THIS DOCUMENT IS A COPY OF THE FORM 10-Q FILED ON AUGUST 15, 1996 PURSUANT TO A
RULE 201 TEMPORARY HARDSHIP EXEMPTION.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended: June 30, 1996
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
for the transition period from _________________________to______________________
Commission file number 0-1469
CHURCHILL DOWNS INCORPORATED
(Exact name of registrant as specified in its charter)
KENTUCKY 61-0156015
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
700 CENTRAL AVENUE, LOUISVILLE, KY 40208
(Address of principal executive offices)
(Zip Code)
(502) 636-4400
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No______
The number of shares outstanding of registrant's common stock at August 9, 1996
was 3,725,955 shares.
Page 1 of 34
<PAGE>
CHURCHILL DOWNS INCORPORATED
I N D E X
PAGES
PART I. FINANCIAL INFORMATION
ITEM 1. Condensed Consolidated Financial Statements (Unaudited)
Condensed Consolidated Balance Sheets, June 30, 1996,
December 31, 1995 and June 30, 1995 3
Condensed Consolidated Statements of Operations
for the six months ended June 30, 1996 and 1995 4
Condensed Consolidated Statements of Operations
for the three months ended June 30, 1996 and 1995 5
Consolidated Statement of Stockholders' Equity
for the six month period ended June 30, 1996 6
Condensed Consolidated Statements of Cash Flows for the
six months ended June 30, 1996 and 1995 7
Condensed Notes to Consolidated Financial Statements 8-9
ITEM 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 10-21
PART II. OTHER INFORMATION AND SIGNATURES
ITEM 4. Submission of Matters To A Vote of Security Holders 22
ITEM 6. Exhibits and Reports on Form 8-K 22
Signatures 23
Exhibit Index 24
Exhibits 25-34
Page 2 of 34
<PAGE>
<TABLE>
CHURCHILL DOWNS INCORPORATED
CONDENSED CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
<CAPTION>
JUNE 30, DECEMBER 31, JUNE 30,
ASSETS 1996 1995 1995
----------- ------------- -----------
<S> <C> <C> <C>
Current assets:
Cash and cash equivalents $14,028,675 $ 5,856,188 $10,272,264
Accounts receivable 5,553,215 2,098,901 4,302,240
Other current assets 207,075 549,820 611,205
------------ ------------ -------------
Total current assets 19,788,965 8,504,909 15,185,709
Other assets 4,046,354 4,632,044 4,965,548
Property, plant and equipment 98,852,730 97,451,463 95,471,966
Less accumulated depreciation (35,128,935) (33,101,934) (32,027,423)
----------- ----------- -----------
63,723,795 64,349,529 63,444,543
----------- ----------- -----------
$87,559,114 $77,486,482 $83,595,800
=========== =========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Notes payable $ 70,097 $ 70,097 $ 444,154
Accounts payable 12,209,115 6,517,508 13,530,601
Accrued expenses 3,540,803 3,310,882 1,876,711
Dividends payable -- 1,892,302 --
Income taxes payable 6,539,508 1,049,508 5,459,008
Deferred revenue 1,200,753 6,098,541 1,028,579
------------ ------------ -----------
Total current liabilities 23,560,276 18,938,838 22,339,053
Notes payable 2,950,079 6,351,079 4,198,059
Outstanding mutuel tickets (payable
to Common-wealth of Kentucky after
one year) 3,189,408 2,256,696 2,480,499
Deferred compensation 958,312 871,212 1,082,480
Deferred income taxes 2,415,500 2,415,500 2,248,000
Minority interest 218,390 -- 163,800
Stockholders' equity:
Preferred stock, no par value;
authorized, 250,000 shares;
issued, none Common stock,
no par value; authorized,
10 Million shares, outstanding
3,725,955 shares, June 30, 1996 and
3,784,605 shares, December 31, 1995
and 3,784,605 shares, June 30, 1995 3,450,078 3,504,388 3,504,388
Retained earnings 51,018,421 43,486,460 48,053,562
Deferred compensation costs (136,350) (272,691) (409,041)
Note receivable for common stock (65,000) (65,000) (65,000)
----------- ----------- -----------
54,267,149 46,653,157 51,083,909
----------- ----------- -----------
$87,559,114 $77,486,482 $83,595,800
=========== =========== ===========
<FN>
The accompanying notes are an integral part of the financial statements.
</FN>
</TABLE>
Page 3 of 34
<PAGE>
CHURCHILL DOWNS INCORPORATED
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
for the six months ended June 30, 1996 and 1995
(Unaudited)
SIX MONTHS ENDED JUNE 30
1996 1995
----------- ------------
Net revenues $66,490,002 $57,947,743
Operating expenses 46,397,876 39,501,703
----------- ------------
Gross profit 20,092,126 18,446,040
Selling, general and administrative expenses 3,897,874 3,663,323
Operating income 16,194,252 14,782,717
----------- -----------
Other income and expense:
Interest income 94,631 96,943
Interest expense (147,035) (356,732)
Miscellaneous, net 81,804 98,007
------------ ------------
29,400 (161,782)
Earnings before income taxes 16,223,652 14,620,935
Federal and state income taxes (6,400,000) (5,743,000)
----------- ------------
Net earnings $ 9,823,652 $ 8,877,935
=========== ============
Net earnings per share (based on weighted $ 2.61 $ 2.34
====== ======
average shares outstanding of
3,768,632 and 3,785,180,
respectively)
The accompanying notes are an integral part of the financial statements.
Page 4 of 34
<PAGE>
CHURCHILL DOWNS INCORPORATED
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS for the three
months ended June 30, 1996 and 1995
(Unaudited)
THREE MONTHS ENDED JUNE 30
1996 1995
----------- -----------
Net revenues $54,939,249 $49,335,136
Operating expenses 33,198,583 29,555,966
----------- ------------
Gross profit 21,740,666 19,779,170
Selling, general and administrative expenses 2,103,082 2,133,579
Operating income 19,637,584 17,645,591
------------ -----------
Other income and expense:
Interest income 50,628 66,967
Interest expense ( 50,837) (202,138)
Miscellaneous, net 34,490 28,792
------------ ------------
34,281 (106,379)
Earnings before income taxes 19,671,865 17,539,212
Federal and state income taxes (7,775,000) (6,889,000)
----------- ------------
Net earnings $11,896,865 $10,650,212
=========== ===========
Net earnings per share (based on weighted $ 3.17 $ 2.81
====== ======
average shares outstanding of
3,751,183 and 3,785,525,
respectively)
The accompanying notes are an integral part of the financial statements.
Page 5 of 34
<PAGE>
<TABLE>
CHURCHILL DOWNS INCORPORATED
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
For the six month period ended June 30,1996
Note Deferred
Common Retained Receivable for Compensation
Stock Earnings Common Stock Costs Total
---------- ----------- ------------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Balances December 31, 1995 $3,504,388 $43,486,460 $(65,000) $ (272,691) $46,653,157
Net earnings 9,823,652 9,823,652
Deferred Compensation
Amortization 136,341 136,341
Repurchase of common stock (54,310) (2,291,691) (2,346,001)
---------- ----------- -------- ---------- -----------
Balances June 30, 1996 $3,450,078 $51,018,421 $(65,000) $(136,350) $54,267,149
========== =========== ========= ========== ===========
<FN>
The accompanying notes are integral part of the consolidated financial
statements.
