial paper facilities, providing for revolving credit
loans, term loans, receivables financing (including through the sale of receivables to lenders or to special purpose entities formed to borrow from lenders against such receivables) or letters of credit, (B) debt securities, indentures or other
forms of debt financing (including convertible or exchangeable debt instruments or bank guarantees or bankers acceptances), or (C) instruments or agreements evidencing any other Indebtedness (including without limitation any
Sale/Leaseback Transaction), in each case, with the same or different borrowers or issuers and, in each case, as amended, supplemented, modified, extended, restructured, renewed, refinanced, restated, replaced or refunded in whole or in part from
time to time.
Currency Exchange Protection Agreement means, in respect of a Person, any foreign exchange
contract, currency swap agreement, currency option or other similar agreement or arrangement designed to protect such Person against fluctuations in currency exchange rates.
Default means any event which is, or after notice or passage of time or both would be, an Event of Default.
Development Services means, with respect to any Qualified Facility, the provision (through retained professionals or otherwise) of development, design or construction services with respect to
such Qualified Facility.
Disqualified Stock of a Person means any Capital Stock of such Person:
(1) that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or
otherwise
(a) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise;
(b) is or may become redeemable or repurchaseable at the option of the holder thereof, in whole or in part; or
(c) is convertible or exchangeable or exercisable for Indebtedness; and
(2) as to which the maturity, mandatory redemption, conversion or exchange or redemption at the option of the holder
thereof occurs, or may occur,
in the case of each of clauses (1) or (2) on or prior to the first anniversary of the Stated Maturity
of the notes;
provided
,
however
, that such Capital Stock of Boyd Gaming or any of its Subsidiaries shall not constitute Disqualified Stock if it is redeemable prior to the first anniversary of the Stated Maturity of the notes only if:
(A) the holder or a beneficial owner of such Capital Stock is required to qualify under the Gaming Laws and
does not so qualify; or
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(B) the Board of Directors determines in its reasonable, good faith
judgment, as evidenced by a Board Resolution, that as a result of a holder or beneficial owner owning such Capital Stock, Boyd Gaming or any of its Subsidiaries has lost or may lose any Gaming License, which if lost or not reinstated, as the case
may be, would have a material adverse effect on the business of Boyd Gaming and its Subsidiaries, taken as a whole, or would restrict the ability of Boyd Gaming or any of its Subsidiaries to conduct business in any gaming jurisdiction.
Domestic Subsidiary means any Restricted Subsidiary of Boyd Gaming that was formed under the laws of the United States of
America or any state of the United States of America or the District of Columbia.
Event of Loss means, with
respect to any Property with a Fair Market Value of more than $100.0 million, any loss, destruction or damage of such Property, or any condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, of such Property, or
confiscation or requisition of the use of such Property.
Exchange Act means the Securities Exchange Act of 1934,
as amended.
Existing Indentures means collectively, (1) the Indenture dated as of June 8, 2012 among
Boyd Gaming, the Guarantors party thereto and U.S. Bank National Association, as trustee, relating to the 9.00% senior notes due 2020; (2) the Indenture dated as of May 21, 2015 among Boyd Gaming, the Guarantors party thereto and
Wilmington Trust, National Association as trustee and (3) the First Supplemental Indenture dated as of May 21, 2015 among Boyd Gaming, the Guarantors party thereto and Wilmington Trust, National Association as trustee, related to the
6.875% senior notes due 2023, each as in effect on the Issue Date and each as amended, modified or supplemented.
Fair
Market Value means with respect to any Property, the price which could be negotiated in an arms- length free market transaction, between a willing seller and a willing buyer, neither of whom is under undue pressure or compulsion to
complete the transaction. Fair Market Value will be determined, except as otherwise provided:
(1) if such
Property has a Fair Market Value of $25.0 million or less, by any Officer of Boyd Gaming; or
(2) if such
Property has a Fair Market Value in excess of $25.0 million, by a majority of the Board of Directors and evidenced by a Board Resolution, dated within 30 days of the relevant transaction (or the date of the written agreement with respect to such
transaction).
GAAP means accounting principles generally accepted in the United States of America in effect on
the date of the indenture.
Gaming Authority means any of the Nevada Gaming Commission, the Nevada Gaming Control
Board, the Louisiana Gaming Control Board, Louisiana State Racing Commission, the Mississippi Gaming Commission, the New Jersey Casino Control Commission, the New Jersey Division of Gaming Enforcement, the Illinois Gaming Board, the Indiana Gaming
Commission and any other agency (including, without limitation, any agency established by a federally-recognized Indian tribe to regulate gaming on such tribes reservation), authority, board, bureau, commission, department, office or
instrumentality of any nature whatsoever which has, or may at any time after the date of the indenture have, jurisdiction over the gaming activities of Boyd Gaming or any of its Subsidiaries or any successor to such authority.
Gaming Facility means any gaming or pari-mutuel wagering establishment and other Property or assets directly ancillary
thereto or used in connection therewith, including any building, restaurant, hotel, theater, parking facilities, gas stations, retail shops, convenience stores, spa, land, golf courses, hunting facilities, sporting
105
clay courses and other recreation and entertainment facilities, vessel, barge, ship and equipment or 100% of the equity interest of a Person the primary business of which is ownership and
operation of any of the foregoing.
Gaming Laws means the gaming laws of a jurisdiction or jurisdictions to which
Boyd Gaming or any of its Subsidiaries is, or may at any time after the date of the indenture be, subject.
Gaming
License means any license, permit, franchise or other authorization from any governmental authority required on the date of the indenture or at any time thereafter to own, lease, operate or otherwise conduct the gaming business of Boyd Gaming
and its Subsidiaries, including all licenses granted under Gaming Laws and other Legal Requirements.
Guarantee
means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or indirect, contingent or otherwise, of such first Person:
(1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person
(whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise); or
(2) entered into for the purpose of assuring in any other manner the obligee of such Indebtedness or other obligation of
the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term
Guarantee shall not include (i) endorsements for collection or deposit in the ordinary course of business; or (ii) any obligation in the nature of a completion guaranty which is limited solely to an obligation to complete the
development, construction or opening of any new Gaming Facility entered into on behalf of any Person in which a Qualified Investment has been made by Boyd Gaming or any Restricted Subsidiary. The term Guarantee used as a verb has a
corresponding meaning.
Guarantors means any Subsidiary of Boyd Gaming that gives a Note Guarantee in accordance
with the provisions of the indenture, and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of the indenture.
Holder means a Person in whose name a Note is registered.
