ITEM 1. BUSINESS
Business Overview
Lakes Entertainment, Inc., a Minnesota corporation (“Lakes”, “we” or “our”), develops, finances and manages casino properties. Lakes’ primary business historically has been to develop and manage Indian-owned casino properties that offer the opportunity for long-term development of related entertainment facilities, including hotels, golf courses, theaters, recreational vehicle parks and other complementary amenities. We are currently managing the Red Hawk Casino in California for the Shingle Springs Band of Miwok Indians (the “Shingle Springs Tribe”). On August 3, 2012, we acquired the assets of the Rocky Gap Lodge & Golf Resort in Allegany County, Maryland (the “Rocky Gap Resort”) for $6.8 million and simultaneously entered into an operating lease for the underlying land. The existing Rocky Gap Resort, which includes a hotel, spa, two restaurants and the only Jack Nicklaus signature golf course in Maryland, is currently undergoing renovation and upon completion will also feature a gaming facility and an event center. The gaming facility will include approximately 550 video lottery terminals (“VLTs”), 10 table games, a casino bar and a new lobby food and beverage outlet. The event center will be able to accommodate large groups and will feature multiple flexible use meeting rooms, including a formal high-end board room. The gaming facility is expected to open in the second quarter of 2013 and the event center is expected to be available for use in the fourth quarter of 2013. We are also involved in other business activities, including the investment in non-Indian casinos in Ohio. See note 19, Segment Information, to our consolidated financial statements included in Item 8 of this Annual Report on Form 10-K for information on our segments.
History
Lakes was formed in 1998 under the name of GCI Lakes, Inc., which was changed to Lakes Gaming, Inc. in August 1998 and to Lakes Entertainment, Inc. in 2002. Lakes is the successor to the Indian gaming business of Grand Casinos, Inc. (“Grand Casinos”) and became a public company through a spin-off transaction in which shares of Lakes’ common stock were distributed to the shareholders of Grand Casinos. Before the spin-off, Grand Casinos had management contracts for Grand Casino Hinckley and Grand Casino Mille Lacs, both Indian-owned casinos in Minnesota. Those contracts ended before the spin-off. After the spin-off, Lakes managed two Indian-owned casinos in Louisiana previously managed by Grand Casinos. Lakes managed the largest casino resort in Louisiana, Grand Casino Coushatta, until the management contract expired in 2002. Lakes also had a management contract for Grand Casino Avoyelles, which was terminated through an early buy-out of the contract effective in 2000. Lakes had a management contract for the Cimarron Casino in Oklahoma from 2006 through May 2010 and for the Four Winds Casino Resort in Michigan from August 2007 through June 2011. Lakes began managing the Red Hawk Casino in 2008. Lakes purchased and began operating and renovating the Rocky Gap Resort on August 3, 2012.
Indian Casino Business
Development and Management of the Red Hawk Casino
Lakes developed, and has a seven-year contract to manage, the Red Hawk Casino that was built on the Rancheria of the Shingle Springs Tribe in El Dorado County, California, adjacent to U.S. Highway 50, approximately 30 miles east of Sacramento, California, and has direct freeway access from a dedicated interchange. Lakes began managing the Red Hawk Casino when it opened to the public on December 17, 2008. The Red Hawk Casino includes approximately 88,000 square feet of casino space and features approximately 2,250 slot machines and gaming devices, 60 table games, five poker tables, six restaurants, four bars, retail space, a parking garage, and a child care facility and arcade.
On September 30, 2008, the California state legislature ratified an amended compact (the “2008 Compact”) between the Shingle Springs Tribe and the State of California, and on November 28, 2008, the 2008 Compact was approved by the Bureau of Indian Affairs (the “BIA”). The 2008 Compact runs through 2029 and allows for a maximum of 5,000 class III slot machines at one gaming facility. The 2008 Compact requires the Shingle Springs Tribe to share revenues with the State of California based on a sliding scale percentage of net win ranging from 20% to 25% from the operation of the slot machines. The Shingle Springs Tribe also contributes $4.6 million per year to the Revenue Sharing Trust Fund, which pays up to $1.1 million each year to each of the non-gaming tribes in California. The 2008 Compact also allows for the Shingle Springs Tribe to deduct up to $5.2 million annually for 20 years from the payments made to the State of California from the operation of slot machines.
During July 2004, the National Indian Gaming Commission (the “NIGC”) approved the development and management agreements between the Shingle Springs Tribe and Lakes, permitting Lakes to manage a Class II and Class III casino on the Shingle Springs Rancheria. On June 28, 2007, an affiliate of the Shingle Springs Tribe closed on a $450 million senior note financing to fund the construction of the Red Hawk Casino and a dedicated interchange off U.S. Highway 50 to provide direct access to the Shingle Springs Rancheria and the Red Hawk Casino. On September 30, 2008, an affiliate of the Shingle Springs Tribe closed on a $77 million furniture, furnishings and equipment financing for the Red Hawk Casino. Under the terms of the development and management agreement, as amended, Lakes made advances to the Shingle Springs Tribe in the form of a transition loan of $74.4 million, including interest accrued through the opening date of the Red Hawk Casino on December 17, 2008 (the “Transition Loan”). In addition, Lakes made advances of $8.8 million associated with land purchases. The land loan was repaid to Lakes, including accrued interest, on June 28, 2007 in connection with the close of the $450 million senior note financing. Advances on the Transition Loan of $66.7 million remain outstanding as of December 30, 2012.
The amended development and management agreement provided for Lakes to assist in the design, development and construction of the facility as well as manage the pre-opening, opening and continued operations of the Red Hawk Casino and related amenities for a period of seven years from the opening date. As compensation for Lakes’ management services, Lakes earns a management fee equal to 30% of net revenue (as defined by the development and management agreement) (“Net Revenue”) of the operations annually for the first five years. During years six and seven, Lakes will earn a fee equal to 25% of the first $90 million of Net Revenue per year, 15% of the next $60 million of Net Revenue per year and 5% of Net Revenue over $150 million per year. Payment of management fees is subordinated to the repayment of $450 million senior note financing of an affiliate of the Shingle Springs Tribe, the repayment of $15.4 million furniture, furnishings and equipment financing outstanding as of December 30, 2012 and a minimum priority payment to the Shingle Springs Tribe.
The opening of the Red Hawk Casino triggered the repayment terms of the notes receivable which are scheduled to be repaid over the original seven-year term at a rate per annum equal to the prime rate plus two percent (2%) (5.25% as of December 30, 2012). If, however, Net Revenues from the project are insufficient, payments are deferred. The order of priority of payments from the Red Hawk Casino’s cash flows has been as follows: a certain minimum monthly guaranteed payment to the Shingle Springs Tribe; various debt with interest accrued thereon (including the Transition Loan); management fees due to Lakes; other obligations, if any; and the remaining funds, if any, distributed to the Shingle Springs Tribe. In order to assist the Red Hawk Casino in increasing cash levels, Lakes will defer allowed payments of principal on the Transition Loan, if any, through December 2013. These deferrals, if any, do not constitute forgiveness of contractual principal amounts due to Lakes.
At December 30, 2012 and January 1, 2012, Lakes evaluated the notes receivable from the Shingle Springs Tribe for impairment and concluded that it was probable that substantial amounts due would not be repaid within the contract term and therefore determined that the notes receivable were impaired. This determination was based on the continued economic pressures in the northern California market and competition in the market the property serves, both of which have negatively impacted cash flows for the property. As of January 2, 2011, an allowance of $21.0 million was established through an impairment charge on the notes receivable and was included in the consolidated statement of operations for fiscal 2010. In addition, due to the carrying amount of the intangible assets associated with the Shingle Springs Tribe exceeding the expected future cash flows from the management agreement for the Red Hawk Casino, impairment charges of $16.7 million were recognized during fiscal 2010. No additional impairment charges were recorded during fiscal 2012 and 2011.
While Lakes has concluded that it is probable that substantial amounts due from the Shingle Springs Tribe will not be repaid within the contract term, the Shingle Springs Tribe will remain legally obligated to repay any remaining amounts due to Lakes subsequent to the conclusion of the agreement.
The management agreement with the Red Hawk Casino includes a minimum guaranteed payment to the Shingle Springs Tribe of $0.5 million a month for the duration of the agreement, which expires in December 2015. Lakes is obligated to advance funds for these minimum guaranteed monthly payments when the casino operating results are not sufficient, and is repaid the advances in subsequent periods when operating results are sufficient. As of December 30, 2012, no amount was outstanding under this obligation Lakes collected payments of $1.1 million under this obligation during fiscal 2012.
In November 2012, the Shingle Springs Tribe agreed to an amended tribal-state gaming compact (the “2012 Compact”) with the State of California. The 2012 Compact has been signed by the Governor of the State of California and the Shingle Springs Tribe and requires final approval by the State of California legislature and the Secretary of the Interior approval published in the Federal Register. The 2012 Compact, once effective, will reduce the required revenue share payments to the State of California. Effectiveness of the 2012 Compact is also contingent upon the occurrence of certain other events including the Shingle Springs Tribe restructuring its payment obligations due and payable to Lakes by December 31, 2015. Until the Shingle Springs Tribe and Lakes reach a mutually acceptable resolution, the existing agreements between the Shingle Springs Tribe and Lakes will remain in effect.
Development and Financing of the Jamul Casino
Lakes entered into an agreement with the Jamul Indian Village (the “Jamul Tribe”) during 1999 to develop and manage a casino on behalf of the Jamul Tribe on the Jamul Tribe’s existing reservation approximately 20 miles east of San Diego, California (the “Jamul Casino Project”). Due to Lakes’ corporate strategic objectives, Lakes determined that it would not move forward with the Jamul Casino Project and terminated the agreement with the Jamul Tribe in March 2012.
As a result of the termination of its agreement with the Jamul Tribe, Lakes estimated the fair value of its notes receivable from the Jamul Tribe to be zero as of December 30, 2012 and January 1, 2012. As of the date of termination, Lakes had advanced approximately $57.5 million including accrued interest to the Jamul Tribe related to casino development efforts. Lakes made total advances of $1.8 million to the Jamul Tribe during fiscal 2012, $0.5 million of which had been made as of the date of the termination of the agreement. Pursuant to the agreement with the Jamul Tribe, Lakes advanced an additional $1.3 million subsequent to the date of termination. All of the fiscal 2012 advances are included as losses in Lakes’ consolidated statement of operations for the twelve months ended December 30, 2012.
Although the Jamul Tribe remains obligated to repay all advances including accrued interest, it is not contemplated that the Jamul Tribe will have sufficient funds to make such payments unless it opens a gaming facility on its reservation. Lakes continues to have a collateral interest in all revenues from any future casino owned by the Jamul Tribe, and such casino’s furnishings and equipment.
Non-Indian Casino Business
As part of our business strategy, we also seek opportunities to develop and operate new business opportunities including developing our own casinos where applicable laws permit.
Rocky Gap Lodge & Golf Resort
In September 2011, Lakes entered into a joint venture with Addy Entertainment, LLC (“Addy”) to form Evitts Resort, LLC (“Evitts”). In April 2012, a video lottery operation license (“License”) for the Rocky Gap Resort was awarded to Evitts by the State of Maryland Video Lottery Facility Location Commission (the “Commission”). In May 2012, Lakes paid Addy $0.6 million for its ownership interest in Evitts, giving Lakes full ownership of Evitts.
In August 2012, Lakes acquired the assets of the Rocky Gap Resort for $6.8 million. The AAA Four Diamond Award® winning resort includes a hotel, spa, two restaurants and the only Jack Nicklaus signature golf course in Maryland. In connection with the closing of the acquisition of the Rocky Gap Resort, Lakes entered into a 40 year operating ground lease (the “Lease Agreement”) with the Maryland Department of Natural Resources (the “Maryland DNR”) for approximately 268 acres in the Rocky Gap State Park on which the Rocky Gap Resort is situated. The Lease Agreement contains an option to renew for 20 years after the initial 40-year term.
The Rocky Gap Resort is currently undergoing renovation and upon completion will feature a gaming facility and an event center. The gaming facility will include approximately 550 VLTs, 10 table games, a casino bar and a new lobby food and beverage outlet. The event center will be able to accommodate large groups and will feature multiple flexible use meeting rooms, including a formal high-end board room. The total cost of the project is currently expected to be approximately $35.0 million. On December 17, 2012, Lakes closed on a $17.5 million financing facility with Centennial Bank (the “Facility”). The Facility will be used to finance a portion of the renovation and new meeting space construction costs. Lakes is required to invest $17.5 million in the Rocky Gap Resort project, including the original purchase price of the property, prior to drawing on the Facility. As of December 30, 2012, no amounts had been drawn and no amounts were outstanding under the Facility. The gaming facility is expected to open in the second quarter of 2013 and the event center is expected to be available for use in the fourth quarter of 2013.
Investment in Rock Ohio Ventures, LLC
Lakes has an investment in Rock Ohio Ventures, LLC (“Rock Ohio Ventures”), a privately-held company, that owns the Horseshoe Casino Cleveland in Cleveland, Ohio which opened to the public on May 13, 2012; the Horseshoe Casino Cincinnati in Cincinnati, Ohio which opened on March 4, 2013; and the Thistledown Racino in North Randall, Ohio which is expected to add 1,100 VLTs in April 2013 to the currently operating racetrack. As of December 30, 2012, Lakes has contributed approximately $20.2 million to Rock Ohio Ventures. Lakes currently plans to contribute additional capital as needed to maintain our equity position in Rock Ohio Ventures.
Competition
Overall
The gaming industry is highly competitive and continues to proliferate throughout the country as more jurisdictions are choosing to allow gaming or the expansion thereof. Gaming activities include traditional land-based casinos, river boat and dockside gaming, casino gaming on Indian land, state-sponsored video lottery and video poker in restaurants, bars and hotels, pari-mutuel betting on horse racing and dog racing, sports bookmaking, card rooms and online gaming. The casinos managed or invested in by Lakes compete with all of these forms of gaming, and will compete with any new forms of gaming that may be legalized in additional jurisdictions, as well as with other types of entertainment. Lakes also competes with other gaming companies for opportunities to acquire legal gaming sites in emerging gaming jurisdictions and for the opportunity to manage casinos on Indian land. Some of Lakes’ competitors have greater financial and other resources than Lakes. Further expansion of gaming could also significantly affect Lakes’ business.
Indian Gaming
According to NIGC tribal data reports, from the end of 2010 through 2011, there were 421 Indian gaming operations nationwide from which, during this same period, tribal gaming revenues increased $0.7 million, or 2.6%, to $27.2 billion. NIGC tribal data reports indicate that in California, Indian gaming is well-developed.
There were 63 compacted Indian gaming facilities in the California and Northern Nevada region in 2011. There are two Indian-owned Las Vegas-style casinos located in the vicinity of the Red Hawk Casino. Based on NIGC tribal data reports, in California and Northern Nevada (which includes the Red Hawk Casino), tribal gaming revenues increased from $6.8 billion in 2010 to $6.9 billion in 2011. This region has the highest tribal gaming revenues in the United States with approximately 25.4% of all reported Indian gaming revenue.
Ohio Casino Properties
The Ohio constitution was amended during 2009 to authorize casino gaming. Competition for Ohio casinos is currently expected to come from the other Ohio casinos to be developed, casinos located in the surrounding states and the installation of VLTs at Ohio horse tracks.
Rocky Gap Resort
VLT operations in Maryland are regulated by the Maryland Lottery and Gaming Control Agency. State legislation restricts the number of licenses the State of Maryland can issue to six. The Allegany County license has been awarded to the Rocky Gap Resort. Licenses have been previously granted for Anne Arundel, Cecil and Worcester counties and the locations are currently in operation. A license has been awarded for Baltimore City and the project is currently in the development stage. The State of Maryland has recently begun soliciting proposals for the remaining license in Prince George’s county. The Rocky Gap Resort will also compete for customers with gaming properties in adjacent states, including Pennsylvania and West Virginia.
During a special session in the fourth quarter of 2012, the Maryland General Assembly passed legislation that allows for 24-hour operation of VLTs, added the ability for VLT operators to operate table games and allowed specified veteran’s organizations to operate a limited number of specified VLTs. No regulations have yet been established for the operation of VLTs by veteran’s organizations. Any additional forms or expansion of commercial gaming in Maryland is prohibited, unless approved by a voter referendum.
Regulation
Gaming Regulation - General
The ownership, management and operation of gaming facilities are subject to extensive federal, state, provincial, tribal and/or local laws, regulations and ordinances, which are administered by the relevant regulatory agency or agencies in each jurisdiction (“Regulatory Authorities”). These laws, regulations and ordinances vary from jurisdiction to jurisdiction, but generally pertain to the responsibility, financial stability and character of the owners and managers of gaming operations as well as persons financially interested or involved in gaming operations. Certain basic provisions that are currently applicable to Lakes in its management, development and financing activities are described below.
Neither Lakes nor any subsidiary may own, manage or operate a gaming facility unless it obtains proper licenses, permits and approvals. Generally, an application for a license, permit or approval may be denied for any cause that the Regulatory Authorities deem reasonable. Most Regulatory Authorities also have the right to license, investigate and determine the suitability of any person who has a material relationship with Lakes or any of its subsidiaries, including officers, directors, employees and security holders of Lakes or its subsidiaries. In the event a Regulatory Authority finds a security holder to be unsuitable, Lakes may be sanctioned, and may lose its licenses and approvals if Lakes recognizes any rights in any entity with such unsuitable person in connection with such securities. Lakes may be required to repurchase its securities at fair market value from security holders that the Regulatory Authorities deem unsuitable. Lakes’ Articles of Incorporation require security holders to provide the background information requested by Regulatory Authorities and authorize Lakes to redeem securities held by persons whose status as a security holder, in the opinion of the Lakes’ Board of Directors, jeopardizes gaming licenses or approvals of Lakes or its subsidiaries. Once obtained, licenses, permits and approvals must be periodically renewed and generally are not transferable. The Regulatory Authorities may at any time revoke, suspend, condition, limit or restrict a license for a violation of its gaming ordinances.
Fines for violations may be levied against the holder of a license and, in certain jurisdictions, gaming operation revenues can be forfeited to the state under certain circumstances. No assurance can be given that any licenses, permits or approvals will be obtained by Lakes or its subsidiaries, or if obtained, will be renewed or not revoked in the future. In addition, the rejection or termination of a license, permit or approval of Lakes or any of its employees or security holders in any jurisdiction may have adverse consequences in other jurisdictions. Certain jurisdictions require gaming operators licensed therein to seek approval from the state before conducting gaming in other jurisdictions. Lakes and its subsidiaries may be required to submit detailed financial and operating reports to Regulatory Authorities.
The political and regulatory environment for gaming is dynamic and rapidly changing. The laws, regulations and procedures pertaining to gaming are subject to the interpretation of the Regulatory Authorities and may be amended. Any changes in such laws, regulations or their interpretations could have a material adverse effect on Lakes.
Certain specific provisions to which Lakes is currently subject are described below.
Indian Gaming Regulation
The terms and conditions of management contracts for the operation of Indian-owned casinos, and of all gaming on Indian land in the United States, are subject to the Indian Gaming Regulatory Act (“IGRA”), which is administered by the NIGC, and also are subject to the provisions of statutes relating to contracts with Indian tribes, which are administered by the Secretary of the Interior (“Secretary”) and the BIA. The regulations and guidelines under which NIGC will administer the IGRA are evolving. The IGRA and those regulations and guidelines are subject to interpretation by the Secretary and NIGC and may be subject to judicial and legislative clarification or amendment.
Lakes may need to provide the BIA or NIGC with background information on each of its directors and each shareholder who holds five percent or more of Lakes’ stock (“5% Shareholders”), including a complete financial statement, a description of such person’s gaming experience, and a list of jurisdictions in which such person holds gaming licenses. Background investigations of key employees also may be required. Lakes’ Articles of Incorporation contain provisions requiring directors and 5% Shareholders to provide such information.
The IGRA currently requires the NIGC to approve management contracts and certain collateral agreements for Indian-owned casinos. The NIGC may review any of Lakes’ management contracts and collateral agreements for compliance with the IGRA at any time. The NIGC will not approve a management contract if a director or a 5% Shareholder of the management company (i) is an elected member of the Indian tribal government that owns the facility purchasing or leasing the games; (ii) has been or is convicted of a felony gaming offense; (iii) has knowingly and willfully provided materially false information to the NIGC or an Indian tribe; (iv) has refused to respond to questions from the NIGC; or (v) is a person whose prior history, reputation and associations pose a threat to the public interest or to effective gaming regulation and control, or create or enhance the chance of unsuitable activities in gaming or the business and financial arrangements incidental thereto.
In addition, the NIGC will not approve a management contract if the management company or any of its agents have attempted to unduly influence any decision or process of tribal government relating to gaming, or if the management company has materially breached the terms of the management contract or the tribe’s gaming ordinance, or a trustee exercising due diligence would not approve such management contract.