</FN>
</TABLE>
Page 6 of 34
<PAGE>
CHURCHILL DOWNS INCORPORATED
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
for the six months ended June 30, 1996 and 1995
(Unaudited)
SIX MONTHS ENDED JUNE 30
1996 1995
----------- ------------
Cash flows from operating activities:
Net earnings $ 9,823,652 $ 8,877,935
Adjustments to reconcile net earning to
net cash provided by operating activities:
Depreciation and amortization 2,294,718 2,225,496
Increase (decrease) in cash resulting from
changes in operating assets and liabilities,
net of effects from acquisitions:
Accounts receivable (3,454,314) (2,025,022)
Other current assets 342,745 130,355
Income taxes payable 5,490,000 5,459,008
Deferred revenue (4,897,788) (5,113,532)
Accounts payable and accrued expenses 5,185,377 8,492,251
Minority interest 218,390 --
Other 2,210,277 1,293,684
---------- ---------
Net cash provided by operating activities 17,213,057 19,340,175
----------- ----------
Cash flows from investing activities:
Additions to property, plant and equipment, net (1,401,267) (5,934,265)
Net cash used in investing activities (1,401,267) (5,934,265)
Cash flows from financing activities:
Decrease in bank note payable, net (3,401,000) (3,763,020)
Dividend paid (1,892,302) (1,891,659)
Common stock repurchased (2,346,001) --
---------- -----------
Net cash used in financing activities (7,639,303) (5,654,679)
---------- -----------
Net increase in cash and cash equivalents 8,172,487 7,751,231
Cash and cash equivalents, beginning of period 5,856,188 2,521,033
---------- -----------
Cash and cash equivalents, end of period $14,028,675 $10,272,264
=========== ===========
Supplemental Disclosures of cash flow information: Cash paid during the period
for:
Interest $219,601 $ 301,451
Income taxes $710,000 $ 240,000
The accompanying notes are an integral part of the financial statements.
Page 7 of 34
<PAGE>
CHURCHILL DOWNS INCORPORATED
CONDENSED NOTES TO FINANCIAL STATEMENTS
for the six months ended June 30, 1996 and 1995
(Unaudited)
1. Because of the seasonal nature of the Company's business,
revenues and operating results for any interim quarter are not indicative of the
revenues and operating results for the year and are not necessarily comparable
with results for the corresponding period of the previous year. The Company
normally earns a substantial portion of its net income in the second quarter of
each year during which the Kentucky Derby is run. The Kentucky Derby is run on
the first Saturday in May.
During the six months ended June 30, 1996 the Company conducted
simulcast receiving wagering for 661 location days. The Company operated
simulcast wagering at its Sports Spectrum site in Louisville, Kentucky for 84
days during the six month period, compared to 88 days in 1995. Through its
subsidiary, Hoosier Park L.P., the Company conducted simulcast wagering at its
racetrack in Anderson, Indiana and at three simulcast wagering facilities
located in Merrillville, Ft. Wayne and Indianapolis, Indiana for a total of 577
days compared to 332 days in 1995 when only three facilities were operating.
2. The accompanying financial statements are presented in accordance
with the requirements of Form 10-Q and consequently do not include all of the
disclosures normally required by generally accepted accounting principles or
those normally made in the Company's annual report on Form 10-K. The year end
condensed balance sheet data was derived from audited financial statements, but
does not include all disclosures required by generally accepted accounting
principles. Accordingly, the reader of this Form 10-Q may wish to refer to the
Company's Form 10-K for the period ended December 31, 1995 for further
information. The accompanying financial statements have been prepared in
accordance with the registrant's customary accounting practices and have not
been audited. In the opinion of management, all adjustments necessary for a fair
presentation of this information have been made and all such adjustments are of
a normal recurring nature.
3. On January 26, 1994 the Company through its wholly owned
subsidiary Churchill Downs Management Company ("CDMC") purchased Anderson Park,
Inc. ("API") for approximately $1,950,000. API owned an Indiana Standardbred
racing license and was in the process of constructing a racing facility in
Anderson, Indiana. Subsequently, the facility was completed and,
contemporaneously with the commencement of operations on September 1, 1994 the
net assets of API were contributed to a newly formed partnership, Hoosier Park,
L.P. ("HPLP") in return for an 87% general partnership interest.
Page 8 of 34
<PAGE>
CHURCHILL DOWNS INCORPORATED
CONDENSED NOTES TO FINANCIAL STATEMENTS
for the six months ended June 30, 1996 and 1995 (continued)
(Unaudited)
In December 1995, the Company entered into a Partnership Interest
Purchase Agreement with Conseco HPLP, L.L.C. ("Conseco") for the sale of 10% of
the Company's partnership interest in HPLP to Conseco. This sale was closed on
May 31, 1996. The purchase price for the 10% partnership interest was $218,390
and the transaction also included a payment of $2,603,514 for the acquisition of
a 10% interest in the debt owed by HPLP to CDMC at face value of debt at the
date of the closing. Conseco and Pegasus Group, Inc. ("Pegasus") are limited
partners of HPLP and Anderson continues to be the sole general partner of HPLP.
This sale is not anticipated to have any material effect on operations in 1996.
From May 31, 1996 through December 31, 1998, Conseco has an option
to purchase from API an additional 47% partnership interest in HPLP. The
purchase price of the additional partnership interest will be $22,156,000 of
which approximately $6,222,000 will be allocated to the purchase of the
partnership interest and approximately $15,934,000 will be allocated to the
acquisition of debt owed by HPLP to CDMC. This purchase is subject to the
approval of the Indiana Horse Racing Commission. Following this purchase,
Conseco will be the sole general partner of HPLP, and API and Pegasus, will be
limited partners of HPLP with partnership interest of 30% and 13% respectively.
CDMC will continue to have a long-term management agreement with HPLP pursuant
to which CDMC has operational control of the day-to-day affairs of Hoosier Park
and its related simulcast operations.
4. During the quarter ended June 30, 1996, the Company acquired
58,650 shares of its common stock at a total cost of $2,346,001. Quarterly
earnings per share amounts do not add to year-to-date earnings per share for
1996 because of this change in the number of outstanding shares.
5. The Company has an unsecured $20,000,000 bank line of credit with
various options for the interest rate, none of which are greater than the bank's
prime rate. Borrowings are payable on January 31, 1997. There were no borrowings
outstanding at June 30, 1996 and $3.0 million in borrowings were outstanding at
June 30, 1995.
6. On January 22, 1992, the Company acquired certain assets of
Louisville Downs, Incorporated for $5,000,000. In conjunction with this
purchase, the Company withheld $1,000,000 from the amount due to the sellers to
offset certain costs related to the remediation of environmental contamination
associated with underground storage tanks at the site. All of the $1,000,000
hold back has been utilized as of December 31, 1995.
It is not anticipated that the Company will have any liability as a
result of compliance with environmental laws with respect to the property.
Compliance with environmental laws has not otherwise affected development and
operation of the property and the Company is not otherwise subject to any
material compliance costs in connection with federal or state environmental
laws.
7. Certain balance sheet and statement of operations items have been
reclassified in the prior year to conform to current period presentation.
Page 9 of 34
<PAGE>
CHURCHILL DOWNS INCORPORATED
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
This discussion and analysis contains both historical and forward
looking information. The forward looking statements are made pursuant to the
safe harbor provisions of the Private Securities Litigation Reform Act of 1995.
Forward looking statements may be significantly impacted by certain risks and
uncertainties described herein, and in the Company's annual report on Form 10-K
for the year ended December 31, 1995.
For many years, the Company has conducted live Spring and Fall race
meetings for Thoroughbred horses in Kentucky. In 1988, the Company began to
participate in intertrack simulcasting as a host track for all of its live races
except those run on Kentucky Derby Day. In 1989, the Company commenced
operations as a receiving track for intertrack simulcasting. During November
1991, the Company began interstate simulcasting for all of the live races with
the receiving locations participating in the Company's mutuel pool. The Kentucky
Derby and Kentucky Oaks, which are run on the first weekend in May of each year,
continue to be the Company's outstanding attractions. In 1995, for the first
time, Churchill Downs offered the simulcast of its races on Kentucky Derby Day
to racetracks within Kentucky. In 1996, Derby weekend accounted for
approximately 30% of total on-track pari-mutuel wagering and 35% of total
on-track attendance, for the 1996 Spring Meet. In July 1994, the Company began
to participate in whole card simulcasting, whereby the Company began importing
whole race cards or programs from host tracks located outside the state for
pari-mutuel wagering purposes. Whole card simulcasting has created a major new
wagering opportunity for patrons of the Company in both Kentucky and Indiana.