Incur means, with respect to any Indebtedness or other obligation of any Person to create, issue, incur (by conversion,
exchange or otherwise), extend, assume, Guarantee or become liable, in respect of such Indebtedness or other obligation or the recording, as required pursuant to GAAP or otherwise, of any such Indebtedness or obligation on the consolidated balance
sheet of such Person including by merger or operation of law (and Incurrence, Incurred, Incurrable and Incurring shall have meanings correlative to the foregoing).
Indebtedness means (without duplication), with respect to any Person, any indebtedness, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the recourse of the lender is to the whole of the Property of such Person or only to a portion thereof), or the principal amount of such indebtedness evidenced by bonds, notes, debentures or
similar instruments or representing the balance deferred and unpaid of the purchase price of any property (excluding any balances that constitute customer advance payments and deposits, accounts payable or trade payables, and other accrued
liabilities arising in the ordinary course of business) if and to the extent any of the foregoing indebtedness would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP, and shall also include, to the extent
not otherwise included:
(1) any Capital Lease Obligations;
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(2) Indebtedness of other Persons secured by a Lien to which the Property
owned or held by such Person is subject, whether or not the obligation or obligations secured thereby shall have been assumed (the amount of such Indebtedness being deemed to be the lesser of the value of such Property or the amount of the
Indebtedness so secured);
(3) Guarantees of Indebtedness of other Persons;
(4) any Disqualified Stock;
(5) any Attributable Indebtedness;
(6) all obligations of such
Person in respect of letters of credit, bankers acceptances or other similar instruments or credit transactions issued for the account of such Person (including reimbursement obligations with respect thereto), other than obligations with
respect to letters of credit securing obligations (other than obligations described in this definition) of such Person to the extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later
than the third business day following receipt by such Person of a demand for reimbursement following payment on the letter of credit;
(7) in the case of Boyd Gaming, Preferred Stock of its Restricted Subsidiaries; and
(8) obligations pursuant to any Interest Rate Agreement or Currency Exchange Protection Agreement.
Notwithstanding the foregoing, Indebtedness shall not include (i) any pay-in-kind interest or any interest, accrued interest or earn-out obligations or other contingent consideration until due and
payable or (ii) any indebtedness of (x) Diamond Jo, LLC under that certain Minimum Assessment Agreement, dated as of October 1, 2007, by and among the City of Dubuque, Iowa, Diamond Jo, LLC and the City Assessor of the City of
Dubuque, Iowa, or (y) Kansas Star Casino, LLC under that certain Developers Agreement, dated as of March 7, 2011, by and between Kansas Star Casino, LLC and the City of Mulvane, Kansas, in each case as amended, renewed, repurchased,
extended, substituted, refinanced or replaced from time to time so long as the principal amount (or accreted value, if applicable) of such indebtedness does not exceed the principal amount (or accreted value, if applicable) of the indebtedness
amended, renewed, repurchased, extended, substituted, refinanced or replaced (plus all accrued interest on the indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith). For purposes of this
definition, the maximum fixed repurchase price of any Disqualified Stock or Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Stock as if such
Disqualified Stock or Preferred Stock were repurchased on any date on which Indebtedness shall be required to be determined pursuant to the indenture;
provided
,
however
, that if such Disqualified Stock or Preferred Stock is not then
permitted to be repurchased, the repurchase price shall be the book value of such Disqualified Stock or Preferred Stock. The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional
obligations as described above and the maximum liability of any other obligations described in clauses (1) through (8) above in respect thereof at such date.
Independent Advisor means, an investment banking firm of national standing with non-investment grade debt underwriting experience or any accounting firm or third party appraiser of national
standing; provided, however, that any such firm or appraiser is not an Affiliate of Boyd Gaming.
Interest Rate
Agreement means, for any Person, any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreement or arrangement.
Investment by any Person means any direct or indirect loan, advance or other extension of credit or capital contribution (by means of transfers of cash or other Property to others or payments
for Property or services for the account or use of others), in connection with the performance of obligations under any completion guaranty or otherwise, to, or Incurrence of a Guarantee of any obligation of, or purchase or acquisition of Capital
Stock, bonds, notes, debentures or other securities or evidence of Indebtedness issued by, any other Person, including
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the designation by the Board of Directors of a Person to be an Unrestricted Subsidiary. The amount of any Investment shall be the original cost of such Investment, plus the cost of all additions
thereto, and minus the amount of any portion of such Investment repaid to the Person making such Investment in cash as a repayment of principal or a return of capital, as the case may be, but without any other adjustments for increases or decreases
in value, write-ups, write-downs or write-offs with respect to such Investment. In determining the amount of any Investment in respect of any Property other than cash, such Property shall be valued at its Fair Market Value at the time of such
Investment. Notwithstanding the foregoing, the purchase or acquisition of any securities, Indebtedness or Additional Assets of any other Person solely with Capital Stock (other than Disqualified Stock) shall not be deemed to be an Investment.
Investment Grade Rating means a rating equal to or higher than Baa3 (or the equivalent) by Moodys (or any
successor to the rating agency business thereof) and BBB- (or the equivalent) by S&P (or any successor to the rating agency business thereof).
Investment Grade Status means any time at which the ratings of the notes by each of Moodys (or any successor to the rating agency business thereof) and S&P (or any successor to the
rating agency business thereof) are Investment Grade Ratings.
Issue Date means the date on which the notes are
initially issued.
Legal Requirements means all laws, statutes and ordinances and all rules, orders, rulings,
regulations, directives, decrees, injunctions and requirements of all governmental authorities, that are now or may hereafter be in existence, and that may be applicable to Boyd Gaming or any Subsidiary or Affiliate thereof or the Trustee (including
building codes, zoning and environmental laws, regulations and ordinances and Gaming Laws), as modified by any variances, special use permits, waivers, exceptions or other exemptions which may from time to time be applicable.
Lien means with respect to any Property of any Person, any mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, security interest, lien, charge, easement (other than any easement not materially impairing usefulness or marketability), encumbrance, preference, priority, or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such Property (including any Capital Lease Obligation, conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing). Any Sale/Leaseback Transaction
shall be deemed to constitute a Lien on the Property which is the subject of such Sale/Leaseback Transaction securing the Attributable Indebtedness represented thereby.
Moodys means Moodys Investors Service, Inc.
Net
Cash Proceeds with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale, net of attorneys fees, accountants fees, underwriters or placement agents fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in connection with such issuance or sale and net of taxes paid or payable as a result thereof.