A management contract can be approved only after the NIGC determines that the contract provides, among other things, for (i) adequate accounting procedures and verifiable financial reports, which must be furnished to the tribe; (ii) tribal access to the daily operations of the gaming enterprise, including the right to verify daily gross revenues and income; (iii) minimum guaranteed payments to the tribe, which must have priority over the retirement of development and construction costs; (iv) a ceiling on the repayment of such development and construction costs; and (v) a contract term not exceeding five years and a management fee not exceeding 30% of profits; provided that the NIGC may approve up to a seven-year term if the NIGC is satisfied that the capital investment required, the risk exposure and the income projections for the particular gaming activity justify the longer term.
The IGRA established three separate classes of tribal gaming - Class I, Class II and Class III. Class I includes all traditional or social games played by a tribe in connection with celebrations or ceremonies. Class II gaming includes games such as bingo, pull-tabs, punch boards, instant bingo and card games that are not played against the house. Class III gaming includes casino-style gaming including table games such as blackjack, craps and roulette, as well as gaming machines such as slots, video poker, lotteries and pari-mutuel wagering.
The IGRA prohibits substantially all forms of Class III gaming unless a tribe has entered into a written agreement with the state in which the casino is located that specifically authorizes the types of commercial gaming the tribe may offer (a Tribal-state compact). The IGRA requires states to negotiate in good faith with tribes that seek Tribal-state compacts, and grants Indian tribes the right to seek a federal court order to compel such negotiations. Many states have refused to enter into such negotiations. Tribes in several states have sought federal court orders to compel such negotiations under the IGRA; however, the Supreme Court of the United States held in 1996 that the Eleventh Amendment to the United States Constitution immunizes states from suit by Indian tribes in federal court without the states’ consent.
Because Indian tribes are currently unable to compel states to negotiate tribal-state compacts, Lakes may not be able to develop and manage casinos in states that refuse to enter into or renew tribal-state compacts.
In addition to the IGRA, tribal-owned gaming facilities on Indian land are subject to a number of other federal statutes. The operation of gaming on Indian land is dependent upon whether the law of the state in which the casino is located permits gaming by non-Indian entities, which may change over time. Any such changes in state law may have a material adverse effect on the casinos managed by Lakes.
Title 25, Section 81 of the United States Code states that “no agreement or contract with an Indian tribe that encumbers Indian lands for a period of 7 or more years shall be valid unless that agreement or contract bears the approval of the Secretary of the Interior or a designee of the Secretary.” The Secretary of the Interior has issued regulations, 25 CFR Part 84, identifying the types of contracts and agreements with Indian tribes which are not subject to Section 81. If, however, an agreement or contract for services is determined to be subject to the requirements of Section 81, it will be void and unenforceable if not approved.
Indian tribes are sovereign nations with their own governmental systems which have primary regulatory authority over gaming on land within the tribe’s jurisdiction. Because of their sovereign status, Indian tribes possess immunity from lawsuits to which the tribes have not otherwise consented or otherwise waived their sovereign immunity defense. Therefore, no contractual obligations undertaken by tribes to Lakes would be enforceable by Lakes unless the tribe has expressly waived its sovereign immunity as to such obligations and, if involving service for Indians relative to their lands, approved by the Secretary. Lakes has obtained immunity waivers from each of the tribes to enforce the terms of its management agreements; however, the scope of those waivers has never been tested in court, and may be subject to dispute. Additionally, unless Lakes believes such approval is not necessary given the nature of a contract, all contracts involving services to Indians relative to their lands have been approved by the Secretary. However, there can be no assurance that the Secretary will agree that it is unnecessary to obtain such approval, and may render such contracts unenforceable. Additionally, persons engaged in gaming activities, including Lakes, are subject to the provisions of tribal ordinances and regulations on gaming. These ordinances are subject to review by the NIGC under certain standards established by the IGRA.
Non-Gaming Regulation
Lakes and its subsidiaries are subject to certain federal, state and local safety and health laws, regulations and ordinances that apply to non-gaming businesses generally, such as the Clean Air Act, Clean Water Act, Occupational Safety and Health Act, Resource Conservation Recovery Act and the Comprehensive Environmental Response, Compensation and Liability Act. We believe that we are currently in material compliance with such regulations. The coverage and attendant compliance costs associated with such laws, regulations and ordinances may result in future additional cost to our operations.
Real Estate Holdings
Lakes owns parcels of undeveloped land in California related to its previous involvement in a potential Indian casino project with the Jamul Tribe and undeveloped land in Oklahoma related to its previous involvement in a potential casino project with the Iowa Tribe of Oklahoma (“Iowa Tribe”). Lakes also owns an office building and related land in Minnesota for its corporate offices. In August 2012, Lakes acquired the Rocky Gap Resort in Allegany County, Maryland, which is situated on approximately 268 acres in the Rocky Gap State Park and is subject to the Lease Agreement with the Maryland DNR.
Employees
At December 30, 2012, Lakes had 134 employees, of which 90 were full-time employees. Lakes believes its relations with employees are satisfactory.
Lakes has assembled a strong team of gaming industry experts, well-versed in all aspects of casino development, construction and management, many of whom were involved with the success of Grand Casinos. The Lakes team has individual specialists on staff mirroring each of the functional areas found in a casino project. The functional areas include gaming operations, construction and development, finance/accounting, legal/regulatory, systems/information technology, food and beverage, marketing and human resources.
Lakes’ management believes this team represents a valuable asset that provides a competitive advantage in creating and enhancing relationships with Indian tribes in the Indian casino business and in the pursuit of non-Indian casino opportunities.
Website and Available Information
Our website is located at www.lakesentertainment.com. Information on the website does not constitute part of this Annual Report on Form 10-K.
We make available, free of charge, our Annual Reports on Form 10-K, our Proxy Statement on Form DEF 14A, our Quarterly Reports on Form 10-Q, our Current Reports on Form 8-K and amendments to such reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities and Exchange Act of 1934 as soon as reasonably practicable after such forms are filed with or furnished to the SEC. Copies of these documents are available to our shareholders at our website or upon written request to our President and Chief Financial Officer at 130 Cheshire Lane, Suite 101, Minnetonka, MN 55305.
ITEM 1A.
ITEM 1A. RISK FACTORS
In addition to factors discussed elsewhere in this Annual Report on Form 10-K, the following are important factors that could cause actual results or events to differ materially from those contained in any forward-looking statement made by or on behalf of us.
Current economic conditions may cause further declines in casino gaming activity and other consumer spending which could adversely affect the financial performance of the casinos we manage and/or own and result in lower revenue to us.
Our operating results and performance depend significantly on the current economic conditions and their impact on consumer spending in the casinos we manage and/or own. The decline in consumer spending resulting from the recession and the deterioration of capital and credit markets may cause our revenue generated from the casinos we manage and/or own to be adversely impacted.
Extreme competition exists in the gaming industry.
The gaming industry is highly competitive and continues to proliferate throughout the country as more jurisdictions are choosing to allow gaming or its expansion. The casinos managed or invested in by us compete with all forms of gaming, and will compete with any new forms of gaming that may be legalized in additional jurisdictions, as well as with other types of entertainment. We also compete with other gaming companies for opportunities to acquire legal gaming sites in emerging gaming jurisdictions and for the opportunity to manage casinos on Indian land. Some of our competitors have greater financial and other resources than we do which limits our ability to pursue certain opportunities. Further expansion of gaming could also significantly adversely affect our business.
Because our primary source of revenue is generated from our management agreement with the Shingle Springs Tribe for the Red Hawk Casino which has a finite term, our failure to develop new profitable business opportunities would impact our future growth, cash flow and profitability.
The primary source of our revenues in fiscal 2012 was generated from our management agreement relating to the Red Hawk Casino, which expires in December 2015. If the development of the Rocky Gap Resort isn’t profitable, or if we fail to develop new business opportunities that generate cash receipts, or if our remaining management agreement continues to generate only revenues which are deferred, our future growth, cash flow and profitability will be adversely impacted.
Our entry into new businesses may result in future losses.
We may diversify into other businesses. Such businesses involve business risks separate from the risks involved in casino development and these investments may result in future losses to us. These risks include but are not limited to negative cash flow, initial high development costs of new products and/or services without corresponding sales pending receipt of corporate and regulatory approvals, market introduction and acceptance of new products and/or services and obtaining regulatory approvals required to conduct the new businesses. Diversification activities may never successfully add to our future revenues and income and the costs of evaluating potential business opportunities may adversely impact our profitability during the periods they are incurred.
The commencement or completion of casino development projects may be significantly delayed or prevented due to a variety of factors, many of which are beyond our control, which could have a material adverse effect on our profitability, cash flow and financial condition.
The opening of a future facility, including the gaming facility at the Rocky Gap Resort, will be contingent upon, among other things, receipt of all regulatory licenses, permits, allocations and authorizations, the completion of construction and the hiring and training of sufficient personnel. The scope of the approvals required to construct and open a facility will be extensive, and the failure to obtain such approvals could prevent or delay the completion of construction or opening of all or part of a facility or otherwise affect the design and features of a proposed casino.
Even once a schedule for such construction and development activities is established, such development activities may not begin or be completed on time, or at any other time. The budget for a project may also be exceeded.
In addition, the regulatory approvals necessary for the construction and operation of casinos are often challenged in litigation brought by government entities, citizens groups and other organizations and individuals. Such litigation can significantly delay the construction and opening of casinos.
Major construction projects entail significant risks, including shortages of materials or skilled labor; unforeseen engineering, environmental and geological problems; work stoppages; weather interference; unanticipated cost increases; and non-availability of construction equipment. These factors or other delays or difficulties in obtaining any of the requisite licenses, permits and authorizations from regulatory authorities could increase the total cost, delay, or prevent the construction or opening of any of the planned casino development, or otherwise affect its design.
Because our operating results are highly dependent on the timing of our project under development, delays could cause our results to fluctuate significantly and may adversely affect our profitability, cash flow and financial condition.
Failure of our existing, proposed and other prospective casino projects to successfully compete may have a material adverse effect on our results of operations, cash flow and financial condition.
The gaming industry is highly competitive. Gaming activities include: traditional land-based casinos; river boat and dockside gaming; casino gaming on Indian land; state-sponsored lotteries and video poker in restaurants, bars and hotels; pari-mutuel betting on horse racing and dog racing; sports bookmaking; online gaming; and card rooms. The casinos to be managed or owned by us compete, and will in the future compete, with all these forms of gaming, and will compete with any new forms of gaming that may be legalized in additional jurisdictions, as well as with other types of entertainment.
We also compete with other gaming companies for opportunities to acquire legal gaming sites in emerging and established gaming jurisdictions and for the opportunity to manage casinos on Indian land. Many of our competitors have more personnel and may have greater financial and other resources than us. Such competition in the gaming industry could adversely affect our ability to attract customers which would adversely affect our operating results. In addition, further expansion of gaming into new jurisdictions could also adversely affect our business by diverting customers from our planned managed casinos to competitors in such jurisdictions.
Existing payment obligations to us from the Shingle Springs Tribe may be restructured.
The Shingle Springs Tribe has agreed to an amended tribal-state gaming compact with the State of California. The amended compact, which requires final approval by the California legislature and the Secretary of the Interior, will reduce the required revenue share payments to California. The amended compact also requires the Shingle Springs Tribe to restructure its payment obligations due and payable to us by December 15, 2015. Until we agree to a mutually acceptable restructuring of the obligations, our existing agreements will remain in effect. However, it is possible that a restructuring would mean that we would not receive full payment for obligations owed to us or that we may otherwise agree to terms that are different than the current terms.
The early termination or modification of our management agreement with the Shingle Springs Tribe may reduce or eliminate our revenues under such agreement.
Our current management agreement has a finite life and provides that such agreement may be terminated under certain circumstances including, without limitation, upon the failure to maintain the NIGC’s approval for such agreements, the loss of requisite gaming licenses, or an exercise by the Shingle Springs Tribe of its buy-out option. In addition, the NIGC has the authority to require a modification of such agreement in a manner which may have an adverse effect on us. Such termination or modification may have a material adverse effect on our results of operations, cash flow and financial condition.
If we fail to comply with the laws, regulations and ordinances (including tribal or local laws) applicable to gaming facilities, we may be unable to operate or develop casino projects.
The ownership, management and operation of gaming facilities are subject to extensive federal, state, tribal and local laws, regulations and ordinances, which are administered by the relevant regulatory agency or agencies in each jurisdiction. These laws, regulations and ordinances vary from jurisdiction to jurisdiction, but generally concern the responsibility, financial stability and character of the owners and managers of gaming operations as well as persons financially interested or involved in gaming operations, and often require such parties to obtain certain licenses, permits and approvals.
The rapidly-changing political and regulatory environment governing the gaming industry (including gaming operations which are conducted on Indian land) makes it impossible for us to accurately predict the effects that an adoption of or changes in the gaming laws, regulations and ordinances will have on us. However, our failure, or the failure of any of our key personnel, significant shareholders, or joint venture partners, to obtain or retain required gaming regulatory licenses could prevent us from expanding into new markets, prohibit us from generating revenues in certain jurisdictions, and subject us to sanctions and fines.
If Indian tribes default on their repayment obligations or wrongfully terminate their management, development, consulting or financing agreements with us, we may be unable to collect the amounts due.
We have made, and may make, substantial loans to Indian tribes for the construction, development, equipment and operations of casinos to be managed by us. Our only recourse for collection of indebtedness from an Indian tribe or money damages for breach or wrongful termination of a management, development, consulting or financing agreement is from revenues, if any, from casino operations.
In addition, we have subordinated, and may in the future subordinate, the repayment of loans made to an Indian tribe and other distributions due from an Indian tribe (including management fees) in favor of other obligations of the Indian tribe to other parties related to the development and operation of the casinos. Accordingly, in the event of a default by an Indian tribe under such obligations, our loans and other claims against the Indian tribe will not be repaid until such default has been cured or the Indian tribe’s senior casino-related creditors have been repaid in full.
A deterioration of our relationship with an Indian tribe could cause delay or termination of a casino project and prevent or significantly impede recovery of our investment therein.
Good personal and professional relationships with Indian tribes and their officials are critical to our existing and future Indian-related gaming operations and activities, including our ability to obtain, develop and execute management and other agreements. As sovereign nations, Indian tribes establish their own governmental systems under which tribal officials or bodies representing an Indian tribe may be replaced by appointment or election or become subject to policy changes. Replacements of Indian tribal officials or administrations, changes in policies to which an Indian tribe is subject, or other factors that may lead to the deterioration of our relationship with an Indian tribe may lead to termination of a management agreement, which may have an adverse effect on the future results of our operations.
If the Red Hawk Casino fails, or does not achieve sufficient results of operations, our recorded assets related to that project will be impaired and there may be a material adverse impact on our financial condition, results of operations and cash flow.
The majority of our assets related to Indian casino projects are classified as long-term on our consolidated balance sheet and are in the form of loans to the Shingle Springs Tribe. These loans, except for the current portion, are included as notes receivable on the consolidated balance sheet, under the category “long-term assets related to Indian casino projects”. At December 30, 2012, we had $46.2 million in long-term assets related to Indian casino projects, of which $38.2 million was in the form of notes and interest receivable from the Shingle Springs Tribe. The notes receivable represented approximately 32% of our total assets. All of the loans are subject to collection risk and there is no established market. The repayment terms of these notes receivable are largely dependent upon the operating performance of the Red Hawk Casino. Repayments of such loans are required to be made only if distributable profits are available from the operation of the Red Hawk Casino. Repayments are also the subject of certain distribution priorities specified in the agreement with the Shingle Springs Tribe. In addition, repayment to us of the loans and the manager’s fees under our management agreement is subordinated to certain other financial obligations of the Shingle Springs Tribe. In order to assist the Red Hawk Casino in increasing cash levels, we will defer allowed payments of principal on the loans, if any, through December 2013.
The amounts due to us from the Jamul Tribe will likely not be paid until and unless it opens a gaming facility on its reservation.
We determined that we would not move forward with the Jamul Casino Project and terminated our agreement with the Jamul Tribe in March 2012. As of the date of termination, we had advanced approximately $57.5 million including accrued interest to the Jamul Tribe related to casino development efforts. As a result of the termination of our agreement with the Jamul Tribe, we determined the fair value of the notes receivable from the Jamul Tribe to be zero. Although the Jamul Tribe remains obligated to repay all advances including accrued interest, it is not contemplated that the Jamul Tribe will have sufficient funds to make such payments unless it opens a gaming facility on its reservation. We continue to have a collateral interest in all revenues from any future casino owned by the Tribe, and the casino’s furnishings and equipment. We cannot be assured of the repayment of these amounts.
The litigation brought forth by Sharp Image Gaming, Inc. against the Shingle Springs Tribe could impact the timing of management fee payments and/or loan repayments to Lakes.
During 2007, Sharp Image Gaming, Inc. (“Sharp Image”) filed a lawsuit against the Shingle Springs Tribe seeking amounts from the Shingle Springs Tribe related to prior loans and an alleged agreement for the supplying of gaming machines to the Shingle Springs Tribe. The amount sought in the lawsuit filed by Sharp Image was in excess of $100 million. During December 2011, Sharp Image obtained a judgment against the Shingle Springs Tribe in the amount of approximately $30.0 million. The Shingle Springs Tribe is appealing the judgment and believes that the judgment is against legal precedent and that the judgment cannot be collected from the Shingle Springs Tribe or the Red Hawk Casino. However, if the judgment is upheld on appeal and results in any impact to the Red Hawk Casino’s cash position, Lakes’ management fee payments and loan repayments could be delayed.
We are dependent on the ongoing services of our senior corporate management, and the loss of their services could have a detrimental effect on the pursuit of our business objectives, profitability and the price of our common stock.
Our success depends largely on the efforts and abilities of our senior corporate management, particularly Lyle Berman, our Chairman and Chief Executive Officer. The loss of the services of Mr. Berman or other members of senior corporate management could have a material adverse effect on us. Although we have obtained a $8.0 million key man life insurance policy on Mr. Berman, we do not maintain key man life insurance on other members of senior corporate management.
Our Articles of Incorporation and Bylaws may discourage lawsuits and other claims against our directors.
Our Articles of Incorporation and Bylaws provide, to the fullest extent permitted by Minnesota law, that our directors shall have no personal liability for breaches of their fiduciary duties to us. In addition, our bylaws provide for mandatory indemnification of directors and officers to the fullest extent permitted by Minnesota law. These provisions reduce the likelihood of derivative litigation against our directors and may discourage shareholders from bringing a lawsuit against directors for a breach of their duty.
Our Articles of Incorporation contain provisions that could discourage or prevent a potential takeover, even if the transaction would be beneficial to our shareholders.
Our Articles of Incorporation authorize our Board of Directors to issue up to 200 million shares of capital stock, the terms of which may be determined at the time of issuance by the Board of Directors, without further action by our shareholders. The Board of Directors may authorize additional classes or series of shares that may include voting rights, preferences as to dividends and liquidation, conversion and redemptive rights and sinking fund provisions that could adversely affect the rights of holders of our common stock and reduce the value of our common stock. Additional classes of stock that may be authorized by our Board of Directors for issuance in the future could make it more difficult for a third party to acquire us, even if a majority of our holders of common stock approved of such acquisition.
Our shareholders may be required to provide information that is requested by gaming authorities and we have the right, under certain circumstances, to redeem a shareholder’s securities.
Our Articles of Incorporation require our shareholders to provide information that is requested by authorities that regulate our current or proposed gaming operations. Our Articles of Incorporation also permit us to redeem the securities held by persons whose status as a security holder, in the opinion of the Lakes’ Board of Directors, jeopardizes existing gaming licenses or approvals of Lakes or its subsidiaries. The price paid for these securities is, in general, the average closing price for the 30 trading days prior to giving notice of redemption.
We may be forced to use our cash or incur debt to fund redemption of our securities.
In the event a shareholder’s background or status jeopardizes our current or proposed gaming licensure, we may be required to redeem such shareholder’s securities in order to continue gaming operations or obtain a gaming license. This redemption may divert our cash resources from other productive uses and require us to obtain additional financing which, if in the form of equity financing, will be dilutive to our shareholders. Further, any debt financing may involve additional restrictive covenants and further leveraging of our finite assets. The inability to obtain additional financing to redeem a disqualified shareholder’s securities may result in the loss of a current or potential gaming license.
The price of our common stock may be adversely affected by significant price fluctuations due to a number of factors, many of which are beyond our control.
The market price of our common stock has experienced significant fluctuations and may continue to fluctuate in the future. The market price of our common stock may be significantly affected by many factors, including:
• obtaining all necessary regulatory approvals for our casino development projects;
• litigation surrounding one or more of our casino developments;
• the announcement of new products or product enhancements by us or our competitors;
• technological innovations by us or our competitors;
• quarterly variations in our or our competitors’ operating results;
• changes in prices of our or our competitors’ products and services;
• changes in our revenue and revenue growth rates;
• changes in earnings or (loss) per share estimates by market analysts or speculation in the press or analyst community;
• future sales of our common stock or securities linked to our common stock; and
• general market conditions or market conditions specific to particular industries.
We have issued numerous options to acquire our common stock and have the ability to issue additional options, each of which could have a dilutive effect on our common stock.