Churchill Downs, through its subsidiary, Hoosier Park, L.P., is
majority owner and operator of Indiana's only pari-mutuel racetrack, Hoosier
Park at Anderson. Start-up costs incurred in Indiana during 1995 included
improvements to Hoosier Park in anticipation of the track's inaugural
Thoroughbred meet. In addition, Hoosier Park conducted two Harness race meets,
as well as simulcast wagering, during its first 16 months of operation. In 1995,
the Company opened off-track wagering facilities in Merrillville, Fort Wayne and
downtown Indianapolis, Indiana. The license for the Jeffersonville, Indiana
facility was surrendered in July 1995 because ownership of the tentative site
was in question and resolution was not expected in the near future. The Company
is continuing to evaluate sites for the location of a fourth satellite wagering
facility.
Page 10 of 34
<PAGE>
CHURCHILL DOWNS INCORPORATED
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (continued)
The Company's principal sources of income are commissions from
on-track pari-mutuel wagers, commissions from intertrack and fees from
interstate simulcast wagers, admissions and seating, concession commissions
(primarily for the sale of food and beverages), and license, rights, broadcast
and sponsorship fees. The Company's primary source of income is pari-mutuel
wagering. The Company retains the following amounts on specific revenue streams
as a percentage of handle:
KENTUCKY INDIANA
On-track pari-mutuel wagers 14% 18%
Intertrack host 8% --
Interstate/simulcast host 3% 3%
Intertrack/simulcast receiving 7% 18%
In Kentucky, licenses to conduct Thoroughbred race meetings and to
participate in simulcasting are approved annually by the Kentucky Racing
Commission based upon applications submitted by the racetracks in Kentucky,
including the Company. Based on gross figures for on-track pari-mutuel wagering
and attendance, the Company is the leading Thoroughbred racetrack in Kentucky.
In Kentucky, the Company has been granted a license to conduct live racing
during the period from April 27, 1996, through June 30, 1996, and from October
27, 1996, through November 30, 1996, for a total of 78 racing days.
In Indiana, licenses to conduct live Standardbred and Thoroughbred
race meetings and to participate in simulcasting are approved annually by the
Indiana Horse Racing Commission based upon applications submitted by the
Company. Currently, the Company is the only facility in Indiana licensed to
conduct live Standardbred or Thoroughbred race meetings and to participate in
simulcasting. In Indiana, the Company has received a license to conduct live
racing for a total of 133 racing days, including 80 days of Standardbred racing
from April 25, 1996 through September 2, 1996, and 53 days of Thoroughbred
racing from September 20, 1996 through November 30, 1996.
The Company operated two live racing facilities and conducted
simulcast wagering at four locations during the six month period ended June 30,
1996. The chart below summarizes the results of these operations.
Page 11 of 34
<PAGE>
<TABLE>
CHURCHILL DOWNS INCORPORATED
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (continued)
<CAPTION>
KENTUCKY INDIANA
Six Months Six Months Six Months Six Months
Ended June 30, Ended June 30, Increase Ended June 30, Ended June 30, Increase
1996 1995 (Decrease) 1996 1995 (Decrease)
-------------- -------------- --------- -------------- -------------- ---------
<S> <C> <C> <C> <C> <C> <C>
ON-TRACK
- - --------
Number of Race Days 48 46 2 43 66 (23)
Attendance 685,228 686,189 0% 48,974 90,182 (46)%
Handle $95,077,056 $88,436,906 8% $ 5,154,518 $8,798,255 (41)%
Avg. daily attendance 14,276 14,917 (4)% 1,139 1,366 (17)%
Avg. daily handle $1,980,772 $1,922,541 3% $ 119,873 $ 133,307 (10)%
Per capita handle $138.75 $128.88 8% $105.25 $ 97.56 8%
INTERTRACK/SIMULCAST-HOST (SENDING)
Number of Race Days 48 46 2 43 56 (13)
Handle $245,018,693 $137,265,922 78% $1,116,593 $1,642,722 (32)%
Avg. daily handle $5,104,556 $2,984,042 71% $ 25,967 $ 29,334 (11)%
INTERTRACK/SIMULCAST-RECEIVING*
Number of Race Days 84 88 (4) 577 332 245
Attendance 195,552 219,065 (11)% ** 157,735 **
Handle $52,340,744 $50,947,048 3% $69,946,803 $44,147,538 58%
Avg. daily attendance 2,328 2,489 (6)% ** 475 **
Avg. daily handle $623,104 $578,944 8% $121,225 $132,975 (9)%
Per capita handle $267.66 $232.57 15% ** $279.88 **
</TABLE>
* The Company's Indiana operations include three separate simulcast wagering
facilities.
** Attendance figures are not kept for the off-track wagering facilities in
Indianapolis, Fort Wayne or for simulcast-receiving at Hoosier Park.
Page 12 of 34
<PAGE>
CHURCHILL DOWNS INCORPORATED
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (continued)
With the advent of whole card simulcasting, the Company conducts
interstate simulcasting virtually year-round on multiple racing programs each
day from around the nation. The number of receiving days is increasing because
of additional off-track wagering facilities being opened in Indiana. During
1995, simulcast wagering was being conducted at Hoosier Park in Anderson,
Indiana and beginning January 25, 1995 at Merrillville, Indiana. Two additional
simulcast facilities were opened during 1995, one in Ft. Wayne, Indiana on April
25, 1995, and the other in Indianapolis, Indiana in October 25, 1995. Simulcast
wagering was conducted at all four facilities throughout the first half of 1996.
For 1996, the Company has been granted a license to operate simulcast receiving
locations in Kentucky and Indiana for any and all possible dates from January 1
through December 31 and intends to receive simulcasting on all possible days. An
increase in the number of days is expected to enhance operating results. Hoosier
Park may ultimately be supported by a fourth whole card simulcasting facility.
Because the business of the Company is seasonal, the number of
persons employed will vary throughout the year. Approximately 600 individuals
are employed on a permanent year-round basis. During the live race meetings, as
many as 2,600 persons are employed.
By the end of the second quarter of 1997, as many as five Indiana
riverboats may be operating along the Ohio River, with one of the nation's
largest complexes to be located 10 miles from Louisville in Harrison County,
Indiana. Studies project that direct competition with these boats could result
in as much as a 30% decline in on-track wagering at Churchill Downs and a 20%
decline in Sports Spectrum business. In response, the Company's Board of
Directors passed a resolution at its June 13 meeting instructing the Company's
management to aggressively pursue alternative forms of gaming at its racetrack
facilities in Louisville. The integration of alternative gaming products at the
racetrack is one of four core business strategies developed by the Company to
grow its live racing program. Management has been positioning the Company to
compete in this changing environment for the past several years by strengthening
its flagship operations, increasing its share of the interstate simulcast
market, and geographically expanding its racing operations into Indiana. The
Company currently is working to build a consensus within Kentucky's horse
industry for a plan to offer alternative gaming products exclusively at state
racetracks.
On May 7, 1996 the Company purchased 58,650 shares of common stock
at a total cost of $2,346,001. The purchase had a positive effect on earnings
per share, adding $.02 to earnings per share for the six month period ended June
30, 1996. The Company expects 1996 total earnings per share to benefit by
approximately $.03 as a result of the purchase.
Page 13 of 34
<PAGE>
CHURCHILL DOWNS INCORPORATED
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (continued)
COMPARISON OF SIX MONTHS ENDED JUNE 30, 1996 TO 1995
Net revenue during the six months ended June 30, 1996 increased
$8,542,259. Kentucky operations contributed 52%, or $4,461,692 to the total
increase, with Simulcast-Host showing the largest increase at $2,389,289.
Simulcast-Host represents revenues generated by transmitting the Company's live
races at Churchill Downs outside the state of Kentucky to outlets across the
nation. The number of outlets increased from 226 in 1995 to 401 in 1996.
On-track wagering on the Company's live races at Churchill Downs was 3.19% below
1995. This decrease was offset by an increase in wagering on whole card
simulcast races during 41 days of the live meet.
During the first half of 1996, Indiana operations contributed
$4,080,567 or 48% to the revenue increase. In addition to an increase in
Simulcast-Host of $2,262,521, Simulcast-Receiving increased $1,865,149 primarily
as a result of the increase in the number of simulcast outlets in 1996. On-track
revenue decreased at Hoosier Park by $703,994 when compared to 1995 primarily
due to the live racing meet starting three weeks later and having one less race
day per week this year, resulting in 23 fewer race days in 1996.