Net Proceeds from any Asset Sale or Event of Loss by any Person or its Restricted Subsidiaries means cash and cash equivalents received in respect of the Property sold or with respect to which
an Event of Loss occurred, excluding business interruption or delay in completion insurance proceeds, and net of:
(1) all reasonable out-of-pocket expenses of such Person or such Restricted Subsidiary incurred in connection with an Asset Sale or Event of Loss, including, without limitation, all legal, title and
recording tax expenses, commissions and fees and expenses incurred (but excluding any finders fee or brokers fee payable to any Affiliate of such Person) and all Federal, state, provincial, foreign and local taxes arising in connection
with such Asset Sale or Event of Loss that are paid or required to be accrued as a liability under GAAP by such Person or its Restricted Subsidiaries;
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(2) all payments made by such Person or its Restricted Subsidiaries on any
Indebtedness which is secured by such Property in accordance with the terms of any Lien upon or with respect to such Property or which must, by the terms of such Lien, or in order to obtain a necessary consent to such Asset Sale or by applicable
law, be repaid out of the proceeds from such Asset Sale or Event of Loss;
(3) appropriate amounts to be
provided by such Person or its Restricted Subsidiaries, as a reserve, in accordance with GAAP, against any liabilities associated with such Asset Sale or Event of Loss and retained by such Person or its Restricted Subsidiaries including, without
limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale or Event of Loss; and
(4) all contractually required distributions and other payments made to minority interest holders (but excluding
distributions and payments to Affiliates of such Person) in Restricted Subsidiaries of such Person as a result of such Asset Sale or Event of Loss;
provided, however, that, in the event that any consideration for an Asset Sale or Event of Loss (which would otherwise constitute Net Proceeds) is required to be held in escrow pending determination of
whether a purchase price adjustment will be made, such consideration (or any portion thereof) shall become Net Proceeds only at such time as it is released to such Person or its Restricted Subsidiaries from escrow; and provided, further, that any
noncash consideration received in connection with an Asset Sale or Event of Loss which is subsequently converted to cash shall be deemed to be Net Proceeds at and from the time of such conversion.
Non-Recourse Indebtedness means Indebtedness of a Person to the extent that under the terms thereof or pursuant to applicable
law:
(1) no personal recourse shall be had against such Person for the payment of the principal of or interest
or premium, if any, on such Indebtedness; and
(2) enforcement of obligations on such Indebtedness is limited
only to recourse against interests in Property purchased with the proceeds of the Incurrence of such Indebtedness and as to which neither Boyd Gaming nor any of its Restricted Subsidiaries provides any credit support or is liable.
Note Guarantee means the Guarantee by each Guarantor of Boyd Gamings obligations under the indenture and the notes,
executed pursuant to the provisions of the indenture.
Officer means the Chief Executive Officer, President,
Treasurer, any Executive Vice President, Senior Vice President or any Vice President of Boyd Gaming.
Officers
Certificate means a certificate signed by two Officers at least one of whom shall be the principal executive officer, principal accounting officer or principal financial officer of Boyd Gaming.
Opinion of Counsel means a written opinion from legal counsel who is acceptable to the Trustee. The counsel may be an
employee of or counsel to Boyd Gaming, any Guarantor or the Trustee.
Pari Passu Indebtedness means:
(1) with respect to Boyd Gaming, any Indebtedness which ranks
pari passu
in right of payment with the notes; and
(2) with respect to any Guarantor, any Indebtedness which ranks
pari passu
in right of payment with
such Guarantors Note Guarantee.
The determination of whether any Indebtedness ranks pari passu in right of payment
shall not take into account whether or not such Indebtedness is secured by any collateral.
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Peninsula Restricted Subsidiary Designation means the designation of Peninsula
Gaming, LLC, a Delaware limited liability company, as a Restricted Subsidiary under the Indenture; provided that the portion of Consolidated EBITDA for the Reference Period ending immediately prior to such designation which is attributable to
Peninsula Gaming, LLC and its Restricted Subsidiaries exceeds $130 million (calculated on a pro forma basis as if such designation occurred on the first day of such Reference Period).
Permitted FF&E Financing means Indebtedness of Boyd Gaming or any of its Restricted Subsidiaries that is Incurred to
finance furniture, fixtures or equipment (FF&E) used directly in the operation of a Gaming Facility owned or leased by Boyd Gaming or its Restricted Subsidiaries and secured by a Lien on such FF&E in an amount not to exceed 100%
of the cost of the FF&E so purchased or leased.
Permitted Holders means the Boyd Gaming Family and any group
(as such term is used in Sections 13(d) and 14(d) of the Exchange Act) comprised solely of members of the Boyd Gaming Family.
Permitted Investment means an Investment by Boyd Gaming or any Restricted Subsidiary in:
(1) a Restricted Subsidiary or a Person which will, upon the making of such Investment, become a Restricted Subsidiary;
provided
,
however
, that the primary business of such Restricted Subsidiary is a Core Business or a Related Business;
(2) another Person if as a result of such Investment such other Person is merged or consolidated with or into, or transfers or conveys all or substantially all its assets to, Boyd Gaming or a Restricted
Subsidiary;
provided
,
however
, that such Persons primary business is a Core Business or a Related Business;
(3) Temporary Cash Investments;
(4) receivables owing to Boyd
Gaming or any Restricted Subsidiary, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms, including without limitation credit extended to customers;
provided
,
however
, that such trade terms may include such concessionary trade terms as Boyd Gaming or any such Restricted Subsidiary deems reasonable under the circumstances;
(5) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the ordinary course of business;
(6) loans or
advances to employees made in the ordinary course of business consistent with past practices of Boyd Gaming or such Restricted Subsidiary, as the case may be;
(7) stock, obligations or securities received in settlement of debts created in the ordinary course of business and owing to Boyd Gaming or any Restricted Subsidiary or in satisfaction of judgments;
(8) any Investment existing on, or made pursuant to binding commitments existing on, the Issue Date or an
Investment consisting of any extension, modification or renewal of any Investment existing on the Issue Date so long as such extension, modification or renewal does not increase the Investment as in effect at the Issue Date or is not materially
adverse to the interests of the noteholders;
(9) securities received pursuant to clause (2) of the first
paragraph under the covenant described above under the caption Repurchase at the Option of HoldersAsset Sales; Event of Loss;
(10) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(11) Investments consisting of or to finance purchases and acquisitions of inventory, supplies, materials, services or
equipment or purchases of contract rights or licenses or leases of intellectual property in the ordinary course of business;
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(12) Qualified Investments provided that at the time such Qualified
Investment is made and giving pro forma effect thereto (A) the Consolidated Fixed Charge Coverage Ratio of Boyd Gaming on the date of the Investment would have been greater than 2.5 to 1 and (B) no Default or Event of Default would exist;
provided
,
however
, that, if an Investment in any Person made pursuant to this clause (12) would, at any time after the date such Investment is made, cease to qualify as a Qualified Investment due to a failure to satisfy the