As of December 30, 2012, we had options outstanding to acquire 1.5 million shares of our common stock, exercisable at prices ranging from $1.89 to $6.43 per share, with a weighted average exercise price of approximately $3.04 per share. As of December 30, 2012, there were 875,627 remaining shares available to grant under the existing stock option plans.
The market price of our common stock may be reduced by future sales of our common stock in the public market.
Sales of substantial amounts of our common stock in the public market that are not currently freely tradable, or even the potential for such sales, could have an adverse effect on the market price for shares of our common stock and could impair the ability of purchasers of our common stock to recoup their investment or make a profit. As of December 30, 2012, these shares consist of approximately 7.1 million shares beneficially owned by our executive officers and directors.
ITEM 1B.
ITEM 1B. UNRESOLVED STAFF COMMENTS
Not applicable.
ITEM 2.
ITEM 2. PROPERTIES
Corporate Office Facility
Lakes owns its corporate office building located in Minnetonka, Minnesota and occupies approximately 22,000 square feet of the 65,000 square foot building and has leased a portion of the office space to outside tenants. We are currently searching for a tenant or tenants to lease the remaining space.
Rocky Gap Resort
In August 2012, Lakes acquired the Rocky Gap Resort in Allegany County, Maryland, which is situated on approximately 268 acres in the Rocky Gap State Park and is subject to the Lease Agreement with the Maryland DNR.
ITEM 3.
ITEM 3. LEGAL PROCEEDINGS
Quest Media Group, LLC Litigation
On May 17, 2012, Lakes received service of a breach of contract lawsuit filed in the Franklin County Court of Common Pleas, Franklin County, Ohio by Quest Media Group, LLC (“Quest”) with respect to an agreement (the “Agreement”) entered into between Lakes Ohio Development, LLC (a wholly owned subsidiary of Lakes) (“Lakes Ohio Development”) and Quest on March 9, 2010. The Agreement relates to Quest assisting Lakes Ohio Development in partnering with Rock Ohio Ventures, LLC and Penn Ventures, LLC (“Penn”) with respect to funding the proposed citizen-initiated referendum in November 2009 to amend the Ohio constitution to permit one casino each in Cleveland, Cincinnati, Toledo and Columbus, Ohio. The lawsuit alleges, among other things, that Lakes breached the Agreement by selling Lakes Ohio Development’s interest in the Toledo and Columbus, Ohio casino projects to Penn, failing to pay the proper fee to Quest as a result of such sale, and incorrectly calculating the costs that are to be offset against Quest’s fee. The lawsuit seeks unspecified compensatory damages in excess of $25,000, punitive damages, declaratory and injunctive relief. The lawsuit names as defendants Lakes Entertainment, Inc., Lakes Ohio Development, LLC and Lyle Berman, Chairman and CEO of Lakes. Lakes removed the case to federal court and answered the pleadings. The case is still in the early stages of discovery. Lakes believes the suit to be without merit and intends to vigorously defend itself in this lawsuit.
Other Litigation
Lakes and its subsidiaries are involved in various other inquiries, administrative proceedings and litigation relating to contracts and other matters arising in the normal course of business. While any proceeding or litigation has an element of uncertainty, management currently believes that the likelihood of an unfavorable outcome is remote, and is not likely to have a material adverse effect upon our consolidated financial statements. No provision for loss has been recorded in connection therewith.
ITEM 4.
ITEM 4. MINE SAFETY DISCLOSURES
Not applicable.
PART II
ITEM 5.
ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
Lakes’ common stock currently trades on the NASDAQ Global Market under the ticker symbol LACO. The high and low sales prices per share of Lakes’ common stock for each full quarterly period within the two most recent fiscal years are indicated below, as reported on the NASDAQ Global Market:
On March 11, 2013, the last reported sale price for the common stock was $3.30 per share. As of March 11, 2013, Lakes had approximately 815 shareholders of record.
Lakes has never paid any cash dividends with respect to its common stock and the current policy of the Board of Directors is to retain any earnings to provide for the growth of Lakes. The payment of cash dividends in the future, if any, will be at the discretion of the Board of Directors and will depend upon such factors as earnings levels, capital requirements, Lakes’ overall financial condition and any other factors deemed relevant by the Board of Directors.
No repurchases of Lakes’ common stock were made during the fourth quarter of Lakes’ fiscal year ended December 30, 2012.
ITEM 6.
ITEM 6. SELECTED FINANCIAL DATA
Not applicable.
ITEM 7.
ITEM 7.
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Overview
Lakes Entertainment, Inc. and subsidiaries (“Lakes”, “we”, or “our”) has developed, financed and managed casino properties with a historical emphasis on those that are Indian-owned. An overview of our projects as of December 30, 2012 is as follows:
•
We own and operate the Rocky Gap Lodge & Golf Resort in Allegany County, Maryland (the “Rocky Gap Resort”) which we acquired on August 3, 2012 for $6.8 million. The AAA Four Diamond Award® winning resort includes a hotel, spa, two restaurants and the only Jack Nicklaus signature golf course in Maryland. In connection with the closing of the acquisition of the Rocky Gap Resort, we entered into a 40 year operating ground lease with the Maryland Department of Natural Resources for approximately 268 acres in the Rocky Gap State Park on which the Rocky Gap Resort is situated. We are currently operating the existing hotel, golf course and related amenities. The Rocky Gap Resort is currently undergoing renovation and upon completion will feature a gaming facility and an event center. The gaming facility will include approximately 550 video lottery terminals (“VLTs”), 10 table games, a casino bar and a new lobby food and beverage outlet. The event center will be able to accommodate large groups and will feature multiple flexible use meeting rooms, including a formal high-end board room. The total cost of the project is currently expected to be approximately $35.0 million. On December 17, 2012, Lakes closed on a $17.5 million financing facility with Centennial Bank (the “Facility”). The Facility will be used to finance a portion of the renovation and new meeting space construction costs. We are required to invest $17.5 million in the Rocky Gap Resort project, including the original purchase price of the property, prior to drawing on the Facility. As of December 30, 2012, no amounts had been drawn and no amounts were outstanding under the Facility. The gaming facility is expected to open in the second quarter of 2013 and the event center is expected to be available for use in the fourth quarter of 2013.
•
We developed, and have a seven-year contract to manage the Red Hawk Casino that was built on the Rancheria of the Shingle Springs Band of Miwok Indians (the “Shingle Springs Tribe”) in El Dorado County, California, adjacent to U.S. Highway 50, approximately 30 miles east of Sacramento, California. We began managing the Red Hawk Casino when it opened to the public on December 17, 2008. The Red Hawk Casino features approximately 2,250 slot machines and gaming devices, 60 table games, five poker tables, six restaurants, four bars, retail space, a parking garage and a child care facility and arcade.
•
We have an investment in Rock Ohio Ventures, LLC (“Rock Ohio Ventures”) that owns the Horseshoe Casino Cleveland in Cleveland, Ohio, the Horseshoe Casino Cincinnati in Cincinnati, Ohio, and the Thistledown Racino in North Randall, Ohio. As of December 30, 2012, we have contributed approximately $20.2 million to Rock Ohio Ventures. Lakes currently maintains a 10% interest in Rock Ohio Ventures’ 80% ownership in its casino properties in Ohio. We currently plan to contribute additional capital as needed to maintain our equity position in Rock Ohio Ventures. If we choose not to fund any additional amounts, we will maintain an ownership position in Rock Ohio Ventures in a pro rata amount of what our $2.8 million initial payment is to the total amount of equity funded to develop casino operations, and all equity funded in excess of the initial $2.8 million is required to be repurchased at an amount equal to the price paid.
The Horseshoe Casino Cleveland opened on May 13, 2012. The casino features approximately 2,100 slot machines, 63 table games, a 30-table poker room and multiple food and beverage outlets. The Horseshoe Casino Cincinnati opened on March 4, 2013 and features approximately 2,000 slot machines, 116 table games (including poker), food and beverage outlets, and a parking structure with approximately 2,500 parking spaces. The Thistledown Racino is expected to add 1,100 VLTs in April 2013 to the currently operating racetrack.
Results of Continuing Operations
The following discussion and analysis should be read in conjunction with the consolidated financial statements and notes thereto included elsewhere in this Annual Report on Form 10-K for the year ended December 30, 2012.
Fiscal Year Ended December 30, 2012 (“Fiscal 2012”) Compared to Fiscal Year Ended January 1, 2012 (“Fiscal 2011”)
Revenues
Total revenues were $11.0 million for fiscal 2012 compared to $35.6 million for fiscal 2011. The decrease in revenues for fiscal 2012 compared to fiscal 2011 was due primarily to the elimination of management fees from the Four Winds Casino Resort resulting from the buy-out of the management agreement for that property by the Pokagon Band of Potawatomi Indians (the “Pokagon Band”) on June 30, 2011. Under the buy-out agreement, Lakes was compensated in the amount of $24.5 million for the management fees it would have received had it managed the Four Winds Casino Resort through the original contract expiration date which was August 2012. The decrease in revenues period over period was partially offset by an increase of $4.9 million in management fees from the Red Hawk Casino and the addition of $3.2 million in revenues related to the operation of the Rocky Gap Resort.
During fiscal 2014, the management fees we earn from the Red Hawk Casino will decrease from 30% of net revenue, (as defined in the development and management agreement) (“Net Revenue”) with the Shingle Springs Tribe, to 25% of the first $90 million of Net Revenue per year, 15% of the next $60 million of Net Revenue per year and 5% of Net Revenue over $150 million per year in accordance with the terms of the management agreement with the Shingle Springs Tribe.
Property Operating Expenses
Property operating expenses were $1.7 million for fiscal 2012 which primarily related to rooms, food and beverage and golf operations of the Rocky Gap Resort. As the Rocky Gap Resort was acquired during the third quarter of 2012, there were no such expenses for fiscal 2011.
Selling, General and Administrative Expenses
Selling, general and administrative expenses were $10.2 million for fiscal 2012 compared to $9.5 million for fiscal 2011. Included in these amounts were Lakes corporate selling, general and administrative expenses of $7.8 million and $9.2 million during fiscal 2012 and fiscal 2011, respectively, and Rocky Gap Resort selling, general and administrative expenses of $2.4 million during fiscal 2012 and administrative costs associated with the acquisition of the Rocky Gap Resort of $0.3 million during fiscal 2011. The increase in selling, general and administrative expenses in fiscal 2012 compared to fiscal 2011 was primarily due to the addition of administrative costs and professional fees associated with the acquisition and operation of the Rocky Gap Resort which were partially offset by decreases in travel and related expenses due to the termination of Lakes’ aircraft lease during the fourth quarter of fiscal 2011, as well as decreases in corporate payroll and related expenses. For fiscal 2012, selling, general and administrative expenses included payroll and related expenses of $5.0 million (including share-based compensation), travel expenses of $0.4 million and professional fees of $2.6 million. For fiscal 2011, selling, general and administrative expenses included payroll and related expenses of $4.9 million (including share-based compensation), travel expenses of $1.5 million and professional fees of $1.6 million.
Loss on Convertible Note Receivable
Loss on convertible note receivable was $4.0 million for fiscal 2011. There was no loss on convertible note receivable for fiscal 2012. The fiscal 2011 loss was associated with Lakes’ initial $4.0 million investment in Dania Entertainment Center, LLC via a convertible promissory note related to a potential casino development project in Florida, which was written down to zero during the third quarter of fiscal 2011.
Impairments and Other Losses
Impairments and other losses were $4.5 million in fiscal 2012 and $8.5 million in fiscal 2011. During fiscal 2012, Lakes recognized impairment charges of $1.8 million due to Lakes determining that it would not move forward with the project with the Jamul Tribe. Also included in impairments and other losses for fiscal 2012 were $1.2 million related to costs associated with initial development plans for the Rocky Gap project which were subsequently revised, and an impairment charge of $1.3 million as a result of selling the majority of the land owned in Vicksburg, Mississippi for an amount less than its recorded book value. During fiscal 2011, Lakes recognized impairment charges of $3.7 million primarily due to the continued uncertainty surrounding the completion of the Jamul Casino Project associated with delays in progress as well as ongoing issues in the credit markets. Also included in impairments and other losses for fiscal 2011 were impairment charges of $1.6 million related to land owned by Lakes in Vicksburg, Mississippi due to continued declines in its estimated fair value. Also during fiscal 2011, we terminated our aircraft lease with Banc of America Leasing & Capital, LLC, which was set to expire in 2018. As a result of the early termination of the lease, we incurred a loss of approximately $3.3 million. We determined that the costs associated with operating and maintaining the aircraft over the remaining lease term significantly exceeded the amount of the loss we recognized as a result of the early lease termination.
Amortization of Intangible Assets Related to Indian Casino Projects
Amortization of intangible assets related to Indian casino projects was $1.1 million for fiscal 2012 compared to $11.7 million for fiscal 2011. The decrease in amortization costs related to the intangible assets associated with the Pokagon Band being fully amortized during the second quarter of 2011 as a result of the buy-out agreement with the Pokagon Band.
Net Unrealized Losses on Notes Receivable
There were no net unrealized losses on notes receivable during fiscal 2012. Net unrealized losses on notes receivable were $11.9 million in fiscal 2011 related to the project with the Jamul Tribe and were due primarily to the decision not to move forward with the Jamul project.
Other Income (Expense), net
Other income (expense), net was $7.8 million for fiscal 2012 compared to $5.2 million for fiscal 2011. The increase in other income net of expense in fiscal 2012 compared to fiscal 2011 was primarily due to receiving a payment related to the settlement of the lawsuit entitled WPT Enterprises, Inc., et al vs. Deloitte & Touche, LLP. The settlement of the lawsuit provided for payment to Lakes of $2.2 million, which was received in November 2012. A significant portion of the remaining amount of other income net of expense in both periods relates to non-cash interest income associated with accretion on the notes receivable from the Shingle Springs Tribe.
Income Taxes
The income tax benefit was $2.5 million in fiscal 2012 compared to $3.2 million for fiscal 2011. Our effective tax rates for fiscal 2012 and fiscal 2011 were (325.7)% and (63.7)%, respectively. For fiscal 2012 and 2011, the effective tax rate differs from the federal tax rate of 35% due primarily to a change in the valuation allowance. In fiscal 2012 and fiscal 2011, the income tax benefit results from Lakes’ ability to carry back its taxable losses to a prior year and receive a refund of taxes previously paid.
As of December 30, 2012, we evaluated the ability to utilize existing deferred tax assets arising from other ordinary items and determined that, due to a lack of sufficient positive evidence that future income will support the recognition of those other deferred tax assets, a 100% valuation allowance against deferred tax assets continues to be appropriate for those items at December 30, 2012.
Liquidity and Capital Resources
As of December 30, 2012, we had $32.5 million in cash and cash equivalents. We currently believe that our cash and cash equivalents balance and our cash flows from operations will be sufficient to meet our working capital requirements during the next 12 months.
Our operating results and performance depend significantly on economic conditions and their effect on consumer spending in the properties we own and/or manage. Declines in consumer spending may cause our revenue generated from the ownership of the Rocky Gap Resort and management of the Red Hawk Casino to be adversely affected.
In the event our cash flows from operations do not match the levels we currently anticipate, we may need to raise funds. However, there is no certainty that we would be able to do so on terms that are favorable to the Company or at all.
During fiscal 2012, our management fee revenues were derived from the management of the Red Hawk Casino. Our agreement for the management of this casino continues through December 2015. Room, food and beverage, and other operating revenues and expenses from the Rocky Gap Resort are included in operations from the date of the acquisition of the property.
On August 3, 2012, we acquired the assets of the Rocky Gap Resort for $6.8 million. In connection with the closing of the acquisition of the Rocky Gap Resort, we entered into a 40 year operating ground lease with the Maryland Department of Natural Resources for approximately 268 acres in the Rocky Gap State Park on which the Rocky Gap Resort is situated. We are currently operating the existing hotel, golf course and related amenities. The Rocky Gap Resort is currently undergoing renovation and upon completion will feature a gaming facility and an event center. The gaming facility will include approximately 550 VLTs, 10 table games, a casino bar and a new lobby food and beverage outlet. The event center will be able to accommodate large groups and will feature multiple flexible use meeting rooms, including a formal high-end board room. The total cost of the project is currently expected to be approximately $35.0 million. On December 17, 2012, Lakes closed on a $17.5 million financing facility with Centennial Bank (the “Facility”). The Facility will be used to finance a portion of the renovation and new meeting space construction costs. We are required to invest $17.5 million in the Rocky Gap Resort project, including the purchase price of the property, prior to drawing on the Facility. As of December 30, 2012, Lakes had invested a total of $11.9 million in the Rocky Gap project. As of December 30, 2012, no amounts had been drawn and no amounts were outstanding under the Facility. We currently believe that our cash and cash equivalents balance and amounts expected to be drawn under the Facility are sufficient to meet our development cost requirements related to this project. The gaming facility is expected to open in the second quarter of 2013 and the event center is expected to be available for use in the fourth quarter of 2013.
The management agreement with the Red Hawk Casino includes a minimum guaranteed payment to the Shingle Springs Tribe of $0.5 million a month. We are obligated to advance funds for these minimum guaranteed monthly payments when the casino operating results are not sufficient, and we are repaid the advances in subsequent periods when operating results are sufficient. As of December 30, 2012, no amount was outstanding under this obligation. We collected payments of $1.1 million under this obligation during fiscal 2012.
At January 2, 2011, we evaluated the notes receivable with the Shingle Springs Tribe for impairment and concluded that the notes receivable were impaired because we determined it was probable that substantial amounts due would not be repaid within the contract term. At December 30, 2012, we evaluated the notes receivable with the Shingle Springs Tribe for impairment and concluded that the notes receivable continue to be impaired. We continue to manage the Red Hawk Casino and will collect monthly interest as scheduled as well as repayments of any minimum guaranteed monthly payments as discussed above and management fees when allowed as determined by net revenue levels of the Red Hawk Casino. However, the collection of principal on the Transition Loan will be deferred through December 2013. While we have concluded that it is probable that substantial amounts due from the Shingle Springs Tribe will not be repaid within the contract term, the Shingle Springs Tribe will remain legally obligated to repay any remaining amounts due to us subsequent to the conclusion of the agreement.
We have a total investment of $20.2 million in Rock Ohio Ventures. Per our agreement with Rock Ohio Ventures related to the casino properties in Cincinnati and Cleveland, Ohio and the Thistledown Racino in North Randall, Ohio, we may be required to invest additional funds of up to $4.9 million in those projects. The Horseshoe Casino Cleveland opened on May 13, 2012 and the Horseshoe Casino Cincinnati opened on March 4, 2013. The Thistledown Racino is expected to add 1,100 VLTs in April 2013 to the currently operating racetrack.
On October 28, 2012, our interest-only $8.0 million non-revolving bank line of credit loan agreement (the “Loan Agreement”) was extended through October 28, 2014 and was modified to be revolving in nature. As of December 30, 2012 and January 1, 2012, no amounts were outstanding under the Loan Agreement.
We entered into a Settlement and Mutual Releases Agreement (the “Settlement Agreement”) in October 2012 related to the lawsuit entitled WPT Enterprises, Inc., et al vs. Deloitte & Touche, LLP. The Settlement Agreement provided for payment to Lakes of $2.2 million, which was received on November 1, 2012.
Critical Accounting Policies and Estimates
This Management’s Discussion and Analysis of Financial Condition and Results of Operations discusses our consolidated financial statements, which have been prepared in accordance with United States generally accepted accounting principles. The preparation of these financial statements requires us to make estimates that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the balance sheet date and reported amounts of revenue and expenses during the reporting period. On an ongoing basis, we evaluate our estimates and judgments, including those related to revenue recognition, long-term assets related to Indian casino projects, litigation costs, income taxes and share-based compensation. We base our estimates and judgments on historical experience and on various other factors that are reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates.
See note 2, Summary of Significant Accounting Policies, to the consolidated financial statements included in Item 8 of this Annual Report on Form 10-K for a discussion of our accounting policies that involve the more significant judgments and estimates used in the preparation of our consolidated financial statements.
Long-Term Assets Related to Indian Casino Projects
The consolidated balance sheets as of December 30, 2012 and January 1, 2012 include long-term assets related to Indian casino projects of $46.2 million and $46.6 million, respectively. The amounts are as follows by project (in thousands):
(*)
Primarily includes deferred management fees and interest due from the Shingle Springs Tribe for the management of the Red Hawk Casino of $4.0 million and $6.0 million as of December 30, 2012 and January 1, 2012, respectively, and notes receivable from related parties of $0.8 million and $1.3 million, net of current portion, as of December 30, 2012 and January 1, 2012, respectively.
Notes Receivable
We have formal procedures governing our evaluation of opportunities for potential Indian-owned casino development projects that we follow before entering into agreements to provide financial support for the development of these projects. We determine whether there is probable future economic benefit prior to recording any asset related to the Indian casino project. We initially evaluate several factors involving critical milestones that affect the probability of developing and operating a casino.