Concession commission and program revenue both increased due largely
to the Indiana operations. Indiana had four facilities operating in 1996
compared to only three in 1995. The increase in other revenue is due to $527,679
of Indiana riverboat admissions tax that is payable to licensed racetracks
facilities in Indiana per Indiana state law.
Page 14 of 34
<PAGE>
<TABLE>
CHURCHILL DOWNS INCORPORATED
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (continued)
NET REVENUE SUMMARY
Six Months Six Months 1996 VS. 1995
Ended % To Ended % To
June 30, Total June 30, Total $ %
1996 Revenue 1995 Revenue Change Change
----------- ------- ----------- ------- ---------- ------
<S> <C> <C> <C> <C> <C> <C>
Pari-Mutuel Revenue:
On-track $13,787,088 21% $14,244,632 24% $ (457,544) -3%
Intertrack-Host 4,939,959 7 4,103,517 7 836,442 20
Simulcast-Receiving 14,684,372 22 12,458,047 21 2,226,325 18
Simulcast Host 10,801,151 16 6,149,341 11 4,651,810 76
------------- --------------- -- ---------- ---
44,212,570 66 36,955,537 63 7,257,033 20
Admission & Seat Revenue 10,322,496 15 10,363,623 18 (41,127) 0
License, Rights, Broadcast
& Sponsorship Fees 5,357,850 8 5,326,281 9 31,569 1
Concession Commission 1,798,167 3 1,720,339 3 77,828 5
Program Revenue 1,865,790 3 1,574,783 3 291,007 18
Derby Expansion Area 1,128,270 2 1,015,940 2 112,330 11
Other 1,804,859 3 991,240 2 813,619 82
------------- ---- ----------- ---- ----------- ----
$66,490,002 100% $57,947,743 100% $ 8,542,259 15%
=========== ==== =========== ==== =========== ====
</TABLE>
Page 15 of 34
<PAGE>
CHURCHILL DOWNS INCORPORATED
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (continued)
Operating expenses increased $6,896,173 during the six month period.
Gross margin decreased from 31.8% to 30.2% through June 30, 1996. This decrease
in gross margin results primarily from a higher percentage of revenue in 1996
coming from lower margin simulcast products. Specifically, due to simulcasting
at three satellite wagering facilities and at Hoosier Park in Indiana in 1996,
coupled with the increase in whole card simulcasts at the Sports Spectrum in
Louisville and during the Churchill Downs live meet. Changes in specific expense
categories follow.
Purse expense increased $2,933,941 due largely to the increase in
Simulcast-Host handle in both Kentucky and Indiana. In addition, Indiana
Simulcast-Receiving purse expense increased $611,789. In Kentucky and Indiana
purse expense varies directly with pari-mutuel revenues and is calculated as a
percentage of the related revenue and may change from year to year pursuant to
contract or statute.
The increase in Wages and Contract Labor of $480,482 can be
attributed to an increase in number of mutuel clerks on Oaks and Derby days in
Kentucky along with the opening of the third Indiana satellite wagering
facility. The $708,381 increase in Advertising, Marketing and Publicity is due
largely to the marketing of the wagering facilities in Indiana. Approximately
$300,000 was spent as part of an intensive marketing campaign in Indiana with
approximately $150,000 being spent in each of the Fort Wayne and Hoosier Park
(Anderson, Indiana) areas. Response to the marketing efforts was positive and
the goal is to maintain increased handle as marketing support is reduced.
Additionally, new marketing programs such as the Twin Spires Club and Winners
Circle Sponsorship, along with expenses incurred in conjunction with ESPN's
Derby Week coverage, also caused increases during the six month period.
Racing Relations and Services increased $195,670 due largely to the
end-of-meet state license tax accrual that, for the past three years, has been
accrued in the third quarter at the end of the spring race meet. In 1996, the
spring race meet ended in the second quarter on June 30,1996.
Audio, Video and Signal Distribution expense increased $88,988 due
primarily to the additional facility in Indiana. Totalisator and Simulcast Host
Fee expenses increased for the six month period $162,962 and $1,109,396,
respectively. These expenses are related to the operation of the off-track
wagering facilities in both Kentucky and Indiana. Totalisator expense is
generated based on total wagers taken at the facilities. Simulcast host fees are
paid to the track whose live races are being simulcast at the facilities. As
total wagers increase, these expenses, along with purses, increase accordingly.
In Kentucky simulcast host fees increased relative to combined handle as a
result of a shift in wagering from in-state to out-of-state racing cards. This
was primarily the result of winter weather conditions in Kentucky which required
racing in the state to be canceled several times throughout the first quarter.
This shift translates to slimmer margins because no simulcast fees are paid on
in-state racing, and in-state purses are calculated at a slightly lower rate.
Page 16 of 34
<PAGE>
CHURCHILL DOWNS INCORPORATED
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (continued)
Program expenses increased $408,222 for the quarter. This is
primarily attributed to higher paper cost in Kentucky, which resulted in an
increase of $205,090. The increases in Indiana are attributable to the addition
of the third Indiana satellite wagering facility and a higher than expected
scrap rate in Indiana.
Maintenance and Utilities increased $113,239 and $306,566
respectively. General repairs at the four Indiana facilities account for the
increase in maintenance, which includes expenses for winter storm damage and
supplies. Utilities increased overall due to the unseasonably cold winter
temperatures and the additional facility in Indiana.
Increases of $110,474 in Insurance, Taxes and License Fees are
derived from a $19,357 decrease in Kentucky operations attributed to savings
generated by a change in insurance carriers and a $129,831 increase in Indiana
due to the insurance requirements for the additional OTB facility. Facility rent
in 1996 is attributable to the Indianapolis simulcast facility.
Page 17 of 34
<PAGE>
<TABLE>
CHURCHILL DOWNS INCORPORATED
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (continued)
OPERATING EXPENSE SUMMARY
Six Months Six Months
Ended % To Ended % To 1996 VS. 1995
June 30, Total June 30, Total $ %
1996 Expense 1995 Expense Change Change
---------- ------- ---------- ------- --------- ------
<S> <C> <C> <C> <C> <C> <C>
Purses:
On-track $7,638,311 16% $7,758,132 20% $(119,821) -2%
Intertrack-Host 2,362,120 5 1,997,672 5 364,448 18
Simulcast- Receiving 4,829,253 10 4,108,994 10 720,259 18
Simulcast-Host 4,777,029 10 2,807,974 7 1,969,055 70
----------- --- ----------- -- ---------- ----
$19,606,713 41 $16,672,772 42 $2,933,941 18
Wages and Contract Labor 8,802,118 19 8,321,636 21 480,482 6
Advertising, Marketing
& Publicity 2,134,306 5 1,425,925 4 708,381 50
Racing Relations
& Services 782,689 2 587,019 1 195,670 33
Totalisator Expense 662,785 1 499,823 1 162,962 33
Simulcast Host Fee 3,533,463 8 2,424,067 6 1,109,396 46
Audio/Video & Signal
Distribution Expense 1,293,837 3 1,204,849 3 88,988 7
Program Expense 1,461,967 3 1,053,745 3 408,222 39
Depreciation &
Amortization 2,291,564 5 2,225,496 6 66,068 3
Insurance, Taxes &
License Fees 1,373,504 3 1,263,030 3 110,474 9
Maintenance 984,577 2 871,338 2 113,239 13
Utilities 1,264,525 3 957,959 2 306,566 32
Derby Expansion Area 415,915 1 402,713 1 13,202 3
Facility/Land Rent 331,289 1 157,493 1 173,796 100
Other meeting expense 1,458,624 3 1,433,838 4 24,786 2
----------- ---- ----------- ---- ----------- ----
$46,397,876 100% $39,501,703 100% $ 6,896,173 17%
=========== ==== =========== ==== =========== ====
</TABLE>
Page 18 of 34
<PAGE>
CHURCHILL DOWNS INCORPORATED
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (continued)
Selling, general and administrative expenses increased $234,551
during the six month period. This is primarily due to an increase in Salaries
and Wages in Indiana relating to the additional simulcast wagering facility.