requirements of clause (2) of the definition of Qualified Investment, then Boyd Gaming will be deemed to have made an Investment equal to the value of its Investment in such Person at such time (valued in each case as provided in
the definition of Investment) and the value of such Investment at such time will, for the period such Investment does not so qualify, be included in the calculation of the aggregate amount of Restricted Payments referenced under clause
(3) of the first paragraph of the covenant captioned Limitation on Restricted Payments;
(13) payments with respect to a Guarantee or other extension of credit that qualified as a Qualified Investment at the
time the Guarantee was given or extension of credit was made, unless such Guarantee or extension of credit no longer qualifies as a Qualified Investment due to a failure to satisfy the requirements of clause (2) of the definition of
Qualified Investment;
(14) any guarantee of Indebtedness permitted by the covenant described above
under the caption Certain CovenantsLimitation on Indebtedness;
(15) Investments
consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(16) any Investment required by a Gaming Authority or made in lieu of payment of a tax or in consideration of a reduction
in tax;
(17) Investments of a Person existing at the time such Person is acquired, becomes a Restricted
Subsidiary or is merged or consolidated with Boyd Gaming or any Restricted Subsidiary in accordance with Certain CovenantsMerger, Consolidation and Sale of Assets after the Issue Date to the extent that such Investments were not
made in contemplation of or in connection with such acquisition, designation, redesignation, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(18) Investments in an aggregate principal amount not to exceed $23.1 million of Urban Renewal Tax Increment Revenue
Bonds, Taxable Series 2007 of the City of Dubuque, Iowa issued as of October 16, 2007 pursuant to that certain Official Statement, dated October 1, 2007, as such bonds may be renewed, extended, substituted, refinanced or replaced, so long
as the principal amount of the aggregate Investment does not exceed the amount of the aggregate Investment outstanding on the Issue Date (plus an amount equal to all accrued interest of such bonds and the amount of all fees and expenses, including
premiums, incurred in connection with any renewal, extension, substitution, refinancing or replacement of such bonds); and
(19) transfers by Boyd Gaming or a Restricted Subsidiary to an Unrestricted Subsidiary of operational agreements (including, without limitation, slot machine leases, technical assistance services
agreements, trademark and trade names licenses, management services agreements and royalty agreements) or other agreements (or rights under agreements) entered into in the ordinary course of business between Boyd Gaming or a Restricted Subsidiary,
on the one hand, and an Unrestricted Subsidiary, on the other hand.
Permitted Liens means:
(1) Liens securing Indebtedness and other obligations under the Credit Facility in an amount not to exceed the amount of
Indebtedness permitted to be Incurred pursuant to clause (3) of the second paragraph of the covenant captioned Limitation on Indebtedness;
(2) Liens to secure Indebtedness permitted by clause (8) of the second paragraph of the covenant captioned
Limitation on Indebtedness covering only the assets acquired with or financed by such Indebtedness;
111
(3) Liens in favor of Boyd Gaming or any Guarantor;
(4) Liens for taxes, assessments or governmental charges or levies on the Property of Boyd Gaming or any Restricted
Subsidiary if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings;
(5) Liens imposed by law, such as carriers, warehousemens and mechanics Liens and other similar Liens
which secure payment of obligations arising in the ordinary course of business;
(6) Liens in favor of issuers
of performance bonds and surety bonds obtained in the ordinary course of business;
(7) other Liens incidental
to the conduct of its business or the ownership of its Properties which were not created in connection with the Incurrence of Indebtedness or the obtaining of advances or credit and which do not in the aggregate materially detract from the value of
its Properties or materially impair the use thereof in the operation of its business, including without limitation leases, subleases, licenses and sublicenses;
(8) Liens arising from Uniform Commercial Code financing statements regarding operating leases;
(9) pledges or deposits under workmens compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the
payment of Indebtedness) or leases to which Boyd Gaming or any Restricted Subsidiary is a party, or deposits to secure public or statutory obligations of Boyd Gaming or any Restricted Subsidiary, or deposits for the payment of rent, or deposits to
secure liability to insurance carriers, in each case Incurred in the ordinary course of business;
(10) minor
survey exceptions;
(11) utility easements, building or zoning restrictions and such other encumbrances or
charges against real property as are of a nature generally existing with respect to properties of a similar character and do not materially detract from the value of such Property;
(12) Liens existing on the Issue Date (other than Liens securing Indebtedness);
(13) Liens securing obligations to a trustee pursuant to the compensation and indemnity provisions of any indenture and
Liens created for the benefit of (or to secure) the notes or the Note Guarantees;
(14) Liens on cash, cash
equivalents, and other property arising in connection with the defeasance, discharge or redemption of Indebtedness;
(15) Liens (including extensions and renewals thereof) upon real or tangible personal property acquired by that Person after the date of the indenture; provided that
(a) any such Lien is created solely for the purpose of securing Indebtedness representing, or Incurred to finance,
refinance or refund, all costs (including the cost of construction, installation or improvement) of the item of Property subject thereto;
(b) the principal amount of the Indebtedness secured by that Lien does not exceed 100% of that cost;
(c) any such Lien does not extend to or cover any other Property other than that item of Property and any improvements on that item or is otherwise a Permitted Lien under clause (35) of this
definition; and
(d) the Incurrence of that Indebtedness is permitted by the covenant described above under the
caption Certain CovenantsLimitation on Indebtedness;
(16) Liens on any property to
secure all or part of the cost of improvements or construction thereon or Indebtedness incurred to provide funds for that purpose in a principal amount not exceeding the cost of those improvements or construction;
112
(17) Liens upon specific items of inventory or other goods and proceeds of
that Person securing that Persons obligations in respect of bankers acceptances issued or created for the account of that Person to facilitate the purchase, shipment or storage of that inventory or other goods;
(18) Liens securing reimbursement obligations with respect to commercial letters of credit issued for the account of that
Person which encumber documents and other Property relating to those commercial letters of credit and the products and proceeds thereof;
(19) Liens securing obligations under Currency Exchange Protection Agreements that are not in violation of the Indenture; provided that with respect to such obligations relating to Indebtedness, such Lien
extends only to the property securing such Indebtedness;
(20) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods by that Person;
(21) licenses, leases or subleases granted to others not interfering in any material adverse respect with the business of that Person or any of its Subsidiaries;
(22) Liens encumbering Property or assets of that Person under construction arising from progress or partial payments by a
customer of that Person or one of its Subsidiaries relating to that Property or assets;
(23) Liens encumbering
customary initial deposits and margin accounts, and other Liens incurred in the ordinary course of business and which are within the general parameters customary in the gaming industry;
(24) Liens encumbering deposits made to secure obligations arising from statutory or regulatory requirements of that
Person or its Subsidiaries;
(25) Liens of a collection bank arising under Section 4-210 of the Uniform