We account for our notes receivable from the tribes as in-substance structured notes in accordance with the guidance contained in Accounting Standards Codification (“ASC”) 320, Investments - Debt and Equity Securities. Under their terms, the notes do not become due and payable unless the projects are completed and operational, and distributable profits are available from the operations. However, in the event our development activity is terminated prior to completion, we generally retain the right to collect in the event of completion by another developer. Because the stated rate of the notes receivable alone is not commensurate with the risk inherent in these projects (at least prior to commencement of operations), the estimated fair value of the notes receivable is generally less than the amount advanced. At the date of each advance, the difference between the estimated fair value of the note receivable and the actual amount advanced is recorded as an intangible asset, and the two assets are accounted for separately.
Subsequent to its initial recording at estimated fair value, the note receivable portion of the advance is adjusted to its current estimated fair value at each balance sheet date until the casino opens using then current assumptions including casino opening dates, typical market discount rates, pre- and post-opening date interest rates, probabilities of the projects opening and financial models prepared by management. The notes receivable are not adjusted to a fair value estimate that exceeds the face value of the note plus accrued interest, if any. Due to uncertainties surrounding the projects, no interest income is recognized during the development period, but changes in estimated fair value of the notes receivable still held as of the balance sheet date are recorded as unrealized gains or losses in our consolidated statement of operations.
Upon opening of the casino, any difference between the then estimated fair value of the notes receivables and the amount contractually due under the notes is amortized into income using the effective interest method over the remaining term of the note. Notes receivable are stated at the amount of unpaid principal and are net of unearned discount and, if applicable, an allowance for impaired notes receivable.
Notes receivable for open casinos are periodically evaluated for impairment pursuant to ASC 310, Receivables (“ASC 310”). We consider a note receivable to be impaired when, based on current information and events, it is determined that we will not be able to collect all amounts due according to the terms of the note receivable agreement. Subsequent to the initial impairment evaluation, we continue to monitor the note receivable for any changes in expected cash flows and recognize those changes in accordance with ASC 310.
Shingle Springs Tribe
We concluded that it was probable that substantial amounts due would not be repaid within the contract term and therefore determined that the notes were impaired as of December 30, 2012 and January 1, 2012. This determination was based on the continued economic pressures in the northern California market and competition in the market the property serves, both of which have negatively impacted cash flows for the property. The outstanding amounts on the notes and interest receivable from the Shingle Springs Tribe was $69.4 million as of December 30, 2012, which is comprised of $66.7 million related to the Transition Loan and $2.7 million related to interest receivable. The carrying amount of long-term notes and interest receivable, which is net of unearned discount of $12.3 million and allowance for impairment of $18.9 million, was $38.2 million as of December 30, 2012.
Jamul Tribe
We entered into an agreement with the Jamul Tribe during 1999 to develop and manage the Jamul Casino Project. Due to our corporate strategic objectives, we determined that we would not move forward with the Jamul Casino Project and terminated the agreement with the Jamul Tribe in March 2012. As a result of the termination of our agreement with the Jamul Tribe, we estimated the fair value of the notes receivable from the Jamul Tribe to be zero as of December 30, 2012 and January 1, 2012. As of the date of termination, we had advanced approximately $57.5 million including accrued interest to the Jamul Tribe related to casino development efforts. We made total advances of $1.8 million to the Jamul Tribe during fiscal 2012, $0.5 million of which had been made as of the date of the termination of the agreement. Pursuant to the agreement with the Jamul Tribe, we advanced an additional $1.3 million subsequent to the date of termination. All of the fiscal 2012 advances are included as losses in our consolidated statement of operations for the twelve months ended December 30, 2012. During fiscal 2011, we incurred a net unrealized loss of $11.9 million related to the notes receivable and we recorded an impairment charge of $3.7 million on intangible assets related to the Jamul Casino Project. Although the Jamul Tribe remains obligated to repay all advances including accrued interest, it is not contemplated that the Jamul Tribe will have sufficient funds to make such payments unless it opens a gaming facility on its reservation. We continue to have a collateral interest in all revenues from any future casino owned by the Jamul Tribe, and the casino’s furnishings and equipment.
Intangible Assets Related to Indian Casino Projects
Intangible assets related to the acquisition of the management, development, consulting or financing contracts are accounted for using the guidance in ASC 350, Intangibles - Goodwill and Other (“ASC 350”). In accordance with ASC 350, we amortize the intangible assets related to the acquisition of the management, development, consulting or financing contracts under the straight-line method over the term of the respective contracts which commence when the related casinos open. In addition to the intangible asset associated with the cash advances to tribes described above, these assets include actual costs incurred to acquire our interest in the projects from third parties.
Pursuant to ASC 350, the intangible assets are periodically evaluated for impairment based on the estimated cash flows from the respective contract on an undiscounted basis. In the event the carrying value of the intangible assets, in combination with the carrying value of other assets associated with the Indian casino projects described below, were to exceed the undiscounted cash flow, an impairment charge would be recorded. Such an impairment charge is measured based on the difference between the fair value and carrying value of the assets. We principally use internal forecasts to estimate the undiscounted future cash flows used in our impairment analyses. These forecasts and fair value assumptions are highly subjective and judgmental and are primarily based on management’s judgment which takes into account the casino industry, known operating results and trends and the current economic environment that the casino serves to develop an applied discount rate. During periods of economic instability, we may not be able to accurately forecast future cash flows from our Indian casino projects. Therefore, our estimates and assumptions may change, and are reasonably likely to change in future periods. These changes could adversely affect our consolidated statements of operations.
Management Fees Receivable and Other
Other assets primarily consist of deferred management fees and related interest due from the Shingle Springs Tribe and amounts due from related parties that are directly related to the development and opening of Lakes’ Indian casino projects. See note 18, Related Party Transactions, to the consolidated financial statements included in Item 8 of this Annual Report on Form 10-K.
In addition, we incur certain non-reimbursable costs related to the projects that are not included in notes receivable, which are expensed as incurred. These costs include salaries, travel and certain legal costs.
Description of Each Indian Casino Project and Evaluation of Critical Milestones
Shingle Springs Tribe - Red Hawk Casino
On December 17, 2008, the Red Hawk Casino opened to the public. We earn a management fee equal to 30% of Net Revenue of the operations annually for the first five years. During years six and seven, Lakes will earn a fee equal to 25% of the first $90 million of Net Revenue per year, 15% of the next $60 million of Net Revenue per year and 5% of Net Revenue over $150 million per year. Payment of our management fee is subordinated to the repayment of $450 million senior note financing of an affiliate of the Shingle Springs Tribe, the repayment of $15.4 million furniture, furnishings and equipment financing as of December 30, 2012 and a minimum monthly priority payment to the Shingle Springs Tribe. Generally, the order of priority of payments from the Red Hawk Casino’s cash flows is as follows: a certain minimum monthly guaranteed payment to the Shingle Springs Tribe; repayment of various debt with interest accrued thereon (including the Transition Loan); management fees due to Lakes; other obligations, if any; and the remaining funds, if any, distributed to the Shingle Springs Tribe. The management agreement includes provisions that allow the Shingle Springs Tribe to buy out the management agreement after four years from the opening date. The buy-out amount is calculated by multiplying the previous 12 months of management fees earned by the remaining number of years under the agreement, discounted back to the present value at the time the buy-out occurs. If the Shingle Springs Tribe elects to buy out the contract, all outstanding amounts owed to Lakes immediately become due and payable. The NIGC approved the management contract in July 2004, which was subsequently amended in May 2007.
We acquired our initial interest in the development and management agreements for the Shingle Springs Casino from KAR - Shingle Springs in 1999 and formed a joint venture, in which the agreements were held, between us and KAR - Shingle Springs. On January 30, 2003, we purchased the remaining KAR - Shingle Springs’ partnership interest in the joint venture. In connection with the purchase transaction, we entered into separate agreements with the two individual owners of KAR - Shingle Springs (Kevin M. Kean and Jerry A. Argovitz).
During 2009, Lakes became obligated to pay Mr. Argovitz $1 million per year (prorated based on a 365 day year) during the remainder of the seven-year initial term of the management agreement which commenced in December 2008 between Lakes and the Shingle Springs Tribe, as a result of Mr. Argovitz’s election under an existing agreement related to this project. Also as a result of this election, Mr. Argovitz will not be entitled to obtain a 15% equity interest in the Lakes’ entity that holds the rights to the management fees earned by Lakes from the Red Hawk Casino operations.
During 2009, Lakes became obligated to pay Mr. Kean $1 million per year (prorated based on a 365 day year) during the remainder of the seven-year initial term of the management agreement which commenced in December 2008 between Lakes and the Shingle Springs Tribe, as a result of Mr. Kean’s election under an existing agreement related to this project. Also as a result of this election, Mr. Kean will not be entitled to receive consulting fees equal to 15% of the management fees earned by Lakes from the Red Hawk Casino operations.
See note 18, Related Party Transactions, to the consolidated financial statements included in Item 8 of this Annual Report on Form 10-K for further discussion.
Recently Issued Accounting Pronouncements
For information related to recently issued accounting pronouncements, see note 2, Summary of Significant Accounting Policies, to the consolidated financial statements in Item 8 of this Annual Report on 10-K.
Seasonality
We believe that the operations of all casino and resort properties owned and/or managed by us are affected by seasonal factors, including holidays, weather and travel conditions.
Regulation and Taxes
We and the owners of the existing and planned casinos that we are and will be working with are subject to extensive regulation by state gaming authorities. We will also be subject to regulation, which may or may not be similar to current state regulations, by the appropriate authorities in any jurisdiction where we may conduct gaming activities in the future. Changes in applicable laws or regulations could have an adverse effect on us.
The gaming industry represents a significant source of tax revenues to regulators. From time to time, various federal legislators and officials have proposed changes in tax law, or in the administration of such law, affecting the gaming industry. It is not possible to determine the likelihood of possible changes in tax law or in the administration of such law. Such changes, if adopted, could have a material adverse effect on our future financial position, results of operations and cash flows.
Off-Balance Sheet Arrangements
We have no off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that is material to investors, except for the financing commitments previously discussed.
ITEM 7A.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
Not applicable.
ITEM 8.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTAL DATA
LAKES ENTERTAINMENT, INC. AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Board of Directors
Lakes Entertainment, Inc.
Minnetonka, Minnesota
We have audited the accompanying consolidated balance sheets of Lakes Entertainment, Inc. and Subsidiaries (the Company) as of December 30, 2012 and January 1, 2012, and the related consolidated statements of operations, shareholders’ equity, and cash flows for each of the years then ended. The Company’s management is responsible for these financial statements. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform an audit of its internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of the Company as of December 30, 2012 and January 1, 2012, and the consolidated results of its operations and cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States.
/s/ Piercy Bowler Taylor & Kern
Piercy Bowler Taylor & Kern
Certified Public Accountants
Las Vegas, Nevada
March 15, 2013
LAKES ENTERTAINMENT, INC. AND SUBSIDIARIES
Consolidated Balance Sheets
(In thousands)
See notes to consolidated financial statements.
LAKES ENTERTAINMENT, INC. AND SUBSIDIARIES
Consolidated Statements of Operations
(In thousands, except per share data)
See notes to consolidated financial statements.
LAKES ENTERTAINMENT, INC. AND SUBSIDIARIES
Consolidated Statements of Shareholders' Equity (In thousands)
See notes to consolidated financial statements.
LAKES ENTERTAINMENT, INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows (In thousands)
See notes to consolidated financial statements.
LAKES ENTERTAINMENT, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Nature of Business
Overview
Lakes Entertainment Inc. and subsidiaries (collectively “the Company” or “Lakes”) has developed, financed and managed casino properties with a historical emphasis on those that are Indian-owned. An overview of the Company’s projects as of December 30, 2012 is as follows:
•
Lakes owns and operates the Rocky Gap Lodge & Golf Resort in Allegany County, Maryland (the “Rocky Gap Resort”) which it acquired on August 3, 2012 for $6.8 million. The AAA Four Diamond Award® winning resort includes a hotel, spa, two restaurants and the only Jack Nicklaus signature golf course in Maryland. In connection with the closing of the acquisition of the Rocky Gap Resort, Lakes entered into a 40 year operating ground lease with the Maryland Department of Natural Resources (“Maryland DNR”) for approximately 268 acres in the Rocky Gap State Park on which the Rocky Gap Resort is situated. Lakes is currently operating the existing hotel, golf course and related amenities. The Rocky Gap Resort is currently undergoing renovation and upon completion will feature a gaming facility and an event center. The gaming facility will include approximately 550 video lottery terminals (“VLTs”), 10 table games, a casino bar and a new lobby food and beverage outlet. The event center will be able to accommodate large groups and will feature multiple flexible use meeting rooms, including a formal high-end board room. The total cost of the project is currently expected to be approximately $35.0 million. On December 17, 2012, Lakes closed on a $17.5 million financing facility with Centennial Bank (the “Facility”). The Facility will be used to finance a portion of the renovation and new meeting space construction costs. Lakes is required to invest $17.5 million in the Rocky Gap Resort project, including the original purchase price of the property, prior to drawing on the Facility. As of December 30, 2012, no amounts had been drawn and no amounts were outstanding under the Facility. The gaming facility is expected to open in the second quarter of 2013 and the event center is expected to be available for use in the fourth quarter of 2013.
•
Lakes developed, and has a seven-year contract to manage, the Red Hawk Casino that was built on the Rancheria of the Shingle Springs Band of Miwok Indians (the “Shingle Springs Tribe”) in El Dorado County, California, adjacent to U.S. Highway 50, approximately 30 miles east of Sacramento, California. Lakes began managing the Red Hawk Casino when it opened to the public on December 17, 2008. The Red Hawk Casino features approximately 2,250 slot machines and gaming devices, 60 table games, 5 poker tables, six restaurants, four bars, retail space, a parking garage and a child care facility and arcade.
•
Lakes has an investment in Rock Ohio Ventures, LLC (“Rock Ohio Ventures”) that owns the Horseshoe Casino Cleveland in Cleveland, Ohio, the Horseshoe Casino Cincinnati in Cincinnati, Ohio, and the Thistledown Racino in North Randall, Ohio. As of December 30, 2012, Lakes has contributed approximately $20.2 million to Rock Ohio Ventures. Lakes currently maintains a 10% interest in Rock Ohio Ventures’ 80% ownership in its casino properties in Ohio. Lakes currently plans to contribute additional capital as needed to maintain its equity position in Rock Ohio Ventures.
The Horseshoe Casino Cleveland opened on May 13, 2012. The casino features approximately 2,100 slot machines, 63 table games, a 30-table poker room and multiple food and beverage outlets. The Horseshoe Casino Cincinnati opened on March 4, 2013 and features approximately 2,000 slot machines, 116 table games (including poker), food and beverage outlets, and a parking structure with approximately 2,500 parking spaces. The Thistledown Racino is expected to add 1,100 VLTs in April 2013 to the currently operating racetrack.
Significant Customers and Concentrations of Credit Risk
Fees earned for services related to the Red Hawk Casino in fiscal 2012 were in excess of ten percent of consolidated revenues in the accompanying consolidated statements of operations. Fees earned for services related to the Four Winds Casino Resort in fiscal 2011 were in excess of ten percent of consolidated revenues in the accompanying consolidated statements of operations.
As of December 30, 2012 and January 1, 2012, the financial instruments that subject the Company to concentrations of credit risk consist principally of its notes receivable due from the Shingle Springs Tribe as further discussed in note 5, Long-Term Assets Related to Indian Casino Projects - Notes and Interest Receivable. Lakes manages the risk related to the Red Hawk Casino and the related notes receivable by overseeing the day-to-day management of operations and evaluating collectability (the need for an allowance for doubtful collection and possible charge-off) of the notes receivable based upon operational performance. In the event the receivables become uncollectible, the maximum losses to be sustained would be the carrying value of the notes receivable, plus the net carrying value of the related unamortized intangible assets.
2. Summary of Significant Accounting Policies
Use of Estimates
Preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates that affect the reported amounts of assets and liabilities and disclosures at the date of the financial statements and the reported amounts of net earnings (loss) during the reporting periods. Actual results could differ from those estimates. Significant estimates that are particularly susceptible to change materially within the next year relate to: valuation and the realizability of notes receivable and other long-term assets related to Indian casino projects, fair value measurements, income tax liabilities and deferred income tax asset valuation allowances.
Year End
The Company has a 52- or 53-week accounting period ending on the Sunday closest to December 31 of each year. The Company’s fiscal years for the periods shown on the accompanying consolidated statements of operations ended on December 30, 2012 (“fiscal 2012”) and January 1, 2012 (“fiscal 2011”).
Basis of Presentation
The accompanying consolidated financial statements include the accounts of Lakes and its subsidiaries.
All material intercompany accounts and transactions have been eliminated in consolidation.
Investments in unconsolidated investees, which are less than 20% owned and the Company does not have the ability to significantly influence the operating or financial decisions of the entity, are accounted for under the cost method. See note 8, Investment in Unconsolidated Investee.
Acquisition Accounting
On August 3, 2012, Lakes acquired the assets of the Rocky Gap Resort for $6.8 million paid with cash on hand. The AAA Four Diamond Award® winning resort includes a hotel, spa, two restaurants and the only Jack Nicklaus signature golf course in Maryland.
Acquisition accounting for this business combination requires the following:
·
Identifying the acquirer,
·
Determining the acquisition date,
·
Recognizing and measuring the identifiable assets acquired and the liabilities assumed, and
·
Recognizing and measuring goodwill or a gain from a bargain purchase
Lakes has completed its valuation procedures, and the resulting fair value of the acquired assets and assumed liabilities has been recorded based upon the valuation of the business enterprise and Rocky Gap Resort's tangible and intangible assets. Enterprise value allocation methodology requires management to make assumptions and apply judgment to estimate the fair value of acquired assets and assumed liabilities. If estimates or assumptions used to complete the enterprise valuation and estimates of the fair value of the acquired assets and assumed liabilities significantly differed from assumptions made, the resulting difference could materially affect the fair value of net assets.
The calculation of the fair value of the tangible assets, including the building, site improvements, and furniture, fixtures and equipment, utilized the cost approach, which is based on replacement cost of the assets.
The calculation of the fair value of the identified intangible assets was determined using cash flow models following the income approach. The calculation of the fair value of the advance bookings was determined using an excess earnings method, which is an application of the income approach and computes the present value of cash flows attributable to the associated future income stream. The determination of the fair value of memberships utilized the income approach and included projections of membership revenue, estimates of operating expenses associated with the memberships and a charge for the contributory assets. The net present value of the membership income was then calculated using a selected discount rate. As a result of the business combination and fair value analysis, Lakes recorded $0.2 million for advance bookings and $0.4 million for memberships. Goodwill or a gain from a bargain purchase was not recorded as the fair value of the acquired assets and assumed liabilities approximated the purchase price.
The application of the acquisition method of accounting guidance had the following effects on Lakes’ consolidated financial statements:
·
Lakes measured the fair value of identifiable assets and liabilities in accordance with required valuation recognition and measurement provisions; the application of such provisions resulted in recording the fair value of the assets acquired of $7.0 million and the fair value of the liabilities assumed of $0.2 million in our consolidated balance sheet as of August 3, 2012. In total, the assets of the Rocky Gap Resort acquired represent approximately 6% of our consolidated total assets as of December 30, 2012.
·
Lakes has reported the operating results of the Rocky Gap Resort in its consolidated statements of operations and cash flows for the period from August 3, 2012 through December 30, 2012. During this period, Lakes recorded $3.2 million in revenue and $(0.8) million in net loss from the Rocky Gap Resort’s operations.
Revenue Recognition
Revenue from the management, development, financing of and consulting with Indian-owned casino gaming facilities is recognized as it is earned pursuant to each respective agreement. See further discussion below under the caption “Long-Term Assets Related to Indian Casino Projects.” Food, beverage, and retail revenues related to the Rocky Gap Resort are recorded at the time of sale. Room revenue related to the Rocky Gap Resort is recorded at the time of occupancy. Sales taxes and surcharges collected from guests and remitted to governmental authorities are presented on a net basis. Accounts receivable deemed uncollectible are charged off through a provision for uncollectible accounts. No amounts were deemed uncollectible during fiscal 2012 and fiscal 2011.
Cash and Cash Equivalents
Cash and cash equivalents consist of highly-liquid investments with original maturities of three months or less.
Investment in Unconsolidated Investee
Investments in an entity where the Company owns less than 20% of the voting stock of the entity and does not exercise significant influence over operating and financial policies of the entity are accounted for using the cost method. Investments in the entity where the Company owns twenty percent or more but not in excess of fifty percent of the voting stock of the entity or less than twenty percent and exercises significant influence over operating and financial policies of the entity are accounted for using the equity method. The Company has a policy in place to review its investments at least annually, to evaluate the accounting method and carrying value of the investments in these companies. The Company's cost method investment is evaluated, on at least a quarterly basis, for potential other-than-temporary impairment, or when an event or change in circumstances has occurred that may have a significant adverse effect on the fair value of the investment. Lakes monitors this investment for impairment by considering all information available to the Company including the economic environment, market conditions, and operational performance and other specific factors relating to the business underlying the investment. If the Company believes that the carrying value of an investment is in excess of estimated fair value, it is the Company’s policy to record an impairment charge to adjust the carrying value to the estimated fair value, if the impairment is considered other-than-temporary.