Interest expense was down $209,697 as positive cash flow from
operations has allowed the Company to continue paying down its line of credit.
As of May 7, 1996 the outstanding balance on the line of credit has been
completely retired.
COMPARISON OF THREE MONTHS ENDED JUNE 30, 1996 TO THREE MONTHS ENDED JUNE 30,
1995
Net revenue increased $5.6 million due primarily to an increase in
Simulcast-Host, with the Company's live races being transmitted to a record
number of outlets across the nation. Additionally, Simulcast-Receiving increased
due to an extra simulcasting outlet being open in Indiana during 1996.
Operating expenses increased by $3.6 million primarily due to the
increase in Purse Expense which accompanies an increase in pari-mutuel revenue.
Selling, General, and Administrative Expenses remained relatively flat,
decreasing $30,497 during the quarter.
COMPARISON OF THREE MONTHS ENDED JUNE 30, 1996 TO THREE MONTHS ENDED MARCH 31,
1996
Net revenues increased $43.4 million primarily due to $49.2 million
in live racing revenue at Churchill Downs during the second quarter. Churchill
Downs' second quarter included 48 live racing days versus no live racing during
the three months ended March 31, 1996. Operating expenses increased $20.0
million also due to the live racing days. These increases were offset somewhat
by 50 fewer intertrack receiving days at the Sports Spectrum during the quarter.
Selling, general and administrative costs for the second quarter of
1996 were $2.1 million, up from $1.8 million in the quarter ended March 31,
1996. This increase is primarily due to costs related to the live race meets at
Churchill Downs and Hoosier Park in the second quarter.
Page 19 of 34
<PAGE>
CHURCHILL DOWNS INCORPORATED
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (continued)
SIGNIFICANT CHANGES IN THE BALANCE SHEET DECEMBER 31, 1995 TO JUNE 30, 1996
The cash balances at June 30, 1996 were $8.2 million higher than
December 31, 1995 due to the cash generated during 48 live race days at
Churchill Downs, principally Kentucky Derby and Oaks weekend, and 43 live race
days at Hoosier Park. Cash balances during May and June are historically at the
highest levels of the year.
Accounts receivable at June 30, 1996 were $3.5 million higher than
December 31, 1995 due primarily to interstate and intrastate simulcasting
settlements which were received in July and August, 1996.
Racing plant & equipment increased by $1.4 million as a result of
routine capital spending throughout the Company. There were no major capital
projects during the six month period.
Accounts payable at June 30, 1996 were $5.6 million higher than at
December 31, 1995 mainly due to horsemen's balances for the live race meeting at
Churchill Downs. Such balances for the Fall 1995 race meeting had been paid by
December 31, 1995.
Deferred revenue was lower at June 30, due to the significant amount
of admission and seat revenue that was received in advance at December 31 and
recognized as income in May 1996 for the Kentucky Derby and Oaks.
Notes payable were $3.4 million lower at June 30, 1996 as positive
cash flow has allowed the Company to eliminate its outstanding amount of bank
debt. However, Hoosier Park recognized $2.9 million in debt due to the Conseco
purchase of 10% of the partnership.
Dividends payable decreased by $1.9 million due to the payment of
the dividend in January 1996.
Income taxes payable at June 30, 1996 relate to the estimated
expense due for the six month period. Due to the seasonality of the business
related to the Spring race meeting, the second quarter of the year is the
highest in earnings and related taxes.
SIGNIFICANT CHANGES IN THE BALANCE SHEET JUNE 30, 1995 TO JUNE 30, 1996
Cash balances at June 30, 1996 are $3.7 million above June 30, 1995
principally due to payments in 1995 for construction of the wagering facilities
in northern and central Indiana.
Accounts receivable at June 30, 1996 were up due to interstate
simulcasting and the increased number of outlets for the Churchill Downs spring
race meeting.
Page 20 of 34
<PAGE>
CHURCHILL DOWNS INCORPORATED
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (continued)
Property, plant & equipment increased during the year by $3.4
million due to the addition of the third simulcasting facility in Indiana and
improvements which allowed Thoroughbred racing at Hoosier Park in September and
October 1995, as well as routine capital spending throughout the Company.
Accounts payable decreased by $1.4 million primarily due to the
amount payable related to the Hoosier Park construction in 1995.
LIQUIDITY AND CAPITAL RESOURCES
Working capital for the six months ended June 30, 1996 and June 30,
1995 is as follows:
June 30
----------------------------------
1996 1995
Working capital deficiency $( 3,771,311) $(7,153,344)
Working capital ratio .84 to 1 .68 to 1
The working capital deficiency is primarily a result of the nature
and seasonality of the Company's business. Cash flows provided by operations
were $16.8 million for the six months ended June 30, 1996; $16.5 million for the
twelve months ended December 31, 1995; and $19.3 million for the six months
ended June 30, 1995. Management believes cash flows from operations during 1996
and funds available under the Company's unsecured line of credit will be
sufficient to fund dividend payments (historically about $1.9 million) and
additions and improvements to the racing plant and equipment which are expected
to be approximately $3.0 million. Included in this figure is the expansion of
the general office at Churchill Downs.
The Company has a $20,000,000 unsecured line-of-credit available
with $20 million available at June 30, 1996 to meet working capital and other
short-term requirements. Management believes that the Company has the ability to
obtain additional long-term financing should the need arise.
Page 21 of 34
<PAGE>
CHURCHILL DOWNS INCORPORATED
PART II. OTHER INFORMATION
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The registrant's 1996 Annual Meeting of Shareholders was held on
June 13, 1996. Proxies were solicited by the registrant's board of directors
pursuant to Regulation 14 under the Securities Exchange Act of 1934. There was
no solicitation in opposition to the board's nominees as listed in the proxy
statement, and all nominees were elected by vote of the shareholders. Voting
results for each nominee were as follows:
VOTES FOR VOTES WITHHELD
CLASS III DIRECTORS:
Charles W. Bidwill, Jr. 2,942,120 5,516
Thomas H. Meeker 2,942,335 5,301
Carl F. Pollard 2,942,550 5,086
Darrell R. Wells 2,941,570 6,066
A proposal (Proposal No. 2) to approve the Churchill Downs
Incorporated 1995 Employee Stock Purchase Plan was approved by a vote of the
majority of the shares of the registrant's common stock represented at the
meeting: 2,720,006 shares were voted in favor of the proposal; 198,973 were
voted against; 17,683 abstained; and 10,974 were not voted by beneficial
holders.
A proposal (Proposal No. 3) to approve the minutes of the 1995 Annual
Meeting of Shareholders was approved by a vote of the majority of the shares of
the registrant's common stock represented at the meeting: 2,818,631 shares were
voted in favor of the proposal; 121,521 were voted against; and 7,484 abstained.
The total number of shares of common stock outstanding as of April
18, 1995, the record date of the Annual Meeting of Shareholders, was 3,784,605.
Item 6. EXHIBITS AND REPORTS ON FORM 8-K.
A. See exhibit index
B. During the quarter ending June 30, 1996, no Form 8-K's were filed by
the Company.
Page 22 of 34
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934 the
registrant has duly caused this amendment to be signed on its behalf by the
undersigned hereunto duly authorized.
August 14, 1996 /S/THOMAS H. MEEKER
-------------------------------
Thomas H. Meeker
President
August 14, 1996 /S/VICKI L. BAUMGARDNER
--------------------------------
Vicki L. Baumgardner, Treasurer
( Principal Financial and
Accounting Officer)
Page 23 of 34
<PAGE>
EXHIBIT INDEX
NUMBERS DESCRIPTION BY REFERENCE TO
(10)(l) Second Amended Secured Promissory Note Page 25
Dated November 1, 1994, in the original
principal amount of $28.7 million made by
Hoosier Park, L.P. to Churchill Downs
Management Company
(10)(m) Participation Agreement between Churchill Page 30
Downs Management Company and Conseco
HPLP, L.L.C., dated May 31, 1996
Page 24 of 34
SECOND AMENDED SECURED PROMISSORY NOTE
$28,700,000 Louisville, Kentucky
November 1, 1994
WHEREAS, HOOSIER PARK, L.P. ("Borrower") is indebted to CHURCHILL
DOWNS MANAGEMENT COMPANY ("Lender") under the following promissory notes: (I)
Amended Secured Promissory Note dated January 31, 1994 in the original principal
amount of $15,000,000, assumed by Borrower as of August 30, 1994 (the "Amended
Note"), (ii) Promissory Note dated October 7, 1994 in the original principal
amount of $416,278 (the "October 7 Note"), and (iii) Promissory Note dated
October 27, 1994 in the original principal amount of $1,401,500 (the "October 27
Note"), (the Amended Note, the October 7 Note and the October 27 Note are
collectively sometimes referred to as the "Notes").