Commercial Code on items in the course of collection, in favor of a banking institution, financial institution, or securities intermediary arising as a matter of law encumbering deposits (including the right of setoff) and which are within the
general parameters customary in the banking industry or otherwise relate to depositary relations with such institution or intermediary, and securing customary cash management obligations not otherwise prohibited by the Indenture;
(26) Liens on cash collateral required to be deposited pursuant to the terms of the Credit Facility to secure the funding
obligations of any defaulting lender, including cash collateral deposited with respect to any unreimbursed drawing under a letter of credit;
(27) any interest or title of a lessor in the Property subject to any Capitalized Lease Obligation or operating lease which, in each case, is permitted under the indenture or purchase money Indebtedness
which is permitted to be incurred under the indenture pursuant to the covenant captioned Limitation on Indebtedness;
(28) Liens arising out of conditional sale, title retention consignment or similar arrangements for the sale of goods entered into by that Person or any of its Subsidiaries in the ordinary course of
business;
(29) Liens for judgments or orders not giving rise to an Event of Default and deposits to secure
surety or appeal bonds;
(30) Liens on Property of a Person existing at the time such Person is acquired,
becomes a Restricted Subsidiary or is merged or consolidated with Boyd Gaming or any Restricted Subsidiary; provided that such Liens were in existence prior to the contemplation of such acquisition, merger or consolidation, and were not created in
connection therewith or in anticipation thereof, to the extent that such Liens do not extend to any additional Property or assets of Boyd Gaming or any Restricted Subsidiary;
(31) pledges or deposits made by such Person in connection with any letter of intent or purchase agreement;
(32) Liens deemed to exist in connection with Investments in repurchase agreements; provided that such Liens do not extend
to any assets other than those that are the subject of such repurchase agreements;
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(33) Any encumbrance or restriction (including put and call arrangements)
with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(34) Liens securing Permitted Refinancing Indebtedness permitted to be Incurred under the indenture; provided that such Liens extend only to the Property or assets of Boyd Gaming or any Restricted
Subsidiary encumbered by the refinanced Indebtedness unless the Incurrence of such Liens is otherwise permitted under the indenture; and
(35) Liens not specified in the foregoing; provided that the aggregate Indebtedness secured by the Liens under this clause (35) does not exceed 7.5% of Boyd Gamings Consolidated Total Assets at
any one time outstanding as of the date any such Lien is granted or otherwise becomes effective in reliance on this clause (35). For the avoidance of doubt, Liens Incurred in reliance on clause (35) may secure Indebtedness in an amount in
addition to Indebtedness that is also secured by Liens Incurred in reliance on one or more other clauses of this definition.
Permitted Refinancing Indebtedness means any renewals, repurchases, redemptions, extensions, substitutions, refinancings or
replacements of any Indebtedness of Boyd Gaming or any of its Restricted Subsidiaries, including any successive extensions, renewals, substitutions, refinancings or replacements (and including refinancings by Boyd Gaming of Indebtedness of a
Restricted Subsidiary):
(1) to the extent that the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness renewed, repurchased, redeemed, extended, substituted, refinanced or replaced (plus all accrued interest on the
Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith);
(2) so long as the Weighted Average Life to Maturity and Stated Maturity is not shortened; and
(3) so long as the new Indebtedness is not be senior in right of payment to the Indebtedness that is being renewed,
repurchased, redeemed, extended, substituted, refinanced or replaced;
provided
,
however
, that Permitted Refinancing
Indebtedness shall not include Indebtedness of Boyd Gaming or any Guarantor that refinances Indebtedness of a Subsidiary that is not a Guarantor.
Person means any individual, corporation, company (including limited liability company), partnership, joint venture, trust, unincorporated organization or government or any agency or political
subdivision thereof.
Preferred Stock means any Capital Stock of a Person, however designated, which entitles the
holder thereof to a preference with respect to dividends, distributions or liquidation proceeds of such Person over the holders of other Capital Stock issued by such Person.
Project means any new facility developed or being developed by Boyd Gaming or any of its Restricted Subsidiaries or any expansion, renovation or refurbishment of a facility owned by Boyd
Gaming or any of its Restricted Subsidiaries which expansion, renovation or refurbishment cost or is reasonably expected to cost $100,000,000 or more.
Project Opening means, with respect to (1) any Project which is a new facility, when all of the following have occurred: (A) a certificate of occupancy (which may be a temporary
certificate of occupancy) has been issued in respect of such Project and, if such Project includes gaming facilities, then such certificate of occupancy need only relate to such gaming facilities and not the remainder of such Project; (B) such
Project (or the gaming facility portion thereof in the case of a Project that includes gaming facilities and not the remainder of such Project) is in a condition (including installment of furnishings, fixtures and equipment) to receive customers in
the ordinary course of business; (C) if such Project includes gaming facilities, such gaming facilities (but not necessarily the hotel facilities if a hotel is contemplated to accompany such Projects gaming facilities) are
114
legally open for business and to the general public and operating in accordance with applicable law; and (D) all Gaming Licenses, if applicable, with respect to such Project have been
granted and not revoked or suspended, and (2) any Project which is an expansion, renovation or refurbishment, when clauses (B), (C) and (D) have occurred, to the extent applicable.
Property means, with respect to any Person, any interest of such Person in any kind of property or asset, whether real,
personal or mixed, or tangible or intangible, including, without limitation, Capital Stock in any other Person (but excluding Capital Stock or other securities issued by such first Person).
Public Equity Offering means an underwritten public offering of Capital Stock of Boyd Gaming pursuant to an effective
registration statement under the Securities Act.
Qualified Investment means an Investment by Boyd Gaming or any
of its Restricted Subsidiaries in any Person primarily engaged or preparing to engage in a Core Business or a Related Business; provided that:
(1) the primary purpose for which such Investment was made was to finance or otherwise facilitate the development, construction or acquisition of a facility (a Qualified Facility) that
(A) is located in a jurisdiction in which the conduct of gaming using electronic gaming devices is permitted pursuant to applicable law and (B) conducts or, following such development, construction or acquisition, will conduct gaming
utilizing electronic gaming devices or is related to, ancillary or supportive of, connected with or arising out of such gaming business;
(2) Boyd Gaming and any of its Restricted Subsidiaries at the time of the Investment (A) own in the aggregate at least 35.0% of the outstanding Voting Stock of such Person or
(B) (i) control the day-to-day gaming operation of such Person pursuant to a written agreement and (ii) provide or have provided Development Services with respect to the applicable Qualified Facility; and
(3) none of the Permitted Holders or any Affiliate of such Persons, other than Boyd Gaming or any of its Subsidiaries, is
a direct or indirect obligor, contingently or otherwise, of any Indebtedness of such Person or a direct or indirect holder of any Capital Stock of such Person, other than through their respective ownership interests in Boyd Gaming.