Property and Equipment
Property and equipment is stated at cost less accumulated depreciation. Depreciation of property and equipment is computed using the straight-line method over the following estimated useful lives:
Long-Term Assets Related to Indian Casino Projects
Notes Receivable
Lakes has formal procedures governing its evaluation of opportunities for potential Indian-owned casino development projects that it follows before entering into agreements to provide financial support for the development of these projects. Lakes determines whether there is probable future economic benefit prior to recording any asset related to the Indian casino project. Lakes’ management initially evaluates several factors involving critical milestones that affect the probability of developing and operating a casino.
Lakes accounts for its notes receivable from the tribes as in-substance structured notes. Under their terms, the notes do not become due and payable unless the projects are completed and operational, and distributable profits are available from their operations. However, in the event its development activity is terminated prior to completion, Lakes generally retains the right to collect in the event of completion by another developer. Because the stated rate of the notes receivable alone is not commensurate with the risk inherent in these projects (at least prior to commencement of operations), the estimated fair value of the notes receivable is generally less than the amount advanced. At the date of each advance, the difference between the estimated fair value of the note receivable and the actual amount advanced is recorded as an intangible asset, and the two assets are accounted for separately.
Subsequent to its initial recording at estimated fair value, the note receivable portion of the advance is adjusted to its current estimated fair value at each balance sheet date until the casino opens using then current assumptions including casino opening dates, typical market discount rates, pre- and post-opening date interest rates, probabilities of the projects opening and financial models prepared by management. The notes receivable are not adjusted to a fair value estimate that exceeds the face value of the note plus accrued interest, if any. Due to uncertainties surrounding the projects, no interest income is recognized during the development period, but changes in estimated fair value of the notes receivable still held as of the balance sheet date are recorded as unrealized gains or losses in Lakes’ consolidated statement of operations.
Upon opening of the casino, any difference between the then estimated fair value of the notes receivables and the amount contractually due under the notes is amortized into income using the effective interest method over the remaining term of the note. Notes receivable are stated at the amount of unpaid principal and are net of unearned discount and, if applicable, an allowance for impaired notes receivable.
Lakes monitors the credit quality of notes receivable through ongoing review of the casino’s financial position, operating results and projected operating results that are available to Lakes in its capacity as manager of the casino. In addition, Lakes continuously monitors the economic, political, regulatory and competitive conditions that may adversely impact casinos’ projected operating results.
Notes receivable for open casinos are periodically evaluated for impairment pursuant to Accounting Standards Codification (“ASC”) 310, Receivables (“ASC 310”). Lakes considers a note receivable to be impaired when, based on current information and events, it is determined that Lakes will not be able to collect all amounts due according to the terms of the note receivable agreement. Subsequent to the initial impairment evaluation, Lakes continues to monitor the note receivable for any changes in expected cash flows and recognize those changes in accordance with ASC 310. Impairment is measured based on the present value of expected future cash flows discounted at the note receivable’s effective interest rate. Interest income for impaired notes receivable will be accrued on the net carrying amount of the impaired note receivable under the effective interest method with significant changes to expected cash flows reflected in the impairment charge on notes receivable.
The allowance for impaired notes receivable is established through a charge to expense. Any note receivable principal considered to be uncollectible by management is charged against the allowance for impaired notes receivable.
Lakes classifies principal amounts expected to be received within the next fiscal year, if any, as current portion of notes receivable from casino projects on the consolidated balance sheets.
Intangible Assets Related to Indian Casino Projects
Intangible assets related to the acquisition of the management, development, consulting or financing contracts are periodically evaluated for impairment based on the estimated cash flows from the respective contract on an undiscounted basis. In the event the carrying value of the intangible assets, in combination with the carrying value of other assets associated with the Indian casino projects described below, exceeds the undiscounted cash flow, an impairment charge is recorded. Such an impairment charge is measured based on the difference between the fair value and carrying value of the assets. Lakes amortizes the intangible assets related to the acquisition of the management, development, consulting or financing contracts under the straight-line method over the lives of the contracts commencing when the related casino opens. In addition to the intangible asset associated with the cash advances to tribes described above, these assets include actual costs incurred to acquire Lakes’ interest in the projects from third parties.
Management Fees Receivable and Other
Other assets include deferred management fees and interest due from the Shingle Springs Tribe and amounts due from related parties that are directly related to the development and opening of Lakes’ Indian casino projects.
In addition, Lakes incurs certain non-reimbursable costs related to the projects that are not included in notes receivable, which are expensed as incurred. These costs include salaries, travel and certain legal costs.
Land Held for Development
Included in land held for development is undeveloped land in California related to the Company’s previous involvement in a potential casino project with the Jamul Indian Village (“Jamul Tribe”) and undeveloped land in Oklahoma related to its previous involvement in a potential casino project with the Iowa Tribe of Oklahoma. Lakes evaluates these assets for impairment whenever events or changes in circumstances indicate that the carrying value of such assets may not be recoverable.
Share-Based Compensation Expense
Lakes has various share-based compensation programs, which provide for equity awards including stock options and restricted stock. Lakes uses the straight-line method to recognize compensation expense associated with share-based awards based on the fair value on the date of grant, net of the estimated forfeiture rate, if any. Expense is recognized over the requisite service period related to each award, which is the period between the grant date and the award’s stated vesting term. The fair value of stock options is estimated using the Black-Scholes option pricing model. All of Lakes’ stock compensation expense is recorded in selling, general and administrative expenses in the consolidated statements of operations. See note 12, Share-Based Compensation, for additional discussion.
Income Taxes
The determination of the Company’s income tax-related account balances requires the exercise of significant judgment by management. Accordingly, the Company determines deferred tax assets and liabilities based upon the difference between the financial statement and tax bases of assets and liabilities using enacted tax rates in effect for the year in which the differences are expected to affect taxable income. Management assesses the likelihood that deferred tax assets will be recovered from future taxable income and establishes a valuation allowance when management believes recovery is not likely.
The Company records estimated penalties and interest related to income tax matters, including uncertain tax positions, if any, as a component of income tax expense.
Litigation Costs
The Company does not accrue for future litigation costs, if any, to be incurred in connection with outstanding litigation and other dispute matters but rather records such costs when the legal and other services are rendered.
New Accounting Standards
In May 2011, the FASB issued ASU 2011-04, Fair Value Measurement (Topic 820) (“ASU 2011-04”). ASU 2011-04 includes updated accounting guidance to amend existing requirements for fair value measurements and disclosures. The guidance expands the disclosure requirements around fair value measurements categorized in Level 3 of the fair value hierarchy and requires disclosure of the level in the fair value hierarchy of items that are not measured at fair value but whose fair value must be disclosed. It also clarifies and expands upon existing requirements for fair value measurements of financial assets and liabilities as well as instruments classified in shareholders’ equity. Lakes adopted ASU 2011-04 on January 2, 2012, which did not have a material impact on its consolidated financial statements.
3. Termination of Jamul Development Agreement
Lakes entered into an agreement with the Jamul Tribe during 1999 to develop and manage a casino on behalf of the Jamul Tribe on the Jamul Tribe’s existing reservation approximately 20 miles east of San Diego, California (the “Jamul Casino Project”). Due to Lakes’ corporate strategic objectives, Lakes determined that it would not move forward with the Jamul Casino Project and terminated the agreement with the Jamul Tribe in March 2012.
As a result of the termination of Lakes’ agreement with the Jamul Tribe, Lakes estimated the fair value of the notes receivable from the Jamul Tribe to be zero as of December 30, 2012 and January 1, 2012. As of the date of termination, Lakes had advanced approximately $57.5 million including accrued interest to the Jamul Tribe related to casino development efforts. Lakes made total advances of $1.8 million to the Jamul Tribe during fiscal 2012, $0.5 million of which had been made as of the date of the termination of the agreement. Pursuant to the agreement with the Jamul Tribe, Lakes advanced an additional $1.3 million subsequent to the date of termination. All of the fiscal 2012 advances are included as impairment charges in Lakes’ consolidated statement of operations for the twelve months ended December 30, 2012. Lakes recorded an impairment charge of $3.7 million for the year ended January 1, 2012 on intangible assets related to the Jamul Casino Project. Lakes incurred a net unrealized loss of zero and $11.9 million during fiscal 2012 and 2011, respectively, related to the notes receivable.
Although the Jamul Tribe remains obligated to repay all advances including accrued interest, it is not contemplated that the Jamul Tribe will have sufficient funds to make such payments unless it opens a gaming facility on its reservation. Lakes continues to have a collateral interest in all revenues from any future casino owned by the Jamul Tribe, and such casino’s furnishings and equipment.
4. Investment in Evitts Resort, LLC and Acquisition of Rocky Gap Lodge & Golf Resort
Background
In September 2011, Lakes entered into a joint venture with Addy Entertainment, LLC (“Addy”) to form Evitts Resort, LLC (“Evitts”). In April 2012, a video lottery operation license (“License”) for the Rocky Gap Lodge & Golf Resort in Allegany County, Maryland (the “Rocky Gap Resort”) was awarded to Evitts by the State of Maryland Video Lottery Facility Location Commission (the “Commission”). In May 2012, Lakes paid Addy $0.6 million for its ownership interest in Evitts, giving Lakes full ownership of Evitts.
Acquisition of the Rocky Gap Resort and Application of the Acquisition Method of Accounting
On August 3, 2012, Lakes acquired the assets of the Rocky Gap Resort for $6.8 million. The AAA Four Diamond Award® winning resort includes a hotel, spa, two restaurants and the only Jack Nicklaus signature golf course in Maryland.
The Rocky Gap Resort is currently undergoing renovation and upon completion will feature a gaming facility and an event center. The gaming facility will include approximately 550 VLTs, 10 table games, a casino bar and a new lobby food and beverage outlet. The event center will be able to accommodate large groups and will feature multiple flexible use meeting rooms, including a formal high-end board room. The total cost of the project is currently expected to be approximately $35.0 million. On December 17, 2012, Lakes closed on a $17.5 million financing facility which will be used to finance a portion of the renovation and new meeting space construction costs. Lakes is required to invest $17.5 million in the Rocky Gap Resort project, including the original purchase price of the property, prior to drawing on the financing facility. As of December 30, 2012, no amounts had been drawn and no amounts were outstanding under the Facility. See note 10, Loan Agreements, for further information. The gaming facility is expected to open in the second quarter of 2013 and the event center is expected to be available for use in the fourth quarter of 2013.
The financial position of the Rocky Gap Resort is included in the Company’s consolidated balance sheet as of December 30, 2012 and its results of operations for the period from August 3, 2012 through December 30, 2012 are included in the Company’s consolidated statements of operations and cash flows for the three and twelve months ended December 30, 2012. From the date of the acquisition of the Rocky Gap Resort on August 3, 2012 through December 30, 2012, Lakes recorded $3.2 million in revenue and $(0.8) million in net loss from the Rocky Gap Resort’s operations. The operating results of the Rocky Gap Resort are included in the Company’s consolidated statements of operations in the non-Indian casino projects segment.
Total assets related to Evitts were approximately $12.0 million as of December 30, 2012 which consisted primarily of property, equipment and intangible assets related to the acquisition of the Rocky Gap Resort, construction in process related to the renovation of the gaming facility and the license fee deposit paid by Evitts to the Commission during the third quarter of 2011. Total assets related to Evitts were approximately $2.3 million as of January 1, 2012 which consisted primarily of the license fee deposit. Included in impairments and other losses during fiscal 2012 was $1.2 million related to costs associated with initial development plans for the Rocky Gap Resort which were subsequently revised.
The acquisition has been accounted for under the acquisition method of accounting in accordance with ASC Topic 805, Business Combinations. Under the acquisition method of accounting, the total purchase price is allocated to the net tangible and intangible assets of the Rocky Gap Resort acquired in connection with the acquisition, based on their estimated fair values. The allocation of the purchase price to the assets acquired and liabilities assumed is as follows (in thousands):
The amounts assigned to intangible assets by category are summarized in the table below (in thousands):
Advance bookings - Advance bookings are reservations that represent future cash flows the Company will enjoy when the guest visits the Rocky Gap Resort. These reservations have been “pre-sold” as of the acquisition date of August 3, 2012 and would not require future sales or marketing expenses to be incurred.
Memberships - Memberships provide access to the golf course and related amenities in exchange for the payment of dues. The portion of the Rocky Gap Resort’s income attributed to the possession of such membership contracts forms the basis of the intangible value.
Amortization expense related to the advance bookings and memberships intangible assets for the period from August 3, 2012 through December 30, 2012 was approximately $0.2 million.
See note 16, Financial Instruments and Fair Value Measurements, for further discussion regarding the valuation of the acquired tangible and intangible assets.
Operating Ground Lease
In connection with the closing of the acquisition of the Rocky Gap Resort, Lakes entered into a 40 year operating ground lease (the “Lease Agreement”) with the Maryland DNR for approximately 268 acres in the Rocky Gap State Park on which the Rocky Gap Resort is situated. The Lease Agreement contains an option to renew for 20 years after the initial 40-year term. Payments are due under the Lease Agreement according to the following terms:
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From August 3, 2012 and until the casino opens for public play, rent in the form of surcharges is due and payable annually. These surcharges are billed to and collected from guests and are $3.00 per room, per night and $1.00 per round of golf (“Surcharge Revenue”), with a minimum annual payment of $150,000.
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From the date that the casino opens for public play through the remaining term of the Lease Agreement, total annual minimum rent in the amount of $425,000 plus 0.9% of any gross operator share of gaming revenue (as defined in the Lease Agreement) in excess of $275,000, and any Surcharge Revenue in excess of $150,000.
Unaudited Pro Forma Condensed Consolidated Financial Information
The following unaudited pro forma condensed consolidated financial results of operations for the fiscal years ended December 30, 2012 and January 1, 2012 are presented as if the acquisition had been completed at the beginning of each period presented:
These unaudited pro forma condensed consolidated financial results have been prepared for illustrative purposes only and do not purport to be indicative of the results of operations that actually would have resulted had the acquisition occurred on the first day of each fiscal period presented, or of future results of the consolidated entities. The unaudited pro forma condensed consolidated financial information does not reflect any operating efficiencies and cost savings that may be realized from the integration of the acquisition. The following adjustments have been made to the pro forma net earnings (loss) attributable to Lakes and pro forma earnings (loss) per share in the table above:
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Management and service fees paid by the Rocky Gap Resort to the previous management company have been excluded as the Rocky Gap Resort would not have incurred these costs if owned by Lakes.
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Ground rent expense incurred by the Rocky Gap Resort has been adjusted to reflect the terms of the Lease Agreement that Lakes and the Maryland DNR entered into upon the acquisition of the Rocky Gap Resort.
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Interest expense incurred by the Rocky Gap Resort has been excluded as Lakes did not assume the debt of the Rocky Gap Resort upon the acquisition of the property.
5. Long-Term Assets Related to Indian Casino Projects - Notes and Interest Receivable
The majority of the assets related to Indian casino projects is in the form of notes and interest receivable due from the Shingle Springs Tribe pursuant to the Company’s development and management agreement with the Shingle Springs Tribe for the Red Hawk Casino. Lakes entered into a development and management agreement with the Shingle Springs Tribe in 1999 to develop and manage the Red Hawk Casino which is located adjacent to US Highway 50, approximately 30 miles east of Sacramento, California. The Shingle Springs Tribe obtained $450 million of senior note financing and $77 million for furniture, furnishings and equipment financing, and under the terms of the development and management agreement, Lakes made advances to the Shingle Springs Tribe of $74.4 million, including interest accrued through the opening date of the Red Hawk Casino on December 17, 2008 (the “Transition Loan”).
The opening of the Red Hawk Casino triggered the repayment terms of the Transition Loan which is scheduled to be repaid over the original seven-year term at the stated interest rate of prime plus 2% (5.25% as of December 30, 2012). Repayment of the Transition Loan and the management fees is subordinated to certain other financial obligations of the Red Hawk Casino. The order of priority of payments from the Red Hawk Casino’s cash flows has been as follows: a certain minimum monthly guaranteed payment to the Shingle Springs Tribe; repayment of various debt with interest accrued thereon (including the Transition Loan); management fees due to Lakes; other obligations, if any; and the remaining funds, if any, distributed to the Shingle Springs Tribe. If, however, net revenues (as defined in the management and development agreement) from the project are insufficient, payments are deferred.
In addition, in order to assist the Red Hawk Casino in increasing cash levels, allowed payments of principal on the Transition Loan made by Lakes, if any, are being deferred through December 2013. These deferrals, if any, do not constitute forgiveness of contractual principal amounts due to Lakes. Due to the temporary nature of the principal payment suspension and no forgiveness of principal is being granted, any such deferrals do not meet the criteria for a troubled debt restructuring under ASC 310-40, Troubled Debt Restructurings by Creditors. The Transition Loan carrying amount at December 30, 2012 and January 1, 2012 represent the present value of expected future cash flows.
At January 2, 2011, Lakes evaluated the notes receivable from the Shingle Springs Tribe for impairment and concluded that it was probable that substantial amounts due would not be repaid within the contract term and therefore determined that the notes receivable were impaired. Lakes again evaluated the notes receivable from the Shingle Springs Tribe for impairment as of December 30, 2012 and January 1, 2012 and concluded that the notes receivable continue to be impaired. This determination was based on the continued economic pressures in the northern California market and competition in the market the property serves, both of which have negatively impacted cash flows for the property. As a result of these factors, Lakes has concluded it is probable that substantial amounts due will not be repaid within the contract term. However, the Shingle Springs Tribe will remain legally obligated to repay any remaining amounts due to Lakes subsequent to the conclusion of the agreement.
The management agreement for the Red Hawk Casino includes a minimum guaranteed payment to the Shingle Springs Tribe of $0.5 million a month for the duration of the agreement, which expires in December 2015. Lakes is obligated to advance funds for these minimum guaranteed monthly payments when the casino operating results are not sufficient, and is repaid the advances in subsequent periods when operating results are sufficient. As of December 30, 2012, no amount was outstanding under this obligation. Lakes collected payments of $1.1 million related to amounts previously advanced under this obligation during fiscal 2012.
The management agreement includes provisions that allow the Shingle Springs Tribe to buy-out the management agreement after four years from the opening date. The buy-out amount is based upon the previous year of management fees earned multiplied by the remaining number of years under the agreement, discounted back to the present value at the time the buy-out occurs. If the Shingle Springs Tribe elects to buy out the agreement, all outstanding amounts owed to Lakes would immediately become due and payable.
Information with respect to the notes and interest receivable is summarized in the following table (in thousands):
A summary of the activity in the allowance for impaired notes receivable is as follows (in thousands):
6. Intangible and Other Assets Related to Indian Casino Projects
Intangible Assets
Intangible assets consist of costs associated with the acquisition of the management, development, consulting, or financing contracts related to tribal gaming projects and are periodically evaluated for impairment after they are initially recorded.
Information with respect to the intangible assets by project is summarized as follows (in thousands):
____________
(*)
Due to the Buy-Out Agreement, the remaining estimated useful life of intangible assets associated with the Pokagon Band was revised and was determined to be through June 30, 2011 resulting in the intangible assets being fully amortized as of June 30, 2011.
(**)
The intangible assets related to the Shingle Springs Tribe are being amortized through the end of the management agreement, which expires in December 2015.
(***)
Due to the continued uncertainty surrounding the Jamul Casino Project and Lakes’ termination of the agreement with the Jamul Tribe in March 2012, Lakes recognized an impairment charge of $1.8 million in fiscal 2012 and $3.7 million in fiscal 2011 related to this project. The impairment charges are included in impairments and other losses in the consolidated statements of operations.
Based on the length of the management agreement with the Shingle Springs Tribe, the Company expects to recognize amortization expense related to the Shingle Springs intangible assets as follows (in thousands):
Management Fees Receivable and Other
Management fees receivable and other include financial instruments related to deferred management fees and interest due from the Shingle Springs Tribe of $4.0 million and $6.0 million as of December 30, 2012 and January 1, 2012, respectively. As defined in the management agreement with the Shingle Springs Tribe, payment of management fees, if any, are deferred when operating results are not sufficient and are paid in subsequent periods when operating results are sufficient. In addition, management fees receivable and other include amounts due from Mr. Kevin M. Kean (see note 11, Contract Acquisition Costs Payable). Financial instruments related to Mr. Kean have a carrying value of $0.8 million and $1.3 million, net of current portion of $0.5 million as of December 30, 2012 and January 1, 2012.
7. Property and Equipment, net
The following table summarizes the components of property and equipment, at cost (in thousands):
8. Investment in Unconsolidated Investee
Lakes has an investment in Rock Ohio Ventures, LLC (“Rock Ohio Ventures”) a privately-held company, that owns the Horseshoe Casino Cleveland in Cleveland, Ohio which opened to the public on May 13, 2012, the Horseshoe Casino Cincinnati in Cincinnati, Ohio which opened on March 4, 2013, and the Thistledown Racino in North Randall, Ohio which is expected to go live with 1,100 VLTs in April 2013. This investment is accounted for using the cost method since Lakes does not have the ability to significantly influence the operating and financial decisions of the entity. At December 30, 2012 and January 1, 2012, Lakes had invested a total of $20.2 million and $15.7 million, respectively, in Rock Ohio Ventures, which is included in investment in unconsolidated investee in the accompanying consolidated balance sheets.