WHEREAS Borrower and Lender desire to issue this Note (I) in
substitution and replacement of the Notes, and (ii) to provide for additional
extensions of credit by Lender to Borrower pursuant to the terms and conditions
of this Note.
FOR VALUE RECEIVED, the undersigned, Borrower, with an address of
700 Central Avenue, Louisville, Kentucky 40208, hereby promises and agrees to
pay to the order of Lender, a Kentucky corporation having an address of 700
Central Avenue, Louisville, Kentucky 40208, the aggregate principal sum of
Twenty Eight Million Seven Hundred Thousand ($28,700,000), or so much thereof as
may be advanced to or on behalf of Borrower pursuant to the terms of this Note,
together with interest thereon as hereinafter provided, in lawful money of the
United States of America, in the manner set forth herein and with a final
maturity date of November 1, 2004, or such later date as may be extended in
accordance with this Note (the "Loan Maturity Date").
The principal of this Note shall bear interest on the unpaid balance
thereof at a rate per annum which shall be equal to Two Percent (2%) above the
prime rate of interest announced from time to time by PNC Bank, Kentucky, Inc.
("PNC Bank") as its prime rate (the "Prime Rate"). The Prime Rate of PNC Bank,
as used in this Note, shall mean that rate of interest announced from time to
time by PNC Bank at its principal office in Louisville, Kentucky to be the Prime
Rate of PNC Bank. Any change in the Prime Rate of PNC Bank shall be effective as
of the beginning of the day on which such change becomes effective. All interest
on this Note shall be computed daily on the basis of the actual number of days
elapsed over a year assumed to consist of three hundred sixty (360) days.
Principal and interest on this Note shall be payable in the manner
as set forth herein. Commencing on December 1, 1994, and continuing on the first
day of each month thereafter through and including the Loan Maturity Date,
Borrower shall promptly pay monthly installments of interest. As to any
installment of interest, if Borrower does not pay such installment when due,
such installment shall be deemed and constitute an additional advance of
principal under this Note; provided, however, in no event will any such
installment constitute an additional advance of principal under this Note if,
when taking such installment into account, the outstanding principal balance
under this Note equals or exceeds $28,700,000. If any such installment
constitutes an additional advance of principal under this Note pursuant to the
immediately preceding sentence, such installment shall not be considered overdue
under
Page 25 of 34
<PAGE>
this Note nor will the failure to pay such installment when due be a default
under this Note. The principal of this Note, and all accrued but unpaid interest
thereon, shall be paid in full on or before November 1, 2004.
All additional advances of principal under this Note shall be made
at such times, and upon such terms and conditions, as agreed to by Borrower and
Lender.
Principal of this Note may be repaid in whole or in part without
penalty or premium at any time.
All payments of principal and interest and any other sums due under
this Note shall be made in immediately available funds to Lender at 700 Central
Avenue, Louisville, Kentucky 40208, or to such other person or at such other
address as may be designated in writing by the holder of this Note. All payments
on this Note shall be applied first to the payment of any expenses or charges
payable hereunder, and next to accrued interest, and then to the principal
balance hereof, or in such other order as Lender may elect in its sole
discretion.
Any payment on this Note that is overdue for more than fifteen (15)
days from its due date shall, if requested by the holder of this Note, be
increased by an amount equal to five percent (5%) of the overdue payment, or
such lesser maximum amount as legally may be allowed. The charging or collection
of a late charge shall not be deemed a waiver of any of the holder's rights
hereunder, including the right to declare a default.
This Note is issued in part in replacement and substitution of the
Notes, but does not constitute a forgiveness or novation of the indebtedness
evidenced by such Notes, which is now evidenced by this Note. This Note shall be
deemed to be the "Note" issued pursuant to, and subject to all the terms and
conditions of the Mortgage, Assignment of Rents, Security Agreement and Fixture
Filing and Collateral Assignment of Contracts dated September 30, 1993, as
amended on January 31, 1994, and as further amended on today's date between
Borrower and the Lender and all other loan documents (the "Loan Documents"). The
occurrence of any "Event of Default" under the Loan Documents or under any note,
security document or other loan document between the Borrower, the Lender and
any guarantor shall be an Event of Default hereunder, and Lender may, at its
option, and without notice, declare the entire unpaid principal balance of, and
all accrued interest on, this Note to be immediately due and payable and proceed
to enforce and realize upon any or all security for this Note provided under the
Loan Documents.
Without limiting the generality of the preceding paragraph, if
default occurs in the payment of any installment of interest and/or principal
hereunder when due or in the payment of any other sum herein specified when due,
and such default shall have continued for a period of five (5) business days
after written notice of such default is given by Lender to Borrower, the Lender
may, without further notice, declare the entire unpaid principal balance of, and
all accrued interest on, this Note to be immediately due and payable and proceed
to enforce all remedies available to it and realize upon any or all security for
this Note.
Page 26 of 34
<PAGE>
Whenever there is an Event of Default under this Note, the entire
principal balance of, and all accrued interest on, this Note, and all other
existing or hereafter created or arising liabilities, indebtedness and
obligations of Borrower to the holder (however acquired or evidenced) shall, at
the option of the holder, become forthwith due and payable, without presentment,
notice, protest or demand of any kind (all of which are expressly waived by
Borrower). Upon the occurrence of any such Event of Default, in addition to the
other remedies afforded to the holder hereunder, the rate of interest then
applicable to the entire unpaid principal balance of this Note shall, at the
option of the holder, be increased by an increment of an additional four percent
(4%) per annum, or such lesser increment as may be the maximum permitted by law.
This Note, the Loan Documents, and all other agreements between the
Borrower and the holder of this Note, whether now existing or whether hereafter
arising and whether written or oral, are hereby expressly limited so that in no
contingency or event whatsoever, whether by reason of acceleration of the
maturity hereof, or otherwise, shall the amount paid or agreed to be paid to the
holder of this Note for the use, forbearance or retention of money loaned
hereunder, or advanced for the performance or payment of any covenant or
obligation contained herein, in any other Loan Document, or in any other
document evidencing, securing or pertaining to the indebtedness evidenced
hereby, exceed the maximum amount permissible under applicable law. If from any
circumstances whatsoever, fulfillment of any provision of this Note, the Loan
Documents, or of any such other document, at the time performance of such
provisions shall be due, shall involve transcending the limit of validity
prescribed by law, then IPSO FACTO the obligation to be fulfilled shall be
reduced to the limit of such validity, and if from such circumstance the holder
of this Note shall ever receive anything of value deemed by applicable law to be
interest in any amount that would exceed the highest lawful rate payable
hereunder, an amount equal to any excessive interest shall be applied to the
reduction of the principal amount owing hereunder and not to the payment of
interest, and if the amount that would be excessive interest exceeds the
principal balance then owing, such excess shall be refunded to the party paying
the same.
Failure of the holder of this Note to exercise any of its rights and
remedies shall not constitute a waiver of the right to exercise the same at that
or any other time. All rights and remedies of the holder for default under this
Note shall be cumulative to the greatest extent permitted by law. Time shall be
of the essence in the payment of all installments of interest and principal on
this Note and the performance of Borrower's other obligations under this Note.
If there is any Event of Default under this Note, and this Note is
placed in the hands of an attorney for collection or is collected through any
court, including any bankruptcy court, Borrower promises to pay to the holder
hereof its reasonable attorneys' fees and court costs incurred in collecting or
attempting to collect or securing or attempting to secure this Note or enforcing
the holder's rights in any collateral securing this Note, provided the same is
legally allowed by the laws of the Commonwealth of Kentucky or any state where
the collateral or part thereof is situated.