Qualified Non-Recourse Debt means Indebtedness:
(1) as to which neither Boyd Gaming nor any of its Restricted Subsidiaries (A) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute Indebtedness), or (B) is directly or indirectly liable as a guarantor or otherwise; provided, however, that the provision by Boyd Gaming of a completion guaranty or the
making of payments with respect thereto, in each case, to the extent permitted under the covenant described above under Certain CovenantsLimitation on Restricted Payments, shall not prevent any Indebtedness from constituting
Qualified Non-Recourse Debt;
(2) no default with respect to which (including any rights that the holders of
the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any Indebtedness of Boyd Gaming or any of its Restricted Subsidiaries to declare a default on such
other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to its stated maturity; and
(3) as to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of Boyd Gaming or any of its Restricted Subsidiaries.
Rating Agencies means S&P and Moodys or any successor to the respective rating agency businesses thereof.
Rating Decline shall have occurred if at any date within 90 calendar days after the date of public disclosure of
the occurrence of a Change of Control (which period will be extended for so long as Boyd
115
Gamings debt ratings are under publicly announced review for possible downgrading (or without an indication of the direction of a possible ratings change) by either Moodys or S&P
or their respective successors) the Notes no longer have Investment Grade Status.
Reference Period means the
period of four consecutive fiscal quarters ending with the last full fiscal quarter immediately preceding the date of a proposed Incurrence, Restricted Payment or other transaction for which financial statements are available.
Registration Rights Agreement means the Registration Rights Agreement, dated as of March 28, 2016, by and among Boyd
Gaming and the other parties named on the signature pages thereof, as such agreement may be amended, modified or supplemented from time to time and, with respect to any Additional Notes, one or more registration rights agreements between Boyd Gaming
and the other parties thereto, as such agreement(s) may be amended, modified or supplemented from time to time, relating to rights given by Boyd Gaming to the purchasers of Additional Notes to register such Additional Notes under the Securities Act.
Related Business means the business conducted (or proposed to be conducted) by Boyd Gaming and its Subsidiaries
in connection with any Gaming Facility and any and all reasonably related businesses necessary for, in support, furtherance or anticipation of and/or ancillary to or in preparation for, such business including, without limitation, the development,
expansion or operation of any Gaming Facility (including any land-based, dockside, riverboat or other type of casino), owned, or to be owned, leased or managed by Boyd Gaming or one of its Subsidiaries.
Related Person means any legal or beneficial owner of 5% or more of any class of Capital Stock of Boyd Gaming or any of its
Subsidiaries.
Restricted Payment means:
(1) any dividend or distribution (whether made in cash, Property or securities) declared or paid on or with respect to any
shares of Capital Stock of Boyd Gaming or to Boyd Gamings stockholders with respect to any shares of Capital Stock of Boyd Gaming except for such dividends or distributions payable solely in Capital Stock of Boyd Gaming (other than
Disqualified Stock of Boyd Gaming);
(2) a payment made by Boyd Gaming or any Restricted Subsidiary (other than
to Boyd Gaming or a Restricted Subsidiary) to purchase, redeem, acquire or retire any Capital Stock of Boyd Gaming or Capital Stock of any Affiliate of Boyd Gaming or any warrants, rights or options, to directly or indirectly purchase or acquire any
such Capital Stock or any securities exchangeable for or convertible into any such Capital Stock;
(3) a
payment made by Boyd Gaming or any Restricted Subsidiary after the Issue Date to redeem, repurchase, defease or otherwise acquire or retire for value, prior to any scheduled maturity, scheduled sinking fund or mandatory redemption payment (other
than the redemption, purchase, repurchase, defeasance or other acquisition of any Indebtedness subordinate in right of payment to the notes or any Note Guarantee made in anticipation of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within twelve months of the date of such payment), Indebtedness of Boyd Gaming or any Guarantor which is subordinate (whether pursuant to its terms or by operation of law) in right of payment to the notes or any Note
Guarantee;
(4) any Investment (other than a Permitted Investment) in any Person; or
(5) any Restricted Payment as defined in any of the Existing Indentures that was made after March 31,
1997 and prior to the Issue Date, including Investments in excess of $100.0 million in the Borgata Joint Venture.
116
Restricted Subsidiary means any Subsidiary of Boyd Gaming that:
(1) has not been designated by the Board of Directors as an Unrestricted Subsidiary; or
(2) was an Unrestricted Subsidiary but has been redesignated by the Board of Directors as a Restricted Subsidiary,
in each case as provided under the definition of Unrestricted Subsidiary;
provided
,
however
, that no Subsidiary shall be
redesignated from an Unrestricted Subsidiary to a Restricted Subsidiary unless, immediately after giving pro forma effect to such designation, Boyd Gaming would be able to Incur at least $1.00 of additional Indebtedness pursuant to the first
paragraph of the covenant described above under the caption Certain CovenantsLimitation on Indebtedness.
Sale/Leaseback Transaction means, with respect to any Person, any direct or indirect arrangement pursuant to which Property is sold or transferred by such Person or a Restricted Subsidiary of
such Person and is thereafter leased back from the purchaser or transferee thereof by such Person or one of its Restricted Subsidiaries.
Significant Subsidiary means any Subsidiary of Boyd Gaming that:
(1) guarantees or otherwise provides direct credit support for any Indebtedness of Boyd Gaming; or
(2) is a Domestic Subsidiary and a Significant Subsidiary as defined in the Credit Facility.
S&P means Standard & Poors Ratings Group, a division of the McGraw-Hill Companies, Inc.
Stated Maturity means, with respect to any security, the date specified in such security as the fixed date on which a payment of principal of such security is due and payable, including
pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency unless such contingency has occurred).
Subsidiary of any Person means any corporation, association, partnership, limited liability company or other business entity
of which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by:
(1) such Person;
(2) such Person and one or more Subsidiaries of such Person; or
(3) one or more Subsidiaries of such Person.