The Company's cost method investment is evaluated, on at least a quarterly basis, for potential other-than-temporary impairment, or when an event or change in circumstances has occurred that may have a significant adverse effect on the fair value of the investment. Lakes monitors this investment for impairment by considering all information available to the Company including the economic environment, market conditions, and operational performance and other specific factors relating to the business underlying the investment.
The fair value of the cost method investment is considered impracticable to estimate. The impracticability in developing such an estimate is due primarily to insufficient information necessary to prepare a valuation model to determine fair value. Lakes is not aware of any events or changes in circumstances that could have had a significant adverse effect on the fair value of this investment. As of December 30, 2012 and January 1, 2012, no impairment was identified.
Lakes has the right, but not the obligation, to make additional investments up to 10% of equity required by Rock Ohio Ventures to develop the casinos in Ohio in return for a corresponding equity interest in those casinos (see note 17, Commitments and Contingencies).
9. Land
During November 2012, Lakes sold the majority of the land it owned in Vicksburg, Mississippi for $0.4 million, which was carried at $1.7 million as of January 1, 2012, resulting in the recognition of an impairment charge of $1.3 million during fiscal 2012. Lakes also owns parcels of undeveloped land in California related to its previous involvement in a potential casino project with the Jamul Tribe and undeveloped land in Oklahoma related to its previous involvement in a potential casino project with the Iowa Tribe of Oklahoma. As of December 30, 2012 and January 1, 2012, these parcels of land are carried at their combined estimated fair value of $1.1 million on the accompanying consolidated balance sheets.
10. Loan Agreements
During the fourth quarter of fiscal 2012, Lakes extended its interest only $8.0 million non-revolving line of credit loan agreement (the “Loan Agreement”) until October 28, 2014. The Loan Agreement was also modified to be revolving in nature. The Loan Agreement is collateralized by primarily all of Lakes’ interest in the real property it owns in Minnetonka, Minnesota. Amounts borrowed under the Loan Agreement, if any, bear interest at 8.95%. Lakes’ Chief Executive Officer, Lyle Berman, personally guaranteed the Loan Agreement on behalf of Lakes. As of December 30, 2012 and January 1, 2012, no amounts were outstanding under the Loan Agreement.
In December 2012, Lakes closed on a $17.5 million financing facility with Centennial Bank (the “Facility”). The Facility will be used to finance a portion of the renovation and new meeting space construction costs of the Rocky Gap Resort. Lakes is required to invest $17.5 million in the Rocky Gap Resort project, including the original purchase price, prior to drawing on the Facility. Amounts borrowed under the Facility, if any, bear interest at 10.5%. The Facility is collateralized by the leasehold estate and the furniture, fixtures and equipment of the Rocky Gap Resort. In addition, Lakes guaranteed repayment of the loan and granted a second mortgage on its real property located in Minnetonka, Minnesota. Repayment of the loan will be interest-only for the first year, with payments of principal and interest amortized and paid over the subsequent seven years. As of December 30, 2012, no amounts had been drawn and no amounts were outstanding under the Facility.
11. Contract Acquisition Costs Payable
During 2009, the Company became obligated to pay Mr. Jerry Argovitz and Mr. Kevin Kean each $1 million per year (prorated based on a 365 day year) during the remainder of the seven-year initial term of the Red Hawk Casino management agreement, which commenced in December 2008. These obligations resulted from Mr. Argovitz’s and Mr. Kean’s elections under existing agreements with Lakes to relinquish their respective other rights related to the Red Hawk Casino project. As of December 30, 2012 and January 1, 2012, the remaining carrying amount of the liability was $4.6 million and $5.6 million, net of a $1.4 million and $2.3 million discount, respectively. Amounts payable during the next 12 fiscal months totaling $1.3 million, net of related discount, are included in current contract acquisition costs payable as of December 30, 2012.
12. Share-Based Compensation
Overview
Lakes has a 1998 Stock Option and Compensation Plan that was approved to grant up to an aggregate of 5.0 million shares of incentive and non-qualified stock options to employees. No additional options will be granted under this plan. In June 2007, Lakes’ shareholders approved the 2007 Lakes Stock Option and Compensation Plan (the “2007 Plan”), which is authorized to grant a total of 2.5 million shares of Lakes’ common stock. Stock options granted under the 2007 Plan typically vest in equal installments over three-year, four-year and five-year periods, beginning on the first anniversary of the date of each grant and continue on each subsequent anniversary date until the option is fully vested. The employee must be employed by Lakes on the anniversary date in order to vest in any shares that year. Vested options are exercisable for ten years from the date of grant; however, if the employee is terminated (voluntarily or involuntarily), any unvested options as of the date of termination will be forfeited.
Consolidated share-based compensation expense, which includes stock options and restricted stock units, was $0.4 million and $0.6 million for fiscal 2012 and fiscal 2011, respectively.
For fiscal 2012 and fiscal 2011, no income tax benefit was recognized in Lakes’ consolidated statements of operations for share-based compensation arrangements. Management assessed the likelihood that the deferred tax assets relating to future tax deductions from share-based compensation will be recovered from future taxable income and determined that a valuation allowance is necessary to the extent that management currently believes it is more likely than not that tax benefits will not be realized. Management’s determination is based primarily on historical losses and earnings volatility.
Stock Options
The following table summarizes stock option activity for fiscal 2012 and fiscal 2011:
____________
(*)
Options outstanding do not include 38,337 of outstanding restricted stock units.
Lakes’ determination of fair value of share-based option awards on the date of grant using an option-pricing model is affected by the following assumptions regarding complex and subjective variables. Any changes in these assumptions may materially affect the estimated fair value of the share-based award.
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Expected dividend yield - As the Company has not historically paid dividends, the dividend rate variable in the Black-Scholes model is zero.
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Risk-free interest rate - The risk free interest rate assumption is based on the U.S. Treasury yield curve in effect at the time of grant and with maturities consistent with the expected term of options.
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Expected term - The expected term of employee stock options represents the weighted-average period that the stock options are expected to remain outstanding. It is based upon an analysis of the historical behavior of option holders during the period from September 1995 to December 30, 2012. Management believes historical data is reasonably representative of future exercise behavior.
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Expected volatility - The volatility assumption is based on the historical weekly price data of Lakes’ stock over a two-year period. Management evaluated whether there were factors during that period which were unusual and which would distort the volatility figure if used to estimate future volatility and concluded that there were no such factors.
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Forfeiture rate - As share-based compensation expense recognized is based on awards ultimately expected to vest, expense for grants is reduced for estimated forfeitures at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures differ from those estimates. Lakes’ management has reviewed the historical forfeitures which have been minimal, and as such presently amortizes the grants to the end of the vesting period and will adjust for forfeitures at the end of the term.
The following assumptions were used to estimate the fair value of stock options granted during fiscal 2011. No stock options were granted during fiscal 2012.
As of December 30, 2012, the options outstanding had a weighted-average remaining contractual life of 6.8 years, weighted-average exercise price of $2.92 and an aggregate intrinsic value of $0.6 million. The options exercisable have a weighted-average exercise price of $3.04, a weighted-average remaining contractual life of 6.6 years and an aggregate intrinsic value of $0.4 million as of December 30, 2012.
As of December 30, 2012, Lakes’ unrecognized share-based compensation related to stock options was approximately $0.3 million, which is expected to be recognized over a weighted-average period of 1 year. The weighted-average grant-date fair value of stock options granted during fiscal 2011 was $2.29 per share.
Lakes issues new shares of common stock upon exercise of options.
Restricted Stock Units
The following table summarizes Lakes’ restricted stock unit activity for fiscal 2012 and fiscal 2011:
During fiscal 2012, 35,257 common shares were issued upon the vesting of restricted stock units, net of common shares redeemed at the election of the grantee for payroll tax payment.
13. Earnings (Loss) per Share
For all periods, basic earnings (loss) per share (“EPS”) is calculated by dividing net earnings (loss) attributable to Lakes Entertainment, Inc. by the weighted-average common shares outstanding. Diluted EPS in profitable periods reflects the effect of all potentially dilutive common shares outstanding by dividing net earnings (loss) attributable to Lakes Entertainment, Inc. by the weighted-average of all common and potentially dilutive shares outstanding. Potentially dilutive stock options of 1,527,620 for the year ended December 30, 2012 and 1,644,639 for the year ended January 1, 2012, were not used to compute diluted earnings per share because the effects would have been anti-dilutive.
14. Income Taxes
The provision (benefit) for income taxes for fiscal 2012 and fiscal 2011 consist of the following (in thousands):
Reconciliations of the statutory federal income tax rate to the Company’s actual rate based on earnings (loss) before income taxes for fiscal 2012 and fiscal 2011 are summarized as follows:
The Company’s deferred income tax (liabilities) and assets are as follows (in thousands):
As of December 30, 2012, management has evaluated all evidence and has determined that cumulative net losses generated over the past three years outweigh the current positive evidence that management believes exists surrounding its ability to generate future income. Therefore, management determined that a 100% valuation allowance against net deferred tax assets was appropriate at December 30, 2012.
As of December 30, 2012, Lakes had approximately $36.9 million of state net operating loss carryforwards. Lakes’ state net operating loss will expire at various times depending on specific state laws.
On March 17, 2011, Lakes and the Louisiana Department of Revenue entered into a settlement agreement whereby Lakes agreed to pay the Louisiana Department of Revenue $9.0 million in full and final payment. In return, the Louisiana Department of Revenue agreed to dismiss its lawsuit and forever discharge Lakes from all proceedings and liabilities relating to this matter. As of January 2, 2011, income tax payable includes $9.0 million related to this settlement agreement. This tax liability was considered an unrecognized tax benefit which affected Lakes’ effective tax rate when it was recognized. Interest related to such uncertain tax position included as a component of income tax expense, amounted to approximately $0.5 million for fiscal 2010. A tax benefit was recognized in fiscal 2010 of $8.5 million for the adjustment to the liability for uncertain tax positions. Lakes issued the payment of $9.0 million related to the settlement agreement during March 2011.
A reconciliation of the unrecognized tax benefits for fiscal 2011 is as follows:
(*) Of the $9.0 million Settlement Agreement discussed above, $8.0 million relates to taxes and $1.0 million relates to fees.
Lakes files a consolidated U.S. federal income tax return, as well as income tax returns in various states. The U.S. federal income tax returns for the years 2009 - 2011 and state income tax returns in various states for the years 2008 - 2011 remain subject to examination. The Company is currently under IRS audit for the 2009-2011 tax years and no adjustments have been made in the current period.
15. Employee Retirement Plan
Lakes has a qualified defined contribution employee savings plan for all full-time employees. The savings plan allows eligible participants to defer, on a pre-tax basis, a portion of their salary and accumulate tax-deferred earnings as a retirement fund. Lakes currently matches employee contributions up to a maximum of 4% of participating employees’ gross wages. The Company contributed approximately $0.1 million during each fiscal 2012 and fiscal 2011. Company contributions are vested over five years.
16. Financial Instruments and Fair Value Measurements
Overview
Estimates of fair value for financial assets and liabilities are based on the framework established in the accounting guidance for fair value measurements. The framework defines fair value, provides guidance for measuring fair value and requires certain disclosures. The framework discusses valuation techniques, such as the market approach (comparable market prices), the income approach (present value of future income or cash flow) and the cost approach (cost to replace the service capacity of an asset or replacement cost). The framework utilizes a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value into three broad levels. The following is a brief description of those three levels:
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Level 1: Observable inputs such as quoted prices (unadjusted) in active markets for identical assets or liabilities.
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Level 2: Inputs other than quoted prices that are observable for the asset or liability, either directly or indirectly. These include quoted prices for similar assets or liabilities in active markets and quoted prices for identical or similar assets or liabilities in markets that are not active.
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Level 3: Unobservable inputs that reflect the reporting entity’s own assumptions.
The Company’s financial instruments consist of cash and cash equivalents, notes receivable and other long-term assets related to Indian casino projects, cost method investments, accounts payable and contract acquisition costs payable.
For the Company’s cash and cash equivalents, accounts payable and current portion of contract acquisition costs payable, the carrying amounts approximate fair value because of the short duration of these financial instruments.
Balances Measured at Fair Value on a Nonrecurring Basis
The following table shows the amounts of certain of the Company’s assets measured at fair value on a nonrecurring basis using Level 3 inputs (in thousands):
Land held for development and land held for sale - Land held for development and land held for sale are measured on a nonrecurring basis using unobservable (Level 3) inputs that utilize the market approach technique and reflect management’s estimates about the assumptions that market participants would use in pricing the asset. Significant inputs include recent transactions of comparable properties as well as consideration of its highest and best use.
Property and equipment related to the acquisition of the Rocky Gap Resort - Property and equipment acquired in connection with the Company’s acquisition of the Rocky Gap Resort during the third quarter of 2012 were measured using unobservable (Level 3) inputs. The fair value of the building, site improvements, and furniture, fixtures and equipment were calculated using the cost approach. The cost approach computes the cost to replace the asset, less accrued depreciation resulting from physical deterioration, functional obsolescence and external obsolescence. The cost estimates for these assets were based on the guidelines provided by Marshall Valuation Services and Hotel Cost Estimating Guide 2012 published by HVS. See note 4, Investment in Evitts Resort, LLC and Acquisition of Rocky Gap Lodge & Golf Resort, for further discussion regarding the acquisition of the Rocky Gap Resort’s property and equipment.
Intangible assets related to the acquisition of the Rocky Gap Resort - The identified intangible assets acquired in connection with the Company’s acquisition of the Rocky Gap Resort during the third quarter of 2012 were measured using unobservable (Level 3) inputs. The fair value of the advance bookings was calculated using the excess earnings approach which is an application of the income approach and computes the present value of cash flows attributable to the associated future income stream. Significant inputs include advance revenue, related operating expense, sales and marketing expense avoided and a discount rate. The fair value of the memberships was calculated using the income approach with significant inputs including estimated attrition rate, revenue growth rate, and discount rate. See note 4, Investment in Evitts Resort, LLC and Acquisition of Rocky Gap Lodge & Golf Resort, for further discussion regarding the acquisition of the Rocky Gap Resort’s intangible assets.
Balances Disclosed at Fair Value
The following table shows the amounts of certain of the Company’s financial instruments disclosed at fair value (in thousands):
Shingle Springs notes and interest receivable - Management estimates the fair value of the notes and interest receivable from the Shingle Springs Tribe as of December 30, 2012 to be approximately $49.9 million using a discount rate of 12.8% and a remaining estimated term of 97 months. Management estimated the fair value of the notes and interest receivable from the Shingle Springs Tribe as of January 1, 2012, to be approximately $18.5 million using a discount rate of 33.0% and a remaining estimated term of 109 months. See note 5, Long-Term Assets Related to Indian Casino Projects - Notes and Interest Receivable and Notes Receivable at Fair Value, for further discussion regarding the Shingle Springs notes and interest receivable.
Other assets related to Indian casino projects - These assets include financial instruments related to deferred management fees and interest due from the Shingle Springs Tribe and amounts due from Mr. Kevin M. Kean. The Company estimates the fair value of other assets related to the Shingle Springs Tribe and Mr. Kean to be $4.0 million as of December 30, 2012 using a discount rate of 19.5%. Management estimated the fair value of these financial instruments related to the Shingle Springs Tribe and Mr. Kean to be $5.9 million as of January 1, 2012 using a discount rate of 19.5%. See note 6, Intangible and Other Assets Related to Indian Casino Projects, for further discussion regarding deferred management fees and interest due from the Shingle Springs Tribe and amounts due from Mr. Kevin M. Kean.
Investment in unconsolidated investee - The fair value of the Company’s investment in unconsolidated investee was not estimated as of December 30, 2012 or January 1, 2012, as there were no events or changes in circumstances that may have a significant adverse effect on the fair value of the investment, and Lakes’ management determined that it was not practicable to estimate the fair value of the investment (see note 8, Investment in Unconsolidated Investee).
Contract acquisition costs payable - The carrying amount of the liability approximates its estimated fair value of $4.6 million and $5.6 million as of December 30, 2012 and January 1, 2012, respectively. See note 11, Contract Acquisition Costs Payable, for further discussion regarding the contract acquisition costs payable.
17. Commitments and Contingencies
Operating Lease with the Maryland Department of Natural Resources Related to the Rocky Gap Resort
As discussed in note 4, Investment in Evitts Resort, LLC and Acquisition of Rocky Gap Lodge & Golf Resort, Evitts entered into a 40- year operating ground lease with the Maryland DNR for approximately 268 acres in the Rocky Gap State Park on which the Rocky Gap Resort is situated. Future minimum lease payments under this operating ground lease at December 30, 2012 are as follows (in thousands):
Aircraft Lease
In November 2011, Lakes terminated its aircraft lease with Banc of America Leasing & Capital, LLC, which was set to expire on February 28, 2018. To complete the early termination of the lease, Lakes incurred a loss of approximately $3.3 million. Rent expense under the Company’s aircraft operating lease, exclusive of taxes, insurance and maintenance expense was $0.4 million for fiscal 2011.
Rock Ohio Ventures, LLC
Lakes’ has a 10% ownership in Rock Ohio Ventures and as of December 30, 2012, Lakes has contributed approximately $20.2 million as required (see note 8, Investment in Unconsolidated Investee). Lakes may contribute additional capital up to $4.9 million as needed to maintain its equity position in Rock Ohio Ventures. If Lakes chooses not to fund any additional amounts, it will maintain an ownership position in Rock Ohio Ventures in a pro rata amount of what its $2.8 million initial payment is to the total amount of equity funded to develop casino operations, and all equity funded in excess of the initial $2.8 million is required to be repurchased at an amount equal to the price paid.
Employment Agreements
Lakes has entered into employment agreements with certain key employees of the Company. The agreements provide for certain benefits to the employee as well as severance if the employee is terminated without cause or due to a “constructive termination” as defined in the agreements. The severance amounts depend upon the term of the agreement and can be up to three years of base salary and three years of bonus calculated as the average bonus earned in the previous two years. If such termination occurs within two years of a change of control as defined in the agreements by the Company without cause or due to a constructive termination, the employee will receive a lump sum payment equal to two times the annual base salary and bonus/incentive compensation along with insurance costs, 401(k) matching contributions and certain other benefits. In the event the employee’s employment terminates for any reason, including death, disability, expiration of an initial term, non-renewal by the Company with or without cause, by the employee with notice, or due to constructive termination, all unvested stock options vest at the date of termination and remain exercisable for two years. The agreements provide for a base salary, bonus, stock options and other customary benefits.
Quest Media Group, LLC Litigation
In May 2012, Lakes received service of a breach of contract lawsuit filed in the Franklin County Court of Common Pleas, Franklin County, Ohio by Quest Media Group, LLC (“Quest”) with respect to an agreement (the “Agreement”) entered into between Lakes Ohio Development, LLC (a wholly owned subsidiary of Lakes) (“Lakes Ohio Development”) and Quest on March 9, 2010. The Agreement relates to Quest assisting Lakes Ohio Development in partnering with Rock Ohio Ventures, LLC and Penn Ventures, LLC (“Penn”) with respect to funding the proposed citizen-initiated referendum in November 2009 to amend the Ohio constitution to permit one casino each in Cleveland, Cincinnati, Toledo and Columbus, Ohio. The lawsuit alleges, among other things, that Lakes breached the Agreement by selling Lakes Ohio Development’s interest in the Toledo and Columbus casino projects to Penn, failing to pay the proper fee to Quest as a result of such sale, and incorrectly calculating the costs that are to be offset against Quest’s fee. The lawsuit seeks unspecified compensatory damages in excess of $25,000, punitive damages, declaratory and injunctive relief. The lawsuit names as defendants Lakes Entertainment, Inc., Lakes Ohio Development, LLC and Lyle Berman, Chairman and CEO of Lakes. Lakes removed the case to federal court and answered the pleadings. The case is still in the early stages of discovery. Lakes believes the suit to be without merit and intends to vigorously defend itself in this lawsuit.
Litigation Settlement
Lakes entered into a Settlement and Mutual Releases Agreement (the “Settlement Agreement”) in October 2012 related to the lawsuit entitled WPT Enterprises, Inc., et al vs. Deloitte & Touche, LLP. The Settlement Agreement provided for payment to Lakes of $2.2 million, which was received in November 2012. This payment is recorded as other income in the Company’s consolidated statement of operations for fiscal 2012.
Miscellaneous Legal Matters
Lakes and its subsidiaries are involved in various other inquiries, administrative proceedings and litigation relating to contracts and other matters arising in the normal course of business. While any proceeding or litigation has an element of uncertainty, and although unable to estimate the minimum costs, if any, to be incurred in connection with these matters, management currently believes that the likelihood of an unfavorable outcome is remote, and is not likely to have a material adverse effect upon Lakes’ consolidated financial statements. Accordingly, no provision has been made with regard to these matters.
18. Related Party Transactions
KAR Entities
In 1999, Kean Argovitz Resorts - Jamul, LLC (“KAR-Jamul”) and KAR-Shingle Springs (together, the “KAR Entities”) held rights in development and management agreements for the Jamul and Shingle Springs casino projects and Lakes initially acquired interests in those casino projects by entering into joint ventures with the KAR Entities.