Without restricting any of the rights or remedies available to
Lender, Lender shall have the right to set off, at any time after an Event of
Default by Borrower under this Note, without notice to Borrower, any and all
deposits or other sums at any time or times credited by or due from Lender to
Borrower whether or not held by Lender in a special account or other account or
represented by a certificate of deposit (whether or not matured), which deposits
and other sums shall at all times constitute
Page 27 of 34
<PAGE>
additional security for the obligations of Borrower arising under this Note and
under any of the other Loan Documents. Borrower hereby grants to Lender a lien
on and a continuing security interest in all instruments, documents, securities,
cash, chattel paper, general intangibles, deposits, certificates of deposit,
other property, and the cash and noncash proceeds of any of the foregoing, owned
by Borrower, or in which Borrower has an interest, which now or hereafter are at
any time in possession or control of Lender, or in transit by mail or carrier to
or from Lender or in the possession of any third party on behalf of Lender,
without regard to whether Lender received the same in pledge, for safekeeping,
as an agent for collection or transmission or otherwise, or whether Lender had
conditionally released the same, all of which shall at all times constitute
additional security for the obligations of Borrower hereunder and under the Loan
Documents, and all of which may be applied at any time after an Event of Default
by Borrower with respect to any of said obligations, without notice to Borrower,
in such order as Lender may determine.
The invalidity or unenforceability of any provision of this Note
shall not impair the validity or enforceability of any other provision of this
Note.
This Note has been delivered in, and shall be governed by and
construed in accordance with the laws of the Commonwealth of Kentucky.
Borrower and any other party who may become primarily or secondarily
liable for any of the obligations of Borrower hereunder hereby (a) waive
presentment, demand, notice of dishonor, protest, notice of protest, (b) further
waive all exemptions to which they may now or hereafter be entitled under the
laws of this or any other state or of the United States, and (C) further agree
that the holder of this NotE shall have the right without notice, to deal in any
way, at any time, with Borrower, or any guarantor of this Note or with any other
party who may become primarily or secondarily liable for, or pledge any
collateral as security for, any of the obligations of Borrower under this Note
and to grant any extension of time for payment of this Note or any other
indulgence or forbearance whatsoever, and may release any security for the
payment of this Note and/or modify the terms of the Loan Documents securing or
pertaining to this Note, without in any way affecting the liability of Borrower,
or such other party who may pledge any collateral as security for, or become
primarily or secondarily liable for, the obligations of Borrower hereunder and
without waiving any rights the holder of this Note may have hereunder or by
virtue of the laws of this state or any other state of the United States.
IN THE EVENT LENDER SHALL AT ANY TIME INSTITUTE ANY ACTION OR
PROCEEDING AGAINST BORROWER, BORROWER HEREBY CONSENTS TO THE JURISDICTION OF ALL
COURTS OF THE COMMONWEALTH OF KENTUCKY AND ALL FEDERAL DISTRICT COURTS, AND TO
THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN THE STATE OR FEDERAL COURTS IN THE
CITY OF LOUISVILLE, JEFFERSON COUNTY, KENTUCKY, WHICH IS THE PLACE OF MAKING OF
THIS NOTE AND IS THE PRINCIPAL PLACE WHERE THE OBLIGATIONS OF BORROWER TO THE
HOLDER HEREOF ARE TO BE PERFORMED.
TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY WAIVES
THE RIGHT TO TRIAL BY JURY IN ANY ACTION BROUGHT BY ANY PARTY TO THIS NOTE
AGAINST ANY OTHER PARTY TO THIS NOTE. THE CONSENT AND WAIVER CONTAINED
Page 28 of 34
<PAGE>
HEREIN HAS BEEN VOLUNTARILY AND KNOWINGLY MADE, AFTER THE BORROWER HAS BEEN
ADVISED AND COUNSELED BY ITS ATTORNEYS AS TO THE NATURE THEREOF.
"BORROWER"
HOOSIER PARK, L.P.
By: Anderson Park, Inc., its general
partner
By: /S/ JEFFREY M. SMITH
-------------------------
Title: PRESIDENT
Date: MARCH 29, 1995
Page 29 of 34
PARTICIPATION AGREEMENT
This PARTICIPATION AGREEMENT (this "Agreement") is made this 31st day of
May, 1996, by and between Churchill Downs Management Company (the "Lead"), and
Conseco HPLP, L.L.C. (the "Participant").
1. THE PARTICIPATION. The Lead hereby agrees to sell and the Participant
hereby agrees to purchase a ten percent (10%) (the "Participation Percentage")
undivided participation interest in the loan (the "Loan") heretofore made by the
Lead to Hoosier Park, L.P. (the "Borrower") pursuant to (A) the Construction
Loan and Permanent Financing Agreement, dated September 30, 1994, between
Anderson Park, Inc., an Indiana corporation ("API"), and the Lead (the
"Construction Loan Agreement"), as assumed by the Borrower pursuant to (I) the
Hoosier Park Agreement of Limited Partnership dated August 30, 1994 and (ii) the
Assumption Agreement, dated August 30, 1994, executed by the Borrower in favor
of API (the "Assumption Agreement"), and as amended by (I) the Agreement
Regarding Construction Loan and Permanent Financing Agreement, Mortgage,
Collateral Assignment of Contract and Other Matters, dated January 31, 1994,
between API and the Lead (the "January 31, 1994 Agreement"), (ii) the Loan
Extension Agreement, dated June 1, 1994, between API and the Lead (the
"Extension Agreement"), and (iii) the Second Agreement Regarding Construction
Loan and Permanent Financing Agreement, Collateral Assignment of Contract and
Other Matters dated as of November 30, 1995 (the November 30, 1995 Amendment")
and (B) the Second Amended Secured Promissory Note, dated November 1, 1994, by
Borrower in favor of the Lead (the "Note"). The Loan is secured pursuant to (A)
the Collateral Assignment of Contracts, dated September 30, 1993, between API
and the Lead (the "Collateral Assignment"), as assumed by the Borrower pursuant
to the Assumption Agreement and as amended by the January 31, 1994 Agreement,
and the November 30, 1995 Amendment, (B) the Mortgage, Assignment of Rents,
Security Agreement and Fixture Filing, dated September 30, 1993, between API and
the Lead (the "Mortgage"), as assigned to the Borrower pursuant to the
Assumption Agreement and the Assignment and Assumption of Mortgage, Assignment
of Rents, Security Agreement and Fixture Filing and Consent to Assignment, dated
August 30, 1995, executed by the Borrower in favor of API (which was consented
to by the Lead and accepted by the Borrower pursuant to agreements dated August
30, 1994) (collectively the "Mortgage Assignments") and as amended by (I) the
January 31, 1994 Agreement and (ii) the Second Agreement Amending Mortgage,
Assignment of Rents, Security Agreement and Fixture Filing, dated as of November
30, 1995, between the Lead and the Borrower (the "Second Amendment");(C)the API
Pledge Agreement, dated August 30, 1994, between API and the Lead, (D) the
Pegasus Pledge Agreement, dated August 30, 1994, between Pegasus Group, Inc., an
Indiana corporation and the Lead and (E) the Conseco Pledge Agreement, dated May
31, 1996, between the Participant and the Lead. The Construction Loan Agreement,
the Assumption Agreement, the January 31, 1994 Agreement, the Extension
Agreement, the November 30, 1995 Amendment, the Note, the Collateral Assignment,
the Mortgage, the Mortgage Assignments, the Second Amendment, the API Pledge
Agreement, the Pegasus Pledge Agreement and the Conseco Pledge Agreement
(collectively, together with any other documenta tion evidencing the Loan and
any security therefor, the "Loan Documents") are attached hereto as Exhibits A,
B, C, D, E, F, G, H, I, J, K , L and M respectively.