Temporary Cash Investments means any of the following:
(1) Investments in U.S. Government Obligations maturing within 90 days of the date of acquisition thereof;
(2) Investments in time deposit accounts, certificates of deposit and money market deposits maturing within 90 days of the
date of acquisition thereof issued by a bank or trust company which is organized under the laws of the United States of America or any state thereof having capital, surplus and undivided profits aggregating in excess of $500,000,000 and whose
long-term debt is rated A-3 or higher, A- or higher or A- or higher according to Moodys, S&P or Fitch Credit Rating Co. (or such similar equivalent rating by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the Securities Act)), respectively;
(3)
repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (1) above entered into with a bank meeting the qualifications described in clause (2) above;
117
(4) Investments in commercial paper, maturing not more than 90 days after
the date of acquisition, issued by a corporation (other than Boyd Gaming or an Affiliate of Boyd Gaming) organized and in existence under the laws of the United States of America with a rating at the time as of which any Investment therein is made
of P-1 (or higher) according to Moodys, A-1 (or higher) according to S&P or A-1 (or higher) according to Fitch Credit Rating Co. (or such similar equivalent rating by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under the Securities Act)); and
(5)
Investments in money market funds substantially all of whose assets comprise securities of the types described in clauses (1) through (4) above.
Treasury Rate means, as of any redemption date, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity (as compiled and published in the
most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of
similar market data)) most nearly equal to the period from the redemption date to April 1, 2021;
provided
,
however
, that if the period from the redemption date to April 1, 2021, is less than one year, the weekly average yield
on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.
Unrestricted Subsidiary means (1) any Subsidiary of Boyd Gaming which at the time of determination shall be an
Unrestricted Subsidiary (as designated by the Board of Directors) and (2) any Subsidiary of an Unrestricted Subsidiary.
U.S. Government Obligations means direct obligations (or certificates representing an ownership interest in such obligations)
of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the issuers option.
Voting Stock means securities of any class or classes of a Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for corporate directors (or Persons performing equivalent functions).
Weighted Average Life to Maturity means, when applied to any Indebtedness at any date, the number of years obtained by
dividing:
(1) the sum of the products obtained by multiplying (A) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of principal, including payment at final maturity, in respect of the Indebtedness, by (B) the number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
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Signature
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Title
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Date
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/s/ William S. Boyd
William S. Boyd
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Executive Chairman of the Board of Directors
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December 20, 2016
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/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
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Vice Chairman of the Board of Directors, Executive Vice President and Director
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December 20, 2016
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/s/ Keith E. Smith
Keith E. Smith
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President, Chief Executive Officer and Director (Principal Executive Officer)
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December 20, 2016
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/s/ Josh Hirsberg
Josh Hirsberg
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Executive Vice President, Chief Financial Officer and Treasurer (Principal Financial Officer)
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December 20, 2016
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/s/ William R. Boyd
William R. Boyd
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Vice President and Director
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December 20, 2016
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/s/ Robert L. Boughner
Robert L. Boughner
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Director
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December 20, 2016
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II-11
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Signature
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Title
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Date
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/s/ John Bailey
John Bailey
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Director
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December 20, 2016
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/s/ Richard Flaherty
Richard Flaherty
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Director
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December 20, 2016
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/s/ Christine J. Spadafor
Christine J. Spadafor
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Director
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December 10, 2016
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/s/ Peter M. Thomas
Peter M. Thomas
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Director
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December 12, 2016
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/s/ Paul Whetsell
Paul Whetsell
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Director
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December 20, 2016
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/s/ Veronica J. Wilson
Veronica J. Wilson
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Director
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December 20, 2016
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/s/ Anthony D. McDuffie
Anthony D. McDuffie
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Vice President and Chief Accounting Officer (Principal Accounting Officer)
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December 20, 2016
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II-12
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
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C
ALIFORNIA
H
OTEL
AND
C
ASINO
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By:
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/s/ Keith E. Smith
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Name:
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Keith E. Smith
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Title:
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President
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
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Signature
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Title
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Date
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/s/ William S. Boyd
William S. Boyd
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Director
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December 20, 2016
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/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
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Senior Vice President and Director
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December 20, 2016
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/s/ Keith E. Smith
Keith E. Smith
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President and Director
(Principal Executive Officer)
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December 20, 2016
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/s/ Josh Hirsberg
Josh Hirsberg
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Treasurer
(Principal Financial Officer and
Principal Accounting Officer)
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December 20, 2016
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II-13
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
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S
AM
-W
ILL
, I
NC
.
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By:
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/s/ Keith E. Smith
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Name:
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Keith E. Smith
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Title:
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President
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
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Signature
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Title
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|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
Director
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Senior Vice President and Director
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
President and Director
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Treasurer
(Principal Financial Officer and
Principal Accounting Officer)
|
|
December 20, 2016
|
II-14
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
M.S.W., I
NC
.
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
President
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
Director
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Senior Vice President and Director
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
President and Director
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Treasurer
(Principal Financial Officer and
Principal Accounting Officer)
|
|
December 20, 2016
|
II-15
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
C
ALIFORNIA
H
OTEL
F
INANCE
C
ORPORATION
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
President
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
Director
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Vice President and Director
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
President and Director
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Treasurer
(Principal Financial Officer and
Principal Accounting Officer)
|
|
December 20, 2016
|
II-16
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
B
OYD
A
TLANTIC
C
ITY
, I
NC
.
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
President
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
Director
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Vice President and Director
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
President and Director
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Vice President and Treasurer
(Principal Financial Officer and
Principal Accounting Officer)
|
|
December 20, 2016
|
II-17
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
P
AR
-A-D
ICE
G
AMING
C
ORPORATION
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
President and Secretary
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
Director
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Vice President and Director
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
President, Secretary and Director
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Treasurer
(Principal Financial Officer and
Principal Accounting Officer)
|
|
December 20, 2016
|
II-18
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
B
OYD
T
UNICA
, I
NC
.
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
President
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
Director
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Senior Vice President and Director
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
President and Director
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Treasurer
(Principal Financial Officer and
Principal Accounting Officer)
|
|
December 20, 2016
|
II-19
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
B
LUE
C
HIP
C
ASINO
, LLC
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
President
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
Manager
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Executive Vice President and Manager
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
President and Manager
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Treasurer
(Principal Financial Officer and
Principal Accounting Officer)
|
|
December 20, 2016
|
II-20
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
T
REASURE
C
HEST
C
ASINO
, L.L.C.
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
President and Chief Executive Officer
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
Manager
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Vice President and Manager
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
President, Chief Executive Officer and Manager
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Treasurer
(Principal Financial Officer and
Principal Accounting Officer)
|
|
December 20, 2016
|
II-21
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
B
OYD
L
OUISIANA
R
ACING
, L.L.C.
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
President
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
Manager
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Senior Vice President and Manager
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
President and Manager
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Treasurer
(Principal Financial Officer and
Principal Accounting
Officer)
|
|
December 20, 2016
|
II-22
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
B
OYD
R
ACING
, L.L.C.