In 2003, Lakes purchased the respective joint venture interests of the KAR Entities. In connection with the purchase transactions, Lakes entered into separate agreements with Kevin M. Kean and Jerry A. Argovitz, the two individual owners of the KAR Entities.
During 2009, Mr. Kean elected to receive $1 million per year (prorated based on a 365 day year) during the remainder of the seven-year initial term of the management agreement with the Shingle Springs Tribe related to the Red Hawk Casino under the terms of his agreement with the Company. As a result of this election, Mr. Kean will not be entitled to receive consulting fees equal to 15% of the management fees earned by the Company from the Red Hawk Casino operations. The payments to Mr. Kean are a cost of acquiring contract rights and are therefore recorded as an intangible asset (see note 6, Intangible and Other Assets Related to Indian Casino Projects), which will be amortized through the end of the management agreement term. This obligation is included in contract acquisition costs payable (see note 11, Contract Acquisition Costs Payable).
Lakes has previously made loans to Mr. Kean, of which $1.3 million and $1.8 million were included in other assets in the accompanying consolidated balance sheets as of December 30, 2012 and January 1, 2012, respectively. Lakes continues to monitor the collectability of these receivables on a quarterly basis and has concluded that repayment is probable as Mr. Kean has agreed that 50% of the amounts payable to him under the agreement with Lakes shall be applied toward repayment of his indebtedness to Lakes.
During 2009, Mr. Argovitz elected to receive $1 million per year (prorated based on a 365 day year) during the remainder of the seven-year initial term of the management agreement with the Shingle Springs Tribe related to the Red Hawk Casino under the terms of his agreement with the Company. As a result of this election, Mr. Argovitz will not be entitled to obtain a 15% equity interest in the Company’s entity that holds the rights to the management fees earned by the Company from the Red Hawk Casino operations. The payments to Mr. Argovitz are a cost of acquiring contract rights and therefore recorded as an intangible asset (see note 6, Intangible and Other Assets Related to Indian Casino Projects), which will be amortized through the end of the management agreement term. This obligation is included in contract acquisition costs payable (see note 11, Contract Acquisition Costs Payable).
Transfer of Secured Note
In March 2013, Lakes transferred to Lyle Berman, Lakes' Chairman of the Board and Chief Executive Officer, a $250,000 secured note from an unrelated third party company in exchange for a cash payment of $150,000 from Mr. Berman. The secured note was in default and related to a fiscal 2012 potential business development opportunity that Lakes decided not to pursue.
19. Segment Information
Lakes’ segments reported below (in millions) are the segments of the Company for which separate financial information is available and for which operating results are evaluated by the chief operating decision-maker in deciding how to allocate resources and in assessing performance.
The Indian Casino Projects segment includes operations and assets related to the development, financing and management of gaming-related properties for the Shingle Springs Tribe, the Pokagon Band of Potawatomi Indians and the Jamul Tribe. The Non-Indian Casino Projects segment includes results and/or assets related to the development, financing and management of gaming-related properties and potential developments of gaming-related properties in Florida, Maryland, Mississippi and Ohio. The total assets in “Corporate and Eliminations” below primarily relate to Lakes’ cash and cash equivalents and the Lakes corporate office building. Costs in “Corporate and Eliminations” below have not been allocated to the other segments because these costs are not easily allocable and to do so would not be practical.
ITEM 9.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
Not applicable.
ITEM 9A.
ITEM 9A. CONTROLS AND PROCEDURES
Disclosure Controls and Procedures
Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we conducted an evaluation of our disclosure controls and procedures, as such term is defined under Rules 13a-15(e) or 15d-15(e) promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as of the end of the period covered by this report. Based on this evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures are effective (1) in recording, processing, summarizing and reporting, on a timely basis, information required to be disclosed by us in the reports that we file or submit under the Exchange Act and (2) to ensure that information required to be disclosed in the reports we file or submit under the Exchange Act is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, to allow timely decisions regarding required disclosure.
Management’s Annual Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act). Our management assessed the effectiveness of our internal control over financial reporting as of December 30, 2012. In making this assessment, our management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) in Internal Control-Integrated Framework. Our management has concluded that, as of December 30, 2012, our internal control over financial reporting is effective based on these criteria.
Our management, including our Chief Executive Officer and Chief Financial Officer, does not expect that our internal control over financial reporting will prevent all errors and all fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within Lakes have been detected. Lakes’ internal controls over financial reporting, however, are designed to provide reasonable assurance that the objectives of internal control over financial reporting are met.
Changes in Internal Controls over Financial Reporting
Lakes acquired the Rocky Gap Resort in August 2012. Management is currently continuing its assessment of the effectiveness of the Rocky Gap Resort’s internal controls. Lakes has a period of one year from the acquisition date to complete its assessment of effectiveness of the internal controls of the Rocky Gap Resort’s operations and to take the required actions to ensure that adequate internal controls and procedures are in place. Upon completion of our assessment of the effectiveness of the internal controls as well as implementation of new procedures and controls, we will provide a conclusion in our interim report on Form 10-Q for either of the quarterly periods ending March 31, 2013, June 30, 2013, or September 29, 2013 about whether or not our internal control over financial reporting related to the Rocky Gap Resort was effective as of the corresponding reporting period. There have been no other changes (including corrective actions with regard to significant deficiencies or material weaknesses) in our internal control over financial reporting during the three months ended December 30, 2012 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
ITEM 9B.
ITEM 9B. OTHER INFORMATION
None.
PART III
ITEM 10.
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Lakes has adopted a code of ethics that applies to Lakes’ employees, including its principal executive officer, principal financial officer, principal accounting officer or controller and persons performing similar functions. Lakes will provide, free of charge, a copy of this code of ethics upon written request sent to our Secretary at 130 Cheshire Lane, Suite 101, Minnetonka, MN 55305.
The other information required by this Item 10 is incorporated herein by reference to the discussions under the sections captioned “Proposal for Election of Directors”, “Executive Compensation - Executive Officers of Lakes Entertainment”, “Section 16(a) Beneficial Ownership Reporting Compliance”, “Corporate Governance - Corporate Governance Committee of the Board of Directors” and “Corporate Governance - Audit Committee of the Board of Directors” to be included in Lakes’ definitive Proxy Statement to be filed with the Securities and Exchange Commission for its Annual Meeting of Shareholders scheduled to be held in June 2013.
ITEM 11.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this Item 11 is incorporated herein by reference to the discussions under the sections captioned “Executive Compensation” and “Director Compensation” to be included in the Lakes’ definitive Proxy Statement to be filed with the Securities and Exchange Commission for its Annual Meeting of Shareholders scheduled to be held in June 2013.
ITEM 12.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The information required by this Item 12 is incorporated herein by reference to the discussion under the section captioned “Voting Securities and Principal Holders Thereof” to be included in Lakes’ definitive Proxy Statement to be filed with the Securities and Exchange Commission for its Annual Meeting of Shareholders scheduled to be held in June 2013.
Equity Compensation Plan Information
At Lakes’ June 6, 2007 annual shareholders meeting, Lakes’ shareholders approved the 2007 Lakes Stock Option and Compensation Plan (the “2007 Plan”), which authorized a total of 500,000 shares of Lakes’ common stock. In August of 2009, Lakes’ shareholders amended the 2007 Plan to increase the number of shares of Lakes common stock authorized for awards from 500,000 to 2,500,000.
The 2007 Plan is designed to integrate compensation of our executives and employees, including officers and directors with our long-term interests and those of our shareholders and to assist in the retention of executives and other key personnel. The 2007 Plan has been approved by our shareholders. Lakes has a 1998 Stock Option and Compensation Plan (the “1998 plan”), that was approved by our shareholders to grant up to an aggregate 5,000,000 shares of incentive and non-qualified stock options to employees. No additional options will be granted under the 1998 plan.
The following table provides certain information as of December 30, 2012 with respect to our equity compensation plans:
ITEM 13.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
The information required by this Item 13 is incorporated herein by reference to the discussion under the sections captioned “Certain Relationships and Related Transactions”, “Corporate Governance - Board of Directors” and “Corporate Governance - Audit Committee of the Board of Directors” to be included in the Lakes’ definitive Proxy Statement to be filed with the Securities and Exchange Commission for its Annual Meeting of Shareholders scheduled to be held in June 2013.
ITEM 14.
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
The information required by this Item 14 is incorporated herein by reference to the discussion under the subsections captioned “Independent Registered Public Accounting Firm - Audit and Non-Audit Fees” and “Independent Registered Public Accounting Firm - Pre-Approval of Audit and Non-Audit Services” to be included in Lakes’ definitive Proxy Statement to be filed with the Securities and Exchange Commission for its Annual Meeting of Shareholders scheduled to be held in June 2013.
PART IV
ITEM 15.
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a)(1) Consolidated Financial Statements:
(a)(2) None
(a)(3) Exhibits:
Exhibits
Description
2.1
Agreement and Plan of Merger by and among Hilton, Park Place Entertainment Corporation, Gaming Acquisition Corporation, Lakes Gaming, Inc., and Grand Casinos, Inc. dated as of June 30, 1998. (Incorporated herein by reference to Exhibit 2.2 to Lakes’ Form 10 Registration Statement as filed with the Securities and Exchange Commission (the “Commission”) on October 23, 1998.)
3.1
Articles of Incorporation of Lakes Entertainment, Inc. (as amended through May 4, 2004). (Incorporated herein by reference to Exhibit 3.1 to Lakes’ Report on Form 10-Q for the fiscal quarter ended April 4, 2004.)
3.2
Articles of Amendment to the Articles of Incorporation of Lakes Entertainment, Inc. (as amended through June 15, 2012). (Incorporated herein by reference to Exhibit 3.2 Lakes’ Form S-3 Registration Statement as filed with the Commission on January 25, 2013.)
3.3
Lakes Entertainment, Inc. Certificate of Designation of Series A Convertible Preferred Stock dated February 21, 2006. (Incorporated herein by reference to Exhibit 3.1 to Lakes’ Current Report on Form 8-K filed with the Commission on February 22, 2006.).
3.4
First Amended By-laws of Lakes Entertainment, Inc. (Incorporated herein by reference to Exhibit 10.1 to the Lakes’ Current Report on Form 8-K filed with the Commission on April 17, 2009.)
10.1
Management Agreement between the Shingle Springs Band of Miwok Indians and Kean Argovitz Resorts - Shingle Springs, LLC, dated as of the 11th day of June, 1999. (Incorporated herein by reference to Exhibit 10.72 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2000.)
10.2
Operating Agreement of Lakes KAR - Shingle Springs, LLC dated as of the 29th day of July, 1999, by Lakes Shingle Springs, Inc. and Kean Argovitz Resorts - Shingle Springs, LLC. (Incorporated herein by reference to Exhibit 10.75 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2000.)
10.3
Assignment and Assumption Agreement between Kean Argovitz Resorts - Shingle Springs, LLC, a Nevada limited liability company, and Lakes KAR - Shingle Springs, LLC, a Delaware limited liability company, dated as of the 11th day of June, 1999. (Incorporated herein by reference to Exhibit 10.76 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2000.)
10.4
Assignment and Assumption Agreement and Consent to Assignment and Assumption, by and between Lakes Gaming, Inc., a Minnesota corporation, and Kean Argovitz Resorts - Shingle Springs, LLC, a Nevada limited liability company, dated as of the 11th day of June, 1999. (Incorporated herein by reference to Exhibit 10.77 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2000.)
10.5
Security Agreement dated as of the 29th day of July, 1999, by and between Lakes Shingle Springs, Inc., a Minnesota corporation, and Lakes KAR - Shingle Springs, LLC, a Delaware limited liability company. (Incorporated herein by reference to Exhibit 10.78 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2000.)
10.6
Promissory Note dated as of the 29th day of July, 1999, by and among Kean Argovitz Resorts - Shingle Springs, LLC, a Nevada limited liability company, and Lakes Shingle Springs, Inc., a Minnesota corporation. (Incorporated herein by reference to Exhibit 10.79 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2000.)
10.7
Pledge Agreement dated as of the 29th day of July, 1999, by and between Kean Argovitz Resorts - Shingle Springs, LLC, a Nevada limited liability company and Lakes Shingle Springs, Inc., a Minnesota corporation. (Incorporated herein by reference to Exhibit 10.80 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2000.)
10.8
Buyout and Release Agreement (Shingle Springs Project) dated as of January 30, 2003, by and among Kean Argovitz Resorts - Shingle Springs, L.L.C., Lakes KAR - Shingle Springs, L.L.C., Lakes Entertainment, Inc., a Minnesota corporation, and Lakes Shingle Springs, Inc. (Incorporated herein by reference to Exhibit 10.64 to Lakes’ Report on Form 10-K for the fiscal year ended December 29, 2002.)
10.9
Consent and Agreement to Buyout and Release (Argovitz - Shingle Springs Project) dated as of January 30, 2003, by and among Jerry A. Argovitz, Lakes KAR - Shingle Springs, L.L.C., Lakes Entertainment, Inc. and Lakes Shingle Springs, Inc. (Incorporated herein by reference to Exhibit 10.65 to Lakes’ Report on Form 10-K for the fiscal year ended December 29, 2002.)
10.10
Consent and Agreement to Buyout and Release (Kean - Shingle Springs Project) dated as of January 30, 2003, by and among Kevin M. Kean, Lakes KAR - Shingle Springs, L.L.C., Lakes Entertainment, Inc. and Lakes Shingle Springs, Inc. (Incorporated herein by reference to Exhibit 10.66 to Lakes’ Report on Form 10-K for the fiscal year ended December 29, 2002.)
10.11
Shingle Springs Consulting Agreement dated as of January 30, 2003, by and between Kevin M. Kean and Lakes KAR - Shingle Springs, L.L.C. (Incorporated herein by reference to Exhibit 10.67 to Lakes’ Report on Form 10-K for the fiscal year ended December 29, 2002.)
10.12
Buyout and Release Agreement (Jamul Project) dated as of January 30, 2003, by and among Kean Argovitz Resorts - Jamul, L.L.C., Lakes Kean Argovitz Resorts - California, L.L.C., Lakes Entertainment, Inc., a Minnesota corporation, and Lakes Jamul, Inc. (Incorporated herein by reference to Exhibit 10.68 to Lakes’ Report on Form 10-K for the fiscal year ended December 29, 2002.)
10.13
Consent and Agreement to Buyout and Release (Argovitz - Jamul Project) dated as of January 30, 2003, by and among Jerry A. Argovitz, Lakes Kean Argovitz Resorts - California, L.L.C., Lakes Entertainment, Inc., a Minnesota corporation, and Lakes Jamul, Inc. (Incorporated herein by reference to Exhibit 10.69 to Lakes’ Report on Form 10-K for the fiscal year ended December 29, 2002.)
10.14
Consent and Agreement to Buyout and Release (Kean - Jamul Project) dated as of January 30, 2003, by and among Kevin M. Kean, Lakes Kean Argovitz Resorts - California, L.L.C., Lakes Entertainment, Inc., a Minnesota corporation, and Lakes Jamul, Inc. (Incorporated herein by reference to Exhibit 10.70 to Lakes’ Report on Form 10-K for the fiscal year ended December 29, 2002.)
10.15
Jamul Consulting Agreement dated as of January 30, 2003, by and between Kevin M. Kean and Lakes Kean Argovitz Resorts - California, L.L.C. (Incorporated herein by reference to Exhibit 10.71 to Lakes’ Report on Form 10-K for the fiscal year ended December 29, 2002.)
10.16
First Amended and Restated Memorandum of Agreement Regarding Gaming Development and Management Agreement between Shingle Springs Band of Miwok Indians, a Federally Recognized Tribe and Lakes KAR Shingle Springs, LLC, a Delaware Limited Liability Company, dated October 13, 2003, as amended June 16, 2004, as approved by the National Indian Gaming Commission on July 19, 2004. (Incorporated herein by reference to Exhibit 10.1 to Lakes’ Report on Form 10-Q for the fiscal quarter ended October 3, 2004.)
10.17
Pawnee Note by the Pawnee Trading Post Gaming Corporation, a wholly-owned subsidiary of the Pawnee Tribal Development Corporation, in favor of Lakes Pawnee Consulting, LLC, a Minnesota limited liability company, dated January 12, 2005. (Incorporated herein by reference to Exhibit 10.88 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2005.)
10.18
Security Agreement by and between the Pawnee Trading Post Gaming Corporation, a wholly-owned subsidiary of the Pawnee Tribal Development Corporation, and Lakes Pawnee Consulting, LLC, a Minnesota limited liability company, dated January 12, 2005. (Incorporated herein by reference to Exhibit 10.90 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2005.)
10.19
Operating Note by the Pawnee Trading Post Gaming Corporation, a wholly-owned subsidiary of the Pawnee Tribal Development Corporation, in favor of Lakes Pawnee Management, LLC, a Minnesota limited liability company, dated January 12, 2005. (Incorporated herein by reference to Exhibit 10.92 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2005.)
10.20
Security Agreement by and between the Pawnee Trading Post Gaming Corporation, a wholly-owned subsidiary of the Pawnee Tribal Development Corporation, and Lakes Pawnee Management, LLC, a Minnesota limited liability company, dated January 12, 2005. (Incorporated herein by reference to Exhibit 10.94 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2005.)
10.21
Pawnee Note by the Pawnee Travel Plaza Gaming Corporation, a wholly-owned subsidiary of the Pawnee Tribal Development Corporation, in favor of Lakes Pawnee Consulting, LLC, a Minnesota limited liability company, dated January 12, 2005. (Incorporated herein by reference to Exhibit 10.97 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2005.)
10.22
Security Agreement by and between the Pawnee Travel Plaza Gaming Corporation, a wholly-owned subsidiary of the Pawnee Tribal Development Corporation, and Lakes Pawnee Consulting, LLC, a Minnesota limited liability company, dated January 12, 2005. (Incorporated herein by reference to Exhibit 10.99 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2005.)
10.23
Operating Note by the Pawnee Travel Plaza Gaming Corporation, a wholly-owned subsidiary of the Pawnee Tribal Development Corporation, in favor of Lakes Pawnee Management, LLC, a Minnesota limited liability company, dated January 12, 2005. (Incorporated herein by reference to Exhibit 10.101 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2005.)
10.24 Security Agreement by and between the Pawnee Travel Plaza Gaming Corporation, a wholly-owned subsidiary of the Pawnee Tribal Development Corporation, and Lakes Pawnee Management, LLC, a Minnesota limited liability company, dated January 12, 2005. (Incorporated herein by reference to Exhibit 10.103 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2005.)
10.25
Pawnee Note by the Pawnee Chilocco Gaming Corporation, a wholly-owned subsidiary of the Pawnee Tribal Development Corporation, in favor of Lakes Pawnee Consulting, LLC, a Minnesota limited liability company, dated January 12, 2005. (Incorporated herein by reference to Exhibit 10.106 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2005.)
10.26
Security Agreement by and between the Pawnee Chilocco Gaming Corporation, a wholly-owned subsidiary of the Pawnee Tribal Development Corporation, and Lakes Pawnee Consulting, LLC, a Minnesota limited liability company, dated January 12, 2005. (Incorporated herein by reference to Exhibit 10.108 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2005.)
10.27
Operating Note by the Pawnee Chilocco Gaming Corporation, a wholly-owned subsidiary of the Pawnee Tribal Development Corporation, in favor of Lakes Pawnee Management, LLC, a Minnesota limited liability company, dated January 12, 2005. (Incorporated herein by reference to Exhibit 10.110 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2005.)
10.28
Security Agreement by and between the Pawnee Chilocco Gaming Corporation, a wholly-owned subsidiary of the Pawnee Tribal Development Corporation, and Lakes Pawnee Management, LLC, a Minnesota limited liability company, dated January 12, 2005. (Incorporated herein by reference to Exhibit 10.112 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2005.)
10.29
First Amendment to Loan and Security Agreement by and among Lakes California Land Development, Inc., Lakes Entertainment, Inc., Lakes Shingle Springs, Inc., Lakes Jamul, Inc., Lakes KAR Shingle Springs, LLC, Lakes Kean Argovitz Resorts-California, LLC and collectively, Lakes Pawnee Consulting, LLC, Lakes Pawnee Management, LLC, Lakes Kickapoo Consulting, LLC, Lakes Kickapoo Management, LLC, Lakes Iowa Consulting, LLC, Lakes Iowa Management, LLC, and Kevin Kean, a resident of the state of Nevada, dated June 2, 2005. (Incorporated herein by reference to Exhibit 10.145 to Lakes’ Report on Form 10-K for the fiscal year ended January 2, 2005.)