Page 30 of 34
<PAGE>
2. (a) PAYMENT FOR PARTICIPATION. The Participant, concurrently with the
execution of this Agreement, shall pay to the Lead $ 2,599,000.00, the same
being the Participation Percent age of all advances made to the Borrower
pursuant to the Loan Documents as of the date of the closing (the "Closing
Date") of the purchase by the Participant of a ten percent (10%) partnership
interest in the Borrower from API, pursuant to the Partnership Interest Purchase
Agreement, dated as of December 20, 1995 (the "Purchase Agreement"). The
Participant shall pay to the Lead the Participation Percentage of advances made
to the Borrower pursuant to the Loan Documents in conformity with this Agreement
after the Closing Date and such payments shall be made on the date of such
advance or as then agreed between the Lead and the Participant. The Lead shall
give Participant written notice of such advance three (3) business days prior to
any such advance.
(b) OPTION PARTICIPATION. If the Conseco Option is exercised
pursuant to Section 2.04 of the Purchase Agreement, then at the Option Closing,
Conseco shall execute a new and amended Participa tion Agreement, with the same
terms and conditions as the Agreement, except that Participant's purchase of the
interest in the Loan shall be for an additional fifty-five and fifty-two one
hundredths percent (55.52%) undivided participation interest in the Loan, so
that at the Option Closing, Participant will have purchased a sixty-five and
fifty-two one hundredths percent (65.52%) undivided participation interest in
the Loan made by the Lead to Borrower.
3. REMISSION OF PAYMENTS RECEIVED. Within one (1) business day of its
receipt thereof, the Lead shall pay to the Participant (a) the Participation
Percentage of any interest payment hereafter received from the Borrower in
connection with the Loan Documents, and (b) the Participation Percentage of all
fees, principal payments, proceeds from collateral, insurance proceeds, damages,
reimbursements of expenses, or other payments hereafter received by the Lead in
connection with the Loan Documents.
4. EXPENSES. The Participant shall pay to the Lead the Participation
Percentage of any costs in fact incurred or disbursed in connection with the
enforcement of the Loan Documents and in conformity with the requirements of
this Agreement, including without limitation, all reasonable attorneys fees and
other expenses in connection with the enforcement of rights against the
Borrower, and realization upon any collateral, which payment shall be made
within fifteen (15) business days after written notice of such incurrence or
disbursement is received by participant from Lead.
5. REPAYMENT OF DISTRIBUTED FUNDS. The Participant shall repay to the Lead
any amounts distributed to the Participant which the Lead is required to return
to the Borrower or any receiver, trustee, or custodian for the Borrower,
promptly after written notice of the same by the Lead to the Participant.
6. ADMINISTRATION OF LOANS. In the absence of any contrary written
agreement between the Lead and the Participant, the Lead shall have
responsibility for administering the Loan and, in doing so, shall exercise the
same degree of care, skill, and prudence as it would if the Loan were made
entirely for its own account. The Lead shall deliver prior notice in writing or
by facsimile (with telephone confirmation) to the Participant of any proposal to
(a) extend the maturity date under the Loan Documents, (b) change the interest
rate under the Loan Documents, (C) change the
Page 31 of 34
<PAGE>
principal amount of the Loan, (d) supplement, release or accept substitute
collateral under the Loan Documents or permit such collateral to secure any
other obligations other than obligations evidenced by the Loan Documents and
obligations owed to the Lead, or an affiliate of Lead, in excess of Twenty-Eight
Million Seven Hundred Thousand Dollars ($28,700,000) which are subordinated to
the Loan, (e) enforce rights or refrain from enforcing rights under the Loan
Documents, or (f) waive or modify any term of the Loan Documents. The
Participant may veto (which veto may not be unreasonably exercised) the proposed
action by delivering to the Lead notice thereof in writing or by facsimile
within three (3) business days after receipt of the notice of the proposed
action.
7. RECOURSE AGAINST LEAD. The Participant shall have no recourse against
the Lead for the Borrower's failure to make any payment or perform or comply
with any other obligation under the Loan Documents unless such failure was
caused by the Lead's gross negligence, fraud or willful misconduct or by any
material breach by the Lead of this Agreement.
8. NOTIFICATION OF PARTICIPANT. The Lead shall promptly deliver to the
Participant all financial statements received from the Borrower and, to the
extent that the Lead has actual knowledge thereof, shall use best efforts to
notify the Participant of the occurrence of any events of default under the Loan
Documents, of any material, adverse change in the value or lien status of any
collateral, or of any material adverse change in the creditworthiness of the
Borrower and, upon reasonable request from the Participant, shall deliver a
report on the payment status of the Loan and shall permit the Participant to
inspect the Lead's books and accounts with respect to the Loan.
9. RECORDKEEPING. The Lead shall keep full and complete records and
accounts of the Loan.
10. SECURITIES LAW MATTERS. The Participant represents to Lead that the
participation contemplated hereunder (a) is being purchased for the
Participant's own account in the ordinary course of its business, for investment
purposes only and not with a view to resale or distribution and will not be
sold, assigned or hypothecated in any manner whatsoever without full compliance
with the provisions of the Agreement and with all applicable state and federal
securities laws, (b) is not a loan from the Participant to the Lead, and the
Lead has no obligation to repurchase such participation interest, and(C)does not
create a fiduciary relationship between the Lead and the Participant.
The Participant has independently reviewed the Loan Documents, has had
free access to all documents related to the Loan that are within the Lead's
possession, and has conducted to the extent that it has deemed necessary an
independent investigation of the creditworthiness of the Borrower. The
Participant expressly disclaims reliance on the Lead in entering into this
Agreement. The Participant acknowledges receipt of certain disclosures and
representations and warranties by Borrower in and subject to the provisions of
the Purchase Agreement. The Participant accepts in full all risks of the
participation, recognizing that such participation is speculative and may result
in a loss of its entire payment for such participation. The Lead does not make
and specifically disclaims any representation or warranty, express or implied,
regarding the accuracy or completeness of the information about the Borrower
delivered to the Participant, the creditworthiness of the Borrower, the value of
any collateral, the validity or priority of any lien or the validity and
enforceability of the Loan Documents.
Page 32 of 34
<PAGE>
11. ASSIGNMENT. Neither the Lead nor the Participant shall assign or
otherwise transfer in whole or in part its interest in the Loan without the
prior written consent of the other.
12. AMENDMENT. No amendment, modification or waiver of this Agreement shall
be effective unless contained in writing and signed by the party against whom
enforcement is sought. No waiver by either party of any provision or condition
of this Agreement shall be construed or deemed to be a waiver of any other
provision or condition of this Agreement nor a waiver of a subsequent breach of
the same provision or condition.
13. ENTIRE AGREEMENT. This Agreement and the Purchase Agreement constitute
the entire agreement between the Lead and the Participant and supersedes any
prior written or oral agreements with respect to the subject matter hereof.
14. NOTICES. Notices pursuant to this Agreement shall be in writing or by
facsimile as follows:
If to the Lead, to: Churchill Downs Management Company
700 Central Avenue
Louisville, KY 40208
Attention: Jeffrey M. Smith
Telephone: (502) 636-4421
Facsimile: (502) 636-4560
with a copy to: Churchill Downs Management Company
700 Central Avenue
Louisville, KY 40208
Attention: Alexander M. Waldrop
Telephone: (502) 636-4419
Facsimile: (502) 636-4439
If to the Participant, to: Conseco HPLP, L.L.C.
11825 North Pennsylvania Street
P.O. Box 1911
Carmel, Indiana 46032
Attention: Lawrence W. Inlow
Telephone: (317) 817-6163
Facsimile: (317) 817-6327
15. GOVERNING LAW. This Agreement shall be governed by Indiana law.
* * * * *
Page 33 of 34
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement this 31st day
of May, 1996.
CHURCHILL DOWNS MANAGEMENT COMPANY
By: /S/ JEFFREY M. SMITH
----------------------------
Jeffrey M. Smith, President
CONSECO HPLP, L.L.C.
By: CONSECO, INC., its Managing
Member
By: /S/ LAWRENCE W. INLOW
----------------------------
Lawrence W. Inlow,
Executive Vice President
Acknowledged, agreed to and approved by the Partnership:
HOOSIER PARK, L.P.
By: ANDERSON PARK, INC.,
its General Partner
By: /S/ JEFFREY M. SMITH
---------------------------
Jeffrey M. Smith,
President
Page 34 of 34
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