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
President
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
Manager
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Vice President and Manager
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
President and Manager
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Treasurer
(Principal Financial Officer and
Principal Accounting
Officer)
|
|
December 20, 2016
|
II-23
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
R
ED
R
IVER
E
NTERTAINMENT
OF
S
HREVEPORT
, LLC
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
President
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
Manager
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Vice President and Manager
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
President and Manager
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Treasurer
(Principal Financial Officer and
Principal Accounting
Officer)
|
|
December 20, 2016
|
II-24
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
C
OAST
C
ASINOS
, I
NC
.
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
President
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
Director
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Senior Vice President and Director
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
President and Director
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Treasurer
(Principal Financial Officer and
Principal Accounting
Officer)
|
|
December 20, 2016
|
II-25
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
C
OAST
H
OTELS
AND
C
ASINOS
, I
NC
.
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
President
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
Director
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Senior Vice President and Director
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
President and Director
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Treasurer
(Principal Financial Officer and
Principal Accounting
Officer)
|
|
December 20, 2016
|
II-26
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
B
OYD
B
ILOXI
, LLC
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
President
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
Manager
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Senior Vice President and Manager
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
President and Manager
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Treasurer
(Principal Financial Officer and
Principal Accounting
Officer)
|
|
December 20, 2016
|
II-27
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
B
OYD
A
CQUISITION
, LLC
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
President
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
Manager
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Senior Vice President and Manager
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
President and Manager
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Senior Vice President and
Treasurer (Principal Financial
Officer and
Principal Accounting
Officer)
|
|
December 20, 2016
|
II-28
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
B
OYD
A
CQUISITION
I, LLC
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
President
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
Manager
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Senior Vice President and Manager
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
President and Manager
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Senior Vice President and
Treasurer (Principal Financial
Officer and
Principal Accounting
Officer)
|
|
December 20, 2016
|
II-29
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
B
OYD
A
CQUISITION
II, LLC
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
President
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
Manager
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Senior Vice President and Manager
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
President and Manager
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Senior Vice President and
Treasurer (Principal Financial
Officer and
Principal Accounting
Officer)
|
|
December 20, 2016
|
II-30
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
D
IAMOND
J
O
, LLC
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
Chief Executive Officer
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
President and Manager
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Executive Vice President and
Manager
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
Chief Executive Officer and
Manager
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Chief Financial Officer, Senior Vice President and Treasurer (Principal Financial Officer and Principal Accounting Officer)
|
|
December 20, 2016
|
II-31
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
D
IAMOND
J
O
W
ORTH
, LLC
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
Chief Executive Officer
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
President and Manager
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Executive Vice President and
Manager
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
Chief Executive Officer and
Manager
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Chief Financial Officer, Senior Vice President and Treasurer
(Principal Financial Officer and Principal Accounting Officer)
|
|
December 20, 2016
|
II-32
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
K
ANSAS
S
TAR
C
ASINO
, LLC
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
Chief Executive Officer
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
President and Manager
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Executive Vice President and
Manager
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
Chief Executive Officer and
Manager
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Chief Financial Officer, Senior Vice President and Treasurer (Principal Financial Officer and Principal Accounting Officer)
|
|
December 20, 2016
|
II-33
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
P
ENINSULA
G
AMING
, LLC
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
Chief Executive Officer
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
President and Manager
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Executive Vice President and
Manager
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
Chief Executive Officer and
Manager
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Chief Financial Officer, Senior Vice President and Treasurer (Principal Financial Officer and Principal Accounting Officer)
|
|
December 20, 2016
|
II-34
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
T
HE
O
LD
E
VANGELINE
D
OWNS
, L.L.C.
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
Chief Executive Officer
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
President and Manager
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Executive Vice President and
Manager
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
Chief Executive Officer and
Manager
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Chief Financial Officer, Senior Vice President and Treasurer (Principal Financial Officer and Principal Accounting Officer)
|
|
December 20, 2016
|
II-35
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las
Vegas, State of Nevada, on the 20th day of December, 2016.
|
|
|
B
ELLE
OF
O
RLEANS
, L.L.C.
|
|
|
By:
|
|
/s/ Keith E. Smith
|
Name:
|
|
Keith E. Smith
|
Title:
|
|
Chief Executive Officer
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Josh Hirsberg and Anthony D. McDuffie, and each of them, as true and lawful attorneys-in-fact and agents, each with the power of
substitution, for him and in his name, place and stead, and in any and all capacities, to sign any amendment to this Registration Statement (including post-effective amendments) and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ William S. Boyd
William S. Boyd
|
|
President and Manager
|
|
December 20, 2016
|
|
|
|
/s/ Marianne Boyd Johnson
Marianne Boyd Johnson
|
|
Executive Vice President and
Manager
|
|
December 20, 2016
|
|
|
|
/s/ Keith E. Smith
Keith E. Smith
|
|
Chief Executive Officer and
Manager
(Principal Executive Officer)
|
|
December 20, 2016
|
|
|
|
/s/ Josh Hirsberg
Josh Hirsberg
|
|
Chief Financial Officer, Senior Vice President and Treasurer (Principal Financial Officer and Principal Accounting Officer)
|
|
December 20, 2016
|
II-36
EXHIBIT INDEX
|
|
|
Exhibit
No.
|
|
|
|
|
4.12
|
|
Indenture governing the Companys 6.375% Senior Notes due 2026, dated March 28, 2016, by and among the Company, Guarantors party thereto and Wilmington Trust, National
Association, as Trustee.
|
|
|
4.13
|
|
Form of 6.375% Senior Notes (included in Exhibit 4.12).
|
|
|
4.15
|
|
First Supplemental Indenture, the Companys 6.375% Senior Notes due 2026, by and among the Company, Guarantors party thereto and Wilmington Trust, National Association, as
Trustee, to that certain Indenture date March 28, 2016, by and among the Company, Guarantors party thereto and Wilmington Trust, National Association, as Trustee.
|
|
|
5.1
|
|
Opinion of Morrison & Foerster LLP
|
|
|
12.1
|
|
Ratio of Earnings to Fixed Charges.
|
|
|
21.1
|
|
Subsidiaries of the Registrant.
|
|
|
23.1
|
|
Consent of Deloitte & Touche LLP.
|
|
|
23.2
|
|
Consent of Morrison & Foerster LLP (included in Exhibit 5.1)
|
|
|
24.1
|
|
Power of Attorney (included on applicable signature pages to this registration statement).
|
|
|
25.1
|
|
Statement of Eligibility of Wilmington Trust, National Association, as trustee, on Form T-1.
|
|
|
99.1
|
|
Form of Letter of Transmittal.
|
|
|
99.2
|
|
Form of Notice of Guaranteed Delivery.
|