10.30
Employment Agreement dated as of February 15, 2006 between Lakes Entertainment, Inc (including its subsidiaries and affiliates) and Lyle Berman. (Incorporated herein by reference to Exhibit 10.11 to Lakes’ Current Report on Form 8-K filed with the Commission on February 22, 2006.)*
10.31
Employment Agreement dated as of February 15, 2006 between Lakes Entertainment, Inc. (including its subsidiaries and affiliates) and Timothy J. Cope. (Incorporated herein by reference to Exhibit 10.12 to Lakes’ Current Report on Form 8-K filed with the Commission on February 22, 2006.)*
10.32
Lease Intended as Security dated as of December 3, 1999 between Banc of America Leasing & Capital, LLC and Lakes Gaming, Inc. (now known as Lakes Entertainment, Inc.), as amended on February 11, 2000, May 12, 2000 and May 1, 2005. (Incorporated herein by reference to Exhibit 10.168 to Lakes’ Report on Form 10-K for the year ended January 1, 2006.)
10.33
Conditional Release and Termination Agreement dated as of May 20, 1999 by and between Lakes Gaming, Inc. (now known as Lakes Entertainment, Inc.), and Casino Resources Corporation, a Minnesota corporation as amended on July 1, 1999. (Incorporated herein by reference to Exhibit 10.169 to Lakes’ Report on Form 10-K for the year ended January 1, 2006.)
10.34
Third Amended and Restated Management Agreement by and between the Pokagon Band of Potawatomi Indians and Great Lakes Gaming of Michigan, LLC, a Minnesota limited liability company (F/K/A Great Lakes of Michigan, LLC, dated as of January 25, 2006. (Incorporated herein by reference to Exhibit 10.170 to Lakes’ Report on Form 10-K for the year ended January 1, 2006.)
10.35
Third Amended and Restated Development Agreement by and between the Pokagon Band of Potawatomi Indians and Great Lakes Gaming of Michigan, LLC, a Minnesota limited liability company (F/K/A Great Lakes of Michigan, LLC) dated as of January 25, 2006. (Incorporated herein by reference to Exhibit 10.171 to Lakes’ Report on Form 10-K for the year ended January 1, 2006.)
10.36
Third Amended and Restated Lakes Development Note by the Pokagon Band of Potawatomi Indians in favor of Great Lakes Gaming of Michigan, LLC dated as of January 25, 2006. (Incorporated herein by reference to Exhibit 10.174 to Lakes’ Report on Form 10-K for the year ended January 1, 2006.)
10.37
First Amended and Restated Lakes Facility Note by the Pokagon Band of Potawatomi Indians in favor of Great Lakes Gaming of Michigan, LLC dated as of January 25, 2006. (Incorporated herein by reference to Exhibit 10.175 to Lakes’ Report on Form 10-K for the year ended January 1, 2006.)
10.38
Third Amended and Restated Transition Loan Note by the Pokagon Band of Potawatomi Indians in favor of Great Lakes Gaming of Michigan, LLC dated as of January 25, 2006. (Incorporated herein by reference to Exhibit 10.180 to Lakes’ Report on Form 10-K for the year ended January 1, 2006.)
10.39
Development Financing and Services Agreement dated as of January 17, 2006 but effective as of March 30, 2006 among Lakes Jamul Development LLC, Jamul Gaming Authority and Jamul Indian Village (with exhibits A and B). (Incorporated by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on April 5, 2006.)
10.40
Security Agreement (Lakes Jamul - Development) dated as of January 17, 2006 but effective as of March 30, 2006 among Lakes Jamul Development LLC, Jamul Gaming Authority and Jamul Indian Village. (Incorporated by reference to Exhibit 10.2 to Lakes’ Current Report on Form 8-K filed with the Commission on April 5, 2006.)
10.41
First Amendment dated June 1, 2006 to the Third Amended and Restated Management Agreement dated January 25, 2006 among Great Gaming of Michigan, LLC, Pokagon Band of Potawatomi Indians, and Pokagon Gaming Authority. (Incorporated by reference to Exhibit 10.14 to Lakes’ Current Report on Form 8-K filed with the Commission on June 28, 2006.)
10.42
First Amendment dated June 1, 2006 to the Third Amended and Restated Development Agreement dated January 25, 2006 among Great Gaming of Michigan, LLC, Pokagon Band of Potawatomi Indians, and Pokagon Gaming Authority. (Incorporated by reference to Exhibit 10.15 to Lakes’ Current Report on Form 8-K filed with the Commission on June 28, 2006.)
10.43
Form of Master Participation Agreement dated as of March 2, 2007 by and between Great Lakes Gaming of Michigan, LLC and each Loan participant. (Incorporated by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on March 8, 2007.)
10.44
Certificate to Master Participation Agreement dated March 2, 2007 by and between Great Lakes Gaming of Michigan, LLC and the President and Fellows of Harvard College. (Incorporated by reference to Exhibit 10.2 to Lakes’ Current Report on Form 8-K filed with the Commission on March 8, 2007.)
10.45
Certificate to Master Participation Agreement dated March 2, 2007 by and between Great Lakes Gaming of Michigan, LLC and Regiment Capital Ltd. (Incorporated by reference to Exhibit 10.3 to Lakes’ Current Report on Form 8-K filed with the Commission on March 8, 2007.)
10.46
Certificate to Master Participation Agreement dated March 2, 2007 by and between Great Lakes Gaming of Michigan, LLC and RiverSource High Yield Bond Fund. (Incorporated by reference to Exhibit 10.4 to Lakes’ Current Report on Form 8-K filed with the Commission on March 8, 2007.)
10.47
Certificate to Master Participation Agreement dated March 2, 2007 by and between Great Lakes Gaming of Michigan, LLC and RiverSource Income Opportunities Fund. (Incorporated by reference to Exhibit 10.5 to Lakes’ Current Report on Form 8-K filed with the Commission on March 8, 2007.)
10.48
Certificate to Master Participation Agreement dated March 2, 2007 by and between Great Lakes Gaming of Michigan, LLC and RiverSource Variable Portfolio - High Yield Bond Fund. (Incorporated by reference to Exhibit 10.6 to Lakes’ Current Report on Form 8-K filed with the Commission on March 8, 2007.)
10.49
Certificate to Master Participation Agreement dated March 2, 2007 by and between Great Lakes Gaming of Michigan, LLC and RiverSource Variable Portfolio - Income Opportunities Fund. (Incorporated by reference to Exhibit 10.7 to Lakes’ Current Report on Form 8-K filed with the Commission on March 8, 2007.)
10.50
Certificate to Master Participation Agreement dated March 2, 2007 by and between Great Lakes Gaming of Michigan, LLC and Diversified Investors High Yield Bond Fund. (Incorporated by reference to Exhibit 10.8 to Lakes’ Current Report on Form 8-K filed with the Commission on March 8, 2007.)
10.51
Certificate to Master Participation Agreement dated March 2, 2007 by and between Great Lakes Gaming of Michigan, LLC and Plymouth County Retirement Association. (Incorporated by reference to Exhibit 10.9 to Lakes’ Current Report on Form 8-K filed with the Commission on March 8, 2007.)
10.52
Certificate to Master Participation Agreement dated March 2, 2007 by and between Great Lakes Gaming of Michigan, LLC and High Income Portfolio. (Incorporated by reference to Exhibit 10.10 to Lakes’ Current Report on Form 8-K filed with the Commission on March 8, 2007.)
10.53
Certificate to Master Participation Agreement dated March 2, 2007 by and between Great Lakes Gaming of Michigan, LLC and Boston Income Portfolio. (Incorporated by reference to Exhibit 10.11 to Lakes’ Current Report on Form 8-K filed with the Commission on March 8, 2007.)
10.54
Certificate to Master Participation Agreement dated March 2, 2007 by and between Great Lakes Gaming of Michigan, LLC and T. Rowe Price High Yield Fund, Inc. (Incorporated by reference to Exhibit 10.12 to Lakes’ Current Report on Form 8-K filed with the Commission on March 8, 2007.)
10.55
Certificate to Master Participation Agreement dated March 2, 2007 by and between Great Lakes Gaming of Michigan, LLC and Bank of America, N. A. (Incorporated by reference to Exhibit 10.13 to Lakes’ Current Report on Form 8-K filed with the Commission on March 8, 2007.)
10.56
Certificate to Master Participation Agreement dated March 2, 2007 by and between Great Lakes Gaming of Michigan, LLC and Andover Capital Partners LP. (Incorporated by reference to Exhibit 10.14 to Lakes’ Current Report on Form 8-K filed with the Commission on March 8, 2007.)
10.57
Certificate to Master Participation Agreement dated March 2, 2007 by and between Great Lakes Gaming of Michigan, LLC and Baldwin Enterprises, Inc. (Incorporated by reference to Exhibit 10.15 to Lakes’ Current Report on Form 8-K filed with the Commission on March 8, 2007.)
10.58
Second Amendment dated January 23, 2007 to First Amended and Restated Memorandum of Agreement Regarding Gaming Development and Management Agreement between the Shingle Springs Band of Miwok Indians and Lakes KAR - Shingle Springs, LLC. (Incorporated by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on March 23, 2007.)
10.59
Third Amendment dated as of May 27, 2007 to First Amended and Restated Memorandum of Agreement Regarding Gaming Development and Management Agreement between the Shingle Springs Band of Miwok Indians and Lakes KAR - Shingle Springs, LLC. (Incorporated by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on June 14, 2007.)
10.60
Purchase Agreement dated as of June 22, 2007 among Lakes KAR - Shingle Springs, LLC, Shingle Springs Band of Miwok Indians, Shingle Springs Tribal Gaming Authority, Morgan Stanley & Co. Incorporated and Wells Fargo Securities, LLC. (Incorporated by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on July 5, 2007.)
10.61
Notes Dominion Account Agreement dated June 28, 2007 among Lakes KAR - Shingle Springs, LLC and the Bank of New York Trust Company, N.A. (Incorporated by reference to Exhibit 10.2 to Lakes’ Current Report on Form 8-K filed with the Commission on July 5, 2007.)
10.62
Security Agreement Acknowledgement dated June 28, 2007 between Lakes KAR - Shingle Springs, LLC and the Shingle Springs Tribal Gaming Authority. (Incorporated by reference to Exhibit 10.3 to Lakes’ Current Report on Form 8-K filed with the Commission on July 5, 2007.)
10.63
Intercreditor and Subordination Agreement dated June 28, 2007 among Lakes KAR - Shingle Springs, LLC and the Bank of New York Trust Company, N.A. (Incorporated by reference to Exhibit 10.4 to Lakes’ Current Report on Form 8-K filed with the Commission on July 5, 2007.)
10.64
Assignment and Assumption Agreement dated April 20, 2007 among the Shingle Springs Board of Miwok Indians, Shingle Springs Tribal Gaming Authority and Lakes KAR - Shingle Springs, LLC (Incorporated by reference to Exhibit 10.5 to Lakes’ Current Report on Form 8-K filed with the Commission on July 5, 2007.)
10.65
2007 Stock Option and Compensation Plan (Incorporated by reference to Appendix B to Lakes’ Proxy Statement filed with the Commission on April 26, 2007).*
10.66
Joint Venture Agreement dated April 29, 2008 between Lakes Ohio Development, LLC and Myohionow.com, LLC (Incorporated by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on May 5, 2008).
10.67
Intercreditor and Subordination Agreement, dated as of September 30, 2008, with Bank of Utah, as FF&E agent (Incorporated by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on October 6, 2008).
10.68
First Amendment to Intercreditor and Subordination Agreement, dated as of September 30, 2008, with The Bank of New York Mellon Trust Company, N.A., as Collateral Agent (Incorporated by reference to Exhibit 10.2 to Lakes’ Current Report on Form 8-K filed with the Commission on October 6, 2008).
10.69
Line of Credit Loan Agreement dated October 28, 2008 between Lakes Entertainment, Inc. and First State Bank (Incorporated by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on November 3, 2008).
10.70
Secured Line of Credit Promissory Note dated October 28, 2008 between Lakes Entertainment, Inc. and First State Bank (Incorporated by reference to Exhibit 10.2 to Lakes’ Current Report on Form 8-K filed with the Commission on November 3, 2008).
10.71
Mortgage, Security Agreement and Absolute Assignment of Leases and Rents dated October 28, 2008 in favor of Lakes Entertainment, Inc. and First State Bank (Incorporated by reference to Exhibit 10.3 to Lakes’ Current Report on Form 8-K filed with the Commission on November 3, 2008).
10.72
Unconditional Guarantee dated October 28, 2008, by Lyle Berman in favor of First State Bank (Incorporated by reference to Exhibit 10.4 to Lakes’ Current Report on Form 8-K filed with the Commission on November 3, 2008).
10.73
First Amendment to Employment Agreement with Lyle Berman dated as of March 4, 2009, effective February 15, 2009. (Incorporated herein by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on March 10, 2009.)*
10.74
First Amendment to Employment Agreement with Tim Cope dated as of March 4, 2009 effective February 15, 2009. (Incorporated herein by reference to Exhibit 10.2 to Lakes’ Current Report on Form 8-K filed with the Commission on March 10, 2009.)*
10.75
Joint Funding Arrangement and Development Option for Gaming Facilities in Ohio dated October 28, 2009 by and between Lakes Entertainment, Inc. and Penn Ventures, LLC. (Incorporated herein by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on November 4, 2009.)
10.76
Operating Agreement of Rock Ohio Ventures LLC dated October 29, 2009 by and between Lakes Ohio Development, LLC, Rock Ohio Ventures I LLC, and Rock Ohio Ventures II LLC. (Incorporated herein by reference to Exhibit 10.2 to Lakes’ Current Report on Form 8-K filed with the Commission on November 4, 2009.)
10.77
Finders Agreement dated March 9, 2010 between Lakes Ohio Development, LLC and Quest Media Group, LLC. (Incorporated herein by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on March 11, 2010)
10.78
First Amendment to Agreement dated April 6, 2010 by and between Lakes Ohio Development, LLC and Quest Media Group, LLC. (Incorporated herein by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on April 9, 2010)
10.79
Termination Agreement dated July 13, 2010 by and between Lakes Entertainment, Inc. and Penn Ventures, LLC. (Incorporated herein by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on July 15, 2010)
10.80
Change in Terms Agreement dated October 28, 2010 between Lakes Entertainment, Inc. and Centennial Bank. (Incorporated herein by reference to Exhibit 10.1 to Lakes’ Report on Form 10-Q filed with the Commission on November 10, 2010)
10.81
Settlement Agreement dated March 17, 2011 between Lakes Entertainment, Inc. and Cynthia Bridges , Secretary of the Department of Revenue, State of Louisiana. (Incorporated herein by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on March 23, 2011)
10.82
Buyout and Termination Agreement dated June 30, 2011 among Great Lakes Gaming of Michigan, LLC, f/k/a Great Lakes of Michigan, LLC; Lakes Entertainment, Inc., f/k/a Lakes Gaming, Inc.; Lakes Gaming and Resorts, LLC; Pokagon Properties, LLC; Filbert Land Development; Pokagon Gaming Authority; and Pokagon Bank of Potawatomi Indians. (Incorporated herein by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on July 5, 2011)
10.83
Convertible Promissory Note dated August 23, 2011 between Dania Entertainment Center, LLC and Lakes Florida Development, LLC and Development Services and Management Agreement dated August 23, 2011 by and among Dania Entertainment Center, LLC and Lakes Florida Casino Management, LLC. (Incorporated herein by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on August 26, 2011)
10.84
Limited Liability Company Agreement for Evitts Resort, LLC dated September 22, 2011 between Lakes Maryland Development, LLC and Addy Entertainment, LLC. (Incorporated herein by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on September 27, 2011)
10.85
Development Services and Management Agreement dated September 22, 2011 by and among Evitts Resort, LLC and Lakes Maryland Casino Management, LLC. (Incorporated herein by reference to Exhibit 10.2 to Lakes’ Current Report on Form 8-K filed with the Commission on September 27, 2011)
10.86
First Amended and Restated Operating Agreement of Rock Ohio Ventures, LLC by and between Rock Ohio Ventures I, LLC, Rock Ohio Ventures II, LLC and Lakes Ohio Development effective as of January 28, 2011. (Incorporated herein by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on October 24, 2011)
10.87
Pre-Development, Development and Financing Arrangement Agreement by and between the Jamul Indian Village and Lakes Jamul Development, LLC, dated November 22, 2011. (Incorporated herein by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on November 29, 2011)
10.88
Option Agreement and Escrow Instructions by and between Lakes Kean Argovitz Resorts - California, LLC and Jamul Indian Village, dated November 22, 2011. (Incorporated herein by reference to Exhibit 10.2 to Lakes’ Current Report on Form 8-K filed with the Commission on November 29, 2011)
10.89
Amended and Restated Security Agreement by and between Lakes Jamul Development, LLC and Jamul Indian Village, dated November 22, 2011. (Incorporated herein by reference to Exhibit 10.3 to Lakes’ Current Report on Form 8-K filed with the Commission on November 29, 2011)
10.90
Unit Repurchase, Release and Settlement Agreement by and between Evitts Resort, LLC and Addy Entertainment, LLC, dated May 10, 2012. (Incorporated herein by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on May 16, 2012)
10.91
Asset Purchase Agreement by and between Evitts Resort, LLC and Maryland Economic Development Corporation, dated August 3, 2012. (Incorporated herein by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on August 9, 2012)
10.92
Amended and Restated Ground Lease by and between Evitts Resort, LLC and the State of Maryland to the use of the Department of Natural Resources, effective August 3, 2012. (Incorporated herein by reference to Exhibit 10.2 to Lakes’ Current Report on Form 8-K filed with the Commission on August 9, 2012)
10.93
Payment in Lieu of Taxes Agreement by and between Evitts Resort, LLC and the Board of Commissioners of Allegany County, dated April 12, 2012. (Incorporated herein by reference to Exhibit 10.3 to Lakes’ Current Report on Form 8-K filed with the Commission on August 9, 2012)
10.94
Second Change in Terms Agreement by and between Lakes Entertainment, Inc. and Centennial Bank f/k/a First State Bank dated October 28, 2012. (Incorporated herein by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on November 1, 2012)
10.95
Secured Construction Loan Agreement entered into on December 17, 2012 by and between Evitts Resort, LLC and Centennial Bank. (Incorporated herein by reference to Exhibit 10.1 to Lakes’ Current Report on Form 8-K filed with the Commission on December 21, 2012)
10.96
Leasehold Mortgage, Security Agreement and Assignment of Rent entered into on December 17, 2012 by and between Evitts Resort, LLC and Centennial Bank. (Incorporated herein by reference to Exhibit 10.2 to Lakes’ Current Report on Form 8-K filed with the Commission on December 21, 2012)
10.97
Mortgage, Security Agreement and Assignment of Rent entered into on December 17, 2012 by and between Lakes Entertainment, Inc. and Centennial Bank. (Incorporated herein by reference to Exhibit 10.3 to Lakes’ Current Report on Form 8-K filed with the Commission on December 21, 2012)
10.98
Unconditional Guaranty into on December 17, 2012 by and between Lakes Entertainment, Inc. and Centennial Bank. (Incorporated herein by reference to Exhibit 10.4 to Lakes’ Current Report on Form 8-K filed with the Commission on December 21, 2012)
10.99
Secured Construction Promissory Note entered into on December 17, 2012 by and between Evitts Resort, LLC and Centennial Bank. (Incorporated herein by reference to Exhibit 10.4 to Lakes’ Current Report on Form 8-K filed with the Commission on December 21, 2012)
Subsidiaries of the Company.
23.1
Consent of Independent Registered Public Accounting Firm dated March 15, 2013.
31.1
Certification of Chief Executive Officer under Section 302 of the Sarbanes-Oxley Act.
31.2
Certification of Chief Financial Officer under Section 302 of the Sarbanes-Oxley Act.
32.1
Certification of Chief Executive Officer and Chief Financial Officer under Section 906 of the Sarbanes-Oxley Act.
The following financial information from Lakes Entertainment Inc.’s annual report on Form 10-K for the period ended December 30, 2012, filed with the SEC on March 15, 2013, formatted in Extensible Business Reporting Language (XBRL): (i) the Consolidated Balance Sheets as of December 30, 2012 and January 1, 2012, (ii) the Consolidated Statements of Operations for the years ended December 30, 2012 and January 1, 2012, (iii) the Consolidated Statements of Cash Flows for the years ended December 30, 2012 and January 1, 2012, (iv) the Consolidated Statements of Shareholders' Equity for the years ended December 30, 2012 and January 1, 2012, and (v) Notes to Consolidated Financial Statements.**
*
Management Compensatory Plan or Arrangement
**
Pursuant to Rule 406T of Regulation S-T, the XBRL related information in Exhibit 101 to this annual report on Form 10-K shall not be deemed to be “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liability of that section, and shall not be deemed part of a registration statement, prospectus or other document filed under the Securities Act or the Exchange Act, except as shall be expressly set forth by specific reference in such filings.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Dated as of March 15, 2013
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities indicated as of March 15, 2013.
Name
Title
/s/ Lyle Berman
Chairman of the Board and Chief Executive Officer
Lyle Berman
(Principal Executive Officer)
/s/ Timothy J. Cope
President, Chief Financial Officer and Director
Timothy J. Cope
(Principal Financial and Accounting Officer)
/s/ Ray Moberg
Director
Ray Moberg
/s/ Neil I. Sell
Director
Neil I. Sell
/s/ Larry C. Barenbaum
Director
Larry C. Barenbaum
/s/ Richard White
Director
Richard White